2012 UP LAW

REMEDIAL
BAR REVIEWER

Criminal Procedure
Civil Procedure
Evidence
Special Proceedings
LAW
Dean Danilo L. Concepcion
Dean, UP College of Law

Prof. Concepcion L. Jardeleza

Associate Dean, UP College of Law

Prof. Ma. Gisella D. Reyes

Secretary, UP College of Law

Prof. Florin T. Hilbay

Faculty Adviser, UP Law Bar Operations
Commission 2012
Ramon Carlo F. Marcaida
Commissioner
Eleanor Balaquiao
Mark Xavier Oyales
Academics Committee Heads

Eden Catherine Mopia

Remedial Law Subject Heads

Graciello Timothy Reyes

Layout

UP LAW BAR OPERATIONS COMMISSION

 REMEDIAL LAW REVIEWER

2012 UP LAW

REMEDIAL
BAR REVIEWER

LAW
BAR OPERATIONS COMMISSION 2012

EXECUTIVE COMMITTEE
Ramon Carlo Marcaida |Commissioner
Raymond Velasco Mara Kriska Chen |Deputy Commissioners
Barbie Kaye Perez |Secretary
Carmen Cecilia Veneracion |Treasurer
Hazel Angeline Abenoja|Auditor
REMEDIAL LAW TEAM 2012
COMMITTEE HEADS Subject Heads |Eden Catherine Mopia
Eleanor Balaquiao Mark Xavier Oyales | Acads
Monique Morales Katleya Kate Belderol Kathleen Mae LAYOUT TEAM 2012
Tuason (D) Rachel Miranda (D) |Special Lectures Layout Artists | Alyanna Apacible Noel
Patricia Madarang Marinella Felizmenio |Secretariat Luciano RM Meneses Jenin Velasquez
Victoria Caranay |Publicity and Promotions Mara Villegas Naomi Quimpo Leslie
Loraine Saguinsin Ma. Luz Baldueza |Marketing
Benjamin Joseph Geronimo Jose Lacas |Logistics
Octaviano Yas Refran Cris Bernardino
Angelo Bernard Ngo Annalee Toda|HR Layout Head| Graciello Timothy Reyes
Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise
Graciello Timothy Reyes |Layout
Charmaine Sto. Domingo Katrina Maniquis |Mock Bar
Krizel Malabanan Karren de Chavez |Bar Candidates Welfare
Karina Kirstie Paola Ayco Ma. Ara Garcia |Events
OPERATIONS HEADS
Charles Icasiano Katrina Rivera |Hotel Operations
Marijo Alcala Marian Salanguit |Day-Operations
Jauhari Azis |Night-Operations
Vivienne Villanueva Charlaine Latorre |Food
Kris Francisco Rimban Elvin Salindo |Transpo
Paula Plaza |Linkages

UP LAW BAR OPERATIONS COMMISSION

 REMEDIAL
2012 UP Law Bar Reviewer
\

LAW
Copyright and all other relevant rights over this
material are owned jointly by the University of the
Philippines College of Law and the Student Editorial
Team.

The ownership of the work belongs to the University of

the Philippines College of Law. No part of this book
shall be reproduced or distributed without the consent
of the University of the Philippines College of Law.

All Rights reserved.

UP LAW BAR OPERATIONS COMMISSION

 REMEDIAL LAW REVIEWER
Criminal Procedure...................... 12
4 7. Cases not requiring a preliminary
I. GENERAL MATTERS ...................... 12
A. Distinguish Jurisdiction over subject
matter from jurisdiction over person of
the accused ............................... 12
B. Requisites for exercise of criminal
jurisdiction ................................ 12
C. Jurisdiction of Criminal courts ...... 12
II. PROSECUTION OF OFFENSES .......... 14
1. Criminal actions, how instituted (Bar
1999) ....................................... 14
2. Who may file them, crimes that
cannot be prosecuted de officio (Bar
1990, 2000) ................................ 15
3. Criminal actions, when enjoined.... 16
4. Control of prosecution ................ 16
5. Sufficiency of Complaint or
Information ................................ 16
6. Designation of Offense ............... 18
7. Cause of the Accusation .............. 18
8. Duplicity of the Offense; Exception
(Bar 2005) ................................. 19
9. Amendment or Substitution of
complaint or information [Sec. 14, Rule
110] (Bar 2001, 2002) .................... 19
10. Venue of criminal actions .......... 20
11. Intervention of offended party .... 20
III. PROSECUTION OF CIVIL ACTION...... 20
1. Rule on implied institution of civil
action with criminal action ............. 20
2. When civil action may proceed
independently ............................. 21
3. When separate civil action is
suspended ................................. 21
4. Effect of the death of accused or
convict on civil action ................... 21
5. Prejudicial Question .................. 21
6. Rule on Filing Fees in civil action
deemed instituted with the criminal
action ...................................... 22
IV. PRELIMINARY INVESTIGATION ........ 22
1. Nature of right ......................... 22
2. Purposes of preliminary
investigation .............................. 23
3. Who may conduct determination of
existence of probable cause ............ 23
4. Resolution of investigating
prosecutor ................................. 24
5. Review .................................. 24
6. When warrant of arrest may issue .. 24
investigation ............................... 25
8. Remedies of accused if there was no
preliminary investigation ................ 25
9. Inquest .................................. 25
V. ARREST .................................... 26
1. Arrest, how made ..................... 27
2. Arrest without warrant, when lawful
.............................................. 27
3. Method of arrest ....................... 28
4. Requisites of a valid warrant of arrest
.............................................. 29
5. Determination of Probable Cause for
issuance of warrant of arrest ........... 29
6. Distinguish probable cause of fiscal
from that of a judge...................... 29
VI. BAIL ....................................... 30
1. Nature ................................... 30
2. When a matter of right; exceptions 31
3. When a matter of discretion ......... 32
4. Hearing of application for bail in
capital offenses ........................... 32
5. Guidelines in fixing amount of bail . 32
6. Bail when not required ............... 33
7. Increase or Reduction of Bail ........ 33
8. Forfeiture and Cancellation of bail . 33
9. Application not a bar to objections in
illegal arrest, lack of or irregular
preliminary investigation ................ 33
10. Hold Departure Order & Bureau of
Immigration Watchlist ................... 33
VII. RIGHTS OF THE ACCUSED ............. 34
1. Rights of accused at the trial ........ 34
2. Rights of persons under Custodial
Investigation ............................... 36
VIII.ARRAIGNMENT AND PLEA
................................................. 37
1. Arraignment and Plea, how made ... 37
2. When should plea of NOT GUILTY be
entered ..................................... 38
3. When accused may enter a plea of
guilty to a lesser offense ................ 38
4. Accused plead guilty to capital
offense, what the court should do ..... 38
5. Searching Inquiry ...................... 38
6. Improvident plea ...................... 38
7. Grounds for suspension of arraignment
.............................................. 38

IX.MOTION TO QUASH
................................................. 39
1. Grounds ................................. 39
2. Distinguish from demurrer to evidence
.............................................. 43
3. Effects of sustaining the motion to
quash ....................................... 43
4. Exception to the rule that sustaining
the motion is not a bar to another
prosecution ................................ 44
5. Double Jeopardy....................... 44
6. Provisional Dismissal .................. 45
X. .................................................. PRE-TRIAL
................................................. 46
1. Matters to be considered during pre-
trial ......................................... 46
2. What the court should do when
prosecution and offended party agree to
the plea offered by the accused ....... 46
3. Pre-trial agreement ................... 47
4. Non-appearance during pre-trial .... 47
5. Pre-trial order ......................... 47
6. Referral of some cases for Court
Annexed Mediation and Judicial Dispute
Resolution ................................. 48
XI. .........................................................TRIAL
................................................. 48
1. Instances when presence of accused
is required by law ........................ 48
2. Requisites before trial can be
suspended on account of absence of
witness ..................................... 48
3. Trial in Absentia ....................... 49
4. Remedy when accused is not
brought to trial within the prescribed
period ...................................... 49
5. Requisites for discharge of accused to
become a state witness.................. 49
6. Effects of Discharge of accused as
state witness .............................. 50
7. Demurrer to Evidence ................ 50
XII. ...............................................JUDGMENT
................................................. 51
1. Requisites of a judgment............. 51
2. Contents of Judgment ................ 51
CC REMEDIAL
3. Promulgation of judgment;
instances of promulgation of judgment in
LAW
CR
absentia .................................... 53
4. When does judgment become final
(four instances) ........................... 54
REMEDIAL LAW REVIEWER
XIII.NEW TRIAL OR RECONSIDERATION
................................................. 54
1. Grounds for New Trial [............... 54
2. Grounds for Reconsideration ......... 54
3. Requisites before a new trial may be
granted on ground of newly discovered
evidence ................................... 54
4. Effects of granting a new trial or
reconsideration ........................... 55
5. Application of Neypes Doctrine in
Criminal Cases............................. 55
XIV. ................................................... APPEAL
................................................. 55
1. Effect of an Appeal.................... 55
2. Where to appeal ....................... 55
3. How appeal taken .................... 56
4. Effect of appeal by any of several
accused..................................... 62
5. Grounds for dismissal of appeal ..... 62
XV.SEARCH AND SEIZURE
................................................. 62
1. Nature of search warrant............. 62
2. Distinguish from warrant of arrest .. 63
3. Application for search warrant,
where filed ................................ 64
4. Probable Cause ........................ 66
5. Personal examination by judge of the
applicant and witnesses ................. 66
6. Particularity of place to be
searched and things to be seized....... 67
7. Personal property to be seized ...... 68
8. Exceptions to search warrant
requirement ............................... 68
9. Remedies from unlawful search and
seizure...................................... 71
XVI.PROVISIONAL REMEDIES
................................................. 72
1. Nature ................................... 72
2. Kinds of provisional remedies........ 73
 REMEDIAL LAW REVIEWER
Civil Procedure ........................... 77
6 ................................................. 96
GENERAL PRINCIPLES ...................... 77
A. Concept of Remedial Law ............ 77
B. Substantive Law as Distinguished from
Remedial Law ............................. 77
C. Rule-making Power of the Supreme
Court ....................................... 77
D. Nature of Philippine Courts .......... 78
JURISDICTION................................ 79
A. Jurisdiction over the parties ........ 80
B. Jurisdiction over the subject matter
80
C. Jurisdiction over the issues .......... 81
D. Jurisdiction over the res or property
in litigation ................................ 81
E. Jurisdiction of Courts ................. 82
F. Jurisdiction over small claims, cases
covered by the rules on Summary
Procedure and Barangay Conciliation . 87
G. Totality Rule ........................... 88
I. ...................................................... ACTIONS
................................................. 88
II.CAUSE OF ACTION
................................................. 90
1. Meaning of cause of action .......... 90
2. Right of action versus cause of action
.............................................. 90
3. Failure to state a cause of action ... 90
4. Test of the sufficiency of a cause of
action ...................................... 91
5. Splitting a single cause of action and
its effects .................................. 91
6. Joinder and misjoinder of causes of
action ...................................... 91
III.PARTIES TO CIVIL ACTIONS
................................................. 91
1. Real parties in interest; indispensable
parties; representatives as parties;
necessary parties; indigent parties;
alternative defendants ............... 92
2. Compulsory and permissive joinder of
parties...................................... 94
3. Misjoinder and non-joinder of parties
.............................................. 94
4. Class suit ............................... 94
5. Suits against entities without juridical
personality................................. 95
6. Effect of death of party litigant .... 95
IV. ....................................................... VENUE
1. Venue versus jurisdiction ............. 96
2. Venue of real actions ................. 96
3. Venue of personal actions ............ 96
4. Venue of actions against non-residents
[Rule 5, Sec. 3]............................ 96
5. When the rules on venue do not apply
.............................................. 96
6. Effects of stipulations on venue ..... 96
V. .................................................PLEADINGS
................................................. 97
1. Kinds of Pleadings ..................... 97
2. Pleadings allowed in small claim cases
and cases covered by the rules on
summary procedure .....................101
3. Parts of a pleading ...................101
4. Allegations in a pleading ............102
5. Effect of failure to plead ............103
6. Default .................................104
7. Filing and Service of pleadings .....106
8. Amendment ...........................108
VI. SUMMONS............................... 110
1. Nature and purpose of summons in
relation to actions in personam, in rem
and quasi in rem .........................110
2. Voluntary appearance ...............110
3. Personal service ......................111
4. Substituted service ...................111
5. Constructive service (by
publication) ...............................111
6. Extra-territorial service, when
allowed ....................................112
7. Service upon prisoners and minors .112
8. Proof of service .......................112
VII. MOTIONS ............................... 113
1. Motions in general ....................113
2. Motions for Bill of Particulars .......114
3. Motion to Dismiss .....................115
VIII. DISMISSAL OF ACTIONS ............. 118
1. Dismissal upon notice by plaintiff;
Two-dismissal rule .......................119
2. Dismissal upon motion by plaintiff;
effect on existing counterclaim .......119
3. Dismissal due to the fault of plaintiff
.............................................119
4. Dismissal of counterclaim, cross-claim
or third-party complaint ................119

IX. PRE-TRIAL .............................. 120
1. Concept of pre-trial .................. 120
2. Nature and purpose .................. 120
3. Notice of pre-trial .................... 120
4. Appearance of parties; effect of
failure to appear ........................ 120
5. Pre-trial brief; effect of failure to
appear..................................... 121
6. Distinction between pre-trial in civil
case and pre-trial in criminal case .... 122
7. Alternative Dispute Resolution (ADR)
............................................. 122
X. INTERVENTION ......................... 122
1. Requisites for intervention ......... 123
2. Time to intervene .................... 123
3. Remedy for the denial of motion to
intervene ................................. 123
XI. SUBPOENA ............................. 123
1. Subpoena duces tecum .............. 124
2. Subpoena ad testificandum ......... 124
3. Service of subpoena.................. 124
4. Compelling attendance of
witnesses; Contempt .................... 124
5. Quashing of subpoena [Rule 21, Sec.
4]........................................... 124
XII. MODES OF DISCOVERY .............. 125
1. Depositions pending action;
Depositions before action or pending
appeal ..................................... 125
2. Written interrogatories to adverse
parties..................................... 128
3. Request for Admission ............... 129
4. Production or inspection of documents
or things .................................. 129
5. Physical and mental examination of
persons .................................... 130
6. Consequences of refusal to comply
with modes of discovery ................ 130
XIII. TRIAL .................................. 130
1. Adjournments and postponements 131
2. Requisites of motion to postpone trial
............................................. 131
3. Agreed statement of facts .......... 131
4. Order of trial; reversal of order.... 131
CCREMEDIAL
LAW
5. Consolidation or Severance of hearing
or trial .....................................131
CR
6. Delegation of reception of evidence
.............................................132
7. Trial by commissioners ..............132
REMEDIAL LAW REVIEWER
XIV. DEMURRER TO EVIDENCE .......... 133
1. Ground .................................133
2. Effect of denial .......................133
3. Effect of grant ........................133
4. Waiver of right to present evidence
.............................................133
5. Demurrer to evidence in a civil case
versus demurrer to evidence in a
criminal case .............................134
XV. JUDGMENTS AND FINAL ORDERS .. 134
1. Judgment without trial ..............135
2. Contents of a judgment .............135
3. Judgment on the pleadings .........136
4. Summary judgments .................136
5. Judgment on the pleadings versus
summary judgments .....................137
6. Rendition of judgments and final
orders......................................137
7. Entry of judgment and final order .138
XVI. POST-JUDGMENT REMEDIES ....... 138
1. Motion for New Trial or
Reconsideration ..........................138
2. Appeals in General ...................141
3. Relief from judgments, orders and
other proceedings .......................153
4. Annulment of Judgments or final
orders and resolutions ..................154
XVII. EXECUTION, SATISFACTION AND
EFFECT OF JUDGMENTS ................. 155
1. Difference between finality of
judgment for purposes of appeal; for
purposes of execution ...................155
2. When execution shall issue .........156
3. How a judgment is executed .......157
4. Properties exempt from execution 159
5. Proceedings where property is
claimed by third persons ...............160
6. Rules on Redemption ................161
7. Examination of Judgment Obligor
When Judgment is unsatisfied .........162
 REMEDIAL LAW REVIEWER
8. Examination of Obligor of Judgment
Obligor .................................... 163
8 9. Effect of Judgment or Final Orders 163
10. Enforcement and Effect of Foreign
Judgments or Final Orders ............. 164
XVIII. PROVISIONAL REMEDIES .......... 164
1. Nature of provisional remedies .... 164
2. Jurisdiction over provisional
remedies .................................. 164
3. Preliminary Attachment ............. 164
4. Preliminary Injunction ............... 168
5. Receivership .......................... 172
6. Replevin ............................... 173
XIX. SPECIAL CIVIL ACTIONS ............ 174
1. Nature of special civil actions ...... 174
2. Ordinary civil actions versus special
civil actions............................... 175
3. Jurisdiction and venue .............. 175
4. Interpleader ........................... 175
5. Declaratory Reliefs and Similar
Remedies ................................. 176
6. Review of Judgments and Final Orders
or Resolution of the COMELEC and COA
............................................. 177
7. Certiorari, Prohibition and
Mandamus ................................ 178
8. Quo Warranto ......................... 180
9. Expropriation ......................... 181
10. Foreclosure of Real Estate Mortgage
............................................. 184
11. Partition .............................. 186
12. Forcible Entry and Unlawful Detainer
............................................. 188
13. Contempt ............................ 192
Evidence.................................. 204
I. GENERAL PRINCIPLES .................. 204
A. Concept of Evidence ................. 204
B. Scope of the Rules of Evidence .... 204
C. Evidence in Civil Cases Versus
Evidence in Criminal Cases ............. 204
D. Proof Versus Evidence ............... 204
E. Factum Probans Versus Factum
Probandum ............................... 204
F. Admissibility of Evidence............ 204
G. Burden of Proof and Burden of
Evidence .................................. 206
H. Presumptions ......................... 206
I. Liberal Construction of the Rules of
Evidence .................................. 206
J. Quantum of Evidence (Weight And
Sufficiency of Evidence) ................206
II. JUDICIAL NOTICE AND JUDICIAL
ADMISSIONS ................................ 206
A. What Need Not be Proved ........206
B. Matters of Judicial Notice ........207
C. Judicial Admissions ................207
D. Judicial Notice of Foreign Laws,
Law of Nations and Municipal Ordinance
209
III. OBJECT (REAL) EVIDENCE ........... 209
A. Nature of Object Evidence .......209
B. Requisites for Admissibility .......209
C. Categories of Object Evidence ...210
D. Demonstrative Evidence ..........210
E. View of an Object or Scene ......210
F. Chain of Custody in Relation to
Section 21 of the Comprehensive
Dangerous Drugs Act of 2002 ...........210
G. Rule on DNA Evidence (A.M. No. 06-
11-5-SC) ...................................210
IV. DOCUMENTARY EVIDENCE ........... 211
A. Meaning of Documentary Evidence
211
B. Requisites for Admissibility .......211
C. Best Evidence Rule ................212
D. Rules on Electronic Evidence (A.M.
No. 01-7-01- SC) .........................212
E. Parol Evidence Rule ...............213
F. Authentication and Proof of
Documents ................................214
V. TESTIMONIAL EVIDENCE .............. 216
A. Qualifications of a Witness [Rule
130, sec. 20] ..............................216
B. Competency versus Credibility of a
Witness ....................................216
C. Disqualifications of Witnesses....216
D. Examination of a Witness .........218
E. Admissions and Confessions ......219
F. Hearsay Rule ........................221
G. Opinion Rule ........................223
H. Character Evidence ................223
I. Rule on Examination of a Child
Witness (A.M. No. 004-07-SC) ..........224
VI. OFFER AND OBJECTION.............. 225
A. Offer of Evidence ..................225
B. When to Make an Offer ...........225
C. Objection ...........................225
D. Repetition of an Objection .......225

E.
F.
Ruling ................................ 225
Striking Out of an Answer ........ 226
G. Tender of Excluded Evidence .... 226
Special Proceedings .................. 228
PRELIMINARY MATTERS .................. 228
I. SETTLEMENT OF ESTATE OF DECEASED
PERSONS, VENUE AND PROCESS........ 230
A. Which court has jurisdiction ..... 230
B. Venue in judicial settlement of
estate ..................................... 230
C. Extent of jurisdiction of Probate
Court ...................................... 230
D. Powers and Duties of Probate Court
230
II. SUMMARY SETTLEMENT OF ESTATES
............................................... 230
A. Extrajudicial settlement by
agreement between heirs, when allowed
230
B. Two-year prescriptive period .... 231
C. Affidavit of Self-adjudication by
sole heir................................... 231
D. Summary settlement of estates of
small value, when allowed ............. 231
E. Remedies of aggrieved parties after
extra-judicial settlement of estate ... 232
III. PRODUCTION AND PROBATE OF WILL
............................................... 233
A. Nature of probate proceeding ... 233
B. Who may petition for probate;
persons entitled to notice .............. 233
IV. ALLOWANCE OR DISALLOWANCE OF
WILL ......................................... 234
A. Contents of petition for allowance
of will ..................................... 234
B. Grounds for disallowing a will ... 234
C. Reprobate; Requisites before will
proved outside allowed in the
Philippines; effects of probate ........ 234
V. ALLOWANCE OR DISALLOWANCE OF
WILL ......................................... 234
CCREMEDIAL
A. When and To whom letters of
LAW
administration granted .................234
CR
B. Order of preference ...............234
C. Opposition to issuance of letters
testamentary; simultaneous filing of
REMEDIAL
petition for administration LAW REVIEWER
.............235
D. Powers and duties of Executors and
Administrators; restrictions on the
powers .....................................235
E. Appointment of Special
Administrator .............................237
F. Grounds for removal of
administrator .............................237
VI. CLAIMS AGAINST THE ESTATE ...... 237
A. Time within which claims shall be
filed; exceptions .........................237
B. Statute of Non-claims .............237
C. Claim of Executor or administrator
against the Estate .......................238
D. Payment of Debts ..................238
VII. ACTIONS BY AND AGAINST
EXECUTORS AND ADMINISTRATORS .... 240
A. Actions that may be brought against
executors and administrators ..........240
B. Requisites before creditor may
bring an action for recovery of property
fraudulently conveyed by the deceased
240
VIII. DISTRIBUTION AND PARTITION .... 241
A. Liquidation ..........................241
B. Project of Partition ................241
C. Remedy of an heir entitled to
residue but not given his share ........242
D. Instances when probate court may
issue writ of execution ..................242
IX. TRUSTEES .............................. 242
A. Distinguished from executor or
administrator .............................242
B. Conditions of the Bond ............242
C. Requisites for the removal and
resignation of a trustee .................242
D. Grounds for removal and resignation
of a trustee ...............................243
E. Extent of authority of trustee ...243
 REMEDIAL LAW REVIEWER
This is based on the principle that his
authority cannot extend beyond the
10 jurisdiction of the Republic, under
whose courts he was appointed. ...... 243
X. ESCHEAT ................................ 243
A. When to file ........................ 243
B. Requisites for filing of petition .. 243
C. Remedy of respondent against
petition; period for filing a claim ..... 244
XI. GUARDIANSHIP ........................ 244
A. General powers and duties of
guardians ................................. 244
B. Conditions of the bond of the
guardian .................................. 244
C. Rule on Guardianship over minors
244
XII. ADOPTION ............................. 248
A. Distinguish domestic adoption from
inter-country adoption ................. 248
B. Domestic Adoption Act............ 248
XIII. WRIT OF HABEAS CORPUS ......... 249
A. Contents of the Petition .......... 250
B. Contents of the Return ........... 250
C. Distinguish Peremptory Writ from
Preliminary Citation ..................... 251
D. When Writ Not Proper or Applicable
251
E. When Discharge Not Authorized . 251
F. Distinguished from Writ of Amparo
and Habeas Data ......................... 252
G. Custody of Minors and Writ of
Habeas Corpus in Relation to Custody of
Minors (A.M. No. 03-04-04-SC) ......... 252
XIV. WRIT OF AMPARO ................... 254
A. Coverage ............................ 254
B. Distinguish from Writ of Habeas
Corpus and Habeas Data ................ 254
C. Distinguish Writ of Amparo From
Search Warrant...........................254
D. Who may file .......................255
E. Contents of Return ................255
F. Omnibus Waiver Rule ..............256
G. Effect of Failure to File a Return 256
H. Procedure for Hearing on the Writ
256
I. Institution of Separate Actions ..256
J. Effect of Filing of a Criminal Action
256
K. Consolidation .........................256
L. Interim Reliefs Available to Petitioner
and Respondent ..........................256
M. Quantum of Proof in Application for
Issuance of Writ: Substantial Evidence
.............................................257
XV. CHANGE OF NAME AND
CANCELLATION OR CORRECTION OF
ENTRIES IN THE CIVIL REGISTRY........ 258
A. Differences under the Applicable
Rules (Rule 103, Rule 108, RA 9048) ..258
B. Grounds for change of name .....258
XVI. ABSENTEES ........................... 258
A. Purpose of the Rule................258
B. Who may file; when to file .......259
XVII. CANCELLATION OR CORRECTION OF
ENTRIES IN THE CIVIL REGISTRY........ 259
A. Entries subject to cancellation or
correction under Rule 108, in relation to
RA 9048....................................259
XVIII. APPEALS IN SPECIAL PROCEEDING
............................................... 259
A. Judgments and orders for which
appeal may be taken ....................260
B. When to appeal ....................260
C. Modes of appeal ....................260
D. Rule on Advance Distribution ....260
 REMEDIAL LAW REVIEWER

11

2012 UP LAW
BAR REVIEWER
REMEDIAL
Criminal Procedure LAW
REMEDIAL LAW TEAM 2012
BAR OPERATIONS COMMISSION 2012
Subject Head |Eden
Catherine Mopia
EXECUTIVE COMMITTEE
Ramon Carlo Marcaida |Commissioner Crim Pro Head | Arvin Razon
Raymond Velasco Mara Kriska Chen |Deputy Commissioners Contributors | Jauhari Azis
Barbie Kaye Perez |Secretary
Carmen Cecilia Veneracion |Treasurer Ricardo Gutierrez Ofelia
Hazel Angeline Abenoja|Auditor Leano Patricia Madarang
Ellery Magbato Rafael Santos
COMMITTEE HEADS
Eleanor Balaquiao Mark Xavier Oyales | Acads Jamie Yu
Monique Morales Katleya Kate Belderol Kathleen Mae Tuason (D) Rachel
Miranda (D) |Special Lectures LAYOUT TEAM 2012
Patricia Madarang Marinella Felizmenio |Secretariat Layout Artists | Alyanna
Victoria Caranay |Publicity and Promotions Apacible Noel Luciano RM
Loraine Saguinsin Ma. Luz Baldueza |Marketing Meneses Jenin Velasquez
Benjamin Joseph Geronimo Jose Lacas |Logistics Mara Villegas Naomi
Angelo Bernard Ngo Annalee Toda|HR Quimpo Leslie Octaviano
Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise Yas Refran Cris Bernardino
Graciello Timothy Reyes |Layout Layout Head| Graciello
Charmaine Sto. Domingo Katrina Maniquis |Mock Bar Timothy Reyes
Krizel Malabanan Karren de Chavez |Bar Candidates Welfare
Karina Kirstie Paola Ayco Ma. Ara Garcia |Events

OPERATIONS HEADS
Charles Icasiano Katrina Rivera |Hotel Operations
Marijo Alcala Marian Salanguit |Day-Operations
Jauhari Azis |Night-Operations
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UP LAW BAR OPERATIONS COMMISSION

 ARREST of person or
Criminal Procedure VOLUNTARY SUBMISSION by the person

REMEDIAL LAW Voluntary appearance of the accused is

Criminal Procedure I. General Matters accomplished by:
Civil Procedure II. Prosecution of Offenses His pleading to the merits (filing a motion to quash
Evidence III. Prosecution of Civil Action (except if the ground is to question the
Special Proceedings IV. Preliminary Investigation jurisdiction of the court, e.g. re validity of arrest,
V. Arrest over the person [Miranda vs Tuliao (2006)]),
appearing for arraignment, or entering trial) or
VI. Bail
By filing Bail
VII. Rights of the Accused
VIII. Arraignment and Plea Jurisdiction Over the Jurisdiction Over The
IX. Motion to Quash Subject Matter Person of the Accused
X. Pre-trial Derived from the law. It May be acquired by
XI. Trial can never be acquired consent of the accused
XII. Judgment solely by consent of the or by waiver of
XIII. New Trial or Reconsideration accused. objections.
XIV. New Appeal The absence of courts Failure of the accused to
XV. Search and Seizure jurisdiction over the make objection in time
XVI. Provisional Remedies subject matter may be would constitute a
raised at any stage of waiver of the objection.
the proceeding. The
I. GENERAL MATTERS right to make such
objection is never
waived.
A. Distinguish Jurisdiction over
subject matter from jurisdiction over B. Requisites for exercise of criminal
person of the accused jurisdiction
Jurisdiction over Subject Matter
WON the court has jurisdiction over the offense by
Jurisdiction over the class of cases to which the
virtue of the imposable penalty and its nature
particular case belongs; It is defined by law;
(SUBJECT MATTER JURISDICTION)
determined by the extent of the penalty which the
WON the court has jurisdiction over the person of
law imposes based on the facts as recited in the
the accused
complaint/information constitutive of the offense
WON the action has been filed within the
charged.
TERRITORIAL JURIDICTION of the court
- Refers to VENUE (see below) or the place where
General rule: The courts jurisdiction to try a
the case is to be tried. The action should be
criminal action is to be determined by the law at
instituted and tried in the municipality or
the time of the institution of the action. [Palana
territory where offense has been committed or
vs People (2007)] Succeeding legislation placing
where any one of the essential ingredients
jurisdiction in another tribunal will not affect
thereof took place. [Sec 15(a), Rule 110]
jurisdiction already obtained by a court.
- For transitory/ continuing offenses, the courts
- Principle of adherence of jurisdiction/continuing
of the territories where the essential ingredients
jurisdiction- jurisdiction continues until the
of the crime took place have concurrent
court has done all that it can do in the exercise
jurisdiction. The first court taking cognizance of
of that jurisdiction. Once vested, it cannot be
the case will exclude the others [People vs
withdrawn or defeated by a subsequent valid
Grospe (1988)]
amendment of the information. [People vs
Chupeco (1965)]
C. Jurisdiction of Criminal courts
Exception: Where the succeeding statute expressly
provides, or is construed that it is intended to How Determined
operate to actions pending before its enactment, Determined by the allegations of the complaint or
in which case the court where the criminal action information.
is pending is ousted of jurisdiction and the pending By examination of the complaint/information to
action will have to be transferred to the other ascertain that the facts set out and punishment
tribunal, which will continue the proceeding. fall under jurisdiction of court. [People vs Ocaya
(1978)]
Jurisdiction over the Person of the Accused Jurisdiction over Complex Crimes (2003 Bar):
The person charged with the offense must have been lodged with the court having jurisdiction to
brought to its forum for trial, forcibly by warrant of impose the maximum and most serious penalty
arrest or upon his voluntary submission to the court. imposable on an offense forming part of the
[Antiporda vs Garchitorena (1999), citing Arula vs complex crime. [Cuyos vs Hon. Garcia (1988)]
Espino (1969)]

Acquired either by:

 REMEDIAL LAW REVIEWER

Military Courts Exception: When, as determined by the ordinary

General rule: Ordinary courts will have jurisdiction
over cases involving members of the armed forces,
and other persons subject to military law, including
members of the Citizens Armed Forces Geographical
Units who commit crimes under the RPC or special
laws, regardless of who the co-accused or victims
are.
court during arraignment, the offense is service-
oriented, then it will be tried by the court martial.
Provided: the President may, in the interest of 13
justice, order/direct at any time before arraignment
that any such crimes/offenses be tried by the proper
civil courts.

Jurisdiction of Courts

MTC/MeTC/MCTC RTC SANDIGANBAYAN

Exclusive original jurisdiction over
all violations of city/municipal
ordinances committed within their
respective territorial jurisdiction.
[Sec. 32(1), BP 129]
Exclusive original jurisdiction over
all offenses punishable with
imprisonment not exceeding 6 years
irrespective of the amount of fine,
and regardless of other imposable
accessory or other penalties,
including the civil liability arising
from such offenses or predicated
thereon, irrespective of kind,
nature, value, or amount thereof.
[Sec. 32(2), BP 129]
- Provided, however, that in
offenses involving damage to
property through criminal
negligence they shall have
exclusive original jurisdiction
thereof. [Sec. 32(2), BP 129]
Exception: Cases falling within the
exclusive original jurisdiction of
RTCs and of the Sandiganbayan.
[Sec. 32, BP 129]
Cases classified under the Revised
Rules on Summary Proceedings: [SC
Resolution, October 15, 1991]
- Violations of traffic laws/rules/
regulations;
- Violations of rental law;
- Cases where the penalty
prescribed by law for the offense
charged is imprisonment not
exceeding 6 months, or a fine not
exceeding P1,000, or both,
irrespective of other imposable
penalties, accessory or
otherwise, or of the civil liability
arising therefrom: Provided,
however, that in offenses
involving damage to property
through criminal negligence, this
Rule shall govern where the
imposable fine does not exceed
P10,000.
Exception: a criminal case falling
under the aforementioned list
where the offense charged is
necessarily related to another
criminal case subject to the
ordinary procedure.
Exclusive original jurisdiction in
all criminal cases not within the
exclusive jurisdiction of any
court/tribunal/body. [Sec. 20, BP
129]
Exception: Those now falling
under the exclusive and
concurrent jurisdiction of the
Sandiganbayan, which shall
hereafter be exclusively taken
cognizance of by the latter. [Sec.
20, BP 129]
Criminal cases where one or more
of the accused is below 18 years
of age but not less than 15 years,
or where one or more of the
victims is a minor at the time of
the commission of the offense [RA
9344]
Cases against minors cognizable
under the Dangerous Drugs Act, as
amended [RA 8369, Family Courts
Act of 1997]
Violations of Republic Act No.
7610, the Child Abuse Act.
Cases of domestic violence against
women and children. If an act
committed against women and
children likewise constitute a
criminal offense, the accused or
batterer shall be subject to
criminal proceedings and the
corresponding penalties. [RA 8369,
Family Courts Act of 1997]
Violations of intellectual property
rights [A.M. No. 03-03-03-SC
(2003); RA 8293]
Money Laundering Cases [RA 9160]
Exception: those committed by
public officers and private persons
who are in conspiracy with such
public officers shall be under the
jurisdiction of the Sandiganbayan
Exclusive original jurisdiction in
those cases expressly
enumerated in PD 1606, as
amended by RA 8249: violations
of RA 3019, RA 1379, and
Chapter II, Section 2, Title VII,
Book II of the RPC
Officials enumerated are the ff:
- Officials of the executive
branch occupying the
positions of regional director
and higher, otherwise
classified as Grade '27' and
higher, of the Compensation
and Position Classification Act
of 1989 (RA 6758)
- Members of Congress and
officials thereof classified as
Grade'27'and up under the
Compensation and Position
Classification Act of 1989
- Members of the judiciary
without prejudice to the
provisions of the Constitution
- Chairmen and members of
Constitutional Commissions,
without prejudice to the
provisions of the Constitution
Other offenses or felonies
whether simple or complexed
with other crimes committed by
public officials and employees
in relation to their office
Requisites:
- Accused is any one of the
public officials enumerated in
subsec. (a) of Sec. 4 of Ra
8249, grade 27 or higher
- Accused commits any other
offense or felony, than those
specified in subsec. (a),
whether simple or complexed
with other crimes
- The offender commits such
other offense or felony in
relation to his office
Cases filed in pursuant to and in
connection with EO 1, 2, 14, 14-
A, issued in 1986
 REMEDIAL LAW REVIEWER
MTC/MeTC/MCTC
14
Violations of BP 22 [A.M. No. 00-11-
01-SC (2003)]
Special jurisdiction to decide on
applications for bail in criminal
cases in the absence of all RTC
judges in a province or city [Sec.
35, BP 129]
4. When injunction may be issued to
restrain criminal prosecution
General rule: The prosecution of a criminal case,
even at the stage of preliminary investigation and
reinvestigation, may not be enjoined by
prohibition/injunction.
Rationale: Public interest requires that criminal acts
be immediately investigated and prosecuted for the
protection of society.
Exceptions (Bar 1999)
To afford protection to the constitutional rights of
the accused;
Necessary for the orderly administration for
justice or to avoid multiplicity of actions;
There is a prejudicial question which is sub judice;
The acts of the officer are without or in excess of
authority;
The prosecution is under an invalid
law/ordinance/regulation;
When double jeopardy is clearly apparent;
The court has no jurisdiction over the offense;
A case of persecution rather than prosecution;
The charges are manifestly false and motivated by
the lust for vengeance;
There is clearly no prima facie case against the
accused and MTQ on that ground has been denied;
[Samson vs Guingona (2000)]
Preliminary injunction has been issued by the SC
to prevent the threatened unlawful arrest of
petitioners.
II. PROSECUTION OF OFFENSES
1. Criminal actions, how instituted
(Bar 1999)
In general
A criminal action is commenced in this jurisdiction
by the filing of a complaint or information. The
complaint may be filed either with the MTC or with a
public prosecutor for purposes of conducting a
preliminary investigation.
Institution and Commencement of actions
For offenses which require a preliminary
investigation pursuant to section 1 of Rule 112
(where the penalty prescribed by law is at least
four (4) years, two (2) months and one (1) day
without regard to the fine), the criminal action is
instituted by filing the complaint with the
appropriate officer for PI. [Sec. 1(a), Rule 110]
RTC SANDIGANBAYAN
In offenses cognizable by inferior courts, the
complaint or information is filed directly with said
courts or the complaint is filed with the fiscal.
[Sec. 1(b), Rule 110]
In Metropolitan Manila and other chartered cities,
the complaint may be filed with the office of the
public prosecutor unless otherwise provided in
their charters. [Sec. 1(b), Rule 110]
The criminal action is commenced when the
complaint or information is filed in court.
Effect of the Institution of criminal action on
the prescriptive period (Bar 1993)
General Rule: The institution of a criminal action
shall interrupt the running of the period of
prescription of the offense charged unless otherwise
provided in special laws. [Sec. 1, Rule 110]
Prescription is interrupted with the filing of the case
even if the court is without jurisdiction, even if it be
merely for purposes of preliminary examination or
investigation. [Francisco vs CA (1983)]
Exception: The Court held that the interruption of
the prescriptive period upon the institution of the
complaint under Sec.1 of Rule 110 does not apply to
cases for violation of special acts and municipal
ordinances. This is governed by Act No. 3326 and is
interrupted only by the institution of judicial
proceedings (not administrative proceedings) for its
investigation and punishment. [Zaldivia vs Reyes
(1992)]
However, in Sanrio Company Ltd. vs Lim (2008), the
SC confirmed that under Section 2 of Act 3326, the
prescriptive period for violation of special laws
starts on the day such an offense was committed and
is interrupted by the institution of proceedings
against the respondent. In this case petitioner filed
its complaint-affidavit with the TAPP of DOJ, and as
such the prescriptive period was tolled.
In Panaguiton, Jr. vs DOJ (2008), the Court declared
that they cannot uphold the position that only the
filing of a case in court can toll the running of the
prescriptive period. It can also be effectively tolled
by the filing of the BP 22 petition before the Office
of the Prosecutor.
In SEC v Interport Resources Corporation (2008), the
Court held that the prescriptive period is interrupted
by commencing the proceedings for the prosecution
of the accused, accomplished by initiating the
preliminary investigation by the SEC, which was
declared as equivalent to the PI conducted by the
DOJ in criminal cases.

Note: The above cases involve violation of special
laws. [Riano]
2. Who may file them, crimes that
cannot be prosecuted de officio (Bar
1990, 2000)
General Rule: All criminal actions either
commenced by complaint or by information shall be
prosecuted under the direction and control of a
public prosecutor [Rule 110, Sec. 5]
The public prosecutor is a quasi-judicial officer and
a representative of sovereignty whose obligation to
govern impartially is as compelling as its obligation
to govern at all.
Exception: In case of (1) heavy work schedule of the
public prosecutor or (2) in the event of lack of public
prosecutors, the private prosecutor may be
authorized in writing by the Chief of the Prosecution
Office or the Regional State Prosecution to
prosecute the case subject to the courts approval.
The authority will continue up to the end of the trial
even in the absence of a public prosecutor until
revoked or withdrawn.
The private prosecutor is the attorney representing
the offended where the civil action for recovery of
civil liability is instituted with the criminal case.
Cases that cannot be prosecuted de oficio
Those which cannot be prosecuted except upon
complaint filed by the aggrieved/offended party are
the following:
Adultery/concubinage [Sec. 5, Rule 110]
Seduction, abduction, acts of lasciviousness
Defamation which consists of imputation of any of
the foregoing offenses.
Rationale: The aggrieved party might prefer to
suffer the outrage in silence rather than go through
the scandal of a public trial.
Offended parties who can file the complaint
In adultery and concubinage The offended
spouse. Both guilty parties should be included if
both are alive. [Sec 5, Rule 110] However, a
criminal prosecution will not prosper if the
offended party consented to the offense.
Seduction, abduction and acts of lasciviousness
The offended party or her parents, grandparents,
or guardian, nor, in any case, if the offender has
been expressly pardoned by them. [Sec 5, Rule
110]
In oral defamation can only be brought upon
instance and upon complaint of the offended
party.
Effect of
Death of offended party
- Once a complaint is filed, the will of the
offended party is ascertained and the action
REMEDIAL LAW REVIEWER
proceeds. Death after filing the complaint would
not deprive the court of the jurisdiction to try
the case.
- The State shall initiate the action on behalf of 15
the offended party in case of his
death/incapacity and he has no known
parents/grandparents/ guardians.
- In adultery/concubinage, such death does not
extinguish the criminal liability of accused.
Desistance by offended party
- It does not bar the People of the Philippines
from prosecuting the criminal action, but it
operates as a waiver of the right to pursue civil
indemnity.
- An affidavit of desistance cannot justify
dismissal of the complaint if made after (and
not before) the institution of the criminal
action.
Pardon by offended party
- In rape, seduction, abduction and acts of
lasciviousness of a minor The pardon will be
effective if given by both parents and the
offended party.
- In seduction, abduction and acts of
lasciviousness - Express pardon by the offended
party, parents, grandparents or guardian will
prevent prosecution. [Rule 110, Sec. 5]
- The parents/grandparents/guardian of the
offended minor (in that order) cannot extend a
valid pardon without conformity of the offended
party, even if the latter is a minor. [US v. Luna
(1902)]
- If the offended woman is of age and not
incapacitated, only she can extend a valid
pardon which would absolve the offender.
General rule: Pardon must be made before the
filing of the criminal complaint in court.
Exception: In rape, where marriage between the
offender and the offended party would be
effective as pardon even when the offender has
already commenced serving his sentence.
If there is more than one accused, the pardon
must be extended to all offenders.
Marriage between offender and offended party.
Pardon or desistance extinguishes civil liability.
Pardon or express condonation has the effect of
waiving the civil liability with regard to the
interest of the injured party. Liability arising from
an offense is extinguished in the same manner as
other obligations.
Under Sec. 27 of RA 7610, complaints on cases of
unlawful acts mentioned in the law committed
against children, may be filed by any of the ff:
Offended party
Parents or guardians
Ascendant or collateral relative within the third
degree of consanguinity
Officer, social worker, or representative of a
licensed child-caring institution
Officer or social worker of the DSWD
Barangay chairman
 REMEDIAL LAW REVIEWER
At least 3 concerned, responsible citizens where
the violation occurred.
16
3. Criminal actions, when enjoined
General rule: The prosecution of a criminal case
may not be enjoined by prohibition/injunction.
Rationale: Public interest requires that criminal acts
be immediately investigated and prosecuted for the
protection of society.
Exceptions (Bar 1999)
To afford protection to the constitutional rights of
the accused;
Necessary for the orderly administration for
justice or to avoid multiplicity of actions;
There is a prejudicial question which is sub judice;
The acts of the officer are without or in excess of
authority;
The prosecutions is under an invalid
law/ordinance/regulation;
When double jeopardy is clearly apparent;
The court has no jurisdiction over the offense;
A case of persecution rather than prosecution;
The charges are manifestly false and motivated by
the lust for vengeance;
There is clearly no prima facie case against the
accused and MTQ on that ground has been denied;
[Samson vs Guingona (2000)]
Preliminary injunction has been issued by the SC
to prevent the threatened unlawful arrest of
petitioners.
4. Control of prosecution
General Rule: All criminal actions commenced by a
complaint or information shall be prosecuted under
the direction and control of the prosecutor. [Sec. 5,
Rule 110]
Exception: In case of heavy work schedule of the
public prosecutor or in the event of lack of public
prosecutors,
The private prosecutor may be authorized in
writing by the Chief of the Prosecution Office or
the Regional State Prosecutor to prosecute the
case subject to the approval of the court.
The authority may be revoked or withdrawn. [Sec.
5, Rule 110]
Criminal action is still prosecuted under the
direction and control of the public prosecutor.
[Riano]
Extent of the prosecutors control
Prior to the filing of the case
- The prosecutor has the discretion to file or not
to file a criminal action.
- The prosecutor is vested with discretion as to
who is to prosecute and for what; he cannot be
compelled to file a particular information.
However, if the evidence presented at the PI
leaves no doubt as to what crime was
committed and by whom, then mandamus is
available to compel the prosecuting officer to
file the corresponding complaint or information
in accordance with the evidence [Bernabe vs
Bolinas, (1966)].
After a case is filed
- Once a criminal case has been filed in court, it
is the prosecutors duty, regardless of his
personal convictions or opinions, to proceed
with the presentation of his evidence to enable
the court to arrive at its own judgment as to the
accuseds culpability.
- After an action has been filed in court, the
prosecutor has no power to dismiss the action
without the courts consent.
While the Secretary of Justice has the authority to
review the acts of his subordinates in criminal cases,
the court has always has the discretion to try a
motion to dismiss which the prosecution may file
after the Secretary of Justice reverses an appealed
decision. [Roberts Jr. vs CA, (1996)]
The trial court is not bound to adopt the resolution
of the Secretary of Justice since it is mandated to
independently evaluate or assess the merits of the
case and it may either agree or disagree with the
recommendation of the Secretary of Justice.
Effects of the lack of intervention by the
fiscal in the trial
Although the private prosecutor had previously been
authorized by the special counsel to present the
evidence for the prosecution, in view of the absence
of the City Fiscal at the hearing, it cant be said that
the prosecution of the case was under the control of
the City Fiscal. It follows that the evidence
presented by the private prosecutor at said hearing
could not be considered as evidence for the plaintiff
[People vs Beriales, (1976)].
5. Sufficiency of Complaint or
Information
Complaint defined
A sworn written statement charging a person with an
offense, subscribed by the offended party, any
peace officer or other public officer charged with
the enforcement of the law violated. [Sec. 3, Rule
110]
Persons authorized to file the complaint:
- Offended party
- Any peace officer
- Other public officer charged with the
enforcement of the law violated.
Filed in the name of the People of the Philippines.
[Sec 2, Rule 110]
Complaint refers to private crimes.
Criminal cases under the Revised Rules on
Summary Procedure shall be either by complaint
or by information; provided that in Metro Manila
and in chartered cities, the criminal action may
only be commenced by the filing of an information
(which means by the prosecutor), except when the
offense cannot be prosecuted de oficio.

The complaint must be under oath. But lack of
oath is not a formal defect and will not invalidate
a judgment.
Information defined
An accusation in writing, charging a person with an
offense, subscribed by the prosecutor and filed with
the court. [Sec. 4, Rule 110; People vs Cinco (2009)]
It is filed by the prosecutor and need not be under
oath. But it must be signed and subscribed by the
fiscal/prosecutor.
What the prosecutor signs under oath is the
certification that he has conducted the required
preliminary investigation (PI). Lack of certification
does not invalidate judgment. [People vs. Bulaong
(1981)]
Information is valid when signed by prosecutor
who has authority to conduct PI of the offense
committed within his jurisdiction. Lack of
authority of the officer signing the information is
an infirmity in the information, and cannot be
cured by silence, acquiescence, or even by express
consent. [Cudia v CA (1998)]
Information refers to public crimes.
The "complaint" referred to in Rule 110
contemplates one filed in court, not with the
fiscal. In that case, the proceeding must be
started by the aggrieved party himself.
As a general rule, a criminal action is commenced
by complaint or information, both of which are
filed in court. In case of a complaint, it must be
filed by the offended party; with respect to an
information, it is the fiscal who files it.
But a "complaint" filed with the fiscal prior to a
judicial action may be filed by any competent
person. [Ebarle v. Sucaldito (1987)]
Form & Substance
Sufficiency of complaint or information
A complaint or information is sufficient if it states:
the name of the accused;
the designation of the offense given by the
statute;
the acts or omissions complained of as constituting
the offense;
the name of the offended party;
the approximate date of the commission of the
offense; and
the place where the offense was committed. [Sec.
6, Rule 110]
Test for sufficiency of the complaint or information
is whether the crime is described in intelligible
terms with such particularity as to apprise the
accused with reasonable certainty, of the offense
charged. [Lazarte, Jr. vs Sandiganbayan (2009)]
The purpose of the requirement for the
informations validity and sufficiency is to enable
the accused to suitably prepare for his defense,
since he is presumed to have no independent
REMEDIAL LAW REVIEWER
knowledege of the facts that constitute the offense.
[People vs Cinco (2009)]
Name of the accused 17
It must include the name and surname of the
accused, as well as any appellation or nickname by
which he has been or is known.
If the name cannot be ascertained, he must be
described under a fictitious name with a
statement that his true name is unknown. His true
name will be inserted if eventually disclosed or
appears in some manner to the court. [Sec. 7, Rule
110]
If there are more than 1 accused, name all of
them. [Sec. 6, Rule 110]
Place of commission of offense
General rule: It is sufficient if it can be understood
that the offense (or some of its essential
ingredients) was committed within jurisdiction of
the court.
Exception: If the particular place where it was
committed:
Constitutes an essential element of the offenses
charged; OR
Is necessary for its identification. [Sec. 10, Rule
110]
Time of commission of the offense
General rule: The precise date is not necessary.
Exception: When the date is a material ingredient of
the offense. [Sec. 11, Rule 110]
The determinative factor in the resolution of the
question involving a variance between allegation and
proof in respect of the date of the crime is the
element of surprise on the part of the accused and
his inability to defend himself properly.
Need not be exact
- As long as the alleged date is not so remote or
far removed from the actual date so as to
surprise and prejudice the accused, then the
information is valid.
When date is so remote: defective
- The allegation in the information of on or
about the year 1992 is defective as it
violates Sec. 11, Rule 110 and the accuseds
right to be informed of the nature and cause
of the accusation against him, because the
phrase not only includes 12 months of the
year 1992 but also years prior and subsequent
to 1992.
Remedy in case of defect in averment of time
- A motion for a bill of particulars under Sec. 6,
Rule 116.
- The accused may also file a MTQ on the
ground that allegations are so vague and the
time of commission of the offense so remote
that he is denied due process and the right to
be informed of the accusation against him. But
defect in the date is not a ground for MTQ
under Rule 116.
 REMEDIAL LAW REVIEWER
Name of the offended party [Sec. 12, Rule 110]
18 If an offense against person: Name and surname;
nickname/appellation; fictitious name, if real
name is unknown.
If an offense against property:
- If name is unknown, particularly describe the
property to identify the offense;
- If the name is later known, insert it;
- If a juridical person, name or known name;
without need to aver that it is juridical.
Where the name of the injured party is necessary
as matter of essential description of the crime
charged, the complaint must invest such person
with individuality by either naming him or alleging
that his name is unknown.
In crimes against property, ownership must be
alleged as matter essential to the proper
description of the offense. [US vs Lahoylahoy
(1918)] Designation of the name of the offended
party is not absolutely indispensable for as long as
the criminal act charged in the complaint or
information can be properly identified. [Sayson vs
People (1988), cited in Ricarze vs CA (2007)]
A mistake in the name of the accused is not
equivalent to a mistake in the identity especially
when sufficient evidence is adduced to show that
the accused is pointed to as one of the
perpetrators of the crime. [People vs Amodia
(2009)]
An accused is deemed to have waived his right to
assail the sufficiency of the information when he
voluntarily entered a plea when arraigned and
participated in the trial. [Frias vs People (2007)]
Consequently, objections as to form cannot be made
for the first time on appeal. The accused should
have moved for a bill of particulars or for quashal of
information before arraignment, otherwise he is
deemed to have waived his objections to such a
defect. [People vs Teodoro (2009)]
6. Designation of Offense
Aver the acts and omissions constituting the
offense.
Specify the qualifying and aggravating
circumstances for them to be considered in the
imposition of the penalty. [Sec. 8 and 9, Rule 110;
People vs Tampos (2009)] (Bar 2001)
This is a procedural requirement to safeguard the
right of the accused to be informed of the nature
and cause of the accusation against him. Information
is legally viable as long as it distinctly states the
statutory designation of the offense and the acts or
omissions thereof.
In case of a conflict between the designation of the
crime and the recital of ultimate facts constituting
the offense, the latter prevails over the former.
[People vs Quemeggen (2009)]
Specific acts of accused do not have to be described
in detail in the information, as it is enough that the
offense be described with sufficient particularity to
make sure the accused fully understands what he is
being charged with. [Guy vs People (2009)]
7. Cause of the Accusation
A variance between the allegation in the information
and proof adduced during trial shall be fatal to the
criminal case if it is material and prejudicial to the
accused so much so that it affects his substantial
rights. [Matrido v People (2009)]
Purpose
To enable a person of common understanding to
know what offense is intended to be charged;
To enable the court to pronounce proper
judgment.
Allegations required to safeguard right to be
informed
Allegations must be in ordinary or concise
language, sufficient to enable a person of common
understanding to know what offense is being
charged.
This must be done both for the offense charged
and the circumstances involved in its commission.
[Sec. 9, Rule 110]
The prosecutors characterization of the crime is
immaterial and purposeless. The facts stated in
the body of the complaint/information determine
the crime of which the accused stands charged
and for which he must be tried.
Qualifying and aggravating circumstances must be
alleged; otherwise, they are not to be considered
even if proven during the trial. [Sec. 8, Rule 110]
What to allege
Where the law prescribes exceptions
General rule: Where the law alleged to have
been violated prohibits generally acts therein
defined and is intended to apply to all persons
indiscriminately, but prescribes certain
limitations/exceptions from its violation, the
indictment/information is sufficient if it alleges
facts which the offender did as constituting a
violation of law, without explicitly negating the
exception, as the exception is a matter of defense
which the accused has to prove.
Exception: Where the statute alleged to have
been violated applies only to specific classes of
persons and special conditions and the exemptions
from its violation are so incorporated in the
language defining the crime that the ingredients
of the offense cannot be accurately and clearly set
forth if the exemption is omitted, then the
indictment must show that the accused does not
fall within the exemptions.
Where exceptions form as ingredients of offense
If the exception is needed for defining the offense,
then the information should negate the exception.
[US vs Chan Toco (1908)]
Where complex crime is charged
Where what is alleged in the information is a
complex crime and the evidence fails to support the
charge as to one of the component offenses, the
 REMEDIAL LAW REVIEWER

defendant can only be convicted of the offense Amendments made after plea and during trial
proven.
Formal can only be made under two conditions
8. Duplicity of the Offense; Exception - Leave of court must be secured 19
- It does not cause prejudice to the rights of the
(Bar 2005) accused. [Sec 14, Rule 110] The test as to WON
a defendant is prejudiced by the amendment of
General rule: The information must charge only one
information is
offense. [Sec. 13, Rule 110]
o WON a defense under the information as it
originally stood would be available after the
Objection to a complaint or information which
amendment is made, and
charges more than one offense must be timely
o WON any evidence defendant might have
interposed before trial. [Sec 3, Rule 120] Failure to
would be equally applicable to the
do so constitutes a waiver, [People v Tabio (2008)]
information in the one form as in the other.
and the court may convict him of as many offenses
[People vs Casey (1981)]
as are charged and proved, and impose on him the
penalty for each offense. [Sec 3, Rule 120]
Substantial proscribed. [People vs Zulueta
(1951)]
Exception: When the law prescribes a single
- Substantial matter in a complaint is the recital
punishment for various offenses
of facts constituting the offense charged and
determinative of the jurisdiction of the court.
Purpose: To give the accused the necessary
All other matters are merely of form. [Almeda
knowledge of the charge to enable him to prepare
vs Villaluz (1975)]
his defense. Hence, when an information charges
- Exception: if it is beneficial to the accused.
more than one offense, the accused may file a MTQ
[Ricarze vs CA (2007)]
on the ground of duplicity of offenses.
Substitution a complaint or information may be
Several modes of committing offense not substituted if it appears at any time before
duplicitous judgment that a mistake has been made in charging
the proper offense, the court shall dismiss the
General rule: In case of crimes susceptible of being original complaint or information upon the filing of a
committed in various modes, the allegations in the new one charging the proper offense, provided the
information of the various ways of committing the accused would not be placed in double jeopardy.
offense would be regarded as a description of only [Sec 14, Rule 110]
one offense and information is not rendered
defective. Subject to the Sec 19, Rule 119, when it
becomes manifest at any time before judgment
Exceptions: that a mistake has been made in charging the
Complex crimes proper offense and the accused cannot be
Special complex crimes convicted of the offense charged or any other
Continuous crimes offense necessarily included therein, the
Crimes susceptible of being committed in various accused shall not be discharged if there appears
modes good cause to detain him. The court shall
Crimes which another offense is an ingredient commit the accused to answer the proper
[People vs Camerino (1960)] offense and dismiss the original case upon the
filing of the proper information.
9. Amendment or Substitution of
complaint or information [Sec. 14, Distinction between substitution and
amendment (Bar 1994)
Rule 110] (Bar 2001, 2002) AMENDMENT SUBSTITUTION
Formal or Substantial Substantial change form
Amendments in form and substance before changes original
plea Can be effected without Must be with leave of
leave of court court
General rule: It must be made before the accused Only as to form, there is Another PI is entailed
enters his plea. no need for another PI and accused has to plead
and retaking of plea anew
Exception: If the amendment downgrades the
Amended information Involves a different
nature of the offense charged in, or excludes any
refers to the same offense which does not
accused from, the complaint/information, it can be
offense charged in the include those provided in
made only upon motion of the prosecutor, with
original information or the original charge;
notice to the offended party and with leave of court.
to an offense which is cannot invoke double
The court is mandated to state its reasons in
included in the original jeopardy
resolving the motion of the prosecutor and to furnish
charge; can invoke
all parties, especially the offended party, of copies
double jeopardy
of its order.
 REMEDIAL LAW REVIEWER
10. Venue of criminal actions
20
Place where action is to be instituted
Venue of criminal actions 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.
[Sec. 15(a), Rule 110]
How venue or jurisdiction determined
Venue in criminal cases is jurisdictional, being an
essential element of jurisdiction.
One cannot be held to answer for any crime
committed by him except in the jurisdiction where
it was committed or where an essential ingredient
thereof took place. The place where the accused
was arrested is of no moment. [People vs
Enriquez]
Where crime is continuing
A person charged with a transitory crime may be
validly tried in any municipality or province where
the offense was in part committed. [People vs
Gorospe (1984)]
Written defamation
Action to be instituted and filed in the RTC of the
province or city where the libelous article is
printed and first published.
Additional rules: if offended party is
- a private individual, the action may also be filed
in the province where he actually resides at the
time of the commission of the offense.
- a public officer, the action may be filed in the
court of the province or city where he held
office at the time of the commission of the
offense. [Art. 360, RPC]
Note: If information is filed in the place where the
defamatory article was printed or first published, it
must state that the libelous material was either
printed or first published in the place of the filing of
the information, and not merely allege that the
paper or magazine is of general/considerable
circulation. [Riano on Foz, Jr. v People (2009)]
Offense committed on railroad
Action to be instituted and filed in the court of
any municipality or territory where said train,
aircraft or vehicle passed thru, including place of
departure or arrival. [Sec. 15(b), Rule 110]
Rule applies only when the crime was committed
in the COURSE of the trip.
Offense committed on a vessel
Action may be instituted and tried in the court of
the first port of entry or any municipality or territory
where the vessel passed during such voyage, subject
to generally accepted principles of international
law. [Sec. 15(c), Rule 110]
Offense committed outside the Philippines
Cognizable by the court where the criminal action is
first filed. [Sec. 15(d), Rule 110]
11. Intervention of offended party
[Sec. 16, Rule 110]
General rule: An offended party has the right to
intervene in the prosecution of a crime
Note: This is still subject to the control of the
prosecutor. [Phil. Rabbit Bus Lines vs People (2004)]
Exceptions:
Where, from the nature of the crime and the law
defining and punishing it, no civil liability arises in
favor of a private offended party.
Where, from the nature of the offense, the private
offended party is entitled to civil indemnity arising
therefrom but he has waived the same or has
expressly reserved his right to institute a separate
civil action or he has already instituted such
action.
Offended party has already instituted action
- Any move on the part of the complainant or
offended party to dismiss the criminal case,
even if without objection of the accused, should
first be referred to the prosecuting fiscal for his
own view on the matter. He controls the
prosecution of the case and may have reasons
why the case should not be dismissed. [Republic
vs Sunga (1988)]
- When private prosecutor is allowed to
intervene: [A.M. No. 02-2-07-SC]
o All criminal actions either commenced by
complaint or by information shall be
prosecuted under the direction and control of
a public prosecutor.
o In case of heavy work schedule of the public
prosecutor or in the event of lack of public
prosecutors, the private prosecutor may be
authorized in writing by the Chief of the
Prosecution Office or the Regional State
Prosecutor to prosecute the case subject to
the approval of the court.
- The private prosecutor shall continue to prosecute
the case up to the end of the trial even in the
absence of a public prosecutor, unless the
authority is revoked or otherwise withdrawn. [Sec.
5, Rule 110]
III. PROSECUTION OF CIVIL
ACTION
1. Rule on implied institution of civil
action with criminal action
How instituted
General rule: When a criminal action is instituted,
the civil action for the recovery of civil liability
arising from the offense charged is deemed
instituted with the criminal action. [Sec. 1, Rule
111]
Reason: principle that every person criminally liable
for a felony is also civilly liable. [Art. 100, RPC]

Exception: If the offended party:
Waives the civil action;
Institutes the civil action prior to the criminal
action; or
Reserves the right to institute it separately [ABS-
CBN Broadcasting Corporation vs Ombudsman
(2008)]
Exception to this exception
Claims arising out of a dishonored check under BP
22 where no reservation to file such civil action
separately shall be allowed. (Bar 2001; 2002)
Claims arising from an offense which is cognizable
by the Sandiganbayan where there is likewise no
right to reserve the filing of the civil action
separately from the criminal action. [Sec. 4, PD
1606, as amended by RA 8249]
An offended party loses his right to intervene in
the prosecution of a criminal case, not only when
he has waived the civil action or expressly
reserved his right to institute it, but also when he
has actually instituted the civil action. For by
either of such actions his interest in the criminal
case has disappeared. [Garcia vs Florido (1973)]
Only civil liability arising from the crime charged
as a felony is deemed instituted with the criminal
action. Civil actions referred to in Civil Code 32,
33, 34, and 2176 shall remain separate, distinct
and independent of any criminal prosecution
which may be based on the same act. [Phil. Rabbit
Bus Lines Inc vs People (2004)]
Does not include civil liability that the offended
party waives, reserves or those instituted prior to
the criminal action.
2. When civil action may proceed
independently
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.
Procedure for making the reservation:
- Filing a manifestation in the criminal case that the
offended party is reserving his right to file a
separate civil action;
- Filing the separate civil action and informing the
court trying the criminal case that the offended
party has filed a separate civil action.
The rule requiring reservation does not apply to Arts.
32-34 and 2176, CC. These civil actions can be filed
and prosecuted independently of the criminal
action.
No counterclaim, cross-claim or 3rd-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. [Sec. 1, Rule 111]
REMEDIAL LAW REVIEWER
3. When separate civil action is
suspended
21
After the criminal action has been commenced, the
separate civil action arising therefrom cannot be
instituted until final judgment has been entered in
the criminal action. [Sec 2, Rule 111]
The civil action, which should be suspended after
the institution of the criminal action, is that arising
from delict or crime.
Civil actions mentioned in Sec. 3, Rule 111 under
Arts. 32-34 and 2176 of the Civil Code are exempted
from the rule that after a criminal action has been
commenced, the civil action which has been
reserved cannot be instituted until final judgment
has been rendered in the criminal action.
4. Effect of the death of accused or
convict on civil action [Sec. 4, Rule
111; ABS-CBN Broadcasting vs
Ombudsman (2008)]
If death is before arraignment Dismissal of case
without prejudice to filing of civil action against
estate of the deceased.
If death is after arraignment and during pendency of
criminal action Extinguishes civil liability arising
from the delict.
Exception: Independent civil actions instituted
under Arts. 32, 33, 34 and 2176 of the Civil Code, or
those instituted to enforce liability arising from
other sources of obligation may be continued against
the estate or legal representative of the accused
after proper substitution or against his estate.
If death is while appeal is pending extinguishes
criminal liability and civil liability based thereon. If
the civil liability is predicated on a source of
obligation other than delict, it survives
notwithstanding the death of the accused [People vs
Ayochok (2010)]
5. Prejudicial Question (1999 Bar)
Elements of prejudicial question
General Rule: a prejudicial question is that which
arises in a case the resolution of which is a logical
antecedent of the issue involved therein, and the
cognizance of which pertains to another tribunal.
The prejudicial question must be determinative of
the case before the court but the jurisdiction to try
and resolve the question must be lodged in another
court or tribunal.
It is a question based on a fact distinct and separate
from the crime but so intimately connected with it
that it determines the guilt or innocence of the
accused. [Ras vs Rasul (1980)]
Rationale: to avoid two conflicting decisions in the
civil case and in the criminal case. [Sy Thiong Siou vs
Sy Chim (2009)]
 REMEDIAL LAW REVIEWER
Effect (Bar 1995, 1999, 2010)
22
General rule: Where both a civil and a criminal case
arising from the same facts are filed in court, the
criminal case takes precedence.
Exception: If there exists a prejudicial question
which should be resolved first before an action could
be taken in the criminal case.
Requisites [Sec. 7, Rule 111]
Previously initiated civil action involves an issue
similar or intimately related to the issue raised in
the subsequent criminal action; and
The resolution of such issue determines WON the
criminal action may proceed.
Where to file petition [Sec. 6, Rule 111]
Office of the prosecutor (in the PI stage);
Court conducting the PI; or
Court where criminal action has been filed for
trial, at any time before the prosecution rests.
Note: The Rule precludes a motu proprio suspension
of the civil action. [Riano]
6. Rule on Filing Fees in civil action
deemed instituted with the criminal
action
Filing fees of civil action deemed instituted in
criminal action
Filing fees apply when damages are being claimed by
the offended party.
General Rule: The actual damages claimed or
recovered by the offended party are not included in
the computation of the filing fees. [Sec. 1, Rule 111]
When the amount of damages, other than actual,
is specified in the complaint or information filed in
court, then the corresponding filing fees shall be
paid by the offended party upon the filing thereof
in court for trial;
In any other casei.e., when the amount of
damages is not so alleged in the complaint or
information filed in court, the corresponding filing
fees need not be paid and shall simply constitute a
first lien on the judgment, except on an award for
actual damages. [General vs Claravall (1991)]
Exceptions: In criminal actions for violation of BP22,
the amount of the check involved shall be
considered as the actual damages for which no
separate civil action is allowed. In estafa cases, the
filing fees shall be paid based on the amount
involved. [A.M. No. 04-2-04]
IV. PRELIMINARY INVESTIGATION
1. Nature of right
2. Purposes of preliminary investigation
3. Who may conduct determination of
existence of probable cause
4. Resolution of investigating prosecutor
5. Review
6. When warrant of arrest may issue
7. Cases not requiring a preliminary
investigation
8. Remedies of accused if there was no
preliminary investigation
9. Inquest
1. Nature of right
Preliminary investigation, defined
It is an inquiry or proceeding to determine
whether there is sufficient ground to engender a
well-founded belief that a crime has been
committed and the respondent is probably guilty
thereof, and should be held for trial. [Sec. 1, Rule
112]
The conduct of a PI is the initial step towards the
criminal prosecution of a person.
Nature of the Right to PI
It is a statutory right in those instances where it is
required, and to withhold it would violate the
constitutional right to due process. [People vs
Oandasa (1968)]
It is part of the guarantees of freedom and fair
play. [La Chemise Lacoste, S.A. vs Fernandez
(1984)]
The right to have a PI conducted before being
bound over to trial for a criminal offense and
hence formally at risk of incarceration or some
other penalty is not a mere formal or technical
right but a substantial right
Right to Preliminary Investigation
The right to preliminary investigation is a personal
right which the accused may waive either
expressly or by implication.
When the accused waives his right to preliminary
investigation, the fiscal may forthwith file the
corresponding information with the proper court.
[People vs Perez (1960)]
The right is deemed waived by:
- the failure to claim it before the accused
pleaded [People vs Magpale (1940)]
- silence of the accused [People vs Mijares
(1951)]
- failure to request it within 5 days from time he
learns of the filing of the complaint/information
- when accused already posted bond for his
release and subsequently went to trial without
claiming his right to PI [People vs Selfaison
(1961)]
- a fortiori absence of the accused [Sec. 3(d),
Rule 112; de Guzman vs People and
Sandiganbayan (1982)]
An application for or admission to bail shall not bar
the accused from assailing the regularity or
questioning the absence of a preliminary
investigation of the charge against him provided that
 REMEDIAL LAW REVIEWER

he raises the challenge before entering his plea [Sec.

26, Rule 114].
2. Purposes of preliminary
investigation
To determine whether or not a crime has been
committed and whether or not there is probable
cause to believe that the accused is guilty. [Raro
vs Sandiganbayan (2000)]
To protect the accused from the inconvenience,
expense and burden of defending himself in a
formal trial
To secure the innocent against hasty, malicious
and oppressive prosecution, and to protect him
from an open and public accusation of a crime,
from the trouble, expense, anxiety of a public
trial, and also protect the state from useless and
expensive trials. [Tandoc vs Resultan (1989)]
Scope of PI
A PI is merely inquisitorial, and it is often the
only means of discovering the persons who may
reasonably be charged with a crime, to enable the
prosecutor to prepare his complaint or
information. It is not a trial of the case on the
merits and does not place the persons against
whom it is taken in jeopardy.
It is not the occasion for the full and exhaustive
display of the parties evidence [Raro vs SB
(2000)]
The accused has no right to cross-examine the
witnesses which the complainant may present.
[Paderanga vs Drilon, 1991]
A PI takes on an adversarial quality, because its
purpose is to secure the innocent against hasty,
malicious and oppressive prosecution, and to
protect him from an open and public accusation of
a crime, from the trouble, expenses and anxiety of
a public trial before an accused person is placed
on trial. [Raro vs SB (2000)]
Ombudsman
The Ombudsman and his Deputies, as protectors of
the people, shall act promptly on complaints filed 23
in any form or manner against public officials or
employees of the Government, or any subdivision,
agency or instrumentality thereof, including
GOCCs and shall, in appropriate cases, notify the
complainants of the action taken and the result
thereof. [Sec. 12, Art. XI, Consti]
The Ombudsman is authorized to conduct
preliminary investigation and to prosecute all
criminal cases involving public officers and
employees, not only those within the jurisdiction
of the Sandiganbayan, but also those within the
jurisdiction of regular courts as well.
- If the offense comes within the jurisdiction of
regular courts, the Ombudsman may endorse the
same to, and deputize the provincial/ city
prosecutor who has jurisdiction over the case
for proper preliminary investigation.
- If the offense is cognizable by the
Sandiganbayan, the preliminary investigation
has to be conducted pursuant to Rule 11 of the
Rules of Procedure of the Office of the
Ombudsman requiring that the complaint must
be under oath.
Note: RTC judges have NO power to conduct PI;
and MTC judges cannot conduct PI anymore after
A.M. No. 05-8-26-SC eliminated judges of the MTC
and MCTC from those authorized to conduct a PI
effective October 3, 2005.

3. Who may conduct determination of

existence of probable cause
Generally [Rule 112, Sec. 2 as amended by A.M.
No. 05-8-26-SC]
- Provincial/city prosecutors and their assistants;
- National and regional state prosecutors;
- Other officers as may be authorized by law.

COMELEC, when vested

COMELEC may conduct investigation as regards
election offenses. [Sec. 2(6), Art. IX-C, Consti; Sec.
265, Omnibus Election Code]

The COMELEC exercises the constitutional authority

to investigate and, where appropriate, prosecute
cases for violation of election laws, including acts or
omissions constituting election frauds, offenses and
malpractices. Such involves the exercise of
administrative powers, thus the COMELEC en banc,
may in the first instance, may act on the
investigation and subsequently decide on the filing
of the criminal action. [Baytan vs COMELEC (2003)]
 REMEDIAL LAW REVIEWER
Procedure for preliminary investigation
24
Filing of the complaint [Sec. 3(a), Rule 112]
Stating the respondents address
Include the affidavits of complainant and the
witnesses, and other documents to establish
probable cause, which must be subscribed and
sworn to before a prosecutor or government
official authorized to administer oath or
notary public
In such number of copies as there are
respondents, plus 2 copies for the official file
Action of the investigating officer [Sec. 3(b),
Rule 112]
Within 10 days after the filing of the complaint,
the investigating officer will either:
Dismiss, if he finds no ground to continue; or
Issue a subpoena to the respondent, attaching
the complaint and other documents. If
subpoena is not possible, the investigating
officer shall decide based on what complainant
presented.
Respondent has the right to examine the evidence
submitted by complainant, and copy evidence at
his expense.
Defendants counter-affidavit
Must be made within 10 days from receipt of
complaint, and must comply with the same
requirements as a complaint. [Sec. 3(c), Rule 112]
If not made within 10 days, the investigating officer
shall resolve the complaint based on the evidence
presented by the complainant [Sec. 3(d), Rule 112]
Hearing [Sec. 3(e), Rule 112]
The investigator must conduct a hearing within
10 days from receipt of the counter-affidavit.
The hearing must be finished in 5 days.
Hearing is conducted only if there are such facts
and issues to be clarified from a party or a
witness.
Parties may be present evidence, but they have
no right to examine or cross-examine. Questions
of parties shall be submitted to the investigating
officer.
Within 10 day after the investigation, the officer
shall determine WON there is sufficient ground
to hold respondent for trial.
4. Resolution of investigating
prosecutor [Sec. 4, Rule 112]
If the investigating officer finds no probable
cause, he will dismiss the case. Otherwise, he will
prepare an information and resolution.
He shall certify under oath in the information
that:
- He is an authorized officer;
- He personally examined the complainant and
witnesses;
- There is reasonable ground to believe that a
crime has been committed and that the accused
is probably guilty thereof;
- The accused was informed of the complaint and
of the evidence submitted against him; and
- The accused was given an opportunity to submit
controverting evidence.
5. Review [Sec. 4, Rule 112]
Within 5 days from resolution, the investigating
officer will forward the case to the prosecutor or the
Ombudsman in cases cognizable by the
Sandiganbayan in the exercise of its original
jurisdiction.
Within 10 days from receipt of the resolution, the
prosecutor/Ombudsman will act on the case.
No complaint/information may be filed or dismissed
by an investigating prosecutor without the prior
written authority or approval of the prosecutor or
Ombudsman.
In case the investigation officer recommends the
dismissal of the complaint but the
prosecutor/Ombudsman disagrees, the latter may
file the information himself or any deputy or order
any prosecutor to do so without conducting a new PI.
Note: The DOJ Secretary may file the information
without conducting another PI or dismiss the
information filed by the prosecutor.
6. When warrant of arrest may issue
If the judge finds probable cause, he shall issue a
warrant of arrest, or a commitment order if the
accused has already been arrested, and hold him for
trial.
Judges of RTC and inferior courts need not
personally examine the complainant and his
witnesses in the determination of PC. But he must
personally evaluate the prosecutors report and
other sufficient supporting evidence, and on the
basis thereof either dismiss the case, issue a
warrant, or require further affidavits.
Warrant that is simply based on report and
recommendation of prosecution invalid; the judge
must make an independent judgment of whether or
not there is probable cause. This is because the
probable cause for the prosecutor and judge are
different:
PC for PROSECUTOR: whether or not there is
reasonable ground to believe that the accused is
guilty of the offense charged and should be held
for trial for which information is to be filed.
 REMEDIAL LAW REVIEWER

PC for JUDGE: whether or not a warrant of arrest
should be issued so that the accused may be held
in custody in order not to frustrate the ends of
justice.
Judge may dismiss the case if the evidence on record
clearly fails to establish a probable cause
While PI is a statutory and substantive right and a
component part of due process, the absence of PI:
does not impair the validity of the information or
otherwise render it defective 25
neither does it affect the jurisdiction of the court
nor constitute a ground for quashing the
information.

Judge may order the prosecutor to present evidence The trial court, instead of dismissing the
within 5 days from notice and the issue may be information, should hold in abeyance the
resolved by the court within 30 days from filing of proceedings and order the public prosecutor to
complaint/information. conduct a PI. [Villaflor vs Vivar (2001)]

7. Cases not requiring a preliminary If Preliminary investigation is being

investigation conducted

Injunction and writs of restraint

Cases not requiring a preliminary investigation Nor
Covered by Rule on Summary Procedure [Sec. 8,
General rule: The power of the Fiscal to investigate
Rule 112]
crimes committed within his jurisdiction will,
Cases punishable by imprisonment of less than 4
ordinarily, not be restrained, as such will unduly
years, 2 months and 1 day, filed with the
setback the administration of criminal justice.
prosecutor or MTC/MCTC
Exception: Extreme cases may exist where relief in
Follow the procedure outlined in Sec. 3(a), Rule 112 equity may be availed of to stop a purported
above. enforcement of a criminal law where it is necessary
(a) for the orderly administration of justice; (b) to
prevent the use of the strong arm of the law in an
Within 10 days after the filing of the oppressive and vindictive manner; (c) to avoid
complaint/information, if the judge finds no PC multiplicity of actions; (d) to afford adequate
after personally evaluating the evidence or after protection to constitutional rights; and (e) in proper
personally examining in writing and under oath the cases, because the statute relied upon is
complainant and his witnesses in the form of unconstitutional, or was "held invalid." [Hernandez
searching questions and answers, he shall dismiss vs Albano (1967)]
the same.
9. Inquest
The judge may require submission of additional General rule: PI is required to be conducted before
evidence within 10 days from notice, to determine a complaint/ information is filed for an offense
where the penalty prescribed by law is at least 4
the existence of PC.
years, 2 months and 1 day, without regard to the
fine. [Sec. 1, Rule 112]
If the judge still finds If the judge finds PC, he
Exception: When a person is lawfully arrested
no PC despite the shall issue a warrant of
without a warrant involving an offense that requires
additional evidence, he arrest or a commitment
a PI, a complaint/information may be filed without
order (if the accused
shall dismiss the case conducting the PI if the necessary inquest is
had already been
within 10 days from its conducted.
arrested) and hold him
submission or expiration for trial.
INQUEST An informal and summary investigation
of said period.
conducted by a public prosecutor in criminal cases
involving persons arrested and detained without the
benefit of a warrant of arrest issued by the court for
If the judge is satisfied the purpose of determining whether or not said
that there is no need to persons should remain under custody and
place the accused under correspondingly be charged in court. (DOJ-NPS
custody, he may issue Manual)
summons instead.
In the absence or unavailability of an inquest
prosecutor, the complaint may be filed by the
8. Remedies of accused if there was offended party or by a peace officer directly with
the proper court on the basis of the affidavit of
no preliminary investigation the offended party or arresting officer or person.
However, before the complaint or information is
Effect of denial of right to PI filed, the person arrested may ask for a PI, but he
must sign a waiver of the provisions of Art. 125,
 REMEDIAL LAW REVIEWER

RPC in the presence of his counsel.

Notwithstanding the waiver, he may apply for bail
26 and the investigation must be terminated within
If the recommendation of the Inquest Officer for the
15 days from its inception.
release of the arrested or detained person is
After the filing of the complaint/ information in
approved, the order of release shall be served on
court without a PI, the accused may within 5 days
the officer having custody of the said detainee.
from the time he learns of its filing, ask for a PI
with the same right to adduce evidence in his
Should it be disapproved, the arrested or detained
defense as provided in Rule 112. [Sec. 6, Rule 112]
person shall remain under custody, and the
corresponding complaint/information shall be filed
Procedure for inquest proceedings by the City or Provincial Prosecutor or by any
Assistant Prosecutor to whom the case may be
Considered commenced upon receipt by the
assigned.
Inquest Officer from the law enforcement
authorities of the complaint/referral documents
which should include:
affidavit of arrest, investigation report,
V. ARREST
statement of the complainant and witnesses, all 1. Arrest, how made
of which must be subscribed and sworn to before 2. Arrest without warrant, when lawful
him 3. Method of arrest
other supporting evidence gathered by the a. By officer with warrant
police in the course of the latter's investigation
b. By officer without warrant
of the criminal incident involving the arrested or
detained person.
c. By private person
4. Requisites of a valid warrant of arrest
It must be terminated within the period prescribed 5. Determination of probable cause for
under the provisions of Article 125 of the RPC, as issuance of warrant of arrest
amended. 6. Distinguish probable cause of fiscal from
that of a judge

ARREST: Taking of a person into custody in order

When the documents presented are not complete to
establish probable cause, the Inquest Officer shall
direct the law enforcement agency to submit the
required evidence within the period prescribed under
the provisions of Art. 125, RPC, as amended.
Otherwise, the Inquest Officer shall order the release
of the detained person.
that he may be bound to answer for the commission
of an offense. (Rule 113, Sec. 1)
Ordinarily, an invitation to attend a hearing and
answer some questions, which the person invited
may heed or refuse at his pleasure, is not illegal or
constitutionally objectionable.

However, where the invitation comes from a

powerful group composed predominantly of ranking
If the Inquest Officer If the Inquest Officer military officers issued at a time when the country
finds that probable finds no PC, he shall has just emerged from martial rule and when the
cause exists, he shall recommend the release suspension of the privilege of the writ of habeas
forthwith prepare the of the arrested or corpus has not entirely been lifted, and the
corresponding detained person, note designated interrogation site is a military camp, the
complaint/information down his disposition on same can be easily taken, not as a strictly voluntary
with the the referral document, invitation which it purports to be, but as an
recommendation that prepare a brief authoritative command which one can only defy at
the same be filed in memorandum his peril. Although in the guise of a request, it was
court. The indicating the reasons obviously a command or an order of arrest that a
complaint/information for the action taken, person could hardly be expected to defy. [Sanchez v.
shall indicate the and forthwith forward Demetriou (1993)]
offense committed and the record of the case
the amount of bail to the City or Provincial Immunity from arrest
recommended, if Prosecutor for - Parliamentary Immunity: Senators and
bailable. appropriate action. Members of the House of Representatives,
while Congress is in session and for offenses
punishable by not more than 6 years
imprisonment. (Art. VI, Sec. 11, 1987
Const.)
- Diplomatic Immunity: Ambassadors and
ministers of foreign countries and their duly
registered domestics subject to the
principle of reciprocity (RA 75)

DOJ Circular No. 50 (October 29, 1990):
Prohibits the issuance of general warrants in a
John Doe information
- Insofar as the warrant is issued against 50
"John Does" not one of whom the witnesses
to the complaint could or would identify, it
is of the nature of a general warrant, one of
a class of writs long proscribed as
unconstitutional and once anathematized as
"totally subversive of the liberty of the
subject." [Pangandaman v. Casar (1988)]
1. Arrest, how made
Constitutional requirements on arrest
The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the
judge after examination under oath or affirmation of
the complainant and the witnesses he may produce,
and particularly describing the place to be searched
and the persons or things to be seized. (Art. III, Sec.
2, 1987 Const.)
Modes of effecting arrest
By an actual restraint of a person to be
arrested.
By his submission to the custody of the person
making the arrest. (Rule 113, Sec. 2, Par. 1)
Whichever means is used to make an arrest, the
term necessarily implies control over the person
under custody and, as a consequence, a restraint on
his liberty to the extent that he is not free to leave
on his own volition. (Riano, 2011)
It is enough that there be an intent on the part of
one of the parties to arrest the other and an intent
on the part of the other to submit, under the belief
and impression that submission is necessary.
[Sanchez v. Demetriou (1993)]
No unnecessary violence
No violence or unnecessary force shall be used in
making an arrest. The person arrested shall not be
subject to a greater restraint than is necessary for
his detention. (Rule 113, Sec. 2, Par. 2)
Application of actual force, manual touching of
the body, physical restraint or a formal
declaration of arrest is not required.
Time to make arrest
An arrest may be made on any day and at any time
of the day or night. (Rule 113, Sec. 6)
2. Arrest without warrant, when
lawful (1997, 2000, 2003, 2004 Bar)
General rule: No peace officer or person has the
power or authority to arrest anyone without a
REMEDIAL LAW REVIEWER
warrant except in those cases expressly authorized
by law. [Umil v. Ramos (1991)]
Exceptions (Rule 113, Sec. 5) 27
In flagrante delicto: Literally, caught in the act
of committing a crime. When the person to be
arrested has committed, is actually committing
or is attempting to commit an offense in the
presence of the peace officer or private person
who arrested him. (Rule 113, Sec. 5(a))
- Requisites:
o The person to be arrested must execute
an overt act indicating that he has just
committed, is actually committing, or is
attempting to commit a crime; and
o Such overt act is done in the presence or
within the view of the arresting officer.
- In his presence means: [People v. Evaristo
(1992)]
o He sees the offense, even though at a
distance;
o He hears the disturbances created by the
offense and proceeds at once to the
scene; or
o Offense is continuing or has been
consummated at the time arrest is made.
- Entrapment
o An arrest made after an entrapment does
not require a warrant inasmuch as it is
considered a valid warrantless arrest
pursuant to Rule 113, Sec. 5(a) of the
Rules of Court. [Teodicio v. CA (2004)]
- Buy-bust operation
o When the appellant is caught in flagrante
as a result of the buy-bust operation, the
policemen are not only authorized but
are also under obligation to apprehend
the drug pusher even without a warrant
of arrest. [People v. de Lara (1994)]
Hot pursuit arrest: When an offense has just
been committed and the officer or private
person has probable cause to believe, based on
personal knowledge of facts or circumstances,
that the person to be arrested has committed it
(Rule 113, Sec. 5(b))
- Requisites
o An offense has just been committed
implies immediacy in point of time; and
o The person making the arrest has
probable cause to believe, based on
personal knowledge of facts, that the
person to be arrested has committed it.
Personal knowledge must be based on
probable cause which means an
actual belief or reasonable grounds of
suspicion.
The grounds of suspicion are reasonable
when, in the absence of actual belief
of the arresting officer, the suspicion
that the person to be arrested is
probably guilty of committing the
offense is based on actual facts, i.e.,
supported by circumstances sufficiently
strong in themselves to create the
 REMEDIAL LAW REVIEWER
probable cause of guilt of the person to
be arrested.
28 A reasonable suspicion therefore must
be founded on probable cause, coupled
with good faith on the part of the
peace officers making the arrest.
[Posadas v. Ombudsman (2000)]
NOTE: Where a warrantless arrest is made under the
in flagrante and hot pursuit exceptions, the person
arrested without a warrant shall forthwith arrested
delivered to the nearest police station or jail. (Rule
113, Sec. 5, last par.)
Arrest of escaped prisoner
- When the person to be arrested is a
prisoner who has escaped: (Rule 113, Sec.
5(c))
o From a penal establishment or place
where he is serving final judgment or
temporarily confined while his case is
pending; or
o While being transferred from one
confinement to another.
- Escapee may be immediately pursued or re-
arrested without a warrant at any time and
in any place within the Philippines. (Rule
113, Sec. 13)
- Rationale: At the time of arrest, the
escapee is in continuous commission of a
crime (i.e. evasion of service of sentence).
Other lawful warrantless arrest
Where a person who has been lawfully arrested
escapes or is rescued. (Rule 113, Sec. 13), but
the pursuit must be immediate.
By the bondsman, for the purpose of
surrendering the accused. (Rule 114, Sec. 23)
Where the accused attempts to leave the
country without permission of the court where
the case is pending. (Rule 114, Sec. 23)
3. Method of arrest
a. By officer with warrant
Duties of the arresting officer
Execution of warrant (Rule 113, Sec. 4)
- The head of the office to whom the warrant
of arrest was delivered shall cause the
warrant to be executed within 10 days from
its receipt.
- The officer to whom it was assigned for
execution shall make a report to the judge
who issued the warrant within 10 days after
expiration of the period to execute.
- In case of his failure to execute, he shall
state the reasons therefor.
The officer shall inform the person to be
arrested of (1) the cause of the arrest and (2)
the fact that a warrant has been issued for his
arrest. (Rule 113, Sec. 7)
- Exceptions:
o When he flees
o When he forcibly resists before the
officer has opportunity to so inform him
o When the giving of such information will
imperil the arrest
- The officer need not have the warrant in his
possession at the time of the arrest but
after the arrest, if the person arrested so
requires, the warrant shall be shown to him
as soon as practicable. (Rule 113, Sec. 7)
o This is not a case of a warrantless arrest
but merely an instance of an arrest
effected by the police authorities without
having the warrant in their possession at
that precise moment. [Mallari v. CA
(1996)]
To arrest the accused and deliver him to the
nearest police station or jail without
unnecessary delay. (Rule 113, Sec. 3)
Rights of the arresting officer
To summon assistance. (Rule 113, Sec. 10)
- He may orally summon as many persons as
he deems necessary to assist him in
effecting the arrest.
- A person summoned shall assist in effecting
the arrest when he can do so without
detriment to himself.
To break into building or enclosure. (Rule 113,
Sec. 11)
- The person to be arrested is or is reasonably
believed to be in said building;
- He has announced his authority and purpose
of entering therein; and
- He has requested and been denied
admittance.
Also applicable where there is a valid arrest
without a warrant.
Rationale: Person to be arrested cannot use his
house/ building/enclosure as a shelter for
crime. The inviolability of domicile cannot be
used to shield arrest.
To break out from the building/enclosure when
necessary to liberate himself. (Rule 113, Sec.
12)
Also applicable where there is a valid arrest
without a warrant.
To search the person arrested for dangerous
weapons or anything which may have been used
or constitute proof in the commission of an
offense. (Rule 126, Sec. 13)
Without need of a search warrant if it is
incidental to a lawful arrest.
b. By officer without warrant
Duties of arresting officer without warrant
The officer shall inform the person to be
arrested of (1) his authority and (2) the cause of
the arrest. (Rule 113, Sec. 8)
Exceptions:
- When the person to be arrested is engaged
in the commission of the offense
 REMEDIAL LAW REVIEWER

- When he is pursued immediately after its complainant and his witnesses by

commission
- When he has escaped, flees or forcibly
resists before the officer has the
opportunity to so inform him; or
- When the giving of such information will
imperil the arrest.
c. By private person (citizens arrest)
Duties of private person effecting an arrest
The private person shall inform the person to be
arrested of (1) the intention to arrest him and
(2) the cause of the arrest. (Rule 113, Sec. 9)
searching questions and answers.
o He must be satisfied that PC exists;
o There is a need to place the respondent 29
under immediate custody in order not to
frustrate the ends of justice. [Samulde v.
Salvani (1988)]
A warrant of arrest has no expiry date. It is only
subject to the requirements found in Rule 113,
Sec. 4.
5. Determination of Probable Cause
for issuance of warrant of arrest

Exceptions: Same as those for arrest by an

Probable cause test
Probable cause, in connection with the issuance of a
officer without a warrant.
warrant of arrest, assumes the existence of facts and
circumstances that would lead a reasonably discreet
The private person must deliver the arrested
and prudent man to believe that a crime has been
person to the nearest police station or jail, and
committed and that it was likely committed by the
he shall be proceeded against in accordance
person sought to be arrested. [People v. Tan (2009)]
with Rule 112, Sec. 7. Otherwise, the private
person may be held liable for illegal detention.
Probable cause demands more than suspicion but it
requires less than evidence that would justify
4. Requisites of a valid warrant of conviction. [People v. Gabo (2010)]
arrest
6. Distinguish probable cause of fiscal
Issuance from that of a judge
Essential Requisites of a Valid Arrest Warrant
(Art. III, Sec. 2, 1987 Const.)
FISCAL JUDGE
- It must be issued upon probable cause
Executive determination Judicial determination of
which must be determined personally by a
of PC PC
judge after examination under oath or
affirmation of the complainant and the Determination of PC to Determination of PC to
witnesses he may produce. hold a person for trial issue a warrant of arrest
- The warrant must particularly describe the W/N there is reasonable W/N a warrant of arrest
person to be arrested. ground to believe that should be issued
the accused is guilty of
the offense charged and
Instances When Judge Issues Warrant of
should be held for trial
Arrest
Upon the filing of the information by the public
Rule: The law requires personal determination on
prosecutor and after personal evaluation by the
the part of the judge. The judge may rely on the
judge of the prosecutors resolution and
report of the investigating prosecutor provided he
supporting evidence. (Rule 112, Sec. 5(a))
also evaluates the documentary evidence in support
- The judge does not have to personally
thereof. Hence, the fiscals finding of probable
examine the complainant and his witnesses.
cause is not conclusive upon the judge as to his
The prosecutor can perform the same
determination of whether or not there is indeed
functions. [Soliven v. Makasiar (1988)]
probable cause. [AAA v. Carbonell (2007)]
- Bare certification by the fiscal is not
enough. It should be supported by a report
The judge is never allowed to follow blindly the
and necessary documents. [Lim v. Felix
prosecutors bare certification as to the existence of
(1991)]
probable cause. [Borlongan v. Pea (2010)]
- Examples of Evidence To Be Examined:
Complaint, affidavits and counter-
RA 7438 AN ACT DEFINING CERTAIN RIGHTS OF
affidavits.
PERSON ARRESTED, DETAINED OR UNDER
Upon application of a peace officer and after
CUSTODIAL INVESTIGATION AS WELL AS THE
personal examination by the judge of the
DUTIES OF THE ARRESTING, DETAINING AND
applicant and the witnesses he may produce.
INVESTIGATING OFFICERS, AND PROVIDING
- Rationale: There is yet no evidence on
PENALTIES FOR VIOLATIONS THEREOF
record upon which judge may determine
the existence of PC.
Policy
- Conditions:
To value the dignity of every human being.
o The investigating judge must have
To guarantee full respect for human rights.
examined in writing and under oath the
 REMEDIAL LAW REVIEWER
Custodial Investigation shall include the practice of
issuing an invitation to a person who is
30 investigated in connection with an offense he is
suspected to have committed, without prejudice to
the liability of the inviting officer for any violation
of law.
Rights of Persons Arrested, Detained or Under
Custodial Investigation; Duties of Public Officers
The right to be assisted by counsel at all times.
- The counsel must be one who is
independent and competent. He shall be
allowed to confer at all times with the
person arrested, detained or under
custodial investigation. If such person
cannot afford the services of his own
counsel, he must be provided by the
investigating officer with a competent and
independent counsel.
- In the absence of a lawyer, no custodial
investigation shall be conducted and the
suspected person can only be detained by
the investigating officer in accordance with
Art. 125, RPC.
The right to remain silent.
The right to be informed of the above rights.
The right to be visited by the members of his
immediate family, by his counsel, or by any non-
governmental organization, national or
international.
The custodial investigation report shall be reduced
to writing by the investigating officer, provided that
before such report is signed, or thumbmarked if the
person arrested or detained does not know how to
read and write, it shall be read and adequately
explained to him by his counsel or by the assisting
counsel provided by the investigating officer in the
language or dialect known to such arrested or
detained person, otherwise, such investigation
report shall be null and void and of no effect
whatsoever.
Any extrajudicial confession made by a person
arrested, detained or under custodial investigation
shall be in writing and signed by such person in the
presence of his counsel or in the latter's absence,
upon a valid waiver, and in the presence of any of
the parents, elder brothers and sisters, his spouse,
the municipal mayor, the municipal judge, district
school supervisor, or priest or minister of the gospel
as chosen by him; otherwise, such extrajudicial
confession shall be inadmissible as evidence in any
proceeding.
Any waiver of the provisions of RPC 135 shall be in
writing and signed by the person arrested, detained,
or under custodial investigation in the presence of
his counsel, otherwise the waiver shall be null and
void and no effect.
Penalty
Any arresting public officer or employee, or any
investigating officer, who fails to inform any person
arrested, detained or under custodial investigation
of his right to remain silent and to have competent
and independent counsel preferably of his own
choice, shall suffer a fine of six thousand pesos
(P6,000) or a penalty of imprisonment of not less
than eight (8) years but not more than ten (10)
years, or both. The penalty of perpetual absolute
disqualification shall also be imposed upon the
investigating officer who has been previously
convicted of a similar offense.
The same penalties shall be imposed upon a
public officer or employee, or anyone acting
upon orders of such investigating officer or in
his place, who fails to provide a competent and
independent counsel to a person arrested,
detained or under custodial investigation for the
commission of an offense if the latter cannot
afford the services of his own counsel.
Any person who obstructs, prevents or prohibits any
lawyer, any member of the immediate family of a
person arrested, detained or under custodial
investigation, or any medical doctor or priest or
religious minister chosen by him or by any member
of his immediate family or by his counsel, from
visiting and conferring privately with him, or from
examining and treating him, or from ministering to
his spiritual needs, at any hour of the day or, in
urgent cases, of the night shall suffer the penalty of
imprisonment of not less than four (4) years nor
more than six (6) years, and a fine of four thousand
pesos (P4,000).
NOTE: Any security officer with custodial
responsibility over any detainee or prisoner may
undertake such reasonable measures as may be
necessary to secure his safety and prevent his
escape.
VI. BAIL
1. Nature
2. When a matter of right; exceptions
3. When a matter of discretion
4. Hearing of application for bail in capital
offenses
5. Guidelines in fixing amount of bail
6. Bail when not required
7. Increase or Reduction of Bail
8. Forfeiture and Cancellation of bail
9. Application not a bar to objections in
illegal arrest, lack of or irregular
preliminary investigation
10. Hold Departure Order & Bureau of
Immigration Watchlist
1. Nature
Definition
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 conditions hereinafter
specified. [Rule 114, Sec. 1]
Note: The bondsman or surety guarantees the
appearance of the person seeking bail.

Purpose
1. To relieve an accused from imprisonment until
his conviction and yet secure his appearance at
the trial. [ People vs. The Hon. Donato (2011)]
2. To honor the presumption of innocence until his
guilt is proven beyond reasonable doubt [Art. III,
Sec. 14, Const] and
3. To enable him to prepare his defense without
being subject to punishment prior to conviction
[Cortes v. Judge Catral (1997)].
Note:
The purpose of bail only accrues when a person is
arrested or deprived of his liberty. It is incongruous
to grant bail to one who is free. Hence, only those
who have either been arrested, detained or
otherwise deprived of their liberty can invoke his
right under the Constitution. From the moment he is
placed under arrest, detention or restraint by
officers of the law, he can claim this constitutional
right [Feliciano vs Pasicolan (1965)].
It shall not constitute as a waiver of his right to
challenge the legality of his arrest or the absence of
PI [Rule 114, Sec. 26].
Upon assumption of the obligation of bail, the
sureties become in law the jailers of their principal.
Prosecution witnesses may also be required to post
bail to ensure their appearance at the trial of the
case where:
1. There is substitution of information [Rule 110,
Sec. 4].
2. To compel the appearance of a material witness
who may not appear at the trial [Rule 119, Sec.
14].
2. When a matter of right; exceptions
a. Bail as a Matter of Right
When bail is a matter of right [Rule114, Sec.
4]
a. Before or after conviction by the MTC.
b. Before conviction by RTC of all offenses
punishable by penalty lower than reclusion
perpetua.
Note:
The person seeking his provisional release under the
auspices of bail need not wait for a formal complaint
or information to be filed as it is available to all
persons where the offense is bailable. [Paderanga vs
Court of Appeals (1995)].
However, the person should seeking relief should be
under custody of the law. The Court should not even
allow a motion for bail to be set for hearing, unless
it has acquired jurisdiction over the person of the
accused and the case by its filing in court [Guillermo
vs Judge Reyes (1995)].
How is custody acquired?
1. By arrest whether with or without a warrant.
REMEDIAL LAW REVIEWER
2. Voluntary submission to the Courts jurisdiction
[Santiago vs Vasquez (1993)].
b. When bail not available 31
1. When evidence of guilt is strong in capital
offenses or those punishable by reclusion
perpetua or life imprisonment.
Exception: When the accused is a minor, he is
entitled to bail regardless of whether the
evidence of guilt is strong.
Capital Offense: An offense which under the
law existing at the time of commission and of
the application for admission to bail is
punishable by death [Rule 114, Sec. 6].
The capital nature of the offense is
determined by the penalty prescribed by
law and not the one actually imposed.
Note R.A.. 9346 entitled An Act
Prohibiting the Imposition of Death Penalty
in the Philippines enacted on June 24,
2006 repealing R.A. No. 8177 and R. A. No.
7659 and abolishing the death penalty.
RA 9346 now defines capital offenses as:
Section 7. Capital offense or an offense
punishable by reclusion perpetua or life
imprisonment or life imprisonment
2. Bail in extradition proceedings
The right to bail is available only in criminal
proceedings. It does not apply to extradition
proceedings because extradition courts do not
render judgments of conviction or acquittal.
However, bail may be applied for and granted as
an exception, only upon a clear and convincing
evidence that once granted, the applicant will
not be flight risk or will not pose danger to the
community, and that there exists special
humanitarian and compelling circumstances
[Gov of USA vs Purganan & Jimenez (2002)].
Note: If the penalty imposed by the trial court is
imprisonment exceeding 6 years, the accused
shall be denied bail or his bail shall be cancelled
upon showing by the prosecution, with notice to
the accused, of any of the following:
1. Recidivism, quasi-recidivism, or habitual
delinquency or commission of a crime
aggravated by reiteration of the accused.
2. The accused previously escaped from legal
confinement, evaded sentence or violated
bail conditions without valid justification.
3. Commission of offense while under
probation, parole or conditional pardon by
the accused.
4. Probability of flight.
5. Undue risk that the accused may commit
another crime during pendency of appeal.
c. Right to bail is not available to
military personnel accused
under general courts martial
[Comendador v. de Villa (1991)].
 REMEDIAL LAW REVIEWER
d. After a judgment of conviction
has become final
32 If he applied for probation before finality,
he may be allowed temporary liberty under
his bail [Rule 114, Sec. 24].
e. After the accused has
commenced to serve his
sentence [Rule 114, Sec. 24]
3. When a matter of discretion [Rule
114, Sec. 5]
1. Before conviction, in offenses punishable by
death, reclusion perpetua or life imprisonment.
2. Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment.
It may be filed in and acted upon by the
RTC despite the filing of notice of appeal,
provided that it has not transmitted the
original record to the appellate court.
If the RTC decision changed nature of the
offense from non-bailable to bailable, the
application for bail can be resolved only by
the appellate court.
Note:
In hearing the petition for bail, the prosecution has
the burden of showing that the evidence of guilt is
strong [Rule 114, Sec. 8]. The prosecution must be
given ample opportunity to show that the evidence
of guilt is indeed strong. While the proceeding is
conduced as a regular trial, it must be limited to the
determination of the bailability of the accused. It
should be brief and speedy, lest its purpose be
rendered nugatory [People vs Singh (2001)].
If bail is granted, provisional liberty continues
under the same bail subject to the consent of
the bondsman [Rule 114, Sec. 5].
If bail is denied by the RTC, the accused-
appellant may challenge it by filing an
application (and not a special civil action or a
special proceeding) in the appellate court after
it has acquired jurisdiction over the case. It
shall be treated as an incident in the appeal.
In deportation proceedings, bail is discretionary
upon the Commissioner of Immigration and
Deportation. [Harvey v. Defensor-Santiago (1990)].
4. Hearing of application for bail in
capital offenses
NOTE: RA 9346, Section 7. Capital offense or an
offense punishable by reclusion perpetua or life
imprisonment or life imprisonment
Conviction
This refers to conviction by the trial court, which has
not become final, as the accused still has the right
to appeal. After conviction by the trial court, the
accused convicted of a capital offense is no longer
entitled to bail, and can only be released when the
conviction is reversed by the appellate court.
[Section 13, Article III, Const.]
Prosecution has burden of proof
At the hearing of an application for bail filed by a
person in custody for the commission of an offense
punishable by reclusion perpetua or life
imprisonment, the prosecution has the burden of
showing that evidence of guilt is strong.
EVIDENCE OF GUILT in the Constitution and the
Rules refers to a finding of innocence or culpability,
regardless of the modifying circumstances.
Regarding Minors Charged with a Capital
Offense
If the person charged with a capital offense is
admittedly a minor, which would entitle him, if
convicted, to a penalty next lower than that
prescribed by law, he is entitled to bail regardless of
whether the evidence of guilt is strong. The reason
for this is that one who faces a probable death
sentence has a particularly strong temptation to
flee.
This reason does not hold where the accused has
been established without objection to be minor who
by law cannot be sentenced to death.
Duty of judge to conduct hearing
Where the prosecution agrees with the accuseds
application for bail or foregoes the introduction of
evidence, the court must nonetheless set the
application for hearing. It is mandatory for the judge
to conduct a hearing and ask searching and
clarificatory questions for the purpose of
determining the existence of strong evidence against
the accused; and the order, after such hearing,
should make a finding that the evidence against the
accused is strong [Gacal v. Judge Infante (2011)].
5. Guidelines in fixing amount of bail
[Rule 114, Sec. 9]
The judge who shall issue the warrant or grant the
application shall fix a reasonable amount of bail
considering primarily, but not limited to, the
following factors:
1. Financial ability of the accused
2. Nature and circumstances of the offense
3. Penalty for the offense charged
4. Character and reputation of the accused
5. Age and health of the accused
6. Probability of the accused appearing at the trial
7. Forfeiture of other bail
8. Fact that accused was a fugitive from justice
when arrested
9. Forfeiture of other bail
10. Pendency of other cases where the accused is on
bail.
Note: DOJ Department Circular No. 89 (2000 Bail
Bond Guide) provides standards and criteria for
prosecutors recommendation of amount of bail to
be granted, if possible, and the rules for the
computation of bail.

6. Bail when not required [Sec. 16,
Rule 114]
When a person has been in custody for a period
equal to or more than the possible maximum
imprisonment of the offense charged to which
he may be sentenced, he shall be released
immediately, without prejudice to the
continuation of the trial thereof or the
proceedings on appeal.
If the maximum penalty is destierro, he shall be
released after 30 days of preventive
imprisonment.
Note: No bail shall be required in prosecution of
offenses covered by the Rule on Summary Procedure,
EXCEPT:
1. When a warrant of arrest was issued for failure
of the accused to appear when so required
2. When the accused is
o A Recidivist
o A Fugitive from justice
o Charged with physical injuries
o Has no known residence [RSP, Sec 10, 12]
7. Increase or Reduction of Bail
After the accused is admitted to bail and for good
cause, the court may increase or decrease the
amount.
INCREASED bail: Accused may be committed to
custody if he does not give bail in the increased
amount within a reasonable period of time. [Rule
114, Sec. 20]
REDUCED bail: Person in custody for a period equal
to or more than the minimum of the principal
penalty prescribed for the offense charged may be
released on a reduced bond. [Rule 114, Sec. 16]
8. Forfeiture and Cancellation of bail
Forfeiture of bail [Rule 114, Sec. 21]
If the accused failed to appear in person as required,
bondsmen are given 30 days within which to:
1. Produce the body of the principal or give reason
for the non-production. Bondsmen may:
Arrest the accused;
Cause him to be arrested by a police officer
or any other person of suitable age or
discretion upon written authority endorsed
on a certified copy of the undertaking.
2. Explain why the accused failed to appear.
If the bondsmen fail to do these, judgment
is rendered against them, jointly and
severally, for the amount of the bail.
Bondsmens liability cannot be mitigated or
reduced, unless the accused has been
surrendered or is acquitted.
Cancellation of bail [Rule 114, Sec. 22]
1. Upon application of the bondsmen with due
notice to the prosecutor, bail may be cancelled
REMEDIAL LAW REVIEWER
upon a) surrender of the accused OR b) proof of
his death.
2. Upon acquittal of the accused
3. Upon dismissal of the case 33
4. Upon execution of judgment of conviction.
9. Application not a bar to objections
in illegal arrest, lack of or irregular
preliminary investigation
Bail is no longer a waiver of these objections [Rule
114, Sec. 26; Leviste v. Alameda (2011)].
Provided that the proper objections are timely
raised (i.e., before accused enters a plea), an
application or an admission to bail shall NOT bar the
accused from challenging or questioning the:
1. Validity of his arrest.
2. Legality of the arrest warrant.
3. Regularity of preliminary investigation
4. Absence of preliminary investigation
The court shall resolve the objections as early as
practicable but not later than the start of the trial
of the case.
10. Hold Departure Order & Bureau of
Immigration Watchlist
Bondsmen can prevent accused from leaving
country by arresting him or asking for him to be
re-arrested by a police officer upon written
authority [Rule 114, Sec. 23].
The accused may be prohibited from leaving the
country during the pendency of his case [PP v.
Uy Tuising (1935); Manotoc v. CA (1986)]. If the
accused released on bail attempts to depart
from the Philippines without the permission of
the court where his case is pending, he may be
re-arrested without warrant [Rule 114, Sec. 23].
Hold-Departure/ Watchlist/ Allow Departure
Orders
A hold-departure order may be issued only by
the RTCs in criminal cases within their exclusive
jurisdiction [SC Circular No. 39-97 (June 19,
1997)].
SC Circular 39-97 deals with criminal cases
pending in the RTC. This created a void, as to
those cases pending in the MTC as well as those
under preliminary investigation. [Whereas
clause of DOJ Circular No. 41]
HOLD WATCHLIST
DEPARTURE ORDER
ORDER
When it Against the Against the
may issue accused, accused,
irrespective of irrespective of
nationality, in nationality, in
criminal cases criminal cases
falling within the pending before
jurisdiction of the RTC
first-level courts
(MeTC, MTC, Against the
 REMEDIAL LAW REVIEWER

HOLD WATCHLIST a) Against the accused in criminal cases falling

DEPARTURE ORDER within the jurisdiction of courts below the
34 ORDER RTCs,
MCTC) respondent,
irrespective of b) Against the alien whose presence is required
nationality, in either as a defendant, respondent, or
criminal cases witness in a civil or labor case pending
pending litigation, or any case before an
preliminary administrative agency of the government.
investigation,
PFR, or MR c) The Secretary of Justice may likewise issue
before the DOJ an HDO against any person, either motu
or any of its proprio, or upon the request by the Head of
prosecution a Department of the Government, the Chief
offices Justice of the Supreme Court for the
Judiciary; the Senate President or the House
Against any Speaker for the Legislature, when the
person pursuant adverse party is the Government or any of
to the Anti- its agencies or instrumentalities, or in the
Trafficking in interest of national security, public safety or
Persons Act of public health.
2003 (RA 9208)
or in the interest A Watchlist Order may also issue under any of
of national the above grounds as well as in connection with
security, public RA 9208 or the Anti-Trafficking in Persons Act
safety or public
health Any HDO shall be valid for 5 years, unless sooner
Validity 5 years reckoned 60 days reckoned terminated while any Watchlist Order shall be
from the date of from the date of valid for 60 days, unless sooner terminated or
its issuance, its issuance, extended for a maximum of 60 days
unless sooner unless sooner
terminated terminated or A HDO/WLO may be lifted or cancelled when:
extended for a 1. The validity period of the order has expired
non-extendible 2. When the accused has been acquitted or
period of not otherwise allowed to leave the country
more than 60 3. When the case is terminated or the person
days is discharged as a witness or otherwise
Grounds for When the When the allowed to leave the country
lifting or validity period validity period
cancellation has already has already Allow Departure Orders (ADOs) may issue for
expired expired exceptional reasons to allow the person to leave
upon submission of the following:
When the When the 1. An affidavit of purpose, including an
accused has been accused has been undertaking to report to the DOJ
allowed to leave allowed by the immediately upon return
the country court to leave 2. Authority to travel or travel clearance from
during the the country the court or appropriate government office
pendency of the during the or from the investigating prosecutor
case, or has been pendency of the
acquitted of the case, or has been VII. RIGHTS OF THE ACCUSED
charge, or the acquitted of the
case in which the charge 1. Rights of accused at the trial
warrant/order of 2. Rights of persons under Custodial
arrest was issued When the PI is Investigation
has been terminated, or
dismissed or the when the PFR or
warrant/order of MR has been
1. Rights of accused at the trial [Rule
arrest has been denied and/or 115]
recalled dismissed
1) To be presumed innocent;
Thus the DOJ promulgated DOJ Circular No. 41 Until the contrary is proved beyond
governing the issuance of HDO, Watchlist reasonable doubt
Orders, and Allow Departure Orders. - Accusation is not synonymous with
guilt. [People v. Dramayo (1971)]
The Secretary may issue HDOs in the following Presumption of regularity in the
cases: performance of official duty should by itself

prevail over the presumption of innocence
[People v. Ong (2004)]
2) To be informed of the nature and cause of
accusation;
Offense must be clearly charged in the
information. [People v. Ortega (1997)]
Charge must be set forth with sufficient
particularity to enable the accused to
intelligently prepare his defense. [Balitaan
v. CFI of Batangas (1982)]
The purpose is served by arraignment.
[Borja v. Mendoza (1977)]
The title of the complaint, or the
designation of the offense charged or the
particular law violated is not controlling. No
information for a crime will be sufficient if
it does not accurately and clearly allege the
elements of the crime charged. [People v.
Dimaano (2005)]
It is a basic constitutional right of the
accused to be informed of the nature and
cause of accusation against them. It would
be a denial of accused-appellants basic
right to due process if he is charged with
simple rape and consequently convicted
with certain qualifying circumstances which
were not alleged in the information [People
v. Lagarde (2009)]
3) To be present and defend in person OR by
counsel;
4) Right to be present at every stage of the
proceedings:
This right may be waived when:
(1) The accused is absent without just cause at
the trial of which he had notice; or
(2) The accused under custody escapes, until
custody over him is regained.
However, presence is mandatory:
a. For purposes of identification;
b. At arraignment; [Rule 116, Sec. 1(b)]
c. At the promulgation of judgment;
Exception: If the conviction is for a light
offense. [Rule 120, Sec. 6]
Trial in absentia (1998 Bar):
Requisites: [Parada v. Veneracion (1997)]
a. Prior arraignment;
b. Proper notice of the trial;
c. Failure to appear is unjustifiable.
Effects: Waiver of right to be present, right
to present evidence and right to cross-
examine witnesses. [Gimenez v. Nazareno
(1988)]
5) Right to counsel:
It means reasonably effective legal
assistance. [Gideon v. Wainright (1963)]
It is absolute and may be invoked at all
times, even on appeal. [Telan v. CA (1991)]
REMEDIAL LAW REVIEWER
Duty to appoint counsel de oficio is
mandatory only at the time of arraignment.
[Sayson v. People (1988)]
Violation of this right entitles the accused 35
to new trial. [People v. Serzo (1997)]
It may be waived, so long as not contrary to
law, public order, public policy, morals or
good customs.
The waiver must be unequivocally,
knowingly and intelligently made [People v.
Nicandro (1968)]
The right to counsel may be waived but to
insure that the waiver is voluntary and
intelligent, the waiver must be in writing
and in the presence of the counsel of the
accused [People v. Del Castillo (2004)]
6) Right to defend in person:
Only when it sufficiently appears that he can
protect his rights without the assistance of
counsel (Sec. 1[b], Rule 115, Rules of Court)
7) To testify as witness in his behalf;
But subject to cross-examination on any
matter covered by his direct examination.
(Sec. 1[d]. Rule 115).
Silence will not, in any manner, prejudice
him.
8) Right against self-incrimination; (2005
Bar)
The privilege is expressed in the following
provisions:
- No person shall be compelled to be a
witness against himself (Sec. 17, Art.
III, Philippine Constitution)
- In all criminal prosecutions, the
accused shall be entitled to the
following rights xxx (e) To be exempt
from being compelled to be a witness
against himself (Sec. 1[e], Rule 115)
Compulsion includes not only violence but
also moral coercion. [Chavez v. CA (1968)]
Covers only testimonial compulsion and
production of incriminating documents.
It does not include examination of his body
as evidence when it may be material. [US v.
Tan Teng (1912)]
An accused occupies a different tier of
protection from an ordinary witness. He is
entitled 1) to be exempt from being a
witness against himself, and 2) to testify as
witness in his own behalf; but if he offers
himself as a witness he may be cross-
examined as any other witness; however,
his neglect or refusal to be a witness shall
not in any manner prejudice or be used
against him. [People v. Ayson (1989)]
The questions on cross examination should
be on matters related to his direct
examination. [People v. Judge Ayson (1989)]
9) Right to confrontation;
Applies to any witness against the accused
at the trial
 REMEDIAL LAW REVIEWER
Includes testimony of a deceased or
absentee witness
36 This right is waived by non-appearance.
[Carredo v. People (1990)]
Identification by a witness of the accused is
inadmissible if the accused had no
opportunity to confront witness. [People v.
Lavarias (1968)]
10) Right to compulsory process;
This right may be invoked by the accused to
secure the attendance of witnesses and the
production of witnesses in his behalf. This is
a constitutional right embodied in Sec.
14(2), Art. III of the Constitution.
The trial court should not delegate to the
accused the responsibility of getting his
witnesses.
If a subpoena is issued and the witness
failed to appear, the court should order the
arrest of the witness if necessary. [People v.
Montejo (1967)]
11) Right to speedy, impartial, and public
trial;
In all criminal prosecutions, the accused
shall enjoy the right to have a speedy,
impartial and public trial. [1987
Constitution, Article III Sec. 14 (2)]
This right to a speedy trial has consistently
been defined by the Court substantially as
one free from vexatious, capricious and
oppressive delays, its purpose being to
assure that an innocent person may be free
from the anxiety and expense of a court
litigation or, if otherwise, of having his guilt
determined within the shortest possible
time compatible with the presentation and
consideration of whatsoever legitimate
defense he may interpose [Riano, 2010]
Remedy against denial of right:
a) MTD;
b) Dismissal, subject to rules on double
jeopardy. [SC Circular 38-98]
c) Mandamus. [Vide Abadia v. CA (1994)]
12) Right to appeal;
In all criminal prosecutions, the accused
shall have the right to appeal in the manner
prescribed by law [Hilario v. People (2008)]
An appeal in criminal case opens the entire
case for review and the appellate court may
correct even unassigned errors [People v.
Tambis (2008)]
The right to appeal is a statutory right and
the requirements must be complied with;
otherwise, the right is lost. [People v.
Sabellano (1991)]
If the accused escapes from confinement,
appeal is not allowed unless he voluntarily
surrenders within period for appeal. [People
v. Omar (1991)]
2. Rights of persons under Custodial
Investigation [Sec. 2, RA 7438]
1) To be assisted by counsel at all times.
Waiver of the right to counsel must be made
with the assistance of counsel. [Art. 3, Sec.
12(1), Consti]
Specifically in the following instances:
- Signing of the written custodial report;
Signing of the written extra-judicial
confession (2008 Bar)
In the absence of counsel and upon
valid waiver, it may be made in the
presence of any his parents, elder
brothers and sisters, spouse, the
municipal mayor, the municipal judge,
district school supervisor, or
priest/minister of the gospel as chosen
by him.
- Signing of the waiver to the provisions
of Art. 125, RPC.
The modifier competent and independent in
the 1987 Constitution is not an empty
rhetoric. It stresses the need to accord the
accused, under the uniquely stressful
conditions of a custodial investigation, an
informed judgment on the choices
explained to him by a diligent and capable
lawyer [Lumanog v. People (2010)]
2) To be informed, in a language known to
and understood by him, of his rights to
remain silent and to have competent and
independent counsel, preferably of his
own choice, who shall at all times be
allowed to confer privately with the
person arrested, detained or under
custodial investigation.
If he cannot afford to have his own counsel,
he must be provided with a competent and
independent counsel by the investigating
officer.
Assisting counsel may be any lawyer, except
those:
- Directly affected by the case;
- Charged with conducting preliminary
investigation;
- Charged with the prosecution of
crimes; [Sec. 3, RA 7438]
3) To be allowed visits by or conferences
with:
Any member of his immediate family
("Immediate family" includes his or her
spouse, fianc or fiance, parent or child,
brother or sister, grandparent or
grandchild, uncle or aunt, nephew or niece,
and guardian or ward), or
Any medical doctor or
Priest or religious minister
- chosen by him or by any member of his
immediate family or by his counsel, or
by
Any national NGO duly accredited by the
Commission on Human Rights or by any

international NGO duly accredited by the
Office of the President.
Consequences of violation of custodial rights
Failure to inform
- Any arresting public officer or employee, or
any investigating officer, shall suffer a fine
of P6,000.00 or a penalty of imprisonment
of not less than 8 years but not more than
10 years, or both.
- The investigating officer who has been
previously convicted of a similar offense
shall suffer the penalty of perpetual
absolute disqualification.
Obstruction, prevention or prohibition of right
to visits or conferences
- Any person guilty thereof shall suffer the
penalty of imprisonment of not less than 4
years nor more than 6 years and a fine of
P4,000.00
Inadmissibility of evidence does not preclude
conviction on other evidence
VIII. ARRAIGNMENT AND PLEA
1. Arraignment and Plea, how made
2. When should plea of NOT GUILTY be
entered
3. When may accused enter a plea of guilty
to a lesser offense
4. Accused plead guilty to capital offense,
what the court should do
5. Searching Inquiry
6. Improvident plea
7. Grounds for suspension of arraignment
1. Arraignment and Plea, how made
Definition
ARRAIGNMENT is the stage where the accused is
formally informed of the charge against him by
reading before him the information/complaint and
asking him whether he pleads guilty or not guilty.
[Rule 116, Sec. 1(a)]
It is the stage where the issues are joined and
without which the proceedings cannot advance
further or, if held, will otherwise be void. [Borja v.
Mendoza (1977)]
REMEDIAL LAW REVIEWER
How arraignment made
1) In general
37
The Court shall issue an order directing the public
prosecutor to submit the record of the PI to the
branch COC for the latter to attach the same to the
record of the case.
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.
Arraignment shall be made:
Within 30 days from the date the court
acquired jurisdiction over the person of the
accused, unless a shorter period is provided
In the presence of the accused who must
personally enter his plea, and of the private
offended party for purposes of:
- Plea bargaining (except for violations
of the Dangerous Drugs Act)
- Determination of civil liability
- Other matters requiring his presence
Before the court where the complaint or
information was filed or assigned for trial
By the judge or clerk in open court by
furnishing the accused with a copy of the
complaint/information, reading the same in a
language or dialect known to him, and asking
whether he pleads guilty or not guilty
If the accused pleads NOT guilty to the crime charged,
s/he shall state whether s/he interposes a negative or
affirmative defense. [RA 8493]
A negative defense will require the prosecution to
prove the guilt of the accused beyond reasonable
doubt.
An affirmative defense may modify the order of trial
and require the accused to prove such defense by
clear and convincing evidence. [RA 8493]
Note: 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. [Rule 116, Sec. 1(g)]
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. [Sec. 1(f), Rule 116; SC AM
No. 03-1-09-SC Part B(2)]
 REMEDIAL LAW REVIEWER
NO ARRAIGNMENT IN ABSENTIA [Nolasco v.
Enrile (1985)]- The presence of the accused is
38 not only a personal right but also a public duty,
irrespective of the gravity of the offense and
the rank of the court.
- There can be no trial in absentia without
first arraigning the accused; otherwise, the
judgment is null and void since (1) the
issues are not joined and (2) the right to be
informed of the nature and cause of
accusation is violated.
2) If the accused is under preventive detention
The case shall be raffled and its records
transmitted to the judge to whom the case was
raffled within 3 days from the filing of the
information or complaint.
The accused shall be arraigned within 10 days
from the date of the raffle.
2. When should plea of NOT GUILTY
be entered
Plea of NOT GUILTY to be entered for the
accused when he either: [Rule 116, Sec. 1(c)]
Refuses to plead
Makes a qualified plea of guilty
Plea of guilty, but accused presents exculpatory
evidence
3. When accused may enter a plea of
guilty to a lesser offense
Plea of guilty to a LESSER OFFENSE [Rule
116, Sec. 2]
At arraignment, the accused, with the consent
of the offended party and 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
4. Accused plead guilty to capital
offense, what the court should do
[Sec. 3, Rule 116]
Conduct a searching inquiry into the
voluntariness and full comprehension of the
consequences of his plea
Require the prosecution to prove the accuseds
guilt and the precise degree of his culpability
Allow the accused to present evidence in his
behalf
5. Searching Inquiry
Plea of guilty to a CAPITAL OFFENSE [Rule
116, Sec. 3]
The procedure in Sec. 3, Rule 116 is mandatory.
Failure to observe the duties of the trial judge
amounts to grave abuse of discretion. [People v.
Devico (1997)]
- The plea must be clear, definite and
unconditional. There must be well-informed
understanding and full realization of the
consequences.
- It must be based on a free and informed
judgment. Mere warning of facing the
supreme penalty of death is insufficient.
- The judge must ask whether the accused
was assisted by counsel during CI and PI; ask
questions on age, educational attainment
and socio-economic status; and ask the
defense counsel WON he conferred with the
accused. [People v. Nadera (2000)]
Rationale: To proceed with more care where the
possible punishment is in its severest form; to
avoid improvident pleas of guilt. [People v.
Samontanez (2000)]
6. Improvident plea
Improvident plea of guilty to a capital offense
IMPROVIDENT PLEA - Plea without proper
information as to all the circumstances affecting it;
based upon a mistaken assumption or misleading
information/advice. [Blacks Law Dictionary]
General rule: An improvident plea should not be
accepted. If accepted, it should not be held to be
sufficient to sustain a conviction. [People v. De
Ocampo Gonzaga (1984)]. The case should be
remanded to the lower court for further
proceedings.
Exception: If the accused appears guilty beyond
reasonable doubt from the evidence adduced by the
prosecution and defense.
Where the TC receives evidence to determine
whether the accused has erred in admitting his guilt,
the manner in which the plea is made whether
improvidently or not - loses legal significance since
the conviction is based on the evidence proving the
commission by the accused of the offense charged.
[People v. Alborida (2001)]
7. Grounds for suspension of
arraignment [Rule 116, Sec. 11]
1. Unsound mental condition of the
accused at the time of the
arraignment.
Degree of unsoundness of mind required: The
accused can neither comprehend the full import
of the charge nor can he give an intelligent
plea.
The court shall order his mental examination
and, if necessary, his confinement.
The need for suspension may be determined
from physical and outward manifestations at the
time of arraignment indicative of a mental
disorder which the court had observed and

defense counsel had called attention to. [People
v. Alcalde (2002)]
An insane person within the meaning of Art. 12,
RPC must be deprived completely of reason or
discernment and freedom of the will at the time
of committing the crime. Mere abnormality of
mental faculties does not exclude imputability.
[People v. Catanyag (1933)]
3 major criteria to determine insanity: [People
v. Dungo (1991)]
- DELUSION TEST Insanity is manifested by
a false belief for which there is no
reasonable basis and which would be
incredible under the given circumstances.
- IRRESISTIBLE IMPULSE TEST The accused
has lost the power to choose between right
and wrong, to avoid the act in question, his
free agency being at that time destroyed.
- RIGHT AND WRONG TEST A perverted
condition of mental and mortal faculties as
to render him incapable of distinguishing
between right and wrong
Tests to determine insanity: [People v. Pascual
(1993)]
- TEST OF COGNITION Complete
deprivation of intelligence in committing
the criminal act. It is the test adopted in
this jurisdiction.
- TEST OF VOLITION A total deprivation of
free will.
2. Prejudicial question exists
Rationale: A prejudicial question would be
determinative of guilt or innocence.
It may be raised during PI. If the information is
filed in court, it may be raised as ground to
suspend the arraignment.
3. Pending petition for review of the
resolution of the prosecutor with the
DOJ or Office of the President.
The accused should file a motion to suspend and
to secure a ruling on his petition for review
within 60 days from the filing of the petition.
Rationale: Need to observe judicial courtesy
and to avoid legal complications in case the
resolution would be different from the offense
for which the accused was arraigned, especially
if it would upgrade the offense.
IX. MOTION TO QUASH
1. Grounds
2. Distinguish from demurrer to evidence
3. Effects of sustaining the motion to quash
4. Exception to the rule that sustaining the
motion is not a bar to another prosecution
5. Double Jeopardy
6. Provisional Dismissal
1. Grounds [Rule 117, Sec. 3] (1998
Bar)
REMEDIAL LAW REVIEWER
The ff. grounds for MTQ are EXCLUSIVE:
1. Facts charged do not constitute an offense
2. Court trying the case has no jurisdiction over
the offense charged. 39
3. Court trying the case has no jurisdiction over
the person of the accused.
4. Officer who filed the information had no
authority to do so.
5. The information does not conform substantially
to the prescribed form.
6. More than one offense is charged
Exception: When a single punishment for
various offenses is prescribed by law
7. Criminal action or liability has been
extinguished.
8. Averments which, if true, would constitute a
legal excuse or justification.
9. Accused has been previously convicted or
acquitted of the offense charged, or the case
against him was dismissed or otherwise
terminated without his express consent (Double
Jeopardy Rule)
Note:
1. Non-inclusion of an accused is not a valid ground
for MTQ.
2. An affidavit of desistance or pardon is not a
ground for the dismissal of an action, once it has
been instituted in court. [People v. Salazar (2010)]
3. The absence of a preliminary investigation or
inability to participate in the preliminary
investigation on the ground of the accused not
having been served with a subpoena is not a proper
ground for a motion to quash but a petition for
reinvestigation [Rodis v. Sandiganbayan (1988)]
4. The absence of probable cause for the issuance of
a warrant of arrest is not a ground for the quashal of
the information but is a ground for the dismissal of
the case [People v. Sandiganbayan (439 SCRA 390)]
5. Facts that constitute the defense of the
petitioners against the charge under the information
must be proved by them during trial. Such facts or
circumstances do not constitute proper grounds for a
motion to quash the information on the ground that
the material averments do not constitute the offense
[Soriano v. People (2009)]
Although the rule is that grounds not asserted in the
motion to quash are waived, the following
objections are not subject to waiver:
1. Facts charged do not constitute an offense
2. Court trying the case has no jurisdiction over the
offense charged
3. Criminal action or liability has been extinguished
4. Double jeopardy
1) Facts Charged do not Constitute an Offense
In all criminal cases, the accused should be
informed of the nature and the cause of the
accusation against him.
 REMEDIAL LAW REVIEWER
An information which does not charge an
offense or does not allege essential elements of
40 a crime is void.
TEST: WON the facts alleged, if hypothetically
admitted, would meet the essential elements of the
offense, as defined by law [People vs Abad (1997)].
That a) the missing element may be proved
during the trial or that b) the prosecution has
presented evidence to establish the same
cannot have the effect of validating the void
information or of proving an offense which does
not exist [People vs Asuncion (1988)].
Instead of dismissing, the court should give the
prosecution an opportunity to amend the
information [Rule 117, Sec. 4].
a. Should the prosecutor fail to make the
amendment or should the information suffer
from the same defect despite amendment,
the MTQ shall be granted [Rule 117, Sec. 4].
b. When the prosecutor dismisses the case,
the prosecutor should file a valid
information, not a petition for review for
certiorari.
The defect is not cured by a failure to move to
quash or by a plea of guilty. The failure does not
imply a waiver of the defects that go to the
jurisdiction of the offense or to lack in some of
the essential elements of the offense charged
[Suy Sui v. People (1953)].
General Rule: In a MTQ, facts other than those
alleged in the complaint/information may NOT
be considered by the court.
Exceptions:
a. Facts already admitted by the prosecution
[People vs Navarro].
b. Undisputed facts apparent from the records
of the PI and not denied by the prosecutor
[Salonga v. Pano (1985)].
c. Undisputed or undeniable facts that destroy
the prima facie truth accorded to
allegations of the information [People v. de
la Rosa (1988)].
d. ROC expressly permits the investigation of
facts alleged [People v. Alagao (1966)] [Rule
117, Sec. 2(f)(h), 4 & 5].
Rationale: It would be pure technicality for the
court to close its eyes to said facts, refuse to
quash the information, and require trial.
2) Court has No Jurisdiction over the Offense
Charged
Jurisdiction over the subject matter: The power to
adjudge concerning the general question involved.
Note:
In a criminal prosecution, the place where the
offense was committed not only determines
venue, but is an essential element of
jurisdiction [Rule 110, Sec. 15; Lopez v. City
Judge (1966)].
The court cannot take jurisdiction over a person
charged with an offense committed outside its
territory. If the evidence adduced show that
offense was committed somewhere else, the
court should dismiss the action for want of
jurisdiction [Uy vs CA (1997)].
In private crimes, the complaint of the offended
party is necessary to confer authority to the
court.
If the case was tried and decided upon the
theory that it had jurisdiction, the parties are
not barred from assailing such jurisdiction on
appeal.
The court had jurisdiction over the case since,
for as long as he continues to evade the service
of his sentence, he is deemed to continue
committing the crime, and may be arrested
without warrant at any place where he may be
found [Parulan vs Director of Prisons (1968)].
3) Court has no Jurisdiction over the Person of
the Accused
How jurisdiction is acquired
a. By arrest of the accused or his voluntary
appearance in court.
b. By allowing himself to be arraigned without
questioning the legality of his arrest
It is waivable expressly or by implication, unlike
jurisdiction over the territory and the subject
matter.
When the accused files a MTQ based on this
ground, he must do so only on this ground. If he
raises other grounds, he is deemed to have
submitted his person to the jurisdiction of the
court [Sanchez v. Demetriou (1993)].
If the accused believes his arrest to be illegal,
he should move to quash the information on
such ground. However, illegality of the arrest is
waivable as it affects only the jurisdiction of the
court over the person of the accused [People vs
Meris (2000)].
When the objection is raised, the court should
resolve it before conducting trial to avoid
unnecessary expenditure of time and money
[Mead vs Argel (1982)].
4) Officer who Filed Information had no
Authority to Do So
Authority to file and prosecute criminal cases is
vested in:
a. Provincial fiscals and their assistants.
b. City fiscals and their assistants.
c. Chief State Prosecutor and his deputies.
Note:
A lawyer appointed by the DOJ Secretary may
also file an information.
The prosecutor who signed the information must
have territorial jurisdiction to conduct
preliminary investigation of the offense [Cudia
vs CA (1998)]. Otherwise, the information filed
by him would be invalid and can be quashed on
that ground.
An Information filed in the Sandiganbayan must
be signed by a graft investigating officer with
prior approval of the Ombudsman. Authority to
sign may be challenged if the prosecutor files
 REMEDIAL LAW REVIEWER

the information without the approval of the 7) Criminal Action or Liability has been
Ombudsman. Extinguished

The Ombudsman cannot sign when the
information is filed in the regular courts [Uy vs
Sandiganbayan (1999)].
Election Offenses: Must be signed by the duly
deputized prosecutors and legal officers of the
COMELEC.
Lack of authority of the officer to is not cured
by silence, acquiescence, express consent or
even by amendment.
How criminal liability is extinguished 41
a. Death of the accused - Liability for pecuniary
penalties is extinguished only if death occurs
before final judgment.
b. Service of Sentence - Execution must be by
virtue of a final judgment and in the form
prescribed by law.
c. Amnesty

5) Complaint/Information does not Conform d. Absolute pardon

Substantially to the Prescribed Form
e. Prescription of the crime
The formal and substantial requirements are
provided for in Rule 110, Sec. 6-12. f. Prescription of the penalty

General Rule: Lack of substantial compliance g. Pardon in private offenses

renders the accusatory pleading nugatory.
Note:
Exception: Mere defects in matter of form may Enjoyment of an accrued right cannot forever be
be cured by amendment. left on a precarious balance [People vs Reyes
- Objections not raised are deemed waived, (1989)].
and the accused cannot seek affirmative Protection from prosecution under a statute of
relief on such ground nor raise it for the limitation is a substantive right [People vs
first time on appeal [People v. Garcia Sandiganbayan (1992)].
(1997)].
ABSOLUTE PARDON CONDITIONAL PARDON
Vague or broad allegations are generally not Only upon the
grounds for a MTQ. The correct remedy is to file acceptance since
for a bill of particulars [Rule 116, Sec. 9]. Complete upon its
accused may view
delivery
liability less onerous
6) More than One Offense is Charged than the terms

General Rule: The complaint or information must PARDON AMNESTY

charge only one offense [Rule 110, Sec. 13]. Grant by the President
Grant of the executive with concurrence of
Exception: Those cases in which existing laws majority of Congress
prescribe a single punishment for various offenses. Private, though official,
a. Complex and compound crimes, except where Public act
act
one offense was committed to conceal another. Court must take judicial
b. An offense incidental to the gravamen of the Must be pleaded and
notice [People v. Vera
offense charged. proved
(1990)]
c. A specific crime set forth in various counts, each Usually for those subject
of which may constitute a distinct offense. The to trial but have not yet
narration of the specific of the specific acts is been convicted, but can
considered a bill of particular of facts upon Granted after conviction also be available even
which the inference of guilt of the accused may after institution of the
be based [People vs Yap (1968)] criminal action and
sometimes after
Note: conviction
Waivable. The accused may be convicted of all
Looks backward
the offenses alleged and proved if he goes to
Looks forward releases abolishes offense itself;
trial without objecting to the inclusion of 2 or
from consequences of completely extinguishes
more separate offenses in the same information
conviction the penalty and all its
[People vs Villamor (1998)]. effects [People v. Vera
It is not tantamount to duplicity of offenses. An (1990)]
offense is committed in different modes and is
Granted to all persons
alleged to have been committed in the 2 or
Extended to pardoned guilty of a crime
more modes specified [Ku Bo Lin vs CA (1992)].
defendant alone and to (generally, political
If the criminal acts are committed on different
no other cases like rebellion,
occasions, each constitutes a separate offense.
sedition, treason), and
often conditioned upon
 REMEDIAL LAW REVIEWER
their return to
obedience and duty
42 within a prescribed time
Prescription of the Crime
Definition: It is the loss or waiver by the state of its
right to prosecute a crime [People vs Castor (1954)].
Computation of Period [Art 9, RPC]
1. Commencement: From the day on which the
crime is discovered by the offended party, the
authorities or their agents.
2. Interruption: Upon the filing of the complaint
or information
General Rule: Includes complaint filed with
the proper officer for PI.
Exception: Period for offenses penalized by
special laws and ordinances is interrupted only
by filing in court.
Commences to run again: When
proceedings terminate without the accused
being convicted or acquitted, or are
unjustifiably stopped for any reason not
imputable to him
Note: Prescription shall not run when the offender is
absent from the Philippines.
Manner of computing time:
1 yr = 365 days
1 month = 30 days, unless specified
1 day = 24 hours
Nights = sunrise to sunset
First day shall be excluded, while last day
included
Note: The rule that if the last day falls on a Sunday
or a holiday, the act can still be done the following
day does NOT apply to the computation of the period
of prescription of a crime. Information concerning
said felony cannot be filed anymore on the next
working day as the offense has by then already
prescribed.
Prescription of a continuing crime: It is counted
from the latest or last act constituting the series of
acts continuing the single crime [People vs
Castaneda (1990)].
Prescription Periods: [Art 90, RPC]
20 yrs Death and Reclusion Perpetua
15 yrs Other afflictive penalties
10 yrs. Correctional penalties; except Arresto
Mayor, which prescribes in 5 yrs.
1 yr. Libel and similar offenses;
6 mos. Oral defamation and slander by deed
2 mos. Light offenses
When the penalty fixed is a compound one, the
highest penalty shall be made the basis of the
application of letters a-c
Prescription of the Penalty
Definition: It is the loss or waiver by the State of its
right to demand service of the penalty imposed.
When and penalties prescribe: [Art 92, RPC]
20 yrs Death and Reclusion Perpetua
15 yrs Other afflictive penalties
10 yrs Correctional penalties, except Arresto
Mayor which prescribes in 5 yrs
1 yr light penalties
Act No. 3326 governs period of prescription for
violation of special laws.
Where the accused is found to have committed a
lesser offense included in the offense charged, he
cannot be convicted of the lesser offense if it has
already prescribed [Magat vs People (1991)].
Computation of period: [Art 91, RPC]
1. Commencement: From the date when the
culprit should evade the service of his sentence.
2. Interruption: If the defendant should give
himself up, be captured, should go to some
foreign country with which this Government has
no extradition treaty, or should commit another
crime before the expiration of the period.
Pardon In Private Offenses (seduction, abduction,
acts of lasciviousness, rape)
It extinguishes the criminal action or remits the
penalty already imposed.
General Rule: Pardon should be given before
the filing of the information
Exception: Marriage between the offended
woman and the offender [Art 344, RPC; People
vs Lualhati (1989)].
Applicable to co-principals, accomplices and
accessories.
- If the victim is a minor: Pardon of offended
party and of both parents is required
[People vs de la Cruz (1993)].
8) Contains Averments Which, if True, Would
Constitute a Legal Excuse or Justification
Justifying Circumstances [Art 11, RPC]
a) Acts in defense of his person or rights
Requisites:
Unlawful aggression;
Reasonable necessity of means employed;
Lack of sufficient provocation.
b) Acts in defense of the person or rights of his
Spouse;
Ascendants;
Descendants;
Legitimate/natural/adopted brothers or
sisters;
Relatives by affinity in the same degrees;
Relatives by consanguinity within the 4th
civil degree.
- Requisites:
o unlawful aggression
o reasonable necessity of means
employed
o In case provocation was given by
the person attacked, the one
 REMEDIAL LAW REVIEWER

making the defense had no part MTQ DEMURRER TO EVIDENCE

therein. order the filing of a new another information or
complaint or appeal by the prosecution
c) Acts in defense of the person or rights of a information) 43
stranger:
Requisites: If the court, in denying The order denying the
unlawful aggression the motion to quash motion for leave to file a
reasonable necessity of means employed acts with grave abuse of demurrer shall not be
the person defending should not be induced discretion, then reviewable by appeal or
by revenge or resentment or other evil certiorari or by certiorari before
motive. prohibition lies judgment [Sec. 23, Rule
119]
d) Act which causes damage to avoid evil or
injury 3. Effects of sustaining the motion to
Requisites:
Evil sought to be avoided actually exists; quash
Injury feared greater than that done to avoid;
No other practical and less harmful means. Court order sustaining motion
General Rule: Court may order that another
e) Fulfillment of a duty or lawful exercise of a complaint or information be filed [Rule 117,
right or office Sec. 5].

f) Obedience to an order issued by a superior for Exception: If MTQ was based on the ff:
some lawful purpose 1. Criminal action or liability has been
extinguished
Exempting Circumstances [Art 12, RPC] 2. Double jeopardy
a) Imbecile or Insane
Exception: Insane acting during a lucid interval General Rule: If in custody, the accused shall
not be discharged unless admitted to bail [Rule
b) Person under 9 yrs old 117, Sec. 5]. The order must state either release
of the accused or cancellation of his bond.
c) Person over 9 yrs and under 15 yrs
Exception: If he acted with discernment Exception: When there is no order sustaining
the motion is made OR if there is one, no new
d) Causes injury by mere accident, without fault information is filed within the time specified in
or intention, while performing a lawful act the order or within such further time as the
with due care court may allow for good cause.

e) Under compulsion of irresistible force Exception to the exception: If he is in custody

for another charge.
f) Under impulse of uncontrollable fear or
greater injury Better approach if the ground was that the court
has no jurisdiction over the subject matter: The
g) Fails to perform an act required by law when court should not quash the complaint or
prevented by some lawful insuperable cause information. Instead, it should remand or
forward the case to the proper court.
2. Distinguish from demurrer to Remedies of the prosecution
evidence General Rule: To amend the information to correct
the defects if the TC makes the order, and
MTQ DEMURRER TO EVIDENCE thereafter prosecute on the basis of the amended
Filed before entering Filed after the information [Rule 117, Sec. 4]
plea prosecution has rested its
case Exception: Prosecution is precluded where the
Does not go into the Based upon the ground for quashal would bar another prosecution
merits of the case inadequacy of the for the same offense.
evidence adduced by the
prosecution Prosecution may appeal from the order of
Grounds are stated in Ground is insufficiency quashal to the appellate court.
Rule 117 of evidence
Does not require a prior May be filed either with If the information was quashed because it did
leave of court leave or without leave of not allege the elements of the offense, but the
court facts so alleged constitute another offense
Granting does not Granting is deemed an under a specific statute, the prosecution may
necessarily follow a acquittal and would file a complaint for such specific offense where
dismissal (Court may preclude the filing of dismissal is made prior to arraignment and on
MTQ [People vs Purisima (1978)].
 REMEDIAL LAW REVIEWER
Order denying MTQ Order granting MTQ
44 Interlocutory Final order
Not appealable absent a
Immediately appealable
showing of GAD
but subject to rules on
double jeopardy
Does not dispose of the Disposes of the case upon
case upon its merits its merits
Proper remedy: appeal Proper remedy: appeal
after the trial the order
4. Exception to the rule that
sustaining the motion is not a bar to
another prosecution (Bar 1994)
General Rule: A MTQ will not be a bar to another
prosecution for the same offense [Rule 117, Sec. 6]
Exception: If the ground for the quashal is either:
1. The criminal action or liability has been
extinguished.
2. The accused has been previously convicted, or
in jeopardy of being convicted, or acquitted of
the offense charged.
5. Double Jeopardy
Rule of Double Jeopardy
1. When a person is charged with an offense and
the case is terminated either by acquittal or
conviction or in any other manner without the
express consent of the accused, the latter
cannot again be charged with the same or
identical offense [Rule 117, Sec. 3(i)].
2. Hence, as a rule, an acquittal rendered by a
court of competent jurisdiction after trial on the
merits is immediately final and cannot be
appealed on the ground of double jeopardy
[People v. Sandiganbayan (2010)].
Kinds of Double Jeopardy [Art III, Sec. 21,
Consti]
1. No person shall be put twice in jeopardy for the
SAME OFFENSE.
2. When an act punished by a law and an
ordinance, conviction or acquittal under either
shall be a bar to another prosecution to another
prosecution for the SAME ACT.
Same Offense
The offenses are penalized either by different
sections of the same law or by different
statutes.
Must examine the essential elements of each:
- Test: WON evidence that proves one
offense would likewise prove the other
[People vs Ramos (1961)].
It is not necessary to have absolute identity
[People vs Relova (1987)].
Same Act
An offense penalized by ordinance is, by
definition, different from an offense penalized
under a statute. Hence, they would never
constitute double jeopardy. However, the
second sentence of the constitutional protection
was precisely intended to extend to situations
not covered by the first sentence. Although the
prior offense charged under an ordinance be
different from the offense charged under a
national statute, the constitutional protection is
available provided that both arise from the
same act or set of acts [People vs Relova
(1987)].
Liability is produced both under an ordinance
and a national statute.
Note: Where there are two different laws or
articles of the same code that define two
crimes, prior jeopardy as to one is NOT an
obstacle to a prosecution of the other when
each crime involves some important act which is
not an essential element of the other [Loney vs
People (2006); People vs Doriquez (1968)].
Requisites for 1st Jeopardy to Attach
1. A valid complaint or information which is
sufficient in form and substance to sustain a
conviction
2. The court had jurisdiction
3. A valid arraignment
4. A valid plea
5. Conviction, acquittal of the accused OR the case
was dismissed without his express consent
Note:
Exception: A dictated, coerced and scripted
verdict of acquittal is a void judgment. It
neither binds nor bars anyone [Galman v.
Sandiganbayan (1986)].
Without express consent: It refers only to
dismissal or termination of the case. It does NOT
refer to the conviction or acquittal [People v.
Labatete (1960)].
If consent is not express, dismissal will be
regarded as final i.e. with prejudice to refiling
[Caes v. IAC (1989)].
Exception: Dismissal has the effect of
acquittal even with the consent of the accused
when predicated on (1) insufficiency of the
prosecutions evidence or (2) denial of the right
to a speedy trial [Alamario v. CA (2001)].
Dismissal = Acquittal
a) Demurrer to evidence
b) Dismissal due to violation of right to speedy
trial (even if dismissal was upon motion of
the accused or with his express consent)
Dismissal vs. Acquittal
Dismissal Acquittal
Does not decide the case Always based on the
on the merits. Does not merits. Defendants guilt
determine innocence or was not proven beyond
guilt reasonable doubt.
Double jeopardy will not Double jeopardy always
always attach attaches

Requisites to Raise Double Jeopardy
1. First jeopardy must have attached.
2. First jeopardy must have been validly
terminated.
3. Second jeopardy must be:
a. for the same offense; or
b. the second offense necessarily includes or is
necessarily included in the offense charged
in the first information; or
c. is an attempt or frustration thereof.
Note:
The discharge of a defendant on a preliminary
investigation is NOT such an adjudication in his
favor as will bar a subsequent prosecution for
the offense. A preliminary investigation is not a
trial and does not have for its object the
definite determination of the guilt of the
accused. Furthermore, the accused has not yet
been arraigned.
Tests for determining whether the two
offenses are identical: There is IDENTITY
between the two offense not only when the
second offense is exactly the same as the first,
but also when the second offense is an attempt
to or frustration of or is necessarily included in
the offense charged in the first information
Exception to the Identity Rule:
1. The graver offense developed due to
supervening facts arising from the same act or
omission constituting the former charge.
2. The facts constituting the graver charge became
known or were discovered only after a plea was
entered in the former complaint or information.
3. The plea of guilty to the lesser offense was
made without the consent of the prosecutor and
of the offended party EXCEPT when offended
party failed to appear during such arraignment.
When there is NO double jeopardy
1. Private offended party appeals the civil aspect
of the case [Manantan vs CA (2001)].
2. Conviction of a crime under a special law
(malum prohibitum) which also constitutes an
offense under the RPC is not a bar to the
prosecution under the RPC (malum in se)
[People vs Sanchez (1998)].
3. Two informations are filed charging the accused
with two different offenses having different
elements though arising from the same act (eg.
estafa and BP 22) [Ching vs CA (1990)].
4. Prosecutor may revive and reinstate a case
without filing a new information when the
information is provisionally dismissed with the
conformity of the accused after arraignment and
the initial presentation of prosecution evidence
has started since the order of provisional
dismissal has not yet become final [Lauchengco
vs CA (1979)].
5. Dismissal of the case was declared null and void
[People vs Mogol (1984)].
Where an order dismissing a case is not on
the merits, it cannot bar as res judicata a
subsequent case based on the same offense.
The dismissal being null and void, the
REMEDIAL LAW REVIEWER
proceeding before the TC may not be said
to have been lawfully terminated [People vs
Gorospe (1984)].
6. Petition for certiorari filed by the prosecutor to 45
correct the penalty which should be lower than
that imposed by the TC it is favorable to the
accused [People vs Lee Jr (1984)].
7. Filing of the 2nd information where a new fact
supervened (eg. the injured party dies from the
injuries after conviction). [1997, 2005 Bar]
Where there is no supervening event after
arraignment and conviction:
- If the 1st charge was based on findings
of a physician, and a 2nd information
was filed charging a more serious crime
based on the findings of another
physician [People v. Buling (1960)].
- If the victim died 2 days prior to
arraignment of the accused who
pleaded guilty to an information for
serious physical injuries thru reckless
imprudence, he can no longer be
charged with homicide thru reckless
imprudence [People v. City Court of
Manila (1983)].
8. In a continuing offense, only one crime is
committed. Where 2 informations arose from
the same transaction, the 2nd case CANNOT
prosper [Mallari vs People (1988)].
9. General Rule: Prosecution cannot file an appeal
or a motion for reconsideration after jeopardy
has attached to increase the imposed penalty
[US vs Kepner (1904)].
Exception: If the purpose is to decrease the
penalty wrongfully imposed, it is beneficial
to the accused and there is no reason to
complain.
6. Provisional Dismissal (Bar 2003)
Definition: A case is dismissed without prejudice to
its being refiled or revived.
General Rule: Cases are provisionally dismissed
where there has already been arraignment and the
accused consented to a provisional dismissal.
Exception: If dismissal was due to a demurrer to
evidence.
a. When dismissal becomes permanent: Time bar
rule
1 year after issuance of the order without the
case having been revived for offenses
punishable: [Rule 117, Sec. 8]
1. By imprisonment not exceeding 6 yrs
2. By fine of any amount
3. By both
2 yrs after issuance of the order without the
case having been revived for offenses punishable
by imprisonment of more than 6 yrs.
The State may revive beyond the periods
provided there is a justifiable necessity for the
delay.
The Court is not mandated to apply Sec. 8
retroactively simply because it is favorable to
 REMEDIAL LAW REVIEWER
the accused. The time-bar under the new rule
was fixed for the benefit of the State and the
46 accused, and not for the accused only [People vs
Lacson (2003)].
Note:
How to revive a case:
1. Refiling of the information
2. Filing of a new information for the same
offense or one necessarily included in the
original offense charged.
b. Requisite procedure [Rule 117, Sec. 8]
Motion can be made:
1. By the prosecution, with the express
conformity of the accused
2. By the accused
3. By both
Requisites for Provisional Dismissal:
1. Consent of the prosecutor
2. Consent of the accused
3. Notice to the offended party
X. PRE-TRIAL
1. Matters to be considered during pre-trial
2. What the court should do when
prosecution and offended party agree to
the plea offered by the accused
3. Pre-trial agreement
4. Non-appearance during pre-trial
5. Pre-trial order
6. Referral of some cases for Court Annexed
Mediation and Judicial Dispute Resolution
1. Matters to be considered during
pre-trial
Section 1. Pre-trial; mandatory in criminal cases
Pre-trial is MANDATORY in all criminal cases. Its
main objective is to achieve an expeditious
resolution of the case.
Coverage [Rule 118, Sec. 1]
The court shall order pre-trial in ALL criminal cases
cognizable by the Sandiganbayan, RTC and MTC or
MTCC or MCTC or MeTC
Period [Rule 118, Sec. 1]
General Rule: After arraignment and within 30 days
from the time the court acquires jurisdiction over
the person of the accused.
Exception: If a shorter period is provided by special
or SC circulars.
Things considered during pre-trial / Purposes
[Rule 118, Sec. 1]
a) Plea bargaining
b) Stipulation of facts
c) Marking for identification of evidence
d) Waiver of objections to admissibility of evidence
e) Modification of the order of trial if accused
admits the charge but interposes a lawful
defense (reverse trial)
f) Other matters that will promote a fair and
expeditious trial of the civil and criminal
aspects of the case
Role of the Judge
During the pre-trial, the judge shall be the one to
ask questions on issues raised therein and all
questions must be directed to him to avoid hostilities
between the parties. [SC AM 03-1-09-SC]
Note:
Stipulation of facts
- This is no longer prohibited in criminal
cases [People vs Hernandez (1996)].
- However, in a case of rape with the
allegation that victim is below 12 yrs of age
which qualifies said crime and increases its
penalty to death, nothing short of proof
beyond reasonable doubt of every fact
necessary to constitute the elements of the
crime must be established. Said facts and
circumstances cannot be subject of
stipulation [People vs Sitao (2002)].
Marking for identification of the evidence of
parties
Proffer of exhibits is not allowed. It ought to be
done at the time a party closes the presentation
of evidence.
2. What the court should do when
prosecution and offended party agree
to the plea offered by the accused
Plea bargaining
Definition: It is the process in criminal process
whereby the 1) accused, 2) offended party, and the
3) prosecution work out a mutually satisfactory
disposition of the case subject to court approval [See
also DOJ Circular No. 35 (June 31, 1990), as
amended by Circular No. 55 for the guidelines on
plea bargaining as well as note on Rule 116].
It usually involves the defendants pleading guilty to
a lesser offense or to one or some of the counts of a
multi-count indictment in return for a lighter
sentence than that for the graver charge [People vs
Villarama (1989)].
The conviction of the accused of the lesser offense
precludes the filing and prosecution of the offense
originally charged in the information, except when
the plea of guilty to a lesser offense is without the
consent of the offended party and the prosecutor
[People vs De Luna (1989)].
When not allowed: Section 23 of RA9165
(Comprehensive Dangerous Drugs Act of 2002) says
that any person charged under any provision of this
Act regardless of imposable penalty shall not be
allowed to avail of the provision on plea-
bargaining.

Effect when the prosecution and the offended
party agree to the plea offered by the accused:
Court shall:
a) Issue an order which contains the plea
bargaining arrived at;
b) Proceed to receive evidence on the civil aspect
of the case; and
c) Render and promulgate judgment of conviction,
including the civil liability or damages duly
established by the evidence [SC AM 03-1-09-SC]
When plea bargaining fails:
Court shall
Adopt the minutes of preliminary
conference as part of the pre-trial
proceedings, confirm markings of exhibits
or substituted photocopies and admissions
on the genuineness and due execution of
documents and list object and testimonial
evidence;
Scrutinize every allegation of the
information and the statements in the
affidavits and other documents which form
part of the record of the preliminary
investigation and other documents
identified and marked as exhibits in
determining farther admissions of facts,
documents and in particular as to the
following:
- the identity of the accused;
- court's territorial jurisdiction relative to the
offense/s charged;
- qualification of expert witness/es;
- amount of damages;
- genuineness and due execution of documents;
- the cause of death or injury, in proper cases;
- adoption of any evidence presented during
the preliminary investigation;
- disclosure of defenses of alibi, insanity, self-
defense, exercise of public authority and
justifying or exempting circumstances; and
- such other matters that would limit the facts
in issue.
Define factual and legal issues;
Ask parties to agree on the specific trial
dates and adhere to the flow chart
determined by the court which shall
contain the time frames for the different
stages of the proceeding up to
promulgation of decision and use the time
frame for each stage in setting the trial
dates;
Require the parties to submit to the Branch
COC the names, addresses and contact
numbers of witnesses that need to be
summoned by subpoena; and
Consider modification of order of trial if
the accused admits the charge but
interposes a lawful defense. [SC AM 03-1-
09-SC]
3. Pre-trial agreement
Form
General Rule: Court approval is required.
REMEDIAL LAW REVIEWER
Exception: Agreements not covering matters
referred to in Rule 118, Sec. 1 [SC A.M. No. 03-1-09-
SC]
47
Required form of pre-trial agreement
1. Must be in writing
2. Signed by the accused
3. Signed by his counsel
Otherwise, it cannot be used against the accused
(i.e. inadmissible in evidence). The constitutional
right to present evidence is waived expressly.
Purpose for signature requirement: [People vs Uy
(2000)]
1. To safeguard the rights of the accused against
improvident or unauthorized agreements or
admissions which his counsel may have entered
into without his knowledge.
2. To eliminate any doubt on the conformity of the
accused to the facts agreed upon.
Effect
The stipulations become binding on the parties
who made them. They become judicial
admissions of the fact or facts stipulated (2008
Bar)
Even if placed at a disadvantageous position, a
party may not be allowed to rescind them
unilaterally; he must assume the consequences
of the disadvantage [Bayas vs Sandiganbayan
(2002)].
4. Non-appearance during pre-trial
[Rule 118, Sec. 3]
If counsel for the accused or the prosecutor 1) does
not appear at the pre-trial conference and 2) does
not offer an acceptable excuse, the court may
impose proper sanctions or penalties (reprimand,
fine or imprisonment).
Rationale: to enforce the mandatory requirement of
pre-trial in criminal cases [Rule 118, Sec. 1].
Note: The accused is not included because his
constitutional right to remain silent may be violated.
The accused is not required to attend (unless
ordered by the court) and is merely required to sign
the written agreement arrived at in the pre-trial
conference, if he agrees to the contents of such.
5. Pre-trial order [Rule 118, Sec. 4]
Issuance
Issued by the court
Within 10 days after the pre-trial. [SC AM 03-1-
09-SC]
Judgment of acquittal based on pre-trial despite
disputed documents and issues of fact amounts
to grave error and renders the judgment void
[People vs Santiago (1989)].
Contents
a) Actions taken;
b) Facts stipulated;
 REMEDIAL LAW REVIEWER
c) Evidence marked;
d)
e)
Admissions made;
The number of witnesses to be presented; and
48
f) The schedule of trial.
(Note: Letters d) to f) are added by SC AM 03-1-09-
SC to the requirements under Rule 118, Sec. 4)
Effect
a) Binds the Parties
The accused must move to correct any
mistake or modify the pre-trial order.
Otherwise, it will be deemed to have waived
and be barred from questioning
If the matters taken up and embodied in the
pre-trial order were not in accordance with
what was really stipulated upon, objections
should be interposed as soon as the pre-trial
order is issued. [People v. Abelita (1992)]
The procedure is substantially the same in
civil cases, except that any modification of
the pre-trial order in civil cases must be made
before the trial. No such limitation is
provided for in criminal cases (1997 Bar).
b) Limits the trial to those matters not disposed of
c) Control the course of the action during trial
Exception: If modified by the court to
prevent manifest injustice.
6. Referral of some cases for Court
Annexed Mediation and Judicial
Dispute Resolution
A.M. No. 03-1-09-SC
RE: PROPOSED RULE ON GUIDELINES TO BE
OBSERVED BY TRIAL COURT JUDGES AND CLERKS
OF COURT IN THE CONDUCT OF PRE- TRIAL AND
USE OF DEPOSITION-DISCOVERY MEASURES
RESOLUTION
CRIMINAL CASES
After the arraignment, the court shall forthwith set
the pre-trial conference within thirty days from the
date of arraignment, and issue an order:
(a) Requiring the private offended party to appear
thereat for purposes of plea-bargaining except
for violations of the Comprehensive Dangerous
Drugs Act of 2002, and for other matters
requiring his presence;
(b) Referring the case to the Branch COC, if
warranted, for a preliminary conference to be
set at least three days prior to the pre-trial to
mark the documents or exhibits to be presented
by the parties and copies thereof to be attached
to the records after comparison and to consider
other matters as may aid in its prompt
disposition; and
(c) Informing the parties that no evidence shall be
allowed to be presented and offered during the
trial other than those identified and marked
during the pre-trial except when allowed by the
court for good cause shown. In mediatable
cases, the judge shall refer the parties and their
counsel to the PMC unit for purposes of
mediation if available.
XI. TRIAL
1. Instances when presence of accused is
required by law
2. Requisite before trial can be suspended
on account of absence of witness
3. Trial in Absentia
4. Remedy when accused is not brought to
trial within the prescribed period
5. Requisites for discharge of accused to
become a state witness
6. Effects of Discharge of accused as state
witness
7. Demurrer to Evidence
1. Instances when presence of
accused is required by law
Presence is mandatory:
For purposes of identification;
At arraignment; [Rule 116, Sec. 1(b)]
At the promulgation of judgment;
Exception: If the conviction is for a light offense.
[Rule 120, Sec. 6]
[Rule 119, Sec. 15]
When it satisfactorily appears that a witness for
the prosecution is too sick or infirm to appear at
the trial as directed by the court, or has to
leave the Philippines with no definite date of
returning, he may forthwith be conditionally
examined before the court where the case is
pending.
Such examination, in the presence of the
accused, or in his absence after reasonable
notice to attend the examination has been
served on him, shall be conducted in the same
manner as an examination at the trial.
Failure or refusal of the accused to attend the
examination after notice shall be considered a
waiver. The statement taken may be admitted
in behalf of or against the accused.
2. Requisites before trial can be
suspended on account of absence of
witness
Absence or unavailability of an essential witness
Absent means that his whereabouts are
unknown or cannot be determined by due
diligence.
Unavailable means that his whereabouts are
known but presence for trial cannot be obtained
by due diligence.
The period of delay resulting from the absence or
unavailability of an essential witness shall be
 REMEDIAL LAW REVIEWER

excluded in computing the time within which trial DISMISSAL WITHOUT DISMISSAL WITH
must commence. [Rule 119, Sec. 3] PREJUDICE PREJUDICE
Terminates the case but 49
3. Trial in Absentia (1998 Bar) reserving, however, to
the plaintiff the right to
Requisites: file a new complaint
1. Accused has been arraigned; which is entirely new
2. He was duly notified of trial; and different from that
3. His failure to appear is unjustified. which was dismissed

Purpose: To speed up disposition of cases. 5. Requisites for discharge of accused

General rule: The right to be present at ones trial to become a state witness
may be waived.
Discharge of a co-accused
Exceptions: At certain stages: [Lavides v. CA (2000)] General rule: It is the duty of the prosecutor to
Arraignment and plea include all the accused in the
Promulgation of sentence, unless for light complaint/information.
offense
During trial whenever necessary for ID purposes Exception: Prosecutor may ask the court to
discharge one of them after complying with the
Exception to the exception: If the accused conditions prescribed by law. [Rule 119, Sec. 17]
unqualifiedly admits in open court after arraignment This applies only when the information has
that he is the person named as the defendant in the already been filed in court.
case on trial.
Requisites [Rule 119, Sec. 17]
(1) Two or more persons are jointly charged with
4. Remedy when accused is not the commission of any offense.
brought to trial within the prescribed (2) Upon motion of the prosecution before resting
period its case
Petition for discharge is filed before the
Effect of delay [Rule 119, Sec. 9] defense has offered its evidence. [People v.
On motion of the accused, the information may Anion (1988)]
be dismissed on the ground of denial of his right (3) Hearing in support of the discharge where the
to speedy trial (2007 Bar). prosecution is to present evidence and the
Must be raised prior to trial; otherwise, the right sworn statement of each proposed state
to dismiss is considered waived under Rule 119, witness.
section 9. (4) The court is satisfied of the ff:
Burden of Proof (a) Absolute necessity for the testimony of the
- The accused has the burden of proving the accused whose discharge is requested;
ground of denial of right to speedy trial for He alone has the knowledge of the
the motion. crime, and not when his testimony
- The prosecution has the burden of going would simply corroborate or strengthen
forward with the evidence to establish the the evidence in the hands of the
exclusion of time under Rule 119, Sec. 3. prosecution. [Flores v. Sandiganbayan
Subject to the rules on double jeopardy. Hence, (1983)]
if with prejudice, the case cannot be revived E.g. When there is a conspiracy and the
anymore. crime is committed clandestinely, the
discharge of a conspirator is necessary
DISMISSAL WITHOUT DISMISSAL WITH to testify against the other conspirator.
PREJUDICE PREJUDICE [Chua v. CA (1996)]
(b) There is no other direct evidence available
Adjudication on the
for the proper prosecution of the offense,
merits, and final
except the testimony of the said accused;
Allows new suit for the disposition, barring the
(c) The testimony can be substantially
same cause of action right to bring or
corroborated in its material points;
maintain an action on
(d) The accused does not appear to be the
the same claim or cause
most guilty;
Imports contemplation of
Gravity or nature of acts he committed
further proceedings, and
are compared to those of his co-
when they appear in an
Is res judicata as to accused.
order or decree, it shows
every matter litigated Not merely the fact that in law the same
that the judicial act is
penalty is imposable on all.
not intended to be res
(e) The accused has not, at any time, been
judicata of the merits
convicted of any offense involving moral
turpitude
 REMEDIAL LAW REVIEWER

may then oppose within a non-extendible period

Note: The rule on the discharge of an accused to be of 5 days from receipt.
50 utilized as state witness clearly looks at his actual If leave of court is granted, the demurrer must be
and individual participation in the commission of the filed within a non-extendible period of 10 days
crime, which may or may not have been perpetrated from notice. Prosecution may oppose within a
in conspiracy with the other accused. [People v. similar period.
Ocimar (1992)]
Effect of granting motion for leave to file
6. Effects of Discharge of accused as demurrer
state witness The court may dismiss the action on the ground of
insufficiency of evidence. [Rule 119, Sec. 23]
Sufficient evidence for frustrating a demurrer is
Effect of discharge evidence that proves: [Gutib v. CA (1999)]
General rule: The order of discharge shall: [Rule
- Commission; and
119, Sec. 18]
- Precise degree of participation.
Amount to an acquittal of the discharged accused;
o E.g. Proof of the possession of recently
Bar future prosecutions for the same offense.
stolen goods taken together with proof of
the commission of the theft, may be and
Exception: If the accused fails/refuses to testify
generally will be sufficient to establish the
against his co-accused in accordance with his sworn
guilt of the accused, if there is nothing in
statement constituting the basis for his discharge.
the record to raise a doubt as to the guilty
character of the possession, though there is
Any error in asking for and in granting the
no presumption to that effect. [U.S. v.
discharge cannot deprive the discharged of the
Catimbang (1916)]
acquittal and the constitutional guaranty against
double jeopardy. [People v. Verceles (2002)]
Effect of denial of motion for leave to file
Subsequent amendment of the information does
not affect discharge. [People v. Taruc (1962)] demurrer
Order denying the motion for leave or order
denying the demurrer itself, is not reviewable by
7. Demurrer to Evidence (1998, 2001, appeal or by certiorari before judgment. [Rule
2004 Bar) 119, Sec. 23]
It is interlocutory, but it may be assigned as error
Definition: Objection by one of the parties to the and reviewed in the appeal that may be taken
effect that the evidence which his adversary from the decision on the merits [Cruz v. People
produced is insufficient in point of law, whether true (1999)]
or not, to make out a case or sustain the issue.
[Gutib v. CA (1999)] Right of the accused to present evidence
after demurrer is denied [Rule 119, Sec. 23]
Purpose: In light of the constitutional right to be
presumed innocent and of the privilege against self- FILED WITH LEAVE OF FILED WITHOUT LEAVE
incrimination [Goldstein, 1960] for the accused to COURT OF COURT
test the sufficiency of prosecutions evidence before May adduce evidence in Waives the right to
presenting his defense. his defense present evidence
Purpose: To determine Submits the case for
There is no material difference between the WON demurrer was filed judgment on the basis of
Motion to Acquit of the accused before the TC and merely to stall the the evidence for the
the demurrer to evidence. The only difference: If proceedings prosecution
the MTD is ordered, it is tantamount to an Implied leave of court is If there are 2 or more
acquittal, but the order of denial of the demurrer no longer sufficient and accused and only one
to evidence is not reviewable by appeal or prevents accused from presents a demurrer
certiorari before judgment. presenting evidence without leave of court,
Purpose: to prevent the filing of demurrer based [e.g. accused files
on frivolous and flimsy grounds. motion with reservation General rule: The court
to present evidence in may defer resolution
How initiated [Rule 119, Sec. 23] case motion is denied] until decision is rendered
By the court motu proprio, after giving the on the other accused
prosecution the opportunity to be heard;
Upon demurrer to evidence filed by the accused: Exception: If it can be
-With leave of court; shown from the decision
-Without leave of court. that the resolution on
the demurrer was
Motion for leave to file demurrer [Rule 119, rendered not only on the
Sec. 23] basis of the
It must specifically state its grounds. prosecutions evidence
It must be filed within a non-extendible period of but also on the evidence
5 days after the prosecution rests. Prosecution adduced by his co-
accused

XII. JUDGMENT
1. Requisites of a judgment
2. Contents of Judgment
3. Promulgation of judgment; instances of
promulgation of judgment in absentia
4. When does judgment become final (four
instances)
1. Requisites of a judgment
Form [Rule 120, Sec. 1]
Written in official language.
- If given verbally, it is incomplete. It does
not have an effect before it was actually
reduced to writing and signed by the judge.
[People v. Catolico (1972)]
- A verbal order dismissing the case can be
rescinded without prejudicing the rights of
the accused No double jeopardy arises.
[Abaya v. Garcia (1988)]
- The remedy for a verbal judgment is to
appeal or file a petition for mandamus to
compel the court to put the decision in
writing.
Personally and directly prepared by the judge.
- Every decision must state distinctly and
clearly the factual and legal basis
therefore. [Art. 8, Sec. 6, Consti]
- Judges must nonetheless be allowed to
synthesize and simplify their decisions
considering the heavy load of trial judges
for as long as there is compliance with
minimum essence of factual and legal
bases.
o He may quote from narration of facts by
the OSG in his brief or memoranda of
both parties and adopt the same as his
own. [Hernandez v. CA (1993)]
o Common sense dictates that he be given
complete liberty to express his opinion,
unrestrained by any fear that a higher
court might call down. [People v.
Meneses (1998)]
Signed by the judge.
- The judge who presided over the entire
trial would be in a better position to
ascertain the truth or falsity of the
testimonies.
- But the judge who only took over can
render a valid decision by relying on the
transcript. It does not violate due process.
[People v. Badon (1999)]
Contains clearly and distinctly a statement of
facts proved and the law upon which judgment
is based.
- There is sufficient compliance if the
decision summarizes the evidence of both
parties, synthesizes the findings and
concisely narrates how the offense was
committed.
- Failure on the part of the TC to make a
finding of fact is a revocable error.
REMEDIAL LAW REVIEWER
- There is no law that requires a specific
finding of facts with respect to the
evidence for the defense. [Reyes v. People
(2006)] 51
Judge who penned the decision need not be the
one who heard the case
The fact alone that the judge who heard the
evidence was not the one who rendered the
judgment but merely relied on the record of the
case does not render his judgment erroneous or
irregular.
The Court generally will not find any
misapprehension of facts as it can be fairly assumed
under the principle of regularity of performance of
duties of public officers that the transcript of
stenographic notes were thoroughly scrutinized and
evaluated by the judge himself. [Concepcion v.
Court of Appeals (2000)]
2. Contents of Judgment
1) Conviction
The judgment of conviction shall state:
(1) The legal qualification of the offense
constituted by the acts committed by the
accused and the aggravating/mitigating
circumstances which attended its commission.
If a decision does not contain a dispositive
portion but the last two paragraphs embody
the courts conclusions, then the decision is
valid. [People v. Valeriano (1993)]
The TC should express not only its
conclusion but also the provision of the law
violated for the purpose of informing the
accused of the nature of the crime and the
law penalizing the same.
There is no need to state the particular
paragraph and article in the RPC, so long as
the offense is clearly understood from the
facts.
Mere failure to specify the particular
provision of law does not invalidate the
decision, if it did actually apply the proper
provision.
(2) The participation of the accused in the offense,
whether as principal, accomplice or accessory
after the fact.
(3) The penalty imposed upon the accused.
The penalty should not be imposed in the
alternative. There should be no doubt as to
the offense committed and the penalty for
it.
(4) The civil liability or damages caused by his
wrongful act/omission to be recovered from the
accused by the offended party, if there is any,
unless the enforcement of the civil liability by a
separate civil action has been reserved/waived.
 REMEDIAL LAW REVIEWER
PROOF BEYOND REASONABLE DOUBT Degree of
proof which produces conviction in an unprejudiced
52 mind. [People v. Bacalzo (1991)]
Judgment for two or more offenses
General rule: Complaint/information must
charge only one offense.
Exception: Cases in which existing laws
prescribe a single punishment for various
offenses.
General rule: Duplicitous information is subject
to a motion to quash.
Exception: Defect is waived when accused fails
to move for quashal.
- THUS, where the accused fails to object to
2 or more offenses charged in a single
information/complaint before trial [Rule
120, Sec. 3], the court may:
o Convict him of as many offenses as are
charged and proved; and
Exception: One of the offenses has
been a necessary means for committing
the other offense and where both have
been the result of a single act.
o Impose on him the penalty for each
offense, setting out separately the
findings of fact and law in each
offense.
Exception: Maximum duration of
offense: Follow the three-fold rule on
the service of penalty.
Judgment in case of variance between allegation
and proof
General rule: The defendant can be convicted
only of the crime with which he is charged.
Rationale: He has the right to be informed of
the nature of the offense with which he is
charged before he is put on trial. [People v.
Guevarra]
However, minor variance between the
information and the evidence:
- Does not alter the nature of the offense;
- Does not determine or qualify the crime or
penalty;
- Cannot be ground for acquittal.
Exception: He can be convicted of an offense
proved provided it is included in the charge, or
of an offense charged which is included in that
which is proved. [Rule 120, Sec. 4]
- The accused can be convicted of an offense
only when it is both charged and proven.
- The mere fact that the evidence presented
would indicate that a lesser offense outside
the courts jurisdiction was committed does
not deprive the court of its jurisdiction,
which had vested in it under the allegations
in the information.
Exception to the exception: Where there are
facts that supervened after the filing of the
information which change the nature of the
offense.
When an offense includes or is included in another
[Rule 120, Sec. 5]
The offense charged necessarily includes the offense
proved when some of the essential
elements/ingredients of the former, as alleged in
the complaint/information, constitute the latter.
An offense charged is necessarily included in the
offense proved when the essential ingredients of the
former constitute or form part of those constituting
the latter.
Effect
The accused shall be convicted of: [Rule 120,
Sec. 4]
1) The offense proved which is included in the
offense charged; or
2) The offense charged which is included in
the offense proved
The right to be informed of the charges has not
been violated because where an accused is
charged with a specific crime, he is duly
informed also of lesser crimes/offenses included
therein. [People v. Villamar (1998)]
Where a complex crime is charged and the
evidence fails to support the charge as to one of
the component offenses, the accused can be
convicted of the one which is proven.
State liability for unjust conviction
The DOJ Board of Claims is authorized to
receive/evaluate/process/investigate claims of
victims of unjust imprisonment/detention and
victims of violent crimes. [RA 7309]
Requirements for compensation:
1) Unjust accusation;
2) Unjust conviction; and
- It is the same as knowingly rendering
an unjust judgment - It is contrary to
law or is not supported by the evidence
and the same is made with conscious
and deliberate intent to do an
injustice. [Art. 204, RPC]
3) Unjust imprisonment.
2) Acquittal
Definition: A finding of not guilty based on the
merits, either:
The evidence does not show that his guilt is
beyond reasonable doubt; or
A dismissal of the case after the prosecution has
rested its case and upon motion of the accused
on the ground that the evidence fails to show
beyond doubt that accused is guilty.
REASONABLE DOUBT Doubt engendered by an
investigation of the whole proof and an inability,
after such investigation, to let the mind rest upon
the certainty of guilt.
Rationale: It is always better to err in acquitting
than in punishing. [People v. Lizada (1993)]

ACQUITTAL DISMISSAL
[Rule 120] [Rule 117]
Terminates the case
Decision on the merits
Not on the merits and no
based on a finding that
finding of guilt is made
the accused is not guilty
The judgment shall state whether:
1) The evidence of the prosecution absolutely
failed to prove the guilt of the accused; or
2) It merely failed to prove his guilt beyond
reasonable doubt.
In either case, the judgment shall determine if
the act or omission from which the civil liability
might arise did not exist.
- #2 does not extinguish the civil liability
arising from his acts, since the civil liability
arose not from a crime but from the
damage caused by such acts, which can be
proven by a lower quantum of evidence.
General rule: The court has authority to express
disapproval of certain acts even if judgment is for
acquittal.
Exception: The court is not permitted to censure
the accused in a judgment for acquittal no matter
how light, a censure is still a punishment.
- No court has the power to mete out
punishment. A finding of guilt must
precede the punishment.
- This reprehension, however, must be
relevant to the issue in the case. If
irrelevant/impertinent, they should be
stricken out or expunged from the record
like any other extraneous matters. [People
v. Meneses (1998)]
Acquittal based on reasonable ground does not
bar a separate civil action based on quasi-delict.
[Lontoc v. MD Transit (1988)]
The Court may hold accused civilly liable even
when it acquits him. Acquittal extinguishes civil
liability only when the judgment includes a
declaration that the facts from which the civil
liability might arise did not exist.
- The court may nonetheless hold the accused
civilly liable in favor of the offended party,
or it may deny the award of civil damages
expressly or impliedly by being silent on the
matter.
- The losing party may appeal the ruling on
the civil liability, as in any other ordinary
appeal, in his name and not in the name of
the People
The Judge acquitting an accused cannot punish
him at the same time
3. Promulgation of judgment;
instances of promulgation of
judgment in absentia (1997 Bar)
REMEDIAL LAW REVIEWER
Promulgation: An official proclamation or
announcement of a judgment or order.
53
Two things are essential and necessary for the valid
promulgation of a court decision:
1. There must be a judge or judges legally
appointed or elected and actually acting either
de jure or de facto, and
2. The said judgment must be duly signed and
promulgated during the incumbency of the judge
who signed it. [Miguel v Municipal Trial Court
(1986)]
Judgment/sentence does not become a
judgment/sentence in law until it is:
1) Read and announced to the defendant; or
2) Has become a part of the record of the court.
[US v. CFI of Manila, 24 Phil 321]
Where there is no promulgation of judgment, no
right to appeal accrues.
Notice for Promulgation
Clerk of Court gives notice to accused personally
or through bondsman or warden and counsel.
If the accused jumps bail or escapes from prison
and was tried in absentia, notice will be served
in last known address. [Rule 120, Sec. 6]
Sin perjuicio judgment: A judgment without a
statement of the facts in support of its conclusion to
be later supplemented by the final judgment. [Dizon
v. Lopez (1997)]
Merely reading the dispositive portion of the
decision is not sufficient.
Judgment must state the facts and the law on
which it is based.
While SC has expressed approval of the practice
of some judges withholding the dispositive
portion from their opinions until the very last
moment of promulgation in order to prevent
leakage, such refers to the preparation of the
decision and not to promulgation.
There is no more reason to keep it a secret at
the stage of promulgation.
a. Promulgation where judge is absent [Rule 120,
Sec. 6]
The judgment may be promulgated by the clerk of
court when the judge is absent or outside the
province or city.
b. Presence of accused required; exception [Rule
120, Sec. 6]
General rule: Presence of the accused is mandatory.
Exception: convictions for light offenses
Conviction for He may appear through
light offense counsel/representative
Promulgation in
To prevent subversion of judicial
process and enable enforcement
absentia
of civil liability
 REMEDIAL LAW REVIEWER
No appeal is necessary; judgment
is final and executory
54 - Note the old rule that presence
Verdict of
of the accused during
acquittal
promulgation of judgment is
required only in case of
conviction
If the judgment is for conviction and the failure
of the accused to appear was without justifiable
cause, he shall lose the remedies available in
the ROC against the judgment and the court
shall order his arrest.
- However, within 15 days from promulgation
of judgment, he may surrender and file a
motion for leave of court to avail of these
remedies. He shall state the reasons for his
absence.
- If he proves his absence was for a justifiable
cause, shall be allowed to avail of the
remedies within 15 days from notice.
Promulgation when accused is
confined/detained in another city
- It will be done in the RTC who has
jurisdiction over the place of confinement.
Failure to appear at the scheduled date of
promulgation
- Promulgation is made by recording the
judgment in the criminal docket and serving
a copy at the accuseds last known address
or through counsel.
Promulgation date where judge no longer a
judge is void.
- If at the time of the promulgation, the
judge penning the decision has ceased being
a judge of the court, the decision would not
be an act of the court. [People v.
Dimalanta]
- Promulgation by a succeeding judge
produces no legal effect since it cannot
restore validity to a document already void.
4. When does judgment become final
(four instances) [Rule 120, Sec. 7]
Judgment becomes final:
1) After the lapse of the period for perfecting an
appeal;
2) When the sentence has been partially/totally
satisfied or served;
3) The accused has expressly waived in writing his
right to appeal, or
4) When the accused applies for probation, and
thereby waives right to appeal. [Regalado]
Exception: cases where death penalty was
imposedautomatic review; judgment does not
become final after the promulgation and by the
TCs issuance of a commitment order.
Before the judgment becomes final, the TC has
plenary power to make, either on motion or
motu proprio, such amendment or alterations as
it may deem best, within the frame of law, to
promote the ends of justice.
After finality, the TC is divested of authority to
amend/alter the judgment, except to correct
clerical errors.
When judgment of acquittal becomes final
It is immediately final and executory.
The State may not seek its review without
placing the accused in double jeopardy.
XIII. NEW TRIAL OR
RECONSIDERATION
1. Grounds for New Trial
2. Grounds for Reconsideration
3. Requisites before a new trial may be
granted on ground of newly discovered
evidence
4. Effects of granting a new trial or
reconsideration
5. Application of Neypes Doctrine in Criminal
Cases
1. Grounds for New Trial [Rule 121,
Sec. 2]
That errors of law or irregularities prejudicial to
the substantial rights of the accused have been
committed during the trial;
General rule: Error of the defense counsel in
the conduct of the trial is neither an error of
law nor an irregularity.
Exception: Acquittal would in all probability
have followed the introduction of certain
testimony which was not submitted at the trial
under improper or injudicious advice of
incompetent counsel.
- Irregularities must be with such seriousness
as to affect prejudicially the substantial
rights of the accused.
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.
2. Grounds for Reconsideration
Errors of law or fact in the judgment, which
requires no further proceedings. [Rule 121, Sec.
3]
Rationale: To afford the TC the opportunity to
correct its own mistakes and to avoid
unnecessary appeals.
3. Requisites before a new trial may
be granted on ground of newly
discovered evidence
 REMEDIAL LAW REVIEWER

Requisites: That the evidence - [Jose v. CA (1997)] GROUND EFFECT COURT MAY
a) Was discovered after the trial; Newly- Evidence Allow
b) Could not have been discovered and produced at discovered already introduction of
the trial even with the exercise of reasonable evidence adduced shall other such 55
diligence. [US v. Pico (1982)] stand and the evidence in the
Burden of proving this is on the accused. newly- interest of
[US v. Torrente (1922)] discovered and justice
c) Is material, not merely such other
cumulative/corroborative/impeaching; and evidence shall
d) Is of such weight that it would probably change be taken and
the judgment if admitted. considered
It must be of weighty influence and will together with
affect the result of the trial. [People v. the evidence
Alfaro (2003)] already in the
record
Exceptions:
Interest of justice as gauge for introduction of Remedy against GAD in granting MNT/MFR:
new evidence Certiorari or prohibition. Otherwise, the prosecution
- In People v. Almendras (2003), the court may no longer have opportunity to question the
ruled that a motion for a new trial may be order if accused is acquitted after a new trial is
granted on a ground not specifically conducted (because there will be double jeopardy).
provided in the rules, provided that it is [Luciano v. Estrella (1970)]
sought in the interest of justice. In that
case, the relief of a new trial was granted 5. Application of Neypes Doctrine in
to a client who has suffered by reason of
his/her counsels gross mistake and Criminal Cases
negligence.
When there is variance in 2 reports Fresh Period to Appeal after Denial of MNT/MR.
- In People v. del Mundo (1996), the court Henceforth, this fresh period rule shall also apply
allowed the presentation in a new trial of a to Rule 40 governing appeals from the Municipal
police report, not new, and which could Trial Courts to the Regional Trial Courts; Rule 42 on
have been discovered with due diligence, petitions for review from the Regional Trial Courts to
because the evidence contained in such was the Court of Appeals; Rule 43 on appeals from quasi-
at such variance with the health officers judicial agencies to the Court of Appeals and Rule 45
report at trial, that its contents raised governing appeals by certiorari to the Supreme
doubts to the guilt of the accused. Court. (Neypes v. CA, 2005)

4. Effects of granting a new trial or

reconsideration [Rule 121, Sec. 6] XIV. APPEAL
1. Effect of an Appeal
In all cases: 2. Where to appeal
The original judgment set aside or vacated; 3. How appeal taken
A new judgment is rendered accordingly.
4. Effect of appeal by any of several accused
Specific effects when granted upon different
grounds: 5. Grounds for dismissal of appeal

GROUND EFFECT COURT MAY 1. Effect of an Appeal

Errors of law or All proceedings Allow An appeal in a criminal proceeding throws the whole
irregularities and evidence introduction of case open for review and it becomes the duty of the
committed affected shall additional appellate court to correct an error as may be found
during the trial be set aside evidence in the in the appealed judgment, WON it is made the
and taken interest of subject of assignment of errors. [People v. Calayca
anew justice (1999)]

If error or 2. Where to appeal [Rule 122, Sec. 2]

irregularity
goes into the APPEAL IN FOR CASES DECIDED BY
jurisdiction,
The RTC MTC/MeTC/MCTC
the entire
The RTC or MTC/MeTC/MCTC (if it is
proceeding is
Sandiganbayan government duty-related - i.e.
void and must
filed under EO 1, 2, 4 and 14-A)
be set aside
The CA RTC (if it involves questions of fact
and of law)
 REMEDIAL LAW REVIEWER

APPEAL IN FOR CASES DECIDED BY 2) Criminal cases governed by the Revised Rules on
The SC RTC Summary Procedure.
56 a) If it involves questions of law
only Offenses falling under the MTC/MCTCs
b) If it involves constitutionality Jurisdiction: [Salcedo v. Nobles-Bans (1985)]
or validity of any - Notwithstanding the uniform procedure
treaty/law/ordinance/EO/ rule, if the offense falls under the
regulation or the jurisdiction jurisdiction of the MTC/MCTC,
of the inferior court complaint/information may be filed directly
c) In criminal cases involving with said courts or with the City
offenses for which the penalty Prosecutors Office.
imposed is death or life Offenses falling under the MeTCs Jurisdiction:
imprisonment [Salcedo v. Nobles-Bans (1985)]
d) Other offenses, which, - In Metro Manila and other chartered cities,
although not so punished, criminal cases shall be commenced only by
arose out of the same information; thus, the complaint may be
occurrence or which may have filed only with the Office of the City
been committed by the Prosecutor
accused on the same occasion, - If the case is directly filed with the court,
as that giving rise to the more the case should not be dismissed. The court
serious offense should just refer it to the City Prosecutor
The SC CA or Sandiganbayan for the filing of the corresponding
information.
3. How appeal taken Cases governed by the Revised Rules on
Summary Procedure:
[Rule 122, Sec. 6 and 9] a) Violations of traffic laws/ rules/
regulations;
b) Violations of the rental law;
When appeal to be taken
c) Violations of municipal/city ordinances;
Within 15 days from promulgation of the judgment
d) Violations of BP 22;
or from notice of the final order appealed from.
e) All other criminal cases where the penalty
is imprisonment not exceeding 6 months or
The period to appeal shall be suspended from the
a fine not exceeding P1,000 or both,
time a MNT or MR is filed until notice of the order
irrespective of other imposable penalties
overruling the motion has been served upon the
(accessory or otherwise) or of the civil
accused or his counsel.
liability arising from it.
However, in offenses involving damage to
Transmission of record to RTC property through criminal negligence where
Within 5 days from perfection of the appeal, the imposable fine does not exceed P 10,000, the
COC shall transmit the original record to the Uniform Procedure Rule shall govern (i.e. it is
appropriate RTC. not governed by Revised Rules on Summary
Procedure).
Notification of parties Revised Rules on Summary Procedure also does
Upon receipt of the complete record, TSN and not apply to criminal cases where the offense
evidence of the case, the RTC COC shall notify the charged is necessarily related to another
parties of such fact. criminal case subject to the ordinary procedure.

Submission of memoranda/briefs The Revised Rules on Summary
Within 15 days from receipt of said notice, the
Procedure
parties may submit memoranda/briefs, or may be
required by the RTC to do so.
I. Commencement of action [Sec. 11]

Decision The filing of the criminal case shall be either by
After submission of such memoranda/briefs or upon complaint or by information.
the expiration of the period to file the same, the - However, in Metropolitan Manila and in
RTC shall decide the case on the basis of the entire chartered cities, commencement shall be
record of the case and of such memoranda/briefs as only be by information.
may have been filed. Exception: When the offense cannot be
prosecuted de oficio.
[Rule 123, Sec. 1] The complaint/information shall be
General rule: The procedure to be observed in the accompanied by the affidavits of the complaint
MeTC/MTC/MCTC shall be the same as that in the and of his witnesses.
RTC. - No. of copies = [No. of accused + 2 copies
for the courts files]
Exceptions: - If the required no. of copies is not complied
1) Where a particular provision applies only to with within 5 days from date of filing, the
either of said courts; case may be dismissed.

II. Referral to Lupon [Sec. 18]
If the case requires referral to the Lupong
Tagapamayapa under PD 1508 and this is not
complied with, it shall be dismissed without
prejudice. The case may be revived only after
compliance with the requirement.
Exception: Criminal cases of warrantless arrest.
III. Courts duty [Sec. 12]
If commenced by complaint:
- Based on the complaint/ affidavits/
evidence, the court may dismiss the case
outright for being patently without
basis/merit and order the release of the
accused (if in custody).
If commenced by information or if not dismissed
according to #1:
- The court shall order the accused to submit
his counter-affidavit and the affidavits of
his witnesses as well as any evidence on his
behalf (with copies served on the
complainant/prosecutor) not later than 10
days from receipt of order.
- The prosecution may file reply affidavits
within 10 days after receipt of the counter-
affidavits.
IV. Prohibited pleadings and motions [Sec. 19]
(1) MTD;
Exception: On grounds of either:
a) LOJ over subject matter;
b) Failure to refer to Lupon.
(2) Motion for bill of particulars;
(3) MNT/MR or motion for re-opening of trial;
(4) Petition for relief from judgment;
(5) Motion for extension to file;
(6) Memoranda;
(7) Petition for certiorari/mandamus/prohibition
against any interlocutory order;
(8) Motion to declare defendant in default;
(9) Dilatory motions for postponement;
(10) Reply;
(11) 3rd-party complaints;
(12) Interventions.
V. Arraignment [Sec. 13]
If the court finds no cause/ground to hold the
accused for trial, it shall order the dismissal of
the case; otherwise, the court shall set the case
for arraignment and trial.
If the accused is in custody for the crime
charged, he shall be immediately arraigned. If
he enters a plea of guilty, he shall forthwith be
sentenced.
VI. Preliminary conference [Sec. 14]
Before conducting the trial, the court shall call
the parties to a preliminary conference for:
(1) Stipulation of facts;
- Refusal/failure to stipulate shall not
prejudice the accused.
REMEDIAL LAW REVIEWER
(2) Plea bargaining;
- No admission by the accused shall be
used against him unless reduced to
writing and signed by the accused and 57
his counsel.
(3) Other matters to clarify the issues and to
ensure a speedy disposition of the case.
VII. Trial [Sec. 15]
The submitted affidavits shall constitute the
direct testimonies of the witnesses/affiants.
They shall be subject to cross, re-direct and re-
cross examinations.
If the affiant fails to testify, his affidavit will
not be considered as competent evidence for
the party presenting his affidavit. However, the
adverse party may utilize his affidavit for any
admissible purpose.
A witness cannot testify unless his affidavit was
previously submitted to the court according to
Sec. 12.
- Exception: On rebuttal or sur-rebuttal.
If a party wishes to present additional
affidavits/counter-affidavits, he should so
manifest (and his purpose) during the
preliminary conference.
If the court allows the additional
affidavits/counter-affidavits, they shall be
submitted to the court and served on the
adverse party within 3 days from the
termination of the preliminary conference.
If it is the prosecution who submits additional
affidavits, the defense may file counter-
affidavits thereto (copy furnished the
prosecution) within 3 days from service.
VIII.Arrest of the accused [Sec. 16]
The court shall not order the arrest of the
accused.
- Exception: For failure to appear whenever
required.
Release of the accused shall be by bail or on
recognizance.
IX. Judgment [Sec. 17]
If trial was conducted, the court shall promulgate
judgment within 30 days after termination of trial.
X. Appeal [Sec. 21]
Judgment may be appealed to RTC per Sec. 22, BP
129.
Procedure in the CA
a. Parties and title [Rule 124, Sec. 1]
In all criminal cases appealed to the CA:
- APPELLANT The party appealing;
- APPELLEE The party adverse to the
appellant.
The title of the case shall remain as it was in
the court of origin (i.e. People v. John Doe).
 REMEDIAL LAW REVIEWER
b. Appointment of counsel de oficio [Rule 124,
Sec. 2]
58
The counsel de oficio cannot dismiss the appeal and
[US v. Lafuente (1918)] neither can he admit findings
of fact by the TC without the consent of his client
[People v. Isaac (1952)].
c. Brief for appellant [Rule 124, Sec. 3]
Appellant shall file 7 copies of his brief with the
clerk of court, accompanied by proof of service
of 2 copies on the appellee.
It shall be filed within 30 days from receipt by
the appellant (his counsel) of the CA clerk of
courts notice that the evidence is already
attached to the record.
Purpose: To show grounds for reversal of
judgment and to point out the
errors/irregularities in the lower courts
proceedings.
d. Brief for appellee [Rule 124, Sec. 4]
Appellee shall file 7 copies of his brief with the
clerk of court, accompanied by proof of service
of 2 copies on the appellant.
It shall be filed within 30 days from receipt of
the appellants brief.
Purpose: To meet/refute the appellants
submissions.
e. Reply to appelles brief [Rule 124, Sec. 4]
Appellant may (i.e. optional) file a reply brief
covering matters raised in the appellees brief
but not in the brief of the appellant.
It must be filed within 20 days from receipt of
the appellees brief.
f. Extension of time for filing briefs [Rule 124,
Sec. 5]
General rule: Extension of time for the filing of
briefs is not allowed
- Exception: for good and sufficient cause
It is sought through a motion for extension,
which must be filed before the expiration of the
time sought to be extended.
Grant of extension rests on the courts
discretion. [Piedad v. Batuyong (1974)]
Court may grant as many extensions as may be
asked. [Gregorio v. CA (1976) ]
g. Form of briefs [Rule 124, Sec. 6]
Briefs shall be printed/encoded/ typewritten, in
double space, on legal size good quality
unglazed paper, 330mm in length by 216mm in
width.
Mimeographed copies are not allowed.
h. Contents of brief
The briefs in criminal cases shall have the same
contents as provided in Rule 44, Sec. 13-14. [Rule
124, Sec. 7]
1. Appellants brief:
[Rule 44, Sec. 13]
a) SUBJECT INDEX Digest of the arguments and
page references, and a table of: (1) cases
alphabetically arranged; and (2) books and
statutes cited, with references to the pages
where they are cited.
b) ASSIGNMENT OF ERRORS Errors urged
separately, distinctly and concisely; stated
without repetition and numbered consecutively.
c) STATEMENT OF THE CASE Clear and concise
statement of the nature of the action, a
summary of the proceedings, the appealed court
rulings and orders, the nature of the judgment
and any other matters necessary to an
understanding of the nature of the controversy,
with page references to the record.
d) STATEMENT OF FACTS Clear and concise
narrative statement of the facts admitted by
both parties and of those in controversy,
together with the substance of the related
proof, in sufficient detail to make it clearly
intelligible and with page references to the
record.
e) ISSUES Clear and concise statement of issues of
fact/law submitted to the court for its
judgment.
f) ARGUMENTS Appellants arguments on each
assignment of error, with page references to the
record. The authorities relied upon shall be
cited by the page of the report at which the
case begins and the page of the report on which
the citation is found.
g) RELIEF Specification of the order/judgment
which the appellant seeks. In cases not brought
up by record on appeal, the appellants brief
shall contain (as an appendix) a copy of the
judgment or final order appealed from.
h) Attachment: Certified true copy of the decision
or final order appealed from. [Rule 124, Sec. 7]
2. Appellees brief:
[Rule 44, Sec. 14]
a) Subject index.
b) STATEMENT OF FACTS Statement that appellee
accepts the statement of facts in the
appellants brief; or COUNTER-STATEMENT OF
FACTS Points out the
insufficiencies/inaccuracies appellee believes to
exist in the appellants statement of facts, with
references to the supporting pages of the
record. Matters in the appellants statement of
facts should not be repeated.
c) ARGUMENTS Appellees arguments on each
assignment of error, with page references to the
record. The authorities relied upon shall be
cited by the page of the report at which the
case begins and the page of the report on which
the citation is found.
i. Dismissal of appeal for abandonment or failure
to prosecute [Rule 124, Sec. 8]
Grounds:
Appellant fails to file his brief within the
prescribed time;
Exception: Where the appellant is
represented by a counsel de oficio.

- If failure to file brief on time is the ground,
appellant must be given notice to give him
opportunity to reason out why his appeal
should not be dismissed.
o However, dismissal is proper despite lack
of notice:
a) If appellant has filed a MFR or motion
to set aside the order dismissing the
appeal, in which he stated the reason
why he failed to file his brief on time
and the appellate court denied the
motion after considering reason.
[Baradi v. People (1948)]
b) If appeal was dismissed without notice
but appellant took no steps to have
the appeal reinstated. Such action
amounts to abandonment. [Salvador
v. Reyes (1949)]
If the appellant escapes from
prison/confinement, jumps bail or flees to a
foreign country during the pendency of the
appeal.
- Rationale: Escape of appellant during the
pendency of the appeal implies a
withdrawal of the appeal. Hence, judgment
of the TC becomes final. [US v. Ravidas
(1905)]
- Likewise, when accused flees after the case
has been submitted for decision, he is
deemed to have waived his right to appeal.
[People v. Ang Gioc (1941)]
o Exception: Appeal will not be dismissed
despite escape:
a) In one exceptional case, the appellant
took advantage of a mass jailbreak
(because, according to his counsel de
oficio he was innocent and wanted to
elude an unjust punishment) but was
recaptured 2 hours after, the SC said
circumstances were not sufficient to
justify dismissal of the appeal.
[People v. Valencia (1949)]
b) If there was absolutely no evidence
against the accused as found by the
appellate court, he should be
acquitted in order to prevent an
injustice by technicalities. [People v.
Buenaventura (1994)]
c) In case of automatic review. [People v.
Cornelio (1971)]
CA may dismiss the appeal upon appellees
motion or motu proprio.
Prompt disposition of appeal
[Rule 124, Sec. 9]
Appeals of accused who are under detention are
given precedence in their disposition over other
appeals.
The CA shall hear and decide the appeal at the
earliest practicable time with due regard to the
parties rights.
The accused need not be present in court during
the hearing of the appeal.
- Proceedings on appeal will not be stayed in
a criminal case on account of the absence
of the accused as his presence is not
necessary at said hearing. [US v. Lewis]
REMEDIAL LAW REVIEWER
Reversal / modification of judgment on appeal
[Rule 124, Sec. 10]
General rule: No judgment shall be 59
reversed/modified.
- Exception: When the CA, after an
examination of the record and of the
parties evidence, is of the opinion that
error was committed and such error
injuriously affected the appellants
substantial rights.
When it involves credibility of witnesses,
appellate courts will not generally disturb the
TCs findings.
Rationale: The TC is in a better position to
decide the question, having seen and heard the
witnesses themselves. [People v. Cabiling
(1976)]
Scope of CAs judgment
[Rule 124, Sec. 11]
The CA may:
1) Reverse/affirm/modify the judgment;
2) Increase/reduce the penalty imposed by the TC;
3) Remand the case to the RTC for new trial or
retrial;
4) Dismiss the case.
- When the accused appeals from the
sentence of the TC, he waives the
constitutional safeguard against double
jeopardy and throws the whole case open to
the review of the appellate court, which is
then called upon to render such judgment
as law and justice dictate, WON favorable
to the accused and WON made the subject
of assignment of errors. [Ko Bu Lin v. CA
(1982)]
CAs power to receive evidence
[Rule 124, Sec. 12]
The CA has power to try cases and conduct
hearings, receive evidence and perform any and
all acts necessary to resolve factual issues in
cases:
1) Falling within its original jurisdiction;
2) Involving claims for damages arising from
provisional remedies;
3) Where the court grants a new trial based
only on the ground of newly-discovered
evidence.
CAs trials and hearings must be continuous and
completed within 3 months, unless extended by
the Chief Justice.
Quorum in the CA
[Sec. 11, BP 129]
3 CA Justices constitute a quorum for the
sessions of a division.
The unanimous vote of the 3 Justices of a
division is necessary for the pronouncement of a
judgment or final resolution
Decision is reached through a consultation
before the writing of the opinion by a member
of the division.
If there is lack of unanimity, the Presiding
Justice shall direct the CA raffle committee to
designate 2 additional Justices to sit temporarily
 REMEDIAL LAW REVIEWER
with them. They shall then form a special
division of 5 members.
60 - The concurrence of a majority of that
special division is necessary for the
pronouncement of a judgment or final
resolution.
- Designation of the additional Justices shall
be made strictly by raffle and rotation
among all other CA Justices.
Certification or appeal of cases to the SC
[Rule 124, Sec. 13]
1) If the CA finds that death penalty should be
imposed:
AUTOMATIC REVIEW CA shall render
judgment but refrain from making an entry
of judgment. It shall then certify the case
and elevate its entire record to the SC for
review. The accused does not have to do
anything.
Note: Death penalty has been abolished.
2) If the judgment also imposes a lesser penalty for
offenses committed on the same occasion or
which arose from the same occurrence that gave
rise to the more severe offense for which death
is imposed, and the accused appeals:
The appeal shall be automatically included
in the case certified for review in the SC
3) If the CA imposes reclusion perpetua, life
imprisonment or a lesser penalty:
It shall render and enter judgment imposing
such penalty.
Appeal here is not automatic. The accused
has to file a notice of appeal with the CA.
Judgment transmitted and filed in TC
When the CAs entry of judgment is issued, a
certified true copy of the judgment shall be
attached to the original record. These shall be
remanded to the clerk of the court from which
the appeal was taken. [Rule 124, Sec. 17]
This copy of the entry serves as the formal
notice to the court from which the appeal was
taken of the disposition of the case in the
appellate court, so that the judgment may be
executed and/or placed or noted in the proper
file.
MNT during the pendency of appeal in the CA
[Rule 124, Sec. 14]
Appellant may file MNT on the ground of newly
discovered evidence material to his defense any
time:
- After the appeal from the lower court has
been perfected, but
- Before the CA judgment convicting him
becomes final.
The motion shall conform to Rule 121, Sec. 4.
If the CA grants a MNT, it may either: [Rule 124,
Sec. 15]
1) Conduct the hearing and receive evidence;
2) Refer the trial to the court of origin.
MFR of CA judgment
[Rule 124, Sec. 16]
MFR may be filed within 15 days from notice of
the CA judgment or final order, with copies
served on the adverse party.
The mittimus shall be stayed during the MFRs
pendency.
- General rule: No party shall be allowed a
2nd MFR of a judgment or final order. [Sec.
11, BP 129]
- Exception: Where the 1st MFR resulted in a
reversal or substantial modification of the
original decision or final resolution.
In this case, the party adversely
affected by the reversal/modification may
himself file a MFR of the latest judgment of
the court, because with respect to him, said
motion is a first pleading of that nature.
Applicable civil procedure rules
[Rule 124, Sec. 18]
Provisions of Rules 42, 44-46 and 48-56 relating to
procedure in the CA and the SC in original and
appealed civil cases, shall be applied to criminal
cases insofar as they are applicable and not
inconsistent with the provision of this Rule.
Procedure in the SC
a. Uniform procedure
[Rule 125, Sec. 1]
General rule: The procedure in the SC in original
and in appealed cases shall be the same as in the
CA.
Exception: If the Constitution or law provides
otherwise.
b. What the SC may do on review
In a criminal case, an appeal to the SC throws
open the whole case for review and it becomes
its duty to correct such errors as may be found
in the judgment appealed from, WON they were
assigned as errors. [People v. Olfindo (1924)]
It may examine the judgment as to the
qualification of the crime and the degree of the
penalty imposed. [Macali v. Revilla (1926)]
It may also assess and award civil indemnity.
[Quemel v. CA (1946)]
c. Ways by which a case may reach the SC
i. Automatic review
It is not a matter of right on the part of the
accused, but a matter of law.
Hence, the escape of the accused does not
relieve the SC of the burden of
automatically reviewing the case. [US v.
Laguna (1910)]
When available:
- When the RTC judgment upon the
accused imposes death penalty. [Rule
122, Sec. 10]
- When the RTC decision is appealed to
CA and the latter is of the opinion that
the penalty imposed should be death or
life imprisonment. CA judgment is
imposed but no entry of judgment is
made; instead, the case is certified and
the entire record is elevated to the SC
for review. [Rule 124, Sec. 13]

ii. Ordinary appeal
When available:
When the penalty imposed by the RTC
is life imprisonment, decision is
appealable directly to the SC by filing a
notice of appeal with the RTC. [Rule
122, Sec. 3]
When an accused was charged with 2 or
more offenses committed on the same
occasion or arising out of the same
occurrence, and in one of those 2
cases, he was sentenced to life
imprisonment or death penalty, the
appeal with respect to the others,
though punished with a lesser penalty,
is to the SC. [Rule 122, Sec. 3]
When the penalty of reclusion perpetua
or death is imposed on some of the
defendants and a lesser penalty on the
other co-defendants, on account of
their varying degree of participation in
the commission of the offense or due to
the presence of modifying
circumstances, in which case the
decision on the non-life convicts is
directly appealable to the SC. [People
v. Carino]
In these cases, the SC reviews not only
errors of law but also the findings of
fact by the TC.
iii. Petition for review on certiorari
When available:
- When constitutionality/validity of any
treaty, executive agreement, law,
ordinance or executive order or
regulation is in question.
o When validity of law is questioned
by an accused convicted under it
by the TC, the SC cannot review
the evidence or pass upon any
other question of law which may
appear on the record, but will only
confine itself to the question of
the in/validity of that law.
[Trinidad v. Sweeney (1904)]
- When the jurisdiction of any inferior
court is in issue.
- When only an error or question of law is
involved.
- On decisions of the CA and the
Sandiganbayan.
o As a rule, review here is limited to
errors of law.
General rule: Certiorari is used to correct
only errors of jurisdiction and not errors of
judgment of an inferior court. For errors of
judgment, ordinary appeal is available.
Exception: Cases where certiorari is
granted despite existence of the remedy of
appeal:
1. Where public welfare and advancement
of public policy so dictate.
2. Where the broader interests of justice
so require.
REMEDIAL LAW REVIEWER
3. Where the orders complained of were
found to be completely null and void.
4. Where appeal was not considered as
the appropriate remedy. 61
d. Failure to specify appellate court
Failure of appellant to specify in his notice of appeal
the court to which the appeal is being made is not
fatal. [RA 296]
e. Erroneous choice / mode of appeal
In the case of People v. Resuello (1969), the
contention of the adverse party that the
ordinary appeal filed by appellant shall be
dismissed because the proper remedy is petition
for review on certiorari (only questions of law
were involved) was rejected.
The SC said that in cases similarly situated, and
as long as the steps formally required for the
perfection of an appeal were taken in due time,
appeal may be given due course, without
prejudice to requiring the appellant to file the
necessary petition for review on certiorari which
is also a form of appeal.
f. Review of CA decisions
The procedure for the review by the SC of CA
decisions on criminal shall be the same as in
civil cases. [Rule 125, Sec. 2]
General rule: The SCs appellate jurisdiction in
cases brought to it from the CA is limited to
reviewing and revising the errors of law incurred
by the latter.
- The CAs findings of fact are final.
- If an appeal in the SC involves questions of
facts, the SC has no jurisdiction and should
dismiss appeal. [Guico v. Mayuga (1963)]
- Exception: [Vargas v. CA; Napolis v. CA
(1972)]
o When the conclusion is a finding founded
entirely on
speculations/surmises/conjectures;
o When the inference made is manifestly
mistaken/absurd/impossible;
o When there is GAD;
o When the judgment is based on a
misapprehension of facts;
o When the findings of facts are conflicting;
o When the CA, in making its findings, went
beyond the issues of the case and the
same are contrary to the admissions of
both appellant and appellee.
g. Decisions if opinion is equally divided
[Rule 125, Sec. 3]
When the SC en banc is equally divided in
opinion or the necessary majority cannot be had
on WON to acquit the appellant, the case shall
again be deliberated upon.
- If no decision is reached after re-
deliberation, the lower courts judgment of
conviction shall be reversed and the
accused is acquitted.
If case is decided by a division of the SC whose
members are equally divided, the case shall be
heard and decided by the SC en banc.
 REMEDIAL LAW REVIEWER
h. Constitutional provisions on SC composition
[Art. 8, Sec. 4, Consti]
62 SC Composition: 1 Chief Justice + 14 Associate
Justices.
SC may sit en banc or (in its discretion) in
divisions of 3, 5 or 7 members.
No doctrine or principle of law laid down by the
SC in a decision rendered en banc or in division
may be modified/reversed.
4. Effect of appeal by any of several
accused [Rule 122, Sec. 11]
General rule: An appeal taken by one or more
of several accused shall not affect those who did
not appeal.
- As to the appealing party, the execution of
judgment appealed from is stayed upon the
perfection of the appeal.
- As to the co-accused who did not appeal,
the judgment of the TC insofar as it relates
to him becomes final and the appellate
court has no power to interfere with it.
[Salvatierra v. CA (1996)]
Exception: Insofar as the judgment of the
appellate court is favorable and applicable to
those who did not appeal or who withdrew his
appeal. [People v. Escano]
The appeal of the offended party from the civil
aspect shall not affect the criminal aspect of
the judgment or order appealed from.
5. Grounds for dismissal of appeal
When appeal by the people will not lie
The People/State cannot appeal when it will put
the accused in double jeopardy. The
constitutional mandate against double jeopardy
prohibits not only a subsequent prosecution in a
new and independent cause but extends also to
appeal in the same case by the prosecution
after jeopardy had attached. [Republic v. CA]
The prosecution cannot appeal from a judgment
of acquittal
- Rationale: A verdict of that nature is
immediately final and to try on the merits,
even in an appellate court, places the
accused in double jeopardy. [Central Bank
v. CA (1989)]
Dismissal of case upon filing of demurrer by the
accused was held to be final even though based
on erroneous interpretation of the law. Hence,
an appeal therefrom by the prosecution would
constitute double jeopardy. [US v. Kilayko
(1916)]
Where the TC has jurisdiction but mistakenly
dismisses the complaint/information on the
ground of lack of it, the order of dismissal is
unappealable. [People v. Duran (1960)]
An appeal by the People will not lie if the
purpose is to correct the penalty imposed by the
trial court or to include in a judgment a penalty
erroneously omitted. [People v. Paet (1956)]
The preclusion against appeal by the State from
judgments or final orders having the effect of
acquittal, applies even though accused did not
raise question of jeopardy. [People v. Ferrer
(1956)]
XV. SEARCH AND SEIZURE
1. Nature of search warrant
2. Distinguish from warrant of arrest
3. Application for search warrant, where
filed
4. Probable Cause
5. Personal examination by judge of the
applicant and witnesses
6. Particularity of place to be searched and
things to be seized
7. Personal property to be seized
8. Exceptions to search warrant
requirement
a. Search incident to lawful arrest
b. Consented search
c. Search of moving vehicle
d. Checkpoints; body checks in airport
e. Plain view situation
f. Stop and frisk situation
g. Enforcement of custom laws
9. Remedies from unlawful search and
seizure
1. Nature of search warrant
Concept
Definition
It is an order in writing; issued in the name of the
People of the Philippines; signed by a judge; and
directed to a peace officer, commanding him to
search for personal property described in the
warrant and bring it before the court. (Rule 126,
Sec. 1)
If it is without the judges signature: it is fatally
defective.
Nature of a Search Warrant
A search warrant (SW) is in the nature of a criminal
process akin to a writ of discovery, employed by the
state to procure relevant evidence of a crime.
[Malaloan v. CA (1994)]
A search warrant is in the nature of a criminal
process, and may be invoked only in furtherance
of public prosecutions;
Search warrants have no relation to civil process
or trials; and
They are not available to individuals in the
course of civil proceedings;
It is not for the maintenance of any mere
private right;
It is interlocutory in character it leaves
something more to be done, which is the
determination of the guilt of the accused.
 REMEDIAL LAW REVIEWER

character of the articles procured [Rodriguez v.

Constitutional Safeguard against Unreasonable Villamiel (1937)]
Search and Seizures
Constitutional Protection is Against Public 63
Rule 126 is an implementation of Art. III, Sec. 2 Officers Acts, Not Private Persons
of the 1987 Constitution.
- The right of the people to be secure in their People v. Marti (1991); also People v. Bongcarawan
persons / houses / papers / effects against (2002): Search and seizure clauses are restraints
unreasonable searches and seizures of upon the government and its agents, not upon
whatever nature or for any purpose shall private individuals.
not be violated.
- No search warrant or warrant of arrest In the case at bar, the evidence was primarily
shall issue except upon probable cause to discovered by a private person, acting in a private
be determined personally by the judge after capacity and without the intervention and
the examination under oath/affirmation of participation of state authorities.
the complaint and the witness he may
produce, and particularly describing the The private person made an inspection as part of a
place to be searched, and the reasonable standard operating procedure / a
things/persons to be seized. (Art. III, Sec. precautionary measure before delivery of packages
2, 1987 Const.) to the Bureau of Customs. The mere presence of the
- The privacy of communication and NBI agents did not convert the reasonable search
correspondence shall be inviolable except into a warrantless search and seizure proscribed by
upon lawful order of the court, or when the constitution.
public safety/order requires otherwise, as
prescribed by law. (Art. III, Sec. 3, 1987 However, if the private person is acting upon orders
Const.) of government officials, the principle of agency
applies, because in fact such private person is acting
Exclusionary rule: Any evidence obtained in in the interest of government, and is therefore
violation of this or the preceding section shall subject to the prohibition against unreasonable
be inadmissible for any purpose in any searches and seizures.
proceeding. (Art. III, Sec. 3, Par. 2, 1987
Const.) General rule: Search of property is unreasonable
unless it has been authorized by a valid search
Doctrine of attenuation: Despite the illegality warrant.
in obtaining evidence, such evidence may be
admissible if the connection between the Exceptions: Valid warrantless searches.
evidence and the illegal method is sufficiently
remote or attenuated so as to dissipitate the 2. Distinguish from warrant of arrest
taint [Wong Sun v. US (1963)]
Search Warrant Warrant of Arrest
Rationale Will be issued only upon The witness must be
- What is sought to be guarded is mans probable cause in examined personally by
prerogative to choose who is allowed entry
connection with one the judge.
to his residence. His privacy must not be
specific offense to be
disturbed by the government, except in
determined by the judge
cases of overriding social need, and then
or such other responsible
only under the stringent procedural officers authorized by
safeguards. [Villanueva v. Querubin (1972)] law.
- A mans house is his castle. However, he
Examination under oath Examination must be
may not use his castle as a citadel for
or affirmation of the under oath.
aggression against his neighbors, nor can he
complaint and the
within its walls create such disorders as to
witnesses he may
affect their peace. [US v. Vallejo (1908)]
produce.
It must particularly Examination must be
This constitutional guarantee is NOT a blanket
describe the place to be reduced to writing in the
prohibition against ALL searches and seizures. It
searched and the things form of searching
operates only against unreasonable searches
to be seized. questions and answers.
and seizures.
Generally served in the May be made at any time
day time, unless there of the day or night.
What constitutes a reasonable or unreasonable
search or seizure in any particular case is purely be a direction in the
a judicial question, determinable from a warrant that it may be
consideration of the circumstances involved, served at any time of the
including the purpose of the search, the day or night.
presence or absence of probable cause, the Valid for ten (10) days. Does not expire (No
manner in which the search and seizure was terminal life).
made, the place or thing searched, and the
 REMEDIAL LAW REVIEWER
3. Application for search warrant,
where filed
64
Application
Where filed (Rule 126, Sec. 2)
Any court within whose territorial jurisdiction
the crime was committed.
For compelling reasons stated in the
application:
- If the place of the commission of the crime
is known, any court within the judicial
region where the crime was committed.
- Any court within the judicial region where
the warrant shall be enforced.
However, if the criminal action has already been
filed, the application shall only be made in the
court where the criminal action is pending.
Exception:
Malaloan v. CA (1994) subject to Rule 126, Sec. 1
If a case has not yet been filed, it may be filed
in a court with a territorial jurisdiction other
than that where the illegal articles sought to be
seized are located.
This is aside from the consideration that a
criminal action may be filed in different venues
under the rules for continuing crimes, or where
different trial courts have concurrent original
jurisdiction over the same criminal offense.
The ruling may be applicable:
- When the crime is found to have been
committed in a particular place WITHIN the
judicial region.
- Where a particular court, by reason of its
territorial area, has jurisdiction.
- And where prosecutor, who filed the
complaint or information in said court, has
territorial jurisdiction different from the
court within the same judicial region which
actually issued the warrant.
Search guidelines under Circular No. 19, s. 1987
All applications for search warrants relating to
violations of:
- The Anti-Subversion Act;
- Crimes against public order as defined in
the RPC;
- Illegal possession of firearms and/or
ammunition; and
- Violations of the Dangerous Drugs Act of
1972, as amended,
shall no longer be raffled and shall immediately
be taken cognizance of and acted upon by the
Executive Judge of the Regional Trial Court,
Metropolitan Trial Court, and Municipal Trial
Court under whose jurisdiction the place to be
searched is located.
In the absence of the Executive Judge, the Vice-
Executive Judge shall take cognizance of and
personally act on the same. In the absence of
the Executive Judge or Vice-Executive Judge,
the application may be taken cognizance of and
acted upon by any judge of the Court where the
application is filed.
Applications filed after office hours, during
Saturdays, Sundays and holidays, shall likewise
be taken cognizance of and acted upon by any
judge of the court having jurisdiction of the
place to be searched, but in such cases the
applicant shall certify and state the facts under
oath, to the satisfaction of the judge, and its
issuance is urgent.
Any judge acting on such application shall
immediately and without delay personally
conduct the examination of the applicant and
his witnesses to prevent the possible leakage of
information. He shall observe the procedures,
safeguards, and guidelines for the issuance of
search warrants provided for in this Court's
Administrative Circular No. 13, dated October 1,
1985.
A.M. No. 99-10-09-SC (Resolution Clarifying the
Guidelines on the Application for and
Enforceability of Search Warrants)
The following are authorized to act on all
applications for search warrants involving
heinous crimes, illegal gambling, dangerous
drugs and illegal possession of firearms: The
Executive Judge and Vice Executive Judges of
the RTC of Manila and Quezon City filed by the
PNP, NBI, the Presidential Anti-Organized Crime
Task Force (PAOC-TF) and the Reaction Against
Crime Task Force (REACT-TF) with the RTC of
Manila and QC.
The applications shall be personally endorsed by
the Heads of said agencies, for the search of
places to be particularly described therein, and
the seizure of property or things as prescribed in
the Rules of Court, and to issue the warrants of
arrest, if justified, which may be served in the
places outside the territorial jurisdiction of said
courts.
The authorized judges shall keep a special
docket book listing the details of the
applications and the results of the searches and
seizures made pursuant to the warrants issued.
Although A.M. No. 99-10-09-SC provides a
personal endorsement of the application by the
Heads of the agencies mentioned, it was held
that nothing in this rule prohibits such heads
from delegating the ministerial duty of
endorsing the application for search warrants to
their assistant heads, as long as it is not
inconsistent with law (Admin. Code). [Marimla
v. People (2009)]
Substance of application
Requisites for issuing a search warrant
A SW shall not issue except:
a. Upon probable cause in connection with one
specific offense;
b. To be determined personally by the judge;
c. After examination under oath or affirmation of
the complainant and the witness he may
produce;
d. Particularly describing the place to be searched
and the things to be seized which may be
anywhere in the Philippines. (Rule 126, Sec. 4)
Absence of the requisites will cause the
nullification of the SW.

If the judge is satisfied of the existence of facts
upon which the application is based or that
there is probable cause (PC) to believe that they
exist, he shall issue the SW, which must be
substantially in the form prescribed by the
Rules. (Rule 126, Sec. 6)
In issuing or not issuing SWs, judges act
according to the evidence presented to them,
and orders of the judge on the matter are not
final and do not constitute res judicata. [Cruz v.
Dinglasan (1949)]
The denial of a search warrant on the
insufficiency of the affidavit and deposition is
not a bar to further proceedings, nor is the
issuance of the warrant and its subsequent
discharge res judicata as to the right to the
warrant. [Cruz, supra]
Courts have declared invalid SWs that did not
comply with the requisites found in the 1987
Const. (and restated in the rules). [Lim v. de
Leon (1975)]
A courts disregard for the requirements
constitutes grave abuse of discretion which
may be remedied by a petition for certiorari
under Rule 65.
Issuance and form of search warrant
It is an order in writing; issued in the name of
the People of the Philippines; signed by a judge;
and directed to a peace officer, commanding
him to search for personal property described in
the warrant and bring it before the court. (Rule
126, Sec. 1)
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 witness
he may produce, and particularly describing the
place to be searched and the things to be seized
which may be anywhere in the Philippines.
(Rule 126, Sec. 4)
If the judge is satisfied of the existence of facts
upon which the application is based or that
there is probable cause to believe that they
exist, he shall issue the warrant, which must be
substantially in the form prescribed by these
Rules. (Rule 126, Sec. 6)
SW must be in writing and contain:
- Name of person against whom it is directed;
- Offense for which it was issued;
- The place to be searched and
- The description of the specific things to be
seized;
- A directive to law enforcement officers to
search and seize;
- And for them to bring in court the things
seized;
- Signature of the judge issuing it.
Validity of search warrant
Period of validity: 10 days from its date. Thereafter,
it shall be void. (Rule 126, Sec. 10)
Lifetime of SW ends when a return has already been
made. [Mustang Lumber v. CA (1996)]
REMEDIAL LAW REVIEWER
Service of search warrant
Right to break door or window to effect search 65
The officer, if refused admittance to the place
of directed search after giving notice of his
purpose and authority, may break open any
outer or inner door or window of a house or any
part of a house or anything therein to execute
the warrant to liberate himself or any person
lawfully aiding him when unlawfully detained
therein. (Rule 126, Sec. 7)
Knock and announce principle: Generally,
officers executing a search must do the
following acts:
- Announce their presence;
- Identify themselves to the accused and to
the persons who rightfully have possession
of the premises to be searched;
- Show to them the search warrant; and
- Explain the warrant in a language or dialect
known and understood by them.
When unannounced intrusion is permissible:
- Person in the premises refuses to open it
upon demand;
- Person in the premises already knew of the
identity and authority of the officers;
- When the officers have an honest belief
that there is an imminent danger to life and
limb;
- When those in the premises, aware of the
presence of someone outside, are then
engaged in activities which justifies the
officers to believe that an escape or the
destruction of evidence is imminent.
Search of house, room, or premise, to be made in
presence of two witnesses
No search of a house, room, or any other premises
shall be made except in the presence of the lawful
occupant thereof or any member of his family or in
the absence of the latter, two witnesses of sufficient
age and discretion residing in the same locality.
(Rule 126, Sec. 8)
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. (Rule 126, Sec. 9)
A SW violates Rule 126, Sec. 9 if the time for
making the search is left blank, thus enabling
the officers to conduct the search in the evening
of the appointed search, causing untold
conveniences to the person searched. [Asian
Surety v. Herrera (1973)]
Where a search is to be made during the night
time, the authority for executing the same at
that time should appear in the directive on the
face of the SW. [Asian Surety, supra]
 REMEDIAL LAW REVIEWER
Post-service
66 Receipt of property seized
How receipt is given (Rule 126, Sec. 11)
If lawful The officer seizing the property under
occupant the SW must give a detailed receipt for
was the same to the lawful occupant of the
present premises in whose presence the search
and seizure were made.
If he was The officer seizing the property under
not the SW must, in the presence of at
present least 2 witnesses of sufficient age and
discretion residing in the same locality,
leave a receipt in the place in which he
found the seized property.
Delivery of property and inventory thereof to
court (Rule 126, Sec. 12)
The officer must forthwith deliver the property
seized to the judge who issued the warrant,
together with a true inventory thereof duly
verified under oath.
Ten (10) days after issuance of the search
warrant, the issuing judge shall ascertain if the
return has been made, and if none, shall
summon the person to whom the warrant was
issued and require him to explain why no return
was made.
If the return has been made, the judge shall
ascertain whether Sec. 11 of Rule 126 has been
complied with and shall require that the
property seized be delivered to him. The judge
shall see to it that delivery has been complied
with.
The return on the search warrant shall be filed
and kept by the custodian of the log book on
search warrants who shall enter therein the
date of the return, the result, and other actions
of the judge.
A violation of this section shall constitute
contempt of court.
Goods seized remain under the courts custody
and control until the institution of the
appropriate criminal action with the proper
court. [Tenorio v. CA (2003)]
RE: REQUEST OF POLICE DIRECTOR GENERAL
AVELINO I. RAZON FOR AUTHORITY TO DELEGATE
THE ENDORSEMENT OF APPLICATION FOR SEARCH
WARRANT
A.M. No. 08-4-4-SC
SEC. 12. Issuance of search warrants in special
criminal cases by the RTCs of Manila and Quezon
City. The Executive Judges and, whenever they are
on official leave of absence or are not physically
present in the station, the Vice-Executive Judges of
the RTCs of Manila and Quezon City shall have
authority to act on applications filed by the National
Bureau of Investigation (NBI), the Philippine National
Police (PNP) and the Anti-Crime Task Force (ACTAF),
for search warrants involving heinous crimes, illegal
gambling, illegal possession of firearms and
ammunitions as well as violations of the
Comprehensive Dangerous Drugs Act of 2002, the
Intellectual Property Code, the Anti-Money
Laundering Act of 2001, the Tariff and Customs
Code, as amended, and other relevant laws that may
hereafter be enacted by Congress, and included
herein by the Supreme Court.
The applications shall be endorsed by the heads of
such agencies or their respective duly authorized
officials and shall particularly describe therein the
places to be searched and/or the property or things
to be seized as prescribed in the Rules of Court. The
Executive Judges and Vice-Executive Judges
concerned shall issue the warrants, if justified,
which may be served outside the territorial
jurisdiction of the said courts.
The Executive Judges and the authorized Judges
shall keep a special docket book listing names of
Judges to whom the applications are assigned, the
details of the applications and the results of the
searches and seizures made pursuant to the warrants
issued.
This Section shall be an exception to Section 2 of
Rule 126 of the Rules of Court. (Emphasis supplied.)
4. Probable Cause
Generally
Issued upon probable cause
Probable cause: Such facts and circumstances
which would lead a reasonably discreet and
prudent man to believe that an offense has been
committed, and that objects sought in
connection with the offense are in the place
sought to be searched.
- This probable cause must be shown to be
within the personal knowledge of the
complainant or the witnesses he may
produce and not based on mere hearsay.
- The probable cause must refer only to one
specific offense. [Roan v. Gonzales (1986)]
- A probable cause to arrest does not
necessarily involve a probable cause to
search and vice-versa.
Probable cause justifying warrantless arrest and
warrantless search
This implies probability of guilt and requires more
than bare suspicion but less than evidence which
would justify conviction. It is not determined by a
fixed formula but is resolved according to the facts
of each case.
5. Personal examination by judge of
the applicant and witnesses
Aside from the requirements mandated by Rule 126,
Sec. 4, the rule requires the judge to comply with a
specific procedure in the conduct of the examination
of the complainant and the witnesses he may
produce. The required procedure involves the
following:
The examination must be personally conducted
by the judge;

The examination must be in the form of
searching questions and answers;
The complainant and the witnesses shall be
examined on those facts personally known to
them;
The statements must be in writing and under
oath; and
The sworn statements of the complainant and
the witnesses, together with the affidavits
submitted, shall be attached to the record.
(Rule 126, Sec. 5)
Determined by judge himself
SEARCHING QUESTIONS AND ANSWERS:
Such questions which have the tendency to show
the commission of a crime and the perpetrator
thereof. [Luna v. Plaza (1968)]
In search cases, the application must be
supported by substantial evidence: that the
items sought are in fact seizable by virtue of
being connected with criminal activity and the
items will be found in the place to be searched.
A search warrant issued by a judge who did not
ask searching questions but only leading ones
and in a general manner is invalid.
Although there is no hard-and-fast rule
governing how a judge should conduct his
investigation, it is axiomatic that the
examination must be probing and exhaustive,
not merely routinary, general, peripheral,
perfunctory or pro forma. The judge must not
simply rehash the contents of the affidavit but
must make his own inquiry on the intent and
justification of the application. [Yao v. People
(2007)]
Judge must examine under oath or affirmation the
complainant and the witness he may produce
A warrant not based on personal knowledge is void.
Examination under oath:
OATH: Includes any form of attestation by which
a party signifies that he is bound in conscience
to perform an act faithfully and truthfully.
- The oath required must refer to the truth of
facts within the personal knowledge of the
petitioner or his witnesses, because the
purpose thereof is to convince the
committing magistrate of the existence of
PC. [Alvarez v. CFI (1937)]
- Mere affidavits of the complainant or his
witnesses are not sufficient. The examining
judge has to take depositions in writing of
the complaint or his witnesses, and attach
the same to the record. [Prudente v. Judge
Dayrit (1989), citing Roan]
Instances of invalid examination
The complainants application for SW and the
witness printed-form deposition were
subscribed and sworn to before the judge, but
the latter did not ask either of the 2 any
questions, the answer to which could possibly be
the basis for determining WON there was PC.
The participation of the judge was limited to
REMEDIAL LAW REVIEWER
listening to the stenographers reading of her
notes, and administering the oath to
complainant and his witnesses. Thus, it cannot
be said that the judge personally conducted the 67
examination required. [Bache v. Ruiz (1971)]
- In the reading of the transcribed notes of
the deposition of the applicant and his
witnesses taken by the clerk of court, the
judge was not able to observe the
deponents demeanor nor to propound
initial and follow-up questions. [Bache,
supra]
Where the judge issuing the SW acted solely on
the basis of the affidavits of the complainant
and his witnesses, which were sworn to before
another judge, without personally asking the
witnesses questions. [Doce v. CFI (1968)]
Instances of valid examination
The validity of the SW and the affidavits is not
impaired by the fact that they are pre-typewritten
by law enforcement agents, as long as they are
subscribed and sworn to before the judge.
In Luna (regarding warrants of arrests, but
applicable by analogy), the Court said that the law is
complied with where the judge adopts as his own
personal examination the questions asked by the
police investigator, as appearing in the written sworn
statements, which the judge read again to the
witnesses, whether said answers were his, and
whether said answers were true, to which the
witnesses replied in the affirmative, there being no
prohibition to the contrary.
6. Particularity of place to be
searched and things to be seized
Warrant issued must particularly describe the
place to be searched and the persons to be seized
DESCRIPTION OF PLACE
Description of place to be searched is sufficient
if the officer with the SW can, with reasonable
efforts, ascertain and identify the place
intended. [People v. Veloso (1925)]
- An apparent typographical error will not
necessarily invalidate the SW, as long as the
application contains the correct address.
[Burgos v. Chief of Staff (1984)]
TEST OF PARTICULARITY
- The executing officers prior knowledge as
to the place intended in the SW is relevant.
- This would seem especially true where the
executing officer is the affiant on whose
affidavit the SW had issued, and when he
knows that the judge who issued the SW
intended the building described in the
affidavit.
- The executing officer may look to the
affidavit in the official court file to resolve
an ambiguity in the SW as to the place to be
searched. [Burgos, supra]
Particularity
Search warrant must be for only one specific
offense.
 REMEDIAL LAW REVIEWER
General rule: The offense alleged must be specific
68 as to enable the judge to find the existence of a
probable cause.
Definite provisions of the allegedly violated laws
must be referred to.
No SW shall issue for more than one specific
offense. [RPC] Otherwise, the SW is void.
The fact that the SW does not specify the
specific offense does not render it a general
warrant. What is important is that the
application for SW states the specific offense
deemed to have been violated by the person
against whom the search warrant is addressed.
Scatter-shot warrant: One which allows search
for more than one specific offense and is null
and void for being violative of the Constitution.
A SW issued for an illegal traffic of narcotics
and contraband is fatally defective. The latter
is a generic term covering all goods exported
from or imported in the country contrary to
applicable statutes. Necessarily then, more than
one offense could arise from the activity
designated as illegal traffic of narcotics and
contraband. [Castro v. Pabalan (1976)]
Exception: In People v. Marcos (1990), the SW was
declared valid despite lack of mention of specific
offense because the application stated that the
owner of the grocery store against whom the
warrant was directed, had in his possession
unadulterated stocks in violation of the provisions of
Art. 188 and 199 [RPC], which are closely allied
articles as the punishable acts defined in one of
them can be considered as including or is necessarily
included in the other.
Things to be seized must be particularly described
The SW must not suffer from generality.
Otherwise, the search and seizure of the items
in the implementation of such SW is illegal and
the items seized are inadmissible in evidence.
(Art. III, Sec. 2 of the 1987 Const.)
Personal property only. SW does not issue for
seizure of immovable properties.
Ownership of the property seized is immaterial.
It is sufficient that the person against whom SW
is directed has control/possession of the
property. [Burgos, supra]
Purpose: To limit the things to be seized to those
(and only those) particularly described in the SW,
leaving the officers no discretion regarding what
articles they shall seize, to the end that
unreasonable searches and seizures may not be
made and that abuses may not be committed. [Uy
Kheytin v. Villareal (1920)]
General rule: Things to be seized must be described
particularly. General search warrants are not
allowed.
SWs authorizing the seizure of books of accounts
and records showing all the business
transactions of certain persons, regardless of
whether the transactions were legal or illegal,
are general warrants prohibited by law.
[Stonehill v. Diokno (1967)]
Likewise, a description of things to be seized as
subversive documents, propaganda materials,
FAs, printing paraphernalia and all other
subversive materials hardly provided a definite
guideline to the executing officers. [Dizon v.
Hon. Castro (1985)]
And where the language used is too all-
embracing as to include all the paraphernalia of
petitioner in the operation of its business, the
SW is constitutionally objectionable. [Columbia
Pictures v. Flores (1993)]
Exceptions:
Where, by the nature of the goods to be seized,
their description must be rather general, it is
not required that a technical description be
given, for this would mean that no SW could
issue. [People v. Rubio (1932)]
The general description of the documents listed
in the SW does not render the SW void if the SW
is severable, and those items not particularly
described may be cut off without destroying the
whole SW. [Uy v. BIR (2001)]
7. Personal property to be seized
The property subject of a search warrant is personal
property, not real property. [Riano (2011)]
What may be seized (Rule 126, Sec. 3)
Personal property subject of the offense.
Personal property stolen/embezzled and other
proceeds/fruits of the offense.
Personal property used or intended to be used
as the means of committing an offense.
The rule does not require that the property to be
seized should be owned by the person against whom
the search warrant is directed. It is sufficient that
the person against whom the warrant is directed has
control of possession of the property sought to be
seized. [Burgos v. Chief of Staff (1984)]
Rules on DNA Evidence A.M. No. 06-11-5-SC
(October 2, 2007)
The appropriate court may, at any time, either motu
proprio or on application of any person who has a
legal interest in the matter in litigation, order a DNA
testing. Such order shall issue after due hearing and
notice to the parties. (Sec. 4)
In a search incidental to an arrest even WITHOUT a
warrant, the person arrested may be searched for
(Rule 126, Sec. 13)
Dangerous weapons.
Anything which may have been used or
constitute proof in the commission of the
offense.
8. Exceptions to search warrant
requirement
a. Search incidental to lawful arrest

Warrantless searches allowed as an incident of
lawful arrest
Generally: Rule 126, Sec. 13, as illustrated by
jurisprudence
A person lawfully arrested may be searched for
(1) dangerous weapons or anything which may
have been (2) used or (3) constitute proof in the
commission of an offense without a search
warrant. (Rule 126, Sec. 13)
- The arrest must precede the search;
generally, the process cannot be reversed.
Nevertheless, a search substantially
contemporaneous with an arrest can
precede the arrest at if the police have
probable cause to make the arrest at the
outset of the search. [Riano (2011)]
The rule assumes that the arrest is legal. If the
arrest is illegal, then the search is illegal and as
a result, the things seized are inadmissible as
evidence. [People v. Aruta (1998)]
The search is confined to his person, but as an
incident of an arrest, the place or premises
where the arrest was made can also be searched
without a search warrant. The extent and
reasonableness of the search must be decided
on its own facts and circumstances. [Nolasco v.
Pao (1985); Note: The MR was partially granted
in 1987 and held that the arrest was unlawful,
thus the search was likewise unlawful.]
- An officer making an arrest may take from
the person arrested any money or property
found upon his person which was used in
the commission of the crime or was the
fruit of the crime or which might furnish
the prisoner with the means of committing
violence or of escaping or which may be
used as evidence in the trial of the case.
[People v. Musa (1997)]
- In People v. Leangsiri (1996), the accused
were lawfully arrested in Rm. 504 of a hotel
and a warrantless search was conducted in
Rm. 413. The search was held to be illegal.
- In Chimel v. California (1969), the US SC
said that there is no justification for
searching through all of the desks drawers
or other closed and concealed areas in the
room where arrest was made. A SW was
needed.
- When one is legally arrested for an offense,
whatever is found in his possession/control
may be seized and used in evidence against
him. [Alvero v. Dizon (1946)]
- Where a search is first undertaken, and an
arrest was effected based on evidence
produced by such search, both search and
arrest are illegal. [Lui v. Matillano (2004)]
b. Consented Search
Consented warrantless search
Rationale: The right to privacy may be waived.
The consent to a warrantless search must be
voluntary, that is, it must be unequivocal,
specific, and intelligently given,
uncontaminated by any duress or coercion.
Consent to a search is not to be lightly inferred,
REMEDIAL LAW REVIEWER
but must be shown by clear and convincing
evidence. It is the State which has the burden of
proving, by clear and positive testimony, that
the necessary consent was obtained and that it 69
was freely and voluntarily given. [Valdez v.
People (2007)]
Jurisprudence requires that in case of consented
searches or waiver of the constitutional
guarantee against obtrusive searches, it must
first appear that
(1) the right exists;
(2) the person involved had knowledge, either
actual or constructive, of the existence of
such right; and
(3) the said person had an actual intention to
relinquish the right. [People v. Nuevas
(2007)]
When one voluntarily submits to a search or
consents to have it made of his
person/premises, he is precluded from later
complaining thereof. [People v. Kagui Malasugui
(1936)]
A peaceful submission to a search or seizure is
not a consent or an invitation thereto, but is
merely a demonstration of regard for the
supremacy of the law. [People v. Nuevas (2007)]
When is consented search reasonable: Only if
kept within the bounds of the actual consent.
- A persons consent may limit the
extent/scope of a warrantless search in the
same way that the specifications of a
warrant limit the search pursuant thereto.
- Officers may not use a persons limited
consent to get inside his home and conduct
a general search.
- The US SC said that a search for a stolen TV
set cannot extend to search of an
individuals other papers and documents.
On the other hand, where there is a nexus
between the crime for which the evidence
is sought and the item that is seized, there
is no abuse of the consent to a search.
c. Search of moving vehicle
Search of moving vehicle
Rationale: Peace officers may lawfully conduct
searches of moving vehicles without need of a
warrant as it is impracticable to secure a judicial
warrant before searching a vehicle since it can be
quickly moved out of the locality or jurisdiction in
which the warrant may be sought. [People v. Tuazon
(2007)]
However, these searches would be limited to
visual inspection and the vehicles or their
occupants cannot be subjected to physical or
body searches, except where there is probable
cause to believe that the occupant is a law
offender or the contents of the vehicles are
instruments or proceeds of some criminal
offense.
The search and seizure without warrant of
vessel and aircrafts for violation of customs laws
has been a traditional exception to the
requirement of SW. [Roldan v. Hon. Arca (1975)]
 REMEDIAL LAW REVIEWER
Nonetheless, in all cases falling under this
category, there must be a showing of a PC of a
70 violation of the law. [Caroll v. US (1924)]
Where a vehicle is stopped and subjected to an
extensive search, the warrantless search is valid
only as long as the officers conducting the
search have reasonable or probable cause to
believe before the search that they will find the
instrumentality/evidence pertaining to a crime,
in the vehicle to be searched. [People v. CFI
(1980)]
Highly regulated by the government, the
vehicles inherent mobility reduces expectation
of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable
suspicion amounting to probable cause that the
occupant committed a criminal activity. [Riano
(2011)]
d. Check points; body checks in
airport
Searches conducted in checkpoints [People v.
Vinecario (2004)]
They are valid as long as they are warranted by
the exigencies of public order and conducted in
a way least intrusive to motorists.
The vehicle is neither searched nor its occupants
subjected to a body search (i.e. inspection of
the vehicle is limited to a visual search).
Routine inspections are not regarded as violative
of an individuals right against unreasonable
search:
- Where the officer merely draws aside the
curtain of a vacant vehicle which is parked
on the public fair grounds;
- Officer simply looks into a vehicle;
- Officer flashes a light therein without
opening cars doors;
- Occupants not subjected to a physical
search;
- Inspection is limited to usual search or
inspection; or
- Routine check is conducted in a fixed area
[People v. CA (2002)]
e. Plain view situation
Plain view doctrine (2008 Bar)
Rationale: Authorities do not consider a mere
observation of what is in plain view, a search.
Thus, objects falling in the plain view of a police
officer who has a right to be in the position to have
that view are not products of a search, may be
seized and may be introduced in evidence. [Harris v.
US (1968)]
Requisites (PIA): [People v. Valdez (1999), People v.
Salanguit (2001)]
- A prior valid intrusion i.e., based on the
valid warrantless arrest in which the police
are legally present in the pursuit of their
official duties;
- Evidence was inadvertently discovered by
the police who have a right to be where
they are;
- Evidence must be immediately apparently
illegal (i.e., drug paraphernalia);
- Plain view justified mere seizure of
evidence without further search.
Limitations: [People v. Musa (1993)]
- It may not be used to launch unbridled
searches and indiscriminate seizures.
- Does not extend to a general exploratory
search made solely to find evidence of
defendants guilt.
The doctrine is usually applied where a police
officer is not searching for evidence against the
accused, but nonetheless inadvertently comes
across an incriminating object.
Even if an object is in plain view, before it can
be seized without a SW, its incriminating nature
must first be apparent.
Where police officers are on the premises
pursuant to a valid consent to a search, an item
falling into their plain view may properly be
seized even if the item is not connected with
their purpose in entering.
f. Stop and Frisk situation
STOP AND FRISK: A limited protective search of
outer clothing for weapons. [Malacat v. CA (1997)]
Dual purpose: (1) The general interest of effective
crime prevention and detection; and (2) The more
pressing interest of safety and self-preservation of
the police officer to permit him to take steps to
assure himself that the person with whom he deals
with is not armed with a deadly weapon that could
be used against him. [Esquillo v. People (2010)]
Where a police officer observes unusual
conduct, which leads him reasonably to
conclude in the light of his experience that
criminal activity may be afoot, and that a
person with whom he is dealing may be armed
and presently dangerous,
Where in the course of investigating this
behavior he identifies himself as a policeman
and makes reasonable inquiry, and where
nothing in the initial stage of the encounter
serves to dispel his reasonable fear for his own
or others safety, he is entitled for the
protection of himself and others in the area to
conduct a carefully limited search of outer
clothing of such persons in an attempt to
discover weapons which might be used to
assault him. [Terry v. Ohio (1968)]
Under this theory, PC is not required to conduct
a stop and frisk but, nevertheless, mere
suspicion/hunch will not validate a stop and
frisk.
- Test: Genuine reason - Reasonable belief
based on genuine reason and in the light of
the officers experience and the
surrounding circumstances, that a crime has
either taken place or is about to take place
and the person to be stopped is armed and
dangerous.

- Based on specific and articulable facts
and not merely upon the officers bare
suspicion or hunch.
A genuine reason must exist, in light of the
police officers experience and surrounding
condition, to warrant the belief that the person
has weapons concealed about him.
g. Enforcement of Custom Laws
Customs search
For the enforcement of customs duties and tariff
laws, the Collector of Customs is authorized to
effect searches and seizure. [General Travel
Services v. David (1966)]
The Tariff Code authorizes customs officers to:
Enter, pass through or search any land,
enclosure, warehouse;
Inspect/search/examine any vessel/aircraft and
any trunk/package/box/envelope or any person
on board, or stop and examine any
vehicle/beast/person suspected of
holding/conveying any dutiable/prohibited
article introduced into the Philippines contrary
to law.
General rule: The Tariff and Customs Code does not
require a warrant for such searches.
Exception: In the search of a dwelling house, SW is
required.
h. Other exceptions
Exigent and Emergency Circumstances
Example: There was a prevailing general chaos
and disorder because of an ongoing coup, and
the raid of the office/building was precipitated
by an intelligence report that said office was
being used as HQ by the RAM. Also, the
surveillance team before the raid was fired upon
by the people inside. The raiding team had no
opportunity to apply for warrant as the court
then was closed. There was urgency and
exigency that warrant was lawfully dispensed
with. [People v. de Gracia (1994)]
Buy-bust Operation: No need for SW (or
warrant of arrest) because the accused is caught
in flagrante delicto.
- A form of entrapment legally employed by
peace officers as an effective way of
apprehending drug dealers in committing an
offense.
- Entrapment: Employment of such ways and
means for the purpose of trapping or
capturing a lawbreaker
- Absence of prior surveillance, much less a
lengthy one, or test buy does not affect the
legality of the buy-bust operation. [People
v. Concepcion (2008)]
Private Searches and State Expansion of
Private Search
The evidence was obtained by a private person
acting in a private capacity without state
participation and intervention. It was company
REMEDIAL LAW REVIEWER
SOP. Constitutional rights cannot be invoked
when there is no government interference.
[People v. Marti (1999)]
- Extent of participation by NBI agents is 71
merely CONFIRMATORY and NOT
EXPLORATORY
9. Remedies from unlawful search
and seizure
Who may avail of remedies
Only the party whose rights have been impaired
thereby; the objection to an unlawful search
and seizure is purely personal and cannot be
availed of by third parties. [Stonehill v. Diokno
(1967); Santos v. Pryce Gases, Inc. (2007)]
Hence, when a corporations documents were
seized, the corporate officers cannot question
the legality of the search as their personalities
are separate and distinct from that of the
corporation. [Stonehill v. Diokno (1967)]
Remedies
Employ any means to prevent the search.
- Without a SW, the officer cannot insist on
entering a citizens premises. If he does so,
he becomes an ordinary intruder.
- The person to be searched may resist the
search and employ any means necessary to
prevent it, without incurring any criminal
liability. [People v. Chan Fook (1921)]
File criminal action against officer.
A public officer/employee who procures a SW
without just cause is criminally liable under Art.
129, RPC (Search warrants maliciously obtained
and abuse in the service of those legally
obtained).
File a Motion to Quash the illegal SW. - This
remedy is employed if search is not yet
conducted.
General rule: The motion must be filed before
the sala of the judge who issued it. Only the
court that issued the SW may order revocation
of SW or release of things seized. [Pagkalinawan
v. Gomez (1967)]
Exception: Where the SW is issued by one
court and the criminal action based on the
results of the search is afterwards filed in
another court, the motion may be filed in either
court. [People v. CA (1999)]
What may be raised in the MTQ:
- Existence or non-existence of probable
cause at the time of issuance of the SW;
- Compliance with procedural and substantial
requisites.
Matters of defense are to be raised in the
criminal action. [DOH v. Sy Chi Siong (1989)]
File a motion to return seized things. - This is
the remedy used if the search was already
 REMEDIAL LAW REVIEWER

conducted and goods were seized as a buyer in good faith, but said goods were
consequence thereof. taken from the purchaser with the use of a
72 - Where the motion will be filed follows the SW although the criminal case for estafa
same rules as 2(c) above. against the accused was still pending, the
goods should be returned to the buyer. The
Motion to quash a search warrant or to suppress buyer is entitled to possession of goods until
evidence (2005, 2007 Bar) restitution is ordered by the court in the
- A motion to suppress as evidence the criminal case. [Yu v. Honrado (1980)]
objects illegally taken (exclusionary rule)
any evidence obtained through Waiver of immunity against unreasonable searches
unreasonable searches and seizures shall be and seizure
inadmissible for any purpose in any [Pasion v. Locsin (1938)]
proceeding The constitutional immunity against
unreasonable searches and seizure is a personal
Rule 126, Sec. 14 Where to file right that may be waived expressly/impliedly.
If criminal action has Court where the action Waiver cannot be made just by anyone, except
been filed has been instituted. the person whose right is being invaded or one
If no criminal action has Court that issued SW. who is expressly authorized to do so in his
been instituted behalf.
If no criminal action is Court where the
filed and motion is first subsequent criminal Requisites of a valid waiver:
filed with the court that action has been - It must appear that the right exists;
issued the SW, but it instituted. - That the person involved had knowledge,
failed to resolve the (actual or constructive) of the existence of
motion and a criminal such right;
case is subsequently - That the person had an actual intention to
filed in another court relinquish the right.

Grounds for a Motion to Quash [Bache & Co. v. Ruiz
(1971)]
No personal examination by the judge.
More than one specific offense.
No particular description.
Who may file
Person injured.
Person searched.
Owner of the property.
An accused may file a Motion to Suppress Evidence if
he is not among the persons who can file a Motion to
Quash.
Effect of failure to quash warrant
Where no MTQ the SW was filed in or resolved
by the issuing court, the interested party may
move in the court where the criminal case is
pending for the suppression of the personal
property seized IF the same is offered therein as
evidence (REGALADO).
The MTQ a SW and Motion to Suppress Evidence
are alternative, not cumulative remedies.
Effects of illegal search
Illegally seized evidence may not be admitted in
evidence in any proceeding. (Art. III, Sec. 2,
1987 Const.)
DISPOSITION OF ILLEGALLY SEIZED PROPERTY
General rule: Goods seized by virtue of an
illegal warrant must be returned. [Castro v.
Pabalan (1976)]
Criminal Liability
- Violation of the following:
o Violation of domicile (RPC Art. 128)
o SW maliciously obtained (Art. 129)
o Searching domicile without witnesses
(Art. 130)
o Unjust interlocutory order (Art. 206)
- Grounds:
o Against public officer or employer:
Entering without authority; against
the will; refuses to leave.
SW procured without just cause or if
with just cause, exceeds his authority
or uses unnecessary severity of force.
Conducting the search without the
required witnesses.
o Against judge
For knowingly rendering an unjust
interlocutory order.
Inexcusable negligence or ignorance.
Civil Liabilities
- Violation of the following:
o Violation of rights and liberties (Art. 32
[9], CC)
o Malicious prosecution and acts referred to
Art. 32. (Art. 2218, CC)
- Malice or bad faith is not required
- Not only official actions, but makes all
persons who are responsible for the
violation liable for damages [MHP Garments
v. CA (1994)]

Exception: If possession of the things seized is XVI. PROVISIONAL REMEDIES

prohibited by law, they should not be returned.
o However, where the accused obtained goods
from another through payment of bouncing
checks and thereafter sold said goods to a
1. Nature
Provisional remedies in civil actions, insofar as
they are applicable, may be availed of in
 REMEDIAL LAW REVIEWER

connection with the civil action deemed Enforcement Only after acquisition of
instituted with the criminal action [Rule 127, of writ jurisdiction over the person of the
Sec. 1] defendant
Where the civil action has actually been 73
instituted, or proceeded independently of the
criminal action, these provisional remedies
cannot be availed of in the criminal action but
may be applied for in the separate civil action
(Regalado).
If the civil action is suspended on account of
filing of the criminal action: The court with
which the civil case is filed is not thereby
deprived of its authority to issue auxiliary writs
that do not go into the merits of the case
[Ramcar Inc vs. de Leon].
Not available when:
1. Offended party has waived the civil claim
2. Offended party has reserved the civil claim
3. Offended party has already instituted a
separate civil action
4. Criminal action carries with it no civil
liability

2. Kinds of provisional remedies

Reference to provisional remedies in Rule 127 is
made in general terms, hence preliminary
injunction, preliminary attachment,
receivership, replevin or support pendent lite
may be availed of. (Riano)
The accused may present evidence to prove his
defense and damages, if any, arising from the
issuance of a provisional remedy in the case.
[Rule 119, Sec. 11(b)]

Preliminary Attachment

1) When proper [Rule 127, Sec. 2]

When the civil action is properly instituted in the
criminal action, the offended party may have the
property of the accused attached as security for the
satisfaction of any judgment that may be recovered
from the accused in the following cases:
1. When the accused is about to abscond from the
Philippines
2. When the criminal action is based on a claim for
money or property embezzled or fraudulently
misapplied or converted to the use of the
accused who is a public/corporate officer,
attorney, factor, broker, agent or clerk, in the
course of his employment as such, or by any
other person in a fiduciary capacity, or for a
willful violation of duty
3. When the accused has concealed, removed or
disposed of his property, or is about to do so
4. When the accused resides outside the
Philippines

2) Issuance and implementation of the writ

[Gonzalez v. State Properties (2001)]

When
Issuance of May be done before acquisition of
writ jurisdiction over the accused; may
be ex-parte
 REMEDIAL LAW REVIEWER

APPENDIX 1: AVAILABILITY OF BAIL

74 AVAILABLE as a MATTER AVAILABLE as a MATTER OF
NOT AVAILABLE
OF RIGHT DISCRETION
After conviction by the RTC If the accused is charged with a capital offense or
Before or after conviction
imposing a penalty of an offense punishable by reclusion perpetua or life
by the MetTC, MTC, or
imprisonment which does not imprisonment, and the evidence of guilt is strong
MCTC (114.4)
exceed 6 years (114.5) (114.7)
After conviction by the RTC where a penalty of
imprisonment exceeding 6 years but not more than
20 years is imposed and any of the ff.
circumstances is present:
1) Recidivism, quasi-recidivism, habitual
After conviction by the RTC
delinquency, commission of crime aggravated
where a penalty of
by circumstance of reiteration;
Before conviction by the imprisonment exceeding 6
2) Previously escaped from legal confinement,
RTC wheter in the exercise years but not more than 20
evasion of sentence or violation of conditions
of its original or appellate years is imposed and not one
of bail without valid justification;
jurisdiction (114.4) of the circumstances in sec. 5
3) Commission of offense while under probation,
is present, or any other
parole or conditional pardon;
similar circumstances (114.5)
4) Probability of flight;
5) Undue risk that he may commit another crime
during the pendency of appeal. (114.5)
6) Any other circumstances as may be present
and proved
If, prior to the judgment
becoming final or before the
accused serves his sentence,
the accused applies for After judgment has become final or the accused
probation as allowed by law, has commenced to serve his sentence (114.24)
he may be admitted to bail or
released on recognizance
(114.24)

APPENDIX 2: MODES OF REVIEW
ORDINARY APPEAL
Available after any judgment or final
order
Matter of right
By filing a notice of appeal with the
court that rendered the judgment
and serving a copy on the adverse
party.
NOTICE OF APPEAL Written notice
of intention to take appeal. A mere
verbal notice of an intention to
appeal expressed by the accused,
does not perfect an appeal. [People
v. Natividad (1936)]
When no notice of appeal is given in
writing or no record that any was
given, the cause will be stricken from
the court calendar since there was no
appeal. [US v. Tenorio (1917)]
But when the accused manifests or
gives notice of his intention to appeal
in open court and files a bond for his
provisional release within 15 days
from the promulgation of the
decision against him, he may be
considered as having perfected his
appeal. [People v. Agasang (1956)]
PETITION FOR REVIEW
Available only when the
petition shows prima facie
that the lower court has
committed an error of fact or
law that will warrant the
reversal/modification of the
decision or final order sought
to be reviewed.
Not a matter of right
REMEDIAL LAW REVIEWER
PETITION FOR REVIEW ON
CERTIORARI
General Rule: Available only when 75
issues of law are involved; findings of
fact being deemed conceded by the
appellant.
Exception: SC reviews questions both
of fact and of law in cases decided
by the RTC: [RA 296]
o Where the penalty imposed is life
imprisonment;
o Which involve other offenses
committed on the same occasion
or arising out of the same
occurrence that gave rise to the
more serious offense for which the
penalty of death or life
imprisonment is imposed.
Not a matter of right
Appeal by PFRC from the decision or
final order of the RTC/CA may be
taken by filing the petition within 15
days from notice of judgment or of
the denial of MFR filed in due time.
Copy must be served on the court
whose judgment or final order is
sought to be reviewed.
If no record of appeal has been filed
in the CA, the SC clerk of court, upon
admission of the petition, shall
demand from the CA the elevation of
the whole record of the case. [Rule
45, Sec. 2]
Provision above governs procedure of
appeal from RTC or Sandiganbayan to
the SC.
 2012 UP LAW
BAR REVIEWER
REMEDIAL
Civil Procedure LAW
REMEDIAL LAW TEAM 2012
BAR OPERATIONS COMMISSION 2012
Subject Head |Eden
Catherine Mopia
EXECUTIVE COMMITTEE
Ramon Carlo Marcaida |Commissioner Civ Pro Subject Heads |
Raymond Velasco Mara Kriska Chen |Deputy Commissioners Gianna De Jesus Samantha
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 REMEDIAL LAW REVIEWER

(2) Land registration cases,

Civil Procedure (3)
(4)
Cadastral cases,
Naturalization cases,
REMEDIAL LAW (5) Insolvency proceedings 77
Criminal Procedure General Principles (6) Other cases not herein provided for
Civil Procedure Jurisdiction
Evidence Except by analogy or in a suppletory character and
Special Proceedings I. Actions whenever practicable and convenient [Rule 4, Sec.
II. Cause of Action 4]
III. Parties to Civil Actions
Prospectivity/Retroactivity
IV. Venue The Rules of Court are not penal statutes and cannot
V. Pleadings be given retroactive effect [Bermejo v Barrios
VI. Summons (1970)].
VII. Motions
VIII. Dismissal of Actions Rules of procedure may be made applicable to
IX. Pre-Trial actions pending and undetermined at the time of
X. Intervention their passage, and are deemed retroactive in that
XI. Subpoena sense and to that extent. [In the Matter to Declare
in Contempt of Court Hon. Simeon Datumanong
XII. Modes of Discovery
(2006)].
XIII. Trial
XIV. Demurrer to Evidence
B. Substantive Law as Distinguished
XV. Judgments and Final Orders
XVI. Post-Judgment Remedies from Remedial Law
XVII. Execution, Satisfaction and
Remedial law or Procedural law
Effect of Judgments
provides a method of enforcing the rights
XVIII. Provisional Remedies established by substantive law;
XIX. Special Civil Actions prescribes the method of enforcing rights or
obtaining redress for their invasion. [Bustos v
GENERAL PRINCIPLES Lucero (1948)]
Judicial process for enforcing rights and duties
A. Concept of Remedial Law recognized by substantive law and for justly
B. Substantive Law as Distinguished from administering remedy and redress for a disregard
Remedial Law or infraction of them. [Fabian v Desierto (1998)]
C. Rule-making Power of the Supreme Court
D. Nature of Philippine Courts Substantive law
is that part of the law which creates, defines and
regulates rights concerning life, liberty, or
A. Concept of Remedial Law property, or the powers of agencies or
instrumentalities for the administration of public
Concept affairs [Bustos v Lucero (1948)]
Remedial statute or statutes:
(1) relating to remedies or modes of procedure;
(2) do not take away or create vested rights;
C. Rule-making Power of the Supreme
(3) BUT operate in furtherance of rights already Court
existing. [Riano citing Systems Factor
Corporation v NLRC (2000)] The Rules of Court was adopted and
promulgated by the Supreme Court pursuant to
The Rules of Court, promulgated by authority of law, the provisions of Sec 5(5) of Art. VIII of the
have the force and effect of law, if not in conflict Constitution, vesting in it the power to:
with positive law [Inchausti & Co v de Leon (1913)]. - Promulgate rules concerning the protection
The rule is subordinate to the statute, and in case of and enforcement of constitutional rights,
conflict, the statute will prevail. [Shioji v Harvey pleading, practice and procedure in all
(1922)]. courts, the admission to the practice of
law, the Integrated Bar, and legal
Applicability assistance to the underprivileged.
The Rules of Court is applicable in ALL COURTS, The power to promulgate rules of pleading,
except as otherwise provided by the SC [Rule 1, Sec. practice, and procedure is no longer shared by
2]. the Supreme Court with Congress, more so with
the executive [Riano citing Echegaray v
It governs the procedure to be observed in civil or Secretary of Justice (1999)]
criminal actions and special proceedings [Rule 1,
Sec. 3]. It does not apply to the following cases:
[ELCINO]
(1) Election cases,
 REMEDIAL LAW REVIEWER

1. Limitations on the rule-making power then pending, EXCEPT to the extent that in the
of the Supreme Court opinion of the Court their application would not be
78 feasible or would work injustice. [Riano citing Rule
114]
Sec 5(5) of Art. VIII of the Constitution sets forth
the limitations to the power: [SUS]
- that the rules shall provide a simplified and D. Nature of Philippine Courts
inexpensive procedure for speedy disposition
of cases; 1. Meaning of a court
- that the rules shall be uniform for courts of
the same grade; and Definition
- that the rules shall not diminish, increase or A court is an organ of the government belonging to
modify substantive rights. the judicial department, the function of which is
the application of the laws to controversies
2. Power of the Supreme Court to amend brought before it (and) as well as the public
and suspend procedural rules administration of justice.
Generally, the term describes an organ of the
Power to amend remedial laws government consisting of one person or of several
The constitutional faculty of the Court to persons, called upon and authorized to administer
promulgate rules of practice and procedure justice. It is also the place where justice is
necessarily carries with it the power to overturn administered. [Riano citing Blacks and Am. Jur.
judicial precedents on points of remedial law and C. J. S.]
through the amendment of the Rules of Court.
[Pinga v Heirs of Santiago (2006)]. 2. Court as distinguished from a judge
The SC has the sole prerogative to amend, repeal, Court Judge
or even establish new rules for a more simplified Tribunal officially Simply an officer of such
and inexpensive process, and the speedy assembled under tribunal
disposition of case [Neypes v CA (2005)] authority of law
An organ of the Person who sits in court
Power to suspend remedial laws government with a
It is within the inherent power of the Supreme personality separate and
Court to suspend its own rules in a particular case distinct from judge
in order to do justice [De Guia v De Guia (2001)]. An office A public officer [Riano]
When the operation of rules will lead to an
injustice or if their application tends to subvert
The circumstances of the court are not affected by
and defeat instead of promote and enhance
the circumstance that would affect the judge. The
justice, their suspension is justified [Republic v CA
continuity of a court and the efficacy of its
(1978)].
proceedings are not affected by the death,
There is no absolute rule as to what constitutes
resignation, or cessation from the service of the
good and sufficient cause that will merit
judge presiding over it. In other words, the judge
suspension of the rules. The matter is
may resign, become incapacitated, or be disqualified
discretionary upon the Court [Republic v Imperial
to hold office, but the court remains. The death of
Jr. (1999)].
the judge does not mean the death of the court
[Riano citing ABC Davao Auto Supply v. CA (1998)].
The bare invocation of "the interest of substantial
justice" is not a magic wand that will
automatically compel this Court to suspend 3. Classification of Philippine courts
procedural rules [Ramos v Sps Lavendia (2008)].
NOTE: Please see succeeding subsections for
Procedural rules are not to be belittled or discussions on a to d.
dismissed simply because their non-observance a. Courts of law and equity
may have resulted in prejudice to a party's
substantive rights. Like all rules, they are required b. Courts of Original and Appellate jurisdiction
to be followed except only for the most persuasive
of reasons when they may be relaxed to relieve a c. Courts of General and Special jurisdiction
litigant of an injustice not commensurate with the
degree of his thoughtlessness in not complying d. Constitutional and statutory courts
with the procedure prescribed. [Polanco v Cruz
(2009)]. e. Superior and Inferior courts
Superior courts Courts which have the power
NOTE: Although not laws in the technical sense of of review or supervision over another and lower
the term, Rules of Court, promulgated by authority court.
of law, have the force and effect of law. [Riano Inferior courts Those which, in relation to
citing Shioji v Harvey (1922)] another court, are lower in rank and subject to
review and supervision by the latter. [Regalado]
Applicability: Prospective
The Rules of Court shall govern cases brought after f. Courts of record and not of record
they take effect, and also all further proceedings

Courts of record Those whose proceedings are
enrolled and which are bound to keep a written
record of all trials and proceedings handled by
them. [Regalado] One attribute of a court of
record is the strong presumption as to the
veracity of its records that cannot be
collaterally attacked except for fraud. All
Philippine courts, including inferior courts, are
now courts of record. [Riano]
Courts not of record Courts which are not
required to keep a written record or transcript
of proceedings held therein.
4. Courts of original and appellate
jurisdiction
Courts of original jurisdiction Those courts in
which, under the law, actions or proceedings
may be originally commenced.
Courts of appellate jurisdiction Courts which
have the power to review on appeal the
decisions or orders of a lower court. [Regalado]
5. Courts of general and special
jurisdiction
Courts of general jurisdiction Those competent
to decide their own jurisdiction and to take
cognizance of all kinds of cases, unless
otherwise provided by the law or Rules.
Courts of special or limited jurisdiction Those
which have no power to decide their own
jurisdiction and can only try cases permitted by
statute. [Regalado]
6. Constitutional and statutory courts
Constitutional courts Those which owe their
creation and existence to the Constitution and,
therefore cannot be legislated out of existence
or deprived by law of the jurisdiction and
powers unqualifiedly vested in them by the
Constitution. e.g. Supreme Court;
Sandiganbayan is a constitutionally-mandated
court but created by statute.
Statutory courts Those created, organized and
with jurisdiction exclusively determined by law.
[Regalado]
7. Courts of law and equity
Philippine courts are both courts of law and equity.
Hence, both legal and equitable jurisdiction is
dispensed with in the same tribunal [U.S. v.
Tamparong (1998)]
8. Principle of judicial hierarchy
The judicial system follows a ladderized scheme
which in essence requires that lower courts
initially decide on a case before it is considered
by a higher court. Specifically, under the
judicial policy recognizing hierarchy of courts, a
higher court will not entertain direct resort to it
unless the redress cannot be obtained in the
REMEDIAL LAW REVIEWER
appropriate courts. [Riano citing Santiago v.
Vasquez]
The principle is an established policy necessary
to avoid inordinate demands upon the Courts 79
time and attention which are better devoted to
those matters within its exclusive jurisdiction,
and to preclude the further clogging of the
Courts docket [Lim v. Vianzon (2006)].
When the doctrine/principle may be
disregarded: A direct recourse of the Supreme
Courts original jurisdiction to issue writs
(referring to the writs of certiorari, prohibition,
or mandamus) should be allowed only when
there are special and important reasons
therefor, clearly and specifically set out in the
petition. [Mangahas v. Paredes (2007)]. The
Supreme Court may disregard the principle of
hierarchy of courts if warranted by the nature
and importance of the issues raised in the
interest of speedy justice and avoid future
litigations [Riano].
9. Doctrine of non-interference or
doctrine of judicial stability
The principle holds that courts of equal and
coordinate jurisdiction cannot interfere with
each others orders [Lapu-lapu Development
and Housing Corp. v. Group Management Corp.]
The principle also bars a court from reviewing or
interfering with the judgment of a co-equal
court over which it has no appellate jurisdiction
or power of review [Villamor v. Salas].
The doctrine of non-interference applies with
equal force to administrative bodies. When the
law provides for an appeal from the decision of
an administrative body to the SC or CA, it means
that such body is co-equal with the RTC in terms
of rank and stature, and logically beyond the
control of the latter [Phil Spinster Corp. v.
Cagayan Electric Power].
JURISDICTION
A. Jurisdiction over the parties
B. Jurisdiction over the subject matter
C. Jurisdiction over the issues
D. Jurisdiction over the res or property in
litigation
E. Jurisdiction of Courts
F. Jurisdiction over small claims, cases
covered by the rules on Summary
Procedure and Barangay Conciliation
G. Totality Rule
Jurisdiction
Jurisdiction is defined as the authority to try, hear
and decide a case [Tolentino v. Leviste (2004)].
Judicial power includes the duty of the courts of
justice: [Art 8, Sec. 1, Consti]
To settle actual controversies involving rights
which are legally demandable and enforceable;
 REMEDIAL LAW REVIEWER
To determine WON there has been a grave abuse
of discretion amounting to lack or excess of
80 jurisdiction on the part of any government
branch/ instrumentality.
All courts exercise judicial power. Only the Supreme
Court is the court created by the Constitution [Art 8,
Sec. 1, Consti]. The Sandiganbayan is a
Constitutionally mandated court, but it is created by
statute. [PD 1486]
Jurisdiction in general
A. Jurisdiction over the parties
NOTE: The mode of acquisition of jurisdiction over
the plaintiff and the defendant applies both to
ordinary and special civil actions.
1. How jurisdiction over the plaintiff is
acquired
Jurisdiction over the plaintiff is acquired by filing of
the complaint or petition. By doing so, he submits
himself to the jurisdiction of the court [Davao Light
& Power Co., Inc. v CA].
2. How jurisdiction over the defendant is
acquired
Acquired by the (1) voluntary appearance or
submission by the defendant or respondent to
the court or (2) by coercive process issued by
the court to him, generally by the service of
summons [de Joya v Marquez (2006), citing
Regalado]
In an action in personam, jurisdiction over the
person is necessary for the court to validly try
and decide the case, while in a proceeding in
rem or quasi in rem, jurisdiction over the person
of the defendant is not a prerequisite to confer
jurisdiction on the court provided the latter has
jurisdiction over the res [Alba v. CA].
B. Jurisdiction over the subject
matter
1. Meaning of jurisdiction over the
subject matter
Jurisdiction over the subject matter is the power to
deal with the general subject involved in the action,
and means not simply jurisdiction of the particular
case then occupying the attention of the court but
jurisdiction of the class of cases to which the
particular case belongs (Riano citing CJS).
It is the power to hear and determine cases of the
general class to which the proceedings in question
belong [Reyes v. Diaz (1941)]
How conferred and determined
It is conferred only by the Constitution or the
law.
Jurisdiction CANNOT be:
- fixed by agreement of the parties;
- cannot be acquired through, or waived,
enlarged or diminished by, any act or omission
of the parties;
- neither can it be conferred by the
acquiescence of the court [Regalado citing De
Jesus v Garcia (1967)].
- cannot be subject to compromise (Civil Code,
Art 2035)
Jurisdiction over the subject matter is
determined by the allegations of the complaint.
It is not affected by the pleas set up by the
defendant in the answer or in the answer or in a
motion to dismiss. [Sindico v. Diaz (2004)].
Once attached to a court, it cannot be ousted
by subsequent statute.
- Exception: The statute itself conferring new
jurisdiction expressly provides for retroactive
effect. [Southern Food v. Salas (1992)]
The filing of the complaint or appropriate
initiatory pleading and the payment of the
prescribed docket fee vest a trial court with
jurisdiction over the subject matter or the
nature of the action [CB v. CA (1992)](2008 Bar
Exam).
- Exception: Non-payment of docket fee does
not automatically cause the dismissal of the
case on the ground of lack of jurisdiction as
long as the fee is paid within the applicable
prescriptive or reglementary period, more so
when the party involved demonstrates a
willingness to abide by the rules prescribing
such payment. [Go v. Tong (2003)]
2. Jurisdiction versus the exercise of
jurisdiction
Jurisdiction: the authority to hear and
determine a cause the right to act in a case.
[Arranza v. BF Homes (2000)].
- Exercise of Jurisdiction.: the exercise of this
power or authority
Jurisdiction is distinct from the exercise
thereof. Jurisdiction is the authority to decide a
case and not the decision rendered therein.
When there is jurisdiction over the subject
matter, the decision on all other questions
arising in the case is but an exercise of
jurisdiction. [Herrera v Baretto et al (1913)]
3. Error of jurisdiction as distinguished
from error of judgment
Error of jurisdiction Error of judgment
It is one where the act It is one which the court
complained of was issued may commit in the
by the court without or in exercise of its
excess of jurisdiction jurisdiction [Cabrera v.
[Cabrera v. Lapid Lapid].
(2006)].
It includes errors of
procedure or mistakes in
the courts mistakes in
the courts findings
[Banco Filipino Savings
v. CA (2000)]

Correctible only by the Correctible by appeal
extraordinary writ of [Cabrera v Lapid]
certiorari [Cabrera v
Lapid]
Renders a judgment void Ground for reversal only
or voidable [Rule 16 Sec. if it is shown that
1, Rule 65] prejudice has been
caused [Banco Espaol-
Filipino v Palanca
(1918)]
4. How jurisdiction is conferred and
determined
Jurisdiction being a matter of substantive law, the
statute in force at the time of the commencement
of the action determines the jurisdiction of the
court.
5. Doctrine of primary jurisdiction
Courts cannot and will not resolve a controversy
involving a question which is within the
jurisdiction of an administrative tribunal,
especially where the question demands the
exercise of sound administrative discretion
requiring the special knowledge, experience and
services of the administrative tribunal to
determine technical and intricate matters of
fact [Paloma v. Mora (2005)].
Objective is to guide a court in determining
whether it should refrain from exercising its
jurisdiction until after an administrative agency
has determined some question or some aspect of
some question arising in the proceeding before
the court [Riano citing Omictin v. CA (2007)]
6. Doctrine of adherence of jurisdiction
Also known as doctrine of continuity of
jurisdiction
The court, once jurisdiction has been acquired,
retains that jurisdiction until it finally disposes
of the case [Bantua v. Mercader (2001)].
As a consequence, jurisdiction is not affected by
a new law placing a proceeding under the
jurisdiction of another tribunal, EXCEPT:
- where there is an express provision in the
statute
- the statute is clearly intended to apply to
actions pending before its enactment [Riano
citing People v. Cawaling].
Jurisdiction being a matter of substantive law,
the statute in force at the time of the
commencement of the action determines the
jurisdiction of the court. [Municipality of
Kananga v Madrona (2003)]
7. Objections to jurisdiction over the
subject matter
The Court may ex mero motu, or on its own
initiative take cognizance of lack of jurisdiction
[Fabian v. Desierto (1998)].
REMEDIAL LAW REVIEWER
Earliest opportunity of a party to raise the issue
of jurisdiction is in a motion to dismiss filed
before the filing or service of an answer. Lack of
jurisdiction over subject matter is a ground for a 81
motion to dismiss. If no motion is filed, the
defense of lack of jurisdiction may be raised as
an affirmative defense in the answer. [Riano
citing Sec. 1(b) and 6 of Rule 16].
Jurisdiction over subject matter may be raised
at any stage of proceedings, even for the first
time on appeal [Calimlim v. Ramirez (1982)]
8. Effect of estoppel on objections to
jurisdiction
Jurisdiction by estoppel
General Rule: Estoppel does not apply to confer
jurisdiction to a tribunal that has none over a cause
of action. Jurisdiction is conferred by law. Where
there is none, no agreement of the parties can
provide one. Settled is the rule that the decision of a
tribunal not vested with appropriate jurisdiction is
null and void. [SEAFDEC-AQD v. NLRC (1992)]
Exception: Participation in all stages of the case
before the trial court, that included invoking its
authority in asking for affirmative relief, effectively
barred petitioner by estoppel from challenging the
courts jurisdiction. [Soliven v. Fastforms (2004)]
C. Jurisdiction over the issues
The power of the court to try and decide issues
raised in the pleadings of the parties [Reyes v.
Diaz (1941)]
How conferred & determined:
- Pleadings filed by the parties,
- Agreement in a pre-trial order or stipulation
[Rule 18, Sec. 2], or
- Implied consent as by the failure of a party to
object to evidence on an issue not covered by
the pleadings in Rule 10, Sec. 5. [Regalado]
D. Jurisdiction over the res or
property in litigation
Refers to the courts jurisdiction over the thing
or the property which is the subject of the
litigation.
Acquired either by
- actual or constructive seizure by the court of
the thing in question, thus placing it in
custodia legis (e.g.attachment or
garnishment) or
- by provision of law which recognizes in the
court the power to deal with the property or
subject-matter within its territorial
jurisdiction (e.g. land registration) [Regalado]
 REMEDIAL LAW REVIEWER
Specific jurisdiction
82
E. Jurisdiction of Courts
1. Supreme Court
The judicial power shall be vested in one SC and in
such lower courts as may be established by law.
[Art. 8, Sec. 1, Consti]
Powers of the Supreme Court [Art. 8, Sec. 5,
Consti]
a. EXERCISE original jurisdiction over:
Cases affecting ambassadors and other public
ministers and consuls;
- RTC also has concurrent jurisdiction
Petitions for certiorari, prohibition, mandamus,
quo warranto, and habeas corpus.
b. Review/revise/reverse/modify/affirm on appeal
or certiorari, final judgments/orders of lower
courts In:
All cases in which the constitutionality/validity
of any treaty, international or executive
agreement, law, presidential
decree/proclamation/order/ instruction,
ordinance or regulation is in question;
- NOTE: power of review contemplates the ff
courts: CA, Sandiganbayan, CTA, RTC, and
other courts authorized by law.
All cases involving the legality of any tax
/impost /assessment /toll, or any penalty
imposed in relation thereto;
All cases in which the jurisdiction of any lower
court is in issue;
All criminal cases in which the penalty imposed
is reclusion perpetua or higher;
All cases in which only errors/questions of law
are involved.
Exceptions: [Josefa v. Zhandong (2003)]
- The conclusion is grounded on speculations/
surmises /conjectures;
- The inference is manifestly
mistaken/absurd/impossible;
- There is grave abuse of discretion;
- The judgment is based on a misapprehension
of facts;
- The findings of fact are conflicting;
- There is no citation of specific evidence on
which the factual findings are based;
- The finding of absence of facts is contradicted
by the presence of evidence on record;
- The findings of the CA are contrary to those of
the trial court;
- The CA manifestly overlooked certain relevant
and undisputed facts that, if properly
considered, would justify a different
conclusion;
- The findings of the CA are beyond the issues
of the case;
- Such findings are contrary to the admissions
of both parties.
Distinction between Questions of Law and Fact
[Mendoza vs Salinas (2007)]
Question of lawexists when the doubt or
controversy concerns the correct application of
law or jurisprudence to a certain set of facts;
when the issue does not call for an examination
of the probative value of the evidence
presented, the truth or falsehood of facts being
admitted.
Question of factexists when the doubt or query
invites calibration of the whole evidence
considering mainly the credibility of the
witnesses, and the existence and relevancy of
specific surrounding circumstances, as well as
their relation to each other and to the whole,
and the probability of the situation
c. Assign temporarily judges of lower courts to
other stations as public interest may require,
which shall not last 6 six months without the
consent of the judge concerned.
d. Order a change of venue or place of trial to
avoid a miscarriage of justice.
e. Promulgate rules on:
Protection and enforcement of constitutional
rights;
Pleading/practice/procedure in all courts;
Admission to the practice of law;
The Integrated Bar;
Legal assistance to the under-privileged.
Guidelines on the rules:
- Provide a simplified and inexpensive
procedure for the speedy disposition of cases;
- Uniform for all courts of the same grade;
- Not diminish/increase/modify substantive
rights.
- Rules of procedure of special courts and
quasi-judicial bodies shall remain effective
unless disapproved by the SC.
f. Appoint all Judiciary officials/employees in
accordance with the Civil Service Law.
Constitutional commissions
COMELEC and COA Unless otherwise provided
by this Constitution or by law, any
decision/order /ruling of each Commission may
be brought to the SC on certiorari by the
aggrieved party, within 30 days from receipt of
a copy thereof. [Art. 9-A, Sec. 7, Consti]
CSC - Judgments/decisions/orders are within
the exclusive appellate jurisdiction of the CA
through Rule 43. [BP 129, as amended by RA
7902]
Sandiganbayan
- Decisions and final orders of the
Sandiganbayan shall be subject to review on
certiorari by the SC in accordance with Rule
45 of the Rules.
- Whenever, in any case decided, the death
penalty shall have been imposed, the records
shall be forwarded to the SC whether the
accused shall have appealed or nor, for
review and judgment. [PD 1606 Sec 7]

2. Court of Appeals [Sec. 9, BP 129]
a. ORIGINAL JURISDICTION
To issue writs of mandamus, prohibition, certiorari,
habeas corpus and quo warranto, and auxiliary
writs/processes, whether or not in aid of its
appellate jurisdiction.
Note: former rule only allowed the CA to issue
auxiliary writs and processes in aid of jurisdiction.
- The power is concurrent with the SC.
b. EXCLUSIVE ORIGINAL JURISDICTION
Annulment of RTC judgments.
c. EXCLUSIVE APPELLATE JURISDICTION
Final
judgments/decisions/resolutions/orders/awards
of:
- RTCs;
- Quasi-judicial agencies/instrumentalities/
boards/commissions including:
o SEC;
o Social Security Commission;
o ECC;
o CSC.
Exception: Those falling within the SCs
appellate jurisdiction of the Supreme Court in
accordance with:
- The Constitution;
- Labor Code;
- BP 129;
- Sec. 17, Par. 3(1) and Par. 4(4) of the
Judiciary Act of 1948.
Review of decisions by the NLRC: [St. Martins
Funeral Home vs NLRC (1998)]
Supposed appeals from the NLRC to the SC are
interpreted and hereby declared to mean and
refer to Petitioners for Certiorari under Rule 65.
All such petitions should be initially filed in the
CA in strict observance of the doctrine on the
hierarchy of courts.
All special civil actions arising out of any
decision or final resolution or order of the NLRC
filed with the SC after June 1, 1999 shall not
longer be referred to the CA, but shall forthwith
be dismissed.
Powers of the Court of Appeals
Try cases and conduct hearings;
Receive evidence
Perform any and all acts necessary to resolve
factual issues raised, including the power to
grant and conduct new trials or further
proceedings.
Trials or hearings must be continuous and must be
completed within 3 months, unless extended by the
Chief Justice.
REMEDIAL LAW REVIEWER
3. Court of Tax Appeals [Sec. 7, RA 1125,
as amended by RA 9282]
83
a. Exclusive appellate jurisdiction to review
by appeal
Decisions of the Commissioner of Internal
Revenue in cases involving disputed
assessments, refunds of internal revenue taxes,
fees or other charges, penalties in relation
thereto, or other matters arising under the
National Internal Revenue or other laws
administered by the BIR;
Inaction by the Commissioner of Internal
Revenue in cases involving disputed
assessments, refunds of internal revenue taxes,
fees or other charges, penalties in relations
thereto, or other matters arising under the
National Internal Revenue Code or other laws
administered by the BIR, where the National
Internal Revenue Code provides a specific period
of action, in which case the inaction shall be
deemed a denial;
Decisions, orders or resolutions of the RTCS in
local tax cases originally decided or resolved by
them in the exercise of their original or
appellate jurisdiction;
Decisions of the Commissioner of Customs in
cases involving liability for customs duties, fees
or other money charges, seizure, detention or
release of property affected, fines, forfeitures
or other penalties in relation thereto, or other
matters arising under the Customs Law or other
laws administered by the Bureau of Customs;
Decisions of the Central Board of Assessment
Appeals in the exercise of its appellate
jurisdiction over cases involving the assessment
and taxation of real property originally decided
by the provincial or city board of assessment
appeals;
Decisions of the Secretary of Finance on customs
cases elevated to him automatically for review
from decisions of the Commissioner of Customs
which are adverse to the Government under
Section 2315 of the Tariff and Customs Code;
Decisions of the Secretary of Trade and Industry,
in the case of nonagricultural product,
commodity or article, and the Secretary of
Agriculture in the case of agricultural product,
commodity or article, involving dumping and
countervailing duties under Sec 301 and 302,
respectively, of the Tariff and Customs Code,
and safeguard measures under RA 8800, where
either party may appeal the decision to impose
or not to impose said duties.
b. Jurisdiction over cases involving criminal
offenses:
General rule: Exclusive original jurisdiction over all
criminal offenses arising from violations of the
National Internal Revenue Code or Tariff and
Customs Code and other laws administered by the
BIR or the Bureau of Customs
 REMEDIAL LAW REVIEWER
BUT! Offenses or felonies where the principal
amount of taxes and fees, exclusive of charges and
84 penalties, claimed is less than P1,000,000.00 or
where there is no specified amount claimed shall be
tried by the regular Courts and the jurisdiction of
the CTA shall be appellate.
a. Original Exclusive Jurisdiction
Any provision of law or the Rules of Court to the
contrary notwithstanding, the criminal action and
the corresponding civil action for the recovery of
civil liability for taxes and penalties shall at all times
be simultaneously instituted with, and jointly
determined in the same proceeding by the CTA, the
filing of the criminal action being deemed to
necessarily carry with it the filing of the civil action,
and no right to reserve the filling of such civil action
separately from the criminal action will be
recognized.
c. Exclusive appellate jurisdiction in criminal
offenses:
Over appeals from the judgments, resolutions or
orders of the RTCs in tax cases originally
decided by them, in their respected territorial
jurisdiction.
Over petitions for review of the judgments,
resolutions or orders of the RTCs in the exercise
of their appellate jurisdiction over tax cases
originally decided by the MeTCs, MTCs and
MCTCs in their respective jurisdiction.
d. Jurisdiction over tax collection cases as
herein provided:
General rule: Exclusive original jurisdiction in tax
collection cases involving final and executory
assessments for taxes, fees, charges and penalties:
BUT! collection cases where the principal amount of
taxes and fees, exclusive of charges and penalties,
claimed is less than P1,000,000.00 shall be tried by
the proper MTC, MeTC and RTC
e. Exclusive appellate jurisdiction in tax
collection cases:
Over appeals from the judgments, resolutions or
orders of the RTCs in tax collection cases originally
decided by them, in their respective territorial
jurisdiction.
Over petitions for review of the judgments,
resolutions or orders of the RTCs in the Exercise of
their appellate jurisdiction over tax collection cases
originally decided by the MeTCs, MTCs and MCTCs, in
their respective jurisdiction."
NOTE: RA9282 elevated CTAs rank to the level of
the Court of Appeals with special jurisdiction.
4. Sandiganbayan [Sec.4 of RA 8249]
Decisions and final orders of the Sandiganbayan
shall be subject to review on certiorari by the
Supreme Court in accordance with Rule 45 of
the Rules.
Whenever, in any case decided, the death
penalty shall have been imposed, the records
shall be forwarded to the SC whether the
accused shall have appealed or nor, for review
and judgment. [PD 1606 Sec 7]
Violations of RA 3019 (Anti-graft and Corrupt
Practices Law);
RA 1379 (Forfeiture of Illegally Acquired
Wealth);
Crimes by public officers or employees
embraced in Ch. II, Sec.2 Title VII, Bk. II of the
RPC (Crimes committed by Public Officers)
namely:
- Direct Bribery under Art. 210 as amended by
BP 871, May 29, 1985;
- Indirect Bribery under Art. 211 as amended by
BP 871, May 29, 1985;
- Qualified Bribery under Art. 211-A as
amended by RA 7659, Dec. 13, 1993;
- Corruption of public officials under Art. 212
where one or more of the accused are
officials occupying the following positions in
the government whether in a permanent,
acting or interim capacity, at the time of the
commission of the offense:
o Officials of the executive branch occupying
the positions of regional director and
higher, otherwise classified as Grade 27 and
higher, of the Compensation and Position
Classification Act of 1989 Republic Act No.
6758) specifically including:
o Provincial governors, vice-governors,
members of the sangguniang panlalawigan,
provincial treasurers, assessors, engineers
and other provincial department heads;
o City mayors, vice-mayors, members of the
sangguniang panglungsod, city treasurers,
assessors, engineers and other department
heads;
o Officials of the diplomatic service occupying
the position of consul and higher;
o Philippine Army and Air force colonels,
naval captains and all officers of higher
rank;
o Officers of the PNP while occupying the
position of Provincial Director and those
holding the rank of Senior Superintendent
or higher;
o City and provincial prosecutors and their
assistants; officials and the prosecutors in
the Office of the Ombudsman and special
prosecutor ;
o President, directors or trustees or managers
of government owned or controlled
corporations, state universities or
educational institutions or foundations;
- Members of Congress and Officials thereof
classified as Grade 27 and up under the
Compensation and Classification Act of 1989;
- Members of the Judiciary without prejudice to
the provision of the Constitution;
- Chairmen and members of Constitutional
Commissions, without prejudice to the
provision of the Constitution;

- All other national and local officials classified
as Grade 27 and higher under the
Compensation and Position Classification Act
of 1989.
Other offenses or felonies whether simple or
complexed with other crimes committed in
relation to their office by the public officials
and employees mentioned above;
Civil and Criminal Cases filed pursuant to and in
connection with EO 1, 2, 14 & 14-A issued in
1986
Petitions for issuance of Writ of mandamus,
prohibition, certiorari, habeas corpus,
injunction and other ancillary writs and
processes in aid of its appellate jurisdiction;
- Provided, jurisdiction is not exclusive of the
Supreme Court
Petitions for Quo Warranto arising or that may
arise in cases filed or that may be filed under
EO 1, 2, 14 & 14- A
OTHERS provided the accused belongs to Salary
Grade 27 or higher:
- Violation of RA 6713 - Code of Conduct and
Ethical Standards
- Violation of RA 7080 The Plunder Law
- Violation of RA 7659 - The Heinous Crime Law
- RA 9160 - Violation of The Anti-Money
Laundering Law when committed by a public
officer
- PD 46 referred to as the gift-giving decree
which makes it punishable for any official or
employee to receive directly or indirectly and
for the private person to give or offer to give
any gift, present or other valuable thing on
any occasion including Christmas, when such
gift, present or valuable thing is given by
reason of his official position, regardless of
whether or not the same is for past favors or
the giver hopes or expects to receive a favor
or better treatment in the future from the
public official or employee concerned in the
discharge of his official functions. Included
within the prohibition is the throwing of
parties or entertainment in honor of the
official or employee or his immediate
relatives.
- PD 749 which grants immunity from
prosecution to any person who voluntarily
gives information about any violation of
Art.210, 211 or 212 of the RPC, RA 3019,
Sec.345 of the NIRC, Sec. 3604 of the Customs
and Tariff Code and other provisions of the
said Codes penalizing abuse or dishonesty on
the part of the public officials concerned and
other laws, rules and regulations penalizing
graft, corruption and other forms of official
abuse and who willingly testifies against the
public official or employee subject to certain
conditions.
NOTE: Private individuals can be sued in cases
before the Sandiganbayan if they are alleged to be in
conspiracy with the public officer.
REMEDIAL LAW REVIEWER
b. Appellate Jurisdiction
Over final judgments, resolutions or orders of the
RTC whether in the exercise of their original or 85
appellate jurisdiction
over crimes and civil cases falling within the
original exclusive jurisdiction of the
Sandiganbayan but which were committed by
public officers below Salary Grade 27.
5. Regional Trial Courts
a. Exclusive Original Jurisdiction in Civil
Cases [Sec. 19, BP 129, Asked in the 2002
Bar Examinations]
Incapable of pecuniary estimation (2000 Bar
Exam);
- If the action is primarily for the recovery of a
sum of money, the claim is considered
capable of pecuniary estimation, and
jurisdiction over the action will depend on the
amount of the claim. [RCPI v. CA (2002)]
- If the basic issue is something other than the
right to recover a sum of money, if the money
claim is purely incidental to, or a
consequence of, the principal relief sought,
the action is one where the subject of the
litigation may not be estimated in terms of
money. [Soliven v. Fastforms (1992)]
- If the thing sought to be deposited or
consigned is a sum of money, the amount of
the debt due is determinable and capable of
pecuniary estimation. [Ascue v. CA (1991)]
- Action for support is incapable of pecuniary
estimation because the court is asked to
determine first WON the plaintiff is indeed
entitled to support. [Baito v. Sarmiento
(1960)]
- Action for specific performance is incapable
of pecuniary estimation. [Manufacturers
Distributors v. Yu Siu Liong (1966)]
- The jurisdiction of the respective courts is
determined by the value of the demand and
not the value of the transaction out of which
the demand arose.
- The alternative prayer for specific
performance is also of the same value, for the
alternative prayer would not have been made
in the complaint if one was more valuable
than the other.[Cruz v. Tan (1950)]
- Rescission is a counterpart of specific
performance therefore also incapable of
pecuniary estimation. [Lapitan v. Scandia
(1968)]
- Action for declaration of nullity of a deed of
partition is incapable of pecuniary estimation.
[Russel v. Vestil (1999)]
- An action for expropriation is incapable of
pecuniary estimation. [Bardillon v. Masili
(2003)]
Title to, or possession of, real property (or any
interest therein) where the propertys assessed
 REMEDIAL LAW REVIEWER
value exceeds P20K or P50K (for civil actions in
Metro Manila);
86 Exception: Forcible entry into and unlawful
detainer of lands/buildings
Admiralty and maritime jurisdiction where the
demand/claim exceeds P300K or P400K (in
Metro Manila);
- Maritime and admiralty cases involve trade
and transactions in the sea. Maritime
jurisdiction includes maritime tort. [Negre v.
Cabahug (1966)]
Probate (testate and intestate) where the gross
value of the estate exceeds P300K or P400K (in
Metro Manila);
Marriage contract and marital relations;
b. General Original Jurisdiction
All cases not within the exclusive jurisdiction of
any court/tribunal/person/ body exercising
judicial or quasi-judicial functions;
Within the exclusive original jurisdiction of a
Juvenile and Domestic Relations Court and of
the Court of Agrarian Relations;
All other cases where 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 P300K or
P400K in Metro Manila.
- The exclusion of the term damages of
whatever kind in determining the
jurisdictional amount under Sec. 19(8) and
Sec. 33 (1) of BP 129, as amended by RA7691,
applies to cases where the damages are
merely incidental to or a consequence of the
main cause of action. However, if the claim
for damages is the main cause of action, or
one of the causes of action, the amount of
such claim shall be considered in determining
the jurisdiction of the court.[Admin Circ. 09-
94]
- Actions for damages based on quasi-delicts
are primarily and effectively actions for the
recovery of a sum of money for the damages
suffered because of the defendants alleged
tortious acts. This money claim is the
principal relief sought, and is not merely
incidental thereto or a consequence thereof.
[Iniego v. Purganan (2006)]
c. Original Jurisdiction [Sec. 21, BP 129]
Certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction which
may be enforced in any part of their respective
regions;
- CONCURRENT jurisdiction with SC and CA
Actions affecting ambassadors and other public
ministers and consuls.
- CONCURRENT jurisdiction with SC
d. Exclusive Appellate Jurisdiction [Sec. 22,
BP 129]
All cases decided by MeTCs/MTCs/MCTCs in their
respective territorial jurisdictions. Metropolitan,
Municipal and Municipal Circuit Trial Courts
6. Family Courts
a. Exclusive Original Jurisdiction
Petitions for guardianship, custody of children,
habeas corpus in relation to the latter;
Petitions for adoption of children and revocation
thereof;
Complaints for annulment of marriage,
declaration of nullity of marriage and those
relating to marital status and property relations
of husband and wife or those living together
under different status and agreements, and
petitions for dissolution of conjugal partnership
of gains;
Petitions for support and/ or acknowledgement;
Summary judicial proceedings brought under the
Family Code;
Petitions for declaration of status of children as
abandoned, dependent or neglected children,
for voluntary or involuntary commitment of
children, and for suspension, termination or
restoration of parental authority under PD 603,
EO 56 s. 1986 and other related laws;
Cases for domestic violence against women and
children, as defined therein but which do not
constitute criminal offenses subject to criminal
prosecution and penalties.
7. Metropolitan Trial Courts/Municipal
Trial Courts
a. Exclusive Original Jurisdiction [Sec. 33, BP
129]
Civil actions and probate proceedings (testate
and intestate), including the grant of provisional
remedies, where the value of the personal
property, estate or amount of the demand does
not exceed P300K or P400K (in Metro Manila)
(value excludes of interest, damages of
whatever kind, attorneys fees, litigation
expenses, and costs);
- Interest, damages of whatever kind,
attorney's fees, litigation expenses and costs
shall be included in the determination of the
filing fees.
- If there are several claims or causes of actions
between the same/different parties in the
same complaint, the amount of the demand
shall be the totality of the claims in all the
causes of action, WON the causes of action
arose out of the same/different transactions.
Forcible entry and unlawful detainer
- If the defendant raises the question 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.
- That the MeTC has jurisdiction even in cases
where the issue of possession is closely
intertwined with the issue of ownership is now
a settled doctrine in ejectment proceedings.
[Heirs of B. Hernandez v. Vergara (2006)]
All civil actions that 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
P20K or P50K (in civil actions in Metro Manila).
- Value excludes interest, damages of whatever
kind, attorneys fees, litigation expenses and
costs
- If land is not declared for taxation purposes,
the value of such property shall be
determined by the assessed value of the
adjacent lots.
All civil cases subject to summary procedure.
b. Delegated Jurisdiction in Cadastral and
Land Registration Cases [Sec. 34, BP 129]
Lots where there is no controversy/ opposition;
or
Contested lots the value of which does not
exceed P100K.
- The value is to be ascertained:
o By the claimants affidavit;
o By agreement of the respective claimants,
if there are more than one;
o From the corresponding tax declaration of
the real property.
- MTC decisions in cadastral and land
registration cases are appealable in the same
manner as RTC decisions.
8. Shariah Courts
a. Original Jurisdiction (Article 143, CMPL)
All cases involving custody, guardianship,
legitimacy, paternity and filiation arising under
the Code of Muslim Personal Laws;
All cases involving disposition, distribution and
settlement of estate of deceased Muslims,
probate of wills, issuance of letters of
administration or appointment of administrators
or executors regardless of the nature or
aggregate value of the property;
Petitions for the declaration of absence and
death for the cancellation or correction of
entries in the Muslim Registries mentioned in
Title VI, Book Two of the Code of Muslim
Personal Laws;
All actions arising from the customary contracts
in which the parties are Muslims, if they have
not specified which law shall govern their
relations; and
All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus, and all
REMEDIAL LAW REVIEWER
other auxiliary writs and processes in aid of its
appellate jurisdiction.
b. Concurrent Jurisdiction with Civil Courts 87
Petitions by Muslim for the constitution of a
family home, change of name and commitment
of an insane person to an asylum;
All other personal and legal actions not
mentioned in paragraph 1 (d) wherein the
parties involved are Muslims except those for
forcible entry and unlawful detainer, which shall
fall under the exclusive jurisdiction of the
Municipal Circuit Court; and
All special civic actions for interpleader or
declaratory relief wherein the parties are
Muslims or the property involved belongs
exclusively to Muslims
Sharia Circuit Courts are courts where Muslims can
file cases involving the following:
Offenses defined and punished under PD 1083
Disputes relating to :
- Marriage
- Divorce
- betrothal or breach of contract to marry
- customary dower (mahr)
- disposition and distribution of property upon
divorce
- maintenance and support and consolatory
gifts (muta)
- restitution of marital right
- Disputes relative to communal properties
NOTE: The Sharia District Court or the Sharia
Circuit Court may constitute an Agama Arbitration
Council to settle certain cases amicably and without
formal trial.
The Council is composed of the Clerk of Court as
Chairperson and a representative of each of the
conflicting parties.
F. Jurisdiction over small claims,
cases covered by the rules on
Summary Procedure and Barangay
Conciliation
[A.M. No. 08-8-7-SC, the Rule of Procedure for Small
Claims Cases effective October 1, 2008]
1. Definition
Small claims courts are courts of limited jurisdiction
that hear civil cases between private litigants
[Rationale of Proposed Rule].
2. Purpose
The purpose of small claims process is to provide an
inexpensive and expeditious means to settle disputes
over small amounts [Riano].
 REMEDIAL LAW REVIEWER

3. Scope
88 This rule governs the procedure in actions before the
Metropolitan trial Courts, Municipal Trial Courts in
Cities, Municipal Trial Courts and Municipal Circuit
Trial Courts for payment of money where the value
of the claim does not exceed One Hundred Thousand
Pesos (P100,000.00) exclusive of interest and costs.
[Sec. 2, Scope]
4. Applicability
G. Totality Rule
Where there are several claims or causes of actions
between the same or different parties, embodied in
the same complaint, the amount of the demand shall
be the totality of the claims in all the causes of
action, irrespective of whether the causes of action
arose out of the same or different transaction [Riano
citing Pantranco North Express v Standard Insurance
(2005)]

The Metropolitan Trial Courts, Municipal Trial Courts

CIVIL PROCEDURE
in Cities, Municipal Trial Courts, and Municipal
Circuit Trial Courts shall apply this Rule in all actions I. ACTIONS
which are:
Actions, in general: An ordinary suit in a court of
purely civil in nature where the claim or relief justice by which one party prosecutes another
prayed for by the plaintiff is solely for payment for the enforcement/ protection of a right or
or reimbursement of sum of money, and the prevention/redress of a wrong [Santos vs.
the civil aspect of criminal action, or reserved Vda. De Caparas, (1959)]
upon the filing of the criminal action in court,
pursuant to Rule of 111 of the Revised Rules of Action vs Cause of action
Criminal Procedure. (Asked in the 1999 Bar Exam)
These claims or demands may be: Cause of action Action
For money owed under any of the following; A cause of action is Ordinary suit in a court
- Contract of Lease; the basis of the action of justice, by which one
- Contract of Loan; filed [Rule 2, Sec.1] party prosecutes another
- Contract of Services; Fact or combination of for the enforcement or
- Contract of Sale; or facts which affords a protection of a right, or
- Contract of Mortgage; party a right to the prosecution or
judicial interference in redress of a wrong
For damages arising from any of the following; his behalf. [Into vs.
- Fault or negligence; Valle (2005)]
- Quasi-contract; or
- Contract; 1. Meaning of ordinary civil actions
The enforcement of a barangay amicable An ordinary civil action is one that is governed by
settlement or an arbitration award involving a the rules for ordinary civil actions [Rule 1, Sec. 3(a)
money claim covered by this Rule pursuant to par 2]
Sec. 417 of Republic Act 7160, otherwise known
as the Local Government Code of 1991. [Sec. 4, 2. Meaning of special civil actions
Applicability]
A special civil action is one that is subject to the
5. Prohibited Pleadings specific rules prescribed for a special civil action; it
is also governed by the rules for ordinary civil
The following pleadings, motions, and petitions shall actions [Rule 1, Sec. 3(a) par 2]
not be allowed in the cases covered by this Rule:
Motion to dismiss the compliant except on the 3. Meaning of criminal actions
ground of lack of jurisdiction;
Motion for a bill of particulars; A criminal action is one by which the State
Motion for new trial, or for reconsideration of a prosecutes a person for an act or omission
judgment, or for reopening of trial; punishable by law. [Rule 1, Sec. 3(b)]
Petition for relief from judgment;
Motion for extension of time to file pleadings,
4. Civil actions versus special
affidavits, or any other paper;
Memoranda; proceedings
Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the A civil action is one by which a party sues another
court; for the enforcement or protection of a right, or the
Motion to declare the defendant in default; prevention or redress of a wrong. [Rule 1, Sec. 3(a)
Dilatory motions for postponement; par 1]
Reply;
Third-party complaints; and A special proceeding is a remedy by which a party
Interventions. [Sec. 14, Prohibited pleadings and seeks to establish a status, a right, or a particular
motions] fact. [Rule 1, Sec. 3 (c)]
 REMEDIAL LAW REVIEWER

matter in litigation must also involve any of the

Distinctions between Civil Actions and Special following issues: title to, ownership, possession,
Proceedings paritition, foreclosure or mortgage or any interest in
(Asked in the 1998 Bar Exam) real property. (Riano) 89
Action Special
Proceeding Real action Personal Mixed action
As to parties Involves 2 or more Involves at action
parties least 1 party or Ownership or Personal Both real and
2 or more possession of property is personal
parties in real property is sought to be properties are
proper cases involved recovered or involved
As to cause Involves a right May involve a damages for
of action and a violation of right, but there breach of
such right by the need not be a Contract or the
defendant which violation of this enforcement of
causes some right a contract are
damage/prejudice sought
upon the plaintiff Founded on Founded on Founded on
As to Requires the Requires no privity of real privity of both
formalities application of such estate contract
legal remedies in formalities, as Filed in the Filed in the The rules on
accordance with it court where the court where the venue of real
the prescribed may be granted property (or any plaintiff or any actions govern
rules upon portion thereof) of the
application is situated defendants
resides, at the
As to Ordinary rules of Special rules of plaintiffs
governing procedure procedure option
rules
As to appeal Cannot be Can be 6. Local and transitory actions
from an directly and immediately
interlocutory immediately and directly Local action Transitory action
order appealed to the appealed to
appellate court the appellate One that could be One that could be
until after final court instituted in one prosecuted in any one
judgment on the specific place [2011 of several places
merits Reviewer] [2011 Reviewer]
Venue depends upon Its venue depends
the location of the upon the residence of
5. Personal actions and real actions
property involved in the plaintiff or the
the litigation (Riano) defendant at the
Real Actions: Actions affecting title to or
option of the plaintiff
possession of real property, or interest therein.
(Riano)
[Rule 4, Sec. 1 par 1]

Personal Actions: All other actions are personal 7. Actions in rem, in personam and quasi
actions. [Rule 4, Sec.2] in rem
Importance of Distinction: for purposes of [Riano citing Domagas v. Jensen, (2005) and Biaco v.
determining the venue of the action (Riano) Philippine Countryside Rural Bank, (2007)]
Real actions shall be commenced and tried n the
proper court which has jurisdiction over the Action in rem Action in Action
area wherein the real property involved, or a personam quasi in rem
portion thereof, is situated. [Rule 4, Sec.1] Directed Directed Directed
Personal actions may be commenced and tried against the against against
where the plaintiff or any of the principal thing itself particular particular
plaintiffs resides, or where the defendant or any persons persons
of the principal defendants resides, or in the Jurisdiction Jurisdiction Jurisdiction
case of a non-resident defendant, where he may over the person over the person over the person
be found, at the election of the plaintiff. [Rule of the of the of the
4, Sec.2] defendant is defendant is defendant is
NOT required required not required as
NOTE: Not every action involving a real property is a long as
real action because the realty may only be jurisdiction
incidental to the subject matter of the suit. To be a over the res is
real action, it is not enough that the action must acquired
deal with real property. It is important that the
 REMEDIAL LAW REVIEWER

Action in rem Action in Action

personam quasi in rem II. CAUSE OF ACTION
90 A proceeding to An action to A proceeding
determine the impose to subject
state/condition responsibility the interest 1. Meaning of cause of action
of a thing or liability upon of a named
a person defendant A cause of action is the act or omission by which a
directly over a party violates a right of another. [Rule 2, Sec.2]
particular
property to Elements of a Cause of Action [cited in Riano]
an Plaintiffs legal right;
obligation/lie Defendants correlative obligation to respect
n burdening plaintiffs right;
it Defendants act/omission in violation of
Deal with the plaintiffs right [Ma-ao Sugar Central v. Barrios
status, (1947)] (Asked in the 1997 Bar Exam).
ownership or
liability of a Every ordinary civil action must be based on a cause
particular of action [Rule 2, Sec. 1]
property but
which are A cause of action stems from the sources of
intended to obligations under Art. 1156, CC - Law, Contract,
operate on Quasi-contract, Acts and omissions punishable by law
these and Quasi-delict. [Sagrada Orden etc v. National
questions Coconut Corporation (1952)]
only as
between the 2. Right of action versus cause of
particular
parties to the
action [Regalado]
proceedings
and not to Right of action Cause of action
ascertain or The remedial right or The delict or wrongful
cut-off the right to relief granted by act or omission
rights or law to a party to committed by the
interest of all institute an action defendant in violation of
possible against a person who has the primary rights of the
claimants committed a delict or plaintiff
[Domagas v. wrong against him
Jensen Right to sue as a The delict or wrong
(2005)] consequence of the
Judgment is Judgment is Judgment is delict
binding on the binding only binding upon Whether such acts give Determined by the
whole world upon parties particular him right of action averments in the
impleaded or persons determined by pleading regarding the
their successors substantive law acts committed by the
in interest defendant
Ex: Accion Ex: Action for Ex: Action for
reivindicatoria; specific partition; NOTE: There can be no right of action without a
annulment of performance; action to cause of action being first established [Regalado
marriage; action to foreclose real citing Espaol v. The Chairman of PVA (1985)]
naturalization recover money estate
proceedings or property mortgage 3. Failure to state a cause of action
(real or
personal) There is a failure to state a cause of action if
the pleading asserting the claim states no cause
The question of whether the trial court has of action. This is a ground for a motion to
jurisdiction depends on the nature of the action, dismiss. [Rule 16, Sec.1(g)]
i.e., whether the action is in personam, in rem, or It is submitted that the failure to state a cause
quasi in rem. [Riano citing Biaco v. Philippine of action dos not mean that the plaintiff has no
Countryside Rural Bank (2007)] cause of action. It only means that the
plaintiffs allegations are insufficient for the
The distinction is important to determine whether or court to know that the rights of the plaintiff
not jurisdiction over the person of the defendant is were violated by the defendant. (Riano)
required and consequently to determine the type of There is a failure to state a cause of action if
summons to be employed. [Riano citing Gomez v. allegations in the complaint taken together, do
Court of Appeals (2004)] not completely spell out the elements of a
particular cause of action. (Riano)

A failure to state a cause of action is not the
same as an absence or a lack of cause of action.
The former refers to an insufficiency in the
allegations of the complaint while the latter
refers to the failure to prove or to establish by
evidence ones stated cause of action. (Riano)
4. Test of the sufficiency of a cause
of action
Whether or not admitting the facts alleged, the
court could render a valid verdict in accordance with
the prayer of the complaint [Santos v. de Leo (2005)]
5. Splitting a single cause of action
and its effects
Definition: The act of instituting two or more suits
on the basis of the same cause of action. [Rule 2,
Sec.4]
The act of dividing a single or indivisible cause of
action into several parts or claims and bringing
several actions thereon. (Regalado)
Effects of splitting a cause of action: [Taken from
2011 Reviewer]
The filing of one or a judgment upon the merits
in any one is available as a ground for the
dismissal of the others. [Rule 2, Sec.4]
Filing of the 1st complaint may be pleaded in
abatement of the 2nd complaint, on the ground
of litis pendentia; or
A judgment upon the merits in any of the
complaints is available as ground for dismissal of
the others based on res judicata.
A MTD under Rule 16 Sec. 1(e) or (f) may be
filed in order that the complaint may be
dismissed.
Basis: A party may not institute more than one suit
for a single cause of action. [Rule 2, Sec. 3]
Purpose [City of Bacolod v. SM Brewery (1969)]
To prevent repeated litigation between the
same parties in regard to the same subject or
controversy;
To protect the defendant from unnecessary
vexation. Nemo debet vexare pro una et eadem
causa (No man shall be twice vexed for one and
the same cause);
To avoid the costs and expenses incident to
numerous suits.
A single act/omission can be violative of various
rights at the same time, as when the act constitutes
juridically a violation of several separate and
distinct legal obligations. However, where there is
only one delict/wrong, there is but a single cause of
action regardless of the number of rights that may
have been violated belonging to one person. The
singleness of a cause of action lies in the singleness
of the delict/wrong violating the rights of a person.
If only 1 injury resulted from several wrongful acts,
REMEDIAL LAW REVIEWER
only 1 cause of action arises. [Joseph v. Bautista
(1989)]
For a single cause of action or violation of a right, 91
the plaintiff may be entitled to several reliefs. It is
the filing of separate complaints for these several
reliefs that constitutes splitting up of the cause of
action which is proscribed by Rule 2, Sec. 3 and 4.
[City of Bacolod v. SM Brewery (1969)]
6. Joinder and misjoinder of causes of
action
Joinder of Cause of Action: It is the assertion of as
many causes of action as a party may have against
another in one pleading alone. It is also the process
of uniting 2 or more demands or rights of action in
one action. [Riano citing Rule 2, Sec. 5 and CJS]
Purpose: promote the policy on avoiding multiplicity
of suits.
The rule however is purely permissive as the plaintiff
can always file separate actions for each cause of
action. [Baldovir vs. Sarte, 36 Phil. 550]
Requisites [Rule 2, Sec. 5]:
The party joining the causes of action must
comply with the rules on joinder of parties;
The joinder shall not include special civil actions
or actions governed by special rules;
Where causes of action are between the same
parties but pertain to different
venues/jurisdictions, the joinder may be
allowed in the RTC provided one of the causes
of action are within the RTCs jurisdiction and
the venue lies therein;
TOTALITY RULE - Where the claims in all the
causes of action are principally for recovery of
money, the aggregate amount claimed shall be
the test of jurisdiction.
Misjoinder of causes of action [Rule 2, Sec. 6]
Misjoinder of causes of action is not a ground for
dismissal of an action.
A misjoined cause of action may, on motion or
motu propio, be severed and proceeded with
separately.
There is no sanction against non-joinder of
separate causes of action since a plaintiff needs
only a single cause of action to maintain an
action (Regalado).
III. PARTIES TO CIVIL ACTIONS
Requirements for a person to be a party to a civil
action:
HE MUST BE EITHER [Rule 1, Sec.3]:
- A natural person;
- A juridical person;
o The State and its political subdivisions;
o Other corporations, institutions and entities
for public interest or purpose, created by
law; and
 REMEDIAL LAW REVIEWER
o Corporations, partnerships and associations
for private interest or purpose to which the
92 law grants a juridical personality, separate
and distinct from that of each shareholder,
partner or member [Art. 44, CC]
- An entity authorized by law.
o The estate of a deceased person [Limjoco
vs. Intestate Estate of Fragante (1948)];
o A political party incorporated under Act
1459 [now BP 68 (Corporation Code)];
o A corporation by estoppel is precluded
from denying its existence and the
members thereof can be sued and be held
liable as general partners. [Riano citing
Sec. 21, BP68, The Corporation Code of
the Philippines]
o A contract of partnership having a capital
of P3,000.00 or more but which fails to
comply with the registration
requirements is nevertheless liable as a
partnership to third persons. [Riano citing
Art. 1772 in rel. to Art. 1768, Civil Code]
o A registered labor union [Sec. 243, PD 442
(Labor Code)], with respect to its
property.
o A legitimate labor organization may sue
and be sued in its registered name.
[Riano citing Art. 2429(e), Labor Code]
o The Roman Catholic Church has legal
capacity to sue. As to its properties, the
archbishop or diocese to which they
belong may be a party. [Barlin v. Ramirez
(1906); Riano citing Barlin v. Ramirez and
Versoza v. Fernandez(49 Phil. 627)].
o A dissolved corporation may prosecute
and defend suits by or gainst it provided
that the suits (i) occur within three years
after its dissolution, and (ii) the suits are
in connection with the settlement and
closure of its affairs. [Riano citing Sec.
122, Corporation Code]
HE MUST HAVE THE LEGAL CAPACITY TO SUE;
HE MUST BE THE REAL PARTY IN INTEREST.
[Berman v. Cheng (2005)]
- Only natural or juridical persons or entities
authorized by law may be parties in a civil
case.
- A sole proprietorship is not vested with
juridical personality and cannot sue or file or
defend an action.
- There is no law authorizing sole proprietorship
to file a suit.
- A sole proprietorship does not possess a
judicial personality separate and distinct from
the personality of the owner of the
enterprise. [Rimbunan v. Oriental (2005)]
- An unlicensed foreign corporation is
nonetheless permitted to bring suit in the
Philippines if it is suing on an isolated
transaction.
- Thus, the ascertainment of whether a foreign
corporation is merely suing on an isolated
transaction or is actually doing business in the
Philippines requires the elicitation of at least
a preponderant set of facts.
Note: A foreign corporation may be party to an
action in Philippine courts:
If licensed to engage in business in the
Philippines, it may sue or be sued in our courts;
If not licensed, it cannot sue, but it may be sued
in our courts;
If not engaged in business in the Philippines, it
may sue in courts on a single isolated
transaction, but it cannot be sued in our courts
on such transaction.
Lack of legal capacity to Lack of legal
sue personality to sue
The plaintiffs general The plaintiff is not the
disability to sue, such as real party in interest
on account of minority,
insanity, incompetence,
lack of juridical
personality or any other
general disqualifications
It can be a ground for a It can be used as ground
MTD [Rule 16 (1) (d)] for a MTD based on the
failure of complaint to
state a cause of action.
[Rule 16 (1) (g)]
Parties to a civil action
PLAINTIFF One having interest in the matter
of the action or in obtaining the relief
demanded; the claiming party or the original
claiming party and is the one who files the
complaint [Riano]; does not exclusively apply to
the original plaintiff [Rinao]; may refer to the
claiming party, the counter-claimant, the cross-
claimant, or the third (fourth, etc.)-party
plaintiff [Rule 3, Sec.1]
DEFENDANT One claiming an interest in the
controversy or the subject thereof adverse to
the plaintiff. The term may also include [Rule 3,
Sec 1):
- UNWILLING CO-PLAINTIFF A party who
should be joined as plaintiff but whose
consent cannot be obtained. He may be made
a defendant and the reason therefore shall be
stated in the complaint. [Rule 3, Sec. 10]
- The original plaintiff becoming a defendant to
the original defendants counterclaim; also
refers to the corss-defendant, or the third
(fourth, etc.)-party defendant. [Rule 3, Sec 1]
1. Real parties in interest;
indispensable parties; representatives
as parties; necessary parties; indigent
parties; alternative defendants
Real party in interest [Rule 3, Sec.2]
- The party who stands to be benefited/injured
by the judgment in the suit;
- The party entitled to the avails of the suit.
Rules:
o Every action must be prosecuted or
defended in the name of the real party in
interest. [Rule 3, Sec.2]
 REMEDIAL LAW REVIEWER

o The partys interest must be direct,

substantial and material [Sumalo v. Litton Indispensable parties Necessary parties [Rule
(2006)]. [Rule 3, Sec. 7] 3, Sec. 8]
o Husband and wife shall sue and be sued Must be joined under Should be joined 93
jointly, except as provided by law [Rule 3, any and all conditions, whenever possible; the
Sec. 4] his presence being a action can proceed even
o A minor or a person alleged to be sine qua non for the in their absence because
incompetent may sue or be sued, with the exercise of judicial their interest is separable
assistance of his father, mother, guardian, power from that of the
or if he has none, a guardian ad litem. [Rule indispensable party
3, Sec. 5] No valid judgment if The case may be
o Minors (represented by their parents) are indispensable party is determined in court but
real parties in interest under the principle not joined. the judgment therein will
of intergenerational responsibility. [Oposa not resolve the entire
v. Factoran (1993)] Note: This doctrine is controversy if a necessary
inconsistent with Rule 3, Sec. 1 which party is not joined
provides that only natural or juridical They are those with They are those whose
persons may be parties in a civil action. such an interest in the presence is necessary to
o If a party becomes incompetent/ controversy that a final adjudicate the whole
incapacitated during the pendency of the decree would controversy but whose
action, the action survives and may be necessarily affect their interests are so far
continued by/against the incompetent/ rights so that the court separable that a final
incapacitated assisted by his legal guardian cannot proceed without decree can be made in
or guardian ad litem [Rule 3, Sec. 18] their presence. their absence without
affecting them.
Indispensable parties
- An indispensable party is a real party-in- - Whenever in any pleading in which a claim is
interest without whom no final determination asserted a necessary party is not joined, the
can be had of an action. [Rule 3, Sec.7] pleader is under obligation to: (i) set forth the
- A party who has such an interest in the name of the necessary party, if known, and
controversy or subject matter that a final (ii) state the reason why the necessary party
adjudication cannot be made, in his absence, is omitted. [Riano citing Rule 3, Sec. 9 par 1]
without injuring or affecting that interest. - The non-inclusion of a necessary party does
(Riano) not prevent the court from proceeding in the
- The joinder of a party becomes compulsory action, and the judgment rendered therein
when the one involved is an indispensable shall be without prejudice to the rights of
party. [Riano citing Rule 3, Sec.7] such necessary party [Rule 3, Sec. 9 par 3]
- A person is NOT an indispensable party if his
interest in the controversy or subject matter Indigent Party [Rule 3, Sec. 21]
is separable from the interest of the other - INDIGENT One who has no money or
parties, so that it will not necessarily be property sufficient and available for food,
directly or injuriously affected by a decree shelter and basic necessities.
which does not complrete justice between - While the authority to litigate as an indigent
them. (Riano) party may be granted upon an ex parte
application and hearing, it may be contested
Representative as parties [Rule 3, Sec. 3] by the adverse party at any time before
- Those acting in fiduciary capacity, such as a judgment is rendered.
trustee/guardian/executor/administrator or a o If the court determines after hearing that
party authorized by law or ROC. the party declared indigent has sufficient
- The beneficiary shall be included in the title income or property, the proper docket and
of the case and shall be deemed to be the other lawful fees shall be assessed and
real party in interest. collected by the clerk of court.
- An agent acting in his own name and for the - The authority to litigate as an indigent shall
benefit of an undisclosed principal may sue or include an exemption from:
be sued without joining the principal. o Payment of docket fees and other lawful
fees;
Exception: If the contract involves things o Payment of TSN.
belonging to the principal. [Art. 1883, CC] - The amount of docket and other lawful fees is
a lien on any judgment rendered in favor of
Necessary Party [Rule 3, Sec. 8] indigent party, unless court otherwise
- One who is not indispensable but ought to be provides.
joined as a party if complete relief is to be
accorded as to those already parties, or for a Alternative Defendants [Rule 3, Sec. 13]
complete determination or settlement of the - Where the plaintiff is uncertain against whom
claim subject of the action of several persons he is entitled to relief, he
- Indispensable parties v. Necessary parties may join any or all of them in the alternative,
[taken from 2011 Reviewer and Riano]
 REMEDIAL LAW REVIEWER
although a right to relief against one may be
inconsistent with a right to relief against the
94 other.
2. Compulsory and permissive joinder
of parties
Compulsory joinder of indispensable parties
[Rule 3, Sec 7]
- Parties in interest without whom no final
determination can be had of an action shall
be joined either as plaintiffs or defendants
Permissive joinder [Rule 3, Sec. 6]
- Parties can be joined, as plaintiffs or
defendants, in one single complaint or may
themselves maintain or be sued in separate
suits.
Requisites (Regalado):
- Right to relief arises out of the same
transaction or series of transactions;
Note: SERIES OF TRANSACTIONS Transactions
connected with the same subject matter of
the suit.
- There is a question of law or fact common to
all the plaintiffs or defendants;
- Such joinder is not otherwise proscribed by
the rules on jurisdiction and venue.
3. Misjoinder and non-joinder of
parties
A party is misjoined when he is made a party to
the action although he should not be impleaded.
A party is not joined when he is supposed to be
joined but is not impleaded in the action.
(Riano)
Neither misjoinder nor non-joinder of parties is
a ground for dismissal of an action. [Rule 3, Sec.
11]
Parties may be dropped or added by order of the
court on motion of any party or on its own
initiative at any stage of the action and on such
terms as are just. [Rule 3, Sec.11]
Any claim against a misjoined party may be
severed and proceeded with separately. [Rule 3,
Sec. 11]
Non-joinder of an indispensable party is not a
ground for outright dismissal. Reasonable
opportunity must be given for his inclusion by
amendment of the complaint [Cortez v Avila
(1957)].
Objections to defects in parties should be made
at the earliest opportunity.
The moment such defect becomes apparent, a
motion to strike the names of the parties must
be made.
Objections to misjoinder cannot be raised for
the first time on appeal [Regalado citing Garcia
v Chua].
The rule on misjoinder or non-joinder of parties
does not comprehend whimsical and irrational
dropping or adding of parties in a complaint.
What it really contemplates is erroneous or
mistaken non-joinder and misjoinder or parties.
The rule presupposes that the original inclusion
had been made in the honest conviction that it
was proper and the subsequent dropping is
requested because it has turned out that such
inclusion was a mistake. [Riano citing Lim Tan
Hua v. Ramolete(1975)]
4. Class suit
Requisites [Rule 3, Sec. 12]
- Subject matter of the controversy is one of
common/general interest to many persons;
- The persons are so numerous that it is
impracticable to join them all as parties (i.e.
impracticable to bring them all before the
court);
- Parties bringing the class suit are sufficiently
numerous and representative of the class and
can fully protect the interests of all
concerned;
- The representative sues/defends for the
benefit of all.
Any party in interest shall have the right to
intervene to protect his individual interest.
[Rule 3, Sec. 12]
If a class suit is improperly brought, the action
is subject to dismissal regardless of the cause of
action [Rule 16, Sec 1 (d)].
A taxpayer's suit or a stockholder's derivative
suit is in the nature of a class suit, although
subject to the other requisites of the
corresponding governing law especially on the
issue of locus standi. [Regalado]
There is no class suit in an action filed by
associations of sugar planters to recover
damages in behalf of individual sugar planters
for an allegedly libelous article in an
international magazine. There is no common or
general interest in reputation of a specific
individual. Each of the sugar planters has a
separate and distinct reputation in the
community not shared by the others. [Riano
citing Newsweek, Inc. v. Intermediate Appellate
court (1986)]
A class suit does not require a commonality of
interest in the questions involved in the suit.
What is required by the Rules is a common or
general interest in the subject matter of the
litigation. [Riano citing Mathay v. Consolidated
Bank &Trust Company (1974)]
Class Suit Permissive Joinder of
Parties
There is a single cause of There are multiple
action pertaining to causes of action
numerous persons. separately belonging to
several persons.
CLASS SUIT AND DERIVATIVE SUIT, COMPARED
(Asked in the 2005 Bar Examination)
CLASS SUIT DERIVATIVE SUIT
 REMEDIAL LAW REVIEWER

When the subject matter An action brought by
of the controversy is one minority shareholders in
of common or general the name of the
interest to many corporation to redress
persons, and the parties wrongs committed
are so numerous that it against it, for which the
is impracticable to bring directors refuse to sue.
them all before the
court, one or more may It is a remedy designed
sue or defend for the by equity and has been
benefit of all. [Rule 3, the principal defense of
Sec. 12] the minority
shareholders against
abuses by the majority.
In a derivative action,
the real party in interest
is the corporation itself,
not the shareholders who
actually instituted it
[Lim vs. Lim Yu (2001))
5. Suits against entities without
juridical personality
Requisites [Rule 3, Sec.15]
There are 2 or more persons not organized as a
juridical entity;
They enter into a transaction;
A wrong is committed against a 3rd person in
the course of such transaction.
Effect: Persons associated in an entity without
juridical personality may be sued under the name by
which they are generally/commonly known, but they
cannot sue under such name. [Rule 3, Sec. 15]
- The court may appoint a guardian ad litem for
the minor heirs.
- The court shall order the legal 95
representative(s) to appear and be
substituted within 30 days from notice.
- If no legal representative is named or if the
one so name shall fail to appear within the
specified period, the court may order the
opposing party to procure the appointment of
an executor or administrator for the estate.
- The substitute defendant need not be
summoned. The order of substitution shall be
served upon the parties substituted for the
court to acquire jurisdiction over the
substitute party [Ferreria v Vda de Gonzales
(1986].
Death or separation of a party who is a public
officer [Rule 3, Sec. 17]
Requisites:
- Public officer is a party to an action in his
official capacity;
- During the pendency of the action, he either
dies/resigns or otherwise ceases to hold
office;
- It is satisfactorily shown to the court by any
party, within 30 days after the successor takes
office,
o that there is a substantial need to
continue/maintain the action and
o The successor adopts/continues (or
threatens to do so) his predecessors action
- The party or officer affected was given
reasonable notice of the application therefore
and accorded an opportunity to be heard.

The service of summons may be effected upon all
the defendants by serving upon any of them, or upon
the person in charge of the office or place of
business maintained under such name. [Rule 14, Sec.
8]
6. Effect of death of party litigant [this
section is taken from the 2011 Reviewer]
Substitution of parties
Death of a party, where the claim is not
extinguished by the death of the party (e.g.
cases involving property and property rights
[Bonilla v Barcena (1976)]); [Rule 3, Sec. 16]
(Asked in the 1998 and 1999 Bar Exams)
- Counsels duty:
o Inform court within 30 days after such
death of the fact thereof;
o Give the name and address of the legal
representatives.
Note: Failure to comply with this duty is a
ground for disciplinary action.
- The heirs may be substituted for the deceased
without requiring the appointment of an
executor or administrator.
Action on contractual money claims [Rule 3, Sec.
20]
Requisites:
- The action must primarily be for recovery of
money/debt or interest thereon;
- The claim arose from express/implied
contract;
- Defendant dies before the entry of final
judgment in the court in which the action was
pending.
The defendants death will not result in the
dismissal of the action.
The deceased shall be substituted by his legal
representatives in the manner provided for in
Rule 3, Sec. 16, and the action will continue
until the entry of final judgment (Asked in the
2000 Bar Exam)
However, execution shall not issue in favor of
the winning plaintiff. It should be filed as a
claim against the decedents estate without
need of proving the claim.
Transfer of interest during the pendency of the
action [Rule 3, Sec. 19]
General rule: The rule does not consider the
transferee an indispensable party. Hence, the
action may proceed without the need to
implead him.
 REMEDIAL LAW REVIEWER
Exception: When the substitution by or joinder
of the transferee is ordered by court.
96 - The case will be dismissed if the plaintiffs
interest is transferred to defendant unless
there are several plaintiffs, in which case the
remaining plaintiffs can proceed with their
own cause of action.
IV. VENUE
Venue is the place, or the geographical are where an
action is to be filed and tried. In civil cases, it
relates only to the place of the suit and not to the
jurisdiction of the court. [Riano citing Manila
Railroad Company v. Attorney General, (1911)]
1. Venue versus jurisdiction [Riano]
Distinctions between Venue and Jurisdiction
(Asked in the 2006 and 2008 Bar Exams)
Venue Jurisdiction
Place where the action is Power of the court to
instituted hear and decide a case
May be waived Jurisdiction over the
subject matter and over
the nature of the action
is conferred by law and
cannot-be waived
Procedural Substantive
May be changed by the Is fixed by law and
written agreement of the cannot be the subject of
parties the agreement of the
parties
Establishes a relation Establishes a relation
between plaintiff and between the court and
defendant, or petitioner the subject matter
and respondent
Not a ground for a motu Lack of jurisdiction over
propio dismissal (except the subject matter is a
in cases of summary ground for a motu
procedure; Rule 4, Rule proprio dismissal.
on Summary Procedure)
2. Venue of real actions
Shall be commenced and tried in the proper
court which has jurisdiction over the area
wherein the real property involved, or a portion
thereof is situated. [Rule 4, Sec. 1, par 1]
Forcible entry and detainer actions shall be
commenced and tried in the municipal court of
the municipality or city wherein the real
property involved, or a portion thereof, is
situated. [Rule 4, Sec. 1 par 2]
If the property is located at the boundaries of 2
places, file the case in either place (at the
plaintiffs option).
If the case involves 2 properties located in 2
different places:
- If the properties are the object of the same
transaction, file it in any of the 2 places;
- If they are the objects of 2 distinct
transactions, separate actions should be filed
in each place unless properly joined.
3. Venue of personal actions
At the plaintiffs election: [Rule 4, Sec. 2]
Where the plaintiff or any of the principal
plaintiffs resides;
Where the defendant or any of the principal
defendants resides;
In case of a non-resident-defendant, where he
may be found.
4. Venue of actions against non-
residents [Rule 5, Sec. 3] [also taken
from 2011 Reviewer]
Non-resident found in the Philippines
- For personal actions Where the plaintiff
resides;
- For real actions Where the property is
located.
Non-resident not found in the Philippines An
action may be filed only when the case involves:
- Personal status of plaintiff - Where plaintiff
resides;
- Any property of said defendant located in the
Phil. - Where the property (or any portion
thereof) is situated/found.
5. When the rules on venue do not
apply [Rule 4, Sec. 4]
If a specific rule/law provides otherwise (e.g.
action for damages arising from libel);
Stipulations as to Venue is permitted if the
parties have validly agreed
- in writing
- before the filing of the action
- on the exclusive venue
In the absence of qualifying restrictive words (e.g.
only/solely/exclusively in such court), venue
stipulation is merely permissive; that is, the
stipulated venue is in addition to the venue provided
for in the rules. [Polytrade Corp. v. Blanco (1969)]
The mere stipulation on the venue of an action,
however, is not enough to preclude parties from
bringing a case in other venues. The parties must be
able to show that such stipulation is exclusive. In the
absence of qualifying or restrictive words, the
stipulation should be deemed as merely an
agreement on an additional forum, not as limiting
venue to the specified place. [Riano citing Spouse
Lantin v. Lantion, (2006)]
6. Effects of stipulations on venue
To be binding, the parties must have agreed on
the exclusive nature of the venue of any
prospective action between them. The
agreement of parties must be restrictive and not
permissive. [Regalado]
In the absence of qualifying restrictive words
(e.g. only/solely/exclusively in such court),
venue stipulation is merely permissive; that is,
 REMEDIAL LAW REVIEWER

the stipulated venue is in addition to the venue court.

provided for in the rules. [Polytrade Corp. v.
Blanco (1969)]
The court may declare agreements on venue as Always filed before May be filed even after
97
contrary to public policy if such stipulation judgment judgment
unjustly denies a party a fair opportunity to file
suit in the place designated by the Rules
[Regalado, citing Hoechst Philippines v Torres 1. Kinds of Pleadings
(1978)].
Pleadings allowed [RULE 6, SEC. 2]
Other rules on venue 1) Complaint;
2) Answer;
IMPROPER VENUE: The Court may not motu 3) Counterclaim;
propio dismiss an action on the ground of 4) Cross-claim;
improper venue. [Dacoycoy v. IAC (1991)] 5) 3rd-party Complaint,
- Exception: In summary procedures. 6) Complaint-in-intervention;
CHANGE OF VENUE: The SC has the power to 7) Reply;
change the venue to prevent a miscarriage of
justice. [Art. 8, Sec. 5, Consti] a. Complaint [Rule 6, Sec. 3]
WAIVER OF VENUE:
- Until and unless the defendant objects to the Definition
venue in a motion to dismiss prior to a The pleading alleging the plaintiffs cause/s of
responsive pleading, the venue cannot truly action. It should contain a concise statement of the
be said to have been improperly laid since for ultimate facts constituting the plaintiffs cause/s of
all intents and purposes, the venue though action, not evidentiary facts or legal conclusions.
technically wrong may yet be considered
acceptable to the parties for whose It shall contain:
convenience the rules on venue had been in a methodical and logical form
devised. Although venue is mandatory, it is a plain, concise and direct statement of
waivable. [Diaz v. Adiong (1993)] ultimate facts on which the plaintiff relies for
- Means of waiving venue: his claim,
o Where parties validly agreed in writing omitting statement of mere evidentiary facts.
before the filing of the action on the [Rule 8, Sec 1]
exclusive venue thereof [Rule 4, Sec 4 (b)];
and Its function is to inform the defendant clearly and
o Failure to raise improper venue as definitely of claims made against him so that he may
affirmative defense or in motion to dismiss be prepared to meet the issues at trial.

It should inform the defendant of all material facts

V. PLEADINGS on which the plaintiff relies to support his demand.

1. Kinds of Pleadings It should state the theory of a cause of action which

2. Pleadings allowed in small claim cases and forms the bases of plaintiffs claim of liability.
cases covered by the rules on summary [Tantuico v. Republic (1991)]
procedure
3. Parts of a pleading ULTIMATE FACTS Essential facts constituting the
4. Allegations in a pleading plaintiffs cause of action. A fact is essential if it
5. Effect of failure to plead cannot be stricken out without leaving the
statement of the cause of action insufficient.
6. Default [Remitere v. Montinola (1966)]
7. Filing and Service of pleadings
8. Amendment Not ultimate facts:
Evidentiary or immaterial facts;
Definition Legal conclusions, conclusions or inferences of
Pleadings are the written statements of the facts from facts not stated, or incorrect
respective claims and defenses of the parties, inferences or conclusions from facts stated;
submitted to the court for appropriate judgment Conclusions of law alleged in the complaint are
[Rule 6, Sec. 1] not binding on the court.
The details of probative matter or particulars of
Pleading Motion evidence, statements of law, inferences and
Purpose: To submit a Purpose: To apply for an arguments.
claim/defense for order not included in the
appropriate judgment judgment TEST OF SUFFICIENCY OF THE FACTS ALLEGED IN THE
May be initiatory Cannot be initiatory as COMPLAINT: WON upon the averment of facts, a
they are always made in valid judgment may be properly rendered [Pamintan
a case already filed in v. Costales (1914)].
 REMEDIAL LAW REVIEWER

In an original action before the RTC, the

b. Answer [Rule 6, Sec. 4] counterclaim may be considered compulsory
98 regardless of the amount. [Rule 6, Sec. 7]
Definition In the case of Agustin v. Bacalan, if a
The pleading where the defendant sets forth his counterclaim is filed in the MTC in excess of its
affirmative/negative defenses. It may also be the jurisdictional amount, the excess is considered
response to a counterclaim or a cross-claim. waived.
But in Calo v. Ajax, the remedy where a
Two kinds of defenses that may be set forth in the counterclaim is beyond the jurisdiction of the
answer [Rule 6, Sec 5] MTC is to set off the claims and file a separate
Negative Defenses Specific denials of the action to collect the balance.
material facts alleged in the pleading of the
claimant essential to his cause of action. Kinds of counterclaims
- Negative Pregnant - Denial pregnant with an Compulsory Permissive
admission. It is a denial pregnant with the counterclaim counterclaim
admission of the substantial facts in the One which arises out of It does not arise out of
pleading responded to which are not squarely or is necessarily nor is it necessarily
denied. It is in effect an admission of the connected with the connected with the
averment it is directed to. [Philamgen v. transaction or subject matter of the
Sweet Lines (1993)] occurrence -that is the opposing party's claim.
Affirmative Defenses Allegations of new subject matter of the
matters which, while hypothetically admitting opposing party's claim.
the material allegations in the claimants Does not require for its May require for its
pleading, would nevertheless prevent/bar adjudication the adjudication the
recovery by him. It includes fraud, prescription, presence of third parties presence of third parties
release, payment and any other matter by way of whom the court over whom the court
of confession and avoidance. cannot acquire cannot acquire
jurisdiction. jurisdiction.
c. Counterclaims [Rule 6, Sec. 6] Barred if not set up in Not barred even if not
the action. set up in the action.
Definition Need not be answered; Must be answered,
Any claim which a defending party may have against no default. otherwise, the
an opposing party. defendant can be
declared in default.
A counterclaim is in the nature of a cross-
complaint. Although it may be alleged in the A permissive counterclaim requires the payment
answer, it is not part of the answer. of docket fees. [Sun Insurance v. Asuncion
Upon its filing, the same proceedings are had as (1989)]
in the original complaint. A plaintiff who fails or chooses not to answer a
For this reason, it must be answered 10 days compulsory counterclaim may not be declared in
from service [Rule 11, Sec 4] (Asked in the 2002 default, principally because the issues raised in
and 2008 Bar Exams). the counterclaim are deemed automatically
joined by the allegations in the complaint. [Gojo
How to raise counterclaims v. Goyala (1970)]
Included in the answer:
- A compulsory counterclaim or a cross-claim i. Compulsory counterclaim
that a defending party has at the time he
files his answer shall be contained therein. Requisites of a compulsory counterclaim [Rule 6,
[Rule 11, Sec. 8] Sec 7] (Asked in the 1998 bar exam)
Exception: Pleadings may be amended under It must arise out of, or be necessarily connected
Rule 11, Sec. 10: with, the transaction/occurrence that is the
- By leave of court; subject matter of the opposing party's claim;
- Before judgment; It does not require for its adjudication the
- On the grounds of: presence of 3rd parties of whom the court
o Oversight; cannot acquire jurisdiction;
o Inadvertence; It must be within the courts jurisdiction both as
o Excusable neglect; to the amount and the nature. [Regalado, citing
o When justice requires. Quintanilla v CA (1997)]

After the answer [Rule 11, Sec. 9]
Counterclaims/cross-claims arising after the
answer,
with the courts permission,
may be presented as a counterclaim/cross-claim
by supplemental pleading before judgment.
Rules on counterclaims
General rule: A compulsory counterclaim not set up
in the answer is deemed barred.
Exception: If it is a counterclaim which either
matured or was acquired by a party after serving his
answer. In this case, it may be pleaded by filing a
supplemental answer or pleading before judgment.
[Rule 11, Sec. 9]
 REMEDIAL LAW REVIEWER

adjudication of said cross-claim. In this case,

Note: the cross-claim is considered permissive.
The filing of a MTD and the setting up of a
compulsory counterclaim are incompatible The dismissal of the complaint carries with it the 99
remedies. dismissal of a cross-claim which is purely defensive,
In the event that a defending party has a ground but not a cross-claim seeking an affirmative relief.
for dismissal and a compulsory counterclaim at [Torres v. CA (1973)]
the same time, he must choose only one
remedy. Cross Claim, Counterclaim and Third Party
If he decides to file a MTD, he will lose his Complaint
counterclaim. But if he opts to set up his (Asked in the 1997 and 1999 Bar Exams)
counterclaim, he may still plead his ground for Cross-claim Counterclaim 3rd Party
dismissal as an affirmative defense in his complaint
answer. Against a co- Against an Against a
If any of the grounds to dismiss under Rule 17, party opposing party person not a
Sec. 3 arise, the proper recourse for a party to the
defendant who desires to pursue his compulsory action
counterclaim in the same proceeding is not a Must arise May arise out of or Must be in
MTD. out of the be necessarily respect of the
Instead, he should only move to have the transaction connected with opponents
plaintiff declared non-suited on the complaint that is the the transaction or (plaintiffs)
so that the latter can no longer present his subject the subject matter claim
evidence thereon, and simultaneously move that matter of the of the opposing
he be declared as in default on the compulsory original partys claim
counterclaim, and reserve the right to present action or of a (compulsory
evidence ex parte on his compulsory counterclaim counterclaim), or
counterclaim. [BA Finance v. Co (1993)] therein it may not
(permissive
ii. Permissive counterclaim counterclaim)

[NOTE: Please also refer to table comparing Counter-counterclaims and counter-cross-claims

compulsory and permissive counterclaims]
Test to determine whether a counterclaim is
compulsory or permissive
LOGICAL RELATIONSHIP TEST: Where conducting
separate trials of the respective claims would entail
substantial duplication of effort and time and
involves many of the same factual and legal issues.
[Meliton v. CA (1992)]
iii. Effect on the Counterclaim when the
complaint is dismissed
Under Section 3, Rule 17, dismissal of action due to
plaintiffs fault shall be without prejudice to the
defendants right to prosecute his counterclaim in
the same/separate action.
[Rule 6, Sec. 9]
Counter-Counterclaim - A claim asserted against
an original counter-claimant.
Counter-Cross-claim - A claim filed against an
original cross-claimant.
e. Third (fourth, etc.) party complaints [Rule
6, Sec. 11]
[NOTE: See also table in immediately preceding
subsection]
Definition: It is a claim that a defending party may,
with leave of court, file against a person not a party
to the action for contribution, indemnity,
subrogation or any other relief, in respect of his
opponent's claim.

d. Cross-claims [Rule 6, Sec. 8] There could also be a 4th/etc.-party complaint with

the same purpose and function.
Requisites for cross-claim
A claim by one party against a co-party; 3rd-party complaint Complaint in
It must arise out of the subject matter of the intervention
complaint or of the counterclaim; Brings into the action a Same
The cross-claimant is prejudiced by the claim 3rd person who was not
against him by the opposing party. originally a party
Initiative is with the Initiative is with a non-
General rule: A cross-claim is always compulsory. A person already a party to party who seeks to join
cross-claim not set up shall be barred. [Rule 9, Sec. the action the action
2]
3rd-party complaint Counterclaim
Exceptions: Need not be within the Must be within the
When it is outside the courts jurisdiction; jurisdiction of the court jurisdiction of the court
If the court cannot acquire jurisdiction over 3rd trying the main case trying the main case
parties whose presence is necessary for the Diminishes/defeats the Need not
 REMEDIAL LAW REVIEWER
recovery sought by the diminish/defeat the
opposing party recovery sought by the
100 opposing party
Cannot exceed the May exceed in amount
amount stated in the or be different in kind
original complaint from that sought in the
original complaint
Tests to determine whether the 3rd-party
complaint is in respect of plaintiff's claim [Capayas
v. CFI (1946)]
WON it arises out of the same transaction on
which the plaintiff's claim is based, or although
arising out of another/different transaction, is
connected with the plaintiffs claim;
WON the 3rd-party defendant would be liable to
the plaintiff or to the defendant for all/part of
the plaintiffs claim against the original
defendant;
WON the 3rd-party defendant may assert any
defenses which the 3rd-party plaintiff has or
may have to the plaintiffs claim.
NOTE:
Leave of court to file a 3rd-party complaint may
be obtained by motion under Rule 15.
Summons on 3rd (4th/etc.) party defendant
must be served for the court to obtain
jurisdiction over his person, since he is not an
original party.
Where the trial court has jurisdiction over the
main case, it also has jurisdiction over the 3rd-
party complaint, regardless of the amount
involved as a 3rd-party complaint is merely
auxiliary to and is a continuation of the main
action. [Republic v. Central Surety (1968)]
A 3rd-party complaint is not proper in an action
for declaratory relief.
f. Complaint-in-intervention
Pleadings in intervention [Rule 19, Sec. 3]
COMPLAINT-IN-INTERVENTION If intervenor
asserts a claim against either or all of the
original parties.
ANSWER-IN-INTERVENTION If intervenor
unites with the defending party in resisting a
claim against the latter.
Definition
INTERVENTION is a remedy by which a third party,
not originally impleaded in a proceeding, becomes a
litigant therein to enable him to protect or preserve
a right or interest which may be affected by such
proceeding.
Its purpose is "to settle in one action and by a single
judgment the whole controversy (among) the
persons involved." [First Philippine Holdings v.
Sandiganbayan (1996); Rule 19]
When allowed
Intervention shall be allowed when a person has:
a legal interest in the matter in litigation;
or in the success of any of the parties;
or an interest against the parties; and
when he is so situated as to be adversely
affected by a distribution or disposition of
property in the custody of the court or of an
officer thereof.
Not an independent action
Intervention is not an independent action, but is
ancillary and supplemental to an existing litigation.
[Republic v. Sandiganbayan]
It is neither compulsory nor mandatory but only
optional and permissive. [Mabayo v. CA (2002)]
The Court has full discretion in permitting or
disallowing intervention, which must be
exercised judiciously and only after
consideration of all the circumstances obtaining
in the case. [Mago v. CA (1999)]
It is not an absolute right as it can be secured
only in accordance with the terms of applicable
statute or rule. [Office of Ombudsman v.
Samaniego (2010)]
Requisites for valid intervention
There must be a motion for intervention filed
before rendition of judgment by the trial court.
Movant must show in his motion that he has a:
- legal interest in (1) the matter of litigation,
(2) the success of either of the parties in the
action or (3) against both parties.
- that the movant is so situated as to be
adversely affected by a distribution or other
disposition of property in the custody of the
court or an officer thereof
- that the intervention must not unduly delay or
prejudice the adjudication of the rights of the
original parties and that the intervenors
rights may not be fully protected in a
separate proceeding.
Meaning of legal interest
The legal interest must be one that is actual and
material, direct and of an immediate character, not
merely contingent or expectant so that the
intervenor will either gain or lose by the direct legal
operation of the judgment.
Remedy for denial of motion for intervention
The movant may file a motion for
reconsideration since the denial of a motion for
intervention is an interlocutory order.
Alleging grave abuse of discretion, movant can
also file a certiorari case.
g. Reply [Rule 6, Sec. 10]
Definition: The plaintiffs response to the
defendant's answer,
the function of which is to deny or allege facts
in denial or in avoidance of new matters alleged
by way of defense in the answer and
thereby join or make issue as to such new
matters.

Effect of failure to reply (Asked in the 2000 bar
exam)
General rule: Filing a reply is merely optional. New
facts that were alleged in the answer are deemed
controverted should a party fail to reply thereto.
Exception: Reply is required:
Where the answer is based on an actionable
document. [Rule 8, Sec. 8]
Where the answer alleges the defense of usury.
[Rule 8, Sec. 11]
2. Pleadings allowed in small claim
cases and cases covered by the rules
on summary procedure
Under the Revised Rules on Summary Procedure
the only pleadings allowed to be filed are:
complaints;
compulsory counterclaims and cross-claims
pleaded in the answer; and
the answers thereto. [Sec. 3]
Prohibited pleadings, motions or petitions:
Motion to dismiss the complaint or to quash the
complaint or information except on the ground
of lack of jurisdiction over the subject matter,
or failure to comply with required barangay
conciliation proceedings;
Motion for a bill of particulars;
Motion for new trial, or for reconsideration of a
judgment, or for opening of trial;
Petition for relief from judgment;
Motion for extension of time to file pleadings,
affidavits or any other paper;
Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
Motion to declare the defendant in default;
Dilatory motions for postponement;
Reply;
Third party complaints; and
Interventions. [Sec. 19]
Forms used under the Rule of Procedure under
Small Claims Cases:
Instead of filing complaint, a Statement of
Claim using Form 1-SCC shall be filed [Sec. 5]
Answer shall be filed by way of a Response using
Form 3-SCC [Sec. 10]
Defendant may file counterclaim if he possesses
a claim against the plaintiff that (a) is within
the coverage of this Rule, exclusive of interest
and costs; (b) arises out of the same transaction
or event that is the subject matter of the
plaintiffs claim; (c) does not require for its
adjudication the joinder of third parties; and (d)
is not the subject of another pending action, the
claim shall be filed as a counterclaim in the
Response; otherwise, the defendant shall be
barred from suit on the counterclaim.
The defendant may also elect to file a
counterclaim against the plaintiff that does not
arise out of the same transaction or occurrence,
REMEDIAL LAW REVIEWER
provided that the amount and nature thereof
are within the coverage of this Rule and the
prescribed docket and other legal fees are paid.
101
NOTE: Courts decision shall be contained in Form 13-
SCC
Prohibited Pleadings and Motions:
Motion to dismiss the complaint except on the
ground of lack of jurisdiction;
Motion for a bill of particulars;
Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
Petition for relief from judgment;
Motion for extension of time to file pleadings,
affidavits, or any other paper;
Memoranda;
Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
Motion to declare the defendant in default;
Dilatory motions for postponement;
Reply;
Third-party complaints; and
Interventions.
3. Parts of a pleading [Rule 7, Secs. 1
to 3]
a. Caption
Caption - Courts name, actions title (i.e.
parties names) and docket number.
Body - Pleadings designation, allegations of
party's claims/defenses, relief prayed for and
pleadings date.
- Paragraphs must be numbered, and each
paragraph number must contain a single
set of circumstances
- Headings: if more than one cause of
action, use "1st cause of action," 2nd
cause of action," etc.
- Specify relief sought, but it may add a
general prayer for such further/other
relief as may be deemed just/equitable.
- Every pleading shall be dated.
b. Signature and address
Pleading must be signed by the party/counsel. State
address (not PO box) in either case.
c. Verification and certification against forum
shopping [Rule 7, Sec 4]
Verification
Pleadings need not be verified, unless otherwise
provided by the law/rules.
How a Pleading is Verified [Rule 7, Sec 4]
By an affidavit:
That the affiant read the pleading;
That the allegations therein are true and correct
of his personal knowledge or based on authentic
documents.
 REMEDIAL LAW REVIEWER

Certification of Non-Forum Shopping (CNFS) [Rule Counsels signature is a certification that:

102 7, Sec. 5] - He has read the pleading;
Definition: The filing of multiple suits in different - To the best of his knowledge, information and
courts, simultaneously or successively, involving the belief there is good ground to support it;
same parties, to ask the courts to rule on the - It is not interposed for delay.
same/related causes and/or to grant the same or An unsigned pleading produces no legal effect.
substantially the same relief. [T'Boli Agro-Industrial However, the court may allow such deficiency
Development, Inc. (TADI) v. Solidapsi (2002)] (Asked to be remedied if it shall appear that the same
in the 2006 Bar Exam) was due to inadvertence and not intended for
delay.
Test to Determine WON there is Forum Shopping
(ASKED IN THE 2002 BAR EXAM) - WON in the 2 or 4. Allegations in a pleading
more cases pending, there is identity of:
Parties;
a. Manner of making allegations
Rights or causes of action;
Relief sought.
In general [RULE 8, SEC. 1]
In a methodical and logical form.
The CNFS is to be executed by the petitioner, not by
Plain, concise and direct statement of the
the counsel.
ultimate facts on which the party pleading relies
for his claim/defense.
CNFS is required only for complaints or initiatory
Omit evidentiary facts.
pleadings (e.g. permissive counterclaim, cross-claim
If defense relied on is based on law, cite the
etc.).
provisions and their applicability.
CNFS is not required in a compulsory counterclaim. A
Condition precedent - a general averment of the
counterclaim is not an initiatory pleading. [UST
performance or occurrence of all conditions
Hospital v. Surla (1998)]
precedent shall be sufficient [RULE 8, SEC. 3]
Failure to comply is not curable by mere amendment
Fraud, mistake, malice, intent, knowledge and
of the pleading but shall be cause for the dismissal
other condition of the mind, judgments, official
of the case, without prejudice and upon motion and
documents or acts - Circumstances constituting
after hearing, unless otherwise provided.
fraud or mistake must be stated with particularity
while malice, intent, knowledge or other condition
Effect of Submission of False CNFS or Non-
of the mind of a person may be averred generally
Submission of CNFS
[RULE 8, SEC. 5]
Indirect contempt;
Administrative and criminal actions.
Facts that may be Averred Generally
Conditions precedent; but there must still be
Effect of Willful and Deliberate Forum Shopping
an allegation that the specific condition
(Asked in the 2006 and 2007 Bar Exams)
precedent has been complied with, otherwise it
Ground for summary dismissal of the case with
will be dismissed for lack of cause of action;
prejudice;
[Rule 8, Sec 3]
Direct contempt and administrative sanctions.
Capacity to sue or be sued;
- Pleadings as well as remedial laws should be
Capacity to sue or be sued in a representative
liberally construed
capacity; [Rule 8, Sec 4]
- in order that the litigant may have ample
Legal existence of an organization;
opportunity to prove their respective claims,
- A party desiring to raise an issue as to the
and possible denial of substantial justice, due
legal existence or capacity of any party to sue
to technicalities, may be avoided. [Gerales v.
or be sued in a representative capacity shall
CA (1993)]
do so by specific denial which shall include
supporting particulars within the pleader's
Requirements of a corporation executing the
knowledge. [Rule 8, Sec 4]
verification/certification of non-forum shopping
Malice/intent/knowledge or other condition of
Only individuals vested with authority by a valid
the mind; [Rule 8, sec 5]
board resolution may sign the certificate of non-
Judgments of domestic/foreign courts,
forum shopping in behalf of a corporation. In
tribunals, boards or officers (without need to
addition, the Court has required that proof of said
show jurisdiction); [Rule 8, Sec 6]
authority must be attached. Failure to provide a
Official documents/acts. [Rule 8, Sec 9]
certificate of non-forum shopping is sufficient
ground to dismiss the petition. Likewise, the petition
Facts that must be Averred Particularly
is subject to dismissal if a certification was
Circumstances showing fraud/mistake in all
submitted unaccompanied by proof of the
averments of fraud/mistake [Rule 8, Sec 5]
signatorys authority. [PAL v. FASAP (2006)]

d. Effect of the signature of counsel in a

pleading

b. Pleading an actionable document
Actionable document
A document which is really the basis of the cause of
action (or defense), and not merely evidentiary
thereof. [Rule 8, Sec. 7]
Genuineness and due execution of an actionable
instrument shall be deemed admitted unless the
adverse party, under oath, specifically denies them,
and sets forth what he claims to be the facts. [Rule
8, Sec. 8]
Exception to the requirement of an oath: when the
adverse party does not appear to be a party to the
instrument. [Donato v. CA (1993)]
How an action or defense may be based on a
document:
By copying a substantial portion of the
document into the pleading;
By annexing /incorporating the document into
the pleading;
By both copying and annexing document into the
pleading.
c. Specific denials
Three Ways of Making a Specific Denial
SPECIFIC ABSOLUTE DENIAL by specifically
denying the averment and, whenever
practicable, setting forth the substance of the
matters relied upon for such denial.
PARTIAL SPECIFIC DENIAL part admission and
part denial;
DISAVOWAL OF KNOWLEDGE by an allegation of
lack of knowledge or information sufficient to
form a belief as to the truth of the averment in
the opposing party's pleading. This does not
apply where the fact as to which want of
knowledge is asserted is, to the knowledge of
the court, so plain and necessarily within the
defendant's knowledge that his averment of
ignorance must be palpably untrue.
NOTE:
General rule: Allegations not specifically denied are
deemed admitted [Rule 8, Sec. 11]
Exceptions:
Allegations as to the amount of unliquidated
damages;
Allegations immaterial to the cause of action;
Allegations of merely evidentiary or immaterial
facts may be expunged from the pleading or
may be stricken out on motion. [Rule 8, Sec. 12]
Conclusion of law.
Kinds of denial (Asked in the 2004 Bar Exam)
SPECIFIC DENIAL Specifies each material
allegation of fact the truth of which he does not
admit, and sets forth the substance of the
matters upon which he relies to support his
denial. [Rule 8, Sec. 10]
REMEDIAL LAW REVIEWER
DENIAL WITH QUALIFICATION - Specifies so
much of it as is true and material, and deny the
remainder.
SPECIFIC DENIAL FOR LACK OF 103
KNOWLEDGE/INFORMATION sufficient to form
as belief as to the truth of a material averment
made in the complaint.
SPECIFIC DENIAL UNDER OATH - Contests the
authenticity or due execution of an actionable
document. [Rule 8, Sec. 8]
Disciplinary Action on Counsel Regarding Pleadings
[Rule 7, Sec. 3]
Deliberately filing an unsigned pleading;
Deliberately signing a pleading in violation of
the Rules;
Alleging scandalous/Indecent matter in the
pleading;
Failing to promptly report a change of his
address.
Effect of failure to make specific denials
General rule: Defenses and objections not
pleaded either in a MTD or in the answer, are
deemed waived. [Rule 9, Sec. 1]
Exceptions:
- Lack of jurisdiction over the subject matter;
- Litis pendentia;
- Res judicata;
- Prescription
When a specific denial requires an oath - Contests
the authenticity or due execution of an actionable
document. [Rule 8, Sec. 8]
5. Effect of failure to plead
a. Failure to plead defenses and objections
General rule: Defenses and objections not
pleaded in answer or motion to dismiss are
deemed waived. (Omnibus Motion Rule) [Rule 9]
Exceptions:
- Lack of jurisdiction over the subject matter;
- Litis pendentia between same parties for the
same cause
- Res judicata
- Action barred by statute of limitations.
b. Failure to plead a compulsory
counterclaim and cross-claim
Compulsory counterclaim
General Rule: A compulsory counterclaim not
set up is considered barred. [Rule 9, Sec. 2]
Exception: If due to oversight, inadvertence,
excusable neglect, etc. the compulsory
counterclaim, with leave of court, may be set
up by amendment before judgment. [Rule 11,
Sec. 10]
Cross-claim
A cross-claim is always compulsory. A cross-claim not
set up shall be barred. [Rule 9, Sec. 2]
 REMEDIAL LAW REVIEWER
6. Default [Rule 9, Sec. 3]
104 Definition: Failure of the defendant to answer
within the proper period. It is not his failure to
appear nor his failure to present evidence (Asked in
the 2000 and 2001 Bar Exams)
Order of default Judgment by default
Issued by the court on Rendered by the court
plaintiffs motion, for following a default order
failure of the defendant or after it received ex
to file his responsive parte plaintiffs
pleading seasonably evidence
Interlocutory -Not Final Appealable
appealable
a. When a declaration of default is proper
Court validly acquired jurisdiction over the
defendants person, either by service of
summons or voluntary appearance;
Defendant fails to answer within the time
allowed therefor;
Motion to declare the defendant in default;
Notice to the defendant by serving upon him a
copy of such motion;
Proof of such failure to answer.
b. Effect of an order of default (Asked in the
1999 Bar Exam) [Rule 9, Sec 3(a)]
Party in default loses standing in court as a
party litigant. His failure to answer operates as
a waiver of right to take part in the trial, of
being heard, and of presenting evidence in his
favor.
- If the defendant was declared in default upon
an original complaint, the filing of the
amended complaint resulted in the
withdrawal of the original complaint.
- Hence, the defendant was entitled to file
answer to the amended complaint as to which
he was not in default.
The court shall proceed to render judgment
granting the claimant 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.
The party in default shall be entitled to notice
of subsequent proceedings but not to take part
in the trial.
- A defendant declared in default cannot take
part in the trial, but he cannot be disqualified
from testifying as a witness in favor of non-
defaulting defendants. [Cavili v. Florendo
(1987)]
- A party in default is entitled to notice of:
o Motion to declare him in default;
o Order declaring him in default;
o Subsequent proceedings;
o Service of final orders and judgments.
c. Relief from an order of default [Rule 9, Sec
3(b)]
Before judgment, a party declared in default
may 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 terms and conditions as justice
requires.
Remedies of a party declared in default
Pleadings, as well as remedial laws, should be
liberally construed in order that litigants may
have ample opportunity to prove their
respective claims, and possible denial of
substantial justice. [Gerales v. CA (1993)]
Dulos v. CA (1990)
MOTION TO SET At any time after the discovery
ASIDE ORDER OF of default and before
DEFAULT [RULE 9, judgment, defendant may file a
SEC. 3(B)] motion under oath to set aside
order of default on the ground
that his failure to file an
answer or appear on the date
set for the pre-trial was due to
fraud, accident mistake of law,
and excusable negligence and
that he has a meritorious
defense
MOTION FOR NEW If the judgment has already
TRIAL [RULE 37, been rendered when the
SEC. 1(A)] defendant discovered the
default, but before the same
became final and executory.
It should be filed within the
period for perfecting an
appeal. Timely filing thereof
interrupts the 15-day
reglementary period for an
appeal.
It is required that defendant
file first a motion to lift
order of default to regain his
standing. [Tan v. CA (1997)]
PETITION FOR If the defendant discovered the
RELIEF FROM default after the judgment has
ORDER, become final and executory
JUDGMENT OR
OTHER
PROCEEDINGS
[RULE 38, SEC. 1
AND 2]
APPEAL FROM THE The defendant may also appeal
RTC [RULE 41, from the judgment rendered
SEC. 1] against him as contrary to the
evidence or the law, even if he
did not present a petition to
set aside the order of default
An order of default is an interlocutory order
which is not appealable. A judgment by default
is a final disposition of the case and is
 REMEDIAL LAW REVIEWER

appealable. [MERALCO v. La Campana Food was filed but defendant did not appear at the
Products (1995)] hearing, the award may exceed the amount or be
A petition for certiorari under Rule 65, although different in kind from that prayed for.
not a substitute for an available or lost appeal, 105
may be invoked while the orders of the lower f. Actions where default are not allowed
court are issued without or in excess of
jurisdiction. Cases where no defaults are allowed [Rule 9, Sec
Judgment by default being appealable, appeal 3(e)]
should be perfected within 15 days from receipt Annulment of marriage; Declaration of nullity of
of copy of order denying MFR of default marriage; Legal Separation;
judgment. [Oriental Media v. CA (1995)] 1) Here, the court shall order the prosecuting
A satisfactory showing by the movant of the attorney to investigate WON parties are
existence of fraud, accident, mistake or colluding and, if there is no collusion, to
excusable neglect is an indispensable intervene from the State to ensure that
requirement for the setting aside of a judgment evidence is not fabricated.
of default or an order of default. Special civil actions of certiorari, prohibition
A meritorious defense is only one of the two and mandamus, where comment (instead of an
conditions. The meritorious defense must concur answer) is required to be filed.
with the satisfactory reason for the non-
appearance of the defaulted party. If there is no Failure to appear at pre-trial
such reason, the appropriate remedy is an
ordinary appeal under Rule 41, Sec. 2. [Ramnani Who fails to Effect
v. CA (1993)] appear
The jurisdiction was properly acquired by the TC Plaintiff Cause for dismissal of the
over the defendants person; he was therefore action which will be with
properly declared in default for not having filed prejudice, unless otherwise
any answer. ordered by the court
Despite his failure to file a motion to set aside Defendant Cause to allow plaintiff to
the declaration of default, he has the right to present evidence ex parte, and
appeal the default judgment. court to render judgment on
But in the appeal, only the evidence of the the basis thereof
petitioner may be considered, respondent not
having adduced any defense evidence. [Boticano
Default by defendant As in default
v. Chu (1987)]
(Rule 9, Sec. 3) (failure to appear by
plaintiff) (Rule 18, Sec.
d. Effect of a partial default [Rule 9, Sec 3(c)] 5)
Upon motion and notice Not required
If the pleading asserting a claim states a common to defendant.
cause of action against several defending parties, Requires proof of failure Not required
and some of the defending parties answer while the to answer
others fail, the court shall try the case against all
Court to render Court to allow plaintiff
defendants upon the answers filed and render
judgment, unless it to present evidence ex
judgment upon the evidence presented.
requires submission of parte, then the court
evidence shall render judgment
Exception: If the defense is personal to the one who
Relief awarded must be Relief awarded may be
answered; in which case, it will not benefit those
the same in nature and of different nature and
who did not answer.
amount as prayed for in amount from the relief
the complaint prayed for
e. Extent of relief
Lesaca v. CA (1992): A defendant who already filed
Extent of relief to be awarded
an answer cannot be declared in default. Only when
The award shall not exceed the amount or be
the defendant fails to file an answer to the
different in kind from that prayed for; nor award
complaint may the court proceed to render
unliquidated damages.
judgment.
Bayog v. Natino (1996): The Revised Rules on
Rationale: It is presumed that where the relief
Summary Procedure does not provide that an answer
demanded is greater or different in kind, defendant
filed after the reglementary period should be
would not have allowed himself to be declared in
expunged from the records.
default.
As a matter of fact, there is no provision for an entry
Datu Samad Mangelen v. CA (1992): In a judgment
of default if a defendant fails to file his answer.
based on evidence presented ex parte, judgment
should not exceed the amount or be different in kind
The defense of LOJ may have even been raised by
from that prayed for.
the defendant in a MTD as an exception to the rule
on prohibited pleadings in the Revised Rule on
On the other hand, in a judgment where an answer
Summary Procedure. Such a motion is allowed under
 REMEDIAL LAW REVIEWER

Sec. 19(a) thereof. always be within the prescriptive period of the

106 Malanyaon v. Sunga (1992): Where the failure to
appear at the pre-trial hearing was uncontrovertedly
due to illness, the default order may be set aside on
the ground of accident over which petitioner had no
control.
Also, the order of arrest was illegal as there is
nothing in the ROC which authorizes such a
consequence of a default order.
Acquisition of jurisdiction
action filed. [Sun Insurance v. Asuncion]
Further Modification by Heirs of Hinog v.
Melicor (2005): FEES AS LIEN. Where the trial
court acquires jurisdiction over a claim by the
filing of the pleading and the payment of the
prescribed filing fee, BUT SUBSEQUENTLY, the
judgment awards a claim not specified in the
pleading, or cannot then be estimated, or a
claim left for determination by the court, then
the additional filing fee shall constitute a lien
on the judgment.

Note: Appellate docket and other lawful fees must

7. Filing and Service of pleadings be paid within the same period for taking an appeal.
Non-payment is a valid ground for dismissal of an
Definition appeal. [M.A. Santander v. Villanueva (2004)]
FILING The act of presenting the pleading or However, delay in the payment of docket fees
other paper to the clerk of court. [Rule 13, Sec. confers upon the court discretionary and not
2] mandatory power to dismiss an appeal. [Villamor v.
SERVICE The act of providing a party or his CA (2004)]
counsel with a copy of the pleading or paper
concerned. [Rule 13, Sec. 2]
b. Filing versus service of pleadings
Papers Required to be Filed and Served [RULE 13,
Filing is the act of presenting the pleading or other
SEC. 4]
papers to the clerk of court. [RULE, 13, SEC. 2]
Pleading subsequent to the complaint;
Appearance;
Service is the act of providing a party with a copy of
Written Motion;
the pleading or paper concerned. [RULE, 13, SEC. 2]
Notice;
Order;
Judgment;
c. Periods of filing of pleadings
Demand;
Offer of Judgment; Answer to the complaint - The defendant shall
Resolution; file his answer to the complaint within fifteen
Similar papers. (15) days after service of summons, unless a
different period is fixed by the court. [Rule
11.1]
a. Payment of docket fees
within thirty (30) days after receipt of summons
As a rule, the court acquires jurisdiction over the
of the foreign entity where the defendant is a
case only upon payment of prescribed fees
foreign private juridical entity and service of
summons is made on the government official
General rule: Without payment, case is considered
designated by law to receive the same, the
not filed. Payment of docket fees is mandatory and
answer shall be filed [Rule 11.2]
jurisdictional.
Answer to amended complaint - Where the
It is not simply the filing of the complaint or
plaintiff files an amended complaint as a matter
appropriate initiatory pleading but the payment of
of right, the defendant shall answer the same
the prescribed docket fee, that vests a trial court
within fifteen (15) days after being served with
with jurisdiction over the subject matter or nature
a copy thereof.
of the action [Proton Pilipinas v. Banque National de
Paris]
Where its filing is not a matter of right, the
defendant shall answer the amended complaint
Effect of Failure to Pay Docket Fees at Filing
within ten (10) days from notice of the order
admitting the same. An answer earlier filed may
Manchester v. CA (1987) [Old Rule]: AUTOMATIC
serve as the answer to the amended complaint
DISMISSAL. Any defect in the original pleading
if no new answer is filed.
resulting in underpayment of the docket fees
cannot be cured by amendment, such as by the
Note that this Rule shall apply to the answer to
reduction of the claim as, for all legal purposes,
an amended counterclaim, amended cross-
there is no original complaint over which the
claim, amended third (fourth, etc.) party
court has acquired jurisdiction
complaint, and amended complaint-in-
intervention. [Rule 11.3]
Modification by Sun Insurance v. Asuncion
(1989): NOT AUTOMATIC DISMISSAL BUT Court
may allow payment of fees within reasonable
period of time. Note that payment should
 REMEDIAL LAW REVIEWER

Answer to counterclaim or cross-claim - A Service by (registered) mail [Rule 13, Sec. 7]

counterclaim or cross-claim must be answered - By depositing the copy in the office, in a
within ten (10) days from service. [Rule 11.4] sealed envelope, plainly addressed to the
party or his counsel at his office or at his 107
Answer to third (fourth, etc.)- party complaint residence (if known), with postage fully pre-
- Same rule as the answer to the complaint. paid, and with instructions to the postmaster
[Rule 11.5] to return the mail to the sender after 10 days
if undelivered.
Reply - within ten (10) days from service of the - If no registry service is available in the
pleading responded to. [Rule 11.6] locality of either sender or addressee, service
may be done by ordinary mail.
Answer to supplemental complaint - within ten
(10) days from notice of the order admitting the Substituted service [Rule 13, Sec. 8]
same, unless a different period is fixed by the By delivering the copy to the clerk of court, with
court. proof of failure of both personal service and service
by mail
Note that the answer to the complaint shall
serve as the answer to the supplemental Completeness Proof of service
complaint if no new or supplemental answer is of service (Rule (Rule 13 Sec. 13)
filed. 13 Sec. 10)
Personal Upon actual Written admission
NOTE: Upon motion and on such terms as may be service delivery of the party served,
just, the court may extend the time to plead OR
provided in these Rules. The court may also, upon Official return of
like terms, allow an answer or other pleading to be the server OR
filed after the time fixed by these Rules. [Rule Affidavit of the
11.11] party serving, with
a full statement of
d. Manner of filing the
date/place/manner
Manner of filing [Rule 13, Sec. 3] (Asked in the 2005 of service.
Bar particularly in comparison with filing in criminal Service by 10 days after Affidavit of the
actions) ordinary mailing, unless person mailing of
Personally. mail otherwise facts showing
- By personally presenting the original to the provided by the compliance with
clerk of court. court Sec. 7 of Rule 13.
- The pleading is deemed filed upon the receipt Service by Whichever is Affidavit of the
of the same by the clerk of court who shall registered earlier: person mailing of
endorse on it the date and hour of filing. mail Actual facts showing
- If a party avails of a private carrier, the date receipt by compliance with
of the courts actual receipt of the pleading the Sec. 7 of Rule 13
(not the date of delivery to the private addressee
carrier) is deemed to be the date of the filing 5 days after AND
of that pleading. [Benguet Electric the
Cooperative v. NLRC (1992]] addressee Registry receipt
By registered mail. received 1st issued by the post
- Filing by mail should be through the registry postmaster's office
service (i.e. by depositing the pleading in the notice
post office).
- The pleading is deemed filed on the date it
Service of judgments, final orders or resolutions
was deposited with the post office.
[Rule 13, Sec. 9]
By personal service;
e. Modes of service [Rule 13, Sec. 5] By registered mail;
By publication at the expense of the prevailing
Personal service [Rule 13, Sec. 6] party if party was summoned by publication and
- Delivering personally a copy to the party or has failed to appear in the action.
his counsel.
- Leaving a copy in counsel's office with his Priorities in modes of service and filing [Rule 13,
clerk or with a person having charge thereof. Sec. 11]
- If no person is found in his office, or if his
office is unknown, or if he has no office General rule: Personal filing and service. Resort to
Leaving the copy between 8am and 6pm at other modes of filing and service must be
the party's or counsel's residence (if known) accompanied by an explanation why the
with a person of sufficient age and discretion service/filing was not done personally. If there is no
then residing therein. written explanation, the paper is considered not
filed.
 REMEDIAL LAW REVIEWER

- an affidavit of the person mailing containing

Exception: Papers emanating from the court. the facts showing compliance with Rule 13,
108 Sec. 7, AND
When service is deemed complete - the registry receipt issued by the mailing
Personal service is deemed complete upon office.
actual delivery [Rule 13, Sec. 10] - the registry return card which shall be filed
Service by registered mail is complete upon immediately upon its receipt by the sender,
actual receipt by the addressee or after 5 days or in lieu thereof of the unclaimed letter
from the date he received the first notice of the together with the certified or sworn copy of
postmaster, whichever date is earlier. [Rule 13, the notice given by the postmaster to the
Sec. 10] addressee.
Service by ordinary mail is complete upon the
expiration of 10 days after mailing, unless the Notice of lis pendens [Rule 13, Sec. 14]
court otherwise provides [Rule 13, Sec. 10] LIS PENDENS - Notice of a pendency of the action
Substituted service is complete at the time of between the parties involving title to or right of
delivery of the copy to the clerk of court possession over real property.
together with the proof of failure of both
personal service and service by mail. [Rule 13, Requisites: [AFP Mutual Benefit Association v. CA
Sec. 8] (2001)]
Action affects the title or the right of possession
Proof of filing and service of the real property;
Affirmative relief is claimed;
Proof of filing Notice shall contain the name of the parties and
Filing is proved by its existence in the record of the object of the action/defense and a
the case [Rule 13, Sec. 12]. description of the property affected thereby;
If it is not in the record [Rule 13, Sec. 12]. Action in rem.
- The notice serves as a warning to all persons,
When Proof of filing prospective purchasers or encumbrancers of
pleading is the property in litigation to keep their hands
deemed off the property in litigation unless they are
filed prepared to gamble on the result of the
Personally Upon receipt Written/stamped proceedings.
of the acknowledgment by - The defendant may also record a notice of lis
pleading by the clerk of court pendens when he claims an affirmative relief
the clerk of in his answer.
court - The notice of cannot be cancelled on an ex
By On the date Registry receipt, and parte motion or upon the mere filing of a
registered the pleading affidavit of the person bond by the party on whose title the notice is
mail was who did the mailing annotated, as Sec. 14 provides that such
deposited with: cancellation may be authorized only upon
with the Full statement of order of court, after proper showing that:
post office the date/place of [Roxas v. CA (1993)]
depositing the mail - The notice is for the purpose of molesting the
in the post office in adverse party; or
a sealed envelope - It is not necessary to protect the rights of the
addressed to the party who caused it to be recorded
court
Postage fully paid Amended and supplemental pleadings
Instructions to the
postmaster to 8. Amendment
return the mail to
the sender after 10 How to amend pleadings [Rule 10, Sec. 1]
days if undelivered Adding an allegation of a party;
Adding the name of a party;
Proof of Service [Rule 13, Sec. 13] Striking out an allegation of a party;
Proof of personal service shall consist of: Striking out the name of a party;
- a written admission of the party served, or Correcting a mistake in the name of a party; and
the official return of the server, OR Correcting a mistaken or inadequate allegation
- the affidavit of the party serving, or description in any other respect.
- Content: full statement of the date, place
and manner of service. Purpose: That the actual merits of the controversy
Proof of service by ordinary mail: may speedily be determined, without regard to
- an affidavit of the person mailing technicalities, and in the most expeditious and
- Content: facts showing compliance with Rule inexpensive manner.
13, Sec. 7
Proof of service by registered mail

Barfel Development v. CA (1993): As a general
policy, liberality in allowing amendments is greatest
in the early stages of a law suit, decreases as it
progresses and changes at times to a strictness
amounting to a prohibition.
This is further restricted by the condition that the
amendment should not prejudice the adverse party
or place him at a disadvantage.
Form [Rule 10, Sec. 7]
A new copy of the entire pleading, incorporating the
amendments, which shall be indicated by
appropriate marks, shall be filed.
a. Amendment as a matter of right
SUBSTANTIAL AMENDMENTS once, made at any
time before a responsive pleading is served. If it is a
reply, once, made at any time within l0 days after it
is served. [Rule 10, Sec. 2] (Asked in the 2003 Bar
Exam)
If as a matter of discretion Amendment requires
leave of court if:
It is substantial; and
A responsive pleading has already been served.
[Rule 10, Sec. 3]
b. Amendments by leave of court
SUBSTANTIAL AMENDMENTS - If as a matter of
discretion, requires leave of court if:
It is substantial; and
A responsive pleading has already been served.
[Rule 10, Sec. 3]
Requisites for amendments by leave of court
Motion filed in court;
Notice to the adverse party;
Opportunity to be heard afforded to the adverse
party.
(NOTE: In the 2008 Bar Exam, a question was asked
on amendment of complaint to implead additional
parties)
When amendment by leave of court may not be
allowed
If the cause of action, defense or theory of the
case is changed.
If amendment is intended to confer jurisdiction
to the court.
- If the court has no jurisdiction in the subject
matter of the case, the amendment of the
complaint cannot be allowed so as to confer
jurisdiction on the court over the property.
[PNB v. Florendo (1992)]
If amendment is for curing a premature or non-
existing cause of action.
If amendment is for purposes of delay.
Note:
Admitting an amended complaint in intervention
is a matter addressed to the courts discretion,
REMEDIAL LAW REVIEWER
subject only to the limitations that amendments
should not substantially change the cause of
action or alter the theory of the case or made to
delay the action. 109
Once exercised, it cannot be disturbed on
appeal, except in case of abuse thereof.
[Metropolitan Bank v. Presiding Judge (1990)]
c. Formal amendment [Rule 10, Sec. 4]
A defect in the designation of the parties and
other clearly clerical errors may be summarily
corrected by the court motu proprio or by
motion at any stage of the action.
Provided that no prejudice is caused to the
adverse party.
d. Amendments to conform to or authorize
presentation of evidence [Rule 10, Sec. 5]
(Asked in the 2004 Bar Exam)
If issues not raised by the pleadings are tried
with the express/implied consent of the parties,
they shall be treated in all respects as if they
had been raised in the pleadings.
Amendment of 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, 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.
Amendments vis--vis supplemental
pleadings
e. Different from supplemental pleadings
Supplemental pleadings (ASKED IN THE 2000 BAR
EXAM)
Definition: One which sets forth transactions,
occurrences or events which have happened since
the date of the pleading sought to be supplemented.
[Rule 10, Sec. 6]
It is made upon motion of a party with reasonable
notice and upon terms as are just.
The cause of action stated in the supplemental
complaint must be the same as that stated in the
original complaint. Otherwise, the court should not
admit the supplemental complaint. [Asset
Privatization Trust v. CA (1998)]
A supplemental complaint/pleading supplies
deficiencies in aid of an original pleading, not to
entirely substitute the latter.
 REMEDIAL LAW REVIEWER

Unlike in an amended complaint, the original corresponding summons to the defendants. [Rule 14,
complaint exists side by side with the supplemental Sec. 1]
110 complaint. [Shoemart v. CA (1990)]
Contents of summons [Rule 14, Sec. 2]
Amendments Supplemental pleadings Summons must be directed to the defendant, signed
Reason for the Grounds for the by the clerk of the court under seal, and contain:
amendment is available supplemental pleading (1) Name of the court and names of the parties;
at time of the 1st arose after the 1st (2) Direction that the defendant answer within the
pleading pleading was filed time fixed;
Either as a matter of Always a matter of (3) Notice that unless the defendant so answers,
right or a matter of discretion plaintiff will take judgment by default and may
discretion be granted the relief applied for.
Supersedes the pleading Supplements the
pleading (i.e. Exists side A copy of the complaint and order for appointment
by side with the original of guardian ad litem (if any) shall be attached to the
pleading) original and each copy of the summons.
When an amended A supplemental pleading
pleading is filed, a new does not require the NOTE that jurisdiction over person of defendant may
copy of the entire filing of a new copy of also be acquired through voluntary appearance.
pleading must be filed the entire pleading
2. Voluntary appearance
f. Effect of amended pleading
General rule: Defendant's voluntary appearance in
Effect [Rule 10, Sec. 8] the action shall be equivalent to service of
Amended pleading supersedes the pleading that summons;
it amends.
Claims and defenses in superseded pleading Exception: Special appearance to file a MTD.
which are not incorporated in the amended
pleading are deemed waived. BUT inclusion in the MTD of grounds other than LOJ
Admissions made in the superseded pleading over the defendants person, is not deemed a
may still be received in evidence against the voluntary appearance.
pleader.
Any mode of appearance in court by a defendant or
his lawyer is equivalent to service of summons,
absent any indication that the appearance of counsel
VI. SUMMONS for petitioner is precisely to protest the jurisdiction
1. Nature and purpose of summons in of the court over the person of the defendant.
relation to actions in personam, in rem [Delos Santos v. Montesa (1993)]
and quasi in rem
2. Voluntary appearance Who serves the summons [rule 14, sec. 3]
(1) The sheriff or his deputy;
3. Personal service (2) Other proper court officers;
4. Substituted service (3) For justifiable reasons, any suitable person
5. Constructive service (by publication) authorized by the court issuing the summons.
6. Extra-territorial service, when allowed (4) Officer having management of a jail or
7. Service upon prisoners and minors institution deputized as special sheriff when
8. Proof of service defendant is a prisoner [rule 14, sec. 9]

Definition: A coercive force issued by the court to
acquire jurisdiction over the person of the defendant
(asked in the 1999 Bar Exam)
1. Nature and purpose of summons in
relation to actions in personam, in
rem and quasi in rem
Purpose
(1) To acquire jurisdiction over the person of the
defendant in a civil case;
(2) To give notice to the defendant that an action
has been commenced against him.
Return of summons [rule 14, sec. 4]
When the service has been completed, the server
shall, within 5 days therefrom, serve a copy of the
return (personally or by registered mail) to the
plaintiff's counsel, and shall return the summons to
the clerk who issued it, accompanied by proof of
service.
Alias summons [rule 14, sec. 5]
Upon plaintiffs demand, the clerk may issue an alias
summons if either:
(1) Summons is returned without being served on
any/all of the defendants.
(2) Summons was lost.

Issuance of summons The server shall also serve a copy of the return on
Upon the filing of the complaint and the payment of the plaintiff's counsel within 5 days therefrom,
legal fees, the clerk of court shall issue the stating the reasons for the failure of service.

Modes of service of summons
Any application to the court under Rule 14 for leave
to effect service in any manner for which leave of
court is necessary shall be made by:
(1) motion in writing,
(2) supported by affidavit of the plaintiff or some
person on his behalf, setting forth the grounds
for the application. [Rule 14, Sec. 17]
3. Personal service
Service in person on defendant
(1) By handing a copy of summons to him;
(2) By tendering it to him, if he refuses to receive
and sign for it. [Rule 14, Sec. 6]
4. Substituted service [Rule 14, Sec. 7]
(asked in the 2004 Bar Exam)
Rationale: Enjoyment of the privileges of residence
within the state, and the attendant right to invoke
the protection of its laws, are inseparable from the
various incidences of state citizenship.
One such incident of domicile is amenability to suit
within the state even during sojourns without the
state, where the state has provided and employed a
reasonable method for apprising such an absent
party of the proceedings against him. [Northwest v.
CA (1995)]
For a valid substituted service of summons, the
following must be established in the proof of service:
[Sps. Ventura v. CA (1987)]
(1) Impossibility of the personal service of summons
within a reasonable time;
(2) Efforts made to find the defendant personally
and the fact that such efforts failed; [Laus v. CA
(1993)]
(3) Service by leaving copy of summons either:
(a) With some person of suitable age and
discretion then residing in the defendants
residence;
(b) With some competent person in charge of
the defendants office or regular place of
business.
For a substituted service to be valid, summons
served at the defendant's residence must be served
at his residence at the time of such service and not
at his former place of residence.
"Dwelling house" or "residence" refer to the place
where the person named in the summons is living at
the time when the service is made, even though he
may be temporarily out of the country at the time.
[Sps. Ventura v. CA (1987)]
Substituted service must be used only as prescribed
and in the circumstances authorized by statute.
Statutes prescribing modes other than personal
service of summons must be strictly complied with
to give the court jurisdiction, and such compliance
must appear affirmatively in the return. [Laus v. CA
(1993)]
REMEDIAL LAW REVIEWER
Absence in the sheriff's return of a statement about
the impossibility of personal service does not
conclusively prove that the service is invalid.
111
Proof of prior attempts at personal service may be
submitted by the plaintiff during the hearing of any
incident assailing the validity of the substituted
service.
While the sheriff's return carries with it the
disputable presumption of regularity in the sense
that the entries therein are deemed correct, it does
not necessarily follow that an act done in relation to
the official duty for which the return is made was
not done simply because it is not disclosed therein.
[Mapa v. CA (1992)]
5. Constructive service (by
publication) [Rule 14, Sec. 14]
Requisites
(1) The action is in rem or quasi in rem;
(2) Defendant's identity or whereabouts are
unknown and cannot be ascertained by diligent
inquiry;
(3) There must be leave of court.
Summons by publication in a personal action cannot
confer upon the court jurisdiction over the person of
the defendant, who does not voluntarily submit
himself to the authority of the court.
The proper recourse for the plaintiff is to locate
properties of the defendant whose address is
unknown and cause them to be attached.
[Consolidated Plywood vs. Breve (1988)]
Service of summons upon different entities
See Annex A.
a. Service upon a defendant where his
identity is unknown or where his
whereabouts are unknown [Rule 14, Sec. 14]
With leave of court, by publication in a newspaper of
general circulation
b. Service upon residents temporarily outside
the Philippines [Rule 14, Sec. 16]
With leave of court, may serve extraterritorially
Service of summons upon different entities
Summons is validly served if it is left with some
person of suitable age and discretion then residing in
the defendant's residence, even if defendant was
abroad at that time. The fact that the defendant did
not actually receive the summons did not invalidate
the service of such summons. [Montalban v. Maximo
1963]
 REMEDIAL LAW REVIEWER
6. Extra-territorial service, when
allowed [Rule 14, Sec. 15]
112
Requisites: (Asked in the 1997 and 2008 Bar Exam)
(1) Defendant does not reside or is not found in the
Philippines;
(2) Action either:
(a) Affects the plaintiffs personal status;
(b) Relates to or the subject matter of which is
property within the Philippines in which
defendant has a lien/interest;
(c) Demands a relief which consists
wholly/partially in excluding the defendant
from any interest in any property within the
Philippines;
(d) Has defendants property in the Philippines,
attached.
Modes of service
(1) With leave of court, serve outside the
Philippines by personal service; or
(2) With leave of court, serve by publication in a
newspaper of general circulation, in which case
copy of the summons and order of the court
must also be sent by registered mail to the
defendants last known address;
(3) Any other manner the court deems sufficient
The court order granting extraterritorial service shall
specify a period of at least 60 days within which the
defendant must answer.
7. Service upon prisoners and minors
Service upon prisoner [Rule 14, Sec. 9]
Serve upon the officer having management of the
jail/prison
Service upon minors and incompetents [Rule 14,
Sec. 10]
Serve upon the minor/incompetent and on his legal
guardian.
If there is no guardian, plaintiff may apply for
the appointment of a guardian ad litem.
If minor, may serve on his parents.
8. Proof of service
Return of service [Rule 14, Sec. 4]
When service has been completed, the server shall
serve a copy of the return within 5 days (personally
or by registered mail) to the plaintiff's counsel, and
shall return the summons to the clerk who issued it,
accompanied with the proof of service.
General rule: Return of service of summons
immediately shifts burden of evidence from plaintiff
to defendant since there is a presumption of
regularity.
Without return of service: Burden is on plaintiff.
In the Mapa case though, while there was a
return, return was patently irregular, thus no
presumption of regularity could be had.
Exception: Doctrine of substantial compliance If
defendant actually received summons and complaint
despite all these technicalities.
Proof of service
If personal or substituted service: In writing by the
server and shall: [Rule 14, Sec. 18]
(1) Set forth the manner/place/date of service;
(2) Specify any papers which have been served with
the process and the name of the person who
received the same;
(3) Be sworn to when made by a person other than
a sheriff or his deputy.
If by publication: [Rule 14, Sec. 19]
(1) Affidavit of the printer, his foreman, principal
clerk, or the editor, business/advertising
manager, with a copy of the publication
attached, AND
(2) Affidavit showing the deposit of a copy of the
summons and order for publication in the post
office, postage prepaid, directed to the
defendant by registered mail to his last known
address.
Effect of non-service of summons (asked in the
2006 Bar Exam)
Unless the defendant voluntarily submits to the
jurisdiction of the court,non-service or irregular
service of summons renders null and void all
subsequent proceedings and issuances in the action
from the order of default up to and including the
judgment by default and the order of execution.
If the defendant has already been served with
summons on the original complaint, no further
summons is required on the amended complaint if it
does not introduce new causes of action. [Ong Peng
v. Custodio 1961]
But if the defendant was declared in default on the
original complaint and the plaintiff subsequently
filed an amended complaint, new summons must be
served on the defendant on the amended complaint,
as the original complaint was deemed withdrawn
upon such amendment. [Atkins v. Domingo 1923]
Waiver of service of summons [Rule 14, Sec. 20]
General rule: Defendant's voluntary appearance
in the action shall be equivalent to service of
summons;
Exception: Special appearance to file a MTD.
Inclusion in the MTD of grounds other than LOJ
over the defendants person, is not deemed a
voluntary appearance. Any mode of appearance
in court by a defendant or his lawyer is
equivalent to service of summons, absent any
indication that the appearance of counsel for
petitioner is precisely to protest the jurisdiction
of the court over the person of the defendant.
[Delos Santos v. Montesa (1993)]
Service of summons upon different entities
See Annex A.
 REMEDIAL LAW REVIEWER

VII. MOTIONS Exception: Oral motions:

(1) Made in open court;
1. Motions in general (2) In the course of a hearing/trial.
2. Motions for Bill of Particulars 113
3. Motion to Dismiss d. Notice of hearing and hearing of motions

Requisites of motions (not made in open court or

1. Motions in general in the course of hearing/trial)
(1) In writing; [Rule 15, Sec. 2]
a. Definition of a motion
(2) Hearing on the motion set by the applicant
An application for relief other than by a pleading Notice of hearing shall be addressed to all
[Rule 15, Sec. 1] parties, and shall specify the time and date of
the hearing which shall not be later than 10 days
Motion day [Rule 15, Sec. 7] from the filing of the motion. [Rule 15, Sec. 5]
Except for urgent motions, motions are scheduled
for hearing: Notice must be addressed to the counsels. A
(1) On Friday afternoons; notice of hearing addressed to the clerk of
(2) Afternoon of the next working day, if Friday is a court, and not to the parties, is no notice at all.
non-working day. Accordingly, a motion that does not contain a
notice of hearing to the adverse party is nothing
Motion for leave to file a pleading/motion [Rule 15, but a mere scrap of paper, as if it were not
Sec. 9] filed; hence, it did not suspend the running of
Must be accompanied by the pleading/motion sought the period to appeal. [Provident International
to be admitted Resources v. CA (1996)]

(3) Motion and notice of hearing must be served at

Motions not acted upon least 3 days before the date of hearing; [Rule
Parties and counsel should not assume that courts 15, Sec. 4]
are bound to grant the time they pray for. After all,
a motion that is not acted upon in due time is Purpose: To prevent surprise upon the adverse party
deemed denied. [Orosa v. CA (1996)] and to enable the latter to study and meet the
arguments of the motion.
b. Motions versus pleadings
Exceptions:
Motion Pleading (1) Ex parte motions;
Contains allegations of Contains allegations of (2) Urgent motions;
facts the ultimate facts (3) Motions agreed upon by the parties to be heard
Prays for a relief Prays for a relief on shorter notice, or jointly submitted by the
Grant of the relief does Grant of relief parties;
not extinguish the action extinguishes the action (4) Motions for summary judgment which must be
(interlocutory relief) (final relief) served at least 10 days before its hearing.
Generally in writing Always in writing
(with some exceptions) Proof of service [Rule 15, Sec. 6]
General rule: A written motion set for hearing will
General rule: A motion cannot pray for judgment. not be acted upon by the court if there is no proof of
service thereof.
Exception:
(1) Motion for judgment on the pleadings. What may be proof:
(2) Motion for summary judgment. (1) If by registered mail: Affidavit or registry
(3) Motion for judgment on demurrer to evidence. receipt or postmark on envelope or return card,
with an explanation.
c. Contents and form of motions (2) If by personal service: Affidavit or
acknowledgment of receipt by the other party.
Contents [Rule 15, Sec. 3]
(1) Relief sought to be obtained Exceptions:
(2) Grounds upon which it is based (1) If the motion is one which the court can hear ex
(3) If it is required/necessary to prove facts alleged parte.
in a motion, it shall be accompanied by (2) If the court is satisfied that the rights of the
supporting affidavits and other papers. adverse parties are not affected by the motion.
(4) Motions raising factual issues must be supported (3) If the party is in default because such a party is
by affidavits. not entitled to notice.

Form of motions [Rule 15, Sec. 2]

General rule: In writing.
 REMEDIAL LAW REVIEWER
e. Omnibus motion rule [Rule 15, Sec. 8]
114 Definition: A motion attacking a pleading/order/
judgment/proceeding must include all objections
then available. All objections not included in the
motion are deemed waived.
Exception: When the courts jurisdiction is in issue:
(1) LOJ over subject-matter;
(2) Litis pendentia;
(3) Res judicata;
(4) Prescription.
f. Litigated and ex parte motions
Kinds of Motion
(1) MOTION EX PARTE - Made without notification
to the other party because the question
generally presented is not debatable.
(2) LITIGATED MOTION - Made with notice to the
adverse party so that an opposition thereto may
be made.
(3) MOTION OF COURSE - Motion for a kind of
relief/remedy to which the movant is entitled to
as a matter of right, Allegations contained in
such motion do not have to be
investigated/verified.
(4) SPECIAL MOTION - Discretion of the court is
involved. An investigation of the facts alleged is
required.
g. Pro-forma motions
PRO FORMA MOTION A motion failing to indicate
time and date of the hearing
2. Motions for Bill of Particulars
Bill of particulars (ASKED IN THE 2003 BAR EXAM)
Definition: It is a detailed explanation respecting
any matter which is not averred with sufficient
definiteness/particularity in the complaint as to
enable a party to properly prepare his responsive
pleading or to prepare for trial. [Rule 12, Sec. 1]
a. Purpose and when applied for
It is filed by the plaintiff pursuant to a court order
issued upon granting a motion for BOP filed by the
defendant before the latter files an answer.
In said motion, the defendant prays for a more
definite statement of matters which are not averred
with sufficient definiteness in the complaint.
An action cannot be dismissed on the ground that
the complaint is vague/indefinite. The remedy of
the defendant is to move for a BOP or avail of the
proper mode of discovery. [Galeon v. Galeon (1973)]
Purpose
To inform the adverse party more specifically of the
precise nature and character of the cause of action
or defense alleged in the pleading, with the view of
enabling him to prepare properly his responsive
pleading or to prepare for trial.
The purpose of a BOP is to define/
clarify/particularize/limit/circumscribe the issues in
the case to expedite the trial and assist the court.
The only question to be resolved in a motion for a
BOP is WON the allegations in the complaint are
averred with sufficient definiteness/particularity to
enable the movant to properly prepare his
responsive pleading and to prepare for trial.
[Tantuico, Jr. v. Republic (1991)]
A BOP becomes part of the pleading for which it was
intended. [Rule 12, Sec. 6]
When applied for [Rule 12, Sec. 1]
(1) Before responding to a pleading
(2) If the pleading is a reply, within 10 days from
service thereof
What a motion for bill of particulars should point
out [Rule 12, Sec. 1]
(1) The defects complained of;
(2) The paragraph wherein they are contained;
(3) The details desired.
b. Actions of the court [Rule 12, Sec. 2]
(1) Deny;
(2) Grant the motion outright;
(3) Allow the parties the opportunity to be heard.
c. Compliance with the order and effect of
non-compliance
Compliance with order [Rule 12, Sec. 3]
If motion for BOP is granted wholly/partially:
(1) Within 10 days from notice of order, BOP or a
more definite statement should be submitted
(unless court fixes a different period).
(2) BOP or definite statement filed either as a
separate pleading or as an amended pleading, a
copy of which must be served on the adverse
party.
Effect of non-compliance [Rule 12, Sec. 4]
In case of non-compliance or insufficient compliance
with the order for BOP, the court:
(1) May order the striking out of the pleading (or
portion thereof) to which the order is directed;
OR
(2) Make such order as it may deem just.
If the plaintiff fails to obey, his complaint may be
dismissed with prejudice unless otherwise ordered
by the court. [Rule 12, Sec. 4; Rule 17, Sec. 3]
If defendant fails to obey, his answer will be
stricken off and his counterclaim dismissed, and he
will be declared in default upon motion of the
plaintiff. [Rule 9, Sec. 3; Rule 12, Sec. 4; Rule 17,
Sec. 4]
d. Effect on the period to file a responsive
pleading [Rule 12, Sec. 5]
A Motion for BOP interrupts the period to file a
responsive pleading.
 REMEDIAL LAW REVIEWER

(a) Upon notice by plaintiff;

The period to which the movant is entitled at the (b) Upon motion by plaintiff;
time of filing of the motion, which shall not be less (c) Due to fault of plaintiff.
than 5 days in any event. (3) Demurrer to evidence after plaintiff has 115
completed the presentation of his evidence
NOTE the following distinctions: under Rule 33;
(4) Dismissal of an appeal.
Bill of Particulars (BOP) Intervention
Purpose is to enable a Purpose is to enable a Note:
party bound to respond person not yet a party to A MTD shall be proved/disproved according to the
to a pleading to get an action, yet having a rules of evidence.
more details about certain right or interest
matters which are in such action, the The hearing shall be conducted as an ordinary
alleged generally or opportunity to appear hearing and the parties shall be allowed to present
which are indefinite and and be joined evidence, except when the motion is based upon
vague, failure of the complaint to state a cause of action.
so he could assert or
so as to properly guide protect such right or When the MTD is based on facts not appearing of
such party in answering interest record, the court may hear the matter on
the pleading and to affidavits/depositions.
avoid surprise in the trial
of the case a. Grounds [Rule 16, Sec. 1] (Asked in the 2008
Available to the Available to any person Bar Exam)
defendant before he not yet a party to the
files his responsive action at any time after i. LOJ over the defendants person
pleading the commencement of ii. LOJ over the subject matter of the claim
an action, even during iii. Improper venue
the proceeding, but not iv. Plaintiffs lack of legal capacity to sue
after the trial has been v. Litie pendentia
concluded vi. Res judicata
vii. Prescription
Terminating the action before trial viii. Failure to state a cause of action
ix. Extinguished claim
3. Motion to Dismiss x. Unenforceable claim under the Statute of Frauds
xi. Non-compliance with a condition precedent for
Definition filing claim
A remedy of the defendant, or the responding party
in general, which attacks the entire pleading and i. LOJ over the defendants person
seeks its dismissal based on: The objection of LOJ over the person on account of
(1) Grounds which are patent on the face of the lack of service or defective service of summons,
complaint; must be raised:
(2) Defenses available to the defendant at the time (1) At the very first opportunity;
of the filing of the complaint (2) Before any voluntary appearance is made.

It hypothetically admits the facts stated in the
complaint.
It is not a responsive pleading. It is not a pleading at
all. It is subject to the omnibus motion rule since it
is a motion that attacks a pleading. Hence, it must
raise all objections available at the time of the filing
thereof.
General rule: A court may not motu propio dismiss a
case, unless a motion to that effect is filed by a
party.
Exception:
(1) Cases where the court may dismiss a case motu
propio; [Rule 9, Sec. 1]
(2) Failure to prosecute; [Rule 17, Sec. 3]
(3) Sec. 4, Revised Rule on Summary Procedure.
Types of dismissal of action
(1) MTD before answer under Rule 16;
(2) MTD under Rule 17:
If a defendant had not been properly summoned, the
period to file a MTD for LOJ over his person does not
commence to run until he voluntarily submits to the
jurisdiction of the court. [Laus v. CA (1993)]
Appearance of counsel is equivalent to summons,
unless such is made to protest the jurisdiction of the
court over the person of the defendant. If grounds
other than invalid service of summons are raised, it
cannot be considered as a special appearance. [De
los Santos v. Montesa (1993)]
ii. LOJ over the subject matter of the claim
If the complaint shows on its face LOJ, the court
may dismiss the case outright instead of hearing the
motion.
A MTD on the ground of LOJover the subject matter
may be raised either:
(1) Before answer;
(2) After answer is filed;
(3) After hearing had commenced;
 REMEDIAL LAW REVIEWER
(4) At any stage of the proceeding, even for the
first time on appeal and even if no such defense
116 is raised in the answer.
iii. Improper venue
Unless and until the defendant objects to the venue
in a MTD prior to a responsive pleading, the venue
cannot truly be said to have been improperly laid
since, for all practical intents and purposes, the
venue though technically wrong may yet be
considered acceptable to the parties for whose
convenience the rules on venue had been devised.
Improper venue may be waived and such waiver may
occur by laches. [Diaz v. Adiong (1993)]
A stipulation between the parties as to venue does
not preclude the filing of suits in the residence of
plaintiff/defendant under Rule 4, Sec. 2(b). In the
absence of qualifying/restrictive words which would
indicate that a specific place alone is the venue, an
agreement as to venue is merely permissive and
there is no waiver of right to pursue remedy in other
courts. [HSBC v. Sherman (1989)]
If the court erroneously denies the MTD, the remedy
is prohibition.
iv. Plaintiffs lack of legal capacity to sue
The plaintiff lacks legal capacity to sue:
(1) When he does not possess the necessary
qualification to appear at the trial (e.g. when
he plaintiff is not in the full exercise of his civil
rights);
(2) When he does not have the character which he
claims, which is a matter of evidence (e.g. when
he is not really a duly appointed administrator
of an estate).
Lack of legal capacity to sue refers to plaintiffs
disability; while lack of legal personality to sue
refers to the fact that the plaintiff is not a real party
in interest, in which case the ground for dismissal
would be that the complaint states no cause of
action.
v. Litis pendentia
Requisites: [Anderson Group v. CA (1997) Asked in
the 2007 Bar Exam]
(1) Identity of parties;
(2) identity of rights asserted and relief prayed for;
(3) Relief founded on the same facts and the same
basis;
(4) Identity in the 2 proceedings should be such that
any judgment which may be rendered in the
other action will amount to res judicata on the
action under consideration.
It is not required to allege that there be a prior
pending case. It is sufficient to allege and prove the
pendency of another case, even if same had been
brought later.
It does not require that the later case be dismissed
in favor of the earlier case. To determine which case
should be abated, apply:
(1) The More Appropriate Action Test;
(2) The Interest of Justice Test, taking into
account:
(a) Nature of the controversy;
(b) Comparative accessibility of the court to
the parties;
(c) Other similar factors.
In both tests, the parties good faith shall be taken
into consideration.
The 1st case shall be abated if it is merely an
anticipatory action or defense against an expected
suit. The 2nd case will not be abated if it is not
brought to harass. [Vitrionics Computers v. RTC
(1993)]
vi. Res judicata
Requisites (Asked in the 2000 Bar Exam):
(1) Former judgment rendered by a court having
jurisdiction over the subject matter and over
the parties;
(2) Judgment must be a final judgment;
(3) Judgment must be on the merits;
There can be res judicata without a trial, such
as in a judgment on the pleadings (Rule 34); a
summary judgment (Rule 35); or an order of
dismissal under Rule 17, Sec. 3.
(4) There must be identity of parties, of subject
matter and of the causes of action.
For res judicata to apply, absolute identity of parties
is not required because substantial identity is
sufficient. Inclusion of additional parties will not
affect the application of the principle of res
judicata.
The test of identity of cause of action lies not in the
form of the action but on WON the same evidence
would support and establish the former and the
present causes of action. [DBP v. Pundogar (1993)]
Rationale: The sum and substance of the whole
doctrine is that a matter once judicially decided is
finally decided because of:
(1) Public policy and necessity makes it the interest
of the State that there should be an end to
litigation;
(2) The hardship on the individual that he should be
vexed twice for the same cause. [Nabus v. CA
(1991)]
Two concepts of res judicata [ABALOS V. CA 1993,
ASKED IN THE 1997 BAR EXAM)]
(1) BAR BY PRIOR JUDGMENT Judgment on the
merits in the 1st case constitutes an absolute
bar to the subsequent action not only as to
every matter which was offered and received to
sustain or defeat the claim/demand, but also to
any other admissible matter which might have
been offered for that purpose and to all matters
that could have been adjudged in that case.
(Asked in the 2002 Bar Exam)
(2) CONCLUSIVENESS OF JUDGMENT Where the
2nd action between the parties is upon a
different claim/demand, the judgment in the
1st case operates as an estoppel only with
regard to those issues directly controverted,
upon the determination of which the judgment
was rendered.

vii. Statute of limitations
Prescription applies only when the complaint on its
face shows that indeed the action has already
prescribed.
If the fact of prescription is not indicated on the
face of the complaint and the same may be brought
out later, the court must defer decision on the
motion until such time as proof may be presented on
such fact of prescription.
Prescription Laches
Concerned with the fact Concerned with the
of delay effect of delay
A matter of time A matter of equity
Statutory Not statutory
Applies in law Applies in equity
Based on fixed time Not based on fixed time
viii. Complaint states no cause of action
Failure to state a cause of action (not lack of cause
of action) is the ground for a MTD. The former
means there is insufficiency in the allegations in the
pleading. The latter means that there is
insufficiency in the factual basis of the action.
The failure to state a cause of action must be
evident on the face of the complaint itself.
Test: Assuming the allegations and statements to be
true, does the plaintiff have a valid cause of action?
A MTD based upon the ground of failure to state a
cause of action imports a hypothetical admission by
the defendant of the facts alleged in the complaint.
If the court finds the allegations of the complaint to
be sufficient but doubts their veracity, it must deny
the MTD and require the defendant to answer and
then proceed to try the case on its merits.
A complaint containing a premature cause of action
may be dismissed for failure to state a cause of
action.
If the suit is not brought against the real party-in-
interest, a motion to dismiss may be filed on the
ground that the complaint states no cause of action.
[Tanpinco v. IAC (1992)]
viii. Extinguished claim
That the claim/demand set forth in the plaintiff's
pleading has been paid, waived, abandoned or
otherwise extinguished.
ix. Unenforceable claim under the statute of
frauds
Article 1403 (2) CC requires certain contracts to be
evidenced by some note or memorandum in order to
be enforceable, to wit:
(a) An agreement that by its terms is not to be
performed within a year from the making
thereof;
REMEDIAL LAW REVIEWER
(b) A special promise to answer for the debt,
default, or miscarriage of another;
(c) An agreement made in consideration of
marriage, other than a mutual promise to 117
marry;
(d) An agreement for the sale of goods, chattels or
things in action, at a price not less than five
hundred pesos, unless the buyer accept and
receive part of such goods and chattels, or the
evidences, or some of them, of such things in
action, or pay at the time some part of the
purchase money; but when a sale is made by
auction and entry is made by the auctioneer in
his sales book, at the time of the sale, of the
amount and kind of property sold, terms of sale,
price, names of the purchasers and person on
whose account the sale is made, it is a sufficient
memorandum;
(e) An agreement for the leasing for a longer period
than one year, or for the sale of real property or
of an interest therein;
(f) A representation as to the credit of a third
person.
x. Non-compliance with a condition precedent
Non-compliance with PD 1508 (Katarungang
Pambarangay Law) may result in dismissal of the
case on the ground of non-compliance with a
condition precedent.
b. Resolution of Motion
During the hearing of the motion, parties shall
submit: [Rule 16, Sec. 2]
(1) Their arguments on questions of law;
(2) Their evidence on questions of fact.
Exception: Those not available at that time.
If the case goes to trial, such evidence presented
shall automatically be part of the evidence of the
party presenting the same.
After the hearing, the court may either: [Rule 16,
Sec. 3]
(1) Dismiss the action/claim;
(2) Deny the MTD;
(3) Order the amendment of pleadings.
The court cannot defer the resolution of the MTD for
the reason that the ground relied upon is not
indubitable.
The courts resolution on the MTD must clearly and
distinctly state the reasons therefor.
c. Remedies of plaintiff when the complaint
is dismissed
Remedies of plaintiff when motion to dismiss is
granted
If the motion is granted, the complaint is dismissed.
Since the dismissal is final and not interlocutory in
character, the plaintiff has several options:
(1) Depending upon the ground for the dismissal of
the action, the plaintiff may refile the
 REMEDIAL LAW REVIEWER

complaint, e.g when ground for dismissal is in a separate action) of a counterclaim pleaded in
anchored on improper venue. the answer.
118 (2) He may appeal from the order of dismissal
where the ground relied upon is one which bars f. When grounds pleaded as affirmative
refilling of complaint e.g. defenses [Rule 16, Sec. 6]
(a) Res judicata
(b) Prescription If no MTD was filed, the grounds in Rule 16, Sec. 1
(c) Extinguishment of the obligation may be pleaded as an affirmative defense and the
(d) Violation of Statutes of Fraud court may conduct a preliminary hearing thereon as
(3) The plaintiff may also avail of a petition for if a MTD was filed.
certiorari, alleging grave abuse of discretion.
[Riano] g. Bar by dismissal
d. Remedies of the defendant when the Subject to the right of appeal, an order granting a
motion is denied motion to dismiss based on paragraphs:
(f) That the cause of action is barred by a prior
1. The movant shall file his answer within the judgment or by the statute of limitations;
balance of the period described in Rule 11 to which (h) That the claim or demand set forth in the
he was entitled at the time of serving his motion, plaintiffs pleading has been paid, waived,
but not less than 5 days in any event. abandoned, or otherwise extinguished; and
(i) - That the claim on which the action is
Appeal is not a remedy since denial of a motion to founded is enforceable under the provisions of
dismiss is an interlocutory order. As a general rule, the statute of frauds
defendant files his answer and then may appeal an
adverse judgment. shall bar the refiling of the same action or claim.
[Rule 16, Sec. 5]
2. Another remedy is to file a certiorari, case under
Rule 65 alleging grave abuse of discretion. [Riano] h. Distinguished from demurrer to evidence
under Rule 33
e. Effect of dismissal of complaint on certain
grounds MTD under Rule 16 MTD under Rule 33
(Demurrer to
i. Of dismissal: [Rule 16, Sec.5] evidence)
General rule: The action/claim may be re-filed. Based on preliminary Based on insufficiency
objections of evidence
Exception: The action cannot be re-filed (although May be filed by any May be filed only by the
subject to appeal) if it was dismissed on any of the defending party against defendant against the
following grounds: whom a claim is asserted complaint of the
(1) Res judicata; in the action plaintiff
(2) Prescription; Should be filed within May be filed only after
(3) Extinguishment of the claim/demand; the time for, but prior the plaintiff has
(4) Unenforceability under the Statute of Frauds. to, the filing of the completed the
[Rule 16, Sec. 1 (f),(h),(i)] defending partys presentation of his
answer to the pleading evidence
ii. On periods for pleading: [Rule 16, Sec.4] asserting the claim
If MTD is denied Movant must file his answer within against him
the balance of the period under Rule 11 to which he If denied, defendant If denied, defendant
was entitled at the time of serving his MTD (but not answers; else, he may may present evidence.
less than 5 days) computed from the his receipt of be declared in default. If granted, plaintiff
notice of the denial. If granted, plaintiff may appeals and the order
appeal or if a of the dismissal is
If pleading is ordered to be amended movant must subsequent reversed; the defendant
file his answer within the period under Rule 11, case is not barred, he loses his right to
counted from service of the amended pleading may re-file the case present evidence.
(unless the court gives a longer period).

iii. On other grounds and omnibus motion rule:

MTD based on the following grounds may be filed
even after filing an answer: [Rule 9, Sec. 1]
(1) LOJ over subject-matter;
(2) Litis pendentia;
(3) Res judicata;
(4) Prescription.
Dismissal of the complaint under Rule 16, Sec. 6 is
without prejudice to the prosecution (in the same or
VIII. DISMISSAL OF ACTIONS
1. Dismissal upon notice by plaintiff; Two-
dismissal rule
2. Dismissal upon motion by plaintiff; effect
on existing counterclaim
3. Dismissal due to the fault of plaintiff
4. Dismissal of counterclaim, cross-claim or
third-party complaint
 REMEDIAL LAW REVIEWER

The case may be dismissed motu proprio or upon the

1. Dismissal upon notice by plaintiff; defendants motion if, without justifiable cause,
plaintiff fails either:
Two-dismissal rule (1) To appear on the date of the presentation of his 119
evidence-in-chief on the complaint;
Dismissal upon plaintiffs notice [Rule 17, Sec. 1] The plaintiffs failure to appear at the trial
Dismissal here is effected not by motion but by mere after he has presented his evidence and
notice before the service of either: rested his case does not warrant the dismissal
(1) The answer; of the case on the ground of failure to
(2) A motion for summary judgment. prosecute.
It is merely a waiver of his right to cross-
Upon plaintiffs filing of notice, the court shall issue examine and to object to the admissibility of
an order dismissing the case. (i.e. the court has no evidence. [Jalover v. Ytoriaga (1977)]
discretion on WON to dismiss the case). (2) To prosecute his action for an unreasonable
length of time (nolle prosequi);
General rule: The dismissal is without prejudice. The test for dismissal of a case due to failure to
prosecute is WON, under the circumstances, the
Exceptions: plaintiff is chargeable with want of due
(1) If the notice of dismissal provides that it is diligence in failing to proceed with reasonable
with prejudice. promptitude. [Calalang v. CA (1993)]
The dismissal is still with prejudice even it the (3) To comply with the ROC or any court order.
notice of dismissal does not so provide, where
such notice is premised on the fact of payment The dismissal has the effect of an adjudication on
by the defendant of the claim involved. the merits, unless the court declares otherwise,
[Serrano v. Cabrera (1953)] without prejudice to the right of the defendant to
prosecute his counter-claim in the same or separate
(2) TWO-DISMISSAL RULE action.
If the plaintiff has previously dismissed an
action based on or including the same claim, the Rule 17, Sec. 2 Rule 17, Sec. 3
notice operates as an adjudication upon the Dismissal is at the Dismissal is not procured
merits.
plaintiffs instance by plaintiff, although
justified by causes
2. Dismissal upon motion by plaintiff; imputable to him
effect on existing counterclaim Dismissal is a matter of Dismissal is a matter of
procedure, without evidence, an
Dismissal upon plaintiffs motion [Rule 17, Sec. 2] prejudice unless adjudication on the
Here, dismissal of the complaint is subject to the otherwise stated in the merits
courts discretion and upon such terms and court order or on
conditions as may be deemed proper by court plaintiffs motion for
dismissal of his own
Leave of court for the dismissal is necessary because complaint.
the motion is made after a responsive pleading or a Dismissal is without Dismissal is without
motion for summary judgment has been served. prejudice to the prejudice to the
defendants right to defendants right to
If defendant pleaded a counterclaim prior to the prosecute his prosecute his
service upon him of the plaintiffs motion for counterclaim in a counterclaim in the
dismissal, the dismissal shall be without prejudice to separate action (unless same or in a separate
the defendants right to either: within 15 days from action
(1) Prosecute his counterclaim in a separate action; notice of the motion he
(2) Have the counterclaim resolved in the same manifests his intention
action, by manifesting such preference within to have his counterclaim
15 days from being notified of plaintiffs motion resolved in the same
for dismissal. action).

Dismissal here is without prejudice, unless otherwise 4. Dismissal of counterclaim, cross-

provided in the order.
Court approval of the court is necessary in the
dismissal/compromise of a class suit.
3. Dismissal due to the fault of
plaintiff
Dismissal due to plaintiffs fault [Rule 17, Sec. 3]
claim or third-party complaint [Rule
17, Sec. 4]
This Rule applies to the dismissal of counterclaims,
cross-claims or 3rd-party complaints.
Where a counterclaim is made the subject of a
separate suit, it may be abated upon a plea of auter
action pendentia and/or dismissal on the ground of
res judicata. Res judicata, however, is not
 REMEDIAL LAW REVIEWER
applicable since the court held that it did not
acquire jurisdiction due to non-payment of docket
120 fees.
Dismissal on the ground of LOJ does not constitute
res judicata, there being no consideration and
adjudication of the case on the merits. Neither is
there litis pendentia. [Meliton v. CA (1992)]
IX. PRE-TRIAL
1. Concept of pre-trial
2. Nature and purpose
3. Notice of pre-trial
4. Appearance of parties; effect of failure to
appear
5. Pre-trial brief; effect of failure to appear
6. Distinction between pre-trial in civil case
and pre-trial in criminal case
7. Alternative Dispute Resolution (ADR)
1. Concept of pre-trial
Definition
A mandatory conference and personal confrontation
before the judge between the parties litigant and
their representative counsels, called by the court
after the joinder of issues in a case or after the last
pleading has been filed and before trial, for the
purpose of settling the litigation expeditiously or
simplifying the issues without sacrificing the
necessary demands of justice (Asked in the 1999 Bar
Examination, Examiner asked to compare this with
proceedings in the Katarungang Pambarangay).
2. Nature and purpose
Purpose
To consider: [Rule 18, Sec. 2]
Possibility of an amicable settlement or of a
submission to alternative modes of dispute
resolution;
Simplification of the issues;
Necessity/desirability of amendments to the
pleadings;
Possibility of obtaining stipulations or admissions
of facts and of documents to avoid unnecessary
proof;
Limitation of the number of witnesses;
Advisability of a preliminary reference of issues
to a commissioner;
Propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid ground
therefor be found to exist;
Advisability/necessity of suspending the
proceedings; and
Other matters that may aid in the prompt
disposition of the action.
Note:
Pre-trial is primarily intended to make certain
that all issues necessary to the disposition of a
case are properly raised.
Thus, to obviate the element of surprise, parties
are expected to disclose at a pre-trial
conference (PTC) all issues of law and fact
which they intend to raise at the trial, except
such as may involve privileged or impeaching
matters. The determination of issues at a pre-
trial conference bars the consideration of other
questions on appeal. [Caltex v. CA (1992)]
When conducted: After the last pleading has
been served and filed, it shall be the plaintiffs
duty to move ex parte that the case be set for
pre-trial. [Rule 18, Sec. 1]
A pre-trial cannot validly be held until the last
pleading has been filed, which last pleading may
be the plaintiff's reply, except where the period
to file the last pleading has lapsed.
Discretion to declare a party non-suited in PTC
must not be abused. Unless a party is so
negligent, irresponsible, contumacious, or
dilatory as to provide substantial grounds for
dismissal for non-appearance, the court should
consider lesser sanctions which would still
amount to achieving the end desired. [Calalang
v. CA (1993)]
3. Notice of pre-trial [Rule 18, Sec. 3]
Notice of pre-trial shall be served on counsel, or on
the party who has no counsel.
Counsel served with such notice has a duty to notify
the party he represents.
At the start of the preliminary conference, the judge
is mandated to refer the parties and/or their
counsels to the mediation unit of the Philippine
Mediation Center (PMC) for purposes of mediation. If
the mediation fails, the judge will schedule the
continuance of the preliminary conference. This rule
applies to Metro Manila, Cebu Davao City, and other
place where PMC Units may be further organized and
designated. [Admin, Circular No. 20-2002; Admin.
Circular No. 50-2005, April 26, 2005]
4. Appearance of parties; effect of
failure to appear
Appearance of parties [Rule 18, Sec. 4]
It is the duty of the parties and their counsel to
appear at the pre-trial.
A partys non-appearance may be excused only if
either:
Valid cause is shown for it;
A representative appears in his behalf, fully
authorized in writing:
- To enter into an amicable settlement;
- To submit to alternative modes of dispute
resolution;
- To enter into stipulations/admissions of facts
and of documents.
Citibank v. Chua (1993): SC admonishes the courts
against precipitate orders of default as they have
the effect of denying the party the chance to be
heard.
 REMEDIAL LAW REVIEWER

5. Pre-trial brief; effect of failure to

There are instances when parties may properly be
defaulted, but such is the exception rather than the
appear
rule and should be used only in clear cases of 121
obstinate refusal or inordinate neglect to comply Pre-trial brief [Rule 18, Sec. 6]
with court orders. Parties shall file and serve their respective pre-
trial briefs, ensuring receipt by adverse party at
least 3 days before the date of the pre-trial.
Failure to appear at pre-trial
Pre-trial briefs contents (Asked in the 2001 Bar
Exam):
Who fails to Effect
- Statement of their willingness to enter into
appear
amicable settlement or alternative modes of
Plaintiff Cause for dismissal of the
dispute resolution, indicating the desired
action which will be with
terms thereof;
prejudice, unless otherwise
- Summary of admitted facts and proposed
ordered by the court
stipulation of facts;
Defendant Cause to allow plaintiff to
- Issues to be tried/resolved;
present evidence ex parte, and
- Documents/exhibits to be presented, stating
court to render judgment on
the purpose thereof;
the basis thereof
- Manifestation of their having availed or their
intention to avail themselves of discovery
Default by defendant As in default procedures or referral to commissioners;
(Rule 9, Sec. 3) (failure to appear by - Number and names of the witnesses, and the
plaintiff) (Rule 18, Sec. substance of their respective testimonies.
Upon motion and notice Not required5)
to defendant. NOTE: Failure to file the pre-trial brief shall have
Requires proof of failure Not required the same effect as failure to appear at the pre-trial.
to answer
Court to render Court to allow plaintiff Record of pre-trial [Rule 18, Sec. 6]
judgment, unless it to present evidence ex The pre-trial proceedings shall be recorded.
requires submission of parte, then the court Upon termination of such proceedings, the court
evidence shall render judgment shall issue the pre-trial order.
Relief awarded must be Relief awarded may be Pre-trial orders contents:
the same in nature and of different nature and - Matters taken up in the conference;
amount as prayed for in amount from the relief - Action taken thereon;
the complaint prayed for - Amendments allowed on the pleadings;
- Agreements/admissions made by the parties
A defendant who already filed an answer cannot as to any matters considered;
be declared in default. Only when the - Should the action proceed to trial, the
defendant fails to file an answer to the explicit definition and limit of the issues to be
complaint may the court proceed to render tried.
judgment. [Lesaca v. CA (1992)] Consequence: The contents of the order shall
The Revised Rules on Summary Procedure does control the subsequent course of the action,
not provide that an answer filed after the unless modified before trial to prevent manifest
reglementary period should be expunged from injustice.
the records. Upon manifestation of the parties of their
As a matter of fact, there is no provision for an willingness to discuss a compromise, the TC
entry of default if a defendant fails to file his should order the suspension of the proceedings
answer. to allow them reasonable time to discuss and
The defense of LOJ may have even been raised conclude an amicable settlement.
by the defendant in a MTD as an exception to If despite all efforts exerted by the TC and the
the rule on prohibited pleadings in the Revised parties the settlement conference still fails,
Rule on Summary Procedure. then the action should have continued as if no
Such a motion is allowed under Sec. 19(a) suspension had taken place. [Goldloop
thereof. [Bayog v. Natino (1996)] Properties v. CA (1992)]
Where the failure to appear at the pre-trial
hearing was uncontrovertedly due to illness, the Note: AM 03-1-09-SC (No termination of pre-trial for
default order may be set aside on the ground of failure to settle)
accident over which petitioner had no control.
Also, the order of arrest was illegal as there is Calendar of Cases
nothing in the ROC which authorizes such a Under the direct supervision of the judge, the
consequence of a default order. [Malanyaon v. clerk of court shall keep a calendar of cases for
Sunga (1992)] pre-trial, for trial, those whose trials were
adjourned/postponed, and those with motions
to set for hearing. [Rule 20, Sec. 1]
 REMEDIAL LAW REVIEWER

Preference shall be given to habeas corpus Civil Case Criminal Case

cases, election cases, special civil actions, and A pre-trial brief is A pre-trial brief is not
122 those so required by law. [Rule 20, Sec. 1] specifically required to specifically required.
The assignment of cases to the different be submitted [Rule 18,
branches of a court shall be done exclusively by Sec. 6]
raffle. The assignment shall be done in open
session of which adequate notice shall be given
so as to afford interested parties the
opportunity to be present. [Rule 20, Sec. 2] 7. Alternative Dispute Resolution
(ADR)
6. Distinction between pre-trial in X. INTERVENTION
civil case and pre-trial in criminal 1. Requisites for intervention
case (Bar 1997, Riano) 2. Time to intervene
3. Remedy for the denial of motion to
Civil Case Criminal Case
intervene
Set when the plaintiff Ordered by the court and
moves ex parte to set no motion to set the
Definition of intervention (Asked in the 2003 Bar
the case for pre-trial case for pre-trial is
[Rule 18, Sec. 1] required from either the Exam)
prosecution or the A legal remedy whereby a person is permitted to
defense [Rule 118, Sec. become a party in a case, by either:
1] Joining the plaintiff;
Joining the defendant;
Made after the pleading Ordered by the court
Asserting his right against both plaintiff and
has been served and after arraignment and
defendant, considering that either:
filed [Rule 18, Sec. 1] within 30 days from the
- He has a legal interest in the subject matter
sate the court acquired
of the action;
jurisdiction over the
- He is going to be adversely affected by the
person of the accused
disposition of the property in the custody of
[Rule 118, Sec. 1]
the court
Considered the Does not include the
possibility of an considering of the
Metropolitan Bank v. Presiding Judge (1990):
amicable settlement as possibility of amicable
Intervention is a proceeding in a suit/action by
an important objective settlement of ones
which a 3rd person is permitted by the court to
[Rule 118, Sec. 2(a)] criminal liability as one
make himself a party, either joining plaintiff in
of its purposes [Rule
claiming what is sought by the complaint, or uniting
118, Sec. 1]
with defendant in resisting the claims of plaintiff, or
The arrangements and (Stricter procedure)
demanding something adversely to both of them.
admissions in the pre- All agreements or
trial are not required to admissions made or
Cario vs. Ofilada (1993): It is the act/proceeding
be signed by both parties entered during the pre-
by which a 3rd person becomes a party in a suit
and their counsels. trial conference shall be
pending between others.
Under the Rules, they reduced in writing and
are instead to be signed by both the
It is the admission, by leave of court, of a person not
contained in the record accused and counsel;
an original party to pending legal proceedings, by
of pre-trial and pre-trial otherwise, they cannot
which such person becomes a party thereto for the
order [Rule 18, Sec. 7] be used against the
protection of some right of interest alleged by him
accused. [Rule 118, Sec.
to be affected by such proceedings.
[AM No. 03-1-09] - 2]
requires the proceedings
An intervenor is a party to the action as the original
during the preliminary
parties are, and to make his right effectual he must
conference to be
necessarily have the same powers as the original
recorded in the Minutes
parties. He is entitled to have the issues raised
of Preliminary
between him and the original parties tried and
Conference to be
determined.
signed by both parties
and/or counsel.
Intervention is never an independent action, but is
ancillary and supplemental to the existing litigation.
(Note: either party or his
Its purpose is to afford one not an original party, yet
counsel is allowed to
having a certain right/interest in the pending case,
sign)
the opportunity to appear and be joined so he could
The sanctions for non- Sanctions are imposed
assert or protect such right/interest.
appearance are imposed upon the counsel for the
upon the plaintiff and accused or the
Hence, the final dismissal of the principal action
the defendant [Rule 18, prosecutor [Rule 118,
results into the dismissal of said ancillary action.
Sec. 4] Sec. 3]
Who may intervene [Rule 19, Sec. 1]
 REMEDIAL LAW REVIEWER

One who has a legal interest in the matter in
litigation;
One who has a legal interest in the success of
either of the parties;
One who has an interest against both parties;
One who is so situated as to be adversely
affected by a distribution/disposition of
property in the courts custody.
Meaning of legal interest
One that is actual and material, direct and of an
immediate character, not merely contingent or
expectant so that that intervenor will either
gain or lose by the direct legal operation of the
judgment.
When the title to the property if declared void
by final judgment, intervention will not revive
or reinstate the movants title derived from the
title declared void. [Firestone Ceramics vs. CA
(1999)]
Magsaysay-Labrador v. CA (1989): Interest in the
subject means a direct interest in the cause of
action as pleaded and which would put the
intervenor in a legal position to litigate a fact 123
alleged in the complaint, without the establishment
of which plaintiff could not recover.
Pleadings in intervention [Rule 19, Sec. 3]
COMPLAINT-IN-INTERVENTION If intervenor
asserts a claim against either or all of the
original parties.
ANSWER-IN-INTERVENTION If intervenor
unites with the defending party in resisting a
claim against the latter.
Answer to complaint-in-intervention [Rule 19, Sec.
4]
It must be filed within 15 days from notice of the
order admitting the complaint-in-intervention,
unless a different period is fixed by the court.

The assignee of a property who assumed Intervention Interpleader

payment of whatever amount may be finally An ancillary action An original action
adjudged against the assignor, may intervene in Proper in any of the four Presupposes that the
a proceeding involving the execution of the situations mentioned in plaintiff has no interest
property pursuant to a judgment. [Robles vs. Rule 19 in the subject matter of
Timario (1962)] the action or has an
interest therein, which
In an action for foreclosure of mortgage, the in whole or in part is not
alleged owners of the land sought ot be disputed by the other
foreclosed may intervene. [Roxas vs. Dinglasan parties to the action
(1969)] There is already a Defendants are being
defendant among the sued precisely to
1. Requisites for intervention original parties to the implead them
pending suit
How intervention is done
By a motion to intervene, with the pleading-in- 2. Time to intervene
intervention attached. Must also serve copy of the Intervention is allowed any time before TC
pleading-in-intervention on the original parties. renders judgment. [Rule 19, Sec. 2]
[Rule 19, Sec. 2] After rendition of judgment, a motion to
intervene is barred, even if the judgment itself
General rule: Allowance of intervention is recognizes the movants right. The movants
discretionary with the court. remedy is to file a separate action.
Exception: When the intervenor is an indispensable
party. 3. Remedy for the denial of motion to
intervene
Factors considered in allowing intervention
WON intervention will unduly delay or prejudice Remedies
the adjudication of the rights of the original For denial of intervention:
parties. - Appeal.
- Mandamus, if there is GAD.
WON the intervenor's rights may be fully For improper granting of intervention:
protected in a separate proceeding. Certiorari.

Carino vs Ofilada (1993): The interest must be

actual and material, direct and immediate; not
XI. SUBPOENA
simply contingent or expectant. 1. Subpoena duces tecum
2. Subpoena ad testificandum
It must be in the matter in litigation and of such 3. Service of subpoena
direct and immediate character that the intervenor 4. Compelling attendance of witnesses;
will either gain or lose by the direct legal operation Contempt
and effect of the judgment.
5. Quashing of subpoena
 REMEDIAL LAW REVIEWER
Subpoena is a process issued by court which is
either:
124 Types (and definition) of subpoena [Rule 21, Sec.
1]
Subpoena duces tecum
Subpoena ad testificandum
By whom issued [Rule 21, Sec. 2]
The court before whom the witness is required
to attend;
The court of the place where the deposition is
to be taken;
The officer/body authorized by law to do so in
connection with investigations conducted by
said officer/body;
Any SC/CA Justice in any case or investigation
pending within the Philippines.
Form and contents of subpoena [Rule 21, Sec. 3]
Name of court;
Title of action/investigation;
Directed to a person whose attendance is
required
If subpoena duces tecum, a reasonable
description of the books/documents/things
demanded which must appear to the court
prima facie relevant.
Subpoena for depositions [Rule 21, Sec. 5]
Proof of service of a notice to take a deposition
is sufficient authorization for the issuance of
subpoena ad testificandum for the persons
named in the notice.
Issued by the clerk of court of the place in
which the deposition is to be taken.
However, subpoena duces tecum for depositions
cannot be issued without court order.
1. Subpoena duces tecum
Process directed to a person, requiring him to bring
with him any books/documents/things under his
control. (Asked in the 1997 Bar Exam)
Subpoena duces tecum distinguished from Order
for production or inspection
See Annex B.
2. Subpoena ad testificandum
Process directed to a person, requiring him to attend
and to testify at the hearing/trial of an action or at
any investigation conducted by competent authority,
or for the taking of his deposition.
3. Service of subpoena [Rule 21, Sec.
6]
Same manner as personal or substituted service
of summons.
The original shall be exhibited and a copy
delivered to person on whom it is served, with
tender of fees for one days attendance and
kilometrage.
Exception: Tender not required if subpoena is
issued by or on behalf of the Republic or an
officer/agency thereof.
For subpoena duces tecum, also tender the
reasonable cost of producing the
books/documents/things demanded.
Service must be made so as to allow the witness
reasonable time for preparation and travel to
the place of attendance
4. Compelling attendance of
witnesses; Contempt
Personal appearance in court [Rule 21, Sec. 7]
A person present in court before a judicial officer
may be required to testify as if he were in
attendance upon a subpoena issued by such
court/officer.
Application for subpoena to prisoner [Rule 21, Sec.
2]
The judge/officer shall examine and study the
application carefully to determine WON it is
made for a valid purpose.
However, no prisoner sentenced to death,
reclusion perpetua or life imprisonment and who
is confined in a penal institution shall be
brought outside for appearance/attendance in
any court unless authorized by the SC.
Remedy in case of witness failure to attend
Upon proof of service of subpoena and of witness
failure to attend, the court/judge issuing the
subpoena may issue a warrant to the sheriff to arrest
the witness and bring him before the court/officer
where his attendance is required. [Rule 21, Sec. 8]
The cost of warrant and seizure shall be paid by the
witness if the court determines that the failure to
attend was willful and without just excuse.
Such failure shall be deemed a contempt of the
court which issued the subpoena. [Rule 21, Sec. 9]
If subpoena was not issued by a court, the
disobedience shall be punished by applicable law or
ROC.
Exception: Arrest warrant and contempt not
applicable to: [Rule 21, Sec. 10]
A witness who resides more than 100km from his
residence to the place where he is to testify.
A detention prisoner, if there is no permission
from the court in which his case is pending.
5. Quashing of subpoena [Rule 21,
Sec. 4]
Upon motion promptly made, at/before the time
specified in the subpoena.
Grounds for quashing:
Subpoena duces tecum:
- It is unreasonable and oppressive;
- The relevancy of the books/documents/
things does not appear;

- The person in whose behalf the subpoena is
issued fails to advance the reasonable cost of
production;
- Witness fees and kilometrage were not
tendered when subpoena was served.
Subpoena ad testificandum:
- That the witness is not bound thereby;
- That witness fees and kilometrage were not
tendered when the subpoena was served.
XII. MODES OF DISCOVERY
1. Depositions pending action; Depositions
before action or pending appeal
2. Written interrogatories to adverse parties
3. Request for Admission
4. Production or inspection of documents or
things
5. Physical and mental examination of
persons
6. Consequences of refusal to comply with
modes of discovery
1. Depositions pending action;
Depositions before action or pending
appeal [RULES 23 and 24]
Depositions Under Rule 23
a. Meaning and purpose of deposition
Deposition is chiefly a mode of discovery, the
primary function of which is to supplement the
pleadings for the purpose of disclosing the real
points of dispute between the parties and
affording an adequate factual basis during the
preparation for trial.
The liberty of a party to avail of such modes of
discovery is unrestricted if the matters inquired
into are relevant and not privileged, and the
inquiry is made in good faith and within the
bounds of the law.
Limitations would arise if the examination is
conducted in bad faith; or in such a manner as
to annoy, embarrass or oppress the person under
examination; or when the inquiry touches upon
the irrelevant or encroaches upon the
recognized domains of privilege.
Under certain conditions and for certain limited
purposes, it may be taken even after trial has
commenced and may be used without the
deponent being actually called to the witness
stand. [Jonathan Landoil v Mangudadatu (2006)]
b. Scope of examination
Unless otherwise provided by the court, the
deponent may be examined regarding any matter not
privileged, which is relevant to the pending action,
whether relating to the claim or defense of any
party
including the existence, description, nature,
custody, condition and location of any books,
REMEDIAL LAW REVIEWER
documents, or other tangible things and the
identity of any persons having knowledge of
relevant facts. [Rule 23, sec. 2]
125
c. Uses of deposition pending action
Dasmarias Garments,Inc. v. Reyes (1993):
General Rule: A deposition is not generally supposed
to be a substitute for the actual testimony in open
court of a party or witness. If the witness is available
to testify, he should be presented in court to testify.
If available to testify, a partys or witness
deposition is inadmissible in evidence for being
hearsay.
Exception: [Rule 23, Section 4]
Any deposition may be used by any party for the
purpose of contradicting or impeaching the
testimony of deponent as a witness;
The deposition of a party or of any one who at
the time of taking the deposition was an officer,
director, or managing agent of a public or
private corporation, partnership, or association
which is a party may be used by an adverse
party for any purpose;
The deposition of a witness, whether or not a
party, may be used by any party for any purpose
if the court finds:
- that the witness is dead; or
- that the witness resides at a distance more
than one hundred (100) kilometers from the
place of trial or hearing, or is out of the
Philippines, unless it appears that his absence
was procured by the party offering the
deposition; or
- that the witness is unable to attend to testify
because of age, sickness, infirmity, or
imprisonment; or
- that the party offering the deposition has
been unable to procure the attendance of the
witness by subpoena; or
- upon application and notice, that such
exceptional circumstances exist as to make it
desirable, in the interest of justice and with
due regard to the importance of presenting
the testimony of witnesses orally in open
court, to allow the deposition to be used; and
If only part of a deposition is offered in
evidence by a party, the adverse party may
require him to introduce all of it which is
relevant to the part introduced, and any party
may introduce any other parts.
d. Before whom taken
General Rule: Depositions may be taken before any
judge, notary public, or the person referred to in
section 14 (which refers to any person authorized to
administer oaths designated by the parties by
stipulation).
Exceptions: In our jurisdiction, depositions in
foreign countries may be taken:
on notice before a secretary of embassy or
legation, consul general, consul, vice consul, or
 REMEDIAL LAW REVIEWER

consular agent of the Republic of the
Philippines;
126 before such person or officer as may be
appointed by commission or under letters
rogatory; or
before any person authorized to administer
oaths as stipulated in writing by the parties.
interposed during the course of the deposition
although any objections shall be noted by him upon
the deposition. Any evidence that is objected to
shall still be taken but subject to the objection.
[Rule 23, Section 17]
f. When may taking of deposition be
terminated or its scope limited

The court in which the action is pending or the RTC

of the place where the deposition is being taken may
COMMISSION LETTERS order the officer conducting the examination to
ROGATORY cease from taking the deposition, or may limit the
Addressed Any authority in a A judicial scope and manner of taking the deposition
to whom foreign country authority in the
authorized therein foreign country WHEN: At any time during the taking of the
to take down deposition, on the motion or petition of any party or
depositions of the deponent
Rules that Rules laid down by Rules laid down by
govern the court issuing such foreign GROUND: that the examination is being conducted in
the the commission judicial authority bad faith or in such a manner as unreasonably to
deposition annoy, embarrass or oppress the deponent or party
When Preferred over Generally resorted [Rule 23, sec. 18]
issued letters rogatory to when there is
since the process difficulty or If the order made terminates the examination, it
is simpler impossibility of shall be resumed only upon the order of the court in
(generally, no obtaining the which the action is pending.
need to resort to deposition by
diplomatic commission g. When may objections to errors and
channels unlike in (Regalado) irregularities be made [Rule 23, sec. 29]
letters rogatory)
Objection When Made
No deposition shall be taken before a person who is: As to notice to Waived, unless written objection
[Rule 23, sec. 13] parties is promptly served upon party
a relative within the sixth degree of giving notice
consanguinity or affinity, or
Deposition Waived, unless made before the
employee or counsel of any of the parties, or
officer is taking of the deposition or as
who is a relative within the same degree, or
disqualified soon as the disqualification
employee of such counsel; or
becomes known or could be
who is financially interested in the action.
discovered with reasonable
certainty
e. Procedure Lack of NOT waived by failure to make
relevance, them before or during the taking
A party desiring to take the deposition of any person materiality and of the deposition, unless the
upon oral examination shall give reasonable notice in competence of ground for the objection is one
writing to every party to the action stating the time the deposition which might have been obviated
and place for taking the deposition and the name to the action or removed if presented at that
and address of each person to be examined. [Rule time
23, Section 15] Error in the Waived, unless reasonable
manner of objection is made at the taking
After the notice is served, the court may make any taking the of the deposition
order for the protection of the parties and the deposition
deponent. [Rule 23, Section 16] Error in the Waived, unless served in writing
form of written upon the party propounding them
The attendance of the witnesses may be compelled interrogatories within the time allowed for
by the use of subpoenas. [Rule 23, Section 1] serving succeeding cross or other
interrogatories and within 3 days
The deponent may be examined or cross examined after service of the last
following the procedures for witnesses in a trial. He interrogatories
may be asked questions on direct, cross, re-direct or Error in the Waived, unless a motion to
re-cross. He has the same rights as a witness and manner of suppress the deposition or some
may be impeached like a court witness because preparing the part thereof is made with
Sections 3 to 18 of Rule 132 apply to deponent. [Rule deposition reasonable promptness after such
23, Section 3] defect is, or with reasonable
diligence might have been,
The officer before whom the deposition is being ascertained
taken has no authority to rule on objections

h. Other rules
Effect of substitution of parties [Rule 23, Sec. 5]
Substitution of parties does not affect the right
to use depositions previously taken;
and, when an action has been dismissed and
another action involving the same subject is
afterward brought between the same parties or
their representatives or successors in interest,
all depositions lawfully taken and duly filed in
the former action MAY BE USED IN THE LATTER
AS IF ORIGINALLY TAKEN THEREFOR.
Effect of taking deposition [Rule 23, Sec. 7]
A party shall not be deemed to make a person
his own witness for any purpose by taking his
deposition.
Effect of using deposition [Rule 23, Sec. 8]
General Rule: Introduction in evidence of
deposition or any part thereof for any purpose
makes the deponent the witness of the party
introducing the deposition.
Exception: if the purpose is to contradict or
impeach the deponent.
Leave of court [Rule 23, Sec. 1]
Leave of court is NOT required after an answer
has been served.
It is required before the service of an answer
but after jurisdiction has been acquired over the
defendant or over the property subject of the
action.
ONLY INSTANCE WHEN ONE ALWAYS NEEDS
LEAVE OF COURT BEFORE TAKING DEPOSITIONS:
Where the deponent is in jail.
Written Interrogatories under Rule 23
A deposition need not be conducted through an
oral examination. It may be conducted through
written interrogatories which shall be served
upon every other party.
The party served may also serve cross-
interrogatories upon the party proposing to take
the deposition within 10 days from service of
the written interrogatories. The latter may,
within 5 days serve re-direct interrogatories and
within 3 days the other party may serve re-cross
interrogatories [Rule 23, Sec. 25]
Copies of all these interrogatories shall be
delivered to the officer before whom the
deposition is taken and who shall take the
responses and prepare the record. [Rule 23, Sec.
26]
People v. Hubert Webb (1999): DEPOSITION, WHEN
AVAILABLE IN CRIMINAL CASES: A deposition, in
keeping with its nature as a mode of discovery,
should be taken BEFORE AND NOT DURING TRIAL.
In fact, rules on criminal practice - particularly on
the defense of alibi, which is respondents main
defense in the criminal proceedings against him in
the court below - states that when a person intends
REMEDIAL LAW REVIEWER
to rely on such a defense, that person must move for
the taking of the deposition of his witnesses within
the time provided for filing a pre-trial motion.
127
The use of discovery procedure in criminal cases is
directed to the sound discretion of the trial judge.
The deposition taking cannot be based nor can it be
denied on flimsy reasons. Discretion has to be
exercised in a reasonable manner and in consonance
with the spirit of the law.
Dasmarias Garments v. Reyes (1993): Any
deposition offered to prove the facts therein at the
trial of the case, in lieu of actual testimony of the
deponent in court, may be opposed and excluded for
being hearsay save in specific instances under the
Rules.
Depositions Before Action Under Rule 24
Purpose
To perpetuate the testimony of witnesses for
probable use in the event of further proceedings in
said court.
Procedure
FILE A VERIFIED PETITION IN THE COURT OF THE
PLACE OF THE RESIDENCE OF ANY EXPECTED
ADVERSE PARTY.
The petition shall be entitled in the name of the
petitioner and shall show:
that the petitioner expects to be a party to an
action in a court of the Philippines but is
presently unable to bring it or cause it to be
brought;
the subject matter of the expected action and
his interest therein;
the facts which he desires to establish by the
proposed testimony and his reasons for desiring
to perpetuate it;
the names or a description of the persons he
expects will be adverse parties and their
addresses so far as known; and
the names and addresses of the persons to be
examined and the substance of the testimony
which he expects to elicit from each, and shall
ask for an order authorizing the petitioner to
take the depositions of the persons to be
examined named in the petition for the purpose
of perpetuating their testimony.
NOTICE AND SERVICE to each person named in the
petition as an expected adverse party, together with
a copy of the petition, stating that the petitioner
will apply to the court, at a time and place named
therein, for the order described in the petition.
At least twenty (20) days before the date of the
hearing, the court shall cause notice thereof to be
served on the parties and prospective deponents in
the manner provided for service of summons.
 REMEDIAL LAW REVIEWER
ORDER AND EXAMINATION: If the court is satisfied
that the perpetuation of the testimony may prevent
128 a failure or delay of justice, it shall make an order
designating or describing the persons whose
deposition may be taken and specifying the subject
matter of the examination and whether the
depositions shall be taken upon oral examination or
written interrogatories.
Note: Procedure for taking deposition by oral
examination or written interrogatories will be
governed by Rule 23 on depositions de bene esse.
Depositions Pending Appeal Under Rule 24
J. Regalado believes that the following procedure is
applicable to civil and criminal cases.
Procedure:
DURING THE PENDENCY OF AN APPEAL, the court in
which the judgment was rendered may allow the
taking of depositions of witnesses to perpetuate
their testimony in the event of further proceedings
in the said court.
The party who desires to perpetuate the testimony
may make a motion in the said court for leave to
take the depositions, upon the same notice and
service thereof as if the action was pending therein.
The motion shall state:
the names and addresses of the persons to be
examined and the substance of the testimony
which he expects to elicit from each, and
the reason for perpetuating their testimony.
ORDER ALLOWING THE DEPOSITION: If the court finds
that the perpetuation of the testimony is proper to
avoid a failure or delay of justice, it may make an
order allowing the deposition to be taken.
2. Written interrogatories to adverse
parties [RULE 25]
a. Purpose
This mode of discovery is availed of by the party to
the action for the purpose of eliciting material and
relevant facts from any of the adverse party. [Rule
25, Sec. 1]
b. Procedure
By leave of court after jurisdiction has been
obtained over any defendant or over property
which is the subject of the action, or
Without such leave after an answer has been
served, any party desiring to elicit material and
relevant facts from any adverse parties shall file
and serve upon the latter written
interrogatories to be answered by the party
served, or if the party served is a public or
private corporation or a partnership or
association, by any officer thereof competent to
testify in its behalf.
NOTE: Interrogatories under RULE 25 are served
directly upon the adverse party unlike written
interrogatories under RULE 23 which are delivered to
the officer before whom the deposition is to be
taken.
c. Answer
The interrogatories shall be ANSWERED FULLY IN
WRITING and shall be SIGNED AND SWORN TO BY
THE PERSON MAKING THEM.
The party upon whom the interrogatories have
been served shall file and serve a copy of the
answers on the party submitting the
interrogatories within fifteen (15) days after
service thereof unless the court on motion and
for good cause shown, extends or shortens the
time. [Rule 25, Sec. 2]
d. Effect of objections to interrogatories
When objections to any interrogatories is presented
to the court within 10 days after service thereof,
with notice as in case of a motion, the answer shall
be deferred until the objections are resolved [Rule
25, Sec. 3]
e. Number of interrogatories
No party may, without leave of court, serve more
than one set of interrogatories to be answered by
the same party. [Rule 23, Sec. 4]
f. Scope of interrogatories
Any matter
not privileged, and
relevant to the subject of the pending action,
whether relating to the claim or defense of any
other party, including the existence,
description, nature, custody, condition, and
location of any books, documents, or other
tangible things and the identity and location of
persons having knowledge of relevant facts.
g. Use of interrogatories
Same as Rule 23, Sec. 4 mutatis mutandis.
h. Failure to file written interrogatories
A party not served with written interrogatories may
not be compelled by the adverse party to give
testimony in open court, or to give a deposition
pending appeal, UNLESS allowed by the court for
good cause shown and to prevent failure of justice.
i. Consequences of refusal to answer
The party serving the interrogatories may apply
to the court for an order to compel an answer.
If court also finds that the refusal to answer was
without substantial justification, it may require
the refusing party or deponent or the counsel
advising the refusal, or both of them, TO PAY
THE PROPONENT THE AMOUNT OF THE
REASONABLE EXPENSES INCURRED IN OBTAINING

THE ORDER, INCLUDING ATTORNEY'S FEES (Rule
29, Sec. 1).
Refusal to comply with an order of the court to
compel an answer may be considered CONTEMPT
of that court (Rule 29, Sec. 2)
The subject of discovery shall be DEEMED
ADMITTED OR ESTABLISHED (Rule 29 Sec. 3a).
The disobedient party shall be prohibited from
introducing CONTRADICTORY EVIDENCE (Rule 29,
Sec. 3b)
STRIKING OUT OF PLEADINGS OR PARTS
THEREOF (RULE 29, SECTION 3c)
STAYING FURTHER PROCEEDINGS UNTIL THE
ORDER IS OBEYED (RULE 29, SECTION 3c)
DISMISSING THE ACTION OR PROCEEDING OR ANY
PART THEREOF(RULE 29, SECTION 3c)
RENDERING A JUDGMENT BY DEFAULT AGAINST
THE DISOBEDIENT PARTY; AND (RULE 29,
SECTION 3c)
In lieu of any of the foregoing orders or in
addition thereto, an order directing the arrest
of any party or agent of a party for disobeying
any of such orders [RULE 29, Sec. 3c]
3. Request for Admission [RULE 26]
a. Purpose
To allow one party to request the adverse in
writing to admit certain material and relevant
matters which most likely will not be disputed
during the trial.
To avoid unnecessary inconvenience to the
parties in going through the rigors of proof,
before the trial, a party may request the other
to:
- admit the genuineness of any material
and relevant document described in and
exhibited with the request; or
- admit the truth of any material and
relevant matter of fact set forth in the
request [Rule 26, Sec. 1]
b. When may request be made
At any time after issues have been joined.
Duque v. CA (2002): The request for admission
MUST BE SERVED ON THE PARTY and NOT ON THE
COUNSEL. This is an exception to the general rule
that notices shall be served upon counsel and not
upon the party.
c. Implied admission by adverse party
EACH OF THE MATTERS OF WHICH AN ADMISSION IS
REQUESTED SHALL BE DEEMED ADMITTED unless,
within a period designated in the request, which
shall not be less than 15 days after service
thereof, or within such further time as the court
may allow on motion,
the party to whom the request is directed files
and serves upon the party requesting the
admission a SWORN STATEMENT either
- denying specifically the matters of which an
admission is requested, or
REMEDIAL LAW REVIEWER
- setting forth in detail the reasons why he
cannot truthfully either admit or deny those
matters.
129
d. Deferment of compliance
To avoid the implied admission, the party requested
may have the compliance of the filing and service of
the sworn statement be deferred by filing with court
objections to the request for admission.
Compliance shall be deferred until such objections
are resolved by the court. [Rule 26, Sec. 2 par. 2]
e. Effect of admission
Any admission made by a party pursuant to such
request is for the purpose of the pending action only
and shall not constitute an admission by him for any
other purpose nor may the same be used against him
in any other proceeding. [Rule 26, Sec. 3]
f. Withdrawal
The court may allow the party making an admission,
whether express or implied under the Rule to
withdraw or amend it upon such terms as may be
just.
The admitting party must file a motion to be
relieved of the effects of his admissions.
g. Effect of failure to file and serve request
for admission
General rule: The party who fails to file a request
shall not be permitted to present evidence on such
facts.
Exception: Unless otherwise allowed by the court
for:
- good cause shown and
- to prevent a failure of justice,
a party who fails to file and serve a request for
admission on the adverse party of material and
relevant facts at issue which ARE, OR OUGHT TO BE,
WITHIN THE PERSONAL KNOWLEDGE OF THE LATTER
[Rule 26, Sec. 5]
4. Production or inspection of
documents or things [RULE 27]
a. Procedure
A motion must be filed by the party seeking the
production or inspection of documents and things
and the motion must show good cause supporting the
same. [Rule 27, Sec. 1]
The court in which the action is pending shall issue
an order:
which shall specify the time, place and manner
 REMEDIAL LAW REVIEWER
of making the inspection and taking copies and
photographs, and
130 which may prescribe such terms and conditions
as are just. [Rule 27, Sec. 1]
b. What the court may order
To PRODUCE and PERMIT THE INSPECTION and
copying or photographing, by or on behalf of the
moving party, of any documents, papers, books,
accounts, letters, photographs, objects or
tangible things, not privileged, which constitute
or contain evidence material to any matter
involved in the action and which are in the
possession, custody or control of the party to
whom the order is addressed.
To PERMIT ENTRY upon designated land or other
property in the position or control of the party
to whom the order is addressed for the purpose
of inspecting, measuring, surveying, or
photographing the property or any designated
relevant object or operation thereon.
[Rule 27, Sec. 1]
NOTE: This mode of discovery does not mean that
the person who is required to produce the document
or the thing will be deprived of its possession even
temporarily. It is enough that the requesting party
be given the opportunity to inspect or copy or
photograph the document or take a look at the
thing. (Regalado) (Asked in the 2002 Bar Exam)
5. Physical and mental examination of
persons [Rule 28]
a. Motion requesting Examination
Requisites
The physical or mental condition of a party (NOT
A WITNESS!) is in controversy
Motion must be filed showing good cause
Notice given to the party to be examined and to
all other parties
Notice must specify the time, place, manner,
conditions and scope of examination
Notice must also specify person/s who will make
the examination
b. Court to issue the order for examination in
its discretion.
c. Report of findings
If requested by the party examined, the party
causing the examination to be made shall
deliver to him a copy of a detailed written
report of the examining physician setting out his
findings and conclusions.
After such request and delivery, the party
causing the examination to be made shall be
entitled upon request to receive from the party
examined a like report of any examination,
previously or thereafter made, of the same
mental or physical condition.
If the party examined refuses to deliver such
report, the court on motion and notice may
make an order requiring delivery on such terms
as are just
If it is the physician who fails or refuses to make
such a report the court may exclude his
testimony if offered at the trial. [Rule 28, Sec.
3]
d. Waiver or privilege
By requesting and obtaining a report of the
examination so ordered or by taking the deposition
of the examiner, the party examined waives any
privilege he may have in that action or any other
involving the same controversy, regarding the
testimony of every other person who has examined
or may thereafter examine him in respect of the
same mental or physical examination.
e. Physician-Patient Privilege
Inapplicable because the results of the
examination are intended to be made public.
Such examination is not necessary to treat or
cure the patient but to assess the extent of
injury or to evaluate his physic al or mental
condition.
6. Consequences of refusal to comply
with modes of discovery
See Annex C.
XIII. TRIAL
1. Adjournments and postponements
2. Requisites of motion to postpone trial
a. For absence of evidence
b. For illness of party or counsel
3. Agreed statement of facts
4. Order of trial; reversal of order
5. Consolidation or Severance of hearing or
trial
6. Delegation of reception of evidence
7. Trial by commissioners
a. Reference by consent or ordered on
motion
b. Powers of the commissioner
c. Commissioners report; notice to
parties and hearing on the report
Trial, defined
A trial is the judicial process of investigating and
determining the legal controversies, starting with
the production of evidence by the plaintiff and
ending with his closing arguments [Acosta v. People].
A hearing is a broader term. It is not confined to the
trial and presentation of the evidence because it
actually embraces several stages in the litigation. It

includes the pre-trial and the determination of
granting or denying a motion. [Trocio v Labayo]
Notice of trial [Rule 30, Sec. 1]
Upon entry of a case in the trial calendar, the clerk
shall notify parties the date of its trial, ensuring
receipt of the notice at least 5 days before the trial
date.
1. Adjournments and postponements
[Rule 30, Sec. 2]
General rule: The court may adjourn a trial from
day to day to any stated time, as the expeditious
and convenient transaction of business may require.
Exception: Court may not adjourn for longer than 1
month for each adjournment, nor more than 3
months in all.
Exception to exception: When authorized in writing
by the SC Court Administrator.
Note: Postponement is not a matter of right. It is
addressed to the sound discretion of the court.
[Riano, citing Garces v Valenzuela]
2. Requisites of motion to postpone
trial
a. for absence of evidence
b. for illness of party or counsel
Ground for Requisite for motion to postpone
postponement
of trial
For absence of Affidavit showing:
evidence [Rule The materiality/relevancy of
30, Sec. 3] such evidence;
That due diligence has been
used to procure the evidence
But if the adverse party admits the
facts to be given in evidence, trial
shall not be postponed even if he
objects or reserves the right to
object to their admissibility.
For illness of Affidavit or sworn certification:
party/counsel That the presence of such
[Rule 30, Sec. party/counsel at the trial is
4] indispensable;
That the character of his illness
is such as to render his non-
attendance excusable.
Subpoena
See separate part for Subpoena BUT please take
note that Subpoenas are issued within the context
of a Trial and taking depositions under Modes of
Discovery.
3. Agreed statement of facts [Rule 30,
Sec. 6]
REMEDIAL LAW REVIEWER
Parties may agree in writing upon the facts
involved in the litigation, and submit the case
for judgment without introduction of evidence. 131
If the parties agree to only some of the facts in
issue, trial shall be held as to the disputed facts
in such order as the court shall prescribe.
4. Order of trial; reversal of order
Conduct of trial [Rule 30, Sec. 5]
General rule: Trial shall be limited to the issues
stated in the pre-trial order.
Exception:
Provisions on separate trials in Rule 31, Sec. 2
When for special reasons the court directs
otherwise.
General order of trial
Plaintiff shall adduce evidence in support of his
claim;
Defendant shall adduce evidence in support of his
defense, counterclaim, cross-claim and 3rd-party
complaint;
3rd-party defendant (if any) shall adduce evidence
of his defense, counterclaim, cross-claim and 4th-
party complaint;
4th-party (and so forth) shall adduce evidence of the
material facts pleaded by them;
Parties whom any counterclaim or cross-claim has
been pleaded, shall adduce evidence in support of
their defense, in the order prescribed by the court.
Parties may respectively adduce rebutting evidence
only.
Exception: When the court permits them to adduce
evidence upon their original case, for good reasons
and in furtherance of justice.
Upon admission of evidence, the case shall be
deemed submitted for decision, unless the court
directs the parties to argue or to submit their
respective memoranda or any further pleadings.
If several defendants or 3rd-party defendants having
separate defenses appear by different counsel, the
court shall determine the relative order of
presentation of their evidence.
5. Consolidation or Severance of
hearing or trial
Consolidation of trial [Rule 31, Sec. 1]
When actions involving common question of law/fact
are pending before the court, it may:
Order a joint hearing/trial of any/all the
matters in issue in the actions;
Order all the actions consolidated;
 REMEDIAL LAW REVIEWER
Make such orders concerning the proceedings as
to avoid unnecessary costs or delay.
132
Where a case has been partially tried before one
judge, the consolidation of the same with another
related case pending before another judge who had
no opportunity to observe the demeanor of the
witness during trial makes the consolidation not
mandatory. [PCGG v. Sandiganbayan (1992)]
Severance of trial [Rule 31, Sec. 2]
The court may issue separate trials for convenience
or to avoid prejudice:
Of any claim, cross-claim, counterclaim or 3rd-
party complaint;
Of any separate issue;
Of any number of claims, cross-claims,
counterclaims, 3rd-party complaints or issues.
Statement of judge [Rule 30, Sec. 7]
During the hearing/trial of the case, any statement
made by the judge shall be made of record in the
TSN if made with reference to the
case/parties/witnesses/ counsels.
Suspension of actions [Rule 30, Sec. 8]
Governed by the CC provisions
6. Delegation of reception of
evidence [Rule 30, Sec. 9]
General rule: The judge of the court where the case
is pending shall personally receive the evidence to
be adduced by the parties.
Exception: The court may delegate the reception of
evidence to its clerk of court who is a member of the
bar in:
Default hearings;
Ex parte hearings;
Cases where parties agree in writing.
However, the clerk of court has no power to rule on
objections to any question/admission of exhibits.
Objections shall be resolved by the court upon
submission of the clerks report and TSN within 10
days from termination of the hearing.
7. Trial by commissioners
COMMISSIONER Includes a referee, an auditor or an
examiner. [Rule 32, Sec. 1]
Kinds of trial by commissioner [Rule 32, Secs. 1 &
2]
Reference by consent of both parties.
Reference ordered on motion when:
- Trial of an issue of fact requires the
examination of a long account on either side
- Taking of an account is necessary for the
courts information before judgment, or for
carrying judgment/order into effect.
- A question of fact, other than upon the
pleadings, arises in any stage of a case or for
carrying a judgment/order into effect.
a. Reference by consent or ordered
on motion
Order of reference [Rule 32, Sec. 2 to 12]
ORDER OF REFERENCE: When a reference is made,
the clerk shall furnish the commissioner with a copy
of the order of reference.
MEETING: The commissioner shall set a time/place
for the first meeting and shall notify
parties/counsels.
REPORT: Upon completion of the trial/hearing, the
commissioner shall file a written report with the
court.
NOTICE: The clerk shall notify parties of the filing of
the report. The parties 10 days to object to the
reports findings.
HEARING: After the 10 days, the report shall be set
for hearing. The court may issue an order
adopting/modifying/rejecting the report or part of
it.
When parties stipulate that the Commissioner's
findings of fact are final, only questions of law shall
thereafter be considered.
b. Powers of the commissioner
[Rule 32, Sec. 3]
When a reference is made, the clerk shall forthwith
furnish the commissioner with a copy of the order of
reference. The order may:
Specify/limit the commissioners power
Direct him to report only upon particular issues,
to do/perform particular acts, or direct him to
receive and report evidence only
May fix the date for beginning and closing the
hearings and for the filing of his report.
Powers of the Commissioner:
Regulate the proceedings in every hearing
before him [subject to other specifications &
limitations in the order]
Power to do all acts and take all measures
necessary or proper for the efficient
performance of his duties under the order
[subject to other specifications & limitations in
the order]
He may issue subpoenas and subpoenas duces
tecum, swear witnesses.
He may rule upon the admissibility of evidence,
unless otherwise provided in the order of
reference.
The trial or hearing before him shall proceed in all
respects as it would if held before the court.
c. Commissioners report; notice
to parties and hearing on the
report
Report of commissioner [Rule 32, Sec. 9]
 REMEDIAL LAW REVIEWER

Upon the completion of the trial or hearing or Grant of demurrer Denial of demurrer
proceeding before the commissioner, he shall file
The case shall be The defendant shall have
with the court his report in writing upon the matters
dismissed the right to present 133
submitted to him by the order of reference.
evidence
The court should set the
When his powers are not specified or limited, he
date for the reception of
shall set forth his findings of fact and conclusions of
the defendants
law in his report.
evidence-in-chief
[Northwest Airlines v.
He shall attach thereto all exhibits, affidavits,
CA]
depositions, papers and the transcript, if any, of the
Plaintiff's remedy would xxx
testimonial evidence presented before him.
be to appeal.
Notice to parties of the filing of report [Rule 32,
However, if the order
Sec. 10]
granting the demurrer is
Upon the filing of the report, the parties shall be
reversed on appeal, the
notified by the clerk, and they shall be allowed 10
defendant loses his right
days within which to signify grounds of objections to
to present evidence.
the findings of the report, if they so desire.
[Rule 33, Sec 1; Republic
v. Tuvera]
Objections to the report based upon grounds which
were available to the parties during the proceedings
The appellate court
before the commissioner, other than objections to
should render judgment
the findings and conclusions therein, set forth, shall
on the basis of the
not be considered by the court unless they were
evidence submitted by
made before the commissioner.
the plaintiff.
Hearing on the report [Rule 32, Sec. 11]
[Radiowealth Finance v.
Upon the expiration of the 10-day period in Rule 32,
Del Rosario]
Sec. 10, the report shall be set for HEARING.
Equivalent to judgment An interlocutory order
After which the court shall issue an ORDER: (i.e. based on the merits and not appealable.
Adopting (in whole or in part), of the evidence However, it may be the
Modifying (in whole or in part) presented so far) subject of a petition for
Rejecting the report (in whole or in part), certiorari for GAD under
Recommitting the report with instructions, or Rule 65 [Katigbak v.
Requiring the parties to present further Sandiganbayan]
evidence before the commissioner or the court.
MTD Demurrer
When to Before the service After the plaintiff
File and filing of the rests his case
XIV. DEMURRER TO EVIDENCE answer
1. Ground Ground Those enumerated Only ground: The
2. Effect of denial in Rule 16 plaintiff has
shown no right to
3. Effect of grant
relief (i.e.
4. Waiver of right to present evidence evidence is
5. Demurrer to evidence in a civil case insufficient)
versus demurrer to evidence in a criminal Effect If a MTD is granted,
case the complaint is
likewise dismissed.
1. Ground But, depending on
the ground, the
complaint may be
Definition: A species of MTD that may be invoked
re-filed
based on insufficiency of evidence (i.e. upon the
facts and the law the plaintiff has shown no right to
If the MTD is denied,
relief). [Rule 33, Sec. 1]
the defendant shall
file his responsive
It is invoked after the plaintiff has presented all the
pleading
evidence available to him.

2. Effect of denial 4. Waiver of right to present evidence

3. Effect of grant If the order granting the demurrer is reversed on
appeal, the defendant loses his right to present
Grant of demurrer Denial of demurrer evidence. [Rule 33, Sec .1; Republic v. Tuvera]
 REMEDIAL LAW REVIEWER

Judgment must be in writing, personally and

directly prepared by the judge;
134 Note: A verbal judgment is, under the law,
ineffective. [Corpus v. Sandiganbayan]
Judgment must state clearly the facts and the
law upon which the decision is based, signed by
the judge and filed with the clerk of court.
5. Demurrer to evidence in a civil [Rule 35, Sec. 1]
case versus demurrer to A decision need not be a complete recital of the
evidence in a criminal case evidence presented. So long as the factual and legal
bases are distinctly and clearly set forth, the
DIFFERENCES BETWEEN DEMURRER IN CIVIL AND judgment is valid. [Chan v. CA]
CRIMINAL CASES
(Asked in the 2003 and 2007 Bar Exams) Kinds of judgment
Demurrer in civil cases Demurrer in criminal JUDGMENT UPON COMPROMISE - It is one
cases conferred on the basis of a compromise
Defendant need not ask May be filed with or agreement entered into between the parties. It
for leave of court without leave of court. is immediately executory in the absence of a
motion to set aside on the ground of FAME.
Note: Leave of court is
necessary so that the JUDGMENT UPON CONFESSION - It is one
accused can present his rendered by the court when a party expressly
evidence in case the agrees to the other partys claim or
demurrer is denied [Rule acknowledges the validity of the claim against
119, Sec.23] him.
If the demurrer is The order of dismissal is
granted, the order of not appealable because Judgment upon Judgment by confession
dismissal is appealable it will constitute double compromise
jeopardy The provisions and terms An affirmative and
If a demurrer is denied, The accused may adduce are settled by the voluntary act of the
the defendant may his evidence only if the parties to the action. defendant himself. The
proceed to present his demurrer is field with The judgment is entered court exercises a certain
evidence leave of court in the record by consent amount of supervision
of the court. over the entry of
judgment.
XV. JUDGMENTS AND FINAL
Kinds of judgment by confession:
ORDERS - JUDGMENT BY COGNOVIT ACTIONEM After
1. Judgment without trial service, the defendant, instead of entering a
2. Contents of a judgment plea, acknowledged and confessed that the
plaintiffs cause of action was just and
3. Judgment on the pleadings
rightful.
4. Summary judgments - JUDGMENT BY CONFESSION RELICTA
5. Judgment on the pleadings versus VERIFICATIONE After pleading and before
summary judgments trial, the defendant both: (a) confessed the
6. Rendition of judgments and final orders plaintiffs cause of action and (b) withdrew
7. Entry of judgment and final order his plea or other allegations, whereupon
judgment was entered against him without
JUDGMENT proceeding to trial.
The final ruling by a court of competent jurisdiction
regarding the rights and obligations of the parties or Remedy against judgment by consent,
other matters submitted to it in an confession or compromise is to first file a
action/proceeding [Macahiling vs. Heirs of Magalit] motion to set it aside; if denied, file the
appropriate petition under Rule 65.
REQUISITES OF A VALID JUDGMENT [RULE 36, SEC.
JUDGMENT UPON THE MERITS - It is one that is
1; ART. 8, SEC. 14, 1987 CONSTITUTION] AJOEWS
rendered after consideration of the evidence
Court/tribunal must be with authority to hear
submitted by the parties during the trial of the
and determine the matter before it;
case. A judgment is on the merits when it
Court must have jurisdiction over the parties
amounts to a legal declaration of the respective
and the subject matter;
rights and duties of the parties, based upon the
Parties must have been given an opportunity to
disclosed facts
adduce evidence in their behalf;
Evidence must have been considered by the
CLARIFICATORY JUDGMENT - It is rendered to
tribunal in deciding the case; [Acosta v.
clarify an ambiguous judgment or one difficult
COMELEC]
to comply with.

JUDGMENT NON PRO TUNC - Literally, now for
then. It is a judgment intended to enter into
the record the acts which had already been
done, but which do not appear in the records.
[Lichauco v Tan Pho]
JUDGMENT SIN PERJUICIO - It may refer to a
dismissal of a case without prejudice to it being
re-filed.
CONDITIONAL JUDGMENT - It is one the
effectivity of which depends upon the
occurrence or non-occurrence of an event. Such
a judgment is generally void because eof the
absence of a disposition [cu-unjieng v mabalacat
sugar co.]
SEVERAL JUDGMENT - It is one rendered by a
court against one or more defendants and not
against all of them, leaving the action to
proceed against the others. [Rule 36, sec. 4] It
is proper when the liability of each party is
clearly separate and distinct from his co-parties
such that the claims against each of them could
have been the subject of separate suits, and the
judgment for or against one of them will not
necessarily affect the other.
SEPARATE JUDGMENT - It is one rendered
disposing of a claim among several others
presented in a case, after a determination of
the issues material to a particular claim and all
counterclaims arising out of the transaction or
occurrence that is the subject matter of said
claim. [Rule 36, sec. 5] It is proper when more
than one claim for relief is presented in an
action for the determination as to the issues
material to the claim has been made.
The judgment shall terminate the action with
respect to the claims disposed of, and shall
proceed as to the remaining claims. The court
may stay its enforcement until rendition of
subsequent judgments, and may prescribe
conditions to secure the judgments benefits.
Judgment may be given for/against one or more
of several plaintiffs/defendants. The court may
require the parties on each side to file adversary
pleadings as between themselves. [Rule 36, Sec.
3]
If judgment is rendered against 2 or more
persons sued as an entity without juridical
personality, the judgment shall set out their
individual names (if known). [Rule 36, Sec. 6]
PROMULGATION - The process by which a
decision is published, officially announced,
made known to the public or delivered to the
clerk of court for filing, coupled with notice to
the parties or their counsel.
MEMORANDUM DECISION - A decision of the
appellate court which adopts the findings and
conclusions of the TC.
REMEDIAL LAW REVIEWER
- A judgment is considered rendered upon the
filing of the signed decision.
- This includes an amended decision because an
amended decision is a distinct and separate 135
judgment and must follow the established
procedural rule.
1. Judgment without trial
When trial is not necessary PSADSA (Asked in the
1996 Bar Exams) [Riano]
The pleadings of the parties tender no issue at
all judgment on the pleadings may be directed
by the court [Rule 34]
There is actually no genuine issue from the
pleadings, affidavits, depositions and other
papers court may render a summary judgment
[Rule 35]
Parties entered into a compromise or an
amicable settlement either during the pre-trial
or during the trial [Rule 18; Art. 2028 Civil Code]
Complaint has been dismissed with prejudice
[Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec. 5
(last par.)]
Case falls under the Rules on Summary
Procedure
Agreed statement of facts [Rule 30, Sec. 6]
2. Contents of a judgment
Parts of a judgment
Body, Ratio decidendi, or Opinion of the court
It contains the findings of facts and conclusions
of law;
Fallo, or Disposition of the case It is the
dispositive part of the judgment that actually
settles and eclares the rights and obligation sof
the parties, finally, definitevely, and
authoritatively [Light Rail Transit Authority v
CA]; The part of the judgment that is subject to
execution [Riano]
Signature of the judge.
Distinction Between Judgment and Opinion of the
Court (ASKED IN THE 2006 BAR EXAM)
A judgment (or FALLO) must be distinguished
from an opinion.
The latter is the informal expression of the
views of the court and cannot prevail against its
final order or decision.
While the two may be combined in one
instrument, the opinion forms no part of the
judgment.
So there is a distinction between the findings
and conclusions of a court and its judgment.
While they may constitute its decision and
amount to a rendition of a judgment they are
not the judgment itself.
They amount to nothing more than an order for
judgment, which, of course, must be
distinguished from the judgment. [Freeman on
Judgments, Vol. I, 5th Edition, page 6, quoted in
Casilan vs. Salcedo (1969)]
Conflict between the dispositive portion and body
of the decision
 REMEDIAL LAW REVIEWER
Rule: Where there is a conflict between the fallo
and the body of the decision, the fallo controls.
136
Qualification: This rule applies only when the
dispositive part is definite, clear, and unequivocal
[Union Bank v Pacific Equipmetnt Corporation]
Basis: The fallo is the final order. The opinion in the
body is merely a statement ordering nothing [Poland
Industrial Limited v. National Development
Company]
3. Judgment on the pleadings [Rule
34] (Asked in the 1999 and 2005 Bar
Exams)
Grounds:
If the answer either
Fails to tender an issue;
Note: An answer fails to tender an issue due to
either:
- General denial of the material allegations of
the complaint;
- Insufficient denial of the material allegations
of the compliant.
Admits the material allegations of the adverse
partys pleading.
Cannot be rendered motu proprio
A judgment on the pleadings can be done only upon
MOTION to that effect filed by the appropriate
party. It cannot be rendered by the court motu
proprio.
Exception: If at pre-trial the court finds that a
judgment on the pleadings is proper, it may render
such judgment motu proprio. [Rule 18, Sec. 2(g)]
When judgment on the pleadings will not apply
Declaration of nullity of marriage;
Annulment of marriage;
Legal separation.
Effect: judgment on the pleadings will not lie and
material facts alleged in the complaint must always
be proved
Effects
By moving for judgment on the pleadings, the
plaintiff waives his claim for unliquidated
damages (because claims for such damages must
be alleged and proved).
One who prays for the judgment on the
pleadings without offering proof as to the truth
of his own allegations and without giving the
opposing party an opportunity to introduce
evidence must be understood to admit all
material and relevant allegations of the
opposing party and to rest his motion for
judgment upon those allegations taken together
with such of his own as are admitted in the
pleadings. [Falcasantos v. How Suy Ching (1952)]
4. Summary judgments [Rule 35]
(Asked in the 1986, 1989, 1996 and
1999 Bar Exams)
Definition, nature
A judgment granted by the court for the prompt
disposition of civil actions, if it clearly appears (after
the issues had been joined and on the basis of the
pleadings and papers filed) that there exists no
genuine issue/controversy as to any material fact,
except as to the amount of damages. [Ley
Construction v. Union Bank; Agbada v Inter-Urban
Developers; Raboca v Velez]
Also called accelerated judgment.
Genuine issue
An issue of fact which calls for the presentation
of evidence; as distinguished from an issue
which is sham, fictitious, contrived and patently
insubstantial so as not to constitute a genuine
issue for trial.
When the facts as pleaded appear uncontested
or undisputed, then there is no real/genuine
issue as to the facts.
The TC cannot motu propio issue a summary
judgment. A party must move for summary
judgment. [Riano]
Procedure [Rule 35, Sec. 3]
Movant files a motion for summary judgment with
supporting affidavits, depositions or admission
Service to the adverse party at least 10 days the
hearing
Adverse party may serve opposing affidavits,
depositions or admissions at least 3 days before the
hearing
Hearing Court shall determine if a genuine issue as
to any material fact exists and if the movant is
entitled to a summary judgment as a matter of law
Judgment
a. for the claimant [Rule 35, Sec. 1]
b. for the defendant [Rule 35, Sec. 2]
Who may file When
the motion
Claimant May file the motion only after the
answer has been served
Defendant May file the motion any time
Filing of a motion for summary judgment does not
interrupt the running of the period for filing an
answer. Hence, the movant must also file a Motion
for Extension of Time to File Answer.
Bases of summary judgment: When, upon the
following, no genuine issue as to any material fact
exists:
Affidavits made on personal knowledge;
Depositions of the adverse or a 3rd party; (Rule
23)
Admissions of the adverse party; (Rule 26)
 REMEDIAL LAW REVIEWER

Answers to interrogatories. (Rule 25) Based on the Based solely Based on the
pleadings, upon the complaint and
c. When the case not fully adjudicated depositions, pleadings evidence, if court
admissions and requires its 137
Partial summary judgment (Asked in the 2004 Bar affidavits presentation
Exam) There is no The answer No issues as no
Applies when for some reason there can be no full genuine issue fails to tender answer is filed by
summary judgment. Trial should deal only with the between the an issue or the defending
facts not yet specified or established. parties there is an party
admission of
the material
Duty of court [Rule 35, Sec. 4] allegations
Ascertain what material facts exist without Available to Generally Available to the
substantial controversy and what are actually both plaintiff available only plaintiff alone
and in good faith controverted based on: and defendant to the
- An examination of the pleadings and evidence plaintiff,
before it unless the
- Interrogation of the counsel defendant
Make an order specifying the facts and the presents a
extent of the amount of damages that appear counterclaim
without substantial controversy 10-day notice 3-day notice 3-day notice rule
Direct further proceedings as are just required required applies
Conduct trial on the controverted facts May be On the merits On the merits
accordingly interlocutory
or on the
Effect merits
A partial summary judgment is not a final judgment, Usually Available in Available in any
but merely a pre-trial adjudication that said issues in available in any action, action, except
the case shall be deemed established for the trial of actions to except annulment of
the case. [Guevarra v. CA (1983)] recover a debt, annulment of marriage or legal
or for a marriage or separation cases
d. Affidavits and attachments liquidated sum legal
of money, or separation
Form of affidavits and supporting papers [Rule 35, for declaratory cases
Sec. 5] relief
Made on personal knowledge
Shall set forth such facts as would be admissible 6. Rendition of judgments and final
in evidence
Shall show affirmatively that the affiant is orders
competent to testify to the matters stated
therein. Form of judgment [Rule 36, Sec. 1]
In writing
Attachments [Rule 35, Sec. 5] Personally and directly prepared by the judge
Certified true copies of all papers or parts thereof Stating clearly & distinctly the facts and the law
referred to in the affidavit shall be attached thereto on which it is based
OR served therewith. Signed by the judged
Filed with the clerk of court.
Affidavits in bad faith [Rule 35, Sec. 5]
Definition Affidavits presented under this Rule Definition of rendition of judgment
which appear to the court at any time as presented It is the filing of the judgment with the clerk of
in bad faith or solely for the purpose of delay court. It is not the pronouncement of the judgment
in open court that constitutes the rendition. Even if
Effects: the judgment has already been put in writing and
Court shall order the offending party or counsel signed, it is still subject to amendment if it has not
to pay the other party amount of reasonable yet been filed with the clerk of court and before its
expenses which the filing of the affidavits filing does not yet constitute the real judgment of
caused him to incur, including attorneys fees the court. [Ago v. CA]
Court may adjudge the offending party or
counsel guilty of contempt, after hearing Period within which decision is to be rendered
[1987 Constitution, Art. VIII, Sec. 15]
All cases filed must be decided or resolved by
5. Judgment on the pleadings versus the Supreme Court within 24 months from the
summary judgments date of their submission for decision.
Unless reduced by the SC, within 12 months for
Summary Judgment on Judgment by lower collegiate courts and within 3 months for
judgment the pleadings default all other lower courts.
 REMEDIAL LAW REVIEWER

A case is deemed submitted for resolution upon the To make corrections of clerical errors, not
filing of the last pleading, brief or memorandum substantial amendments, as by an amendment
138 required by the Rules of Court or by the court. non pro tunc;
To clarify an ambiguity which is borne out by
An extension of the period may be set by the SC and justifiable in the context of the decision;
upon request by the judge concerned on account of In judgments for support, which can always be
heavy caseload or by other reasonable excuse [Arap amended from time to time.
v Mustafa]
Amended/clarified Supplemental decision
Interpretation of the judgment judgment
Where the judgment is difficult to execute because An entirely new decision Does not take the place
of ambiguity in its terms, the remedy of the party is and supersedes the of or extinguish the
to file a motion for clarificatory judgment and not to original judgment original judgment
assail the judgment as void. [Poland Industrial Court makes a thorough Serves to add to the
Limited v National Development Company] study of the original original judgment
judgment and renders
7. Entry of judgment and final order the amended and
clarified judgment only
Definition of entry of judgment after considering all the
The entry of judgment refers to the physical act factual and legal issues
performed by the clerk of court in entering the
dispositive portion of the judgment in the book of
entries of judgment after the same has become final XVI. POST-JUDGMENT REMEDIES
and executory. [Riano]
1. Motion for New Trial or reconsideration
Rendition of judgment Entry of judgment 2. Appeals in General
Filing of the judgment Act of clerk of court in 3. Relief from judgments, orders and other
with the clerk of court entering the dispositive proceedings
portion of the judgment 4. Annulment of Judgments or final orders
in the book of entries of and resolutions
judgment
5. Collateral attack of judgments
Entry of Judgments and Final Orders [Rule 36, Sec.
2] Remedies BEFORE finality of judgment
If there is no appeal/MNT/MFR filed within the Motion for Reconsideration
prescribed periods, the clerk of court shall enter the Motion for New Trial
judgment or final order in the book of entries of Appeal
judgments.
1. Motion for New Trial or
Date of finality of the judgment = Date of its entry in Reconsideration
the book
Motion for reconsideration
Note: the periods for filing the following pleadings A motion for reconsideration under Rule 37 is
are reckoned from the date of entry of judgment directed against a judgment or final order. It is not
Execution of a judgment by motion (5 years the motion for reconsideration of interlocutory
from entry) [Rule 39, Sec. 6] order, which often precedes a petition for certiorari
Petition for relief (as one of its periods, not under Rule 65. It does not apply to cases that fall
more than 6 months from entry of the judgment under Summary Procedure.
or final order) [Rule 38, Sec. 3]
Contents of motion for new trial or
The record: reconsideration
Shall contain the judgments dispositive part Rule 37, Sec.2. Contents of motion for new trial or
Shall be signed by the clerk of court with a reconsideration.The motion shall be made in
certificate that the judgment has become final writing stating the ground or grounds therefor, a
and executory. written notice of which shall be served by the
movant on the adverse party.
Amendments to judgment (Asked in the 2008 Bar
Exams) A motion for new trial shall be proved in the manner
The power to amend judgments is inherent to the provided for proof of motions. A motion for the
court before judgment becomes final and executory. cause mentioned in paragraph (a) of the preceding
section shall be supported by affidavits of merits
General rule: The court cannot amend the judgment which may be rebutted by affidavits. A motion for
once it has become final and executory. the cause mentioned in paragraph (b) shall be
supported by affidavits of the witnesses by whom
Exception: such evidence is expected to be given, or by duly
authenticated documents which are proposed to be
introduced in evidence.

A motion for reconsideration shall point out
specifically the findings or conclusions of the
judgment or final order which are not supported by
the evidence or which are contrary to law, making
express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be
contrary to such findings or conclusions.
A pro forma motion for new trial or reconsideration
shall not toll the reglementary period of appeal.
a. Grounds
Rule 37, Sec.1. Grounds of and period for filing
motion for new trial or reconsideration.Within the
period for taking an appeal, the aggrieved party may
move the trial court to set aside the judgment or
final order and grant a new trial for one or more of
the following causes materially affecting the
substantial rights of said party:
(a) 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; or
(b) Newly discovered evidence, which could not,
with reasonable diligence, have discovered and
produced at the trial, and which if presented
would probably alter the result.
Within the same period, the aggrieved party may
also move for reconsideration upon the grounds that
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 law.
Grounds for a motion for reconsideration
The evidence is insufficient to justify the
decision;
The damages awarded are excessive;
The decision or final order is contrary to law.
Form and content of a motion for reconsideration
Motion for reconsideration must be in writing, a
written notice of which must be served on the
adverse party.
It is not sufficient to mention the ground relied
upon. It is necessary for the motion for
reconsideration to point out specifically the findings
or conclusions of the judgment or final order which
are not supported by the evidence or which are
contrary to law, making express reference to the
testimonial or documentary evidence or to the
provisions of law alleged to be contrary to such
findings or conclusions.
Non-compliance with this requirement would reduce
the motion to a mere pro forma motion, which shall
not toll the period for appeal.
Grounds for motion for new trial
REMEDIAL LAW REVIEWER
The aggrieved party may move the trial court to set
aside the judgment or final order and grant a new
trial for one or more of the following causes
materially affecting the substantial rights of the said 139
party:
FAME (Extrinsic Fraud, Accident, Mistake or
Excusable Negligence) which ordinary prudence
could not have guarded against and by reason of
which the aggrieved party has probably been
impaired in his rights.
- The motion shall be supported by affidavits of
merit. Non-compliance with this requirement
would reduce the motion to a mere pro forma
motion.
- The affidavits of merit must show the facts
(not mere conclusions or opinions)
constituting the valid cause of action or
defense which the movant may prove in case
a new trial is granted. Otherwise, if the
complaint is after all groundless or the
defense is ineffective, a new trial would serve
no purpose.
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.
- The motion shall be supported by: affidavits
of the witnesses by whom such evidence is
expected to be given; and/or duly
authenticated documents which are proposed
to be introduced in evidence.
- Non-compliance with this requirement would
reduce the motion to a mere pro forma
motion.
Tumang vs. CA: Newly discovered evidence may and
does commonly refer to evidence already in
existence prior to or during trial but which could not
have been secured and presented during the trial
despite reasonable diligence on the part of the
litigant.
Extrinsic fraud: any fraudulent scheme executed by
the prevailing party outside of the trial against the
losing party who, because of such fraud, was
prevented from presenting his side of the case.
Intrinsic fraud: acts of a party during the trial which
does not affect the presentation of the case.
Accident: an event that occurs without ones
foresight or expectation.
Mistake: generally, mistakes of facts or law where,
in good faith, the defendant was misled in a case.
b. When to file
The motion must be filed within the period for
appeal.
The period for appeal is within 15 days after notice
to the appellant of the judgment or final order
appealed from. The 15-day period is deemed to
commence upon receipt by the counsel of record,
 REMEDIAL LAW REVIEWER
which is considered notice to the parties. Service
upon the parties themselves is prohibited and is not
140 considered as official receipt of judgment.
No motion for extension of time shall be allowed.
Where a record on appeal is required, the appellant
shall file:
a notice of appeal, and
record on appeal within 30 days from notice of
the judgment or final order.
A record on appeal is required only in:
Special proceedings;
Other cases of multiple or separate appeals.
Resolution of the motion
Rule 37, Sec.4. Resolution of motion.A motion for
new trial or reconsideration shall be resolved within
30 days from the time it is submitted for resolution.
Effect of filing
The filing of a timely motion interrupts the period to
appeal.
The 30-day period to resolve the motion is held to be
mandatory [Gonzales vs Bantolo (2006)]
Rule 37, Sec.3. Action upon motion for new trial or
reconsideration.The trial court may set aside the
judgment or final order and grant a new trial, upon
such terms as may be just, or may deny the motion.
If the court finds that excessive damages have been
awarded or that the judgment or final order is
contrary to the evidence or law, it may amend such
judgment or final order accordingly.
c. Denial of the motion; effect
Denial of motion for reconsideration
The judgment or final order shall stand as is.
Rule 37, Sec.7. Partial new trial or
reconsideration.If the grounds for a motion under
this Rule appear to the court to affect the issues as
to only a part, or less than all of the matter in
controversy, or only one, or less than all, of the
parties to it, the court may order a new trial or
grant reconsideration as to such issues if severable
without interfering with the judgment or final order
upon the rest.
Single motion rule
Rule 37, Sec.5. Second motion for new trial.A
motion for new trial shall include all grounds then
available and those not so included shall be deemed
waived. A second motion for new trial based on a
ground not existing or available when the first
motion was made, may be filed within the time
herein provided excluding the time during which the
first motion had been pending.
No party shall be allowed a second motion for
reconsideration of a judgment or final order.
The prohibition on a second motion does not apply
to a motion for reconsideration of an interlocutory
order.
Denial of motion for new trial
The judgment or final order shall stand as is.
Rule 37, Sec.8. Effect of order for partial new
trial.When less than all of the issues are ordered
retried, the court may either enter a judgment or
final order as to the rest, or stay the enforcement of
such judgment or final order until after the new
trial.
When there is an order for partial new trial, the
court may either enter a judgment or final order as
to the rest, or stay the enforcement of such
judgment or final order until after the new trial.
When a second motion for new trial is permissible:
When a ground for new trial was not existing or
available when the first motion was made.
d. Grant of the motion; effect
Grant of motion for reconsideration
The court may amend the judgment or final order
accordingly. The amended judgment is in the nature
of a new judgment, which supersedes the original
judgment.
Grant of motion for new trial
The original judgment shall be vacated, and the
action shall stand for trial de novo. The recorded
evidence upon the former trial shall be used at the
new trial without retaking them (if they are material
and competent).
e. Remedy when motion is denied, Fresh 15-
day period rule
Rule 37, Sec.9. Remedy against order denying a
motion for new trial or reconsideration.An order
denying a motion for new trial or reconsideration is
now appealable. (As modified by AM 07-7-12)
Remedy if motion is denied
To appeal from the judgment or final order
itself.
The order denying the motion for new trial or
reconsideration may itself be assailed by a
petition for certiorari under Rule 65.
Habaluyas vs. Japson (1986): A motion for new
trial or reconsideration is not a prerequisite to an
appeal, a petition for review or a petition for review
on certiorari. And since the purpose is to expedite
the final disposition of cases, a strict but prospective
application of said ruling is in order.
Fresh period rule
Neypes vs. CA (2005): If the motion is denied, the
movant has a fresh period of 15 days from receipt
or notice of the order denying the motion for new
trial or motion for reconsideration within which to
file an appeal.

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.
2. Appeals in General
a. Judgments and final orders subject to
appeal
Rule 41 [as amended by A.M. 07-7-12 (2007)]
SECTION 1. Subject of appeal. An appeal may be
taken from a judgment or final order that
completely disposes of the case, or of a particular
matter therein when declared by these Rules to be
appealable.
No appeal may be taken from:
(a) An order denying a petition for relief or any
similar motion seeking relief from judgment;
(b) An interlocutory order;
(c) An order disallowing or dismissing an appeal;
(d) An order denying a motion to set aside a
judgment by consent, confession or compromise
on the ground of fraud, mistake or duress, or
any other ground vitiating consent;
(e) An order of execution;
(f) A judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending,
unless the court allows an appeal therefrom;
and
(g) An order dismissing an action without prejudice.
In any of the foregoing circumstances, the aggrieved
party may file an appropriate special civil action as
provided in Rule 65.
SIGNIFICANCE OF THE AMENDMENT
An order denying motion for new trial or
reconsideration is NOW APPEALABLE!
FINAL ORDER INTERLOCUTORY ORDER
Disposes of the matter Does not dispose of a case
in its entirety, leaving completely but leaves
nothing more to be something more to be
done but to enforce decided upon.
execution
Appealable Not appealable except
through a petition for
certiorari under Rule 65
Must clearly and No need to comply with
REMEDIAL LAW REVIEWER
distinctly state the such a requirement
law and the facts on
which it is based
141
b. Matters not appealable
Not appealable under Rule 41
Order denying motion for new trial or
reconsideration;
Order denying petition for review or any similar
motion seeking relief from judgment;
Interlocutory order;
Order disallowing/dismissing appeal;
Order denying motion to set aside judgment by
consent or confession or compromise on ground
of fraud or mistake or duress or any other
vitiation of consent;
Order of execution;
While the case is pending, judgment or final
order:
- For/against one or more of several
parties;
- In separate claims, counterclaims, cross-
claims, third-party complaints.
Exception: If court allows appeal.
Order dismissing an action without prejudice.
In the 8 cases not appealable under Rule 41, the
aggrieved party may file a special civil action under
Rule 65.
c. Remedy against judgments and orders
which are not appealable
d. Modes of appeal
i. Ordinary appeal
Procedure in the Court of Appeals
Ordinary appealed cases
Rule 44, Sec. 1. Title of cases.In all cases
appealed to the Court of Appeals under Rule 41, the
title of the case shall remain as it was in the court of
origin, but the party appealing shall be further
referred to as the appellant and the adverse party as
the appellee.
Counsels and guardians
Rule 44, Sec. 2. Counsel and guardians.The
counsel and guardians ad litem of the parties in the
court of origin shall be respectively considered as
their counsel and guardians ad litem in the Court of
Appeals. When others appear or are appointed,
notice thereof shall be served immediately on the
adverse party and filed with the court.
Order of transmittal of record
Rule 44, Sec. 3. Order of transmittal of record.If
the original record or the record on appeal is not
transmitted to the Court of Appeals within 30 days
after the perfection of appeal, either party may file
a motion with the trial court, with notice to the
other, for the transmittal of such record or record on
appeal.
 REMEDIAL LAW REVIEWER
Case docketing
142 Rule 44, Sec. 4. Docketing of case.Upon receiving
the original record or the record on appeal and the
accompanying documents and exhibits transmitted
by the lower court, as well as the proof of payment
of the docket and other lawful fees, the clerk of
court of the Court of Appeals shall docket the case
and notify the parties thereof.
Within 10 days from receipt of said notice, the
appellant, in appeals by record on appeal, shall file
with the clerk of court 7 clearly legible copies of the
approved record on appeal, together with the proof
of service of 2 copies thereof upon the appellee.
Any unauthorized alteration, omission or addition in
the approved record in appeal shall be a ground for
dismissal of the appeal.
Record completion
Rule 44, Sec. 5. Completion of record.Where the
record of the docketed case is incomplete, the clerk
of court of the Court of Appeals shall so inform the
court and recommend to it measures necessary to
complete the record. It shall be the duty of said
court to take appropriate action towards the
completion of the record within the shortest possible
time.
Rule 44, Sec. 6. Dispensing with complete record.
Where the completion of the record could not be
accomplished within a sufficient period allotted for
said purpose due to insuperable or extremely
difficult cases, the court, on its own motion or on
motion of an of the parties, may declare that the
record and its accompanying transcripts and exhibits
so far available are sufficient to decide the issues
raised in the appeal, and shall issue an order
explaining the reasons for such declaration.
The failure of appellant to take the necessary steps
for the correction or completion of the record within
the time limited by the court in its order is a ground
for dismissal of the appeal.
Appellants brief
Rule 44, Sec.7. Appellants brief.It shall be the
duty of the appellant to file with the court, within
45 days from receipt of the notice of the clerk that
all the evidence, oral and documentary, are
attached to the record, 7 copies of his legibly
written, mimeographed or printed brief, with proof
of service of 2 copies thereof upon the appellee.
Important numbers to remember
File brief within 45 days from receipt of notice,
File seven copies of the brief,
Serve two copies to appellee and file proof of
service.
Contents of appellants brief
Rule 44, Sec. 13. Contents of appellants brief.
The appellants brief shall contain, in the order
herein indicated, the following:
(a) A subject index of the matter in the brief with a
digest of the arguments and page references,
and a table of cases alphabetically arranged,
textbooks and statutes cited with references to
the pages where they are cited;
(b) An assignment of errors intended to be urged,
which errors shall be separately, distinctly and
concisely stated without repetition and
numbered consecutively;
(c) Under the heading Statement of the Case, a
clear and concise statement of the nature of the
action, a summary of the proceedings, the
appealed rulings and orders of the court, the
nature of the judgment and any other matters
necessary to an understanding of the nature of
the controversy, with page references to the
record;
(d) Under the heading Statement of Facts, a clear
and concise statement in a narrative form of
facts admitted by both parties and of those in
controversy, together with the substance of
proof relating thereto in sufficient detail to
make it clearly intelligible, with page
references to the record;
(e) A clear and concise statement of the issues of
fact or law to be submitted to the court for its
judgment;
(f) Under the heading Argument, the appellants
arguments on each assignment of error with
page references to the record. The authorities
relied upon shall be cited by the page of the
report at which the case begins and the page of
the report on which the citation is found.
(g) Under the heading Relief, a specification of
the order of judgment which the appellant
seeks; and
(h) In cases not brought up by record on appeal, the
appellants brief shall contain, as an appendix,
a copy of the judgment or final order appealed
from.
Rule 44, Sec. 15. Questions that may be raised on
appeal.Whether or not the appellant has filed a
motion for new trial in the court below, he may
include in his assignment of errors any question of
law or fact that has been raised in the court below
and which is within the issues framed by the parties.
Rule 124, Sec. 7. Contents of brief.The briefs in
criminal cases shall have the same contents as
provided in sections 13 and 14 of Rule 44. A certified
true copy of the decision or final order appealed
from shall be appended to the brief of the appellant.
Appellees brief
Rule 44, Sec. 8. Appellees brief.Within 45 days
from receipt of the appellants brief, the appellee
shall file with the court 7 copies of his legibly type-
written, mimeographed or printed brief, with proof
of service of 2 copies thereof upon the appellant.
Contents of appellees brief
Rule 44, Sec. 14. Contents of appellees brief.The
appellees brief shall, in the order herein indicated,
the following:

(a) A subject index of the matter in the brief with a
digest of the arguments and page references,
and a table of cases alphabetically arranged,
textbooks and statutes cited with references to
the pages where they are cited;
(b) Under the heading Statement of Facts, the
appellee shall state that the accepts the
statement of facts in the appellants brief, or
under the heading Counter-Statement of
Facts, he shall point out such insufficiencies or
inaccuracies as he believes exist in the
appellants statement of facts with references
to the pages of the record in support thereof,
but without repetition of matters in the
appellants statement of facts; and
(c) Under the heading Argument, the appellee
shall set forth his arguments in the case on each
assignment of error with page references to the
record. The authorities relied on shall be cited
by the page of the report at which the case
begins and the page of the report on which the
citation is found.
Reply brief
Rule 44, Sec. 9. Appellants reply brief.Within 20
days from receipt of the appellants brief, the
appellee shall file with the court 7 copies of his
legibly typewritten, mimeographed or printed brief,
with proof of service of 2 copies thereof upon the
appellant.
Memoranda in special cases
Rule 44, Sec. 10. Time for memoranda in special
cases.In certiorari, prohibition, mandamus, quo
warranto and habeas corpus cases, the parties shall
file, in lieu of briefs, their respective memoranda
within a non-extendible period of 30 days from
receipt of the notice issued by the clerk that all the
evidence, oral or documentary, is already attached
to the record.
The failure of the appellant to file his memorandum
within the period therefore may be a ground for
dismissal of the appeal.
Several or plurality of appellants, appellees
and/or counsel
Rule 44, Sec. 11. Several appellants or appellees or
several counsel for each party.Where there are
several appellants or appellees, each counsel
representing one or more but not all of them shall
be served with only one copy of the briefs. When
several counsel represent one appellant or appellee,
copies of the brief may be served upon any of them.
Extension of time for filing briefs
Rule 44, Sec. 12. Extension of time for filing
briefs.Extension of time for the filing of briefs will
not be allowed, except for good and sufficient
cause, and only if the motion for extension is filed
before the expiration of the time sought to be
extended.
The brief
De Liano vs. CA (2001): The purpose of the brief is
REMEDIAL LAW REVIEWER
to present to the court in concise form the points
and questions in controversy, and by fair argument
on the facts and law of the case to assist the court in
arriving at a just and proper conclusion. 143
The brief should be so prepared as to minimize the
labor of the court in the examination of the record
upon which the appeal is heard and determined.
Failure to comply with required contents of
appellants brief is cause for dismissal of the
petition.
Dismissal of appeal
Rule 50, Sec. 1. Grounds for dismissal of appeal.
An appeal may be dismissed Court of Appeals, on its
own motion or on that of appellee, on the following
grounds:
(a) Failure of the record on appeal to show on its
face that the appeal was taken within the
period fixed by these Rules;
(b) Failure to file the notice of appeal of the record
on appeal within the period prescribed by these
Rules;
(c) Failure of the appellant to pay the docket and
other lawful fees as provide in section 5 of Rule
40 and Section 4 of Rule 41;
(d) Unauthorized alterations, omission or additions
in the approved record on appeal as provided in
section 4 of Rule 44;
(e) Failure of the appellant to serve and file the
required number of copies of his brief or
memorandum within the time provided by these
Rules;
(f) Absence of specific assignment of errors in the
appellants brief, or of page references to the
record as required in section 13, paragraphs (a),
(c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary
steps for the correction or completion of the
record within the time limited by the court in its
order;
(h) Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives of
the court without justifiable cause; and
(i) The fact that the order or judgment appealed
from is not appealable.
PNB vs. Philippine Milling (1969): CA has discretion
to dismiss or not to dismiss appeal. Although said
discretion must be a sound one, to be exercised in
accordance with the tenets of justice and fair play,
having in mind the circumstances obtaining in each
case, the presumption is that it has been so
exercised.
Padasdas vs. CA (1974): Failure to file appellants
brief within the reglementary period need not
necessarily cause dismissal of appeal where the
same was due to force majeure.
Dismissal of improper appeal
Rule 50, Sec. 2. Dismissal of improper appeal to the
Court of Appeals.An appeal under Rule 41 taken
from the Regional Trial Court to the Court of Appeals
 REMEDIAL LAW REVIEWER
raising only questions of law shall be dismissed,
issues purely of law not being reviewable by said
144 court. Similarly, an appeal by notice of appeal
instead of by petition for review from the appellate
judgment of a Regional Trial Court shall be
dismissed.
An appeal erroneously taken to the Court of Appeals
shall not be transferred to the appropriate court but
shall be dismissed outright.
Atlas Consolidated vs. CA (1991): Circular No.2-90
now prohibits the transfer of appeals erroneously
taken to the SC or CA to whichever of these tribunals
has appropriate appellate jurisdiction. But where SC
believes that there are factual issues which must be
resolved, it may, in the exercise of its sound
discretion and considering the attendant
circumstances, either itself take cognizance of and
decide such issues or refer them to CA for
determination.
Cu-unjieng vs. CA (2006): Nonpayment of the
appellate court docket and other lawful fees within
the reglementary period as provided under Rule 41,
Sec. 4 is a ground for the dismissal of an appeal
under Rule 50, Sec. 1(c). The Supreme Court has
invariably sustained the Court of Appeals dismissal
on technical grounds under the afore-quoted
provision unless considerations of equity and
substantial justice present cogent reasons to hold
otherwise. True, the rules may be relaxed but only
for persuasive and weighty reasons, to relieve a
litigant of an injustice commensurate with his failure
to comply with the prescribed procedure.
Withdrawal of appeal
Rule 50, Sec. 3. Withdrawal of appeal.An appeal
may be withdrawn as of right at any time before the
filing of the appellees brief. Thereafter, the
withdrawal may be allowed in the discretion of the
court.
Stay of execution
General rule: If judgment is rendered against the
defendant, execution shall issue immediately upon
motion.
Exception: Immediate execution of judgment may be
stayed if the following requisites concur:
an appeal has been perfected
the defendant files a sufficient supersedeas
bond, approved by the MTC and executed in
favor of the plaintiff to pay the rents, damages
and costs accruing down to the time of the
judgment appealed from
during the pendency of the appeal, the
defendant deposits with the appellate court the
amount of rent due from time to time under the
contract; in the absence of a contract, he shall
deposit with the RTC 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 10th day of each succeeding
month or period
The supersedeas bond shall be transmitted by the
MTC, with the other papers, to the clerk of the RTC
to which the action is appealed.
All amounts so paid to the appellate court shall be
deposited with said court or authorized government
depositary band, 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, 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.
Habere Facias Possessionem; definition
The name of the process commonly resorted to by
the successful party in an action for ejectment, for
the purpose of being placed by the sheriff in the
actual possession of the land recovered.
San Pedro vs CA: Judgments in ejectment cases
which are favorable to the plaintiff are immediately
executory. They can be stayed by the defendant only
by:
perfecting an appeal;
filing a supersedeas bond; and
making a periodic deposit of the rental or the
reasonable compensation for the use and
occupation of the property during the pendency
of the appeal.
These requisites must concur.
Puncia vs Gerona: A stay of execution may also be
warranted once the writ is issued:
where the delay in the deposit is due to fraud,
accident, mistake, or excusable negligence; or,
where supervening events occurring subsequent
to the judgment bring about a material change
in the situation of the parties which makes
execution inequitable
where there is no compelling urgency for the
execution because it is not justified by the
prevailing circumstances

Rule 39, Sec. 2. Discretionary execution.
(a) Execution of a judgment or a final order
pending appeal.On motion of the prevailing
party with notice to the adverse party filed in
the trial court while 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.
Sec. 21, Revised Rules on Summary Procedure.
Appeal. The judgment or final order shall be
appealable to the appropriate RTC which shall
decide the same in accordance with Sec. 22 of BP
129. The decision of the regional trial court in civil
cases governed by this Rule, including forcible entry
and unlawful detainer, shall be immediately
executory, without prejudice to a further appeal
that may be taken therefrom. Section 10 of Rule 70
shall be deemed repealed.
Rule 43, Sec. 12. Effect of appeal.The appeal
shall not stay the award, judgment, final order or
resolution sought to be reviewed unless the Court of
Appeals shall direct otherwise upon such terms as it
may deem just.
Rule 39, Sec. 4. Judgments not stayed by appeal.
Judgments in actions for injunction, receivership,
accounting and support, and such other judgments
as are not 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 suspending,
modifying, restoring or granting the injunction,
receivership, accounting, or award of support.
General rule: In ordinary appeals, execution is
stayed.
Exceptions
Decision in forcible entry and unlawful detainer.
Exception to exception: If appellant stays
immediate execution by filing a notice of
appeal, supersedeas bond and depositing in
court a monthly rental or compensation for the
REMEDIAL LAW REVIEWER
occupation as fixed by the court which rendered
the decision.
Decision of the MeTC, MTC or MCTC or the RTC
where execution pending appeal has been 145
granted by the court of origin or in a proper
case by the appellate court upon good reasons
to be stated in the order.
Decision of the RTC rendered in the exercise of
its appellate jurisdiction on cases tried and
decided by the court of origin under Summary
Procedure.
Decision of a quasi-judicial agency under the
Rule 43, Sec. 12, UNLESS otherwise provided by
the Court CA;
Decision in cases of injunction, receivership,
support and accounting.
Service Specialists vs Sheriff of Manila: An appeal
from the order denying the petition for relief does
not stay the judgment from which relief is sought. In
order to stay execution, it is necessary to obtain a
writ of preliminary injunction.
When case is submitted for judgment
Rule 51, Sec. 1. When case deemed submitted for
judgment.A case shall be deemed submitted for
judgment:
A. In ordinary appeals.
Where no hearing on the merits of the main case is
held, upon the filing of the last pleading, brief, or
memorandum required by the Rules or by the court
itself, or the expiration of the period for its filing.
When such hearing is held, upon its termination or
upon the filing of the last pleading or memorandum
as may be required or permitted to be filed by the
court, or the expiration of the period for its filing.
B. In original actions and petitions for review.
Where no comment is filed, upon the expiration of
the period to comment.
Where no hearing is held, upon the filing of the last
pleading required or permitted to be filed by the
court, or the expiration of the period for its filing.
Where a hearing on the merits of the main case is
held, upon its termination or upon the filing of the
last pleading or memorandum as may be required or
permitted to be filed by the court, or the expiration
of the period for its filing.
The period within which a court must render a
decision is mandatory [New Frontier Mines vs
NLRC]
Judgment
Rule 51, Sec. 2. By whom rendered.The judgment
shall be rendered by the members of the court who
participated in the deliberation on the merits of the
case before its assignment to a member for the
writing of the decision.
Rule 51, Sec. 3. Quorum and voting in the court.
The participation of all three Justices of a division
 REMEDIAL LAW REVIEWER
shall be necessary at the deliberation and the
unanimous vote of the three Justices shall be
146 required for the pronouncement of a judgment or
final resolution. If the three Justices do not reach a
unanimous vote, the clerk shall enter the votes of
the dissenting Justices in the record. Thereafter, the
Chairman of the division shall refer the case,
together with the minutes of the deliberation, to the
Presiding Justice who shall designate two Justices
chosen by raffle from among the other members of
the court to sit temporarily with them, forming a
special division of five Justices. The participation of
all the five members of the special division shall be
necessary for the deliberation required in section 2
of this Rules and the concurrence of a majority of
such division shall be required for the
pronouncement of a judgment or final resolution.
Rule 51, Sec. 4. Disposition of a case.The CA, in
the exercise of its appellate jurisdiction, may affirm,
reverse, or modify the judgment or final order
appealed from, and may direct a new trial or further
proceedings to be had.
Sec.40, BP 129. Form of decision in appealed
cases.Every decision or final resolution of a court
in appealed cases shall clearly and distinctly state
the findings of fact and the conclusion of law on
which it is based, which may be contained in the
decision or final resolution itself, or adopted by
reference from those set forth in the decision,
order, or resolution appealed from.
Rule 51, Sec. 5. Form of decision.Every decision or
final resolution of the court in appealed cases shall
clearly and distinctly state the finding of fact and
the conclusions of law on which it is based, which
may be contained in the decision or final resolution
itself, or adopted from those set forth in the
decision, order, or resolution appealed from.
The body of the judgment must contain the reasons
or conclusions of the court to serve as a guide or
enlightenment to determine the ratio decidendi. But
what actually constitutes the resolution of the court
which is the subject of the execution is the
dispositive portion of the fallo. [Olac vs. CA]
Rule 51, Sec. 6. Harmless error.No error in either
the admission or the exclusion of evidence and no
error or defect in any ruling or order or in anything
done or omitted by the trial court or by any of the
parties is ground for granting a new trial or for
setting aside, modifying, or otherwise disturbing a
judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial
justice. The court at every stage of the proceedings
must disregard any error or defect which does not
affect the substantial rights of the parties.
Rule 51, Sec. 7. Judgment where there are several
parties.In all actions or proceedings, an appealed
judgment may be affirmed as to some of the
appellants, and revered as to others, and the case
shall thereafter be proceeded with, so far as
necessary, as of separate actions had been begun
and prosecuted; and execution of the judgment of
affirmance may be had accordingly, and costs may
be adjudged in such cases, as the court shall deem
proper.
Rule 51, Sec. 8. Questions that may be decided.No
error which does not affect the jurisdiction over the
subject matter or the validity of the judgment
appealed from or the proceedings therein will be
considered unless stated in the assignment of errors,
or closely related to or dependent on an assigned
error
Rule 51, Sec. 9. Promulgation and notice of
judgment.After the judgment or final resolution
and dissenting or separate opinions, if any, are
signed by the Justices taking part, they shall be
delivered for filing to the clerk who shall indicate
thereon the date of promulgation and cause true
copies thereof to be served upon the parties or their
counsel.
ii. Petition for review
iii. Petition for review on certiorari
Procedure in the Supreme Court (Appealed
Cases)
Mode of appeal
Rule 56, Sec. 3. Mode of appeal.An appeal to the
Supreme Court may be taken only by a petition for
review on certiorari, except in criminal cases where
the penalty imposed is death, reclusion perpetua or
life imprisonment.
Procedure
Rule 56, Sec. 4. Procedure.The appeal shall be
governed by and disposed of in accordance with the
applicable provisions of the Constitution, laws, Rules
45, 48, sections 1, 2 and 5 to 11 of Rules 51, 52 and
this Rule.
Grounds for dismissal of appeal
Rule 56, Sec. 5. Grounds for dismissal of appeal.
The appeal may be dismissed motu proprio or on
motion of the respondent on the following grounds:
(a) Failure to take the appeal within the
reglementary period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and
other lawful fees or to make a deposit for costs;
(d) Failure to comply with the requirements
regarding proof of service and contents of and
the documents which should accompany the
petition;
(e) Failure to comply with any circular, directive or
order of the Supreme Court without justifiable
cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is not appealable to the
Supreme Court.
Improper appeal

Rule 56, Sec. 6. Disposition of improper appeal.
Except as provided in section 3, Rule 122 regarding
appeals in criminal cases where the penalty imposed
is death, reclusion perpetua or life imprisonment, an
appeal taken to the Supreme Court by notice of
appeal shall be dismissed.
An appeal by certiorari taken to the Supreme Court
from the Regional Trial Court submitting issues of
fact may be referred to the Court of Appeals for
decision or appropriate action. The determination of
the Supreme Court on whether or not issues of facts
are involved shall be final.
Rule 122, Sec. 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 by notice of appeal
filed with the court which rendered the
judgment or final order appealed from and by
serving a copy thereof upon the adverse party.
(b) The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be by
petition for review under Rule 42.
(c) The appeal in cases where the penalty imposed
by the Regional Trial Court is reclusion perpetua
or life imprisonment, or where a lesser penalty
is imposed but for offenses committed on the
same occasion or which arose out of the same
occurrence that gave rise to the more serious
offense for which the penalty of death,
reclusion perpetua, or life imprisonment is
imposed, shall be by notice of appeal to the
Court of Appeals in accordance with paragraph
(a) of this Rule.
(d) No notice of appeal is necessary in cases where
the Regional Trial Court imposed the death
penalty. The Court of Appeals shall
automatically review the judgment as provided
in Section 10 of this Rule.
(e) Except as provided in the last paragraph of
section 13, Rule 124, all other appeals to the
Supreme Court shall be by petition for review on
certiorari under Rule 45.
General rule: An appeal taken to the Supreme Court
by notice of appeal shall be dismissed.
Exception: Appeals in criminal cases where the
penalty imposed is death, reclusion perpetua or life
imprisonment.
Equally divided
Rule 56, Sec. 7. Procedure if opinion is equally
divided.Where the court en banc is equally divided
in opinion, or the necessary majority cannot be had,
the case shall again be deliberated on, and if after
such deliberation no decision is reached, the original
action commenced in the court shall be dismissed; in
appealed cases, the judgment or order appealed
from shall stand affirmed; and on all incidental
matters, the petition or motion shall be denied.
Questions of Fact vs. Questions of Law
REMEDIAL LAW REVIEWER
Agote vs. Lorenzo (2005): A question of law does
not involve an examination of the probative value of
the evidence presented by any of the litigants.
147
There is a question of law in a given case when the
doubt or difference arises as to what the law is on a
certain state of facts; there is a question of fact
when the doubt or difference arises as to the truth
or the falsehood of the facts alleged.
Alsua-Betts vs. CA (1979):
General rule: CAs findings of fact are final and
conclusive and cannot be reviewed on appeal to the
SC, provided they are borne out by the record or are
based on substantial evidence.
Exception: CAs findings of fact may be reviewed by
the SC on appeal by certiorari when:
1. Conclusion is a finding grounded entirely on
speculations, surmises or conjectures (Joaquin
vs. Navarro).
2. Inference made is manifestly mistaken, absurd
or impossible (Luna vs. Linatok).
3. There is grave abuse of discretion in the
appreciation of facts (Buyco vs. Pp).
4. Judgment is based on a misapprehension of facts
(De la Cruz vs. Sosing).
5. The Court of Appeals findings of fact are
conflicting (Casica vs. Villaseca).
6. The Court of Appeals, in making its findings,
went beyond the issues of the case and the
same is contrary to the admissions of both
appellant and appellee [Nakpil & Sons vs. CA
(1986)].
7. The Court of Appeals manifestly overlooked
certain relevant facts not disputed by the
parties and which, if properly considered, would
justify a different conclusion [Abellana vs.
Dosdos (1965)].
8. The Court of Appeals findings of fact are
contrary to those of the trial court, or are mere
conclusions without citation of specific
evidence, or where the facts set forth by the
petitioner are not disputed by the respondent,
or where the findings of fact of the Court of
Appeals are premised on absence of evidence
but are contradicted by the evidence of record
[Manlapaz vs. CA (1987)].
Perez-Rosario vs. CA (2005): Rule 65 cannot cure
the failure to appeal thru Rule 45.
e. Issues to be raised on appeal
Cognizable judgments/issues
The appellate court has no jurisdiction to review a
judgment which is immediately final and executory
by express provision of law. [Republic v. Bermudez-
Lorino (2005)]
Rationale: Appeal is merely a privilege conferred by
law upon the litigants.
A party cannot change the theory on appeal. Only
issues pleaded in the lower court and properly raised
may be resolved by the appellate court. [Medina v.
CA (1992)]
 REMEDIAL LAW REVIEWER

From RTC (original) to CA to SC and from MTC to

However, issues which are inferred from or RTC (appellate) to CA to SC and from CA to SC and
148 necessarily connected with the issue properly raised from QJA to CA to SC
and pleaded may be resolved by the appellate court. 15 days from notice of judgment or final order or
[Espina v. CA (1992)] from denial of petitioners motion for
reconsideration or new trial. The SC may grant a 30
Notice of appeal day extension for justifiable reasons.
The notice of appeal shall indicate the parties to the
appeal, the judgment or final order or part thereof
appealed from, and state the material dates showing
the timeliness of the appeal. From QJA to CA
15 days from notice of the award, judgment, final
Record of appeal order or resolution or from date of last publication if
Required only in: required by law. The CA may grant a 15 day
Special proceedings; extension. No further extension shall be granted
Multiple or separate appeals where the law or except for the most compelling reasons and in no
the Rules of Court so requires. case longer than 15 days.
Distinctions Between Rule 45 and
Rule 40, Sec.2. When to appeal.The appeal is Rule 65 Based on J. Regalados Commentary
taken by filing a notice of appeal with the court that (Asked in the 1999 and 2008 Bar Exams )
rendered the judgment or final order appealed from. Rule 45 Appeal by Certiorari Rule 65 Original Action
Where a record on appeal is required, the appellant for Certiorari
shall file a notice of appeal and a record on appeal 1. Issues Raised
within 30 days after notice of the judgment or final
order. Questions of Law Grave Abuse of
Discretion Amounting to
The period of appeal shall be interrupted by a timely Lack or Excess of
motion for new trial or reconsideration. No motion Jurisdiction
for extension of time to file a motion for new trial or 2. Against What Court
reconsideration shall be allowed. Action Directed

Neypes vs. CA (2005) on the fresh period rule: Review of the judgment, Directed Against an
Definition: Period of appeal is interrupted by a award or final order on the Interlocutory Order of
timely motion for new trial or reconsideration. merits the court prior to appeal
Motion for extension of time to file motion for new from the judgment, or
trial or reconsideration is not allowed. where there is no appeal
or any other plain speedy
Applicability: and adequate remedy
Rule 40 on appeals from MTC to RTC. 3. Reglementary Period
Rule 42 on petitions for review from RTC to CA.
Rule 43 on appeals from QJA to CA. Must be filed within the Not later than sixty (60)
Rule 45 on appeals by certiorari to SC. reglementary period for days from notice of the
appeal. judgment, order or
Rationale: To standardize the appeal periods resolution sought to be
provided in the Rules of Court and to afford litigants assailed.
fair opportunity to appeal their cases, the court 4. Effect on the
deems it practical to allow a fresh period of 15 days Proceedings Below
within which to file the notice of appeal in the
Regional Trial Court, counted from receipt of the Judgment, award or order No effect (i.e.,
order dismissing a motion for new trial or appealed from is stayed by proceedings below
reconsideration. the Appeal continue) unless a writ of
preliminary injunction or
f. Period of appeal a temporary restraining
order has been issued
From MTC to RTC and from RTC (original) to CA 5. Parties Involved
By notice of appeal: 15 days from notice of the
judgment or final order Original Parties to the action The parties are the
By record of appeal: 30 days from notice of the remain the same during aggrieved party against
judgment or final order appeal (albeit with the the lower court/Quasi-
From MTC to RTC (appellate) to CA: 15 days corresponding appellation of judicial agency and the
from notice of the judgment or final order but appellant and appellee), the prevailing parties, who
the Court of Appeals may grant a 15 day lower court or quasi-judicial thereby respectively
extension. No further extension shall be granted agency is not to be become the petitioner
except for the most compelling reasons and in impleaded. and the respondents.
no case longer than 15 days.
 REMEDIAL LAW REVIEWER

Distinctions Between Rule 45 and Matrix of Periods

Rule 65 Based on J. Regalados Commentary
(Asked in the 1999 and 2008 Bar Exams )
Rule 45 Appeal by Certiorari Rule 65 Original Action Period to Extensions Effect of 149
for Certiorari Appeal MR or MNT
6. Requirement of Motion By notice of No extensions Interrupts
for Reconsideration appeal - 15 allowed the period
days from to appeal
For purposes of appeal, MR MR is a CONDITION notice of the
is not required PRECEDENT subject only judgment or
MTC
to certain exceptions. final order
to
7. Exercise of Jurisdiction By record of
RTC
appeal 30
The Appellate Court Higher Court exercises days from
exercises its appellate original jurisdiction notice of the
jurisdiction and power of under its power of judgment or
review control and supervision final order
over the proceedings of By notice of No extensions Interrupts
lower courts. appeal - 15 allowed the period
days from to appeal
notice of the
This fresh period rule shall also apply to: judgment or
Rule 40 governing appeals from the Municipal RTC final order
Trial Courts to the Regional Trial Courts; to CA By record of
Rule 42 on petitions for review from the appeal 30
Regional Trial Courts to the Court of Appeals; days from
Rule 43 on appeals from quasi-judicial notice of the
agencies to the Court of Appeals; and judgment or
Rule 45 governing appeals by certiorari to the final order
Supreme Court. The new rule aims to regiment 15 days from The CA may Fresh
or make the appeal period uniform, to be notice of the grant a 15 day period to
counted from receipt of the order denying the judgment or extension. No appeal
motion for new trial, motion for reconsideration final order further from
(whether full or partial) or any final order or OR from extension denial MR
MTC
resolution. [Neypes vs. CA, (2005)] denial of MR shall be or MNT
to
or MNT granted
RTC
A party litigant may now file his notice of appeal except for the
to CA
either within fifteen days from receipt of the most
original decision or within fifteen days from the compelling
receipt of the order denying the motion for reasons and in
reconsideration. no case longer
then 15 days.
Being procedural in nature, Neypes is deemed to be 15 days from The CA may Fresh
applicable to actions pending and undetermined at notice of the grant a 15 day period to
the time of its effectivity and is thus retroactive in award, extension. No appeal
that sense and to that extent. [First Aqua Sugar v. judgment, further from
BPI (2007)] final order or extension denial MR
resolution or shall be or MNT
QJA
g. Perfection of appeal from date of granted
to CA
last except for the
Perfection of an appeal in the manner and within the publication if most
period laid down by law is mandatory and required by compelling
jurisdictional. [Balgami vs. CA (2004)] law OR from reasons and in
denial of MR no case longer
Rationale: Appeal is merely a statutory privilege, or MNT then 15 days.
and may be exercised only in the manner and in 15 days from The SC may Fresh
RTC
accordance with the provisions of the law. It is notice of grant a 30 day period to
to SC
neither a natural right nor a part of due process. judgment or extension for appeal
RTC
final order justifiable from
to CA
Effect of failure to perfect appeal OR from reasons. denial MR
to SC
Defeats a partys right to appeal. denial of or MNT
CA to
Precludes appellate court from acquiring petitioners
SC
jurisdiction. MR or MNT.
reglementary period confers only a discretionary
Camposagrado vs. Camposagrado (2005): Failure (not mandatory) power to dismiss the proposed
to pay the appellate court docket fee within the appeal. Such discretion should consider all attendant
 REMEDIAL LAW REVIEWER
circumstances and must be exercised with a view to
substantial justice.
150
Republic v. Bermudez-Lorino (2005): Appellate
court has no jurisdiction to review a judgment which
is immediately final and executory by express
provision of law.
Medina vs. CA (1992): A party cannot change the
theory on appeal. Only issues pleaded in the lower
court and properly raised may be resolved by the
appellate court.
Espina vs. CA (1992): However, issues which are
inferred from or necessarily connected with the
issue properly raised and pleaded may be resolved
by the appellate court.
Appeal from MTC to RTC: the rules on perfection of
appeal from RTC to CA applies.
From the Regional Trial Court to CA:
By notice of appeal: perfected as to party who
filed notice upon filing of the same in due time
- The court loses jurisdiction over the case
upon perfection of appeal AND expiration
of time to appeal of the other parties.
By record on appeal: perfected as to the party
who filed appeal and with respect to the subject
matter thereof upon approval of the record filed
in due time
- The court loses jurisdiction upon approval
of the records on appeal AND expiration
of the time to appeal of the other parties
From MTC to RTC (appellate jurisdiction) to CA:
upon timely filing of a petition for review and the
payment of the corresponding docket and other
lawful fees.
The RTC loses jurisdiction upon perfection of
appeals filed in due time AND the expiration of
time to appeal of other parties.
h. Appeal from judgments or final orders of
the MTC
MTC to RTC
Rule 40, Sec.1. Where to appeal.An appeal from a
judgment or final order of a MTC may be taken to
the RTC exercising jurisdiction over the area to
which the former pertains. The title of the case shall
remain as it was in the court of origin, but the party
appealing the case shall be further referred to as the
appellant and the adverse party the appellee.
The other provisions governing appeal from RTC to
CA so long as they are not inconsistent are
applicable to appeal from MTC to RTC.
MTC to RTC to CA
File a verified petition for review with the CA,
paying at the same time to the clerk of said court
the corresponding docket and other lawful fees,
depositing the amount of P500 for costs and
furnishing the RTC and the adverse party with a copy
of the petition.
The petition shall be filed and served within 15 days
from notice of the decision sought to be reviewed or
of the denial of petitioners MNT or MR filed in due
time after judgment.
Upon proper motion and the payment of the full
amount of the docket and other lawful fees and the
deposit for costs before the expiration of the
reglementary period, the CA may grant an additional
period of 15 days only within which to file the
petition for review. No further extension shall be
granted except for the most compelling reason and
in no case to exceed 15 days. [Rule 42, Sec. 1]
(Asked in the 1999 and 2002 Bar Exam)
Petition for review from RTC to CA [Rule 42]
APPLICABILITY - Appeal of RTC decision rendered in
exercise of appellate jurisdiction [Rule 42, Sec. 1]
CERTIFICATE OF NON-FORUM SHOPPING (CNFS) -
Petitioner in a petition for review in CA/SC must
submit a CNFS with the petition. However, this rule
is relaxed where there is need to conduct a review.
In those instances, petitioner may comply with the
requirement after he has filed the petitions. [Rule
42, Sec.1]
MTC to RTC to CA to SC
Rule 41. Sec.2(c). Appeal by certiorari.In all cases
where only questions of law are raised or involved,
the appeal shall be to the SC by petition for review
on certiorari in accordance with Rule 45.
Rule 45, Sec.1. Filing of petition with Supreme
Court.A party desiring to appeal by certiorari from
a judgment or final order or resolution of the CA,
the Sandiganbayan, the RTC or other courts
whenever authorized by law, may file with the SC 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.
(Asked in the 2002 Bar Exams)
Applicability of Rule 45
Rule 45, Sec.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.
Filing of petition
File with the SC a verified petition for review on
certiorari.
In 18 copies, with the original copy intended for
the court being indicated as such by the
petitioner.

Petition shall raise only questions of law which
must be distinctly set forth.
Contents of petition (Sec. 4)
Full name of the appealing party (petitioner)
and the adverse party (respondent).
Without impleading the lower court or judges as
petitioners/respondents.
Material dates:
- When notice of the judgment or final order or
resolution subject thereof was received;
- When a motion for new trial or
reconsideration (if any) was filed and when
notice of the denial thereof was received.
Concise statement of the matters involved, and
the reasons/arguments relied on for the
allowance of the petition;
A clearly legible duplicate original, or a
certified true copy of the judgment or final
order or resolution certified by the clerk of
court of the court a quo and the requisite
number of plain copies thereof, and such
material portions of the record as would support
the petition;
Certificate of non-forum shopping.
File petition within 15 days from notice:
of the judgment or final order or resolution
appealed from, or
of the denial of the petitioner's motion for new
trial or reconsideration filed in due time after
notice of the judgment.
On motion duly filed and served, with full payment
of the docket and other lawful fees and the deposit
for costs before the expiration of the reglementary
period, the SC may for justifiable reasons grant an
extension of 30 days only within which to file the
petition. [Rule 45, Sec. 2]
Rule 45, Sec.3. Docket and other lawful fees; proof
of service of petition.Unless he has theretofore
done so, the petitioner shall pay the corresponding
docket and other lawful fees to the clerk of court of
the Supreme Court and deposit the amount of
P500.00 for costs at the time of the filing of the
petition. Proof of service of a copy thereof on the
lower court concerned and on the adverse party
shall be submitted together with the petition.
Dismissal or denial of petition
Rule 45, Sec.5. Dismissal or denial of petition.The
failure of the petitioner to comply with any of the
foregoing requirements regarding the payment of
the docket and other lawful fees, deposit for costs,
proof of service of the petition, and the contents of
and the documents which should accompany the
petition shall be sufficient ground for the dismissal
thereof.
The SC may on its own initiative deny the petition on
the ground that the appeal is without merits, or is
prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial to
require consideration.
REMEDIAL LAW REVIEWER
Review is discretionary
A review is not a matter of right, but of sound
judicial discretion, and will be granted only when
there are special and important reasons therefore. 151
The following, while neither controlling nor fully
measuring the court's discretion, indicate the
character of reasons which will be considered:
When the court a quo has decided a question of
substance, not theretofore determined by the
SC, or has decided it in a way probably not in
accord with law or with the applicable decisions
of the SC; or
When the court a quo has so far departed from
the accepted and usual course of judicial
proceedings, or so far sanctioned such departure
by a lower court, as to call for an exercise of
the power of supervision.
May require pleadings and documents
Rule 45, Sec.7. Pleadings and documents that may
be required; sanctions.For purposes of determining
whether the petition should be dismissed or denied
pursuant to sec.5 of this Rule, or where the petition
is given due course under sec.8 hereof, the SC may
require or allow the filing of such pleadings, briefs,
memoranda or documents as it may deem necessary
within such periods and under such conditions as it
may consider appropriate, and impose the
corresponding sanctions in case of non-filing or
unauthorized filing of such pleadings and documents
or non-compliance with the conditions therefor.
Due course and elevation of records
Rule 45, Sec.8. Due course; elevation of records.If
the petition is given due course, the SC may require
the elevation of the complete record of the case or
specified parts thereof within 15 days from notice.
MTC to SC
The remedy is a petition for certiorari under
Rule 65.
This is not an appeal.
i. Appeal from judgments or final orders of
the RTC
RTC to CA
Under Rule 41, an appeal of judgment or final order
under that completely disposes of either:
The case;
A particular matter in the case, when declared
by ROC to be appealable.
Not appealable under Rule 41
Order denying motion for new trial or
reconsideration;
Order denying petition for review or any similar
motion seeking relief from judgment;
Interlocutory order;
Order disallowing/dismissing appeal;
Order denying motion to set aside judgment by
consent or confession or compromise on ground
of fraud or mistake or duress or any other
vitiation of consent;
 REMEDIAL LAW REVIEWER
Order of execution;
While the case is pending, judgment or final
152 order:
- For/against one or more of several parties;
- In separate claims, counterclaims, cross-
claims, third-party complaints.
Exception: If court allows appeal.
Order dismissing an action without prejudice.
In the 8 cases not appealable under Rule 41, the
aggrieved party may file a special civil action under
Rule 65.
Interlocutory order
Definition: If it does not dispose of the case but
leaves something else to be done by the trial court
on the merits of the case. [Investments, Inc. vs. CA
(1987)]
For purposes of appeal, an order is final if it disposes
of the entire case. An order for partial summary
judgment is an interlocutory order which cannot be
appealed from. The trial court had not yet rendered
a complete final judgment. [GSIS vs. Phil. Village
Hotel (2004)]
Multiple appeals
Civil cases which admit of multiple appeals:
Judgment in an action for recovery or for
partition of property is separately appealable
from the proceedings on that part of the
judgment wherein accounting for receipts from
the property is ordered as a primary or
incidental relief. When such accounting is
submitted and either approved or rejected by
the trial court, another appeal lies therefrom.
Special civil actions:
- Expropriation; (Rule 67)
- Judicial partition; (Rule 69)
- Judicial foreclosure of mortgage; (Rule 68)
Special proceedings also admit of multiple appeals.
Ko vs. PNB (2006): The order of dismissal due to
failure to prosecute is appealable by notice of
appeal under Rule 41.
Philexport vs. PI (2004): But an order of dismissal
without prejudice is not appealable under Rule 41.
Lanaria v. Planta (2007): Submission of a document
together with the motion for reconsideration
constitutes substantial compliance with compliance
with Section 2, Rule 42 or the requirement that
relevant or pertinent documents be submitted along
with the petition, and calls for the relaxation of
procedural rules
RTC to CA to SC
The remedy is a petition for review on certiorari
under Rule 45.
RTC to SC
The remedy is a petition for certiorari under
Rule 65.
This is not an appeal.
j. Appeal from judgments or final orders of
the CA
CA to SC
The remedy is a petition for review on certiorari
under Rule 65.
k. Appeal from judgments or final orders of
the CTA
RA 9282: Decisions of the CTA are now appealable to
the SC by petition for review on certiorari under
Rule 45.
l. Review of final judgments or final orders of
the COA
m. Review of final judgments or final orders
of the COMELEC
n. Review of final judgments or final orders
of the CSC
The remedy of an aggrieved party from a resolution
issued by the CSC is to file a petition for review
thereof under Rule43 of the Rules of Court within
fifteen days from notice of the resolution. [DECS v.
Cuanan (2008)]
o. Review of final judgments or final orders
of the Ombudsman
p. Review of final judgments or final orders
of the NLRC
Rule 43, Sec.2. Cases not covered.This Rule shall
not apply to judgments or final orders issued under
the Labor Code of the Philippines.
NLRC judgments and final orders or resolutions are
now reviewable, in the first instance, by the Court
of Appeals on certiorari under Rule 65, but those of
the Employees Compensation Commission should be
brought to the Court of Appeals through a petition
for review under this Rule. Also, appeals from the
Office of the Ombudsman in administrative
disciplinary cases are now covered by this Rule.
[Fabian vs. Desierto (1998)]
q. Review of final judgments or final orders
of quasi-judicial agencies
QJA to CA
Applicability
Appeals from judgments or final orders of the CTA
and from awards, judgments, final orders or
resolutions of or authorized by any quasi-judicial
agency (QJA) in the exercise of its quasi-judicial
functions: (arranged alphabetically)
Agricultural Inventions Board (AIB);
Board of Investments (BOI);
Bureau of Patents, Trademarks and Technology
Transfer (BPTTT);

Central Board of Assessment Appeals (CBAA);
Civil Aeronautics Board (CAB);
Civil Service Commission (CSC);
Construction Industry Arbitration Commission;
Department of Agrarian Reform (DAR under RA
6657)
Employees Compensation Commission (ECC);
Energy Regulatory Board (ERB);
Government Service Insurance System (GSIS);
Insurance Commission;
Land Registration Authority (LRA);
National Electrification Administration (NEA);
National Telecommunications Commission
(NTC);
Office of the President (OP);
Philippine Atomic Energy Commission (PAEC);
Securities and Exchange Commission (SEC);
Social Security Commission (SSC);
Voluntary arbitrators authorized by law.
A resolution of the DOJ Secretary is not appealable
under Rule 43. Recourse should be to the President,
instead of the CA, under the established principle of
exhaustion of administrative remedies. [Orosa vs.
Roa (2006)]
Exhaustion of administrative remedies: If an
appeal/remedy obtains or is available within the
administrative machinery, this should be resorted to
before resort can be made to the courts.
Under Rule 43, Sec. 4 the petition should be filed
within 15 days from:
Notice of the final order; or
The date of its last publication, if publication is
required by law for its effectivity; or
The denial of the petitioners MFR duly filed
according to the governing law of the court or
agency a quo. [Villorente vs. Laiya (2005)]
Under Rule 43, there is no need to implead the lower
court or agency which rendered the assailed
decision. [Basmayor v. Atencio (2005)]
Submission of the duplicate original or certified true
copy of judgment, order, resolution or ruling subject
of a petition for certiorari is essential to determine
whether or not the court, body or tribunal which
rendered the same indeed committed grave abuse of
discretion. Either a legible duplicate original or
certified true copy thereof shall be submitted. If
what is submitted is a copy, then it is required that
the same is certified by the proper officer of the
court, tribunal, agency or office involved. This is to
assure that such copy is a faithful reproduction of
the judgment, order, resolution or ruling subject of
the petition. [Coca-cola v. Cabalo (2006)]
Recourse to a petition for certiorari under Rule 65
renders the petition dismissible for being the wrong
remedy. Nonetheless, there are exceptions to this
rule:
when public welfare and the advancement of
public policy dictates;
when the broader interest of justice so requires;
when the writs issued are null and void; or
REMEDIAL LAW REVIEWER
when the questioned order amounts to an
oppressive exercise of judicial authority. [DECS
v. Cuanan (2008)]
153
QJA to CA to SC
Remedy is a petition for review on certiorari under
Rule 45.
QJA to SC
Remedy is a petition for certiorari under Rule 65,
which is not an appeal.
3. Relief from judgments, orders and
other proceedings
Definition: It is a legal remedy whereby a party
seeks to set aside a judgment rendered against him
by a court whenever he is unjustly deprived of a
hearing or was prevented from taking an appeal
because of fraud, accident, mistake or excusable
negligence.
Francisco vs. Puno: A party who has filed a timely
motion for new trial or motion for reconsideration
can no longer file a petition for relief from judgment
after his motion has been denied. These remedies
are mutually exclusive. It is only in appropriate cases
where a party aggrieved by the judgment has not
been able to file a motion for new trial or motion for
reconsideration that a petition for relief can be
filed.
a. Grounds for availing of the remedy
Rule 38, Sec.1. Petition for relief from judgment,
order, or other proceedings.When a judgment or
final order is entered, or any other proceeding is
thereafter taken against a party in any court through
fraud, accident, mistake, or excusable negligence,
he may file a petition in such court and in the same
case praying that the judgment, order or proceeding
be set aside.
The relief provided for by Rule 38 is of equitable
character and is only allowed in exceptional cases,
that is where there is no other available or adequate
remedy. A petition for relief is not regarded with
favor and judgment will not be disturbed where the
party complaining has or by his exercising proper
diligence would have had an adequate remedy at
law, as where petitioner could have proceeded by
appeal to vacate or modify the default judgment.
[Manila Electric vs. CA (1990))
Petition for relief under Rule 38 is an admission that
the period to appeal from the decision had already
expired. [David vs CA (1992))
b. Time to file petition
Rule 38, Sec.3. Time for filing petition; contents
and verification.A petition provided for in either of
the preceding sections of this Rules must be verified,
filed within 60 days after the petitioner learns of the
judgment, final order, or other proceeding to be set
 REMEDIAL LAW REVIEWER
aside, and not more than 6 months after such
judgment or final order was entered, or such
154 proceeding was taken; and must be accompanied
with affidavits showing the fraud, accident, mistake,
or excusable negligence relied upon, and the facts
constituting the petitioners good and substantial
cause of action or defense, as the case may be.
Both periods must concur. They are also non-
extendible and never interrupted.
c. Contents of petition
Rule 38, Sec.2. Petition for relief from denial of
appeal.When a judgment of final order is rendered
by any court in a case, and a party thereto, by
fraud, accident, mistake, or excusable negligence,
has been prevented from taking an appeal, he may
file a petition in such court and in the same case
praying that the appeal be given due course.
Under both grounds, the petition shall be filed in the
same court which rendered the judgment and in the
very same case.
Prayer in petition for relief from judgment:
That the judgment/order/proceeding be set
aside;
That the appeal be given due course.
Form and content of petition:
Must be verified;
Must be accompanied by an affidavit showing
the fraud, accident, mistake or excusable
negligence relied upon;
The affidavit of merit accompanying the
petition must also show the facts constituting
the petitioners good and substantial cause of
action or defense.
An affidavit of merit serves as the jurisdictional basis
for the court to entertain a petition for relief.
However, it is not a fatal defect to warrant denial of
the petition so long as the facts required to be set
out also appear in the verified petition.
When an affidavit of merit is not necessary:
When there is lack of jurisdiction over the
defendant;
When there is lack of jurisdiction over the
subject matter;
When judgment was taken by default;
When judgment was entered by mistake or was
obtained by fraud; or
Other similar cases.
Two hearings in a petition for relief from judgment:
Hearing to determine whether or not the
judgment should be set aside;
If option a) is in the affirmative, hearing upon
the merits of the case.
Other remedies after finality of judgment:
Action to Annul a Judgment
Certiorari
Collateral Attack of a Judgment that is Void on
its Face
4. Annulment of Judgments or final
orders and resolutions
a. Grounds for annulment
b. Period to file action
c. Effects of judgment of annulment
5. Collateral attack of judgments
Remedies from a Void Judgment (Asked in the 2004
BAR EXAMS)
What is a void judgment?
A void judgment is no judgment at all. It cannot be
the source of any right nor of any obligation. All acts
performed pursuant to it and all claims emanating
from it have no legal effect. Hence, it can never
become final and any writ of execution based on it is
void. It may be said to be a lawless thing which can
be treated as an outlaw and slain at sight, or ignored
wherever and whenever it exhibits its head.
A void judgment never acquires finality. A void
judgment is not entitled to the respect accorded to
a valid judgment, but may be entirely disregarded or
declared inoperative by any tribunal in which effect
is sought to be given to it. It is attended by none of
the consequences of a valid adjudication. It has no
legal or binding effect or efficacy for any purpose or
at any place. It cannot affect, impair or create
rights. It is not entitled to enforcement and is,
ordinarily, no protection to those who seek to
enforce. All proceedings founded on the void
judgment are themselves regarded as invalid. In
other words, a void judgment is regarded as a
nullity, and the situation is the same as it would be
if there were no judgment. It, accordingly, leaves
the parties litigants in the same position they were
in before the trial.
A judgment may be void for lack of due process of
law. [Spouses Benatiro vs. Heirs of Cuyos (2008))
How do you attack a void judgment?
It may be assailed anytime, collaterally or in a direct
action or by resisting such judgment or final order in
any action or proceeding whenever it is invoked,
unless barred by laches. [Spouses Benatiro vs. Heirs
of Cuyos (2008))
What are your remedies?
If the reglementary period for appeal has not yet
lapsed, some remedies are New Trial and
Reconsideration. Appeal, Petition for Relief, and
Other Appropriate Remedies such as Certiorari may
also be used.
If the appropriate remedies are no longer available
without the fault of the petitioner, the equitable
and extraordinary remedy of Petition for Annulment
of Judgment may be resorted to.

When all else fails, there is jurisprudence to the
effect that a patently void judgment may be dealt
with by a Main Action for Injunction.
Some jurisprudential basis
Remedial Law Jurisprudence such as Spouses
Benatiro vs. Heirs of Cuyos, (2008) and Agustin vs.
Bacalan, (1985) on the matter of void judgment
particularly refer to Rule 47 as a remedy against a
void judgment. This remedy, however, should be
availed of only when the appropriate remedies are
no longer available without fault on the part of the
petitioner.
Although Section 2 of Rule 47 of the Rules of Court
provides that annulment of a final judgment or order
of an RTC may be based "only on the grounds of
extrinsic fraud and lack of jurisdiction,"
jurisprudence recognizes denial of due process as
additional ground therefore (Spouses Benatiro Case).
Montinola vs. Judge Gonzales (1989): A VOID
JUDGMENT IS LIKE AN OUTLAW WHICH MAY BE SLAIN
AT SIGHT WHEREVER OR WHENEVER IT EXHIBITS ITS
HEAD. The proper remedy in such case, after the
time for appeal or review has passed, is for the
aggrieved party to bring an action to enjoin the
judgment.
Assuming the judgment to have been void as alleged
by the proponent of this motion, the proper remedy
was by an original proceeding and not by motion in
the cause" (Banco Espanol vs. Palanca). A final
judgment may be annulled on the ground of lack of
jurisdiction, fraud, or that it is contrary to law.
(Panlilio vs. Garcia, 119 SCRA 307)
XVII. EXECUTION, SATISFACTION
AND EFFECT OF JUDGMENTS
1. Difference between finality of judgment
for purposes of appeal; for purposes of
execution
2. When execution shall issue
3. How a judgment is executed
4. Properties exempt from execution
5. Proceedings where property is claimed by
third persons
6. Rules on Redemption
7. Examination of Judgment Obligor When
Judgment is unsatisfied
8. Examination of Obligor of Judgment
Obligor
9. Effect of Judgment or Final Orders
10. Enforcement and Effect of Foreign
Judgments or Final Orders
1. Difference between finality of
judgment for purposes of appeal; for
purposes of execution
REMEDIAL LAW REVIEWER
The term finality of judgment for purposes of
appeal refers to interlocutory orders which:
are not decisions within the constitutional 155
definition [Armargo v. CA]
are those that determine incidental matters
that do not touch on the merits of the case or
put an end to proceedings. The following are
examples of an interlocutory order:
- an order denying a motion to dismiss;
- an order granting an extension of time to file
a pleading, or one authorizing an amendment
thereof;
- order granting or denying applications for
postponement or inspection of documents.
[Riano]
The word interlocutory refers to something
intervening between the commencement and the
end of a suit which decides some point or matter but
is not a final decision of the whole controversy.
[Ramiscal, Jr. v. Sandiganbayan]
A final judgment or order is one that finally disposes
of a case, leaving nothing more to be done by the
Court in respect thereto, e.g., an adjudication on
the merits which, on the basis of the evidence
presented at the trial, declares categorically what
the rights and obligations of the parties are and
which party is in the right; or a judgment or order
that dismisses an action on the ground, for instance,
of res judicata or prescription. Once rendered, the
task of the Court is ended, as far as deciding the
controversy or determining the rights and liabilities
of the litigants is concerned. Nothing more remains
to be done by the Court except to await the parties'
next move (which among others, may consist of the
filing of a motion for new trial or reconsideration, or
the taking of an appeal) and ultimately, of course,
to cause the execution of the judgment once it
becomes 'final or, to use the established and more
distinctive term, 'final and executory.
The proper remedy to question an improvident
interlocutory order is a petition for certiorari under
Rule 65, not Rule 45. A petition for review under
Rule 45 is the proper mode of redress to question
only final judgments. Investments, Inc. v. Court of
Appeals
Execution is a matter of right upon the expiration of
the period to appeal and no appeal was perfected
from a judgment or order that disposes of the action
or proceeding. [Rule 39.1, RoC]
It can be noted that the Supreme Court made a
hairline distinction between finality of order for
appeals and for execution. It is submitted that upon
courts issuance of a judgment touching upon the
merits of a case, it is final for the purposes of an
appeal, but NOT for execution. Finality for the
purposes of execution refers to the expiration of the
period to appeal and no appeal was perfected.
 REMEDIAL LAW REVIEWER
2. When execution shall issue
156 General rule: When the judgment or order becomes
executory, the court cannot refuse to issue a writ of
execution.
Exceptions: The issuance of a writ of execution
which issues as a matter of right can be countered in
any of the following cases (R-I-N-S-E-D):
When a PETITION FOR RELIEF or an action to
enjoin judgment is filed and a preliminary
injunction is prayed for and granted (Rule 38.5);
When the judgment turns out to be INCOMPLETE
OR IS CONDITIONAL since as a matter of law,
such judgment CANNOT BE FINAL;
When the judgment has been NOVATED BY THE
PARTIES
When SUBSEQUENT FACTS AND CIRCUMSTANCES
transpire as to render such execution unjust or
impossible
On EQUITABLE GROUNDS as when there has been
a change in the situation of the parties which
makes execution INEQUITABLE.
When the judgment becomes DORMANT, the 5-
year period under Rule 39.6 having expired
without the judgment having been revived.
a. Execution as a matter of right
See Annex D.
General rule: An ex parte motion for the issuance of
the writ of execution would suffice since the trial
court may take judicial notice of the record of the
case to determine the propriety of the issuance
thereof.
Exception: However when the losing party shows
that subsequent facts had taken place which would
render the execution unjust, a hearing on the
motion should be held. [Luzon Surety v. Beson
(1976)]
General rule: An appeal seasonably perfected shall
stay the execution of the judgment, unless
discretionary execution is granted by the court.
Exceptions: However, judgments in the following
action, despite perfection of an appeal, shall be
executed, unless the court orders otherwise:
injunction
receivership
accounting
support
such other judgments as shall now or may
hereafter be declared to be immediately
executory
Judgments in these actions shall be enforceable
after their rendition and shall not, be stayed by an
appeal taken therefrom, UNLESS OTHERWISE
ORDERED BY THE TRIAL COURT.
General rule: A final and executory judgment or
order may be executed on motion within five (5)
years from the date of its entry. [Sec. 6, Rule 39]
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.
The maximum period within which a final and
executory judgment may be executed is 20 years
(Rule 39.6 in relation to New Civil Code provision on
prescription of judgment).
Exceptions:
Judgments for support WHICH DO NOT BECOME
DORMANT AND WHICH CAN BE EXECUTED BY
MOTION [Canonizado v. Benitez] except for
support in arrears beyond 10 years from the
date they become due;
Contempt orders by reason of unauthorized
reentry on the land by the ejected defendant
[Azotes v. Blanco];
Issuance of writs of possession in FORECLOSURE
CASES within the statute of limitations;
Land registration proceedings (and other special
proceedings), hence the right to ask for a WRIT
OF POSSESSION THEREIN NEVER PRESCRIBES
b. Discretionary execution
See Annex E.
General rule: Under the Rule on Discretionary
Execution (also called execution pending appeal),
the court rendering the judgment, if it still has
jurisdiction, may exercise discretion and order
execution pending appeal (Asked in the 2002 Bar
Exam). It is the execution of a judgment or final
order before it attains finality. The court which
rendered the decision can grant an execution
pending appeal if it still retains jurisdiction over the
case and is in possession of the records at the time
of the filing of the motion; otherwise, the motion
shall be acted upon by the appellate court. To be
valid, there should be a good reason to justify the
execution of the judgment pending appeal, the same
to be stated in the order granting it.
Exception: This rule, however, is inapplicable in the
case of the Court of Appeals.
The Rule on Discretionary Execution
contemplates a situation where a judgment or
final order rendered in the exercise of its
original jurisdiction and the prevailing party in
said decision seeks immediate execution during
the pendency of an appeal.
The CA has no authority to issue IMMEDIATE
EXECUTION PENDING APPEAL OF ITS OWN
DECISIONS THEREIN.
Discretionary execution is allowed pending
appeal of judgment or final order of the trial
court upon good reasons to be stated in a
special order.
 REMEDIAL LAW REVIEWER

Heirs of Justice J.B.L. Reyes v. CA (2000): A
JUDGMENT OF THE CA CANNOT BE EXECUTED
PENDING APPEAL. It is acquired either by the arrest
of the accused or by his voluntary appearance in
court.
General rule: The filing of a supersedeas bond is
sufficient to stay the enforcement of a discretionary
execution.
then deliver said payment to the judgment obligee
in satisfaction of the judgment.
The excess, if any, shall be delivered to the
157
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.

Exception: However, THE FILING OF SUPERSEDEAS ii. Satisfaction by levy

BOND does not entitle the judgment debtor to the
suspension of execution as a MATTER OF RIGHT.
Where the needs of the prevailing party are
URGENT, the Court can order immediate execution
despite such SUPERSEDEAS BOND. [Regalado]
3. How a judgment is executed
a. Execution by motion or by independent
action
b. Issuance and contents of a writ of
execution
Nature: LEVY MEANS THE ACT OR ACTS by which an
officer sets apart or appropriates a part or the whole
of the property of the judgment debtor for purposes
of the prospective execution sale [Llenares v.
Vandevella (1966)].
If susceptible of appropriation, the officer REMOVES
AND TAKES THE PROPERTY FOR SAFEKEEPING;
otherwise the same is placed under sheriffs guards.
Without valid levy having been made, ANY SALE OF
THE PROPERTY THEREAFTER is void.
Procedure:

c. Execution of judgments for money (asked If the judgment obligor cannot pay all or part of the
in the 2007 Bar Exam) obligation in cash, certified bank check or other
mode of payment acceptable to the judgment
i. Immediate payment on demand obligee, the officer shall levy upon:
the properties of the judgment obligor of every
Procedure: kind and nature whatsoever which may be
disposed, of for value, and
The sheriff or executing officer demands from the not otherwise exempt from execution
judgment obligor the immediate payment of the full
amount stated in the writ of execution and all lawful The sheriff gives the judgment obligor the option as
fees. to which of the property or part thereof may be
levied upon, sufficient to satisfy the judgment.
The judgment obligor shall pay in cash, certified
bank check payable to the judgment obligee, or ANY If the judgment obligor does not exercise the option,
OTHER FORM OF PAYMENT ACCEPTABLE TO THE the officer shall first levy on the personal properties,
LATTER (e.g., dacion en pago), the amount of the if any, and then on the real properties if the
judgment debt under proper receipt directly to the personal properties are insufficient to answer for the
judgment obligee or his authorized representative if judgment.
present at the time of payment.
The sheriff shall sell only a sufficient portion of the
The lawful fees shall be handed under proper receipt personal or real property of the judgment obligor
to the executing sheriff who shall turn over the said which has been levied upon.
amount within the same day to the clerk of court of
the court that issued the writ. When there is more property of the judgment obligor
than is sufficient to satisfy the judgment and lawful
If the judgment obligee or his authorized fees, he must sell only so much of the personal or
representative is not present to receive payment, real property as is sufficient to satisfy the judgment
the judgment obligor shall deliver the aforesaid and lawful fees.
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 Levy Garnishment
court that issued the writ, or if the same is not seizure of property, the process of notifying
practicable, deposit said amounts to a fiduciary personal and/or real, a third person (the
account in the nearest government depository bank belonging to the garnishee) to retain and
of the Regional Trial Court of the locality. judgment debtor for attach the property he
subsequent execution has in his possession or
The clerk of said court shall thereafter arrange for sale to satisfy judgment under his control
the remittance of the deposit to the account of the Garnishment is belonging to the
court that issued the writ whose clerk of court shall judgment debtor, to
make disclosure to the
 REMEDIAL LAW REVIEWER
court concerning the
same, and to dispose of
158 the same as the court
shall direct to satisfy the
judgment. (Sec. 9, Rule
39)
iii. Garnishment of debts and credits
Scope: 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.
The process of levying shall be called garnishment if
the property involved is money, stocks, or other
incorporeal property in the HANDS OF THIRD
PERSONS. Garnishment merely sets apart such funds
but does not constitute the creditor as owner of the
garnished property.
Garnishment is not a violation of RA 1405 on the
secrecy of bank deposits. [Chinabank v. Ortega]
Procedure:
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.
under him to peaceably vacate the property within
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.
When the property subject of the execution contains
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 IMMEDIATE PAYMENT ON DEMAND
with respect to delivery of payment to the judgment
obligee.
d. Execution of judgments for specific acts
i. Conveyance, delivery of deeds, or other specific
acts
Under this situation, there is a judgment which
directs a party to execute a conveyance of land or
personal property, or to deliver deeds or other
documents, or to perform, any other specific act IN
CONNECTION THEREWITH.
If the party so ordered fails to comply within a
specified period, there are two possible remedies.
Either:
the court may DIRECT THE ACT TO BE DONE AT
THE COST OF THE DISOBEDIENT PARTY by some
other person appointed by the court and the act
when so done shall have like effect as if done by
the party, or
if real or personal property is situated within
the Philippines, the court in lieu of directing a
conveyance thereof may by an order divest the
title of any party and vest it in others, which
shall have the force and effect of a conveyance
executed in due form of law.
ii. Sale of real or personal property
If judgment is rendered ordering the sale of real or
personal property, an order for execution shall be
issued describing such property as may be ordered
sold, selling it, and applying the proceeds in
conformity with the judgments instructions.
iii. 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
three (3) working days, and restore possession
thereof to the judgment obligee.
Otherwise, the officer shall oust all such persons
therefrom with the assistance, if 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.
iv. Removal of improvements on property subject
of execution
improvements constructed or planted by the
judgment obligor or his agent, the officer shall not
destroy, demolish or remove said improvements
except upon special order of the court, issued upon
motion of the judgment obligee after the hearing
and after the former has failed to remove the same
within a reasonable time fixed by the court.
v. Delivery of personal property
In judgment for the delivery of personal property,
the officer shall take possession of the same and
forthwith deliver it to the party entitled thereto and
satisfy any judgment for money as therein provided.
e. Execution of special judgments
When a judgment requires the performance of ANY
ACT OTHER THAN THOSE MENTIONED IN THE TWO

PRECEDING SECTIONS (EXECUTION OF JUDGMENT
FOR MONEY AND SPECIFIC ACTS), a certified copy of
the judgment shall be attached to the writ of
execution and shall be served by the officer upon
the party against whom the same is rendered, or
upon any other person required thereby, or by law,
to obey the same, and such party or person may be
punished for contempt if he disobeys such judgment.
Special judgments are those which can be complied
with by the judgment obligor because of his personal
qualifications or circumstances (e.g., a judgment
ordering a partner to render an accounting, a
judgment ordering a party to comply with his
recording contract otherwise, pay damages).
Note the difference with sections 9 and 10 (on
execution of money judgments and specific acts)
where contempt is not a remedy against
disobedience by a party.
f. Effect of levy on third persons
4. Properties exempt from execution
General rule: Except as otherwise expressly
provided by law, the following property, and no
other, shall be exempt from execution: (FOTNUP-
LBS-GMRE)
The judgment obligor's family home as provided
by law, or the homestead in which he resides,
and land necessarily used in connection
therewith;
Ordinary tools and implements personally used
by him in his trade, employment, or livelihood;
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;
His necessary clothing and articles for ordinary
personal use, excluding jewelry;
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;
Provisions for individual or family use sufficient
for four months;
The professional libraries and equipment of
judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen,
teachers, and other professionals, not exceeding
three hundred thousand pesos in value;
One fishing boat and accessories not exceeding
the total value of one hundred thousand pesos
owned by a fisherman and by the lawful use of
which he earns his livelihood;
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;
Lettered gravestones;
Monies, benefits, privileges, or annuities
accruing or in any manner growing out of any
life insurance;
REMEDIAL LAW REVIEWER
The right to receive legal support, or money or
property obtained as such support, or any
pension or gratuity from the Government;
Properties specially exempted by law. (e.g., 159
property mortgaged to the DBP [Section 26, CA
458]; savings of national prisoners deposited
with the POSTAL SAVINGS BANK [Act 2489];
benefits from private retirement systems of
companies and establishments with limitations
[RA 4917]; laborers wages except for debts
incurred for food, shelter, clothing and medical
attendance [ART 1708, CIVIL CODE]; benefit
payments from SSS [Section 16, RA 1161 AS
AMENDED])
Exception: However, 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.
[Herrera v. Mcmicking]: The exemptions MUST BE
CLAIMED, otherwise they are deemed waived. It is
not the duty of the sheriff to set off the exceptions
on his own initiative.
Return of writ of execution
The writ of execution shall be returnable to the
court issuing it immediately after the judgment has
been satisfied in part or in full.
If the judgment cannot be satisfied in full within
thirty (30) days after his receipt of the writ, the
officer shall report to the court and state the reason
therefor.
Such writ shall continue in effect during the period
within which the judgment may be enforced by
motion.
The officer shall make a report to the court every
thirty (30) days on the proceedings taken thereon
until the judgment is satisfied in full, or its
effectivity expires.
The returns or periodic reports shall set forth the
whole of the proceedings taken, and shall be filed
with the court and copies thereof promptly furnished
the parties. [Section 12, Rule 39]
Notice requirement
Before the sale of property on execution, notice
thereof must be given as follows:
In case of perishable property, by posting
written notice of the time and place of the sale
in three (3) public places, preferably in
conspicuous areas of the (CPM) municipal or city
hall, post office and public market in the
municipality or city where the sale is to take
place, for such time as may be reasonable,
considering the character and condition of the
property;
 REMEDIAL LAW REVIEWER
In case of other personal property, by posting a
similar notice in the three (3) public places
160 above-mentioned for not less than five (5) days;
In case of real property, by posting for twenty
(20) days in the three (3) public places
abovementioned a similar notice particularly
describing the property and stating where the
property is to be sold, and if the assessed value
of the property exceeds fifty thousand
(P50,000.00) pesos, by publishing a copy of the
notice once a week for two (2) consecutive
weeks in one newspaper selected by raffle,
whether in English, Filipino, or any major
regional language published, edited and
circulated or, in the absence thereof, having
general circulation in the province or city;
In all cases, written notice of the sale shall be
given to the judgment obligor, at least three (3)
days before the sale, except as provided in
paragraph (a) hereof where notice shall be given
the same manner as personal service of
pleadings and other papers as provided by
section 6 of Rule 13.
The notice shall specify the place, date and exact
time of the sale which should not be earlier than
nine o'clock in the morning and not later than two
o'clock in the afternoon (9am-2pm).
The place of the sale MAY BE AGREED UPON BY THE
PARTIES. In the absence of such agreement, the sale
of the property or personal property not capable of
manual delivery shall be held in the office of the
clerk of court of the Regional Trial Court or the
Municipal Trial Court which issued the writ of or
which was designated by the appellate court.
In the case of personal property capable of manual
delivery, the sale shall be held in the place where
the property is located. [Section 15, Rule 39]
PENALTIES
(Selling without notice and defacing notice)
An officer selling A person willfully
without the notice removing or defacing the
prescribed by section 15 notice posted
of this Rule
pay punitive damages in if done before the sale,
the amount of P5,000 to or before the satisfaction
any person injured of the judgment if it be
thereby, in addition to satisfied before the sale,
his actual damages, both shall be liable to pay
to be recovered by P5,000 to any person
motion in the same injured by reason
action thereof, in addition to
his actual damages, to be
recovered by motion in
the same action
Preventing execution sale
At any time before the sale of property on
execution, the judgment obligor may prevent the
sale by paying the amount required by the execution
and the costs that have been incurred therein.
[Section 18, Rule 39]
This is akin to the equitable right of redemption
under Rule 68, which is available to the
judgment obligor in judicial foreclosure of
mortgage.
The difference lies in the fact that under Rule
68, a definite period is given.
Concluding the execution sale
When the purchaser is the judgment obligee, and no
third-party claim has been filed, he need not pay the
amount of the bid if it does not exceed the amount
of his judgment. If it does, he shall pay only the
excess. [Section 21, Rule 39]
By written consent of the judgment obligor and
obligee, or their duly authorized representatives,
the officer may adjourn the sale to any date and
time agreed upon by them. Without such agreement,
he may adjourn the sale from day to day if it
becomes necessary to do so for lack of time to
complete the sale on the day fixed in the notice or
the day to which it was adjourned [Section 22, Rule
39]. Written consent is essential, otherwise the
adjournment will be void [Abrozar v. IAC (1988)]
Upon a sale of real property , the officer must give
to the purchaser a certificate of sale containing:
A particular description of the real property
sold;
The price paid for each distinct lot or parcel;
The whole price paid by him;
A statement that the right of redemption
expires one (1) year from the date of the
registration of the certificate of sale. Such
certificate must be registered in the registry of
deeds of the place where the property is
situated. [Section 25, Rule 39]
How property sold on execution (See table on
Service of summons upon different entities)
5. Proceedings where property is
claimed by third persons
a. in relation to third party claim in
attachment and replevin
Remedies of a Third-Party Claimant
Summary hearing before the court which
authorized the execution
Terceria or third-party claim filed with the
sheriff
Action for damages on the bond posted by the
judgment creditor
Independent reivindicatory action
The aforementioned are cumulative remedies and
may be resorted to by a third-party claimant
independently of or separately from and without
need of availing of the others. [Sy vs. Discaya (1990)]
Rules regarding terceria (third-party claims)
(ASKED IN THE 2000 & 2005 BAR EXAMS)
The third person whose property was levied on must
make an affidavit of his title thereto or right to the
possession thereof stating the grounds of such right
or title. He must serve the same upon the officer
making the levy and copy thereof upon the judgment

obligee. The officer shall not be bound to keep the
property as a general rule.
Sheriff is bound to keep the property when the
judgment obligee, on demand of the officer, files a
bond approved by the court to indemnify the third-
party claimant in a sum not less than the value of
the property levied on.
In case of disagreement as to such value of the
bond, 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
Apart from Rule 39, the only other provisions of the
Rules of Court dealing with terceria or third party
claims are Rule 57.14 on preliminary attachment and
Rule 60.7 on replevin.
Sierra v. Rodriguez and Northern Motors v.
Coquia: The third party claimant CANNOT APPEAL
NOR AVAIL OF CERTIORARI AS A REMEDY in the event
that his claim was denied since HE IS A NONPARTY to
the original action.
Intervention by a third-party claimant whose
property had been levied upon by the sheriff in the
action from which the writ pursuant to which the
levy was made was issued must be made before
rendition of judgment by the trial court. He can no
longer intervene once the trial court already issues a
writ of execution. [Bautista]
6. Rules on Redemption
There is no right of redemption where the
property sold at judicial sale is personal
property.
Real property sold or any part thereof sold
separately, may be redeemed in the manner
hereinafter provided, by the following persons:
- The judgment obligor; or his successor in
interest in the whole or any part of the
property;
- A creditor having a lien by virtue of an
attachment, judgment or mortgage on the
property sold, or on some part thereof,
subsequent to the lien under which the
property was sold. Such redeeming creditor is
termed a redemptioner. [Section 27, Rule 39]
Redemption can be made by either:
- JUDGMENT OBLIGOR, within one year from
the date of registration of the certificate of
sale
REMEDIAL LAW REVIEWER
- REDEMPTIONER, within one year from the
date of registration of the certificate of sale;
or within 60 days from the last redemption by
another redemptioner. 161
- BUT IN ALL CASES, the judgment obligor shall
have the entire period of 1 YEAR from the
date of registration of the sale to redeem the
property.
- IF THE JUDGMENT OBLIGOR REDEEMS, no
further redemption is allowed and he is
restored to his estate.
- THE PERIOD FOR REDEMPTION IS NOT
SUSPENDED by an action to annul the
foreclosure sale.
If the certificate of sale is not registered, the
period for redemption does not run (Garcia vs.
Ocampo). But where parties agreed on the date
of redemption, the statutory period for legal
redemption was converted into one of
conventional redemption and the period binding
on them is that agreed upon. [Lazo v. Republic
Surety & Insurance Co., Inc (1970)]
The right of redemption is transferable and may
be voluntarily sold [Gomez v. La Germinal] but
said right cannot be levied upon by the
judgment creditor. The creditor may not
deprive the debtor of any further rights to the
property [Lichauco v. Olegario]
In effecting redemption, the mortgagor has the
duty of tendering payment (actual tender of
payment of the redemption price) before the
redemption period expires. [Banco Filipino
Savings and Mortgage Bank v. CA (2005)]
However, neither to make an offer to redeem
nor to make tender of payment of the
repurchase price is necessary when the right to
redeem is exercised through the filing of a
complaint to redeem. The filing of an action to
redeem within that period is equivalent to a
formal offer to redeem. [Vda. de Panaligan v.
CA (1996)]
Redemption price varies depending on who the
redemptioner is:
- If judgment obligor: Purchase price
o 1 % interest thereon up to the time of
redemption
o Any amount of assessments or taxes which
the purchaser may have paid thereon after
purchase and interest on such last named
amount at the same rate.
o If the purchaser be also a creditor having
prior lien to that of the redemptioner,
other than the judgment under which such
purchase was made, the amount of such
other lien, with interest.
- If redemptioner: Amount paid on the last
redemption
o 2% interest thereon.
o Any amount of assessments or taxes which
the last redemptioner may have paid
thereon after redemption by him with
interest on such last named amount;
 REMEDIAL LAW REVIEWER
o Amount of any liens held by said last
redemptioner prior to his own with interest
162
Effects of redemption
[Section 29, Rule 39]
If the judgment obligor redeems he must make
the same payments as are required to effect a
redemption by a redemptioner, whereupon, no
further redemption shall be allowed and he is
restored to his estate.
The person to whom the redemption payment is
made must execute and deliver to him a
certificate of redemption acknowledged before
a notary public or other officer authorized to
take acknowledgments of conveyances of real
property.
Such certificate must be filed and recorded in
the registry of deeds of the place in which the
property is situated and the registrar of deeds
must note the record thereof on the margin of
the record of the certificate of sale.
The payments mentioned in this and the last
preceding sections may be made to the
purchaser or redemptioner, or for him to the
officer who made the sale.
[Section 30, Rule 39]
A redemptioner must produce to the officer, or
person from whom he seeks to redeem, and serve
with his notice to the officer
a copy of the judgment or final order under
which he claims the right to redeem, certified
by the clerk of the court wherein the judgment
or final order is entered, OR,
if he redeems upon a mortgage or other lien, a
memorandum of the record thereof, certified by
the registrar of deeds, OR
an original or certified copy of any assignment
necessary to establish his claim; AND
an affidavit executed by him or his agent,
showing the amount then actually due on the
lien.
[Section 31, Rule 39]
Until the expiration of the time allowed for
redemption, the court may, as in other proper
cases, restrain the commission of waste on the
property by injunction, on the application of the
purchaser or the judgment obligee, with or
without notice;
but it is not waste for a person in possession of
the property at the time of the sale, or entitled
to possession afterwards, during the period
allowed for redemption, to continue to use it in
the same manner in which it was previously
used, or to use it in the ordinary course of
husbandry; or to make the necessary repairs to
buildings thereon while he occupies the
property.
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. In all, the judgment
debtor shall exercise the following rights:
- Remain in possession of the property
- He cannot be ejected;
- Use the property in the same manner it was
previously used;
- Make Necessary repairs to buildings thereon
while he occupies the property
- Use it in the ordinary course of husbandry
- Collect rents, earnings and income derived
from the property until the expiration of
period of redemption.
[Section 33, Rule 39]
If no redemption be made within one (1) year
from the date of the registration of the
certificate of sale, the purchaser is entitled to a
conveyance and possession of the property; or,
if so redeemed whenever sixty (60) days have
elapsed and no other redemption has been
made, and notice thereof given, and the time
for redemption has expired, the last
redemptioner is entitled to the conveyance and
possession;
but in all cases the judgment obligor shall have
the entire period of one (1) year from the date
of the registration of the sale to redeem the
property.
The deed shall be executed by the officer
making the sale or by his successor in office,
and in the latter case shall have the same
validity as though the officer making the sale
had continued in office and executed it.
Upon the expiration of the right of redemption,
the purchaser or redemptioner shall be
substituted to and acquire all the rights, title,
interest and claim of the judgment obligor to
the property as of the time of the levy.
The possession of the property shall be given to
the purchaser or last redemptioner by the same
officer unless a third party IS ACTUALLY
HOLDING THE PROPERTY adversely to the
judgment obligor.
Recovery of purchase price and revival of judgment:
A judgment co-debtor may compel a
contribution from the others:
- When property liable to an execution against
several persons is sold thereon, and
- more than a due proportion of the judgment
is satisfied out of the proceeds of the sale of
the property of one of them, or
- one of them pays, without a sale, more than
his proportion,
A surety may compel repayment from the
principal:
- When a judgment is upon an obligation of one
of them, as security for another, and the
surety pays the amount, or any part thereof,
either by sale of his property or before sale.
[Section 35, Rule 39].
-
7. Examination of Judgment Obligor
When Judgment is unsatisfied
 REMEDIAL LAW REVIEWER

8. Examination of Obligor of - UNLESS a revocation of his authority is filed,

or upon the endorsement of such admission by
Judgment Obligor the judgment obligee or his counsel, on the
face of the record of the judgment. [Sec. 44, 163
Does a Party Litigant Enjoy Any Discovery Rights Rule 39]
After the Promulgation of Final and Executory
Judgment? Whenever a judgment is satisfied in fact, or
Yes. See Secs. 36-38, Rule 39 [Bautista] otherwise than upon an execution on demand of
the judgment obligor,
Remedies of Judgment Creditor in Aid of - the judgment obligee or his counsel must
Execution [Sections 36-43] execute and acknowledge, or indorse an
(Asked in the 2008 Bar Exam particularly steps to be admission of the satisfaction as provided in
taken if writ of execution is unsatisfied) the last preceding section,
- and after notice and upon motion the court
If the execution is returned unsatisfied, he may may order either the judgment obligee or his
cause the examination of the judgment debtor counsel to do so, or may order the entry of
as to his property and income [Sec. 36] (asked in satisfaction to be made without such
the 2002 bar exam) admission. [Sec. 45, Rule 39]
He may cause examination of the debtor of the
judgment debtor as to any debt owed by him or
to any property of the judgment debtor in his 9. Effect of Judgment or Final Orders
possession [Sec. 37].
If after examination, the court finds the RES JUDICATA IN JUDGMENTS IN REM
property of the judgment debtor either in his
own hands or that of any person, the court may Judgments or final Conclusive as to
order the property applied to the satisfaction of order
the judgment. Against a specific thing Title of the thing
A party or other person may be compelled by an Probate of a will or The will or
order or subpoena to attend before the court or administration of the administration. However,
commissioner to testify as provided in sect 36- estate of a deceased the probate of a will or
37. person granting of letters of
- if the court finds the earnings of the judgment administration shall only
debtor are more than sufficient for his be prima facie evidence
familys needs, it may order payment in of the death of the
installments [Sec. 40] testator or intestate;
- the court may appoint a receiver for the IN RESPECT TO THE Condition, status or
property of the judgment debtor not exempt PERSONAL, political, or relationship of the
from execution or forbid a transfer or legal condition or status person,
disposition or interference with such property of a particular person or
[Sec. 41] his relationship to
- if the court finds the judgment debtor had an another
ascertainable interest in real property either
as mortgagor, mortgagee or otherwise, and RES JUDICATA IN JUDGMENTS IN PERSONAM
his interest can be ascertained without In other cases, the judgment or final order is, with
controversy, the court may order a sale of respect to the matter directly adjudged or as to any
such interest [Sec. 42]. other matter that could have been missed in relation
- if the person alleged to have the property of thereto, conclusive:
the judgment debtor or be indebted to him, between the parties and
claims an adverse interest in the property or their successors in interest, by title subsequent
denies the debt, the court may authorize the to the commencement of the action or special
judgment creditor to institute an action to proceeding, litigating for the same thing and
recover the property, forbid its transfer and under the same title and in the same capacity.
may punish disobedience for contempt [Sec.
43] CONCLUSIVENESS OF JUDGMENT/PRECLUSION OF
ISSUES (AUTER ACTION PENDANT)
Entry of satisfaction In any other litigation between the same parties or
Satisfaction of a judgment shall be entered by their successors in interest, that only is deemed to
the clerk of court in the court docket, and in have been adjudged in a former judgment or final
the execution book, order which appears upon its face to have been so
- upon the return of a writ of execution adjudged, or which was actually and necessarily
showing the full satisfaction of the judgment, included therein or necessary thereto.
or
- upon the filing of an admission to the BAR BY FORMER CONCLUSIVENESS OF
satisfaction of the judgment executed and JUDGMENT (RES JUDGMENT
acknowledged in the same manner as a JUDICATA)
conveyance of real property by the judgment There is identity of Identity of parties and
obligee or by his counsel parties, subject matter subject matter.
 REMEDIAL LAW REVIEWER

and causes of action In either case, the judgment or final order may
The first judgment The first judgment is be repelled by evidence of a want of
164 constitutes an absolute conclusive only as to jurisdiction, want of notice to the party,
bar to all matters matters directly collusion, fraud, or clear mistake of law or fact
directly adjudged and adjudged and actually (Rule 39 Sec. 48).
those that might have litigated in the first Such limitation on the review of foreign
been adjudged. action. Second action judgment is adopted in all legal systems to avoid
can be prosecuted. repetitive litigation on claims and issues,
prevent harassment of the parties and avoid
REQUISITES OF RES JUDICATA undue imposition on the courts.
finality of the former judgment; This policy of preclusion rests on principles of
the court which rendered it had jurisdiction comity, utility and convenience of nations.
over the subject matter and the parties As a generally accepted principle of
it must be a judgment on the merits international law, it is part of the law of the
there must be, between the first and second Philippines by virtue of the Incorporation Clause
actions, identity of parties, subject matter and (Section 2, Article II) of the 1987 Constitution
causes of action [Perez v. CA (2005)] [Regalado].

XVIII. PROVISIONAL REMEDIES

RES JUDICATA VS. LAW OF THE CASE VS. STARE
1. Nature of provisional remedies
DECISIS [Ayala Corporation v. Rosa-Diana Realty,
(2000)]
2. Jurisdiction over provisional remedies
3. Preliminary Attachment
Res Judicata Law of the Stare Decisis 4. Preliminary Injunction
Case 5. Receivership
The ruling in Operates only 6. Replevin
one case is in the
carried over to particular and 1. Nature of provisional remedies
another case single case
between the where the Definition
same parties ruling arises Writs and processes available during the pendency of
and is not the action which may be resorted to by a litigant for
carried into the preservation or protection of their rights and
other cases as a interests therein pending rendition, and for purposes
precedent of the ultimate effects, of a final judgment in the
The ruling Once a point of case; also known as ancillary or auxiliary remedies.
adhered to in law has been
the particular established by They are applied to a pending litigation, for the
case need not the court, that purpose of securing the judgment or preserving the
be followed as point of law status quo, and in some cases after judgment, for
a precedent in will, generally, the purpose of preserving or disposing of the subject
subsequent be followed by matter. [Calo vs. Roldan, 1946]
litigation the same court
between other and by all Orders granting or denying provisional remedies are
parties courts of lower merely interlocutory and cannot be the subject of an
rank in appeal. They may however be challenged before a
subsequent superior court through a petition for certiorari under
cases where Rule 65.
the same legal
issue is raised
2. Jurisdiction over provisional
10. Enforcement and Effect of remedies
Foreign Judgments or Final Orders All inferior courts can grant appropriate provisional
remedies provided that the main action is within
EFFECT OF FOREIGN JUDGMENTS (Asked in the their jurisdiction. [B.P. 129]
2005 Bar Exam)
In case of a judgment or final order upon a
specific thing, the judgment or final order, is
conclusive upon the title to the thing (Rule 39,
Sec. 48).
3. Preliminary Attachment (Asked in
In case of a judgment or final order against a the 2002 Bar Exam)
person, the judgment or final order is
presumptive evidence of a right as between the Definition: A provisional remedy issued upon order
parties and their successors in interest by a of the court where an action is pending to be levied
subsequent title (Rule 39 Sec. 48). upon the property of the defendant so the property
may be held by the sheriff as security for the

satisfaction of whatever judgment may be rendered
in the case [Davao Light v CA 204 SCRA 343]
Purposes
To seize the property of the debtor in advance
of final judgment and to hold it for purposes of
satisfying the said judgment.
To enable the court to acquire jurisdiction over
the action by the actual or constructive seizure
of the property in those instances where
personal service of summons on the creditor
cannot be effected. [Quasha vs. Juan (1982)]
a. Grounds for issuance of writ of attachment
[Rule 57.1] (Asked in 2001 and 2005)
A preliminary attachment may be applied for
at the commencement of the action or
at any time before the entry of judgment.
It may be applied for by the plaintiff OR any proper
party (including a defendant who filed a
counterclaim, cross-claim, or a third party
complaint)
There are only specific situations where preliminary
attachment may issue:
Action for recovery of a specified amount of
money or damages, EXCEPT 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;
Action for money or property, embezzled or
fraudulently misapplied or converted to his own
use by either:
- a public officer, an officer of a corporation,
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;
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;
NOTE: rule makes no distinction between real
and personal property [Riano]
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;
NOTE: the delivery of counterfeit money or
knowingly issuing a bounced check are
considered as grounds under this rule [Riano]
REMEDIAL LAW REVIEWER
Action against a party who has removed or
disposed of his property, or is about to do so,
AND with intent to defraud his creditors; or
165
Action against a party who does not reside and
is not found in the Philippines, OR on whom
summons may be served by publication.
NOTE: the rule also refers to persons on whom
summons may be served by publication and
against whose property, preliminary attachment
may be availed of such as:
- Residents defendants whose identity or whose
whereabouts are unknown (Rule 14.14)
- Resident defendants who are temporarily out
of the country (14.16)
Stages in the grant of preliminary attachment
The court issues the order granting the
application
The writ of attachment issues pursuant to the
order granting the writ
The writ is implemented
For the first two stages, jurisdiction over the person
of the defendant is NOT necessary. However, once
the implementation of the writ commences, the
court must have acquired jurisdiction over the
defendant. [Cuartero, supra]
b. Requisites
Case must be any of those where preliminary
attachment is proper
Applicant must file a motion (ex parte or with
notice and hearing)
Applicant must show by affidavit (under oath)
that there is no sufficient security for the claim
sought to be enforced;
Applicant must post an attachment bond
executed to the adverse party (Rule 57.3)
c. Issuance and contents of order of
attachment; affidavit and bond
Issuance and contents of order of attachment
[Rule 57.2]
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,
It 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, EXCEPT if such party
makes deposit or gives bond in an amount equal
to that fixed in the order. The amount may be
- sufficient to satisfy applicants demand, or
- the value of the property to be attached,
exclusive of costs.
 REMEDIAL LAW REVIEWER
Several writs may be issued at the same time to
the sheriffs of the courts of different judicial
166 regions.
Contents of affidavit of applicant [Rule 57.3]
An order of attachment shall be granted only when it
appears in the affidavit that:
a sufficient cause of action exists
the case is one of those mentioned in 57.1
there is no other sufficient security for the
claim sought to be enforced by the action
the amount due to the applicant or the value of
the property the possession of which he is
entitled to recover, is as much as the sum for
which the order is granted above all legal
counterclaims.
The affidavit and the bond must be filed with the
court before the order issues.
Condition of applicants bond [Rule 57.4]
Applicant must give a bond executed to the adverse
party in the amount fixed by the court in its order
granting the issuance of the writ conditioned that
the applicant will pay:
all the costs which may be adjudged to the
adverse party and
all damages which the adverse party may sustain
by reason of the attachment if the court shall
finally adjudge that the applicant was not
entitled thereto.
NOTE: the bond shall only be applied to all damages
sustained due to the attachment. It cannot answer
for those that do not arise by reason of the
attachment (Riano).
d. Manner of attaching real and personal
property; when property attached is claimed
by third person
Manner of attaching property [Rule 57.5]
The sheriff enforcing the writ shall attach only so
much of the property in the Philippines of the
adverse party not exempt from execution as may be
sufficient to satisfy the applicants demand, UNLESS
Party against whom writ is issued makes a
deposit with the court from which the writ is
issued, or
He gives a counter-bond executed to the
applicant
The levy on attachment shall be preceded or
contemporaneously accompanied by service on the
defendant within the Philippines of:
summons
copy of complaint
application for attachment
affidavit and bond of applicant
order and writ of attachment.
e. Rule on prior or contemporaneous service
of summons
General Rule: A writ of attachment may be issued
ex parte even before the summons is served upon
the defendant. BUT a writ may not be implemented
until jurisdiction over the person is acquired by
service of summons. Otherwise, the implementation
is null and void. [Riano]
EXCEPTIONS TO CONTEMPORANEOUS SERVICE OF
SUMMONS: [Rule 57.5]
Summons could not be served personally or by
substituted service despite diligent efforts, or
Defendant is a resident of the Philippines
temporarily absent therefrom, or
Defendant is a non-resident, or
The action is in rem or quasi in rem.
Sheriffs Return [57.6]
The sheriff, after enforcing the writ, shall make a
return to the court which issued the writ stating the
ff:
a full statement of his proceedings under the
writ
a complete inventory of the property attached,
together with any counter-bond given by the
party against whom attachment is issued
The sheriff shall serve copies of the return to the
applicant.
Manner of attachment of real and personal
property [Rule 57.7]:
Real property, or growing crops thereon, or
any interest therein
- filing with the registry of deeds:
o a copy of the order, together with a
description of the property attached,
o notice that it is attached, or that such real
property and any interest therein held by or
standing in the name of such other person
are attached,
- leaving a copy of such order, description, and
notice with the occupant of the property, if
any, or with such other person or his agent if
found within the province.
Where the property has been brought under the
operation of either the Land Registration Act or
the Property Registration Decree, the notice
shall contain a reference to the number of the
certificate of title, the volume and page in the
registration book where the certificate is
registered, and the registered owner or owners
thereof.
Personal property capable of manual delivery
- by taking and safely keeping it in the sheriffs
custody, after issuing the corresponding
receipt therefor;
Stocks or shares, or an interest in stocks or
shares, of any corporation or company
- by leaving with the president or managing
agent thereof,
o a copy of the writ, and
o a notice stating that the stock or interest of
the party against whom the attachment is
issued is attached in pursuance of such writ;
Debts and credits, including bank deposits,
financial interest, royalties, commissions, and
other personal property not capable of manual

delivery
- by leaving with the person owing such debts,
or having in his possession or under his
control, such credits or other personal
property, or with his agent,
o a copy of the writ, and
o A notice that the debts owing by him to the
party against whom attachment is issued,
and the credits and other personal property
in his possession, or under his control,
belonging to said party, are attached in
pursuance of such writ;
Interest of the party whom attachment is
issued in property belonging to the estate of
the decedent
- by serving the executor or administrator or
other personal representative of the decedent
with a copy of the writ and notice that said
interest is attached and
- By filing a copy of the writ and notice in the
office of the clerk of the court in which said
estate is being settled and served upon the
heir, legatee or devisee concerned.
Note:
Property in custodia legis may be attached by:
filing a copy of the writ of attachment with the
proper court or quasi-judicial agency
Serving a notice of attachment upon the
custodian of the property [Rule 57.7]
A previously attached property may also be
subsequently attached. But the first attachment
shall have priority over subsequent attachments.
[Riano]
Proceedings Where Attached Property Claimed By
Third Person
A third person who has a claim to the property
attached may avail of the following remedies:
By terceria making an affidavit of his title or
right to possession, stating the grounds of such
right or title. The affidavit must be served upon
the sheriff and the attaching procedure [57.14]
NOTE: the same procedure under Rule 39.16 is
Followed
Motion for summary hearing on his claim
File a separate action to nullify the levy with
damages due to the unlawful levy and seizure.
The remedies stated are CUMULATIVE and any one of
them may be resorted to without availing of the
other remedies (Ching v CA 423 SCRA 356)
f. Discharge of attachment and the counter-
bond
Effects of attachment
i. Attachment of debts, credits and all other similar
personal property [RULE 57.8]
All persons
REMEDIAL LAW REVIEWER
- having in their possession or under their
control any credits or other similar personal
property belonging to the adverse party, or
- owing any debts to him, at the time of service 167
upon them of the copy of the writ of
attachment and notice
shall be liable to the applicant for the amount of
such credits, debts or other similar personal
property, until the attachment is discharged, or
any judgment recovered by him is satisfied, unless
such property is delivered or transferred, or such
debts are paid, to the clerk, sheriff, or other
proper officer of the court issuing the attachment.
Garnishment - a species of attachment for reaching
the property or credits pertaining or payable to a
judgment debtor (asked in the 1999 Bar Exams in
comparison with Attachment). It is a warning to a
person who has in possession property or credits of
the judgment debtor not to pay the money nor
deliver the property to latter but to appear and
answer the plaintiffs suit.
Perla Compania v. Ramolete, 1991: Service of
summons upon the garnishee is not necessary. All
that is necessary is the service upon him of the writ
of garnishment, as a consequence of which he
becomes a virtual party or a forced intervenor in the
case.
ii. Attachment of interest in property belonging to
the estate of a decedent [RULE 57.9]
The attachment of the interest of an heir,
legatee, or devisee in the property belonging to
the estate of a decedent shall not impair the
power of the executor, administrator, or other
personal representative of the decedent over
such property for the purpose of administration.
When any petition for distribution is filed, such
personal representative shall report the
attachment to the court, and in the order made
upon such petition, distribution may be awarded
to such heir, legatee, or devisee, but the
property attached shall be ordered delivered to
the sheriff making the levy, subject to the claim
of such heir, legatee, or devisee, or any person
claiming under him.
Sale of attached property
Whenever it shall be made to appear to the court in
which the action is pending, upon hearing with
notice to both parties, that
the party attached is perishable, or that
the interests of all the parties to the action will
be will be subserved by the sale thereof,
the court may order such property to be sold at
public auction in such manner as it may direct, and
the proceeds of such sale to be deposited in court to
abide the judgment in the action. [Rule 57.11]
NOTE: This is an exception to the general rule that
the issuance of a writ of attachment is only a
provisional remedy, thus no sale of the property
should be made during the pendency of the action.
[Riano]
 REMEDIAL LAW REVIEWER
Recovery Upon the Counter-Bond; Disposition of
Deposit/ Attached Property After Judgment
168 When the judgment has become executory, the
surety or sureties on any counter-bond given to
secure the payment of the judgment shall
become charged on such counter-bond and
bound to pay the judgment obligee upon
demand the amount due under the judgment,
which amount may be recovered from such
surety or sureties after notice and summary
hearing in the same action. [Rule 57.17]
Where the party against whom attachment had
been issued has deposited money instead of
giving counter-bond, it shall be applied under
the direction of the court to the satisfaction of
any judgment rendered in favor of the attaching
party, and after satisfying the judgment the
balance shall be refunded to the depositor or his
assignee.
If the judgment is in favor of the party against
whom attachment was issued, the whole sum
deposited must be refunded to him or his
assignee. [Rule 57.18]
If judgment be rendered against the attaching
party, all the proceeds of sales and money
collected or received by the sheriff, under the
order of attachment, and all property attached
remaining in any such officer's hands, shall be
delivered to the party against whom attachment
was issued, and the order of attachment
discharged. [Rule 57.19]
Discharge of attachment
After a writ of attachment has been enforced,
party whose property has been attached, or
person appearing on his behalf, may move for
discharge of the attachment wholly or in part on
security given.
Grounds for discharge:
Debtor has posted a counter-bond or has made
the requisite cash deposit [Rule 57.12];
Attachment was improperly or irregularly issued
[Rule 57.13] as where there is no ground for
attachment, or affidavit and/or bond filed
therefore are defective or insufficient;
Attachment is excessive but the discharge shall
be limited to the excess [Rule 57.13];
Property attached is exempt from execution
[Rules 57.2 and 57.5];
Judgment is rendered against the attaching
creditor [Rule 57.19].
g. Satisfaction of judgment out of property
attached
Improper, Irregular or Excessive Attachment
(Asked in the 2008 bar exam)
An application for damages must be filed before the
trial, or before appeal is perfected, or before the
judgment becomes executory.
Such damages may be awarded only after hearing
and shall be included in the judgment on the main
case. [Rule 57.20]
Procedure for claiming damages is EXCLUSIVE. Such
claims for damages cannot be the subject of an
independent action.
EXCEPTIONS:
Where the principal case was dismissed for lack
of jurisdiction by the trial court without giving
opportunity to the party whose property was
attached to apply for and prove his claim; and
Where the damages by reason of the attachment
was sustained by a third person who was not a
party to the action wherein such writ was
issued. [Santos v. CA, 95 Phil 360]
4. Preliminary Injunction
a. Definitions and Differences: Preliminary
Injunction and Temporary Restraining Order
A preliminary injunction is an order granted at any
stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court,
agency or a person to either
refrain from a particular act or acts or
require the performance of a particular act or
acts, in which case it shall be known as a
preliminary mandatory injunction
A suit for injunction is an action in personam. It is an
ancillary or preventive remedy that is meant to be
temporary and subject to the final disposition of the
the
principal action [Riano]
the
the
Purpose: To prevent future injury and maintain the
the
status quo (i.e. the last actual, peaceable,
uncontested status which preceded the pending
controversy) for [Kencht vs CA, 1993]
NOTE: the injunction should not establish new
relations between the parties but merely re-
establish the pre-existing relationship between
them.
TRO vs. Injunction
TRO INJUNCTION
May be granted ex Cannot be granted
parte if great and without notice and
irreparable injury hearing
would result otherwise
A TRO is issued in order to preserve the status
quo until the hearing of the application for
preliminary injunction. (Bacolod City Water v.
Labayen 446 SCRA 110)
Same requirements for application as
preliminary injunction.
An application for a TRO shall be acted upon
only after all parties are heard in a summary
hearing, which shall be conducted within 24

hours after the sheriff's return of service and/or
the records are received by the branch selected
by raffle. [Rule 58.4]
Status Quo Order vs. Injunction (Asked in the 2006
bar exams)
A status quo order is in the nature of a cease and
desist order. It is resorted to when the projected
proceedings in the case made the conservation of
the status quo desirable or essential, but the
affected party neither sought such relief nor did the
allegations in his pleading sufficiently make out a
case for a temporary restraining order.
It does NOT direct the doing or undoing of acts but is
an order to maintain the last, actual, peaceable and
uncontested state of things which preceded the
controversy.
b. Requisites
Requirements for preliminary injunction [Rule
58.4]
There must be a verified application
The application must show facts entitling the
applicant to the relief demanded.
- It must establish he has a right and the act
against which the injunction is directed is
violative of such right (PNB v Timbol 451 SCRA
163)
A bond must be filed, unless exempted, in the
court where the action/proceeding is pending,
in an amount to be fixed by the court (asked in
the 2006 Bar exam)
Prior notice and hearing for the party/person
sought to be enjoined.
EXCEPTIONS:
- Great or irreparable injury would result to the
applicant before the matter can be heard on
notice.
o The court may issue a TRO effective for 20
days from service on the party sought to be
enjoined.
o Injury is irreparable if it is of such
constant and frequent recurrence that no
fair or reasonable redress can be had
therefore in court of law or where there is
no standard by which their amount can be
measured with reasonable accuracy.
- Matter is of extreme urgency and the
applicant will suffer grave injustice and
irreparable injury
o Judge may issue ex parte a TRO effective
for 72 hours from issuance.
o Within 72 hours, judge shall conduct a
summary hearing to determine whether the
TRO shall be extended until the application
for preliminary injunction can be heard.
o Maximum period of effectivity of TRO=20
days (including 72 hrs)
If the application for preliminary injunction is denied
or not resolved within said period, the TRO is
deemed automatically vacated.
EFFECTIVITY OF TRO [58.5]
REMEDIAL LAW REVIEWER
General rule: TRO is effective only for a period of
20 days from service on the party or person sought
to be enjoined
169
Exceptions: If the matter is of extreme urgency and
the applicant will suffer grave injustice and
irreparable injury: effective for only 72 hours from
issuance
Issued Effectivity:
by:
RTC 20 days, non-extendible (including the
original 72 hours)
CA May be effective for 60 days from service
on the party or person sought to be
enjoined.
SC May be effective until further orders
c. Kinds of Injunction
i. Preliminary preventive injunction prohibits the
performance of a particular act or acts
When preventive injunction does not lie:
To restrain collection of taxes (Valley Trading vs
CA), EXCEPT where there are special
circumstances that bear the existence of
irreparable injury. [Churchill & Tait vs Rafferty
(1915)]
To restrain the sale of conjugal properties
where the claim can be annotated on the title
as a lien, such as the husbands obligation to
give support. [Saavedra vs Estrada (1931)]
To restrain a mayor proclaimed as duly elected
from assuming his office. [Cereno vs Dictado
(1988)]
To restrain registered owners of the property
from selling, disposing and encumbering their
property just because the respondents had
executed Deeds of Assignment in favor of
petitioner. [Tayag vs. Lacson (2004)]
Against consummated acts. [PNB vs Adi; Rivera
v. Florendo, 1986; Ramos, Sr. v. CA, 1989; Zabal
vs CA]
EXCEPTION: If the act is of continuing nature
and in derogation of plaintiffs right at the
outset.
Against disposing of the case on the merits
[Ortigas and Company Limited Partnership vs CA
(1988)]
To stop the execution of judgment where the
judgment was already executed. (Meneses vs
Dinglasan)
EXCEPTION: But where the lower court enforced
its judgment before a party against whom the
execution was enforced could elevate her
appeal in an injunction suit, which was
instituted to prevent said execution, an
independent petition for injunction in the Court
of Appeals is justified. [Manila Surety and
Fidelity vs Teodoro (1967)]
The CFI has no power to issue a writ of
injunction against the Register of Deeds if its
effect is to render nugatory a writ of execution
issued by the National Labor Relations
Commission. [Ambrosio vs Salvador (1978)]
 REMEDIAL LAW REVIEWER

Transfer of possession of property to party with utilization, exploration, and/or development of

disputed legal title via preliminary injunction the natural resources of the Philippines.
170
EXCEPTIONS: Sec. 2, PD 385: no restraining order, temporary
Forcible entry and unlawful detainer cases in or permanent injunction shall be issued by the
which the court may issue preliminary court against any government financial
mandatory injunction [Rule 70.15] institution in any action taken by such
Property covered by Torrens Title when there is institution in compliance with the mandatory
a clear finding of ownership and possession of foreclosure whether such restraining order,
the land. (GSIS vs Florendo) temporary or permanent injunction is sought by
the borrower(s) or any third party or parties,
Other instances where writ is not available: except after due hearing in which it is
Sec. 3, RA 8975: No court, except the Supreme established by the borrower and admitted by
Court, shall issue any TRO, preliminary the government financial institution concerned
injunction or preliminary mandatory injunction that twenty percent (20%) of the outstanding
against the government, or any of its arrearages has been paid after the filing of
subdivisions, officials or any person or entity, foreclosure proceedings.
whether public or private acting under the
government direction, to restrain, prohibit or ii. Preliminary mandatory injunction requires the
compel the following acts: performance of a particular act or acts
- Acquisition, clearance and development of
the right-of-way and/or site or location of any Requisites of mandatory injunction:
national government project; Invasion of the right is material and substantial
- Bidding or awarding of contract/ project of Right of the complainant is clear and
the national government as defined under unmistakable
Section 2 Urgent and paramount necessity for the writ to
- Commencement prosecution, execution, prevent serious damages [Bautista v. Barcelona,
implementation, operation of any such 100 Phil 1078]
contract or project; The effect would not be to create a new
- Termination or rescission of any such relation between the parties [Alvaro v. Zapata,
contract/project; and (1982)]
- The undertaking or authorization of any other
lawful activity necessary for such Mandatory injunction does not lie in the following
contract/project. instances:
to compel cohabitation [Arroyo v. Vasquez
This prohibition shall apply in all cases, disputes (1921)]
or controversies instituted by a private party, cancellation of attachment [Levy Hermanos v.
including but not limited to cases filed by Lacson (1940)]
bidders or those claiming to have rights through release imported goods pending hearing before
such bidders involving such contract/project. the Commissioner of Customs. [Commissioner of
Customs v. Cloribel (1967)]
This prohibition shall NOT APPLY when the to take property out of the possession or control
matter is of extreme urgency involving a of one party and place it into that of another
constitutional issue, such that unless a whose title has not clearly been established [Pio
temporary restraining order is issued, grave v. Marcos (1974)]
injustice and irreparable injury will arise.
INJUNCTION PROHIBITION
The applicant shall file a bond, in an amount to Generally directed Directed against a
be fixed by the court, which bond shall accrue against a party in the court/tribunal/person
in favor of the government if the court should action exercising judicial
finally decide that the applicant was not powers
entitled to the relief sought. Does not involve the may be on the ground
courts jurisdiction that the court against
Sec. 78, RA 9136: the implementation of the whom the writ is sought
provisions of the Electric Power Industry Reform acted without/in excess
Act of 2001 shall not be restrained or enjoined of jurisdiction
except by an order issued by the Supreme Court. May be the main action Always a main action
itself, or just a
Sec. 1, PD 605: no court of the Philippines shall provisional remedy in
have jurisdiction to issue any restraining order, the main action
preliminary injunction or preliminary mandatory
injunction in any case involving or growing out d. When writ may be issued
of the issuance, approval or disapproval,
revocation or suspension of, or any action
e. Grounds for issuance of preliminary
whatsoever by the proper administrative official
or body on concessions, licenses, permits,
injunction [Rule 58.3]
patents, or public grants of any kind in (ASKED IN THE 2006 BAR EXAM)
connection with the disposition, exploitation,

Applicant is entitled to the relief demanded,
and the relief consists in
- restraining the commission or continuance of
the acts or acts complained of, or
- in requiring performance of an act or acts;
Commission, continuance or non-performance of
the acts complained of during the litigation
would probably work injustice to the applicant;
or
A party, court, agency or a person is doing,
threatening, or is attempting to do, or is
procuring or suffering to be done, some act or
acts probably in violation of the rights of the
applicant respecting the subject of the action or
proceeding, and tending to render the judgment
ineffectual.
Rule 58 Provides for both a Main Action for
Injunction and an Ancillary Writ of Preliminary
Injunction (Asked in the 2006 Bar Exam)
INJUNCTION PRELIMINARY
INJUNCTION
Main action Ancillary; exists only as
part or incident of an
independent action or
proceeding
seeks a judgment sole object of which is to
embodying a final preserve the status quo
injunction until the merits can be
heard
Based on all evidence based solely on initial
gathered by court to and incomplete evidence
determine main action
As a matter of course, in an action for injunction,
the auxiliary remedy of preliminary injunction,
whether prohibitory or mandatory, may issue.
The evidence needed to establish the requisites for a
preliminary injunction need not be conclusive or
complete. It is generally based on initial,
incomplete evidence that gives the court an idea of
the justification for the preliminary injunction
pending the decision of the case on the merits. .
NOTE: It does not necessarily proceed that when a
writ of preliminary injunction is issued, a final
injunction will follow [Urbanes vs. CA (2001)]
f. Grounds for objection to, or for the
dissolution of injunction or restraining order
Grounds for Objection to/Motion for Dissolution of
Injunction/Restraining Order [Rule 58.6]
Insufficiency of application
other grounds (e.g. applicants bond is
insufficient/defective), upon affidavits of the
party or person enjoined
if it appears after hearing that although the
applicant is entitled to the injunction or
restraining order, the issuance or continuance
thereof would cause irreparable damage to the
party/person enjoined, while the applicant can
be fully compensated for such damages as he
may suffer, provided the former files a bond
REMEDIAL LAW REVIEWER
If it appears that the extent of the preliminary
injunction or restraining order granted is too great,
it may be modified. 171
Global Injunction of a Foreign Court (Asked in the
2007 Bar Exam)
A global injunction issued by a foreign court to
prevent dissipation of funds against the defendant
who has assets in the Philippines may be enforced in
our jurisdiction, subject to our procedural laws
(Suggested Answers to the 2007 Bar Exam, UP Law
Center)
As a general rule, no sovereign is bound to give
effect within its dominion to a judgment or order of
a tribunal of another country.
However, under the rules of comity, utility and
convenience, nations have established a usage
among civilized states by which final judgments of
foreign courts of competent jurisdiction are
reciprocally respected and rendered efficacious
under certain conditions that may vary in different
countries. [St. Aviation Services vs. Grand
International Airways (2006)]
Note: In Pangalangan and Coquias book on Conflict
of Laws (2000), citing Cheshire, it was stated that an
interlocutory or provisional judgment of a foreign
court, creates no obligation on the forum court to
enforce it.
h. In relation to RA 8975, Ban on issuance of
TRO or Writ of Injunction in cases involving
government infrastructure projects
Sec. 3, RA 8975: No court, except the Supreme
Court, shall issue any TRO, preliminary injunction or
preliminary mandatory injunction against the
government, or any of its subdivisions, officials or
any person or entity, whether public or private
acting under the government direction, to restrain,
prohibit or compel the following acts:
Acquisition, clearance and development of the
right-of-way and/or site or location of any
national government project;
Bidding or awarding of contract/ project of the
national government as defined under Section 2
hereof;
Commencement prosecution, execution,
implementation, operation of any such contract
or project;
Termination or rescission of any such
contract/project; and
The undertaking or authorization of any other
lawful activity necessary for such
contract/project.
This prohibition shall apply in all cases, disputes
or controversies instituted by a private party,
including but not limited to cases filed by
bidders or those claiming to have rights through
such bidders involving such contract/project.
This prohibition shall NOT APPLY when the
matter is of extreme urgency involving a
 REMEDIAL LAW REVIEWER
constitutional issue, such that unless a
temporary restraining order is issued, grave
172 injustice and irreparable injury will arise. The
applicant shall file a bond, in an amount to be
fixed by the court, which bond shall accrue in
favor of the government if the court should
finally decide that the applicant was not
entitled to the relief sought.
5. Receivership (Asked in the 2001
Bar Exam)
Nature
Receiver: person appointed by the court in behalf of
all the parties to the action for the purpose of
preserving and conserving the property in litigation
and prevent its possible destruction or dissipation, if
it were left in the possession of any of the parties.
Purpose: The purpose of a receivership as a
provisional remedy is to protect and preserve the
rights of the parties during the pendency of the main
action, during the pendency of an appeal or as an
aid in the execution of a judgment when the writ of
execution has been returned unsatisfied. The
receivership under Rule 59 is directed to the
property which is the subject of the action and does
not refer to the receivership authorized under
banking laws and other rules or laws. Rule 59
presupposes that there is an action and that the
property subject of the action requires its
preservation. Receivership under Rule 59 is ancillary
to the main action. (Riano).
Commodities Storage v. CA (1997): The guiding
principle is the prevention of imminent danger to
the property. If an action by its nature, does not
require such protection or preservation, said remedy
cannot be applied for and granted.
Arranza v. B.F. Homes (2000): Receivership is
aimed at the preservation of, and at making more
secure, existing rights; it cannot be used as an
instrument for the destruction of those rights.
a. Cases when receiver may be appointed
When it appears from the verified application
and other proof that the applicant has an
interest in the property or fund which is the
subject of the action or proceeding, and that
such property or fund is in danger of being lost,
removed, or materially injured unless a receiver
be appointed to administer and preserve it;
When it appears in an action by the mortgagee
for the foreclosure of a mortgage that the
property is in danger of being wasted or
dissipated or materially injured, and that its
value is probably insufficient to discharge the
mortgage debt, or that the parties have so
stipulated in the contract of mortgage;
After judgment, to preserve the property during
the pendency of an appeal, or to dispose of it
according to the judgment, or to aid execution
when the execution has been returned
unsatisfied or the judgment obligor refuses to
apply his property in satisfaction of the
judgment, or otherwise to carry the judgment
into effect;
Whenever in other cases it appears that the
appointment of a receiver is the most
convenient and feasible means of preserving,
administering, or disposing of the property in
litigation. [Rule 59.1]
Specific situations when a receiver may be
appointed
If a spouse without just cause abandons the
other or fails to comply with his/her obligations
to the family, the aggrieved spouse may petition
the court for receivership. [Family Code, Article
101]
The court may appoint a receiver of the
property of the judgment obligor; and it may
also forbid a transfer or other disposition of, or
any interference with, the property of the
judgment obligor not exempt from execution.
[Rule 39.41]
After the perfection of an appeal, the trial court
retains jurisdiction to appoint a receiver of the
property under litigation since this matter does
not touch upon the subject of the appeal. [Rule
41.9; Acua v. Caluag (1957)]
After final judgment, a receiver may be
appointed as an aid to the execution of
judgment. [Philippine Trust Company v.
Santamaria (1929)]
Appointment of a receiver over the property in
custodia legis may be allowed when it is
justified by special circumstances, as when it is
reasonably necessary to secure and protect the
rights of the real owner. [Dolar v. Sundiam
(1971)]
Alcantara v. Abbas (1963): The general rule is that
neither party to the litigation should be appointed as
a receiver without the consent of the other because
a receiver is supposed to be an impartial and
disinterested person.
Abrigo v. Kayanan (1983): A clerk of court should
not be appointed as a receiver as he is already
burdened with his official duties.
b. Requisites
c. Requirements before issuance of an Order
Requisites and Procedure
Verified application filed by the party
requesting for the appointment of the receiver;
Applicant must have an interest in the property
or funds subject of the action;
Applicant must show that the property or funds
is in danger of being lost, wasted, or dissipated;
Application must be with notice and must be set
for hearing;
Before appointing a receiver, the court shall
require applicant to post a bond in favor of the
adverse party. When the receiver is appointed,
the receiver shall file a bond then take his oath.
Before entering upon his duties, the receiver
must be sworn to perform his duties faithfully.
 REMEDIAL LAW REVIEWER

Who appoints receiver notice to all interested parties and hearing

court where the action is pending [Rule 59.8]
CA
SC Effect: 173
During the pendency of an appeal, the appellate Settle accounts of receiver
court may allow an application for the Delivery of funds to person entitled
appointment of a receiver to be filed in and Discharge of receiver
decided by the court of origin. [Rule 59.1] Receiver entitled to reasonable compensation to
be taxed as costs against defeated party.
Denial of application or discharge of receiver
If the appointment sought or granted is without 6. Replevin (Asked in the 1999 Bar
sufficient cause
Adverse party files a sufficient bond to answer Exam)
for damages [Rule 59.3]
Bond posted by the applicant for grant of a. When may writ be issued
receivership is insufficient
Bond of receiver is insufficient Nature
Replevin may be a main action or provisional
d. Powers of a receiver remedy. As a principal action its ultimate goal is to
recover personal property capable of manual
delivery wrongfully detained by a person. Used in
Bring and defend in such capacity actions in his
this sense, it is considered as a suit in itself.
own name with leave of court
Replevin under Rule 60 is the provisional remedy.
Take and keep possession of the property in
[Riano]
controversy
Receive rents
Collect debts due to himself as receiver or to REPLEVIN PRELIMINARY
the fund, property, estate, person, or ATTACHMENT
corporation of which he is the receiver Available only where the Available even if the
Compound for and compromise the same principal relief sought in recovery of personal
Make transfers the action is recovery of property is only an
Pay outstanding debts personal property, the incidental relief sought
Divide the money and other property that shall other reliefs (e.g. in the action.
remain among the persons legally entitled to damages) being merely
receive the same incidental thereto.
Generally, to do such acts respecting the Can be sought only May be resorted to even
property as the court may authorize where the defendant is if the personalty is in the
Invest funds in his hands, ONLY by order of the in actual or constructive custody of a third
court upon the written consent of all the possession of the person.
parties. [Rule 59.6] personalty involved.
Extends only to personal Extends to all kinds of
No action may be filed against a receiver without property capable of property, whether real,
leave of the court which appointed him. manual delivery. personal or incorporeal.
Available to recover To recover the
Liability for refusal or neglect to deliver property personal property even if possession of personal
to receiver the same is not property unjustly
Contempt; and concealed, removed or detained (presupposed
Be liable to the receiver for the money or the disposed of. that the same is being
value of the property and other things so concealed, removed or
refused or neglected to be surrendered together disposed of to prevent
with all damages that may have been sustained its being found or taken
by the party or parties entitled thereto as a by the applicant.
consequence of such refusal or neglect. [Rule Cannot be availed of if Can still be resorted to
59.7] the property is in even if the property is in
custodia legis (e.g. custodia legis.
e. Two (2) kinds of bond under attachment,
seized under a search
Applicants bond warrant).
Receivers bond
EXCEPT:
when the seizure is
f. Termination of receivership
illegal; [Bagalihog v.
Fernandez (1991)]
Ground: the necessity for a receiver no longer exists
and
where there is
Procedure:
reason to believe
motu proprio or on motion of either party
that the seizure will
not anymore be
 REMEDIAL LAW REVIEWER
followed by the
filing of the criminal
174 action in court or
there are conflicting
claims. [Chua v. CA
(1993)]
b. Requisites
Application
Who may apply: party praying for the recovery of
possession of personal property. Applicant need not
be the owner. It is enough that he has right to its
possession. (Yang vs Valdez, 177 SCRA 141)
When:
at the commencement of the action or
before the answer [unlike attachment,
injunction and support pendente lite (anytime
before final judgment) and receivership
(anytime even after final judgment)].
The applicant must show by his own affidavit or that
of some other person who personally knows the
facts:
That the applicant is the owner of the property
claimed, particularly describing it, or is entitled
to the possession thereof;
That the property is wrongfully detained by the
adverse party, alleging the cause of detention
thereof according to the best of his knowledge,
information, and belief;
That the property has not been distrained or
taken for a tax assessment or a fine pursuant to
law, or seized under a writ of execution or
preliminary attachment, or otherwise placed
under custodia legis, or if so seized, that it is
exempt from such seizure or custody; and
The actual market value of the property. [Rule
60.2]
Bond
The applicant must also give a bond, executed to the
adverse party in double the value of the property as
stated in the affidavit. [Rule 60.2]
c. Affidavit and bond; Redelivery Bond
Please refer to immediately preceding subsection
for discussion on affidavit and bond.
Redelivery bond: The adverse party may, at any
time before the delivery of the property to the
applicant, require the return of the property by
filing with the court where the action is pending a
bond executed to the applicant, in double the value
of the property as stated in the applicants affidavit.
[Rule 60.5]
Order of Replevin
Upon the filing of affidavit and approval of the bond,
the court shall issue an order and the corresponding
writ of replevin describing the personal property
alleged to be wrongfully detained and requiring the
sheriff forthwith to take such property into his
custody. [Rule 60.3]
A writ of replevin may be served anywhere in the
Philippines.
d. Sheriffs duty in the implementation of the
writ; when property is claimed by third party
Disposition of Property by Sheriff
The sheriff shall retain the property for 5 days.
The adverse party may object to the sufficiency
of the bond or surety or he may file a redelivery
bond.
If after 5 days and the adverse party failed to
object or his redelivery bond is insufficient, the
sheriff shall deliver the property to the
applicant. [Rule 60.6]
The defendant is entitled to the return of the
property under a writ of replevin if:
- He seasonably posts a redelivery bond [Rule
60.5]
- Plaintiffs bond is found to be insufficient or
defective and is not replaced with proper
bond
- Property is not delivered to the plaintiff for
any reason [Rule 60.6]
Where Property Claimed by Third Person
When third party claims the property and such
person makes affidavit of his title thereto stating his
grounds, and serves such affidavit upon the sheriff
while the latter has possession of the property and a
copy upon the applicant, the sheriff SHALL NOT BE
BOUND to keep property under replevin or deliver
property to the applicant UNLESS the applicant files
a bond approved by the court in favor of the third
person (the bond should not be less than the value of
stated under Sec. 60.2; the court shall determine
the value in case of disagreement).
No claim for damages for the taking or keeping of
the property may be enforced against the bond
UNLESS the action is filed within 120 days from filing
of the bond.
XIX. SPECIAL CIVIL ACTIONS
1. Nature of special civil actions
2. Ordinary civil actions versus special civil
actions
3. Jurisdiction and venue
4. Interpleader
5. Declaratory Reliefs and Similar Remedies
6. Review of Judgments and Final Orders or
Resolution of the COMELEC and COA
7. Certiorari, Prohibition and Mandamus
8. Quo Warranto
9. Expropriation
10. Foreclosure of Real Estate Mortgage
11. Partition
12. Forcible Entry and Unlawful Detainer
13. Contempt
1. Nature of special civil actions
 REMEDIAL LAW REVIEWER

Rules on ordinary civil actions shall apply to special

civil actions insofar as they are not inconsistent with 3 special civil actions within the jurisdiction of
or may supplement the rules governing the latter. inferior courts:
[Rule 1.3] interpleader, provided the amount involved is 175
within its jurisdiction [Makati Development
Since a civil action in general is one by which a party Corp. v. Tanjuatco (1969)]
sues another for the enforcement of a right, or the ejectment suits [Rule 70]
prevention or redress of a wrong, a special civil contempt [Rule 71]
action is generally brought or filed for the same
purpose. [Riano] 4. Interpleader
How commenced: Definition: A remedy whereby a person who has
COMPLAINT property in his possession or has an obligation to
- interpleader render wholly or partially, without claiming any right
- expropriation in both, comes to court and asks that the defendants
- foreclosure of real estate mortgage who have made conflicting claims upon the same
- partition property or who consider themselves entitled to
- forcible entry and unlawful detainer demand compliance with the obligation be required
PETITION to litigate among themselves in order to determine
- declaratory relief who is entitled to the property or payment or the
- review of adjudications of Constitutional obligation [Beltran v. PHHC, 1969]
commissions
- certiorari Purpose
- prohibition To compel conflicting claimants to interplead
- mandamus and litigate their several claims among
- quo warranto themselves. [Rule 62.1]
- contempt To protect a person against double vexation in
respect of one liability [Beltran, supra]
Writs of injunction, mandamus, certiorari,
prohibition, quo warranto and habeas corpus issued a. Requisites for interpleader
by RTCs are enforceable within their respective
There must be two or more claimants with
judicial regions. [B.P. 129]
adverse or conflicting interests to a property in
the custody or possession of the plaintiff.
2. Ordinary civil actions versus The plaintiff has NO CLAIM upon the subject
special civil actions matter of the adverse claims, or if he has an
interest at all, such interest is NOT DISPUTED by
The fact that an action is subject to special rules the claimants.
other than those applicable to ordinary civil actions The subject matter of the adverse claims must
is what makes a civil action special. [Riano] be one and the same.

Ordinary Civil Action Special Civil Action Procedure

Governed by ordinary Also governed by
rules ordinary rules but
subject to specifically
prescribed rules (Rules
62 to 71)
Some concepts applicable to ordinary civil actions
are not applicable in special civil actions. E.g.:
the definition of a cause of action requiring
violation of a right does not appear to be
relevant to the special civil action of
declaratory relief and interpleader;
ordinary civil actions may be filed initially in
MTC or RTC depending on jurisdictional amount
while some special civil actions can only be filed
in MTC (forcible entry and unlawful detainer)
and some cannot be commenced in MTC
(certiorari, prohibition, mandamus). [Riano]
3. Jurisdiction and venue
Venue is governed by the general rules on venue,
except as otherwise indicated in the particular rules
for special civil actions.
Complaint filed by the person against whom
conflicting claims are or may be made. [ibid]
The docket and other lawful fees paid by the
complainant, and costs and litigation expenses shall
constitute a lien or charge upon the subject matter
of the action, unless otherwise ordered by the court.
[R62.7]
Court order requiring the conflicting claimants to
interplead with one another. If the interests of
justice so require, the court may direct that the
subject matter be paid or delivered to the court.
[Rule 62.2]
Summons, copy of complaint and order served upon
the conflicting claimants. [Rule 62.3]
Each claimant shall file his answer within 15 days
from service of the summons, serving a copy thereof
upon each of the other conflicting claimants, who
may file their reply thereto.
If claimant fails to plead within the time herein
 REMEDIAL LAW REVIEWER
fixed, the court may, on motion, declare him in
default and render judgment barring him from any
176 claim in respect to the subject matter.
Within the time for filing an answer, each claimant
may file a motion to dismiss. Grounds:
impropriety of the interpleader action, or
other appropriate grounds specified in Rule 16
The period to file the answer shall be tolled.
If the motion is denied, an answer may be filed
within the remaining period, in no case less than 5
days (reckoned from notice of denial) [Rule 62.4].
The parties may file counterclaims, cross-claims,
third-party complaints and responsive pleadings
thereto. [Rule 62.5]
Pre-trial
Court shall determine conflicting claimants
respective rights and adjudicate their several claims.
[Rule 62.6]
b. When to file
Whenever conflicting claims upon the same subject
matter are or may be made against a person who
claims no interest in the subject matter or an
interest which is not disputed by the claimants.
[Rule 62.1]
Cannot be availed of to resolve the issue of breach
of undertakings made by defendants, which should
be resolved in an ordinary action for specific
performance or other relief [Beltran, supra].
5. Declaratory Reliefs and Similar
Remedies
a. Who may file the action
a person interested under a deed, will, contract
or other written instrument
a person whose rights are affected by a statute,
executive order or regulation, ordinance or any
other governmental regulation [Rule 63.1]
Parties
all persons who have or claim any interest
which would be affected by the declaration
[Rule 63.2]
If action involves the validity of a
statute/executive order/regulation/other
governmental regulation, the Solicitor General
shall be notified. [Rule 63.3]
If action involves the validity of a local
government ordinance, the prosecutor/attorney
of the LGU involved shall be notified. [Rule
63.4]
Subject Matter Notice Given To
Validity of a statute, EO or Sol Gen
regulation, or any
governmental regulation
Validity of a local Prosecutor or attorney
government ordinance of the LGU
Constitutionality of a local Sol Gen
government ordinance
Baguio Citizens Action vs. City Council of Baguio
(1983): Non-joinder of interested persons is not a
jurisdictional defect; but persons not joined shall
not be prejudiced in their interests unless otherwise
provided by the Rules.
Commission of Customs vs. Cloribel (1977): A
third-party complaint is not available in a
declaratory relief.
Visayan Packing vs. Reparations Commission
(1987): A compulsory counterclaim may be set up in
a petition for declaratory relief.
Where filed
in the proper RTC [Rule 63.1]
not within the original jurisdiction of the
Supreme Court, even if pure questions of law
are involved. [Remotigue vs. Osmea (1967)]
b. Requisites of action for declaratory relief
subject matter of the controversy must be a
deed, will, contract or other written
instrument, statute, executive order or
regulation, or ordinance [Rule 63.1];
the terms of said documents and the validity
thereof are doubtful and require judicial
construction [Santos v. Aquino, 94 Phil 65]
no breach of the documents in question.
[Reparations Commission v. Northern Lines
(1970)] Otherwise, an ordinary civil action is the
remedy.
- Concept of a cause of action in ordinary civil
actions does not apply.
- If before the final termination of the case, a
breach or violation of an instrument or a
statute, etc. should take place, the action
may be converted into an ordinary action.
[Rule 63.6]
actual justiciable controversy [Velarde v SJS
(2004)]
adverse interests between the parties
- A declaratory relief is not available for a
declaration of citizenship [Villa-Abrille vs.
Republic (1956)] or the validity of a
registration certificate [Obiles vs. Republic
(1953)] as they are unilateral in nature and
without conflicting adverse interests.
issue must be ripe for judicial determination
[Velarde v SJS (2004)]
adequate relief is not available through other
means or other forms of action or proceedings.
[Ollada v. Central Bank (1962)]
- A court decision cannot be the subject of a
declaratory relief since there exists other
remedies, i.e., appeal or a motion for
clarificatory judgment [Tanda vs. Aldaya
(1956)]
c. When court may refuse to make judicial
declaration

where a decision would not terminate the
uncertainty or controversy which gave rise to
the action, or
where the declaration or construction is not
necessary and proper under the circumstances.
[Rule 63.5]
d. Conversion to ordinary action
Requisites:
before the final termination of the case
a breach or violation of an instrument or a
statute, executive order or regulation,
ordinance, or any other governmental regulation
should take place
Effect: The parties shall be allowed to file such
pleadings as may be necessary or proper. [Rule 63.6]
e. Proceedings considered as similar
remedies
i. Reformation of an instrument (Arts. 1359-1369
Civil Code)
Definition: Art. 1359. When, there having been a
meeting of the minds of the parties to a contract,
their true intention is not expressed in the
instrument purporting to embody the agreement, by
reason of mistake, fraud, inequitable conduct or
accident, one of the parties may ask for the
reformation of the instrument to the end that such
true intention may be expressed.
If mistake, fraud, inequitable conduct, or accident
has prevented a meeting of the minds of the parties,
the proper remedy is not reformation of the
instrument but annulment of the contract.
Art. 1369. The procedure for the reformation of
instrument shall be governed by rules of court to be
promulgated by the Supreme Court
ii. Consolidation of ownership (Art. 1607 Civil Code)
[Rule 63.1 par. 2]
Definition: Art. 1607. 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.
iii. Quieting of title to real property (Arts. 476-481
Civil Code)
Definition: Art. 476. Whenever there is a cloud on
title to real property or any interest therein, by
reason of any instrument, record, claim,
encumbrance or proceeding which is apparently
valid or effective but is in truth and in fact invalid,
ineffective, voidable, or unenforceable, and may be
prejudicial to said title, an action may be brought to
remove such cloud or to quiet the title.
An action may also be brought to prevent a cloud
REMEDIAL LAW REVIEWER
from being cast upon title to real property or any
interest therein.
Art. 481. The procedure for the quieting of title or
the removal of a cloud therefrom shall be governed 177
by such rules of court as the Supreme Court shall
promulgated.
6. Review of Judgments and Final
Orders or Resolution of the COMELEC
and COA
Scope
Applicable only to judgments and final orders of
the COMELEC and COA [Rule 64.1]
Judgments/orders of the Civil Service
Commission are now reviewable by the Court of
Appeals under Rule 43, eliminating recourse to
the Supreme Court (SC). [RA 7902; SC Revised
Administrative Circular No. 1-95]
An aggrieved party may bring the questioned
judgment, etc. directly to the SC on certiorari
under Rule 65. [Rule 64.2]
Such petition for certiorari shall not stay the
execution of the judgment, etc. sought to be
reviewed unless otherwise directed by the Supreme
Court [Rule 64.8]
Procedure
File a petition for review.
When [Rule 64.3]:
Within 30 days from notice of judgment/final
order/resolution sought to be reviewed
Filing of motion for reconsideration/new trial
with Constitutional commission interrupts the
30-day period. If motion is denied, aggrieved
party may file petition within remaining period,
which shall not be less than 5 days from notice
of denial.
Form [Rule 64.5]: verified and accompanied by
(annexes):
a clearly legible duplicate original or certified
true copy of the subject judgment, etc.
certified true copies of such material portions of
the record referred to in the petition
other documents relevant and pertinent to the
petition
proof of service of a copy of the petition on the
Commission and the adverse party
proof of the timely payment of the docket and
other lawful fees
in 18 legible copies (containing plain copies of all
documents attached to the original copy of the
petition)
Contents [Rule 64.5]:
name of aggrieved party (petitioner)
respondents: Commission concerned and
person(s) interested in sustaining the judgment
a quo
facts
issues involved
grounds and brief arguments relied upon for
 REMEDIAL LAW REVIEWER

review is denied, the aggrieved

prayer for judgment annulling or modifying the
178 question judgment, etc.
material dates showing that it was filed on time
certification against non-forum shopping
Findings of fact of the Commission supported by
substantial evidence shall be final and non-
reviewable.
Failure to comply with foregoing requirements shall
be sufficient ground for dismissal.
Order to Comment [Rule 64.6]
If the SC finds the petition sufficient in form and
substance, it shall order the respondents to file their
comments on the petition within 10 days from notice
thereof.
Grounds for dismissal:
Petition not sufficient in form and substance
Petition was filed manifestly for delay
the questions raised are too unsubstantial to
warrant further proceedings.
Comments of Respondents [Rule 64.7]
Requirements:
original copy with certified true copies of
material portions of the record as are referred
to in the comment and certified true copies of
other supporting papers
18 legible copies with plain copies of all
documents attached to the original
Copy of the comment shall be served on the
petitioner.
Decision [Rule 64.9]
Case is deemed submitted for decision upon:
filing of the comments on the petition, and such
other pleadings or papers as may be required or
allowed.
expiration of the period to file the pleadings.
Exceptions: SC sets the case for oral argument or
requires parties to submit memoranda.
a. Application of Rule 65 under Rule 64
party may file the
petition within the
remaining period, but
which shall not be less
than 5 days reckoned
from the notice of
denial.
7. Certiorari, Prohibition and
Mandamus
The original action of certiorari is not a substitute
for appeal. [Lobite vs. Sundiam 1983]
Exceptions:
appeal is not a speedy and adequate remedy
[Salvadores vs. Pajarillo (1947)]
the orders were issued either in excess of or
without jurisdiction [Aguilar vs. Tan (1970)]
special considerations, i.e., public welfare or
public policy [Jose vs. Zulueta (1961)]
the order is a patent nullity [Marcelo vs. De
Guzman (1982)]
the decision in the certiorari case will avoid
future litigations [St. Peter Memorial Park vs.
Campos (1975)]
NOTE: In the 2005 and 2008 Bar Exams, bar
examinees were asked to compare Petition for
review on Certiorari and Certiorari.
Certiorari
Suarez v. NLRC (1998): Questions of fact cannot be
raised in an original action for certiorari. Only
established or admitted facts may be considered.
Medran vs. CA (1949): Findings of fact of CA are not
binding upon SC in an original action for certiorari.
Prohibition
Prohibition is a preventive remedy. However, to
prevent the respondent from performing the act
sought to be prevented during the pendency of the
proceedings for the writ, the petitioner should
obtain a restraining order and/or writ of preliminary
injuction. [Regalado]

b. Distinction in the application of Rule 65 to Enriquez v. Macadaeg, 84 Phil 674: Prohibition is

judgments of the COMELEC and COA and the the remedy where a motion to dismiss is improperly
application of Rule 65 to other tribunals, denied.
persons and officers

Rule 64 Rule 65 Mandamus

Directed only to the Directed to any tribunal,
judgments, final orders board, or officer
or resolutions of exercising judicial or
COMELEC and COA quasi-judicial functions
Filed within 30 days from Filed within 60 days from
notice of the judgment notice of the judgment
The filing of a MR or a The period within which
Motion for New Trial if to file the petition if the
allowed, interrupts the MR or new trial is
period for the filing of denied, is 60 days from
the petition for notice of the denial of
certiorari. If the motion the motion.
A writ of mandamus will not issue to control the
exercise of official discretion or judgment, or to
alter or review the action taken in the proper
exercise of the discretion of judgment, for the writ
cannot be used as a writ of error or other mode of
direct review.
However, in extreme situations generally in criminal
cases, mandamus lies to compel the performance of
the fiscal of discretionary functions where his
actuations are tantamount to a wilful refusal to
perform a required duty. [Regalado]
 REMEDIAL LAW REVIEWER

General rule: In the performance of an official duty

or act involving discretion, such official can only be
directed by mandamus to act but not to act in one
way or the other.
EXCEPTION: gross abuse of discretion, manifest
injustice, palpable excess of authority [Kant Wong v.
PCGG (1987)]
JUDGMENT
If after such hearing or submission of memoranda or
the expiration of the period for the filing thereof, 179
the court finds that the allegations of the petition
are true, it shall render judgment for the relief
prayed for or to which the petitioner is entitled.

Mandamus can be availed of only by the party who
has direct legal interest in the right sought to be
enforced. HOWEVER, if the question is one of public
right, it is sufficient to show that the petitioner is a
citizen. [Tanada v. Tuvera (1985)]
a. Definitions and distinctions
b. Requisites
c. When petition for certiorari, prohibition
and mandamus is proper
See Annex F.
The court, however, may dismiss the petition if it
finds the same to be (1) patently without merit, (2)
prosecuted manifestly for delay, or that (3) the
questions raised therein are too unsubstantial to
require consideration. [Rule 65.8]
SERVICE AND ENFORCEMENT OF ORDER OR
JUDGMENT
A certified copy of the judgment rendered shall be
served upon the court, quasi-judicial agency,
tribunal, corporation, board, officer or person
concerned in such manner as the court may direct,
and disobedience thereto shall be punished as
contempt.

Procedure An execution may issue for any damages or costs

awarded in accordance with section 1 of Rule 39.
[Rule 65.9]
FILE PETITION FOR CERTIORARI / PROHIBITION /
MANDAMUS.
When filed: d. Injunctive relief
Not later than 60 days from notice of
judgment/order/resolution Rule 65.7 provides for the issuance of a temporary
If a motion for reconsideration/new trial is restraining order, and not only for a writ of
filed, the 60-day period shall be counted from preliminary injunction, but such order shall be
notice of denial of motion. subject to the rules on the grounds and duration
Extension may be granted for compelling thereof. [Regalado]
reasons, not exceeding 15 days. [Rule 65.4]
e. Certiorari distinguished from Appeal by
Where filed: Certiorari; Prohibition and Mandamus
Supreme Court distinguished from Injunction; when and
Court of Appeals where to file petition
- If it involves the acts of a quasi-judicial
agency, the petition shall be filed only in CERTIORARI DISTINGUISHED FROM APPEAL
the CA, unless otherwise provided by law CERTIORARI APPEAL
or the Rules. Proper to correct errors Proper where error is not
Regional Trial Court, if it relates to acts / of jurisdiction one of jurisdiction but an
omissions of a lower court / corporation / board committed by lower error of law or fact
/ officer / person. courts, grave abuse of which is a mistake of
Sandiganbayan, if it is in aid of its appellate discretion which is judgment
jurisdiction. [Rule 65.4] tantamount to lack of
jurisdiction
ORDER TO COMMENT Certiorari invokes Appeal when filed
If the petition is sufficient in form and substance to original jurisdiction of invokes the appellate
justify such process, the court shall issue an order the court jurisdiction of the court
requiring the respondent(s) to comment on the Within 60 days from Filed within period of
petition within 10 days from receipt of a copy notice of judgment, appeal
thereof. order or resolution
An original and Continuation of the
Such order shall be served on the respondents in independent action original case
such manner as the court may direct, together with Impleads the tribunal, Parties to an appeal are
a copy of the petition and any annexes thereto. court, board or officer the original parties of
[Rule 65.6] the case

HEARING OR MEMORANDA PROHIBITION DISTINGUISHED FROM INJUNCTION
After the comment or other pleadings required by PROHIBITION INJUNCTION
the court are filed, or the time for the filing thereof Directed to the court or Directed against a party
has expired, the court may hear the case or require tribunal directing it to to the action
the parties to submit memoranda. [Rule 65.8]
 REMEDIAL LAW REVIEWER

refrain from the Quo warranto is the remedy to try disputes with
performance of acts respect to the title to a public office.
180 which it has no
jurisdiction to perform a. Distinguish from Quo Warranto in the
Omnibus Election Code
MANDAMUS DISTINGUISHED FROM INJUNCTION
MANDAMUS INJUNCTION
Special civil action Ordinary civil action
Directed against a Directed against a ROC Rule 66 OEC Sec. 253
tribunal, corporation litigant Filed Solicitor General or Any voter
board or officer by Public Prosecutor in
Purpose is for the Purpose is for the whom behalf of the
tribunal, corporation, defendant either to Republic; Individual
board or officer to refrain from an act or to Where By SolGen: RTC COMELEC, if
perform a ministerial perform not necessarily a filed Manila, CA or SC; against election of
and legal duty legal and ministerial duty Otherwise, RTC with a Member of
Purpose is to perform a Purpose is to prevent an jurisdiction over Congress, Regional,
positive legal duty and act to maintain the territorial area Provincial or City
not to undo what has status quo between the where respondent Officer;
been done parties resides, CA or SC
appropriate RTC or
f. Exceptions to filing of motion for MTC, if against a
reconsideration before filing petition municipal or
barangay officer
General rule: A motion for reconsideration must Period Within 1 year from Within 10 days
first be availed of before certiorari to enable the for ouster, or from the after proclamation
lower court to correct its mistakes without the filing time the right to of results
intervention of the lower courts. [BA Finance vs. the position arose
Pineda (1982)] Against A person, who Ineligibility or
whom, usurps, intrudes into disloyalty to the
Exceptions: grounds or unlawfully holds Republic
the order is a patent nullity [Vigan Elec. Light or exercises a public
vs. Public Service Commission (1964)] office, position or
the questions raised in the certiorari have been franchise;
duly raised and passed upon by the lower court
[Fortich-Celdran vs. Celdran (1967)] or are the A public officer,
same as those raised and passed upon in the who does or suffers
lower court [Pajo vs. Ago (1960)] an act which, by
there is an urgent necessity for the resolution of provision of law,
the question and delay would prejudice the constitutes a ground
interests of the government [Vivo vs.Cloribel for forfeiture of
(1966)] office
the MR would be useless [People vs. Palacio
(1960)] How commenced
the petitioner was deprived of due process and By a verified petition [Rule 66.1]
there is extreme urgency for relief [Luzon
Surety vs. Marbella (1960)] By whom/against whom
the proceeding was ex parte in which the
petitioner had no opportunity to object b. When the government commences an
[Republic vs. Maglanoc (1963)] action against individuals
the issue raised is purely a question of law or
where the public interest is involved [PALEA vs. By Government, brought in the name of the
PAL (1982)] Republic of the Philippines, against:
- A person who usurps, intrudes into, or
g. Reliefs petitioner is entitled to unlawfully holds or exercises a public office,
position or franchise
h. Actions/Omissions of MTC/RTC in election - A public officer who does not or suffers an act
cases which, by the provision of law, constitutes a
ground for the forfeiture of his office
- An association which acts as a corporation
i. Where to file petition within the Philippines without being legally
incorporated or without lawful authority so to
j. Effects of filing of an unmeritorious act [Rule 66.1]
petition
When Solicitor General or public prosecutor
8. Quo Warranto MUST commence action:

- When directed by the President of the
Philippines.
- When upon complaint or otherwise, he has
good reason to believe that any case specified
in Sec. 1 can be established by proof. [Rule
66.2]
When Solicitor General or public prosecutor
MAY commence action:
- with permission of the court
- at the request and upon the relation of
another person
- Officer bringing such action may first
require an indemnity for the expenses and
costs of the action in an amount approved
by and deposited in court. [Rule 66.3]
c. When individual may commence an action
By a person claiming to be entitled to a public
office or position, brought in his own name, against
another who usurped or unlawfully held or exercised
such public office or position [Rule 66.5]
d. Judgment in Quo Warranto action
When the respondent is found guilty of usurping,
intruding into, or unlawfully holding or exercising a
public office, position, or franchise, judgment shall
be rendered that such respondent be ousted and
altogether excluded therefrom, and that the
petitioner or relator recover his costs. [Rule 66.9]
e. Rights of a person adjudged entitled to
public office
If judgment be rendered in favor of the person
averred in the complaint to be entitled to the public
office he may, after taking the oath of office and
executing any official bond required by law, take
upon himself the execution of the office, and may
immediately thereafter demand of the respondent
all the books and papers in the respondent's custody
or control appertaining to the office to which the
judgment relates.
The person adjudged entitled to the office may also
bring action against the respondent to recover the
damages sustained by such person by reason of the
usurpation. [Rule 66.10]
9. Expropriation
a. Matters to allege in complaint for
expropriation
The complaint for expropriation must be VERIFIED.
Contents:
The right and purpose of expropriation
Description of the real or personal property
sought to be expropriated;
REMEDIAL LAW REVIEWER
The complaint shall join as defendants all
persons owning or claiming to own, or occupying
any part thereof or any interest therein,
showing as far as practicable the separate 181
interest of each defendant.
The following must be clearly stated in the
complaint , if applicable:
- If the title to any property sought to be
expropriated appears to be in the Republic of
the Philippines, although occupied by private
individuals;
- If the title is otherwise obscure or doubtful so
that the plaintiff cannot with accuracy or
certainty specify who are the real owners.
[Rule 67.1]
b. Two stages in every action for
expropriation
i. Determination of the authority of the plaintiff to
exercise the power of eminent domain and the
propriety of its exercise in the context of the
facts.
This stage is terminated by either an order of
dismissal of the action or order of the condemnation
declaring that expropriation is proper and legal.
These orders are final and therefore appealable.
[Municipality of Bian v. Garcia (1989)]
It includes an inquiry into the propriety of the
expropriation its necessity and public purpose.
[Riano]
ii. Determination of just compensation.
This is done with the assistance of not more than
three (3) commissioners.
The order fixing just compensation is also final and
appealable (Ibid). Just compensation is to be
determined as of the date of the taking of the
propriety or the filing of the complaint, whichever
comes first.
Ansaldo v. Tantuico (1990): There is taking when
the owner is actually deprived or dispossessed of his
property; when there is a practical destruction or a
material impairment of the value of his property or
when he is deprived of the ordinary use thereof.
Bardillon v. Bgy. Masili (2003): An expropriation
suit is incapable of pecuniary
estimation. Accordingly, it falls within the
jurisdiction of RTCs, regardless of the value of the
subject property.
c. When plaintiff can immediately enter into
possession of the real property, in relation to
RA 8974
Sec. 4. of RA 8974 otherwise known as An Act to
facilitate the acquisition of right-of-way, site or
location for national government infrastructure
projects and for the purposes: [w]henever it is
necessary to acquire real property for the right-of-
 REMEDIAL LAW REVIEWER

way or location for any national government See table of comparison under the preceding
infrastructure project through expropriation, the subsection, column of RA 8974.
182 appropriate implementing agency shall initiate the
expropriation proceedings before the proper court
under the following guidelines:

Upon the filing of the complaint, and after due

notice to the defendant, the implementing
agency shall immediately pay the owner of the
property the amount equivalent to the sum of e. Defenses and objections
(1) 100% of the value of the property based on
the current relevant zonal valuation of the NO OBJECTION OR HAS OBJECTION
Bureau of Internal Revenue (BIR); and (2) the DEFENSE TO THE OR DEFENSE TO
value of the improvements and/or structures as TAKING THE TAKING
determined under Section 7 hereof; What to Notice of Answer to the
In provinces, cities, municipalities and other file and appearance and complaint
areas where there is no zonal valuation, the BIR serve manifestation
is hereby mandated within the period of sixty Period Time stated in the summons
(60) days from the date of the expropriation to file
case, to come up with a zonal valuation for said Con- Manifestation to Specifically
area; and tents the effect that he designating/identif
In case the completion of a government has no objection or ying the property
infrastructure project is of utmost urgency and defense; in which he claims
importance, and there is no existing valuation of to have an interest
the area concerned, the implementing agency Specifically in and the nature
shall immediately pay the owner of the property designating/identif and extent of the
its proffered value taking into consideration the ying the property interest;
standards prescribed in Section 5 hereof. in which he claims
to be interested ALL his objections
Upon compliance with the guidelines above- and defenses to
mentioned, the court shall immediately issue to the the complaint or
implementing agency an order to take possession of any allegation
the property and start the implementation of the therein
project. Prohibit Counterclaim,
ed cross-claim, third
Riano opines that Sec. 2 of Rule 67 is deemed party complaint in
modified by RA 8974. He noted the following any pleading
differences:
A foreclosure action must be brought in the RTC of
Rule 67 RA 8974 the province where the land or any part thereof is
Before issuance of writ Upon filing of the situated.
of possession complaint
Expropriation Right-of-way, site or A defendant waives all defenses and objections not
proceedings initiated by location of national so alleged, but the court, in the interest of justice,
the national government government may permit amendments to the answer not to be
infrastructure projects made later than ten (10) days from filing thereof.

Initial deposit with an Immediate payment to At the trial of the issue of just compensation,
authorized government the property owner whether the defendant has previously appeared or
depositary answered, he may present evidence as to the
Amount for deposit Amount to be paid is: amount of the compensation to be paid for his
equivalent to 100% 100% of the value of property, and he may share in the distribution of the
assessed value of the the land as stated in award. [Rule 66.3]
property for purposes of the tax declaration or
taxation. current zonal f. Order of Expropriation
valuation, whichever
is higher, and the It declares that the plaintiff has a lawful right to
value of take the property sought to be expropriated for the
improvements, OR public use or purpose described in the complaint,
in the case of utmost upon payment of just compensation to be
urgency, the determined as of the date of the taking of the
proffered value of the property or the filing of the complaint whichever is
property to be seized earlier.

d. New system of immediate payment of It is issued by the court in which the complaint for
initial just compensation expropriation is filed when:

objections or defenses of the defendant have
been overruled, or
the defendant raised no such defense or
objection, or
No party appears to defend. [Rule 67.4]
g. Ascertainment of just compensation
Just compensation is defined as the full and fair
equivalent of the property taken from its owner by
the expropriator.
Determined as of the date of taking of the property,
or the filing of the complaint, whichever came first.
[Rule 67.4]
The measure is not the takers gain, but the owners
loss. To compensate is to render something which is
equal in value to that taken or received.
The word just is used to intensify the meaning of
the word compensation; to convey the idea that
the equivalent to be rendered for the property taken
shall be real, substantial, full, and ample.
In eminent domain or expropriation proceedings, the
general rule is that the just compensation which the
owner of condemned property is entitled to is the
market value.
Market value is that sum of money which a person
desirous but not compelled to buy, and an owner
willing but not compelled to sell, would agree on as
a price to be given and received therefore. [BPI v.
CA (2004)]
Upon the rendition of the order of expropriation, the
court shall appoint not more than 3 competent and
disinterested persons as commissioners to ascertain
and report to the court the just compensation for
the property sought to be taken. [Rule 67.5]
h. Appointment of Commissioners;
Commissioners report; Court action upon
commissioners report
Order of appointment to be served on the parties.
Objections to the appointment of any of the
commissioners shall be filed in court within ten (10)
days, and shall be resolved within thirty (30) days
after all the commissioners have received copies of
the objections.
Powers and duties of commissioners:
Parties can present evidence before the
commissioners and the latter have the power to
administer oaths or hearings before them;
They can, after due notice to the parties to
attend, view and examine the property sought
to be expropriated and its surroundings and may
measure the same;
REMEDIAL LAW REVIEWER
EXCEPTION: when the parties agree otherwise,
the commissioners cannot view and examine the
property
- The commissioners shall assess the 183
consequential damages to the property taken
and deduct from such consequential damages
the consequential benefits derived by the
owner from the public use or purpose of the
property taken, the operation of its franchise
by the corporation or person taking the
property.
- In no case shall the consequential benefits
assessed exceed the consequential damages
assessed, or the owner be deprived of the
actual value of his property so taken. [Rule
67.6]
The commissioners shall make full and accurate
report to the court of all their proceedings.
- The report shall be filed within 60 days from
the date the commissioners were notified of
their appointment.
- Upon filing of the report, the clerk of court
shall serve copies thereof on all interested
parties, with notice that they are allowed ten
(10) days within which to file objections to
the findings of the report, if the parties
desire. [Rule 67.7]
After the 10-day period for objecting to the
commissioners report, the court, after hearing,
may:
- ACCEPT the report and render JUDGMENT in
accordance therewith;
- RECOMMIT the report to the commissioners for
further report of facts;
- SET ASIDE the report and APPOINT new
commissioners;
- ACCEPT the report IN PART and REJECT it IN
PART;
And make such order or render judgment as
shall secure to the plaintiff the property
essential to the exercise of his right of
expropriation and to the defendant just
compensation for the property so taken. [Rule
67.8]
i. Rights of plaintiff upon judgment and
payment
Right to enter upon the property expropriated
and appropriate it for the public use or purpose
as stated. Upon payment by the plaintiff to the
defendant of the compensation fixed by the
judgment, with legal interest thereon from the
taking of the possession of the property, or after
tender to him of the amount so fixed and
payment of the costs, the plaintiff shall have
the right to enter upon the property
expropriated and to appropriate it for the public
use or purpose defined in the judgment, or to
retain it should he have taken immediate
possession thereof under Sec. 2. [Rule 67.10]
Right to enter upon the property even pending
appeal. The right of the plaintiff to enter upon
the property of the defendant and appropriate
 REMEDIAL LAW REVIEWER
the same for public use or purpose shall not be
delayed by an appeal from the judgment.
184
The judgment entered in expropriation proceedings
shall state definitely, by an adequate description,
the particular property or interest therein
expropriated, and the nature of the public use or
purpose for which it is expropriated. [Rule 67.13]
j. Effect of recording of judgment
When real estate is expropriated, a certified copy of
the judgment entered in expropriation proceedings
shall be recorded in the registry of deeds of the
place in which the property is situated, and its
effect shall be to vest to plaintiff the title to the
real estate so described for such public use or
purpose. [Rule 67.13]
10. Foreclosure of Real Estate
Mortgage (Asked in the 2003 Bar Exam)
The cause of action in a foreclosure suit is generally
the non-payment of the mortgage loan, but it may
be on other grounds which under the contract
warrant the foreclosure, such as the violation of the
other conditions therein.
Foreclosure may be made:
judicially governed by Rule 68
Extrajudicially proper only when so provided in
contracts in accordance with Act. No. 3135;
governed by A.M. No. 99-10-05-0.
Monte de Piedad v. Rodrigo, 56 Phil 301: A
foreclosure action must be brought in the RTC of the
province where the land or any part thereof is
situated.
If a mortgage contract covers several distinct parcels
of land situated in different provinces, the action
may be brought in the RTC of any of the provinces
and the judgment will be enforceable against any of
the parcels of land involved.
a. Judgment on foreclosure for payment or
sale
Judgment
PAYMENT: If upon the trial, the court shall find the
facts set forth in the complaint to be true, it shall
ascertain the amount due to the plaintiff upon the
mortgage debt or obligation, including interest and
other charges as approved by the court, and costs,
and shall render judgment for the sum so found due
and order that the same be paid to the court or to
the judgment obligee within a period of not less
than 90 days nor more than 120 days from the entry
of judgment (equity of redemption).
SALE: In default of such payment the property shall
be sold at public auction to satisfy the judgment.
[Rule 68.2]
b. Sale of mortgaged property; effect
When the defendant fails to pay the amount of
the judgment within the period specified
therein, the court, upon motion, shall order the
property to be sold in the manner and under the
provisions of Rule 39 and other regulations
governing sales of real estate under execution.
- It is the ministerial duty of the court to order
the foreclosure of the property when the debt
is not paid within the period specified.
- A motion for such order of sale is non-litigable
and may be made ex parte. [Govt of P.I. v De
las Cajigas, 55 Phil 667]
Such sale shall not affect the rights of persons
holding prior encumbrances upon the property
or a part thereof, and
When confirmed by an order of the court, also
upon motion, it shall operate to divest the rights
in the property of all the parties to the action
and to vest their rights in the purchaser, subject
to such rights of redemption as may be allowed
by law.
POSSESSION: Upon the finality of the order of
confirmation or upon the expiration of the
period of redemption when allowed by law, the
purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the
possession of the property, unless a third party
is actually holding the same adversely to the
judgment obligor.
The said purchaser or last redemptioner may
secure a writ of possession, upon motion, from
the court which ordered the foreclosure. [Rule
68.3]
The purchaser is entitled to a writ of possession
and it is ministerial upon the court to issue a
writ of possession in his favor upon an ex parte
motion. [Barican, et al v Caguioa, et al, (1986)]
c. Disposition of proceeds of sale
Claims to be satisfied by the proceeds of the public
sale of mortgaged property (in order):
Costs incurred in the sale of property
Claim of the person foreclosing the property
Claims of junior encumbrancers in the order of
their priority
If proceeds of the sale exceeds the cost of the sale
as well as the claims of the person foreclosing the
property and junior encumbrancers, if any the
residual amount shall be given to the mortgagor or
his agent, or to the person entitled to it. [Rule 68.4]
If the proceeds of the sale is less than the amount of
the claims to be satisfied, the person foreclosing the
property may move for a DEFICIENCY JUDGMENT
from the court confirming the foreclosure sale, to
recover the amount of the deficiency in his claim.
d. Deficiency judgment
i. Instances when court cannot render deficiency
judgment
 REMEDIAL LAW REVIEWER

Registration [RULE 68.7]

Definition: A judgment against a debtor for the A CERTIFIED COPY of the final order confirming the
unpaid balance of the debt if a foreclosure sale or a sale shall be registered in the Registry of Deeds.
sale of repossessed personal property fails to yield 185
the full amount of the debt due; also termed a IF NO RIGHT OF IF A RIGHT OF
deficiency decree. (Blacks Law Dictionary) REDEMPTION EXISTS REDEMPTION EXISTS
The Certificate of Title The Certificate of Title
General rule: Sec. 6 provides for a deficiency in the name of the in the name of the
judgment which shall be rendered, on motion, when mortgagor shall be mortgagor shall NOT be
the foreclosure sale did not produce proceeds cancelled, and a new cancelled, but the
sufficient to satisfy the judgment. one issued in the name Certificate of Sale and
of the purchaser. the order confirming the
In extrajudicial foreclosure, the mortgagee can also sale shall be registered
recover by action any deficiency in the mortgage and a brief
account which was not realized in the foreclosure memorandum thereof
sale. [PNB v. CA (1999)] shall be made by the
Registrar of Deeds upon
A motion for deficiency judgment may be made only the certificate of title
after the sale and after it becomes known that a
deficiency exists. [Governor of the Philippine Islands IF THE PROPERTY IS IF THE PROPERTY IS
v. Torralba Vda. de Santos (1935)] REDEEMED NOT REDEEMED
The Deed of The FINAL Deed of Sale
If the debtor dies, the deficiency may be filed as a Redemption shall be executed by the sheriff
claim against his estate. [Rule 86.7] registered with the in favor of the
Registry of Deeds and a purchaser at the
EXCEPTIONS: brief memorandum foreclosure sale shall
Third Party Mortgagor - No deficiency judgment thereof shall be made be registered with the
may be rendered where the mortgage was by the Registrar of Registry of Deeds.
executed by a third person to secure the Deeds on said
obligation of a debtor, such third person not certificate of title. The Certificate of Title
having assumed personal liability for the debt. in the name of the
The remedy is an ordinary action against the mortgagor shall be
debtor. [Philippine Trust Co. v. Echaus Tan cancelled and a new
Siusa (1929)] one shall be issued in
the name of the
Extrajudicial Foreclosure - There can be no purchaser.
deficiency judgment because there was no
judicial proceeding in the foreclosure. Recovery f. Equity of redemption versus right of
can be made through a separate action. [DBP v
redemption
Mirang (1975); DBP v Zaragosa, 1978; PNB v CA
(1999)]
EQUITY OF REDEMPTION RIGHT OF REDEMPTION
Right of the defendant Right of redemption is
e. Judicial foreclosure versus extrajudicial
mortgagor to extinguish the right granted to the
foreclosure the mortgage and retain debtor-mortgagor, his
ownership of the successor-in-interest or
JUDICIAL FORECLOSURE EXTRAJUDICIAL property by paying the any judicial creditor of
FORECLOSURE amount fixed in the said debtor-mortgagor or
Governed by the Rules of Governed by Act 3135 as decision of the court any person having a lien
Court amended within 90 to 120 days in the property
Involves the filing of an Does not require filing of after entry of judgment subsequent to its
independent action an action or even after the mortgage or deed of
Equity of redemption Right of redemption foreclosure sale but prior trust, under which the
EXCEPT if the to its confirmation. property is sold, to
foreclosure is in favor of [Limpin v. Intermediate redeem the property
banks as mortgagees, a Appellate Court (1988)] within 1 year from the
Right of redemption registration of the
exists sheriffs certificate of
There could be a No deficiency judgment foreclosure sale. [De
deficiency judgment because there is no Castro v. Intermediate
judicial proceeding Appellate Court [1988)]
BUT deficiency can be The mortgagor may The right of redemption
recovered exercise his equity of in relation to a mortgage
Recovery of deficiency is Recovery of deficiency is redemption in judicial is understood in the
by mere motion for a by an independent foreclosure before the sense of a prerogative to
deficiency judgment action sale is confirmed by the re-acquire mortgaged
court (Raymundo v property after
 REMEDIAL LAW REVIEWER
EQUITY OF REDEMPTION RIGHT OF REDEMPTION
Sunico, 1913; Rosales v registration of
186 Suba, 2003). foreclosure sale. It exists
No right of redemption is only in the case of the
recognized in a judicial extrajudicial foreclosure
foreclosure, except only of the mortgage.
where the mortgagee is
the Philippine National
Bank or a bank or
banking institution.
[Huerta Alba Resort, Inc.
v. CA (2000)]
Confirmation of the sale of mortgaged real property
vests title in the purchaser including the equity of
redemption, it retroacts to the date of the sale. It
cuts off all the rights or interests of the mortgagor
and of the mortgagee. [Lozame v Amores (1985]].
The motion for the confirmation of the sale requires
a hearing to grant an opportunity to the mortgagor
to show cause why the sale should not be confirmed
[Tiglao v Botones, 90 Phil 275], as by proof of
irregularities therein or of gross inadequacy of the
price. Lack of notice vitiates the confirmation of the
sale.
11. Partition
Partition of property may be:
Extrajudicial by agreement
Judicial compulsory; governed by Rule 69
Even if the parties resorted to judicial partition,
they may still make an amicable partition of the
property. [Secs. 2 and 12]
a. Who may file complaint; who should be
made defendants
Filed by person having the right to compel the
partition of real estate, [Sec. 1], or of personal
property, or of both real and personal property.
[Sec. 13]
The plaintiff is the person who is supposed to be a
co-owner of the property. The defendants are all the
co-owners, who are indispensable parties.
Sepulveda v. Pelaez (2005): All persons considered
as co-owners and interested in the property to be
partitioned are indispensable parties to the action
and must be impleaded.
Exceptions to the Right to Ask for Partition:
When there is a stipulation against it, not
exceeding 10 years [Art. 494 CC]
When partition is prohibited by the donor or
testator for a period not exceeding 20 years
[Art. 494, 1083 CC]
When partition is prohibited by law (e.g. ACP,
party wall) [Art. 494 CC]
When the property is not subject to a physical
division and to do so would render it
unserviceable for the use for which is it
the intended [Art. 495 CC] or
When the condition imposed upon voluntary
heirs before they can demand partition has not
yet been fulfilled. [Art. 1084 CC]
b. Matters to allege in the complaint for
partition
Contents of complaint for partition
Nature and extent of the complainants title
Adequate description of the real estate of which
the partition is demanded
All other persons interested in the property
must be impleaded. [Rule 69.1]
c. Two (2) stages in every action for partition
i. Determination of the propriety of partition
This involves a determination of whether the subject
property is owned in common and whether all the
co-owners are made parties in the case.
The order may also require an accounting of rents
and profits recovered by the defendant. This order
of partition is appealable. [Miranda v. Court of
Appeals (1976)]
If not appealed, then the parties may partition the
common property in the way they want. If they
cannot agree, then the case goes into the second
stage. However, the order of accounting may in the
meantime be executed. [De Mesa v. CA (1994)]
ii. The actual partitioning of the subject property
This is also a complete proceeding and the order or
decision is appealable.
When there was a prior partition, the fact that the
share of each co-heir has not been technically
described and the title over the whole lot remains
uncancelled does not negate such partition.
There can be no partition again because there is no
more common property. [Noceda v. CA (1999)]
Crucillo v. IAC, 1999: Oral partition of land when
the same is fully consummated is valid and binding
upon the parties thereto.
Maglucot-aw et al. v. Maglucot et al. (2000):
Parties to a partition proceeding, who elected to
take under partition, and who took possession of the
portion allotted to them, are estopped to question
title to portion allotted to another party. A person
cannot claim both under and against the same
instrument. In other words, they accepted the lands
awarded them by its provisions, and they cannot
accept the decree in part, and repudiate it in part.
They must accept all or none. Parties who had
received the property assigned to them are
precluded from subsequently attacking its validity of
any part of it.
Partition may be inferred from circumstances
sufficiently strong to support the presumption. Thus,
after a long possession in severalty, a deed of

partition may be presumed.
Recitals in deeds, possession and occupation of land,
improvements made thereon for a long series of
years, and acquiescence for 60 years, furnish
sufficient evidence that there was an actual
partition of land either by deed or by proceedings in
the probate court, which had been lost and were not
recorded.
Where a tract of land held in common has been
subdivided into lots, and one of the lots has long
been known and called by the name of one of the
tenants in common, and there is no evidence of any
subsequent claim of a tenancy in common, it may
fairly be inferred that there has been a partition and
that such lot was set off to him whose name it bears.
Venue
Actions for partition should be filed in the RTC of the
province where the property or part thereof is
situated.
If several distinct parcels of land are situated in
different provinces, venue may be laid in the RTC of
any of said provinces. [Pancho v. Villanueva, 99 Phil
611]
d. Order of partition and partition by
agreement
Order of partition
After trial, if the court finds that the plaintiff has
the right to the property subject of partition, it shall
issue an order demanding the partition of the real
estate among all the parties in interest. [Sec. 2]
(Refers to 1st stage of partition)
Partition by agreement
After the issuance of the order of partition, the
parties will then be asked if they agree to make
partition of the property among themselves.
If they agree, proper instruments of conveyance will
be executed to effect the partition.
report to the court of all their proceedings as to the
After the execution of instruments of conveyance,
the court shall confirm the partition through a final
order.
Upon filing the report, the clerk of court shall serve
The final order of partition and the instruments of
conveyance shall be registered with the Registry of
Deeds where the property is situated. [Rule 69.2]
desire.
If they do not agree, there will be a partition by
commissioners.
A party shall recover from another his just share of
rents and profits received by such other party from
the real estate in question, and the judgment shall
include an allowance for such rents and profits.
[Rule 69.8]
REMEDIAL LAW REVIEWER
A final order decreeing partition and accounting may
be appealed by any party aggrieved thereby. [Rule
69.2]
187
e. Partition by commissioners; Appointment
of commissioners, Commissioners report;
Court action upon commissioners report
Appointment of commissioners
If the parties are unable to agree upon the partition,
the court shall appoint not more than 3 competent
and disinterested persons as commissioners to make
the partition, commanding them to set off to the
plaintiff and to each party in interest such part and
proportion of the property as the court shall direct.
[Rule 69.3]
Duties of Commissioners [Rule 69.4]:
view and examine the real estate, after due
notice to the parties to attend at such view and
examination
hear the parties as to their preference in the
portion of the property to be set apart to them
and the comparative value thereof
set apart the same to the parties in lots or
parcels as will be most advantageous and
equitable, having due regard to the
improvements, situation and quality of the
different parts thereof.
General rule: If the commissioners should determine
that the real estate cannot be divided without
prejudice to the interests of the parties, the court
may order that the property be assigned to one of
the parties willing to take the same PROVIDED he
pays to the other parties such amounts as the
commissioners deem equitable
EXCEPTION: if one of the parties asks that the
property be sold instead of being so assigned, then
the court shall ORDER the commissioners to sell the
real estate at public sale under such conditions and
within such time as the court may determine. [Rule
69.5]
Commissioners report
The commissioners shall make a full and accurate
partition, or the assignment of real estate to one of
the parties or the sale of the same.
copies thereof on all interested parties with notice
that they are allowed 10 days within which to file
objections to the findings of the report, if they so
No proceeding had before or conducted by the
commissioners shall pass the title to the property or
bind the parties until the court accepts the
commissioners report and rendered judgment
thereon. [Rule 69.6]
Upon the expiration of the 10-day period, or even
before the expiration of such period but after the
 REMEDIAL LAW REVIEWER

interested parties filed their objections to the adversely occupies the property without recognizing
report/statement of agreement, the court, upon the co-ownership [Cordova v. Cordova, 102 Phil
188 hearing, may: 1182] in which case, acquisitive prescription may set
ACCEPT the commissioners report and render in.
JUDGMENT based upon it.
RECOMMIT the report to the commissioners for If a co-owner repudiates the co-ownership and
further report of facts if there is cause to do the makes known such repudiation to the other co-
same owners, then partition is no longer a proper remedy
SET ASIDE the report and APPOINT new of the aggrieved co-owner. He should file an accion
commissioners reivindicatoria, which is prescriptible. [Roque v. IAC
ACCEPT the report IN PART and REJECT it IN (1988)]
PART
Make such order and render such judgment as 12. Forcible Entry and Unlawful
shall effectuate a fair and just partition of the
real estate or of its value, if the property is
Detainer (Asked in the 2000 Bar Exam
assigned or sold between the several owners in Relation to a Pending Action for
thereof. [Rule 69.7] Specific Performance)
f. Judgment and its effects a. Definitions and Distinction
CONTENTS OF EFFECTS OF Forcible Entry
JUDGMENT JUDGMENT Resorted to when a person is deprived of
IF ACTUAL Judgment shall Judgment shall possession of any land or building by (1) force,
PARTITION state definitely, vest in each (2) intimidation, (3) strategy, (4) threat, or (5)
IS by metes and party to the stealth. (FISTS)
PROPERLY bounds and action in Must be brought at any time within 1 year after
MADE adequate severalty the such unlawful deprivation in the proper MTC
description, the portion of the against the person unlawfully depriving him of
particular real estate possession or against any person or persons
portion of the assigned to him. claiming under them.
real estate Action must be for the restitution of possession
assigned to each of property together with damages and costs.
party. [Rule 70.1]
IF THE Judgment shall Judgment shall The owners of a property have no authority to
WHOLE state the fact of vest in the party use force and violence to eject alleged usurpers
PROPERTY such payment making the who were in prior physical possession of it.
IS ASSIGNED and of the payment the They must file the appropriate action in court
TO ONE OF assignment of whole of the real and should not take the law into their own
THE the real estate to estate free from hands. [Laurora v. Sterling Technopark (2003)]
PARTIES the party making any interest on
AFTER the payment. the part of the Unlawful Detainer
PAYMENT other parties. Resorted to when a lessor, vendor, vendee, or
IF Judgment shall Judgment shall other person against whom the possession of any
PROPERTY state the name vest the real land or building is unlawfully withheld, after the
IS SOLD AND of the purchaser estate in the expiration or termination of the right to hold
SALE IS or purchasers purchaser(s), possession by virtue of an express or implied
CONFIRMED and a definite making the contract.
BY THE description of payment(s) free May also be brought by the legal representative
COURT the parcels of from the claims or assigns of any such lessor, vendor, vendee, or
real estate sold of any parties to other persons.
to each the action. Must be brought at any time within 1 year after
A certified copypurchaser
of the judgment shall in either case the unlawful withholding of possession in the
be recorded in the registry of deeds of the place in proper Municipal Trial Court against the person
which the real estate is situated. [Rule 69.11] unlawfully withholding possession or persons
claiming under them.
g. Partition of personal property Action must be for the restitution of possession
of property together with damages and costs.
The provisions of Rule 69 shall apply to partitions of [Rule 70.1]
estates composed of personal property, or of both
real and personal property, in so far as the same FORCIBLE ENTRY UNLAWFUL DETAINER
may be applicable. [Rule 69.13] Possession becomes Possession was lawful at
unlawful right from the first but later becomes
h. Prescription of action very start (i.e. from the illegal, as when the
time of entry) as he lease contract has
The right of action to demand partition does not acquires possession by expired and the lessee
prescribe [De Castro v. Echarri, 20 Phil 23], EXCEPT FISTS. refuses to vacate the
where one of the interested parties openly and premises despite
 REMEDIAL LAW REVIEWER

demand. It is thus an action whereby plaintiff alleges

The deprivation of The unlawful withholding
physical possession of of possession is made
land and building is after the expiration or
effected through force, termination of the right
intimidation, strategy, to hold possession under
threat or stealth (FISTS). any contract, express or
implied.
The issue centers on who The issue centers on
was in prior possession whether the defendants
de facto. right to possess has
expired or not.
Previous demand upon Previous demand to
defendant to vacate not vacate required
required. (jurisdictional).
The plaintiff must allege The plaintiff need not be
and prove that he was in in prior physical
prior physical possession possession.
of the premises until
deprived thereof.
1-year period counted 1-year period counted
from date of actual from date of last
entry on the land. demand or last letter of
demand.
b. Distinguished from accion publiciana and
accion reinvindicatoria
ownership over a parcel of land and seeks recovery
of its full possession. [Javier v. Veridiano (1994)]
189
c. How to determine jurisdiction in accion
publiciana and accion reinvindicatoria
A/P and A/R are actions involving title to or
possession of real property or an interest therein
RTC has jurisdiction where the assessed value of
the property exceeds P20K or, in MM, P50k
MTC has jurisdiction if the assessed value does
not exceed said amounts
d. Who may institute the action and when;
against whom the action may be maintained
Who may File, When, Against Whom
Who: A person deprived of the possession of any
land or building by force, intimidation, threat,
strategy, or stealth, or a lessor, vendor, vendee, or
other person against whom the possession of any
land or building is unlawfully withheld after the
expiration or termination of the right to hold
possession, by virtue of any contract, express or
implied, or the legal representatives or assigns of
any such lessor, vendor, vendee, or other person

i. Accion Interdictal
the summary action for forcible entry
(detentacion)
where the defendants possession of property is
illegal ab initio, or
the summary action for unlawful detainer
(desahucio) where the defendants possession
was originally lawful but ceased to be so by the
expiration of his right to possess,
both of which must be brought within one year
from the date of actual entry to the land, in
case of forcible entry, and from the date of last
demand, in case of unlawful detainer,
in the proper MTC or MeTC
Nature:
special civil action involving realty;
subject to the Rules on Summary Procedure;
[Rule 70.3]
under the original exclusive jurisdiction of first
level courts;
nature of the action is determined by the
allegation of the complaint and the character of
the relief sought; [Abrin v. Campos (1991)]
one co-owner may institute the action.
ii. Accion Publiciana
A plenary action for recovery of the right to possess
and which should be brought in the proper regional
trial court when the dispossession has lasted for
more than one year.
iii. Accion Reivindicatoria
Also called accion de reivindicacion, it seeks the
recovery of ownership and includes the jus utendi
and the jus fruendi, which must be brought in the
proper regional trial court.
When: At any time within 1 year after such unlawful
deprivation or withholding of possession in the
proper MTC
Against Whom: The person or persons unlawfully
withholding or depriving of possession, OR any
person or persons claiming under them [Rule 70.1]
e. Pleadings allowed
Pleadings must be verified. [Rule 70.4]
Allowed pleadings [Rule 70.4]:
Complaint
Compulsory Counterclaim pleaded in the answer
Cross-claim pleaded in the answer
Answer
f. Action on the complaint
From the examination of the allegations in the
complaint and such evidence as may be attached
thereto, the court may:
DISMISS the case outright based on the grounds
for dismissal for ordinary civil actions apparent
in the complaint, or
ISSUE SUMMONS, if no ground for dismissal is
found. [Rule 70.5]
Cases requiring referral to conciliation, where there
is no showing of compliance with such requirement,
shall be dismissed without prejudice, and may be
revived only after that requirement have been
complied with. [Rule 70.12]
g. When demand is necessary
 REMEDIAL LAW REVIEWER
In cases of unlawful detainer, the action by the
lessor shall be commenced only after:
190 demand to pay or comply with the conditions of
the lease and to vacate is made upon the lessee,
or
by serving written notice of such demand upon
the person found on the premises, or
by posting such notice on the premises if no
person be found thereon, and the lessee fails to
comply therewith after 15 days in the case of
land or 5 days in the case of buildings. [Rule
70.2]
EXCEPTIONS (prior demand not required):
Where purpose of the action is to terminate the
lease by reason of the expiry of its term, and is
not for failure to pay rentals or comply with the
terms of the lease contract. [De Santos v. Vivas,
96 Phil 538]
When the purpose of the suit is not for
ejectment but for the enforcement of the terms
of the contract. [Guanson v. Ban, 77 Phil 7]
When the defendant is not a tenant but a mere
intruder. [id]
Jakihaca v. Aquino (1990): Demand upon a tenant
may be oral.
Dakudao v. Consolacion (1983): A person who
occupies the land of another at the latter's tolerance
or permission, without any contract between them is
necessarily bound by an implied promise that he will
vacate upon demand, failing which, an action for
unlawful detainer may be instituted against him.
Muoz v. CA (1992): This rule as to tolerance does
not hold true in a case where there was forcible
entry at the start, but the lawful possessor did not
attempt to oust the intruder for over 1 year, and
only thereafter filed forcible entry suit following
demand to vacate.
Refugia v. CA (1996): Tolerance must be presented
right from the start of possession sought to be
recovered to categorize a cause of action as one of
unlawful detainer.
Zobel v. Abreu (1956): When failure to pay rent or
comply with the condition of lease is the ground for
ejectment, plaintiff should give 2 demands (which
may be embodied in 1 demand letter):
demand to pay rental or comply with conditions
of the lease, and if this is not complied with,
demand to vacate
Yap v. Cruz (1992): Notice and demand to vacate is
required on a lease on a month-to-month period to
render effective the termination of the lease upon
the expiration of the month, and prevent an implied
renewal of the lease.
Penas, Jr. v. CA (1994): An alternative demand to
either renew the expired lease contract at a higher
rental rate or vacate is not a definite demand to
vacate and therefore, insufficient basis for the filing
of an action for unlawful detainer.
Uy v. CA (1989): Refusal to collect or accept rentals
is not a defense. There must be consignation.
Procedure
Filing of complaint.
After the court has examined the allegations in the
complaint and supporting evidence attached to the
same, the court may:
DISMISS the case outright based on the grounds
for dismissal for ordinary civil actions apparent
in the complaint, or
ISSUE SUMMONS, if no ground for dismissal is
found. [Rule 70.5]
Cases requiring referral to conciliation, where there
is no showing of compliance with such requirement,
shall be dismissed without prejudice, and may be
revived only after that requirement have been
complied with. [Rule 70.12]
The defendant shall file his ANSWER and serve a
copy of it to the plaintiff within 10 days from service
of summons. [Rule 70.6]
Failure of the defendant to answer within the period
provided above shall give power to the court, motu
propio or on motion, to render judgment as may be
warranted by the facts alleged in the complaint and
limited to what is prayed for therein. [Rule 70.7]
Affirmative and negative defenses and cross-claims
and compulsory counterclaims not pleaded in the
answer are deemed waived.
EXCEPTION: lack of jurisdiction over the subject
matter.
Answers to the counterclaims or cross-claims shall
be served and filed within 10 days from service of
the answer in which they are pleaded.
Where there is a defense of tenancy, there must be a
preliminary hearing on the question of tenancy
relations. [Bayog v. Natino (1996)] If there is a prima
facie showing of tenancy, the court should dismiss
the case for lack of jurisdiction (jurisdiction belongs
to the DARAB). [Baranda v. Padios (1987)]
Not later than 30 days after the last answer is filed,
a PRELIMINARY CONFERENCE shall be held.
Rule 18 applicable. Effects of failure to appear:
When the plaintiff does not appear
- It shall be a cause for dismissal of his
complaint
- All cross-claims shall be dismissed
- The defendant who appears in the
absence of the plaintiff shall be entitled
to the judgment on his counterclaim
When the defendant does not appear
- The plaintiff shall be entitled to
judgment (This is true when there is only
one defendant or when all of the
defendants did not appear)

General rule: No postponement of the preliminary
conference shall be granted.
Exception: Highly meritorious grounds and without
prejudice to such sanctions as the court in the
exercise of sound discretion may impose on the
movant. [Rule 70.8]
The court shall issue an ORDER stating matters
taken up during the preliminary conference within 5
days after the termination of the same.
Contents of the Order:
Whether the parties have arrived at an amicable
settlement, and if so, terms thereof;
The stipulations or admissions entered into by
the parties;
Whether, on the basis of the pleadings and the
stipulations and admissions made by the parties,
judgment may be rendered without the need of
further proceedings, in which event the
judgment shall be rendered within 30 days from
issuance of the order;
A clear specification of material facts which
remain controverted;
Such other matters intended to expedite the
disposition of the case. [Rule 70.9]
The parties shall submit affidavits of their witnesses
and other evidence on the factual issues defined in
the order, together with their position papers setting
forth the law and the facts relied upon by them
within 10 days from receipt of the order. [Rule
70.10]
Affidavits required to be submitted shall state only
facts of direct personal knowledge of the affiants
which are admissible in evidence, and shall show
their competence to testify to the matters stated
therein.
Violation of this requirement may subject the party
or the counsel who submits the same to disciplinary
action and shall be cause to expunge the
inadmissible affidavit or portion thereof from the
records. [Rule 70.14]
Judgment
GENERAL RULE: The court shall render judgment
within 30 days from the date of its receipt of the
affidavits and position papers OR the expiration of
the period for filing the same. [Rule 70.11]
EXCEPTION: Should the court find it necessary to
clarify certain material facts, it may during the 30-
day period issue an ORDER specifying the matters to
be clarified and require the parties to submit
affidavits or other evidence on the said matters
within 10 days from receipt of said order. Judgment
shall be rendered within 15 days after receipt of the
last affidavit or the expiration of the period for filing
the same. [Ibid.]
The court shall not resort to the foregoing procedure
just to gain time for the rendition of the judgment.
[Id.]
REMEDIAL LAW REVIEWER
If the trial court finds that the allegations of the
complaint are TRUE, it shall render judgment in
favor of the plaintiff for 191
restitution of the premises,
the just sum due as arrears of rent or
reasonable compensation for the use and
occupation of the premises.
attorneys fees and costs. [Rule 70.17]
If the court finds that the allegations of the
plaintiffs are NOT TRUE, it shall render judgment for
the defendant to recover his costs. [Ibid.]
The judgment rendered in an action for forcible
entry shall be conclusive with respect to the
possession only, and it shall not in any way affect
the title or ownership of the land or building. Hence,
such judgment shall not bar an action between the
same parties with respect to the title of the land or
building.
The judgment or final order shall be appealable to
the appropriate RTC. [Rule 70.18]
Execution of judgment
GENERAL RULE: If judgment is rendered against a
defendant, execution shall issue immediately. [Rule
70.19 and 70.21]
EXCEPTION: Appeal has been duly perfected by the
defendant and bond has been posted.
Lu v. Siapno (2000): Although immediately
executory, the judge should not order immediate
execution in his decision.
Kaw v. Anunciacion (1995): There must be notice of
the judgment and a motion with notice to the
adverse party.
h. Preliminary injunction and preliminary
mandatory injunction
Preliminary injunction
The court may grant preliminary injunction in
accordance with Rule 58 to prevent the defendant
from committing further acts of dispossession
against the plaintiff.
A possessor deprived of his possession may move for
a preliminary mandatory injunction within 5 days to
restore him in his possession of the property. The
court then shall decide the motion within 30 days
from the filing thereof. [Rule 70.15]
i. Resolving defense of ownership
When ownership is raised as a defense, the court
may resolved the issue of ownership but only under
these conditions:
When the issue of possession cannot be resolved
without resolving the issue of ownership; and
The issue of ownership shall be resolved only to
determine the issue of possession [Rule 70.16].
 REMEDIAL LAW REVIEWER
When the defendant asserts ownership over the
property, the inferior court is not divested of its
192 jurisdiction [Rural Bank of Sta. Ignacia, Inc v
Dimatulac]
The judgment rendered in an action for forcible
entry or unlawful detainer shall be conclusive with
respect to the possession only, and it shall not in any
way affect the title or ownership of the land or
building. Hence, such judgment shall not bar an
action between the same parties with respect to the
title of the land or building. [Rule 70.18]
Matters Not Constituting Prejudicial Question to
Ejectment [Arcal vs. Court of Appeals (1998)]
Injunction suits instituted in the RTC by
defendants in ejectment actions in the
municipal trial courts or other courts of the first
level [Nacorda v. Yatco (1996)] do not abate the
latter, and neither do proceedings on
consignation of rentals [Lim Si v. Lim (1956)]
An accion publiciana does not suspend an satisfied that the defendants appeal is frivolous or
ejectment suit against the plaintiff in the
former [Ramirez v. Bleza (1981)].
A writ of possession case where ownership is
concededly the principal issue before the
Regional Trial Court does not preclude nor bar
the execution of the judgment in an unlawful
detainer suit where the only issue involved is
the material possession or possession de facto
of the premises [Heirs of F. Guballa, Sr. v CA
(1988)].
An action for quieting of title to the property is
not a bar to an ejectment suit involving the
same property [Quimpo v. de la Victoria
(1972)].
Suit for specific performance with damages do
not affect ejectment actions (e.g., to compel
renewal of lease contract) [Desamito v.
Cuyegkeng (1966)]; (Asked in the 2000 Bar
Exam)
An action for reformation of instrument (e.g.
from deed of absolute sale to one of sale with
pacto de retro ) does not suspend an ejectment
suit between the same parties [Judith v.
Abragan (1975)].
An action for reconveyance of property or
accion reivindicatoria also has no effect on
ejectment suits regarding the same property
[Del Rosario v. Jimenez (1963)].
Neither do suits for annulment of sale, or title,
or document affecting property operate to
abate ejectment actions respecting the same
property [Salinas v. Navarro - annulment of
deed of sale with assumption of mortgage
and/or to declare the same an equitable
mortgage (1983); Ang Ping v. RTC - annulment
of sale of title (1987); Caparros v. C.A. -
annulment of title (1989); Dante v. Sison -
annulment of sale with damages 174 SCRA 517;
Galgala v. Benguet Consolidated, Inc. -
annulment of document (1989)].
j. How to stay the immediate execution of
judgment
GENERAL RULE: If judgment is rendered against a
defendant, execution shall issue immediately. [Rule
70.19 and 70.21]
EXCEPTION: Appeal has been duly perfected by the
defendant and bond has been posted.
Procedure for staying the execution of judgment:
defendant perfects his appeal in due time;
defendant files a sufficient supersedeas bond
approved by the Municipal Trial Court; and
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, on
or before the 10th day of each succeeding
month. [Rule 70.19]
BUT upon motion of the plaintiff within 10 days from
the perfection of the appeal to the RTC, the court
may still issue a preliminary mandatory injunction to
restore the plaintiff in possession if the court is
dilatory, or that the appeal of the plaintiff is prima
facie meritorious. [Rule 70.20]
k. Summary procedure, prohibited pleadings
Prohibited pleadings and motions [Rule 70.13]:
Motion to dismiss
EXCEPTIONS:
- Motion to dismiss based on lack of jurisdiction
over the subject matter
- Motion to dismiss for failure to comply with
section 12 (referral to Lupon for conciliation)
Motion for a Bill of Particulars
Motion for New Trial
Motion for reconsideration of a judgment
Motion for reopening of trial
Petition for relief from judgment
Motion for extension of time to file pleadings,
affidavits or other papers
Memoranda
Petition for Certiorari, Mandamus or Prohibition
against any interlocutory order issued by the
court
Motion to declare defendant in default
Dilatory motions for postponement
Reply
Third-party complaints
Interventions
13. Contempt
Definition
Contempt of court is a defiance of the authority,
justice or dignity of the court, such conduct as tends
to bring the authority and administration of the law
into disrespect of, to interfere with, or prejudice
parties litigant or their witnesses during litigation.
It is defined as a disobedience to the court by
setting up an opposition to its authority, justice and
dignity.
It signifies not only a willful disregard or
disobedience to the courts order but such conduct
as tends to bring the authority of the court and the
administration of law into disrepute or in some
manner to impede the due administration of justice.

[Heirs of Trinidad de Leon Vda. de Ramos v. Court of
Appeals (2004)]
a. Kinds of contempt
Accdg to the Manner of Commission
- Direct
- Indirect
Accdg to Nature
- Civil
- Criminal
b. Purpose and nature of each
Direct Contempt (Contempt In Facie Curiae)
A misbehavior committed in the presence of or so
near a court or judge so as to obstruct or interrupt
the proceedings before the same, including:
disrespect toward the court
offensive personalities toward others
refusal to be sworn or to answer as a witness or
to subscribe an affidavit/deposition when
lawfully required to do so.
It can be punished summarily without hearing. It is
conduct directed against or assailing the authority
and dignity of the court or a judge, or in the doing of
a forbidden act. [Encinas v. National Bookstore
(2005); Rule 71.1]
Indirect Contempt (Constructive Contempt)
A misbehavior perpetrated outside of the sitting of
the court. [Patricio v. Suplico (1991)]
Acts of indirect contempt:
Misbehavior of an officer of the court in the
performance of his official duties or in his
official transactions;
Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court,
including the act of a person who, after being
dispossessed or ejected from any real property
by the judgment or process of any court of
competent jurisdiction, enters or attempts to or
induces another to enter into or upon such real
property, for the purpose of executing acts of
ownership or possession, or in any manner
disturbs the possession given to the person
adjudged to be entitled thereto;
Any abuse of or any unlawful interference with
the processes or proceedings of a court not
constituting direct contempt;
Any improper conduct tending, directly or
indirectly, to impede, obstruct or degrade the
administration of justice;
Assuming to be an attorney or an officer of the
court, and acting as such without authority;
Failure to obey a subpoena duly served;
The rescue or attempted rescue, of a person or
property in the custody of an officer by virtue of
an order or process of a court held by him. [Rule
71.3]
TWO ASPECTS OF CONTEMPT OF COURT:
REMEDIAL LAW REVIEWER
Civil Contempt is the failure to do something
ordered to be done by a court or a judge for the
benefit of the opposing party therein. [People v.
Godoy, 1995]; remedial or compensatory in 193
nature; instituted for the benefit of private
party.
Criminal Contempt is conduct directed against
the authority and dignity of a court or of a
judge, as in unlawfully assailing or discrediting
the authority and dignity of a court or a judge or
in doing a forbidden act [People v. Godoy,
1995]; punitive in nature, thus, the proceedings
are to be conducted in accordance with the
principles and rules applicable to criminal cases
[SEC v. Recto, 1999].
SEC v. Recto (1999): The violation of a TRO issued
by the SEC or any quasi-judicial tribunal is criminal
contempt so that acquittal of the respondents is
unappealable.
Crucillo v. IAC (1999): A writ of execution issued by
a court after 5 years from entry of final judgment is
void, and disobedience thereto does not constitute
indirect contempt.
Panado v. CA (1998): The power to declare a
person in contempt of court serves to protect and
preserve the dignity of the court, the solemnity of
the proceedings therein and the administration of
justice.
But this must be wielded sparingly. For this power
should be exercised on the preservative and not on
the vindictive principle.
Only occasionally should the court invoke its
inherent power in order to retain that respect
without which the administration of justice must
falter or fail.
LandBank v. Listana (2003): Only the court which
rendered the order commanding the doing of a
certain act is vested with the right to determine
whether or not the order has been complied with, or
whether a sufficient reason has been given for non-
compliance, and, therefore, whether a contempt has
been committed.
The power to determine the existence of contempt
of court rests exclusively with the court contemned.
No court is authorized to punish a contempt against
another.
Quasi-judicial agencies that have the power to cite
persons for indirect contempt pursuant to Rule 71
can only do so by initiating them in the proper RTC.
It is not within their jurisdiction and competence to
decide the indirect contempt cases. These matters
are still within the province of the RTCs.
c. Remedy against direct contempt; penalty
d. Remedy against indirect contempt; penalty
 REMEDIAL LAW REVIEWER

e. How contempt proceedings are Failure to obey a subpoena duly served;

commenced The rescue or attempted rescue, of a person or
194 property in the custody of an officer by virtue of
See Annex G. an order or process of a court held by him. [Rule
71.3]
Procedure for Indirect Contempt
[Secs. 4-6] g. When imprisonment shall be imposed
WHO COURT PARTY
INITIATES MOTU When the contempt consists in the refusal or
PROPIO omission to do an act which is yet in the power of
How it is By ORDER or By a VERIFIED PETITION the respondent to perform, he may be imprisoned by
initiated any WRITTEN with supporting order of the court concerned until he performs it.
CHARGE particulars and [Rule 71.8].
requiring certified true copy of
respondent documents or papers The respondent carries the keys to his prison in his
to show involved and full own pocket. [Galvez v. Republic Surety & Insurance
cause why he compliance with the Co., Inc, 105 Phil. 944]
should not requirements for filing
be held in initiatory pleadings in Only the judge who ordered the confinement of the
contempt. ordinary civil actions. person for contempt of court can issue the Order of
Where it When the contempt is directed against Release. [Inoturan v Limsiaco, Jr.]
is an RTC or equivalent or higher rank:
initiated Same court Rule 71.8 does not apply to tenants who refused or
When the contempt is directed against failed to pay their rentals to the special
a lower court: administratrix of the property. The non-payment of
RTC of the place where the lower rentals, which is a civil debt, is covered by the
court is sitting; or constitutional guarantee against imprisonment.
in same lower court subject to [Regalado]
appeal to higher court
Hearing If hearing is not immediately h. Contempt against quasi-judicial bodies
and Bail conducted, respondent may be released
upon filing of BOND in the amount fixed Rule 71 applies to contempt committed against
by the court. persons, entities, bodies or agencies exercising
Appeal Appeal may be taken in proper courts quasi-judicial functions, or shall have suppletory
as in criminal cases. effect to such rules as they may have adopted
Execution Execution of judgment shall not be pursuant to authority granted to them by law to
of suspended even by appeal UNLESS bond punish for contempt.
Judgment is filed conditioned upon the
performance by the respondent of that Where to file: RTC of the place wherein the
judgment should it be decided against contempt has been committed. [Rule 71.12]
him on appeal. - It is not within the jurisdiction and competence of
quasi-judicial bodies to decide indirect contempt
f. Acts deemed punishable as indirect cases. The requirement for a verified petition
contempt must also be complied with (e.g. DARAB has no
power to decide the contempt charge filed before
Misbehavior of an officer of the court in the it). [Land Bank v Listana (2003)]
performance of his official duties or in his
official transactions; Rule 71.12 confers contempt powers on all Quasi-
Disobedience of or resistance to a lawful writ, Judicial entities or supplements their rules, unless
process, order, or judgment of a court, the applicable law provides otherwise.
including the act of a person who, after being
dispossessed or ejected from any real property Acts or violations against quasi-judicial bodies
by the judgment or process of any court of punishable as contempt: where a person, without
competent jurisdiction, enters or attempts to or lawful excuse, fails to appear, make oath, give
induces another to enter into or upon such real testimony or produce documents when required to
property, for the purpose of executing acts of do so by the official or body exercising such powers.
ownership or possession, or in any manner Other acts or violations cannot be punished as
disturbs the possession given to the person contempt unless specifically defined in the governing
adjudged to be entitled thereto; law as contempt of court or if it authorizes the
Any abuse of or any unlawful interference with quasi-judicial body to punish for contempt, and
the processes or proceedings of a court not providing the corresponding penalty. [People v.
constituting direct contempt; Mendoza, 92 Phil 570, 13, Ch. 3, Bk VII, Admin Code
Any improper conduct tending, directly or of 1987]
indirectly, to impede, obstruct or degrade the
administration of justice;
Assuming to be an attorney or an officer of the
court, and acting as such without authority;
 REMEDIAL LAW REVIEWER

Annex A
1. Service on person associated in If sued under the name by which they are commonly known Serve upon
an entity without juridical either:
195
personality 1) Any/all the defendants;
[Rule 14, Sec. 8] 2) Person in charge of the office
The service does not bind individually any person whose connection with
the entity was already severed before the service
2. Service upon minors and Serve upon the minor/incompetent and on his legal guardian.
incompetents [Rule 14, Sec. 10] If there is no guardian, plaintiff may apply for the appointment of a
guardian ad litem.
If minor, may serve on his parents.
3. Service upon prisoner [Rule 14, Serve upon the officer having management of the jail/prison
Sec. 9]
4. Service upon domestic private Serve upon either the:
juridical entity [Rule 14, Sec. 1) President
11] 2) Managing partner
3) General manager
4) Corporate secretary
5) Treasurer
6) In-house counsel
5. Service upon foreign private Serve upon the resident agent;
juridical entity Otherwise, upon either:
[Rule 14, Sec. 12] 1) Government official designated by law;
2) Any officer or agent of the corporation within the Philippines
6. Service upon public If the defendant is the Republic of the Philippines Serve upon the OSG
corporations If the defendant is a province/city/municipality or like public corporations
[Rule 14, Sec. 13] Serve upon the executive head or other officers as the law/court may
direct
7. Extraterritorial service Requisites: (Asked in the 1997 and 2008 Bar Exam)
[Rule 14, Sec. 15] 1) Defendant does not reside or is not found in the Philippines;
2) Action either:
a) Affects the plaintiffs personal status;
b) Relates to or the subject matter of which is property within the
Philippines in which defendant has a lien/interest;
c) Demands a relief which consists wholly/partially in excluding the
defendant from any interest in any property within the Philippines;
d) Has defendants property in the Philippines, attached.
Modes of service:
1) With leave of court, serve outside the Philippines by personal service;
or
2) With leave of court, serve by publication in a newspaper of general
circulation, in which case copy of the summons and order of the court
must also be sent by registered mail to the defendants last known
address;
3) Any other manner the court deems sufficient
The court order granting extraterritorial service shall specify a period of at
least 60 days within which the defendant must answer.
8. Service upon a resident With leave of court, may serve extraterritorially
temporarily out of the
Philippines
[Rule 14, Sec. 16]
9. Service upon a defendant With leave of court, by publication in a newspaper of general circulation
whose identity or whereabouts
are unknown [Rule 14, Sec. 14]
 REMEDIAL LAW REVIEWER

Annex B
SUBPOENA DUCES TECUM ORDER FOR PRODUCTION OR INSPECTION
196 Nature Process requiring a person to bring with Order any party to produce and permit
him any books, documents, documents, or the inspection and copying or
other things under his control or photographing, by or on behalf of the
possession. moving party,
of any designated documents, papers,
books, accounts, letters, photographs,
objects or tangible things, not
privileged,
which constitute or contain evidence
material to any matter involved in the
action and which are in his possession,
custody or control, or

Order any party to permit entry upon

designated land or other property in his
possession or control for the purpose of
inspecting, measuring, surveying, or
photographing the property or any
designated relevant object or operation
thereon.
To whom directed To any person Only to a party
When it may be asked Only during trial Before and/or during trial
Issued by whom Issued by a court before whom the witness Issued by the court where the action is
is required to attend, or court where the pending
deposition is to be taken or clerk or body
authorized by law or any justice of the
Supreme Court or CA in any case or
investigation pending within the Philippines
When issued Issued upon request to the clerk (no notice) Issued upon motion (application with
notice to the other party)
W/N it is necessary to NO YES
show good cause
Grounds for quashal unreasonable, oppressive, irrelevant, No good cause shown
or
the person in whose behalf the
subpoena is issued fails to advance the
reasonable costs of the production
thereof
Consequence of Constitutes contempt of the court from See Sec. 3, Rule 29
disobedience which the subpoena is issued
 REMEDIAL LAW REVIEWER

Annex C
PROVISION HIGHLIGHTS APPLICABILITY
Section 1. REFUSAL TO ANSWER. If a party or other deponent refuses to PARTY OR DEPONENT /WITNESS IN 197
answer any question upon oral examination RULE 23 (depositions de bene
the examination may be completed on other matters or esse),
adjourned as the proponent of the question may prefer. RULE 24 (depositions in perpetua
The proponent may thereafter apply (i.e., by MOTION FOR THE ISSUANCE rei memoriam)
OF AN ORDER TO COMPEL AN ANSWER) to the proper court of the place RULE 25. INTERROGATORIES TO
where the deposition is being taken, for an order to compel an answer. PARTIES

IF THE APPLICATION IS GRANTED

the court shall require the refusing party or deponent to answer the
question or interrogatory, and
if it also finds that the refusal to answer was without substantial
justification, it may require the refusing party or deponent or the
counsel advising the refusal, or both of them, to pay the proponent
the amount of the reasonable expenses incurred in obtaining the
order, including attorney's fees.

IF THE APPLICATION IS DENIED and the court finds that it was filed
without substantial justification, the court may require the proponent or
the counsel advising the filing of the application, or both of them, to pay
to the refusing party or deponent the amount of the reasonable expenses
incurred in opposing the application, including attorney's fees.
Section 2. Contempt of court. If a party or other witness PARTY OR WITNESS IN
refuses to BE SWORN OR RULE 23 (depositions de bene
refuses to answer any question esse),
RULE 24 (depositions in perpetuam
after being directed to do so by the court of the place in which the rei memoriam)
deposition is being taken, the refusal may be considered a contempt of
that court.
Section 3. Other consequences. THE AGGRIEVED PARTY MAY APPLY FOR: PARTY or an OFFICER OR MANAGING
AGENT OF A PARTY in RULE 23, 24, 25
An order who refuses to obey an order made
that the matters regarding which the questions were asked, or the under RULE 29 Section 1
character or description of the thing or land, or the contents of the
paper, or the physical or mental condition of the party, PARTY who refuses to obey an order
or any other designated facts shall be taken to be established for under RULE 27 to produce any
the purposes of the action in accordance with the claim of the party document or other thing for
obtaining the order; inspection, or to permit entry upon
land
An order
refusing to allow the disobedient party to support or oppose PARTY who refuses to obey an order
designated claims or defenses or made under RULE 28 requiring him to
prohibiting him from introducing in evidence designated documents take a physical examination
or things or items of testimony, or
from introducing evidence of physical or mental condition; (APPLIES TO all modes of discovery
except RULE 26 ON REQUEST FOR
An order ADMISSION BY AN ADVERSE PARTY)
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

IN LIEU OF ANY OF THE FOREGOING ORDERS OR IN ADDITION THERETO,

an order directing the arrest of any party or agent of a party for
disobeying any of such orders except an order to submit to a physical or
mental examination.
Section 4. Expenses on refusal to admit. PARTY SERVED WITH A REQUEST
If a party after being served with a request under Rule 26 RULE 26 ADMISSION BY AN ADVERSE
refuses to admit the genuineness of any document or the truth of PARTY
any matter of fact and
serves a sworn denial thereof, and
if the party requesting the admissions thereafter proves the
genuineness of such document or the truth of any such matter of
fact
 REMEDIAL LAW REVIEWER

PROVISION HIGHLIGHTS APPLICABILITY

he may apply to the court for an order requiring the other party to
198 pay him the reasonable expenses incurred in making such proof,
including attorney's fees.

Unless the court finds THAT THERE WERE GOOD REASONS FOR THE
DENIAL OR THAT ADMISSIONS SOUGHT WERE OF NO SUBSTANTIAL
IMPORTANCE, SUCH ORDER SHALL BE ISSUED.
SECTION 5. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS. PARTY OR AN OFFICER OR MANAGING
AGENT OF A PARTY
If a party or an officer or managing agent of a party RULE 23 (depositions de bene esse),
wilfully fails to appear before the officer who is to take his deposition, RULE 24 (depositions in perpetuam rei
after being served with a proper notice, or memoriam)
fails to serve answers to interrogatories submitted under Rule 25 after RULE 25 INTERROGATORIES TO PARTIES
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
SECTION 6. EXPENSES AGAINST THE REPUBLIC OF THE PHILIPPINES. Applies to all provisions in Rule 29
requiring a noncompliant party or
Expenses and attorney's fees are not to be imposed upon the Republic of witness (who represents the Republic
the Philippines under this Rule in an official capacity) to pay.
 REMEDIAL LAW REVIEWER

Annex D
JUDGMENT OR FINAL ORDER (order
that disposes of the action or proceeding) 199

If no appeal has been perfected, or the If an appeal has been perfected and duly
period of appeal has expired resolv ed, there are two ways by whic h
execution can be carried out

Prevailing Party applies (by motion) for a

writ of execution, whic h is granted by the Prevailing party files a The appellate court
judge since it is a matter of right motion in the court of may, on motion in the
origin, submitting same case, when the
therewith certified true interest of justice so
copies of the judgment or requires, direct the
judgments or final order court of origin to issue
or orders sought to be the writ of execution.
enforced and of the entry
thereof, with notice to
the adverse party1.
 REMEDIAL LAW REVIEWER

Annex E
200 Situation 1: Trial Court still has Situation 2: Trial court has lost
jurisdiction over the case and is in jurisdiction
possession of either the original record
or the record on appeal, as the case
may be.

In Situation1, prevailing party files a MOTION WITH

NOTICE TO THE ADVERSE PARTY in the Trial
Court. In Situation2, prevailing party files the motion
for execution pending appeal in the appellate court.

Discretionary execution may be

granted only for GOOD REASONS to
be stated in a SPECIAL ORDER.

NOTE HOWEVER that Discretionary execution 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 m ay be
proceeded against on motion with notice to the surety

IN CASE the judgment w hic h was executed pending appeal is reversed

totally or partially, or annulled, on appeal or otherwise, the trial court may, on
motion, issue such orders of restitution or reparation of dam ages as
equity and justice m ay w arrant under the circumstances
 REMEDIAL LAW REVIEWER

Annex F
CERTIORARI
(Asked in 2000 and 2006 Bar Exams)
When any tribunal, board or
officer exercising judicial or
quasi-judicial functions has
acted:
- without or in excess of
its jurisdiction; or
- with grave abuse of
discretion amounting to
lack or excess of its or his
jurisdiction1
AND there is no appeal, or any
plain, speedy, and adequate
remedy2 in the ordinary course
of law. (R65.1)
To correct an act performed by the
respondent
Discretionary acts
Aggrieved person
Those exercising judicial or quasi-
judicial functions
Verified
alleging the facts with certainty
PRAYER: that judgment be
rendered annulling or modifying
the proceedings of such
tribunal, etc., and granting such
incidental reliefs as law and
justice may require.
accompanied by a certified true
copy of the subject judgment,
etc., copies of all relevant
pleadings and documents, and a
certification of non-forum
shopping.
PROHIBITION
Grounds
When the proceedings of any
tribunal, corporation, board,
officer or person, whether
exercising judicial, quasi-judicial,
or ministerial functions, are
- without or in excess of its or his
jurisdiction; or
- with grave abuse of discretion
amounting to lack or excess of
its or his jurisdiction
AND there is no appeal or any
other plain, speedy, and
adequate remedy in the ordinary
course of law. (R65.2)
Purpose
To prevent the commission or
carrying out of an act
Act sought to be controlled
Discretionary and ministerial acts
Petitioner
Aggrieved person
Respondent3
Those exercising judicial and/or
non-judicial functions
Form of petition
verified
alleging the facts with certainty
PRAYER: that judgment be
rendered commanding the
respondent to desist from
further proceedings in the
action or matter specified
therein, or otherwise granting
such incidental reliefs as law
and justice may require.
accompanied by a certified true
copy of the subject judgment,
etc., copies of all relevant
pleadings and documents, and a
certification of non-forum
shopping.
MANDAMUS
(Asked in the 2006 Bar Exam)
201
When any tribunal, corporation,
board, officer or person
- unlawfully neglects the
performance of an act which
the law specifically enjoins
as a duty resulting from an
office, trust or station; or
- unlawfully excludes another
from the use and enjoyment
of a right or office to which
such other is entitled
AND there is no other plain,
speedy and adequate remedy in
the ordinary course of law.
(R65.3)
To compel the performance of the
act desired
Ministerial acts
Aggrieved person
Those exercising judicial and/or
non-judicial functions
verified
alleging the facts with certainty
PRAYER: that judgment be
rendered commanding the
respondent, immediately or
some other time to be
specified by the court, to do
the act required to be done to
protect the rights of the
petitioner, and to pay the
damages sustained by the
petitioner by reason of the
wrongful acts of the
respondent.
contains a certificate of non-
forum shopping.

1
Without jurisdiction
Excess of jurisdiction
Grave abuse of discretion
If respondent does not have the legal power to determine the case
If respondent has the legal power to determine the case but oversteps such power
If respondent has the legal power to determine the case but acts in a capricious, whimsical,
arbitrary or despotic manner in the exercise of his judgment

2
A remedy is plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and
the acts of the lower court or agency. [Silvestre vs. Torres (1946)]

3
When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board,
officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the
person or persons interested in sustaining the proceedings in the court; and it shall be the duty of such private respondents to
appear and defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the
proceedings. xxx

If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties.
However, unless otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein.
[Rule 65.5]
 REMEDIAL LAW REVIEWER

Annex G
202
Direct Contempt Indirect Contempt
How Can be committed only in the presence of or so Can be committed anywhere as long as the
Committed near a court or judge. acts mentioned in Sec. 3 are done.
Nature of The person guilty of misbehavior is summarily The person guilty of misbehavior may be
Proceedings adjudged by the court against which the punished only after charge in writing has been
contempt was committed at the very moment filed, and an opportunity given to the accused
of the perpetration. to be heard by himself or counsel [Rule 71.3]
[Rule 71.1]
Punishment If the contempt is directed against an RTC, a court of equivalent or higher rank:
FINE = not exceeding P2,000; or FINE = not exceeding P30,000; or
IMPRISONMENT = not exceeding 10 days; or IMPRISONMENT = not exceeding 6 months; or
both both
If the contempt is directed against a lower court:
FINE = not exceeding P200; or FINE = not exceeding P5,000; or
IMPRISONMENT = not exceeding 1 day; or both IMPRISONMENT = not exceeding 1 month; or
[Rule 71.1] both
[Rule 71.7]
How Summarily adjudged by the court against which By the court motu propio thru an ORDER or
proceedings the contempt is directed and punished there any formal charge
commenced and then. In all other cases, by a VERIFIED PETITION.
[Rule 71.1] (If the contempt charges arose out of or are
related to a principal action pending in the
court, the petition for contempt shall allege
that fact, but said petition shall be docketed,
heard and decided separately, unless the court
in its discretion orders the consolidation of the
contempt charge and the principal action for
joint hearing and decision.)
[Rule 71.4]
Remedy No appeal, but subject to certiorari or May be appealed to the proper court as in
prohibition. criminal cases, but execution shall not be
[Rule 71.2] suspended until BOND is filed. [Rule 71.11]
 CRIMINAL LAW REVIEWER

203

2012 UP LAW
BAR REVIEWER
REMEDIAL
Evidence LAW
REMEDIAL LAW TEAM 2012
BAR OPERATIONS COMMISSION 2012
Subject Head | Eden Mopia

EXECUTIVE COMMITTEE Evidence Subject Head |

Ramon Carlo Marcaida |Commissioner Arianne Cerezo
Raymond Velasco Mara Kriska Chen |Deputy Commissioners
Barbie Kaye Perez |Secretary Contributors | Gianna Maria
Carmen Cecilia Veneracion |Treasurer
Hazel Angeline Abenoja|Auditor Comsti Rose Andrea Milaor
Armando Mislang, Jr.
COMMITTEE HEADS
Eleanor Balaquiao Mark Xavier Oyales | Acads
Rafaella Carmela Reyes
Monique Morales Katleya Kate Belderol Kathleen Mae Tuason (D) Rachel
Elaine Tiu
Miranda (D) |Special Lectures
Patricia Madarang Marinella Felizmenio |Secretariat LAYOUT TEAM 2012
Victoria Caranay |Publicity and Promotions Layout Artists | Alyanna
Loraine Saguinsin Ma. Luz Baldueza |Marketing Apacible Noel Luciano RM
Benjamin Joseph Geronimo Jose Lacas |Logistics Meneses Jenin Velasquez
Angelo Bernard Ngo Annalee Toda|HR Mara Villegas Naomi
Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise Quimpo Leslie Octaviano
Graciello Timothy Reyes |Layout Yas Refran Cris Bernardino
Charmaine Sto. Domingo Katrina Maniquis |Mock Bar Layout Head| Graciello
Krizel Malabanan Karren de Chavez |Bar Candidates Welfare Timothy Reyes
Karina Kirstie Paola Ayco Ma. Ara Garcia |Events

OPERATIONS HEADS
Charles Icasiano Katrina Rivera |Hotel Operations
Marijo Alcala Marian Salanguit |Day-Operations
Jauhari Azis |Night-Operations
Vivienne Villanueva Charlaine Latorre |Food
Kris Francisco Rimban Elvin Salindo |Transpo
Paula Plaza |Linkages

UP LAW BAR OPERATIONS COMMISSION

 REMEDIAL LAW REVIEWER

204
Evidence D. Proof Versus Evidence
REMEDIAL LAW
Proof Evidence
Criminal Procedure I. General Principles NOT the evidence itself, The medium or means by
Civil Procedure II. Judicial Notice and Judicial but the probative effect which a fact is proved or
Evidence Admissions of evidence disproved
Special Proceedings III. Object (Real) Evidence
IV. Documentary Evidence E. Factum Probans Versus Factum
V. Testimonial Evidence
VI. Offer and Objection
Probandum
Factum Probans Factum Probandum
I. GENERAL PRINCIPLES Facts or material The proposition to be
evidencing the established
A. Concept of Evidence
proposition
B. Scope of the Rules of Evidence The evidentiary fact The fact in issue and to
C. Evidence in Civil Cases vs. Evidence in tending to prove the which the evidence is
Criminal Cases fact in issue directed
D. Proof Versus Evidence
E. Factum Probans Versus Factum Classification of evidence
Probandum
F. Admissibility of Evidence Object, documentary, and testimonial
G. Burden of Proof and Burden of Evidence
H. Presumptions Object Documentary Testimonial
I. Liberal Construction of the Rules of Addressed to Consist of Testimony or
Evidence the senses of writings or any deposition of a
J. Quantum of Evidence (Weight And the court. [Rule material witness
130, Sec. 1] containing
Sufficiency of Evidence)
letters, words,
numbers,
A. Concept of Evidence figures,
symbols or
The means, sanctioned by these rules, of other modes of
ascertaining in a judicial proceeding, the truth written
respecting a matter of fact [sec. 1, Rule 128] expressions
offered as
B. Scope of the Rules of Evidence proof of their
contents [Rule
GENERAL RULE: Principle of uniformity 130, sec. 2]
Rules of evidence shall be the same in all courts and
in all trials and hearings. [sec. 2, Rule 128] Direct and circumstantial evidence

EXCEPTIONS: If otherwise provided by: Direct Evidence Circumstantial

(1) Law (e.g., 1987 Constitution, statutes); Proves the fact in Indirectly proves a fact
(2) Rules of Court. [sec. 2, Rule 128] dispute without the aid in issue through an
of any inference or inference drawn from
presumption the evidence
C. Evidence in Civil Cases Versus established
Evidence in Criminal Cases
Positive and negative evidence
In Civil Cases In Criminal Cases
Preponderance of Proof beyond reasonable Positive Evidence Negative Evidence
evidence [sec. 1, doubt [sec. 2, Rule 133] Witness affirms that a Witness states he/she
Rule 133] fact did or did not did not see or know of
Offer of Offer of compromise by the occur the occurrence of a
compromise NOT accused may be received in fact (e.g., denial)
an admission of any evidence as an implied
liability [sec. 27, admission of guilt (except for
Rule 130] quasi-offenses or those
F. Admissibility of Evidence
allowed by law to be
compromised) [sec. 27, Rule Requisites for admissibility of evidence
130]
Presumption of Presumption of innocence a Evidence is admissible when it is
innocence does constitutional guarantee on (1) relevant to the issue AND
NOT apply the accused [sec. 14, Art. III]
 REMEDIAL LAW REVIEWER

(2) not excluded by law or the ROC. [Rule 128,

Sec. 3] Under the ROC, Rule 130 is the applicable rule
in determining the admissibility of evidence.
Relevance of evidence and collateral As distinguished from credibility of evidence 205
matters
Competence Credibility
Relevancy Eligibility of evidence Worthiness of belief;
Evidence must have such a relation to the fact in to be received as such believability
issue as to induce belief in its existence or non-
existence. [Sec. 4, Rule 128] Doctrines of admissibility

Collateral matters matters other than the fact in Multiple admissibility

issue which are offered as a basis for inference as to
the existence or non-existence of the facts in issue
General Rule: Evidence on collateral matters is NOT
allowed. [Sec. 4, Rule 128]
Where the evidence is relevant and competent for
two or more purposes, such evidence shall be
admitted for any or all the purposes for which it is
offered, provided it satisfies all the requisites of law
for its admissibility therefor.

Exception: When it tends in any reasonable degree Conditional admissibility

to establish the im/probability of fact in issue. [Sec.
4, Rule 128]
NOTE: What is prohibited by the Rules is not
evidence of all collateral matters, but evidence of
irrelevant collateral facts.
Where the evidence at the time of its offer appears
to be immaterial or irrelevant unless it is connected
with the other facts to be subsequently proved, such
evidence may be received, provided that the other
facts will be proved thereafter; otherwise, the
evidence already given shall be stricken out.

Competence Curative admissibility

Evidence not excluded by (i) law or (ii) the ROC. Where the court has admitted incompetent evidence
adduced by the adverse party, a party has a right to
Exclusionary rules of evidence by law are either introduce the same kind of evidence in his/her
constitutional or statutory. behalf.

Constitutional Statutory Direct and circumstantial evidence

Unreasonable searches Lack of documentary
and seizures; privacy of stamp tax to documents Direct Evidence Circumstantial
communication and required to have one Proves the fact in Indirectly proves a fact
correspondence. [secs. makes such document dispute without the aid in issue through an
2-3, Art. III] inadmissible as evidence of any inference or inference drawn from
in court until the requisite presumption the evidence established
stamp/s shall have been
affixed thereto and Positive and negative evidence
cancelled. [Sec. 201,
NIRC]
Positive Evidence Negative Evidence
Miranda Rights: right to Any communication
Witness affirms that a Witness states he/she
counsel, prohibition of obtained by a person, not
fact did or did not occur did not see or know of
torture, force, being authorized by all
the occurrence of a fact
violence, threat, the parties to any private
(e.g., denial)
intimidation or other communication, by
means which vitiate tapping any wire/cable or
the free will; using any other Competent and credible evidence
prohibition of secret device/arrangement to
detention places, secretly Competence Credibility
solitary, overhear/intercept/record Eligibility of evidence to Worthiness of belief;
incommunicado. [sec. such information by using be received as such believability
12, Art. III] any device, shall not be
admissible in evidence in
any judicial/quasi-
judicial/legislative/
administrative hearing or
investigation. [Secs. 1 and
4, R.A. 4200 (Wire-
Tapping Act)]
No person shall be Rules on Electronic
compelled to be a Evidence [sec. 1,Rule 9,]
witness against
himself. [Sec.17,Art.III]
 REMEDIAL LAW REVIEWER

G. Burden of Proof and Burden of The prosecution must not rely on the weakness of
the evidence of the defense. [Ubales v People
Evidence (2008); People v Hu (2008)]
206
Burden of Proof Burden of Evidence
Preponderance of evidence
Duty of a party to Duty of a party to go
present evidence on the forward with the
Applicable quantum of evidence in civil cases [sec.
facts in issue necessary evidence to overthrow
1, Rule 133]
to establish his/her any prima facie
claim or defense by the presumption against
Means that the evidence adduced by one side is, as a
amount of evidence him/her [Bautista v
whole, superior to or has greater weight than that of
required by law [Sec. 1, Sarmiento (1985)]
the other. [Habagat Grill v. DMC-Urban Property
Rule 131]
Developer, Inc.(2005); Bank of the Philippine Islands
Does not shift Shifts from party to v Reyes (2008)]
throughout the trial party depending upon
the exigencies of the In determining preponderance of evidence, the court
case in the course of the may consider:
trial (1) All the facts and circumstances of the case;
Generally determined by Generally determined by (2) The witnesses manner of testifying, their
the pleadings filed by the developments at the intelligence, their means and opportunity of
the party trial, or by the provisions knowing the facts to which they testify, the
of substantive or nature of the facts to which they testify, the
procedural law im/probability of their testimony;
(3) The witnesses interest or want of interest, and
H. Presumptions also their personal credibility so far as the same
may legitimately appear upon the trial;
1. Conclusive presumptions (4) Number of witnesses (although preponderance is
not necessarily equated with the number of
2. Disputable presumptions witnesses). [sec. 1, Rule 133]
Conclusive Disputable
Substantial evidence
Presumption becomes Satisfactory if
irrebuttable upon uncontradicted, but
Degree of evidence required in cases filed before
presentation of the may be contradicted
administrative or quasi-judicial bodies [sec. 5, Rule
evidence and overcome by other
133]
evidence [sec. 3, Rule
131]
The amount of relevant evidence which a reasonable
mind might accept as adequate to support a
I. Liberal Construction of the Rules of conclusion [sec. 5, Rule 133]
Evidence
Clear and convincing evidence
Like all other provisions under the ROC, rules of
evidence must be liberally construed. [sec. 6, Rule Standard of proof required in granting or denying
1] bail in extradition cases [Government of Hongkong
Special Administrative Region v Olalia, Jr. (2007)]
Rules on Electronic Evidence shall likewise be
construed liberally. [sec. 2, Rule 2, Rules on Intermediate in character lower than proof beyond
Electronic Evidence] reasonable doubt, but higher than preponderance of
evidence
J. Quantum of Evidence (Weight And
Sufficiency of Evidence)
II. JUDICIAL NOTICE AND
Proof beyond reasonable doubt JUDICIAL ADMISSIONS
Applicable quantum of evidence in criminal cases A. What Need Not be Proved
[sec. 2, Rule 133] B. Matters of Judicial Notice
C. Judicial Admissions
Only moral certainty is required that degree of D. Judicial Notice of Foreign Laws, Law of
proof which produces conviction in an unprejudiced Nations and Municipal Ordinance
mind. [sec. 2, Rule 133]

The burden is on the prosecution to prove guilt

A. What Need Not be Proved
beyond reasonable doubt, NOT on the accused to
prove his/her innocence. [Boac v People (2008)] (1) Facts of Judicial Notice
(2) Judicial Admissions
(3) Conclusive Presumptions

[NOTE: Discussed in detail in the succeeding
subsections.]
B. Matters of Judicial Notice
Mandatory (Without need of introduction
of evidence)
(1) Existence and territorial extent of states;
(2) Their political history, forms of government,
and symbols of nationality;
(3) Law of nations;
(4) Admiralty and maritime courts of the world and
their seals;
(5) Political constitution and history of the
Philippines;
(6) Official acts of the legislative, executive and
judicial departments of the Philippines;
(7) Laws of nature;
(8) Measure of time; and
(9) Geographical divisions. [Sec. 1, Rule 129]
Discretionary
(1) Matters of public knowledge;
(2) Matters capable of unquestionable
demonstration; and
(3) Matters ought to be known to judges because of
their judicial functions. [sec. 2, Rule 129]
Judicial notice is NOT judicial knowledge.
With Respect to Courts Own Acts and Records: A
court MAY take judicial notice of its own acts and
records in the same case. [Republic v Court of
Appeals (1997)]
With Respect to Records of Other Cases
General Rule: Courts CANNOT take judicial
notice of the contents or records of other cases
even if both cases may have been tried or are
pending before the same judge. [Prieto v.
Arroyo (1965)]
Exceptions:
(1) When there is no objection, with the
knowledge of the opposing party, the
contents of said other case are clearly
referred to and adopted or read into the
record of the latter; or
(2) When the original or part of the records of
the case is actually withdrawn from the
archives at the courts discretion upon the
request, or with the consent, of the parties,
and admitted as part of the record of the
pending case [Tabuena v. CA (1991)]
C. Judicial Admissions
Requisites
To be a judicial admission, the same:
(1) must be made by a party to the case;
(2) must be made in the course of the proceedings
in the same case; and
REMEDIAL LAW REVIEWER
(3) may be verbal or written. [sec. 4, Rule 129]
Effect of judicial admissions
207
(1) It does NOT require proof. [sec. 4, Rule 129]
(2) It is conclusive upon the party making it, and
hence, CANNOT be contradicted. [sec. 4, Rule
129]
An original complaint, after being amended, loses its
character as a judicial admission, which would have
required no proof. It becomes merely an extra-
judicial admission requiring a formal offer to be
admissible. [Torres v CA (1984)]
A party who judicially admits a fact cannot later
challenge that fact as judicial admissions are a
waiver of proof; production of evidence is dispensed
with. [Alfelor v Halasan (2006]
How judicial admissions may be
contradicted
As an exception to the general rule, judicial
admissions may be contradicted only by showing
that:
(1) It was made through palpable mistake;
(2) No such admission was made.
Conclusive presumptions
Instances of Conclusive Presumptions [Sec. 2,
Rule 131]
(1) Whenever a party has, by his own
declaration/act/omission, intentionally and
deliberately led another to believe a particular
thing is true and to act upon such belief, he
cannot, in any litigation arising out of such
declaration/act/omission, be permitted to
falsify it.
(2) The tenant is not permitted to deny the title of
his landlord at the time of the commencement
of the relation of landlord and tenant between
them.
As Distinguished from Disputable
Presumptions [Sec. 3, Rule 131]
(1) Person is innocent of a crime or wrong;
(2) Unlawful act is done with an unlawful intent;
(3) Person intends the ordinary consequences of his
voluntary act;
(4) Person takes ordinary care of his concerns;
(5) Evidence willfully suppressed would be adverse
if produced;
(6) Money paid by one to another was due to the
latter;
(7) Thing delivered by one to another belonged to
the latter;
(8) Obligation delivered up to the debtor has been
paid;
(9) Prior rents or installments had been paid when a
receipt for the later ones is produced;
(10) A person found in possession of a thing taken in
 REMEDIAL LAW REVIEWER
the doing of a recent wrongful act is the taker
and doer of the whole act; otherwise, that
208 things which a person possesses or exercises acts
of ownership over, are owned by him;
(11) Person in possession of an order on himself for
the payment of the money or the delivery of
anything has paid the money or delivered the
thing accordingly;
(12) Person acting in public office was regularly
appointed or elected to it;
(13) Official duty has been regularly performed;
(14) A court or judge acting as such, whether in the
Philippines or elsewhere, was acting in the
lawful exercise of jurisdiction;
(15) All the matters within an issue raised in a case
were laid before the court and passed upon by
it; all matters within an issue raised in a dispute
submitted for arbitration were laid before
arbitrators and passed upon by them;
(16) Private transactions have been fair and regular;
(17) Ordinary course of business has been followed;
(18) There was a sufficient consideration for a
contract;
(19) Negotiable instrument was given or indorsed for
a sufficient consideration;
(20) An indorsement of negotiable instrument was
made before the instrument was overdue and at
the place where the instrument is dated;
(21) A writing is truly dated;
(22) Letter duly directed and mailed was received in
the regular course of the mail;
(23) Presumptions concerning absence:
(a) Ordinary but continued absence of:
(i) 7 years, it being unknown WON the
absentee still lives, he is considered
dead for all purposes, except for those
of succession
(ii) 10 yearsthe absentee shall be
considered dead for the purpose of
opening his succession; but if he
disappeared after the age of 75 years,
an absence of 5 years shall be
sufficient to open his succession
(iii) 4 consecutive yearsthe spouse present
may contract a subsequent marriage if
s/he has a well-founded belief that the
absent spouse is already dead; but
where there is danger of death, an
absence of only 2 years shall be
sufficient for remarriage
(b) Qualified absence
(i) A person on board a vessel lost during a
sea voyage, or an aircraft which is
missing, who has not been heard of for
4 years since the loss of the vessel or
aircraft
(ii) A member of the armed forces who has
taken part in armed hostilities, and has
been missing for 4 years
(iii) A person who has been in danger of
death under other circumstances and
whose existence has not been known
for 4 years
(24) Acquiescence resulted from a belief that the
thing acquiesced in was conformable to the
law/fact;
(25) Things have happened according to the ordinary
course of nature and ordinary nature habits of
life;
(26) Persons acting as copartners have entered into a
contract of co-partnership;
(27) A man and woman deporting themselves as
husband and wife have entered into a lawful
contract of marriage;
(28) Property acquired by a man and a woman who
are capacitated to marry each other and who
live exclusively with each other as husband and
wife without the benefit of marriage or under a
void marriage, has been obtained by their joint
efforts, work or industry;
(29) In cases of cohabitation by a man and a woman
who are not capacitated to marry each other
and who have acquired property through their
actual joint contribution of money, property or
industry, such contributions and their
corresponding shares including joint deposits of
money and evidences of credit are equal;
(30) Presumptions governing children of women who
contracted another marriage within 300 days
after termination of her former marriage (in the
absence of proof to the contrary):
When Child
Presumption
was Born
Before 180 Considered to have been
days after the conceived during the former
solemnization marriage, provided it be born
of the within 300 days after the
subsequent termination of the former
marriage marriage
After 180 days Considered to have been
following the conceived during the subsequent
celebration of marriage, even though it be born
the subsequent within the 300 days after the
marriage termination of the former
marriage.
(31) A thing once proved to exist continues as long as
is usual with things of the nature;
(32) The law has been obeyed;
(33) A printed/published book, purporting to be
printed/published by public authority, was so
printed/published;
(34) A printed/published book, purporting to contain
reports of cases adjudged in tribunals of the
country where the book is published, contains
correct reports of such cases;
(35) A trustee or other person whose duty it was to
convey real property to a particular person has
actually conveyed it to him when such
presumption is necessary to perfect the title of
such person or his successor in interest;
(36) Presumptions regarding survivorship: (Applicable
for all purposes except succession)
(a) When 2 persons perish in the same
calamity,
(b) and it is not shown who died first,
(c) and there are no particular circumstances
from which it can be inferred,
(d) the survivorship is determined from the
probabilities resulting from the strength
and the age of the sexes:
 REMEDIAL LAW REVIEWER

Exception: If the charter of the concerned city

Person presumed to have provides for such judicial notice [City of Manila v.
Situation
survived Garcia (1967)]
Both < 15 y/o The older 209
Both > 60 y/o The younger
One < 15 y/o,
The one <15 III. OBJECT (REAL) EVIDENCE
the other > 60 y/o
Both > 15 and < 60 A. Nature of Object Evidence
The male B. Requisites for Admissibility
y/o, of different sexes
Both > 15 and <60 y/o, C. Categories of Object Evidence
The older
of the same sex D. Demonstrative Evidence
One < 15 or > 60 y/o, The one between those E. View of an Object or Scene
and the other between ages F. Chain of Custody in Relation to Section 21
those ages of the Comprehensive Dangerous Drugs
Act of 2002
(37) As between 2 or more persons called to succeed
each other: If there is a doubt as to which of
G. Rule on DNA Evidence (A.M. No. 06-11-5-
them died first, whoever alleges the death of SC)
one prior to the other, shall prove the same. In
the absence of proof, they shall be considered A. Nature of Object Evidence
to have died at the same time.
Those addressed to the senses of the court [sec. 1,
D. Judicial Notice of Foreign Rule 130]
Laws, Law of Nations and The right against self-incrimination CANNOT be
Municipal Ordinance invoked against object evidence.

Foreign Laws B. Requisites for Admissibility

General Rule: Courts cannot take judicial notice
of foreign laws. [Yao-Kee v. Sy-Gonzales (1988)]
Exceptions: The court may take judicial notice of
the foreign law:
(1) Under the Doctrine of Processual
Presumption: In the absence of proof, the
foreign law will be presumed to be the same
as the laws of the jurisdiction hearing the
case. [Northwest Orient Airlines v Court of
Appeals (1995)]
(2) Where the foreign law is within the actual
knowledge of the court such as when the law
is generally well-known, had been ruled upon
in previous cases before it and none of the
parties claim otherwise [PCIB v Escolin (1974)]
(3) When the foreign law is part of a published
treatise, periodical or pamphlet and the
writer is recognized in his/her profession or
calling as expert in the subject [sec. 46, Rule
130]
Law of Nations
The Philippines adopts the generally accepted
principles of international law as part of the law of
the land. [Sec. 2, Art. II, 1987 Constitution]
Relevant
General Rule: When an object is relevant to the fact
in issue, it may be exhibited to, examined or viewed
by the court. [Sec. 1, Rule 130]
Exceptions: Court may refuse exhibition of object
evidence and rely on testimonial evidence alone if:
(1) Exhibition is contrary to public policy, morals or
decency;
(2) It would result in delays, inconvenience,
unnecessary expenses, out of proportion to the
evidentiary value of such object; [People v.
Tavera]
(3) Evidence would be confusing or misleading.
[People v. Saavedra]
Competent
Evidence be Authenticated
To authenticate the object is to show that the
object is the very thing that is either the subject
matter of the lawsuit or the very one involved to
prove an issue in the case.

Being part of the law of the land, they are therefore
in the nature of local laws, and hence, subject to
mandatory judicial notice under sec. 1 of Rule 129.
Municipal Ordinances
General Rule: Courts are NOT mandated to take
judicial notice of municipal ordinances. [City of
Manila v. Garcia (1967)]
Authentication be Made by Competent Witness
To authenticate the object, the witness must have
the capacity to identify the object as the very thing
involved in the litigation.
A witness can testify to those facts which he/she
knows of his/her personal knowledge; that is, which
are derived from his/her own perception. [sec. 36,
Rule 130]
 REMEDIAL LAW REVIEWER
Formally Offered
210 The court shall consider NO evidence which has not
been formally offered. [sec. 34, Rule 132]
C. Categories of Object Evidence
The Thing Itself
Unique Objects
- Objects that have readily identifiable marks,
e.g., a caliber 45 pistol by virtue of its serial
number
Objects Made Unique
- Objects with no unique characteristic but are
made readily identifiable, e.g., a typical
kitchen knife with identifying marks placed on
it by the witness
Non-Unique Objects
- Objects with no identifying marks and cannot
be marked, e.g., narcotic substances
D. Demonstrative Evidence
Not the actual thing, rather it represents or
demonstrates the real thing, E.g., photographs,
motion pictures and recordings
Audio, photographic and video evidence of events,
acts or transactions shall be admissible provided it
shall be:
(1) shown, presented or displayed to the court, and
(2) identified, explained or authenticated
(a) by the person who made the recording, or
(b) by some other person competent to testify
on the accuracy thereof [sec. 1, Rule 11,
Rules on Electronic Evidence]
Ephemeral electronic communications
Refers to telephone conversations, text messages,
chatroom sessions, streaming audio, streaming
video, and other electronic forms of communication
the evidence of which is not recorded or retained.
[sec. 1(k), Rule 2, Rules on Electronic Evidence]
Shall be proven
(1) by the testimony of a person who was a party to
the same;
(2) by the testimony of a person who has personal
knowledge thereof; or
(3) in the absence or unavailability of such
witnesses, by other competent evidence [sec. 2,
Rule 11, Rules on Electronic Evidence]
When recorded, the communication ceases to be
ephemeral and shall be proven in the same manner
as proving audio, photographic and video evidence
[sec. 2, Rule 11, Rules on Electronic Evidence].
E. View of an Object or Scene
When an object is relevant to the fact in issue, it
may be viewed by the court. [Sec. 1, Rule 130]
F. Chain of Custody in Relation to
Section 21 of the
Comprehensive Dangerous
Drugs Act of 2002
Meaning of chain of custody
A method of authenticating evidence which requires
that the admission of an exhibit be preceded by
evidence sufficient to support a finding that the
matter in question is what the proponent claims it to
be [Lopez v People (2008), as cited in People v Dela
Cruz (2008) and People v Agulay (2008)]
In Relation to Drug Cases
The apprehending team having initial custody and
control of the drugs shall:
(1) physically inventory, and
(2) photograph the same,
(3) in the presence of
(a) accused or the person/s from whom the
drugs were seized, or his/her
representative or counsel
(b) representative from the media and the
Department of Justice
(c) any elected public official
(4) who shall be required to sign the copies of the
inventory and be given a copy thereof. [sec. 21,
Art. II, R.A. 9165 or the Comprehensive
Dangerous Drugs Act of 2002]
Non-compliance with sec. 21 of R.A. 9165,
particularly the making of the inventory and their
photographing of the drugs confiscated will not
render the drugs inadmissible in evidence. The issue
if there is non-compliance with the law is not
admissibility, but of weight evidentiary merit or
probative value. [People v Del Monte (2008)]
G. Rule on DNA Evidence (A.M. No.
06-11-5-SC)
Meaning of DNA
DNA evidence
The totality of the DNA profiles, results and other
genetic information directly generated from DNA
testing of biological samples. [Sec. 3c]
Application for DNA testing order
With prior court order
(1) The appropriate court may, at any time, either
(i) motu proprio or (ii) on application of any
person who has a legal interest in the matter in
litigation, order a DNA testing.
(2) Such order shall issue after due hearing and
notice to the parties upon a showing of the
following:
(a) A biological sample exists that is relevant to
the case;
 REMEDIAL LAW REVIEWER

(b) The biological sample: (i) was not (c) Compliance with scientifically valid
previously subjected to the type of DNA standards in conducting the tests
testing now requested; or (ii) was
previously subjected to DNA testing, but the (3) Forensic DNA laboratory 211
results may require confirmation for good (a) Accreditation by any reputable standards-
reasons; setting institution
(c) The DNA testing uses a scientifically valid (b) Qualification of the analyst who conducted
technique; the tests
(d) The DNA testing has the scientific potential (c) If not accredited, relevant experience of
to produce new information that is relevant the laboratory in forensic work and its
to the proper resolution of the case; and credibility
(e) The existence of other factors, if any,
which the court may consider as potentially (4) Reliability of the testing result [Sec. 7]
affecting the accuracy of integrity of the
DNA testing. [Sec. 4] Rules on evaluation of reliability of the
DNA testing Methodology
Factors that Determine the Reliability of the DNA
Testing Methodology
Without prior court order
(1) Falsifiability of the principles or methods used
This Rule shall not preclude a DNA testing, without
(2) Subject to peer review and publication of the
need of a prior court order, at the behest of any
principles or methods
party. [Sec. 4]
(3) General acceptance of the principles or methods
by the scientific community
Post-conviction DNA testing; remedy (4) Existence and maintenance of standards and
controls to ensure the correctness of data
How Obtained generated
(1) Without need of prior court order (5) Existence of an appropriate reference
(2) Available to the prosecution or any person population database
convicted by final and executory judgment (6) General degree of confidence attributed to
mathematical calculations used in comparing
Requisites: DNA profiles
(1) A biological sample exists (7) Significance and limitation of statistical
(2) Such sample is relevant to the case calculations used in comparing DNA profiles
(3) The testing would probably result in the reversal
or modification of the judgment of conviction.
[Sec. 6]
IV. DOCUMENTARY EVIDENCE
Remedy if Results Favorable to the Convict A. Meaning of Documentary Evidence
Convict or the prosecution may file a petition for a B. Requisites for Admissibility
writ of habeas corpus in the court of origin, CA or SC C. Best Evidence Rule
or any member of said courts. [Sec. 10] D. Rules on Electronic Evidence (A.M. No.
01-7-01- SC)
General Rule: If the court, after due hearing, finds
the petition meritorious, it shall reverse or modify E. Parol Evidence Rule
the judgment of conviction and order the release of F. Authentication and Proof of Documents
the convict. [Sec. 10]
A. Meaning of Documentary
Exception: If continued detention is justified for a
lawful cause. [Sec. 10]
Evidence
Consist of writings or any material containing
Assessment of probative value of DNA letters, words, numbers, figures, symbols or other
evidence and admissibility modes of written expressions offered as proof of
their contents [Rule 130, sec. 2]
Factors in Assessing the Probative Value of DNA
Evidence To be deemed documentary evidence, such writings
(1) Chain of custody or materials must be offered as proof of their
(a) How the biological samples were collected contents. If offered for some other purpose, they
(b) How they were handled constitute OBJECT EVIDENCE.
(c) Possibility of contamination
B. Requisites for Admissibility
(2) DNA testing methodology
(a) Procedure followed in analyzing the (1) Relevant
samples (2) Competent
(b) Advantages and disadvantages of the (a) Document be Authenticated
procedure
 REMEDIAL LAW REVIEWER
(b) Authenticated by Competent Witness
(3) Formally Offered in Evidence
212
C. Best Evidence Rule
Meaning of the rule
When the subject of inquiry is the contents of a
document, no evidence shall be admissible other
than the original document itself. [Rule 130, sec. 3]
When applicable (General Rule)
Only when the subject of inquiry is the contents of a
document [Rule 130, sec. 3]
The BER does not apply when the issue is only as to
WON such document was actually executed or in the
circumstances relevant to its execution. [People v
Tandoy (1990)]
Meaning of original
Original document
(1) One the contents of which are the subject of
inquiry
(2) All such copies of a executed at or about the
same time, and with identical contents
NOTE: Carbon copies are deemed duplicate
originals. [People v Tan (1959)]
(3) All such entries made and repeated in the
regular course of business, at/near the time of
the transaction [Rule 130, sec. 4]
Requisites for introduction of secondary
evidence (Exceptions to BER) [Rule 130,
sec. 3]
(1) When the original has been lost or destroyed, or
cannot be produced in court, without bad faith
on the offerors part
(2) When the original is in the custody or under the
control of the party against whom it is offered,
and the latter fails to produce it after
reasonable notice
(3) 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
(4) When the original is a public record in the
custody of a public officer or is recorded in a
public office
D. Rules on Electronic Evidence
(A.M. No. 01-7-01- SC)
Meaning of electronic evidence;
electronic data message
Electronic document
(1) Information or the representation of
information, data, figures, symbols or other
modes of written expression,
(2) described or however represented, by which a
right is established or an obligation
extinguished, or by which a fact may be proved
and affirmed,
(3) which is received, recorded, transmitted, stored
processed, retrieved or produced electronically.
(4) It includes digitally signed documents and any
print-out or output, readable by sight or other
means, which accurately reflects the electronic
data message or electronic document.
For purposes of these Rules, the term electronic
document may be used interchangeably with
electronic data message.
Electronic data message
Information generated, sent, received or stored by
electronic, optical or similar means
Probative value of electronic documents
or evidentiary weight; method of proof
Factors in assessing evidentiary weight of
electronic evidence (Rule 7, 1)
In assessing the evidentiary weight of an electronic
document, the following factors may be considered:
(1) The reliability of the manner or method in which
it was generated, stored or communicated,
including but not limited to
(a) input and output procedures,
(b) controls, tests and checks for accuracy and
reliability of the electronic data message or
document,
(c) in the light of all the circumstances as well
as any relevant agreement;
(2) The reliability of the manner in which its
originator was identified;
(3) The integrity of the information and
communication system in which it is recorded or
stored, including but not limited to the
hardware and computer programs or software
used as well as programming errors;
(a) Whether the information and
communication system or other similar
device was operated in a manner that did
not affect the integrity of the electronic
document, and there are no other
reasonable grounds to doubt the integrity of
the information and communication system
[Rule 7, sec. 2];
(b) Whether the electronic document was
recorded or stored by a party to the
proceedings with interest adverse to that of
the party using it [Rule 7, sec. 2]; or
(c) Whether the electronic document was
recorded or stored in the usual and ordinary
course of business by a person who is not a
party to the proceedings and who did not
act under the control of the party using it
[Rule 7, sec. 2]
 REMEDIAL LAW REVIEWER

(4) The familiarity of the witness or the person who procedures or devices as may be authorized by
made the entry with the communication and the Supreme Court or by law for authentication
information system; of electronic documents were applied to the
(5) The nature and quality of the information which document; or 213
went into the communication and information (3) By other evidence showing its integrity and
system upon which the electronic data message reliability to the satisfaction of the judge. [Rule
or electronic document was based; or 5, sec. 2]
(6) Other factors which the court may consider as
affecting the accuracy or integrity of the Of Electronic Signatures [Rule 6, sec. 2]
electronic document or electronic data (1) By evidence that a method or process was
message. utilized to establish a digital signature and
verify the same;
In any dispute involving the integrity of the (2) By any other means provided by law; or
information and communication system in which an (3) By any other means satisfactory to the judge
electronic document or electronic data message is
recorded or stored, the court may consider, among Electronic documents and the hearsay
others, the following factors: rule
(1) Whether the information and communication
system or other similar device was operated in a
Business Records as Exception to the Hearsay Rule
manner that did not affect the integrity of the
What Constitute Business Records: Records of any
electronic document, and there are no other
business, institution, association, profession,
reasonable grounds to doubt the integrity of the
occupation, and calling of every kind, whether or
information and communication system;
not conducted for profit, or for legitimate purposes
(2) Whether the electronic document was recorded
[Rule 2, sec. 1b]
or stored by a party to the proceedings with
interest adverse to that of the party using it; or
Requisites
(3) Whether the electronic document was recorded
or stored in the usual and ordinary course of
(1) Made by electronic, optical or other similar
business by a person who is not a party to the
means
proceedings and who did not act under the
(2) Made at or near the time of or from transmission
control of the party using it.
or supply of information
(3) Made by a person with knowledge thereof
Text messages have been classified as ephemeral
(4) Kept in the regular course or conduct of a
electronic communication under Section 1(k), Rule
business activity,
2 of the Rules on Electronic Evidence, and shall be
(5) Such was the regular practice to make the
proven by the testimony of a person who was a party
memorandum, report, record, or data
to the same or has personal knowledge thereof.
compilation by electronic, optical or similar
[Vidallon-Magtolis v. Salud (2005)]
means
(6) Abovementioned facts shown by the testimony
Method of Proof
of the custodian or other qualified witnesses
(1) Affidavit of Evidence [Rule 9, sec. 1]
[Rule 8, sec. 1]
(a) Must state facts (i) of direct personal
knowledge, or (ii) based on authentic
Exception to the Exception
records
(b) Must affirmatively show the competence of
(1) Untrustworthiness of the source of information
the affiant to testify on the matters
(2) Untrustworthiness of the method of the
contained in the affidavit
preparation, transmission or storage thereof
(2) Cross-Examination of Deponent [Rule 9, sec. 2]
(3) Untrustworthiness of the circumstances of the
(a) Affiant shall affirm the contents of the
preparation, transmission or storage thereof
affidavit in open court.
[Rule 8, sec. 2]
(b) Affiant may be cross-examined as a matter
of right by the adverse party.
Audio, photographic, video and
Authentication of electronic documents ephemeral evidence
and electronic signatures (R5, ss1-3; R11, If the foregoing communications are recorded or
ss1-2, REE) embodied in an electronic document, then the
provisions of Rule 5 (Authentication of Electronic
Of Electronic Documents Documents) shall apply.
Burden of Proving Authenticity: The person seeking
to introduce the electronic document [Rule 5, sec. E. Parol Evidence Rule
1]
Meaning of parol evidence
Manner of Authentication: Any evidence aliunde, whether oral or written,
(1) By evidence that it had been digitally signed by which is intended or tends to vary or contradict a
the person purported to have signed the same;
(2) By evidence that other appropriate security
 REMEDIAL LAW REVIEWER

complete and enforceable agreement embodied in a

document.
214 F. Authentication and Proof of
Application of the parol evidence rule Documents
(General Rule)
Meaning of authentication
When the terms of an agreement (including wills)
have been reduced to writing, it is considered as
The preliminary step in showing the
containing all the terms agreed upon and there can
admissibility of evidence
be, between the parties and their successors in
Private and Public Documents
interest, no evidence of such terms other than the
contents of the written agreement. [Rule 130, sec.
Private Documents Public Documents
9]
When offered as Admissible without
authentic, due execution further proof of its due
It does not apply when 3rd parties are involved.
and authenticity must be execution and
[Lechugas v. CA (1986)]
proved authenticity
When parol evidence can be introduced
Public and private documents
(1) When a party presents parol evidence to modify,
explain or add to the terms of a written When a private writing requires
agreement authentication; proof of a private writing
(2) Ground/s for presenting parol evidence is put in
issue in the pleading PRIVATE DOCUMENTS

Grounds for presenting parol evidence: When offered as authentic

General Rule: Authentication necessary
(1) An intrinsic ambiguity, mistake or imperfection
in the written agreement How to Prove Due Execution and Authenticity
(2) Failure of the written agreement to express the (1) By anyone who saw the document executed or
true intent and agreement of the parties written; OR
thereto (2) By evidence of the genuineness of the signature
(3) Validity of the written agreement or handwriting of the maker [Rule 132, sec. 20]
(4) Existence of other terms agreed to by the
parties or their successors in interest after the When evidence of authenticity of a
execution of the written agreement.
private writing is not required (ancient
Distinctions between the best evidence documents)
rule and parol evidence rule
Exception
(1) Ancient Documents authentication NOT
Best Evidence Rule Parol Evidence Rule necessary provided that private document be:
Contemplates the Presupposes that the (a) More than 30 years old;
situation wherein the original document is (b) Produced from the custody in which it
original writing is not available in court would naturally be found if genuine; and
available and/or there is (c) Unblemished by any alterations or
a dispute as to whether circumstances of suspicion. [Rule 132, sec.
said writing is the 21]
original
Prohibits the Prohibits the varying of (2) That which it is claimed to be: Authentication
introduction of the terms of a written not necessary [Rule 132, sec. 20]
substitutionary evidence agreement
in lieu of the original
document regardless of
How to prove genuineness of handwriting
WON it varies the
(1) By any witness who believes it to be the
contents of the original
handwriting of such person because:
Applies to all kinds of Applies only to
(a) he has seen the person write;
documents documents contractual
(b) he has seen writing purporting to be his
in nature (Exception:
upon which the witness has acted or been
wills)
charged, and has thus acquired knowledge
Can be invoked by any Can be invoked only
of the handwriting of such person [Rule
party to an action when the controversy is
132, sec. 22]
regardless of WON such between the parties to
(2) A comparison by the witness or the court of the
party participated in the the written agreement,
questioned handwriting, and admitted genuine
writing involved their privies or any party
specimens thereof or proved to be genuine to
directly affected thereby
the satisfaction of the judge [Rule 132, sec. 22]

(3) Expert evidence [Rule 130, sec. 49]
Public documents as evidence; proof of
official record
PUBLIC DOCUMENTS
Kinds of public documents
(1) Written official acts or records of the official
acts of the sovereign authority, official bodies
and tribunals, and public officers, whether of
the Philippines or of a foreign country
(2) Public records, kept in the Philippines, of
private documents required by law to be
entered therein
(3) Notarial documents (except last wills and
testaments)
Proof of public documents
Records of Official Acts [Rule 132, sec. 24]
(1) By an official publication thereof; or
(2) By an attested copy of the document
Attestation of a copy [Rule 132, sec. 25]
Attestation of Copy [Rule 132, sec. 25]
(1) Must be made by the officer having the legal
custody of the record, or by his deputy
(2) Must state that the copy is a correct copy of the
original or a specific part thereof, as the case
may be
(3) Must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of
a court having a seal, under the seal of such
court
If the record is not kept in the Philippines, attested
copy must be accompanied with a certificate, which
(1) May be made by a secretary of the
embassy/legation, consul-general, consul, vice-
consul, consular agent or any officer in the
foreign service of the Philippines stationed in
the foreign country in which the record is kept;
(2) Must state that such officer has the custody; and
(3) Must be authenticated by the seal of his office.
Public record of a private document
Public Records of Private Documents [Rule 132, sec.
27]
(1) By the original record; or
(2) By a copy thereof, attested by the legal
custodian of the record, with an appropriate
certificate that such officer has the custody.
[Rule 132, sec. 27]
Note: Please refer to Attestation of Copy under
the immediately preceding subsection.
Proof of lack of record [Rule 132, sec.
28]
(1) Written statement
(a) Signed by an officer having the custody of
an official record or by his deputy
(b) Must state that after diligent search, no
record or entry of a specified tenor is found
REMEDIAL LAW REVIEWER
to exist in the records of his office
(2) Certificate
(a) Accompanying the written statement
(b) Must state that that such officer has the 215
custody
How a judicial record is impeached
What to Establish to Impeach Judicial Record [Rule
132, sec. 29]
(1) Want of jurisdiction in the court or judicial
officer;
(2) Collusion between the parties; OR
(3) Fraud in the party offering the record, with
respect to the proceedings
Proof of notarial documents
Notarial Documents (except last wills and
testaments) [Rule 132, sec. 30]
(1) May be presented in evidence without further
proof, the certificate of acknowledgment being
prima facie evidence of the execution of the
instrument or document involved.
(2) Such notarized documents are evidence, even
against 3rd persons, of the facts which gave rise
to their execution and of the date of execution.
[Rule 132, sec. 23]
How to explain alterations in a document
Alterations in a Document [Rule 132, sec. 31]
Requisites
(1) Document is being presented as genuine;
(2) Document has been altered and appears to have
been altered;
(3) Alteration was made after execution of the
document; and
(4) Alteration is in a part material to the question in
dispute
What to Show about the Alteration
(1) Was made by another, without his concurrence;
(2) Was made with the consent of the parties
affected by it;
(3) Was otherwise properly or innocently made; or
(4) Did not change the meaning or language of the
instrument.
Whose Burden of Proof
Party producing the document must account for the
alteration. Failure to do so would result in the
inadmissibility of evidence.
Documentary evidence in an unofficial
language [Rule 132, sec. 33]
NOT admissible unless accompanied by a translation
into English or Filipino.
Parties or their attorneys are directed to have the
translation prepared before trial.
 REMEDIAL LAW REVIEWER

Requisites
(1) Mental maturity of the witness (child) must
216 render him incapable of perceiving the facts
respecting which he is examined.
V. TESTIMONIAL EVIDENCE (2) He is incapable of relating his perception
truthfully.
A. Qualifications of a Witness
B. Competency versus Credibility of a Incapacity must occur at the time the witness
Witness perceives the event.
C. Disqualifications of Witnesses
D. Examination of a Witness 2. Disqualification by reason of
E. Admissions and Confessions marriage
F. Hearsay Rule
G. Opinion Rule Also known as Marital Disqualification Rule or
H. Character Evidence Spousal Immunity
I. Rule on Examination of a Child Witness
(A.M. No. 004-07-SC) Requisites
(1) Marriage is valid and existing as of the time of
the offer of testimony.
I. With respect to the witness (2) Other spouse is a party to the action.

A. Qualifications of a Witness Exceptions [Rule 130, sec. 22]: Spouse MAY testify
[Rule 130, sec. 20] for or against the other even without the consent of
All persons who can perceive, and, perceiving, can the latter:
make their known perception to others, may be (1) In a civil case by one against the other
witnesses. (2) In a criminal case for a crime committed by one
against the other or the latter's direct
Religious/political belief, interest in the outcome of descendants/ascendants.
the case, or conviction of a crime unless otherwise
provided by law, shall not be ground for Rationale [Alvarez v. Ramirez (2005)]
disqualification. (1) There is identity of interests between husband
and wife;
(2) If one were to testify for or against the other,
B. Competency versus Credibility there is a consequent danger of perjury;
of a Witness (3) Policy of the law is to guard the security and
confidence of private life, and to prevent
Competency Credibility domestic disunion and unhappiness; and
A matter of law and of Has nothing to do with (4) Where there is want of domestic tranquility,
rules the law or rules there is danger of punishing one spouse through
Refers to the basic Refers to the weight and the hostile testimony of the other.
qualifications of a trustworthiness or
witness as his capacity reliability of the 3. Disqualification by reason of death
to perceive and his testimony or insanity of adverse party
capacity to communicate
his perception to others Also known as Dead Mans Statute or Survivorship
Rule
C. Disqualifications of Witnesses
Requisites [Rule 130, Sec. 23]
1. Disqualification by reason of (1) Defendant is the executor or administrator or a
mental capacity or immaturity representative of the deceased or of the person
of unsound mind;
By reason of mental incapacity [Rule 130, sec. 21a] (2) Suit is upon a claim by the plaintiff against the
Requisites estate of said deceased or person of unsound
(1) Person must be incapable of intelligently mind;
making known his perception to others (3) Witness is the plaintiff, or an assignor of that
(2) His incapability must exist at the time of his party, or a person in whose behalf the case is
production for examination prosecuted; and
(4) Subject of the testimony is as to any matter of
A mental retardate is not for this reason alone fact occurring before the death of such
disqualified from being a witness. Acceptance of his deceased person or before such person became
testimony depends on its nature and credibility or, of unsound mind.
otherwise put, the quality of his perceptions and the
manner he can make them known to the court. Exceptions
[People v. Salomon (1993)] (1) The survivor may testify against the estate of
the deceased where the latter was guilty of
By reason of immaturity [Rule 130, sec. 21b] fraud which fraud was established by evidence
 REMEDIAL LAW REVIEWER

other than the testimony of the survivor. [Ong
Chua v. Carr (1929)]
(2) He may also testify where he was the one sued
by the decedents estate since the action then is
not against the estate. [Tongco v. Vianzon
(1927)]
(3) He may likewise testify where the estate had
filed a counterclaim against him or where the
estate cross-examined him as to matters
occurring during the lifetime of the deceased.
[Goi v. CA (1986)]
Rationale: To discourage perjury and protect the
estate from fictitious claims
(3) The communication or advice must have been
given either in the course of the professional
employment or with a view to professional
employment. 217
NOTE: Attorneys secretary, stenographer, or clerk
are also covered by the rule and cannot be examined
concerning any fact the knowledge of which has
been acquired in such capacity without the consent
of the client AND their employer.
General Rule: The attorney-client privilege may not
be invoked to refuse to divulge the identity of the
client.

4. Disqualification by reason of Exceptions [Regala v. Sandiganbayan (1996)]:

(1) When a strong probability exists that revealing
privileged communications the name would implicate that person in the
very same activity for which he sought the
Husband and wife (Marital privilege) [Sec. lawyers advice;
24(a), Rule 130] (2) When disclosure would open the client to
liability;
Requisites (3) When the name would furnish the only link that
(1) There must be a valid marriage between the would form the chain of testimony necessary to
husband and wife; convict.
(2) There is a communication received in
confidence by one from the other; and Physician and patient [Sec. 24(c), Rule 130]
(3) The confidential communication was received
during the marriage. markRequisites
(1) Physician is authorized to practice medicine,
NOTE: A widow of a victim allegedly murdered may surgery or obstetrics;
testify as to her husbands dying declaration as to (2) Information was acquired or the advice or
how he died the since the same was not intended to treatment was given by him in his professional
be confidential. [US v. Antipolo (1918)] capacity for the purpose of treating and curing
the patient;
Exceptions (3) Information, advice or treatment, if revealed,
(1) In a civil case by one against the other; would blacken the reputation of the patient;
(2) In a criminal case for a crime committed by one and
against the other or the latter's direct (4) Privilege is invoked in a civil case, whether or
descendants/ascendants. not the patient is a party thereto.
Rationale: To promote marital harmony. Privilege does not apply when the doctor is
presented as an expert witness and only hypothetical
In Contrast to Marital Disqualification problems were presented to him. [Lim v. CA (1992)]
Marital Disqualification Marital Privilege Priest and penitent [Sec. 24(d), Rule 130]
One spouse should be a Neither of the spouses
party to the case; needs to be a party; Requisites
Applies only if the Does not cease even (1) Confession was made to, or advice given by him
marriage is existing at after the marriage is pursuant to a religious duty enjoined in the
the time the testimony is dissolved; and course of discipline of the sect or denomination
offered; and of the priest.
Constitutes a total Prohibition is limited to (2) Confession or advice was confidential and
prohibition on any testimony on penitential in character.
testimony for or against confidential
the spouse of the communications Public officers [Sec. 24(e), Rule 130]
witness. between spouses.
Requisites
Attorney and client [Sec. 24(b), Rule 130] (1) Communication was made to the public officer
in official confidence; and
Requisites (2) Public interest would suffer by the disclosure of
(1) There must be a communication made by the such communication.
client to the attorney or an advice given by the
attorney to his client; Elements of presidential communications
(2) The communication must have been given in privilege
confidence; and
 REMEDIAL LAW REVIEWER

(1) Must relate to a quintessential and non-
delegable presidential power;
218 (2) Must be authored or solicited and received by
a close advisor of the President or the President
himself; and
(3) Privilege may be overcome by a showing of
adequate need such that the information sought
likely contains important evidence and by the
unavailability of the information elsewhere.
[Neri v. Senate (2008)]
DIRECT EXAMINATION [Sec. 5, Rule 132]
Who conducts: Proponent
Why conducted: Examination-in-chief of a
witness by the party presenting him, on the facts
relevant to the issue.
CROSS EXAMINATION [sec. 6, Rule 132]

5. Parental and filial privilege rule Who conducts: Opponent

[Sec. 25, Rule 130]
General Rule: A person cannot be compelled to
testify against his parents, other direct ascendants
(parental privilege), children or other direct
descendants (filial privilege).
Exception [Art. 215, Family Code]: Descendant may
be compelled to give his testimony:
(1) In a criminal case; and
(2) When such testimony is indispensable in a crime
committed against said descendant; or
(3) In a crime committed by one parent against the
other.
D. Examination of a Witness
When conducted: Upon the termination of the
direct examination
Why conducted: To test the witnesss accuracy
and truthfulness, and freedom from interest or
bias, or the reverse, and to elicit all important
facts bearing upon the issue
What matters are covered: Any matters stated in
the direct examination, or connected therewith
RE-DIRECT EXAMINATION [Sec. 7, Rule 132]
Who conducts: Proponent

Rights and obligations of a witness [Sec. When conducted: After cross-examination of the
3, Rule 132] witness

Obligation of a witness: To answer questions, Why conducted: To explain or supplement his

although his answer may tend to establish a claim answers given during the cross-examination
against him.
What matters are covered: Those stated in the
Rights of a witness cross-examination, and matters not dealt with, if
(1) To be protected from irrelevant, improper, or allowed by the Court
insulting questions, and from harsh or insulting
demeanor
(2) Not to be detained longer than the interests of RE-CROSS EXAMINATION [Sec. 8, Rule 132]
justice require
(3) Not to be examined except only as to matters Who conducts: Opponent
pertinent to the issue
(4) Not to give an answer which will tend to subject When conducted: Upon the conclusion of the re-
him to a penalty for an offense unless otherwise direct examination
provided by law, e.g., Sec. 8, RA 1379 and other
immunity statutes which grant the witness What matters are covered: Those stated in his
immunity from criminal prosecution for offenses re-direct examination, and also on such other
admitted matters as may be allowed by the court in its
(5) Not to give an answer which will tend to discretion.
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.

Order in the examination of an individual

witness [Sec. 4, Rule 132]
(1) Direct examination
(2) Cross examination
(3) Re-direct examination
(4) Re-cross examination

RECALLING THE WITNESS [Sec. 9, Rule 132]
Who conducts: either party
When conducted: After both sides have
concluded the examination of a witness, and
with leave of court
Why conducted:
(1) Particularly identified material points were
not covered in cross-examination
(2) Particularly described vital documents were
not presented to the witness
(3) Cross-examination was conducted in so inept
a manner as to result in a virtual absence
thereof [People vs. Rivera (1991)]
Leading and misleading questions [Sec.
10, Rule 132]
Questions not allowed
(1) Misleading Questions [sec. 10, Rule 132]
Questions that assume as true a fact not yet
testified to by the witness, or contrary to that
which he has previously stated.
NEVER allowed
(2) Leading Questions
Questions that suggest to the witness the
answer, which the examining party desires.
General Rule: Leading questions are not allowed.
Exceptions:
(1) On cross examination;
(2) On preliminary matters;
(3) When there is a difficulty is getting direct and
intelligible answers from a witness who is
ignorant, or a child of tender years, or is of
feeble mind, or a deaf-mute;
(4) On an unwilling or hostile witness;
A witness may be considered hostile only when
declared by the court, upon adequate showing
of his: [sec. 12, Rule 132]
(a) Adverse interest;
(b) Unjustified reluctance to testify;
(c) His having misled the party into calling him
to the witness stand.
(5) On a witness who is an adverse party or an
officer/director or managing agent of a
public/private corporation or of a As Distinguished from Judicial Admissions
partnership/association which is an adverse
party.
Methods of impeachment of adverse
partys witness [sec. 11, Rule 132]
(1) By contradictory evidence;
(2) By evidence that his general reputation for
truth, honesty or integrity is bad;
(3) By evidence that he has made at other times
statements inconsistent with his present
testimony.
REMEDIAL LAW REVIEWER
How the witness is impeached by
evidence of inconsistent statements 219
(laying the predicate)
Elements:
(1) The alleged statements must be related to the
witness including the circumstances of the times
and places and the persons present. If the
statements are in writing they must be shown to
him.
(2) Witness may be asked whether he made such
statements and also to explain them if he
admits making those statements.
Purpose: To allow the witness to admit or deny the
prior statement and afford him an opportunity to
explain the same.
Evidence of the good character of a
witness [Sec. 14, Rule 132]
Evidence of the witness good character is not
admissible until such character has been impeached.
II. With respect to the testimony
E. Admissions and Confessions
1. Admissions of a Party
By Act, Declaration or Omission
Requisites for Admissibility
(1) Made by a party;
(2) Outside of court;
(3) Relates to a relevant fact; and
(4) Is against admitters interest. [sec. 26, Rule
130]
Effect
(1) May be given in evidence against the admitter
[sec. 26, Rule 130]
(2) Flight from justice is an admission by conduct
and circumstantial evidence of consciousness of
guilt. [US v. Sarikala (1918)]
Rationale
No man would make any declaration against himself
unless it is true. [Republic v. Bautista (2007)]
Judicial Extrajudicial
Made in connection with Any other admission
a judicial proceeding in
which it is offered
Rule 129, sec. 4 Rule 130, secs. 26 and 32
By Silence
Requisites for Admissibility:
(1) An act or declaration is made in the presence
and within the hearing or observation of a party;
 REMEDIAL LAW REVIEWER

(2) Party does or says nothing;
(3) Act or declaration is such as naturally to call for
220 action or comment if not true; and
(4) It was proper and possible for the party to do
so. [sec. 32, Rule 130]
(b) Act or declaration must have been made
during the existence of the partnership or
agency; and
(c) Partnership or agency must be shown by
evidence other than the act or declaration.

Silence of a person under investigation for the
commission of an offense should not be construed as
an admission by silence for constitutional reasons.
[Sec. 2(b), R.A. 7438]
2. Confessions
A declaration of an accused acknowledging his guilt
of the offense charged, or of any offense necessarily
included therein [sec. 33, Rule 130]
If the accused admits having committed the act in
question but alleges a justification therefore, the
same is merely an admission. [US v. Tolosa]
Any confession, including a re-enactment, without
admonition of the right to silence and to counsel,
and without counsel chosen by the accused is
inadmissible in evidence. [People v. Yip Wai Ming
(1996)]
General Rule: An extra-judicial confession made by
an accused is not a sufficient ground for conviction.
[sec. 3, Rule 133]
Exception: When corroborated by evidence of the
actual commission of a particular crime (corpus
delicti). [sec. 3, Rule 133]
(2) Co-Conspirators Admission [sec. 30, Rule 130]
Requisites
(a) Act or declaration must relate to the
conspiracy;
(b) It must have been made during the
existence of the conspiracy; and
(c) Conspiracy must be shown by evidence
other than such act/declaration.
Existence of the conspiracy may be inferred
from the acts of the accused. [People v. Belen
(1963)]
Rule 130, sec. 30 applies only to extra-judicial
statements, not to testimony given on the
stand. [People v. Serrano (1959)]
(3) Admission by Privies [sec. 31, Rule 130]
Requisites:
(a) There must be an act, declaration or an
omission by a predecessor-in-interest;
(b) Act, declaration or omission must have
occurred while he was holding (not after)
the title to the property; and
(c) Act, declaration or omission must be in
relation to the property.

As Distinguished from Admissions of a Party

With Respect to Similar Acts
Admission Confession
Merely a statement of Acknowledgment of guilt General Rule: Evidence that one did or did not do a
fact or liability certain thing at one time is NOT ADMISSIBLE to prove
Maybe express or tacit Must be express that he did or did not do the same or similar thing at
Maybe made by 3rd Can be made only by the another time. (2nd Branch) [sec. 34, Rule 130]
parties, and in certain party himself, and
cases, admissible against admissible against his Exceptions: Said evidence may be received to
a party co-accused in some prove:
instances (1) specific intent or knowledge;
(2) identity;
(3) plan, system, or scheme;
3. Res inter alios acta rule (4) habit;
(5) custom, usage and the like.
With Respect to Admissions by a Third-
Party Admission by a party
General Rule: INADMISSIBLE Please see discussion in previous section (previous
The rights of a party cannot be prejudiced by an act, page)
declaration or omission of another. (1st Branch) [sec.
28, Rule 130] Admission by a third party
Exceptions: Admission by a co-partner or agent
(1) Partners or Agents Admission [sec. 29, Rule Admission by a conspirator
130] Admission by privies
Requisites: Please see discussion under the subsection Res inter
(a) Act or declaration must be within the scope alios acta rule
of the authority of the partner or agent;
 REMEDIAL LAW REVIEWER

Admission by silence
Requisites for Admissibility
Please see discussion in previous section (previous (1) Declaration is one made by a dying person;
page) (2) Declaration was made under the consciousness 221
of an impending death;
Confessions (3) Declaration refers to cause and surrounding
circumstances of such death;
(4) Declaration is offered in any case wherein his
Please see discussion in previous section (previous
death is the subject of inquiry;
page)
(5) Declarant is competent as a witness had he
survived [Geraldo v People (2008)]; and
Similar acts as evidence (6) Declarant should have died. [People v.
Macandog (2001)]
Please see discussion under the subsection Res inter
alios acta rule Rationale for Admissibility: As a general rule, when
a person is at the point of death, every motive to
F. Hearsay Rule falsehood is silenced. [People v Bacunawa (2001)]

Meaning of hearsay The foreboding may be gleaned from surrounding

circumstances, such as the nature of the declarants
(1) Out-of-court statement injury and conduct that would justify a conclusion
(2) Offered by the witness in court to prove the that there was consciousness of impending death.
truth of the matters asserted by the statement [People v. Latayada (2004)]

Any evidence, whether oral or documentary, if its 2) Declaration against interest

probative value is not based on personal knowledge
of witness but on knowledge of some other person
not on witness stand [Regalado 11th ed.]
Doctrine of Independently Relevant Statements
Statements or writings attributed to a person not on
the witness stand, which are being offered not to
prove the truth of the facts stated therein, but only
to prove that such were actually made.
These are NOT covered by the hearsay rule [People
v. Cusi (1965)]
Reason for exclusion of hearsay evidence
Lack of opportunity to cross-examine the outside
declarant
Requisites for Admissibility
(1) Declarant is dead or unable to testify;
(2) Declaration relates to a fact against the interest
of the declarant;
(3) At the time he made said declaration, declarant
was aware that the same was contrary to his
interest; and
(4) Declarant had no motive to falsify and believed
such declaration to be true [sec. 38, Rule 130;
Ong v. Court of Appeals (1980)]
Inability to testify means that the person is dead,
mentally incapacitated or physically incompetent.
Mere absence from the jurisdiction does not make
him ipso facto unavailable. [Fuentes v. CA (1996)]

GENERAL RULE ON HEARSAY As Distinguished from Admissions

A witness can testify only as to those facts which he
knows of his personal knowledge, or those derived Declaration against
Admission
from his own perception. [Rule 130, sec. 36] Interest
Admitter is a party Declarant is neither a
The hearsay rule is not limited to oral testimony or himself, or in privity party nor in privity with
statements; it applies to written, as well as oral with such party; a party;
statements. [Consunji vs. CA (2001)] Admissible whether or Admissible only when
not admitter is available declarant is unavailable
If a party does not object to hearsay evidence, the as a witness as a witness;
same is admissible, as a party can waive his right to Can be made any time, Must have been made
cross-examine [People vs Ola (1987)] even during trial; ante litem motam;
Admissible only against Admissible even against
Repeated failure to cross-examine is an implied the admitter; and 3rd persons; and
waiver [Savory Luncheonette vs Lakas ng Admissible NOT as an Admissible as an
Manggagawang Pilipino (1975)] exception to any rule exception to the hearsay
rule
Exceptions to the hearsay rule (Asked
7x) 3) Act or declaration about pedigree

1) Dying declaration Requisites for Admissibility

(1) Declarant is dead or unable to testify;
(2) Declarant must be related by birth or marriage
Also known as antemortem statement or
to the person whose pedigree is in issue;
statement in articulo mortis [Sec. 37, Rule 130]
 REMEDIAL LAW REVIEWER
(3) Declaration was made before the controversy;
and
222 (4) Relationship between the declarant and the
person whose pedigree is in question must be
shown by evidence other than such declaration.
[sec. 39, Rule 130]
Meaning of Pedigree
(1) Relationship;
(2) Family genealogy;
(3) Birth;
(4) Marriage;
(5) Death;
(6) Dates when these facts occurred;
(7) Places where these facts occurred;
(8) Names of relatives; and
(9) Facts of family history intimately connected
with pedigree. [sec. 39, Rule 130]
4) Family reputation or tradition regarding
pedigree
Requisites for Admissibility:
(1) Witness must be a member, by consanguinity or
affinity, of the same family as the subject; and
(2) Such reputation or tradition must have existed
in that family ante litem motam. [sec. 40, Rule
130]
Other Admissible Evidence
(1) Entries in family bibles or other family books;
(2) Charts;
(3) Engravings on rings;
(4) Family portraits and the like [sec. 40, Rule 130]
This enumeration, by ejusdem generis, is limited to
"family possessions," or those articles which
represent, in effect, a family's joint statement of its
belief as to the pedigree of a person. [Jison v. CA
(1998)]
A persons statement as to his date of birth and age,
as he learned of these from his parents or relatives,
is an ante litem motam declaration of a family
tradition. [Gravador v. Mamigo (1967)]
5) Common reputation
Requisites for Admissibility
(1) Reputation pertains to:
(a) facts of public or general interest more
than 30 years old,
(b) marriage, or
(c) moral character
(2) Common reputation existed ante litem motam.
[sec. 41, Rule 130]
Other Admissible Evidence
(a) Monuments
(b) Inscriptions in public places [sec. 41, Rule 130]
Pedigree may be established by reputation in the
family, but NOT in the community. [Rule 130, secs.
40-41]
6) Part of the res gestae [Sec. 42, Rule 130]
Admissible Statements
(1) Spontaneous statements - Statements made by a
person while a startling occurrence is taking
place or immediately prior or subsequent
thereto, with respect to the circumstances
thereof
(a) Principal act be a startling occurrence
(b) Statement made before declarant had
opportunity to contrive
(c) Statement refer to occurrence in question
and attending circumstances
(2) Verbal acts - Statements, which accompany an
equivocal act material to the issue and give it a
legal significance
(a) Principal act must be equivocal
(b) Act must be material to the issue
(c) Statement must accompany the equivocal
act
(d) Statement gives legal significance to
equivocal act
(e) Must be made at the time, not after, the
equivocal act was being performed
A dying declaration can be made only by the victim
after the attack while a statement as part of the res
gestae may be that of the killer himself after or
during the killing. [People v. Reyes]
A statement not admissible as dying declaration
because it was not made under consciousness of
impending death, may still be admissible as part of
res gestae if made immediately afer the incident.
[People vs. Reyes]
7) Entries in the course of business
Requisites for Admissibility [sec. 43, Rule 130]
(1) Entries were made at, or near the time of the
transactions referred to;
(2) Such entries were made in the ordinary or
regular course of business or duty;
(3) Entrant was in a position to know the facts
stated in the entries;
(4) Entrant did so in his professional capacity, or in
the performance of duty and in the regular
course of business; and
(5) Entrant is now dead or unable to testify.
If the entrant is available as a witness, the entries
will not be admitted, but they may nevertheless be
availed of by said entrant as a memorandum to
refresh his memory while testifying on the
transactions reflected therein. [Cang Yui v. Gardner
(1916)]
Business records are exempt from the hearsay
rule. [Rule 8, sec. 1, Rules on Electronic Evidence]
8) Entries in official records
Requisites for Admissibility
(1) Entries were made by a public officer in the
performance of his duties or by a person in the
performance of a duty specially enjoined by law
[sec. 44, Rule 130];

(2) Entrant must have personal knowledge of the
facts stated by him or such facts acquired by
him from reports made by persons under a legal
duty to submit the same [Salmon, Dexter & Co.
v. Wijangco (1924)]; and
(3) Entries were duly entered in a regular manner in
the official records.
Entries in official records, just like entries in the
course of business, are merely prima facie evidence
of the facts therein stated. [secs. 43-44, Rule 130]
Entries in a police blotter are not conclusive proof of
the truth of such entries. [People v. Cabuang (1993)]
Baptismal certificates or parochial records of
baptism are not official records. [Fortus v. Novero
(1968)]
9) Commercial lists and the like
Requisites for Admissibility [Sec. 45, Rule 130]
(1) Such statements are contained in a list;
(2) Compilation is published for use by persons
engaged in that occupation; and
(3) It is generally used and relied upon by them.
10) Learned treaties
Requisites for Admissibility [Sec. 46, Rule 130]
(1) Published treatise, periodical or pamphlet is on
a subject of history, law, science, or art; and
(2) Court takes judicial notice of it, or
(3) Witness expert in the subject testifies that the
writer of the statement in the treatise,
periodical or pamphlet is recognized in his
profession or calling as expert in the subject
11) Testimony or deposition at a former trial
Requisites for Admissibility [sec. 47, Rule 130;
Manliclic v. Calaunan (2007)]
(1) Witness is dead or unable to testify;
(2) His testimony or deposition was given in a
former case or proceeding, judicial or
administrative, between the same parties or
those representing the same interests;
(3) Former case involved the same subject as that
in the present case although on different causes
of action;
(4) Issue testified to by the witness in the former
trial is the same issue involved in the present
case; and
(5) Adverse party had the opportunity to cross-
examine the witness in the former case.
G. Opinion Rule
GENERAL RULE: The opinion of a witness is not
admissible. [Sec. 48, Rule 130]
EXCEPTIONS [NOTE: Please refer to succeeding
subsections for discussion]
(1) Expert witness
(2) Ordinary witness
REMEDIAL LAW REVIEWER
Opinion of expert witness [sec. 49, Rule
130] 223
On a matter
(1) Requiring
(a) special knowledge,
(b) skill,
(c) experience, or
(d) training
(2) Which he is shown to possess
Expert witness is one who belongs to the profession
or calling which the subject matter of the inquiry
relates and who possesses special knowledge.
Opinion of ordinary witness [sec. 50, Rule
130]
(1) If proper basis is given, and
(2) Regarding:
(a) Identity of a person about whom he has
adequate knowledge;
(b) Handwriting with which he has sufficient
familiarity;
(c) Mental sanity of a person with whom he is
sufficiently acquainted; and
(d) Impressions of the
(i) emotion,
(ii) behavior,
(iii) condition, or
(iv) appearance of a person.
H. Character Evidence
GENERAL RULE [sec. 51, Rule 130]: Character
evidence is not admissible.
EXCEPTIONS
(1) Criminal cases [sec. 51(a), Rule 130]
(a) Accused May prove his good moral
character, which is pertinent to the moral
trait involved in the offense charged.
(b) Prosecution May not prove the bad moral
character of the accused, except in
rebuttal.
(c) Offended Party His/her good or bad moral
character may be proved if it tends to
establish in any reasonable degree the
im/probability of the offense charged.
(2) Civil cases
(a) Moral character is admissible only when
pertinent to the issue of character involved
in the case. [sec. 51(b), Rule 130]
(b) Evidence of the witness good character is
not admissible until such character has
been impeached. [sec. 14, Rule 130]
 REMEDIAL LAW REVIEWER
I. Rule on Examination of a Child
Witness (A.M. No. 004-07-SC)
224
Applicability of the rule
(1) Shall apply in all criminal proceedings and non-
criminal proceedings involving child witnesses.
[Sec. 1]
(2) The ROC provisions on deposition, conditional
examination of witnesses and evidence shall be
applied suppletorily. [Sec. 32]
Meaning of child witness
(1) Any person who at the time of giving testimony
is < 18 years;
(2) In child abuse cases, a child includes one over
18 years but is found by the court as
(a) unable to fully take care of himself, or
(b) protect himself from abuse, neglect,
cruelty, exploitation, or discrimination
(c) because of a physical or mental disability or
condition.;
Competency of a child witness
Every child is presumed qualified to be a witness. To
rebut the presumption of competence enjoyed by a
child, the burden of proof lies on the party
challenging his competence. [Sec. 6(b)]
Requisites of competency of a child as witness
[People v. Mendoza (1996)]:
(1) Capacity of observation;
(2) Capacity of recollection;
(3) Capacity of communication.
When the court finds that substantial doubt exists
regarding the ability of the child to
perceive/remember/ communicate, distinguish truth
from falsehood, or appreciate the duty to tell the
truth in court, a competency exam shall be
conducted.
The age of the child by itself is not a sufficient basis
for a competency examination. [Sec. 6(a)]
The court has the duty of continuously assessing the
competence of the child throughout his testimony.
[Sec. 6(f)]
Examination of a child witness
(1) In open court [Sec. 11]
(2) Alternative Modes
(a) Live-Link TV Testimony, in Criminal Cases
where Child is a Victim or a Witness [Sec.
25]
(i) If there is a substantial likelihood that
the child would suffer trauma from
testifying in the presence of the
accused, his counsel or the prosecutor.
(ii) Trauma must be of a kind which would
impair the completeness or truthfulness
of the childs testimony.
(b) Videotaped Deposition of a Child Witness
[Sec. 27]
(i) If the court finds that the child will not
be able to testify in open court at trial,
it shall issue an order that the
deposition of the child be taken and
preserved by videotape.
(ii) The rights of the accused during trial,
especially the right to counsel and to
confront and cross-examine the child,
shall not be violated during the
deposition.
Live-link TV testimony of a child witness
[Sec. 25]
Live-link television testimony, in criminal cases
where the child is a victim or a witness
The court may order that the testimony of the child
be taken by live-link television if there is a
substantial likelihood that the child would suffer
trauma from testifying in the presence of the
accused, his counsel or the prosecutor.
The trauma must be of a kind which would impair
the completeness/truthfulness of the childs
testimony.
If it is necessary for the child to identify the accused
at trial, the court may allow the child to enter the
courtroom for the limited purpose of identifying the
accused, or the court may allow the child to identify
the accused by observing the image of the latter on
a television monitor.
Videotaped deposition of a child witness
[Sec. 27]
If the court finds that the child will not be able to
testify in open court at trial, it shall issue an order
that the deposition of the child be taken and
preserved by videotape.
The rights of the accused during trial, especially the
right to counsel and to confront and cross-examine
the child, shall not be violated during the
deposition.
Hearsay exception in child abuse cases
[Sec. 28]
Proponent of hearsay statement shall make known to
the adverse party the intention to offer such
statement and its particulars.
If the child is available, court shall require the child
to be present at the presentation of the hearsay
statement for cross-examination by the adverse
party.
If unavailable, the fact of unavailability must be
proved by the proponent and his hearsay testimony
must be corroborated by other admissible evidence.
Sexual abuse shield rule
General Rule [Sec. 30(a)]: The following are
INADMISSIBLE in any criminal proceeding involving
 REMEDIAL LAW REVIEWER

alleged child sexual abuse: Kind of evidence When to offer

(1) Evidence offered to prove that the alleged
victim engaged in other sexual behavior;
(2) Evidence offered to prove the sexual
predisposition of the alleged victim.
Exception [Sec. 30(b)]: Evidence of specific
instances of sexual behavior by the alleged victim to
prove that a person other than the accused was the
source of semen, injury or other physical evidence
Protective orders
Video/audio tapes that are part of the court record
may be viewed only by parties, their counsel, their
expert witness and the guardian ad litem. [Sec.
31(b)]
The court may issue additional orders to protect the
childs privacy. [Sec. 31(c)]
Testimonial At the time the witness is
called to testify
Documentary and After the presentation of a 225
Object partys testimonial evidence
Offer shall be done orally unless allowed by the
court to be done in writing.
Absence of an offer is a defect which is waived when
a party fails to object when the ground became
reasonably apparent, as when the witness is called
to testify without any prior offer. [Catuira v. CA
(1994)]
The defect caused by the absence of formal offer of
exhibits can be cured by the identification of the
exhibits by testimony duly recorded and the
incorporation of the said exhibits in the records of
the case. [People v. Mate (1981)]

Publication (or causing it) in any format any C. Objection

identifying information of a child who is or is alleged
to be a victim/accused of a crime or a witness Concept
thereof, or an immediate family of the child, shall What to object to When to object
be liable for contempt of court. [Sec. 31(d)]
Testimonial evidence Immediately after offer
is made
A child has a right at any court proceeding not to
Question propounded in As soon as the grounds
testify regarding personal identifying information
the course of oral become reasonably
that could endanger his physical safety or his family.
examination apparent
[Sec. 31(e)]
Offer done in writing Within 3 days after
notice of the offer,
unless a different period
VI. OFFER AND OBJECTION is allowed by the court
The grounds for objection
A. Offer of Evidence
must be specified in any case.
B. When to Make an Offer
C. Objection
D. Repetition of an Objection D. Repetition of an Objection
E. Ruling
[Sec. 37, Rule 132]
F. Striking Out of an Answer When it becomes reasonably apparent in the course
G. Tender of Excluded Evidence of the examination of a witness that the questions
being propounded are of the same class as those to
A. Offer of Evidence which objection has been made, whether such
objection was sustained or overruled, it shall be
Concept [Sec. 34, Rule 132] sufficient for the adverse party to record his
(1) Court shall consider no evidence which has not continuing objection to such class of questions.
been formally offered
(2) Purpose for which the evidence is offered must A court may, motu proprio, treat the objection as a
be specified continuing one. [Keller v. Ellerman & Bucknall
(3) As Distinguished from Identification of Steamship]
Documentary Evidence [Interpacific Transit v.
Aviles (1990)] E. Ruling
Identification Ruling on the objection [Sec. 38, Rule 132]
Formal Offer
of Documentary Should be given immediately after the objection
of Exhibit
Evidence is made, unless the court desires to take a
Done in the course of the Done only when the reasonable time to inform itself on the question
trial and accompanied by party rests his/her case presented.
the marking of the Reason for sustaining or overruling an objection
evidence need not be stated. However, if the objection is
based on two or more grounds, a ruling
B. When to Make an Offer sustaining the objection on one or some of them
must specify the ground/s relied upon.
[Sec. 35, Rule 132] Reservation of a ruling by the court on an
objection to the admissibility of evidence,
 REMEDIAL LAW REVIEWER

without subsequently excluding the same,

amounts to a denial of an objection. [People v.
226 Tavera]

F. Striking Out of an Answer

Motion to strike [sec. 39, Rule 132]
(1) Court may sustain an objection and order the
answer given to be stricken off the record if:
(a) witness answers the question before the
adverse party had the opportunity to
object, and
(b) such objection is found to be meritorious.
(2) The court may also, upon motion, order the
striking out of answers, which are
(a) incompetent,
(b) irrelevant or
(c) otherwise improper.

G. Tender of Excluded Evidence

[Rule 132, Sec. 40]
Documents marked as exhibits during the hearing but
which were not formally offered in evidence cannot
be considered as evidence nor shall they have
evidentiary value. [Vda. De Flores v. WCC (1977)]

How to Tender Evidence

Kind of evidence How to tender the evidence

Documentary Offeror may have the same
attached or made part of the
record
Testimonial Offeror may state for the
record the name and other
personal circumstances of the
witness and the substance of
the proposed testimony
 REMEDIAL LAW REVIEWER

227

2012 UP LAW
BAR REVIEWER
REMEDIAL
Special Proceedings LAW
REMEDIAL LAW TEAM 2012
BAR OPERATIONS COMMISSION 2012
Subject Head | Eden Mopia

EXECUTIVE COMMITTEE SpecPro Subject Head |

Ramon Carlo Marcaida |Commissioner Margeline Carrasco
Raymond Velasco Mara Kriska Chen |Deputy Commissioners Contributors | Cyril Arnesto
Barbie Kaye Perez |Secretary
Carmen Cecilia Veneracion |Treasurer Kristine Camille Umali
Hazel Angeline Abenoja|Auditor
LAYOUT TEAM 2012
COMMITTEE HEADS Layout Artists | Alyanna
Eleanor Balaquiao Mark Xavier Oyales | Acads Apacible Noel Luciano RM
Monique Morales Katleya Kate Belderol Kathleen Mae Tuason (D) Rachel Meneses Jenin Velasquez
Miranda (D) |Special Lectures Mara Villegas Naomi
Patricia Madarang Marinella Felizmenio |Secretariat Quimpo Leslie Octaviano
Victoria Caranay |Publicity and Promotions
Loraine Saguinsin Ma. Luz Baldueza |Marketing
Yas Refran Cris Bernardino
Benjamin Joseph Geronimo Jose Lacas |Logistics
Layout Head| Graciello
Angelo Bernard Ngo Annalee Toda|HR
Timothy Reyes
Anne Janelle Yu Alyssa Carmelli Castillo |Merchandise
Graciello Timothy Reyes |Layout
Charmaine Sto. Domingo Katrina Maniquis |Mock Bar
Krizel Malabanan Karren de Chavez |Bar Candidates Welfare
Karina Kirstie Paola Ayco Ma. Ara Garcia |Events

OPERATIONS HEADS
Charles Icasiano Katrina Rivera |Hotel Operations
Marijo Alcala Marian Salanguit |Day-Operations
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Vivienne Villanueva Charlaine Latorre |Food
Kris Francisco Rimban Elvin Salindo |Transpo
Paula Plaza |Linkages

UP LAW BAR OPERATIONS COMMISSION

 REMEDIAL LAW REVIEWER

strictly applicable to orders in special

228
Special Proceedings proceedings. Rule 109 specifies the orders from
which appeals may be taken (Regalado).
REMEDIAL LAW Rule 33 regarding judgment on demurrer to
Criminal Procedure Preliminary Matters evidence is applicable to special proceedings
Civil Procedure [Matute v. CA (1969)].
Evidence I. Settlement of estate of deceased
Special Proceedings Subject Matter and Applicability of General Rules
persons, venue and process Rules of special proceedings are provided for in the
II. Summary settlement of estates following cases:
III. Production and probate of will (1) Settlement of estate of deceased persons
IV. Allowance or disallowance of (2) Escheat
will (3) Guardianship and custody of children
V. Letters testamentary and of (4) Trustees
administration (5) Adoption
(6) Rescission and revocation of adoption
VI. Claims against the estate
(7) Hospitalization of insane persons
VII. Actions by and against executors (8) Habeas corpus
and administrators (9) Change of name
VIII. Distribution and partition (10) Voluntary dissolution of corporations
IX. Trustees (11) Judicial approval of voluntary recognition of
X. Escheat minor natural children
XI. Guardianship (12) Constitution of family home
XII. Adoption (13) Declaration of absence and death
XIII. Writ of habeas corpus (14) Cancellation of correction of entries in the civil
registry.
XIV. Writ of Amparo (A.M. No. 07-9-
12-SC) In the absence of special provisions, the rules
XV. Change of name provided for in ordinary actions shall be, as far as
XVI. Absentees practicable, applicable in special proceedings.
XVII. Cancellation or correction of
entries in the civil registry Difference Between Action and Special Proceeding
XVIII. Appeals in special proceeding
Ordinary Action Special Proceeding
To protect/enforce a To establish a
PRELIMINARY MATTERS right or prevent/ right/status/fact
redress a wrong
Special proceedings: A remedy by which a party Involves 2 or more May involve only 1 party
seeks to establish a status, right or a particular fact parties
(Rule 1, Sec. 3(c)). Governed by ordinary Governed by special
rules supplemented by rules, supplemented by
Applicable rules special rules ordinary rules
If special rules are provided, they shall apply. Initiated by pleading, Initiated by petition,
But in the absence of such special provisions, and parties respond parties respond through
the rules applicable in special proceedings shall through an answer an opposition
be applied (Rule 72, Sec. 2).
There are special proceedings which are not Action - formal demand of ones right in a court of
part of the ROC (e.g. Writs of amparo and justice in the manner prescribed by the court or by
habeas data). the law (Herrera).
The State has an overriding interest in each
special proceeding, and the matter is not a Special proceeding - application or proceeding to
controversy between private parties purely establish the status or right of a party, or particular
(Bautista). fact. No formal pleadings are required, unless the
The distinction between final and interlocutory statute expressly so provides (Herrera).
orders in civil actions for purposes of
determining the issue of applicability is not
 REMEDIAL LAW REVIEWER

Venues and Jurisdictions for Special Proceedings

Special Proceeding Venue Jurisdiction
Settlement of the Estate Residence of the decedent MTC if gross value of the
229
of a Deceased Person If non-resident, place where he had an estate estate does not exceed
P300,000, or does not
exceed P400,000 in
Metro Manila
otherwise, RTC
Escheat Person dies intestate leaving no heir Residence of the RTC
decedent or if non-resident, place where he had estate
Reversion where land lies in whole or in part RTC
Unclaimed Balances Act where deposits are located RTC
Appointment of Where minor resides Family Court
Guardians Where incompetent resides RTC
Appointment of Trustees Where will was allowed or RTC
Where the property or portion thereof affected by the
trust is situated
Adoption Domestic where adopter resides Family Court
Inter-country Adoption ICAB or, where adoptee resides ICAB or Family Court
if filed with the Family Court
Rescission of Adoption Where adoptee resides Family Court
Habeas Corpus If filed with RTC, where detainee is detained SC, CA, RTC, MTC in the
province or city in case
there is no RTC judge
Sandiganbayan, only in
aid of its appellate
jurisdiction
For the custody of minors, where petitioner resides or Family Court, CA, SC
where minor may be found
Habeas Data Where the petitioner or respondent resides, or that which RTC generally
has jurisdiction over the place where the data or If concerning public data
information is gathered, collected, or stored, at the files or government
option of the petitioner offices, SC, CA or
Sandigabayan
Amparo Where the threat, act or omission was committed or any RTC, Sandiganbayan, CA,
of its elements occurred SC or any justice thereof
Change of Name Judicial - where petitioner resides RTC
Administrative: Local Civil Registry/
Local civil registry where the record sought to be Philippine consulate
changed is kept
Local civil registry of the place of residence of the
interested party (only if petitioner migrated to
another place in the Philippines and it is impractical
to file where records sought to be changed are kept)
Philippine consulates only for non-resident citizen
Appointment of Where Absentee resides before his disappearance RTC
Representative of
Absentee/ Declaration of
Absence
Cancellation / Correction Judicial - Where corresponding civil registry is located RTC
of Entries in Civil Administrative - Same as change of name Local Civil Registry/
Registries Philippine consulate
Petition for declaration Where petitioner or respondent has been residing for at Family Court
of nullity, annulment, least 6 months prior to the date of filing
legal separation If non-resident petitioner, where he may be found at the
election of the petitioner
 REMEDIAL LAW REVIEWER

I. SETTLEMENT OF ESTATE OF property, not by virtue of any right of inheritance

from the deceased but by title adverse to that of the
230 DECEASED PERSONS, VENUE AND deceased and his estate, such questions cannot be
determined in the courts of administration
PROCESS proceedings. It must be settled in a separate action.
A. Which court has jurisdiction
B. Venue in judicial settlement of estate Exceptions:
C. Extent of jurisdiction of Probate Court (1) Probate court may pass judgment upon the title
but such determination is provisional, not
D. Powers and Duties of Probate Court
conclusive, and is subject to final decision; or
(2) With consent of all the parties, without
A. Which court has jurisdiction prejudice to third persons [Trinidad v. CA
(1991)]
Decedent Venue
Inhabitant of the RTC of the province in D. Powers and Duties of Probate
Philippines at time of which he resides
death (citizen/alien)
Court
Inhabitant of foreign RTC of any province in
country which he had estate Dariano vs. Fernandez Fidalgo (1909): It is the
duty of courts of probate jurisdiction to guard
jealously the estates of the deceased person by
Jurisdiction: court first taking cognizance shall
intervening in the administration thereof in order to
exercise jurisdiction to the exclusion of all other
remedy or repair any injury that may be done
courts. [Sec. 1, Rule 73]
thereto
General Rule: The jurisdiction assumed by a court,
In Re: Baldomero Cosme (1937: There seems,
so far as it depends on the place of residence of the
however, to be a general tendency, in the absence
decedent, or of the location of his estate, shall not
of express and specific restrictions to the contrary,
be contested in a suit or proceeding,
to uphold the exercise by the probate court of such
incidental powers as are, within the purview of their
Exceptions:
grant of authority, reasonably necessary to enable
(1) In an appeal from that court, in the original
them to accomplish the objects for which they were
case, OR
invested with jurisdiction and to perfect the same.
(2) When the want of jurisdiction appears on the
record.

Jurisdiction of RTCs II. SUMMARY SETTLEMENT OF

When the value of the estate exceeds P300,000 or
P400,000 in Metro Manila. ESTATES
A. Extrajudicial settlement by agreement
Jurisdiction of MTCs between heirs, when allowed
When the value of the estate does not exceed B. Two-year prescriptive period
P300,000 or P400,000 in Metro Manila.
C. Affidavit of Self-adjudication by sole heir
D. Summary settlement of estates of small
B. Venue in judicial settlement of value, when allowed
estate E. Remedies of aggrieved parties after extra-
judicial settlement of estate
Rule 73 relates to venue and not to jurisdiction
The place of residence of the deceased in
settlement of estates, probate of will, and issuance Extrajudicial Summary Settlement
of letters of administration does not constitute an Settlement
element of jurisdiction over the subject matter. It is No will (intestate) Will may or may not
only constitutive of venue. exist (intestate/testate)
No debts Debts may or may not
Meaning of term resides exist
Resides - in the section is viewed in its popular Gross value of estate Gross value of estate
sense, meaning, the personal, actual or physical may exceed P10,000 may not exceed P10,000
habitation of a person, actual residence of place of
abode. [Garcia Fule v. CA (1976)] A. Extrajudicial settlement
by agreement between
C. Extent of jurisdiction of
heirs, when allowed
Probate Court
Requisites
Probate court is of limited jurisdiction (1) No will
General rule: When questions arise as to ownership (2) No debts OR the heirs have already paid such at
of property alleged to be part of the estate of the the time of partition
deceased but claimed by some other person to be his
 REMEDIAL LAW REVIEWER

(3) Heirs are all of age or the minors are
represented by their judicial or legal
representatives
Procedure
Death of the decedent
fit, or to resort to an ordinary action for partition,
Division of estate in public instrument or affidavit of
adjudication
action. [Pereira v CA (1989)]
Filing of the public instrument or affidavit of
adjudication with the proper Registry of Deeds
Publication of notice of the fact of extrajudicial
settlement once a week for 3 consecutive weeks in a
newspaper of general circulation
publication.
Filing of bond equivalent to the value of personal
property
If there is no The parties may divide the estate
disagreement among themselves by means of a
between the public instrument filed in the
heirs office of register of deeds.
If there is They may divide the estate in an
disagreement ordinary action of partition.
He may adjudicate to himself the
If only one entire estate by means of an
heir affidavit filed in the Registrar of
Deeds.
Bond Requirement
File a bond equal to the value of the personal
property involved as certified to under oath by the
parties, conditioned upon the payment of any just
claim that may be filed of deprived heirs and
creditors. [Sec. 1, Rule 74]
Sec. 1, Rule 74 does not preclude the heirs from
instituting administration proceedings, even if the
estate has no debts or obligations, if they do not
desire to resort for good reasons to an ordinary 231
action for partition. While Sec. 1 allows the heirs to
divide the estate among themselves as they may see
the said provision does not compel them to do as if
they have good reasons to take a different course of
B. Two-year prescriptive
period
Claim by creditors and deprived heirs must be filed
within 2 years from the time of distribution/
Presumption of no debts
It shall be presumed that the decedent left no debts
if no creditor files a petition for letters of
administration within 2 years after the death of the
decedent. [Sec. 4, Rule 74]
C. Affidavit of Self-
adjudication by sole heir
If there is only one heir, he may adjudicate to
himself the entire estate by means of an affidavit
filed in the office of register of deeds.
Bond Requirement
File a bond equal to the value of the personal
property involved as certified to under oath by the
parties, conditioned upon the payment of any just
claim that may be filed

Publication D. Summary settlement of

Fact of the extrajudicial settlement shall be estates of small value,
published in a newspaper of general circulation 3 when allowed
times a week, once each week. [Sec. 1, Rule 74]
This shall be applicable to testate or intestate
Not binding on any person who:
proceedings.
(1) Has not participated in the extrajudicial
settlement; or
When Allowed
(2) Had no notice thereof. [Sec. 1, Rule 74]
(1) Gross value of estate: x < P300,000 outside
Metro Manila and x < 400,000 in Metro Manila
Validity of oral partition
(2) Fact is made to appear to the RTC
Such is VALID, because there is no law that requires
(3) Through petition of an interested person
partition among heirs to be in writing to be valid.
(4) Upon hearing
[Pada Kilario v. CA (2000)]
Held not less than 1 month nor more than 3
months
Requirement under Rule 74.1 is merely for the
Counted from the date of the last publication
protection of creditors and the heirs themselves
of a notice
against tardy claims. Where there are no creditors,
(5) Notice
the requirements no longer apply.
Which shall be published once a week for 3
consecutive weeks
Validity of compromise agreement
In a newspaper of general circulation in the
Such is VALID, binding upon the parties as
province
individuals, upon the perfection of the contract,
It is not required that publication be for a
even without previous authority of the court to enter
complete 21 days. What is required is that it
into such agreement.
be published for once a week for 3
consecutive weeks.
No preclusion from instituting administration
proceedings
 REMEDIAL LAW REVIEWER

(6) Notice to interested persons as the court may If it shall appear within 2 years after the summary
direct. settlement and distribution that there is an heir or
232 other person who
Upon fulfillment of the requisites, the court may (1) has been unduly deprived of his lawful
proceed summarily without the appointment of an participation in the estate:
executor/administrator and without delay, He shall have a right to compel the
settlement of the estate in the courts for
(7) to grant, if proper, allowance of the will, if any the purpose of satisfying such lawful
there be participation
(8) to determine who are persons legally entitled to (2) has been unduly deprived of his lawful
participate in the estate participation payable in money: The court
(9) to apportion and divide among them after the having jurisdiction of the estate may, by order
payment of such debts of the estate for that purpose, after hearing,
(10) persons in own right if of lawful age, or their settle the amount of such debts or lawful
guardians, will be entitled to receive and enter participation, and
into possession of the portions of the estate so order how much and in what manner each
awarded to them respectively distributee shall contribute in the payment
thereof, and
Procedure may issue execution, if circumstances
require, against the bond provided in the
Death of the decedent preceding section or against the real estate
belonging to the deceased, or both.
Application for summary settlement with an
allegation that the gross value of the estate does not Such bond and real estate shall remain charged with
exceed P10K a liability to creditor, heirs or other persons for the
full period of 2 years after such distribution,
Publication of notice of the fact of extrajudicial notwithstanding any transfers of real estate that
settlement once a week for 3 consecutive weeks in a may have been made.
newspaper of general circulation (the court may also
order notice to be given to other persons as such Heir/person deprived of Heir/person deprived of
court may direct) lawful participation in lawful participation in
estate PAYABLE IN MONEY

Hearing to be held not less than 1 month nor more REMEDY within 2 yr. REMEDY within 2 yr.
than 3 months from the date of the last publication period: May compel the period: court may order
of notice settlement of the estate after hearing, the
in the courts in the settlement of the debt

manner hereinafter or lawful participation
Court to proceed summarily, without appointing an
provided for the purpose and order how much and
executor/administrator (executor/administrator),
of satisfying such lawful in what manner each
and to make orders as may be necessary
participation. distribute shall
contribute in the
Grant allowance of the will, if any payment thereof and
may issue execution,
Determine persons entitled to estate (1) against bond, or
(2) against the real
Pay debts of estate which are due estate belonging to
the deceased, or
Filing of bond fixed by the court (3) both.
[Sec. 4, Rule 74].
Partition of estate
Period for Claim of Minor or Incapacitated Person
Notes: There is no requirement regarding the lack of If on the date of the expiration of the period of 2
debts (unlike extrajudicial partition) in summary years prescribed in the preceding section the person
settlement of estates of small value since the court authorized to file a claim is:
will make provisions for such in its resolution of the (1) a minor or mentally incapacitated, or is in
proceedings. prison or
(2) outside the Philippines,
E. Remedies of aggrieved he may present his claim within 1 year after such
parties after extra- disability is removed.
judicial settlement of
Duty of the court
estate (1) Hear the case
(2) Settle the amount
Two-Year Period for Liability of Distributees and (3) Order how much and in what manner each
Estate for Claims of Deprived Heirs or Unpaid distribute shall contribute in the payment
Creditors thereof

(4) If circumstances require, issue execution against
the bond, or the real estate belonging to the
deceased, or both
Bond and real estate remain charged
Bond charged with a liability to creditors, heirs, or
other persons for the full period of 2 years after such
distribution, notwithstanding any transfers of real
estate that may have been made
Rule not applicable:
(1) To persons who have participated or taken part
or had notice of the extrajudicial partition
(2) When the provisions of Sec. 1 of Rule 74 have
been strictly complied with (all persons or heirs
of the decedent have taken part in the
extrajudicial settlement or are represented by
themselves or through guardians)
This is only a Bar against the parties who had
taken part in the extrajudicial proceedings, but
not against third persons not parties thereto
Action to Annul a Deed of Extrajudicial
Partition
Prescriptive period
Action to annul a deed of extrajudicial settlement
upon the ground of fraud may be filed within 4 years
from the discovery of the fraud (deemed to have
taken place when said instrument was filed with the
Register of Deeds and new certificates of title were
issued in the name of respondents respectively).
HOWEVER in Amerol v. Bagumbaran (1987), the
Court applied the New Civil Code. Under Article 1144
(NCC), the following actions must be brought within
10 years from the time the right of action accrues:
(1) upon a written contract (2) upon an obligation
created by law (3) upon a judgment.
Since implied or constructive trusts are obligations
created by law, then the prescriptive period to
enforce the same prescribes in 10 years. Thus, an
action for reconveyance based on an implied or
constructive trust must perforce prescribe in 10
years and not otherwise.
Exception
Prescriptive period for the filling of the action for
reconveyance based on implied trust should be
reckoned from the actual discovery of the fraud
where the registration where there was bad faith in
securing the certificates of titles and, is therefore a
holder of the said certificate in bad faith. The
Torrens title does not furnish a shield for fraud.
III. PRODUCTION AND PROBATE
OF WILL
A. Nature of probate proceeding
B. Who may petition for probate; persons
entitled to notice
REMEDIAL LAW REVIEWER
A. Nature of probate
proceeding
233
General Rule: A probate proceeding only looks at
extrinsic validity and not intrinsic validity. Probate
is merely the determination of whether or not the
testator, being of sound mind, freely executed the
will in accordance with the formalities prescribed by
law
Exception: Under exceptional circumstances, the
probate court is not powerless to do what the
situation constrains it to do and pass upon certain
provisions of the will. It may pass upon the intrinsic
validity of the will because there is apparent defect
in its face this is also known as the principle of
practical consideration [Nepomuceno v CA (1985)].
(Ex. When on the face of the will the petitioner
appears to be preterited)
But the remedy of certiorari is available, where the
grounds for dismissal are indubitable (e.g. grave
abuse of discretion of the judge when there is
clearly preterition and the said judge still continues
the probate proceedings)
Decree of probate is conclusive as to its due
execution, subject to the right of appeal
Suit for forgery of a will, which has been duly
probated and such order becoming final, Bars such
suit because the will is conclusively deemed as duly
executed.
Rodelas v Aranza (1982):
General Rule: If a holographic will has been lost or
destroyed and no other copy is available, the will
cannot be probated because the best and only
evidence is the handwriting of the testator in said
will.
Exception: A photostatic copy or Xerox of the
holographic will may be allowed because comparison
can be made with the standard writings of the
testator.
B. Who may petition for
probate; persons entitled
to notice
Petitioner for the allowance of the will
(1) Executor
(2) Devisee
(3) legatee
(4) other person interested in the estate
(5) testator himself, during his lifetime
Meaning of interest in estate
In order that a person may be allowed to intervene
in a probate proceeding he must have an interest in
the estate, or in the will, or in the property to be
affected by it either as executor or as a claimant of
the estate and an interested party is one who would
be benefited by the estate such as an heir or one
who has claim against the estate like a creditor.
 REMEDIAL LAW REVIEWER
Jurisdiction, how acquired
234 (1) Attaching a mere copy of will or
(2) Delivery of will, even if no petition is filed or
(3) Filing of the original petition and compliance
with Sec 3-4 Rule 76.
IV. ALLOWANCE OR
DISALLOWANCE OF WILL
A. Contents of petition for allowance of will
B. Grounds for disallowing a will
C. Reprobate; Requisites before will proved
outside allowed in the Philippines; effects
of probate
A. Contents of petition for
allowance of will
(1) Jurisdictional facts
(a) Death of the decedent
(b) Residence at the time of death in the
province where the probate court is sitting
(c) Or if he is an inhabitant of a foreign
country, his leaving his estate in such
province
(2) Names, ages, and residences of the heirs,
legatees, and devisees of the testator or
decedent
(3) Probable value and character of the property of
the estate
(4) Name of the person for whom letters are prayed
(5) If the will has not been delivered to the court,
the name of the person having custody of it.
Defect in petition
Defect in petition will not void the allowance of the
will, or the issuance of letters testamentary or of
administration with the will annexed.
B. Grounds for disallowing a will
(1) If not executed and attested as required by law
(2) If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its
execution
(3) If executed under duress, or the influence of
fear, or threats
(4) If procured by undue and improper pressure and
influence, on the part of the beneficiary, or of
some other person for his benefit
(5) If the signature of the testator was procured by
fraud or trick, and he did not intend that the
instrument should be his will at the time of
fixing his signature thereto
Note: The grounds for disallowance of will are
exclusive.
C. Reprobate; Requisites before
will proved outside allowed in
the Philippines; effects of
probate
Reprobate
Wills proved and allowed in a foreign country,
according to the laws of such country, may be
allowed, filed, and recorded by the proper Court of
First Instance in the Philippines.
Requisites for Allowance
(1) Copy of the will
(2) Order or decree of the allowance in foreign
country
(3) Filed with a petition for allowance in the
Philippines by executor or other person
interested
(4) Court shall fix a time and place for the hearing
(5) Cause notice thereof to be given as in case of an
original will presented for allowance.
Effect
The will shall have the same effect as originally
proven and allowed by such court
V. ALLOWANCE OR
DISALLOWANCE OF WILL
A. When and To whom letters of
administration granted
B. Order of preference
C. Opposition to issuance of letters
testamentary; simultaneous filing of
petition for administration
D. Powers and duties of Executors and
Administrators; restrictions on the powers
E. Appointment of Special Administrator
F. Grounds for removal of administrator
A. When and To whom
letters of
administration granted
When Granted
(1) No executor named or
(2) Executor or executors are incompetent, refuse
the trust, or fail to give bond or
(3) Or person dies intestate.
To Whom Granted
Discretionary upon the probate court
B. Order of preference
Order of preference in the grant of administration
(1) Surviving spouse or next of kin, or both, or to
such person as the surviving spouse, or next of
kin requests to have appointed, if competent
and willing to serve.
(2) If those in (a) be incompetent or unwilling, or if
the husband or widow, or next of kin, neglects
for 30 days after the death of the person to
apply for administration or to request that
administration be granted to some other person,
it may be granted to one or more of the
principal creditors, if competent and willing to
serve.

(3) If there is no (b), it may be granted to such
other person as the court may select.
Reason for order of preference
Those who would reap the benefit of a wise, speedy
and economical administration of the estate, or, on
the other hand, suffer the consequences of waste,
improvidence or mismanagement, have the highest
interest and most influential motive to administer
the estate correctly.
Mere failure to apply for letters of administration
does not remove preference.
Order of Preference NOT Absolute
A probate court cannot arbitrarily disregard the
preferential rights of the surviving spouse to the
administration of the estate of a deceased person
but if the person enjoying such preferential rights is
unsuitable the court may appoint another person.
[Silverio v. CA (2007)]
The order of preference is not absolute for it
depends on the attendant facts and circumstances of
each case. The selection of an administrator lies in
the sound discretion of the trial court. [In Re Suntay
(2007)]
30-day period may be waived
Just as the order of preference is not absolute and
may be disregarded for valid cause, so may the 30-
day period be likewise waived under the permissive
tone in paragraph (b) of said rule which merely
provides that said letters as an alternative, may be
granted to one or more of the principal creditors.
Co-administrators may be appointed.
Court may reject order of preference when
circumstances warrant.
C. Opposition to issuance
of letters testamentary;
simultaneous filing of
petition for
administration
Opposition to issuance of letters
testamentary
Who may oppose: Any person interested in will
Form required: State in writing the grounds why
letter should not issue; the court shall then hear and
pass upon sufficiency of such grounds.
Simultaneous filing of Opposition and Petition: A
petition may, at the same time, be filed for letters
of administration with the will annexed.
Lack of interest in the proceedings is equal to lack of
legal capacity to institute proceedings.
Opposition to petition for letters of
administration
Grounds
REMEDIAL LAW REVIEWER
(1) Incompetency of the person for whom letters
are prayed, or
(2) Contestants own right to the administration
235
Simultaneous Filing of Letters
He may pray that letters issue to himself, or to any
competent person or person named in the
opposition.
D. Powers and duties of
Executors and
Administrators;
restrictions on the
powers
General Powers and Duties of
Executors and Administrators
1. Executor or Administrator to Have
Access to Partnership Books and
Property at All Times
(a) Have access to, and may examine and take
copies of, books and papers relating to the
partnership business,
(b) Examine and make invoices of the property
belonging to such partnership
(c) The surviving partner or partners, on request,
shall exhibit to him all such books, papers, and
property in their hands or control.
Courts duty: order any such surviving partner or
partners to freely permit the exercise of the rights,
and to exhibit the books, papers, and property, as in
this section provided, and may punish any partner
failing to do so for contempt.
2. Keep Buildings in Tenantable
Repair
(a) Houses and other structures and fences
belonging to the estate, and
(b) Deliver the same in such repair to the heirs or
devisees when directed so to do by the court.
3. Right to Possession and
Management of the Real and
Personal Properties
(a) So long as it is necessary for the payment of the
debts and the expenses of administration
(b) Administrator cannot exercise the right of legal
redemption over a portion of the property
owned in common sold by one of the other co-
owners since this is not within the powers of
administrator.
Note: When the estate of a deceased is already
subject of a testate or intestate proceeding, the
administrator cannot enter into any transaction
involving it without any prior approval of the Court.
 REMEDIAL LAW REVIEWER
The right of an executor/administrator to the
possession and management of the real and personal
236 properties of the deceased is not absolute and can
only be exercised so long as it is necessary for the
payment of the debts and expenses of administration
Restrictions on Powers of Executors
and Administrators
1. Executor or Administrator
Chargeable with all Estate and
Income
Chargeable in his account with the whole of the
estate which has come into his possession, at the
value of the appraisement contained in the
inventory:
(a) With all the interest,
(b) Profit
(c) Income of such estate and
(d) With the proceeds of as much of the estate as is
sold by him, at the price at which it was sold.
2. Prohibited from Profiting by
Increase or Losing by Decrease in
Value
(a) No executor/administrator shall profit by the
increase, or suffer loss by the decrease or
destruction, without his fault, of any part of the
estate
(b) Account for the excess (when sold for more)
(c) If sold for less, not responsible for loss, if in
good faith
(d) If settled claim for less - He is entitled to
charge in his account only the amount he
actually paid on the settlement
(e) Not accountable For debts due the deceased
which remain uncollected without his fault
3. Accountable for Income from
Realty Used by Him
If the executor/administrator uses or occupies any
part of the real estate himself, he shall account for
it as may be agreed upon between him and the
parties interested, or adjusted by the court with
their assent and if the parties do not agree upon the
sum to be allowed, the same may be ascertained by
the court, whose determination in this respect shall
be final
4. Accountable if He Neglects or
Delays to Raise or Pay Money
(a) Neglects or unreasonably delays to raise money,
by collecting the debts or selling the real or
personal estate of the deceased, or
(b) Neglects to pay over the money he has in his
hands, and the value of the estate is thereby
lessened or unnecessary cost or interest
accrues, or the persons interested suffer loss.
(c) Executors/administrators responsibility for
damages incurred cannot be shifted to the
intestate estate.
5. Only Necessary Expenses shall be
allowed
(a) The amount paid by an executor/administrator
for costs awarded against him shall be allowed
in his administration account
(b) Unless it appears that the action or proceeding
in which the costs are taxed was prosecuted or
resisted without just cause, and not in good
faith.
(c) Administrator may not recover attorneys fees
from estate
Necessary expenses: Such expenses as are entailed
for the preservation and productivity of the estate
and for its management for purpose of liquidation,
payment of debts, and distribution of the residue
among persons entitled thereto
6. Executor or Administrator to
Render Account
Accounting
- Within 1 year from the time of receiving letters
testamentary or of administration
- Unless the court otherwise directs because of
extensions of time for presenting claims against,
or paying the debts of, the estate, or for disposing
of the estate
Further accounts - If court requires
- The rendering of an accounting by an
administrator of his administration within 1 year
from his appointment is mandatory. The only
exception is when the court otherwise directs
because of extensions of time for presenting
claims against the estate or for paying the debts
or disposing the assets of the estate
- The fact that the heirs of the estate have entered
into an extrajudicial settlement and partition in
order to put an end to their differences cannot in
any way be interpreted as a waiver of the
objections of the heirs to the accounts submitted
by the administrator not only because to so hold
would be a derogation of the pertinent rules but
also because there is nothing provided in said
partition that the aforesaid accounts shall be
deemed waived or condoned.
Examination on Oath by Court
- As to the correctness of his account before the
same is allowed, except when no objection is
made to the allowance of the account and its
correctness is satisfactorily established by
competent proof
- The heirs, legatees, distributees, and creditors of
the estate shall have the same privilege as the
executor/administrator of being examined on oath
on any matter relating to an administration
account.

E. Appointment of Special
Administrator
When appointed
(1) When there is delay in granting letters
testamentary or administration, or
(2) By any cause, including an appeal from
allowance or disallowance of a will.
Duties
Will take possession and charge of the estate until:
(1) the questions causing the delay are decided and
(2) executor/administrator appointed
Procedure for appointment
There must first be notice and publication. Notice
through publication of the petition is a jurisdictional
requirement even in the appointment of a special
administrator.
Appointment of special administrator lies entirely in
the sound discretion of the court.
Powers and Duties of Special Administrator
(1) Take possession and charge of the goods,
chattels, rights, credits, and estate of the
deceased and
(2) Preserve the same for the
executor/administrator afterwards appointed,
(3) and for that purpose may commence and
maintain suits as administrator.
(4) May sell only such perishable and other property
as the court orders sold.
(5) Not liable - to pay any debts of the deceased
unless so ordered by the court.
When Special Administrator Ceases Duties
When letters testamentary/administration are
granted on the estate of the deceased
(1) He shall deliver to the executor/administrator
the goods, chattels, money, and estate of the
deceased in his hands.
(2) The executor/administrator may prosecute to
final judgment suits commenced by such SA.
F. Grounds for removal of
administrator
Grounds for removal of executor or administrator
(1) Neglects to:
(a) Render his account
(b) Settle the estate according to law
(c) Perform an order or judgment of the court,
or a duty expressly provided by these rules
(2) Absconds
(3) Becomes insane or
(4) Becomes incapable or unsuitable to discharge
the trust.
Effect of Removal
(1) The remaining executor/administrator may
administer the trust alone, unless the court
grants letters to someone to act with him.
(2) If there is no remaining executor/administrator,
administration may be to any suitable person.
REMEDIAL LAW REVIEWER
VI. CLAIMS AGAINST THE ESTATE 237
A. Time within which claims shall be filed;
exceptions
B. Statute of Non-claims
C. Claim of Executor or administrator against
the Estate
D. Payment of Debts
Estate burdened with lien of creditors
Upon the death of the person, all his property is
burdened with all his debts, his debts creating an
equitable lien thereon for the benefit of the
creditors.
And such lien continues until the debts are
extinguished either by the payment, prescription, or
satisfaction in one of the modes recognized by law
Purpose of presentation of claims against estate
(1) To protect the estate of the deceased.
(2) That way, the executor/administrator will be
able to examine each claim, determine whether
it is a proper one which should be allowed.
(3) The primary object of the provisions requiring
presentation is to appraise the administrator
and the probate court of the existence of the
claim so that a proper and timely arrangement
may be made for its payment in full or by pro-
rata portion in the due course of the
administration, inasmuch as upon the death of a
person, his entire estate is burdened with the
payment of his debts and no creditor shall enjoy
any preference or priority all of them shall share
pro-rata in the liquidation of the estate of the
deceased
A. Time within which
claims shall be filed;
exceptions
Claims must be filed within the time specified by the
court in its notice which shall not be less than 6
months nor more than 12 months from the date of
the first publication of the notice
B. Statute of Non-claims
Claims Covered
(1) Claims for money against the decedent arising
from contract
- Express or implied
- Due or not
- Contingent or not
(2) Claims for funeral expenses
(3) Expenses for the last sickness
(4) Judgment for money against the decedent.
The period, once fixed by the courts, is mandatory
 REMEDIAL LAW REVIEWER
Effect of non-claim forever barred
Failure to make the claim within the time fixed by
238 the Courts will result in barring any recovery.
Purpose: to settle the estate with dispatch, so that
the residue may be delivered to the persons entitled
thereto without their being afterwards called upon
to respond in actions for claims, which, under the
ordinary statute of limitations have not yet
prescribed.
De Bautista v De Guzman (1983): Rule 86.5 is
mandatory so that the estate of the deceased can be
protected against fraudulent complaint. Thus, upon
the dismissal of the first complaint, the plaintiffs
should have presented their claims before the
intestate proceedings then pending in the same
court. The failure to present their claims before the
intestate proceedings of the estate of decedent
within the prescribed period constituted a bar to a
subsequent claim against the estate or a similar
action of the same import.
EXCEPTION:
(1) When set forth as counterclaims in any action
that the executor/administrator may bring
against the claimants
(2) If the decedent is a creditor and the executor or
administrator commences an action or continues
the action - the debtor may set forth by answer
the claims he has against the decedent, instead
of presenting them independently to the court.
Mutual claims may be set off against each other in
such action.
Effect if a debtor obtains a favorable judgment
against the estate: the amount shall be considered
the true balance against the estate, as though the
claim had been presented directly before the court
in the administration proceedings
Rule on belated claims
The Court has the discretion to allow contingent
claims
The law gives the probate court discretion to allow
claims presented beyond the period previously fixed
provided they are filed within 1 month from the
expiration of such period but in no case beyond the
date of entry of the order of distribution.
The presentation of money claim may be waived.
C. Claim of Executor or
administrator against
the Estate
Procedure to follow if the executor or
administrator has a claim against the estate he
represents
(1) Executor/Administrator shall give notice
thereof, in writing, to the court
(2) The court shall appoint a special administrator
who shall have the same powers and liabilities
as the general executor/administrator in the
adjustment of such claim.
(3) The court may order the executor or
administrator to pay to the special administrator
necessary funds to defend such claim.
D. Payment of Debts
Debts Paid in Full if Estate Sufficient
(1) After all money claims heard and ascertained;
and
(2) It appears that there are sufficient assets to pay
the debts
Executor/administrator shall pay the same within
the time limited for that purpose.
The probate court may hold in abeyance intestate
proceedings pending determination of a civil case
against the administratrix.
The heirs of the estate may not demand the closing
of an intestate proceeding at anytime where there is
a pending case against the administrator of the
estate. The court can rightfully hold in abeyance
until the civil case is settled.
Part of Estate from Which Debt Paid When
Provision Made by Will
(1) Testator provided for payment of debt
Expenses of administration, or family expenses
shall be paid according to such provisions
(2) If not sufficient
The part of the estate not disposed of by will
shall be appropriated for the purpose
Personally First Chargeable for Debts, Then Realty
General Rule: Personal estate not disposed of by
will shall be FIRST chargeable
Exception
(1) Not sufficient for the purpose; or
(2) Its sale will redound to the detriment of the
participants for the estate
In which case
- The whole of the real estate not dispose of by
will, or so much thereof as is necessary, may
be sold, mortgaged, or otherwise
encumbered for that purpose by the
executor/administrator,
- Court approval must be obtained first
- Any deficiency shall be met by contributions
in accordance with the provisions of S6 of this
rule.
Estate to Be Retained to Meet Contingent Claims
If court is satisfied that such claim is valid:
(1) It may order the executor/administrator to
retain in his hands sufficient estate
(2) For the purpose of paying the contingent claim
when such becomes absolute.
If estate insolvent - Retain a portion equal to the
dividend of the other creditors.

Contingent Claim When Allowed
(1) When it becomes absolute;
(2) Presented to the court or
executor/administrator within 2 years from the
time limited for other creditors to present their
claims; and
(3) Not disputed by executor/administrator
If disputed
It may be proved and allowed or disallowed by the
court as the facts may warrant
Court ruling: Allowance of contingent claim or
Disallowance
If allowed - Creditor shall receive payment to the
same extent as the other creditors if the estate
retained by the executor/administrator is sufficient.
Claim not presented after becoming absolute and
allowed within 2 year period
The assets retained in the hands of the
executor/administrator, not exhausted in the
payment of claims, shall be distributed by the order
of the court to the persons entitled
But the assets so distributed may still be applied to
the payment of the claim when established, and the
creditor may maintain an action against the
distributees to recover the debt, and such
distributees and their estates shall be liable for the
debt in proportion to the estate they have
respectively received.
Court to Fix Contributive Shares Where Devisees,
Legates, or Heirs Have Been in Possession
(1) Possession before debts and expenses paid
Court shall
- Hear and settle the amount of their several
liabilities
- Order how much and in what manner each
shall contribute
- May issue execution as circumstances require.
(2) Liability of heirs and distributes
Heirs are not required to respond with their own
property for the debts of their deceased
ancestors. But after partition of an estate, the
heirs and distributees are liable individually for
the payment of all lawful outstanding claims
against the estate in proportion to the amount
or value of the property they have respectively
received from the estate
Order of Payment if Estate Is Insolvent
Executor/administrator pays the debts against the
estate, observing the provisions of Articles 1059 and
2239 to 2251 of the Civil Code. (Preference of
credits)
Dividends to Be Paid in Proportion to Claims
Each creditor within such class shall be paid dividend
in proportion to his claim. No creditor of any one
class shall receive any payment until those of the
preceding class are paid.
REMEDIAL LAW REVIEWER
Insolvent Non-Resident
His estate found in the Philippines shall be so
disposed of that his creditors here and elsewhere
may receive each an equal share, in proportion to 239
their respective credits.
Insolvent Resident with Foreign Creditors and
Foreign claims proven in another country
(1) Executor/administrator in the Philippines had
knowledge of the presentation of such claims in
such country; and
(2) Executor/administrator had opportunity to
contest such allowance
The court shall:
(1) Receive a certified list of such claims, when
perfected in such country,
(2) And add the same to the list of claims proved
against the deceased person in the Philippines
(3) So that a just distribution of the whole estate
may be made equally among all its creditors
But the benefit of this and the preceding sections
shall not be extended to the creditors in another
country if the property of such deceased person
there found is not equally apportioned to the
creditors residing in the Philippines and the other
creditor, according to their respective claims
Order of Payment of Debts
Before the expiration of the time limited for the
payment of the debts
(1) The court shall order the payment thereof, and
the distribution of the assets received by the
executor/administrator for that purpose among
the creditors,
(2) As the circumstances of the estate require and
in accordance with the provisions of this rule
Appeal Taken From a Decision of the Court
Concerning the Claim
The court may:
(1) Suspend the order for payment or order the
distribution among creditors whose claims are
definitely allowed
(2) Leave in the hands of executor/administrator
sufficient assets to pay the claim disputed and
appealed.
When a disputed claim is finally settled court
shall order the claim to be paid out of the assets
retained to the same extent and in the same
proportion with the claims of other creditors.
Time to Time Further Orders of Distribution
(1) Whole of the debts not paid on first distribution;
and
(2) If the whole assets not distributed or other
assets afterwards come to the hands of
executor/administrator.
Creditors to Be Paid in Accordance With Terms of
Order
When an order is made for the distribution of assets
among creditors, the executor or administrator shall,
as soon as the time of payment arrives, pay the
creditors the amounts of their claims, or the
 REMEDIAL LAW REVIEWER

dividend thereon, in accordance with the terms of

such order. An administrator may not pull a third person against
240 his will into the administration proceedings by mere
Court Shall Allow Executor or Administrator a Time motion for a demand of rentals, but must do so in a
for Disposing the Estate and Paying Debts and separate action
Legacies
Period: x < 1 year Actions which may NOT brought against
- Court may extend the time to x < 6 months Administrators
per extension Claim for the recovery of money or debt or interest
- Whole period to the original executor/ cannot be brought against executors/administrators.
administrator MUST be only x < 2 years
Executor or Administrator may Bring or Defend
Requisites Actions Which Survive
(1) Executor/administrator must apply. For the recovery or protection of the property or
(2) Notice must be given as to time and place rights of the deceased
of hearing. Covers injury to property i.e. not only limited to
(3) Court must hear the application. injuries to specific property, but extends to
other wrongs by which personal estate is injured
Ground for Extension or diminished.
(1) Original executor/administrator dies
(2) New administrator appointed When Recovery of Property Fraudulently
Conveyed by Deceased May be Recovered
Consequence: The court may extend the time (1) There is deficiency of assets and the deceased,
allowed for the payment of the debts or legacies in his lifetime, had conveyed real or personal
beyond the time allowed to the original property, right or interest therein, or debt or
executor/administrator credit with intent to defraud his creditors or
- x < 6 months avoid any right, debt or duty; or
- Not exceeding 6 months at a time and not (2) Had so conveyed such property, right, interest,
exceeding 6 months beyond the time which the debt or credit that by law the conveyance would
court might have allowed to such original be void as against the creditors; and
executor/administrator (3) The subject of the attempted conveyance would
- Notice shall be given of the time and place for be liable to attachment by any of them in his
hearing such application, as required in the last lifetime.
preceding section.
Duty of executor/administrator
(1) Commence and prosecute to final judgment an
VII. ACTIONS BY AND AGAINST action for the recovery of such property, right,
interest, debt or credit for benefit of the
EXECUTORS AND creditors
(2) Provided, creditors making the application pay
ADMINISTRATORS such part of the costs and expenses or give
A. Actions that may be brought against executors security therefor.
and administrators
B. Requisites before creditor may bring an action If a person before granting letters testamentary or
for recovery of property fraudulently administration
conveyed by the deceased (1) Embezzles or alienates
(2) Any of the money, goods, chattels, or effects of
such deceased
A. Actions that may be
brought against Consequence: Such person shall be liable to an
executors and action in favor of the executor/administrator of the
estate for double the value of the property sold,
administrators embezzled, or alienated, to be recovered for the
benefit of such estate.
Actions Which May and Which May Not Be
Brought AGAINST the Executor or
Administrator B. Requisites before
creditor may bring an
Actions to be brought against Administrators action for recovery of
(1) Recover real or personal property or interest
therein property fraudulently
(2) Or to enforce a lien thereon and conveyed by the
(3) Actions to recover damages for an injury to a deceased
person or property
Any creditor may commence and prosecute to final
Claims against the administrator may be presented judgment a like action for the recovery of the
in the administration proceedings but not against
third persons.

subject of the conveyance or attempted conveyance
if the following requisites are satisfied:
Allowed in Two Instances
(1) If executor/administrator failed to commence
such action
(a) With court permission
(b) In the name of the executor/administrator
(c) He files a bond, conditioned to indemnify
the executor/administrator against the cost
and expenses incurred by such action
(2) If conveyance or attempt is made in favor of
executor/administrator
- No need for court permission
- No need for Bond.
- Action shall be brought in the name of all the
creditors
Effect
Such creditor shall have a lien upon any judgment
recovered by him in the action for such costs and
other expenses incurred therein as the court deems
equitable.
VIII. DISTRIBUTION AND
PARTITION
A. Liquidation
B. Project of Partition
C. Remedy of an heir entitled to residue but
not given his share
D. Instances when probate court may issue
writ of execution
Before there could be a distribution of estate, the
following stages must be followed:
(1) Liquidation of the estate i.e. payment of
obligations of the deceased.
(2) Declaration of heirs to determine to whom
the residue of the estate should be distributed.
Afterwards, the residue may be distributed and
delivered to the heirs.
- Determination the right of a natural child
- Determination of proportionate shares of
distributes.
A. Liquidation
Before an order of distribution or assignment of the
estate of the decedent among or to those entitled
thereto by will or by law shall be made to close the
proceedings for the settlement, it must be shown
that the debts, funeral expenses and expenses of
administration, allowances, taxes, etc., chargeable
to the estate have been paid.
General Rule: The following must be paid before
distribution:
(1) Debts
(2) Funeral charges
(3) Expenses of administration
(4) Allowance to the widow
(5) Inheritance tax.
REMEDIAL LAW REVIEWER
Exception: The distributees give a bond conditioned
on the payment of above obligations
241
B. Project of Partition
A project of partition is merely a proposal for the
distribution of the hereditary estate which the court
may accept or reject.
The executor/administrator has no duty to prepare
and present the same under the Rules.
The court may, however, require him to present
such project to better inform itself of the condition
of the estate.
It is the court that makes that distribution of the
estate and determines the persons entitled thereto
(1) On application of executor/administrator or
person interested in the estate
(2) Notice
(3) Hearing
Court shall assign the residue of the estate to the
persons entitled to the same, naming them and the
proportions, or parts, to which each is entitled.
Such persons may demand and recover their
respective shares from the executor/administrator,
or any other person having the same in his
possession.
If there is a controversy as to who are heirs or shares
heard and decided as in ordinary cases
Effect of Final Decree of Distribution
(1) In rem and binding against the whole world.
(2) All persons having interest in the subject matter
involved, whether they are notified or not, are
equally bound.
(3) The court acquires jurisdiction over all persons
interested, through the publication of the notice
prescribed and any order that may be entered
therein is binding against all of them.
(4) The only instance where a party interested in a
probate proceeding may have a final liquidation
set aside is when he is left out by reason of
circumstances beyond his control or through
mistake or inadvertence not imputable to
negligence.
Uriarte vs. CFI (1970): A special proceeding
intended to effect the distribution of the estate of a
deceased person is a "probate matter" or a
proceeding for the settlement of his estate.
It is equally true, however, that testate proceedings,
for the settlement of the estate of a deceased
person take precedence over intestate proceedings
for the same purpose.
Thus, if in the course of intestate proceedings
pending before a court of first instance, it is found
that the decedent had left a last will, proceedings
for the probate of the latter should replace the
 REMEDIAL LAW REVIEWER
intestate proceedings even if at that stage an
administrator had already been appointed, the latter
242 being required to render final account and turn over
the estate in his possession to the executor
subsequently appointed. This, however, is
understood to be without prejudice; that should the
alleged last will be rejected or is disapproved, the
proceeding shall continue as an intestacy.
C. Remedy of an heir
entitled to residue but
not given his share
The better practice for the heir who has not
received his share is to demand his share through a
proper motion in the same probate or administrative
proceedings, or for reopening of the probate or
administrative proceedings if it had already been
closed, and not through an independent action.
[Guilas v. Judge of the CFI of Pampanga, (1972)]
D. Instances when probate
court may issue writ of
execution
(1) To satisfy the contributive shares of devisees,
legatees and heirs in possession of the
decedents assets
(2) To enforce payment of expenses of partition
(3) To satisfy the costs when a person is cited for
examination in probate proceedings
IX. TRUSTEES
A. Distinguished from executor/
administrator
B. Conditions of the Bond
C. Requisites for the removal and resignation
of a trustee
D. Grounds for removal and resignation of a
trustee
E. Extent of authority of trustee
A. Distinguished from
executor or
administrator
Araneta v. Perez (1962)]: A trustee, like an
executor/administrator, holds an office of trust,
particularly when the trustee acts as such under
judicial authority.
The duties of executor/administrator are however,
fixed and/or limited by law whereas those of the
trustee of an express trust are, usually governed by
the intention of the trustor or the parties, if
established by contract. Besides, the duties of
trustees may cover a wider range than those of
executor/administrator of the estate of deceased
persons.
B. Conditions of the Bond
Trustee must file bond before performing Duties
(1) Filed with the clerk of court
(2) Amount fixed by the judge
(3) Payable to the government of Philippines
(4) Sufficient and available for the protection of
any party in interest
If the trustee fails to furnish a bond as required by
the court, he fails to qualify as such. Nonetheless,
the trust is not defeated by such a failure to give
bond, he is considered to have declined or resigned
the trust.
When Exempt
(1) When testator has directed such exemption; or
(2) All persons beneficially interested in the trust,
request such exemption
Exemption may be cancelled at any time
Conditions
(1) Inventory
That the trustee will make and return to the
court, at such time as it may order, a true
inventory of all the real and personal estate
belonging to him as trustee, which at the time
of the making of such inventory shall have come
to his possession or knowledge.
Exemption from inventory:
(a) When trustee is not the original trustee
appointed
(b) Courts discretion
(c) If an inventory has already been filed
(2) Faithful management
That he will manage and dispose of all such
estate, and faithfully discharge his trust in
relation thereto, according to law and the will
of the testator or the provisions of the
instrument or order under which he is appointed
(3) Accounting
That he will render upon oath at least once a
year until his trust is fulfilled, unless he is
excused in any year by the court, a true account
of the property in his hands and the
management and disposition thereof, and will
render such other accounts as the court may
order
(4) Settlement of account and deliver estate.
That at the expiration of his trust he will settle
his account in court and pay over and deliver all
the estate remaining in his hands, or due from
him on such settlement, to the person or
persons entitled to thereto.
C. Requisites for the
removal and
resignation of a trustee
(1) Petition by parties beneficially interested
(2) Due notice to the trustee
(3) Hearing

D. Grounds for removal
and resignation of a
trustee
Grounds for removal (ESIINU)
(1) Removal appears ESsential in the interest of
petitioner.
(2) Trustee is Insane or
(3) Otherwise INcapable of discharging his trust or
(4) Evidently Unsuitable
Resignation
He may resign but the court will determine if
resignation is proper
E. Extent of authority of
trustee
Nature of Possession
The possession of the property by the trustee is not
an adverse possession, but only a possession in the
name and in behalf of the owner of the same.
A trustee may acquire the trust estate by
prescription provided there is a repudiation of the
trust, such repudiation being open, clear and
unequivocal, known to the cestui que trust [Salinas
v. Tuazon (1931)].
Territoriality of authority of trustee
The powers of a trustee appointed by a Philippine
court cannot extend beyond the confines of the
territory of the Republic.
This is based on the principle that his authority
cannot extend beyond the jurisdiction of the
Republic, under whose courts he was appointed.
X. ESCHEAT
A. When to file
B. Requisites for filing of petition
C. Remedy of respondent against petition;
period for filing a claim
Escheat
It is an incident or attribute of sovereignty and rests
on the principle of ultimate ownership by the state
of all property within its jurisdiction.
It is a substantial right of the state and is not a claim
based on charity, gratuity or unearned benefit.
A. When to file
(1) Person dies intestate;
(2) Seized of real property in the Philippines; and
(3) Leaves no heir or person by law entitled to the
same
B. Requisites for filing of
petition
REMEDIAL LAW REVIEWER
(1) A person died intestate
(2) He left no heirs or persons by law entitled to the
same 243
(3) Deceased left properties
Note:
Must be initiated by the Government through the
Solicitor General.
Fix a date and place for hearing, which shall not be
more than 6 months after the entry of the order
Direct a copy of the order to be published before the
hearing at least once a week for 6 successive weeks
in a newspaper of general circulation in the province
Court shall adjudge.
Procedure
Solicitor General or his representative in behalf of
the Republic of the Philippines to file the petition:
Deceased was a resident of the Philippinesin
the RTC of the province where he last resided
Deceased was a non-residentin the RTC of the
province in which he had an estate
Actions for reversion or escheat of properties
alienated in violation of the Constitution or of
any statutein the province where the land lies
in whole or in part
If the petition is sufficient in form and substance,
the court shall fix a date and place for the hearing
The court shall direct a copy of the order to be
published before the hearing at least once a week
for 6 consecutive weeks in some newspaper of
general circulation published in the province, as the
court shall deem best
The court shall hear the case and judge whether or
not the estate shall be escheated
If the court rules in favor of the Republic,
It shall assign the personal estate to the
municipality or city where the deceased last
resided, and the real estate to the municipalities
or cities, respectively, in which the same is
situated.
If the deceased never resided in the Philippines,
the whole estate may be assigned to the
respective municipalities or cities where the same
is located.
Such estate shall be for the benefit of public
schools, and public charitable institutions and
centers in said municipalities or cities.
Effect if Escheat is Granted
Personal estate goes to the municipality or city of
last residence
Real estate goes to the municipality or city where
same is situated
 REMEDIAL LAW REVIEWER
C. Remedy of respondent
against petition; period
244
for filing a claim
Period to appeal and claim the estate
Appeal must be made within 5 years from date of
judgment; otherwise, barred forever
Filed by whom
Devisee, legatee, heir, widow, widower, or other
person entitled to such estate appears
Such person shall have possession of and title to
the same, or if sold, the municipality or city shall
be accountable to him for the proceeds after
deducting reasonable charges for the care of the
estate
Period for filing claim
5 years from date the property was delivered to the
state
XI. GUARDIANSHIP
A. General powers and duties of guardians
B. Conditions of the bond of the guardian
C. Rule on Guardianship over minor
Guardianship
The power of protective authority given by law and
imposed on an individual who is free and in the
enjoyment of his rights, over one whose weakness on
account of his age or other infirmity renders him
unable to protect himself [Herrera].
Guardian
A person lawfully invested with power and charged
with the duty of taking care of a person who for
some peculiarity or status or defect of age,
understanding or self-control is considered incapable
of administering his own affairs [Herrera].
Basis: Parens Patriae
It is the States duty to protect the rights of
persons/individuals who because of age/incapacity
are in an unfavorable position vis--vis other parties
[Nery v. Lorenzo (1972)].
Kinds of Guardians (Regalado)
1. Legal Guardian deemed as guardian by
provision of law, without need of court
appointment (Art. 320, CC; Art. 225, FC)
2. Guardian ad Litem appointed by the court to
prosecute or defend a minor, insane or person
declared to be incompetent, in a court action.
3. Judicial Guardian appointed by the court in
pursuance to law, as guardians for insane
persons, prodigals, minor heirs of deceased war
veterans and other incompetent persons.
a. Guardian over the person.
b. Guardian of the property.
c. General Guardian has custody and care of
the wards person and property.
A. General powers and
duties of guardians
Care and custody of the person of his ward and
management of his property.
Management of his property only.
Management of property within the Philippines
(in case of non-resident ward).
B. Conditions of the bond of
the guardian
(Applicable for both Guardianship of Minors and
incompetents)
(1) To make and return to the court, within three
months after the issuance of his letters of
guardianship, a TRUE AND COMPLETE
INVENTORY of all the real and personal property
of his ward which shall come to his possession or
knowledge or to the possession or knowledge of
any other person in his behalf
(2) To FAITHFULLY EXECUTE THE DUTIES OF HIS
TRUST, to manage and dispose the property
according to this rule for the best interests of
the ward, and to provide for his proper care,
custody and education
(3) To render a TRUE AND JUST ACCOUNT of all the
property of the ward in his hands, and of all
proceeds or interest derived from them, and of
the management and disposition of the same, at
the time designated by this rule and such other
times as the court directs and at the expiration
of his trust, to settle his accounts with the court
and deliver and pay over all the property,
effects, and monies remaining in his hands, or
due from him on such settlement, to the person
lawfully entitled thereto
(4) To perform all orders of the court and such
other duties as may be required by law.
C. Rule on Guardianship
over minors
Parents as Legal Guardians (Art. 225, FC)
The father and the mother shall jointly exercise
legal guardianship over the property of their
unemancipated common child without the necessity
of a court appointment.
Where the market value of the property or the
annual income of the child exceeds P50,000:
(1) The parent concerned shall be required to
furnish a bond in such amount as the court may
determine, but not less than 10% of the value of
the property or annual income.
(2) A verified petition for approval of the bond shall
be filed in the Family Court of the place where
the child resides, or if the child resides in a
foreign country, in the proper court of the place
where the property or any part thereof is
situated.
In case of disagreement, the fathers decision shall
prevail, unless there is a judicial order to the
contrary.
 REMEDIAL LAW REVIEWER

(3) Remarriage of his surviving parent, if the latter

Bautista vs. Bautista (1952): A father or mother,
as the natural guardian of the minor under parental
authority, does not have the power to dispose or
encumber the property of the latter. Such power is
granted by law only to a judicial guardian of the
wards property and only with courts approval.
Valencia vs. Lagdameo (): The remedy of vendees
prejudiced by the illegal transactions of a natural
guardian involving the property of the minor child
lies only against the natural guardian, not however
to recover ownership and possession of the
properties sold but only to recover damages.
Rule on Guardianship of Minors (A.M.
No. 03-02-05-SC)
Scope and Applicability
The father and the mother shall jointly exercise
legal guardianship over the person and property of
their unemancipated common child without the
necessity of a court appointment [Sec. 1]. However,
if the market value of the property or the annual
Income of the child exceeds P50,000.00, the parent
concerned shall furnish a bond [Sec. 16].
The Rule on Guardianship of Minors applies to
petitions for guardianship over the person or
property, or both, of a minor.
The Rules on Guardianship (Rules 92-98, RoC) apply
only to guardianship of incompetents other than a
minor.
Petition for Appointment of Guardian
Who may file
(1) Resident minor
(a) Any relative or other person on behalf of a
minor
(b) The minor himself, if 14 years of age or
over
(c) The Secretary of DSWD or the Secretary of
DOH, in the case of an insane minor who
needs to be hospitalized.
is found unsuitable to exercise parental
authority
(4) When the best interests of the minor so require. 245
Contents of petition
(1) Jurisdictional facts
(2) Name, age and residence of the prospective
ward
(3) Ground rendering the appointment necessary or
convenient
(4) Death of the parents of the minor or the
termination, deprivation or suspension of their
parental authority
(5) Remarriage of the minors surviving parent
(6) Names, ages, and residences of relatives within
the 4th civil degree of the minor, and of persons
having him in their care and custody
(7) Probable value, character and location of the
property of the minor
(8) Name, age and residence of the person for
whom letters of guardianship are prayed.
The petition shall be verified and accompanied by a
certification against forum shopping.
No defect in the petition or verification shall render
void the issuance of letters of guardianship.
Who may file Opposition
(1) Any interested person
(2) The social worker ordered to make the case
study report, if he finds that the petition for
guardianship should be denied (Sec. 9).
How: By filing a written opposition.
Grounds for filing
(1) Majority of the minor
(2) Unsuitability of the person for whom letters are
prayed.

(2) Non-resident minor

(a) Any relative or friend of such minor
(b) Anyone interested in his property, in
expectancy or otherwise.

Where to file
Resident minor - Family Court of the province or
city where the minor actually resides

Non-resident minor - Family Court of the province

or city where his property or any part thereof is
situated

Grounds for filing

(1) Death, continued absence, or incapacity of his
parents
(2) Suspension, deprivation or termination of
parental authority
 REMEDIAL LAW REVIEWER
Procedure
246 Filing of petition.
Court shall fix a time and place for hearing.
Notice requirement
Court shall cause reasonable notice to be given to:
The persons mentioned in the petition
The minor, if he is 14 years of age or over
- For non-resident minors, notice shall be given
to the minor by publication or any other
means as the court may deem proper.
The court may also direct other general or special
notice to be given.
Case Study Report
Court shall order a social worker to conduct a case
study of the minor and all the prospective guardians
and submit his report and recommendation to the
court for its guidance before the scheduled hearing.
Hearing
Compliance with notice requirement must be
shown.
The prospective ward shall be presented to the
court. If the minor is non-resident, the court
may dispense with his presence.
At the discretion of the court, the hearing on
guardianship may be closed to the public.
The records of the case shall not be released
without court approval.
Issuance or denial of letters of guardianship.
Service of final and executory judgment or order
upon the Local Civil Registrar of the municipality or
city where the minor resides and the Register of
Deeds of the place where his property or part
thereof is situated, who shall annotate the same in
the corresponding title, and report to the court their
compliance within fifteen days from receipt of the
order.
The Guardian
Order of Preference of Appointment (in default of
parents or a court-approved guardian)
(1) The surviving grandparent. In case several
grandparents survive, the court shall select any
of them taking into account all relevant
considerations.
(2) The oldest brother or sister of the minor over 21
years of age, unless unfit or disqualified.
(3) The actual custodian of the minor over 21 years
of age, unless unfit or disqualified.
(4) Any other person, who in the sound discretion of
the court, would serve the best interests of the
minor
Qualifications
The court shall consider the guardians:
(1) Moral character
(2) Physical, mental and psychological condition
(3) Financial status
(4) Relationship of trust with the minor
(5) Availability to exercise the powers and duties of
a guardian for the full period of the
guardianship
(6) Lack of conflict of interest with the minor
(7) Ability to manage the property of the minor.
Powers and Duties
In general
(1) Guardian of resident minor: Care and
custody of the person of his ward and the
management of his property, or only the
management of his property.
(2) Guardian of non-resident minor:
Management of all his property within the
Philippines
Specific duties
(1) To pay the just debts of the ward out of:
(a) Personal property and the income of
the real property of the ward, if the
same is sufficient
(b) Real property of the ward upon
obtaining an order for its sale or
encumbrance.
(2) To settle all accounts of his ward
(3) To demand, sue for, receive all debts due
him, or, with the approval of the court,
compound for the same and give discharges
to the debtor on receiving a fair and just
dividend of the property and effects
(4) To appear for and represent the ward in all
actions and special proceedings, unless
another person is appointed for that
purpose
(5) To manage the property of the ward
frugally and without waste, and apply the
income and profits thereon, insofar as may
be necessary, to the comfortable and
suitable maintenance of the ward. If such
income and profits be insufficient for that
purpose, to sell or encumber the real or
personal property, upon being authorized
by the court to do so
(6) To consent to a partition of real or personal
property owned by the ward jointly or in
common with others, upon:
(a) Authority granted by the court after
hearing
(b) Notice to relatives of the ward, and
(c) A careful investigation as to the
necessity and propriety of the proposed
action.
(7) To submit to the court a verified inventory
of the property of the ward:
(a) Within three months after his
appointment
(b) Annually, and
(c) Whenever required upon the
application of an interested person.
(8) To report to the court any property of the
ward not included in the inventory which is
discovered, or succeeded to, or acquired by
the ward within 3 months after such
discovery, succession, or acquisition

(9) To render to the court for its approval an
accounting of the property:
(a) One year from his appointment
(b) Every year thereafter, and
(c) As often as may be required.
Bonds of Guardians
When filed: Before a guardian enters upon the
execution of his trust, or letters of guardianship
issue.
Amount: As determined by the Court.
Conditions: The guardian is:
(1) To make and return to the court, within three
months after the issuance of his letters of
guardianship, a true and complete inventory of
all the real and personal property of his ward
which shall come to his possession or knowledge
or to the possession or knowledge of any other
person in his behalf
(2) To faithfully execute the duties of his trust, to
manage and dispose the property according to
this rule for the best interests of the ward, and
to provide for his proper care, custody and
education
(3) To render a true and just account of all the
property of the ward in his hands, and of all
proceeds or interest derived from them, and of
the management and disposition of the same, at
the time designated by this rule and such other
times as the court directs and at the expiration
of his trust, to settle his accounts with the court
and deliver and pay over all the property,
effects, and monies remaining in his hands, or
due from him on such settlement, to the person
lawfully entitled thereto
(4) To perform all orders of the court and such
other duties as may be required by law.
Posting of new bond
Whenever necessary, the court may require the
guardian to post a new bond and may discharge from
further liability the sureties on the old bond.
Requirements
(1) Due notice to interested persons
(2) No injury must result to those interested in the
property.
Liability: In case of breach of any of its conditions,
the guardian may be prosecuted in the same
proceeding for the benefit of the ward or of any
other person legally interested in the property.
Reimbursement of Reasonable Expenses and
Payment of Compensation
The court may authorize reimbursement to the
guardian, other than a parent, of reasonable
expenses incurred in the execution of his trust.
The court may allow payment of compensation for
his services as the court may deem just, not
exceeding 10% of the net income of the ward, if any
otherwise, in such amount the court determines to
be a reasonable compensation for his services.
REMEDIAL LAW REVIEWER
Embezzlement, Concealment, or Conveyance of
Wards Properties
The court may require any person suspected of 247
having embezzled, concealed, or disposed of any
money, goods or interest, or a written instrument
belonging to the ward or his property to appear for
examination concerning any thereof and issue such
orders as would secure the property against such
embezzlement, concealment or conveyance, upon
complaint of:
(1) The guardian or ward, or
(2) Any person having actual or prospective interest
in the property of the ward.
Selling and Encumbering the Property of the Ward
Grounds
(1) When the income of a property under
guardianship is insufficient to maintain and
educate the ward
(2) When it is for the benefit of the ward that his
personal or real property or any part thereof be
sold, mortgaged or otherwise encumbered, and
the proceeds invested in safe and productive
security, or in the improvement or security of
other real property.
How: Verified petition filed by the guardian.
Order to Show Cause
The court shall order the wards next of kin and all
persons interested in the property to appear at a
reasonable time and place and show cause why the
petition should not be granted.
At the time and place designated in the order to
show cause, the court shall hear the allegations and
evidence of the petitioner and next of kin, and other
persons interested, together with their witnesses,
and grant or deny the petition as the best interests
of the ward may require.
Order for Sale or Encumbrance
Contents:
(1) Grounds for the sale or encumbrance.
(2) Manner of sale (public or private)
(3) Time and manner of payment
(4) Security, if payment deferred
(5) Additional bond from guardian, if required.
Duration: Not more than 1 year, unless renewed.
Investment of Proceeds and Management of
Property
The court may authorize and require the guardian to
invest the proceeds of sales or encumbrances, and
any other money of his ward in his hands, in real or
personal property, for the best interests of the
ward.
The court may make such other orders for the
management, investment, and disposition of the
property and effects, as circumstances may warrant.
 REMEDIAL LAW REVIEWER
Removal, Resignation, and Termination of
248 Guardianship
Removal
How: Upon reasonable notice to the guardian.
Grounds: The guardian:
(1) Becomes insane or otherwise incapable of
discharging his trust
(2) Is found to be unsuitable
(3) Wasted or mismanaged the property of the
ward
(4) Failed to render an account or make a
return for thirty days after it is due.
Resignation
Ground: Any justifiable cause.
Upon the removal or resignation of the
guardian, the court shall appoint a new one.
No motion for removal or resignation shall be
granted unless the guardian has submitted the
proper accounting of the property of the ward
and the court has approved the same.
Termination
Grounds
(1) The ward has come of age.
(2) The ward has died.
How
(1) Court motu proprio terminates guardianship
(2) Upon verified motion of any person allowed
to file a petition for guardianship.
The guardian shall notify the court of the fact of
coming of age or death of the ward within 10 days of
its occurrence.
The final and executory judgment or order removing
a guardian or terminating the guardianship shall be
served upon the Local Civil Registrar of the
municipality or city where the minor resides and the
Register of Deeds of the province or city where his
property or any part thereof is situated, who shall
enter the final and executory judgment or order in
the appropriate books in their offices.
XII. ADOPTION
A. Distinguish domestic adoption from inter-
country adoption
B. Domestic Adoption Act
C. Inter-country Adoption
Adoption
A juridical act which creates between two persons a
relation similar to that which results from filiation.
Lahum vs. Sibulo (2003): Adoption is a privilege
governed by the states determination of what is for
the best welfare of the child.
A. Distinguish domestic
adoption from inter-country
adoption
See Annex A.
B. Domestic Adoption Act
RA 8552 (Domestic Adoption Act) and the Rule on
Adoption govern the domestic adoption of Filipino
children.
Effects of adoption
Parental Authority (Sec.16)
All legal ties bet. biological parents and adoptee are
severed, and the same shall be vested on the
adopter, except if the biological parent is the spouse
of the adopter
Legitimacy (Sec.17)
The adoptee shall be considered legitimate
son/daughter of the adopter for all intents and
purposes, and entitled to all rights and obligations
provided by law to legitimate children born to them
without discrimination of any kind. Adoptee is
entitled to love, guidance, and support.
Succession (Sec.18)
Adopter and adoptee shall have reciprocal rights of
succession without distinction from legitimate
filiation, in legal and intestate succession. If
adoptee and his/her biological parents had left a
will, the law on testamentary succession shall
govern.
Book of Adoptions
The Clerk of Court shall keep a book of adoptions
showing the date of issuance of the decree in each
case, compliance by the Civil Registrar with the
courts order, and all incidents arising after the
issuance of the decree.
Confidentiality of Adoption Proceedings
All hearings in adoption cases, after compliance with
the jurisdictional requirements shall be confidential
and shall not be open to the public.
If the court finds that the disclosure of the
information to a third person is necessary for
security reasons or for purposes connected with or
arising out of the adoption and will be for the best
interests of the adoptee, the court may, upon proper
motion, order the necessary information to be
released, restricting the purposes for which it may
be used.
Instances when adoption may be rescinded
Rescission of Adoption of the Adoptee
Who may file
(1) Adoptee who is over 18 years of age
(2) If the adoptee is a minor, with the
assistance of the DSWD
(3) If the adoptee is over 18 years of age but
incapacitated, by his guardian or counsel.

Grounds: Committed by the adopter
(1) Repeated physical and verbal maltreatment
despite having undergone counseling
(2) Attempt on the life of the adoptee
(3) Sexual assault or violence
(4) Abandonment or failure to comply with
parental obligations.
Adoption, being in the best interests of the
child, shall not be subject to rescission by
the adopter.
However, the adopter may disinherit the
adoptee for causes provided in Article 919
of the Civil Code.
Where to file: Family Court of the city or
province where the adoptee resides.
When to file:
(1) Within 5 years after reaching age of
majority
(2) If he was incompetent at the time of the
adoption, within 5 years after recovery
from such incompetency.
Effects of rescission of adoption
(1) RESTORATION OF PARENTAL AUTHORITY to
original parent if adoptee is a minor.
(2) RECIPROCAL RIGHTS AND OBLIGATIONS of
adopter and adoptee are EXTINGUISHED .
(3) CANCELLATION of amended birth certificate and
RESTORE ORIGINAL.
(4) SUCCESSIONAL RIGHTS SHALL REVERT to its
status PRIOR TO ADOPTION, as of the date of
final judgment of rescission.
(5) VESTED RIGHTS shall be RESPECTED.
C. Inter-country
Adoption
RA 8043 (Inter-country Adoption Act) governs the
adoption of Filipino children by:
(1) Foreign nationals, and
(2) Filipino citizens permanently residing abroad.
When allowed
Inter-country Adoption as the Last Resort
The Inter-country Adoption Board (ICAB) shall ensure
that all possibilities for adoption of the child
under the Family Code (domestic adoption) have
been exhausted and that inter-country adoption is
in the best interest of the child (Sec. 7, RA 8043).
Functions of the RTC
(1) Filing of petition may be made with the Family
Court having jurisdiction over the place where
the child resides or may be found.
(2) Court shall determine whether or not petition is
sufficient in form and substance and a proper
case for inter-country adoption.
(3) Transmit the petition to the ICAB for
appropriate action.
REMEDIAL LAW REVIEWER
Best interest of the minor standard
The Inter Country Adoption Board shall ensure that
all possibilities for adoption of the child under the
Family Code have been exhausted and that inter- 249
country adoption is in the best interest of the child.
XIII. WRIT OF HABEAS CORPUS
A. Contents of the petition
B. Contents of the Return
C. Distinguish peremptory writ from
preliminary citation
D. When not proper/applicable
E. When writ disallowed/discharged
F. Distinguish from writ of Amparo and
Habeas Data
G. Rules on Custody of Minors and Writ of
Habeas Corpus in Relation to Custody of
Minors (AM No. 03-04-04-SC)
WRIT OF HABEAS CORPUS
Essentially a writ of inquiry, granted to test the right
under which a person is detained, and to relieve a
person if such restrain is illegal
Can only be suspended in cases if in cases or
rebellion or invasion and when public interest
requires it (Art. III Sec. 15)
Vital purposes:
In General
(1) To obtain relief from illegal confinement
(2) To liberate those who may be imprisoned
without sufficient cause
(3) To deliver them from unlawful custody
In the case of minors
(1) To enable parents to regain custody of a minor
daughter, even though the latter be in the
custody of a third person of her own free will
(2) To resolve questions of custody of a minor
The underlying rationale is not the illegality if the
restraint but the right of custody
Who may issue the writ
(1) The SC,CA, and RTC have concurrent jurisdiction
to issue WHC
(2) Family courts have jurisdiction to hear petitions
for custody of minors and the issuance of the
WHC in relation to custody of minors
Moncupa v. Enrile (1986)
(a) Where a person continued to be unlawfully
denied one or more of his constitutional rights
(b) Where there is present denial of due process
(c) Where the restraint is not merely involuntary
but appear to be unnecessary
(d) Where a deprivation of freedom originally valid
has in light of subsequent developments become
arbitrary
The person concerned or those applying in his behalf
may still avail themselves of the privilege of the
 REMEDIAL LAW REVIEWER

writ.
A. Contents of the
250 Extends to all cases of illegal confinement or
Petition
detention by which any person any person is
deprived of his liberty, or by which the rightful
Application for the writ shall be by petition signed
custody of any person is withheld from the person
and verified by the party for whose relief it is
entitled thereto.
intended, or by some person on his behalf
Some person any person who has a legally
Prime specification of the application for a writ of
justified interest in the freedom of the person
habeas corpus is restraint of liberty.
whose liberty is restrained or who shoes some
authorization to make the application
Not an inquisition between private parties, but an
inquisition by the government proceedings in habeas
Shall set forth:
corpus are separate and distinct from the main case
(1) That the person in whose behalf the application
from which the proceedings spring
is made is imprisoned or restrained of his liberty
Ex parte Bollman: the question whether one
(2) The officer or name of the person by whom he is
shall be imprisoned is always distinct from the
so imprisoned or retrained or if both are
question of whether the individual shall be
unknown or uncertain, such officer or person
convicted or acquitted of the charge on which
may be described by an assumed appellation,
he is tried, and therefore these questions are
and the person who is served with the writ shall
separate, and may be decided in different
be deemed the person intended
courts
(3) The place where he is so imprisoned or
In the case if People v. Valte (1922), it was
restrained, if known
stated that the writ of habeas corpus is not
(4) A copy of the commitment or cause of detention
designed to interrupt the orderly administration
of such person, if it can be procured without any
of the laws by a competent court acting within
legal authority, such fact shall appear.
the limits of its jurisdiction, but is available only
for the purpose relieving from illegal restraint
Procedure:
(1) Application for the writ by petition
Proceedings on habeas corpus to obtain release from
(2) Grant by court or judge
custody under final judgment being in the nature of
(3) Clerk of Court issues the writ under the seal of
collateral attack, the writ deals only with such
court (in case of emergency, by the judge
radical defects as render the proceeding or
himself)
judgment absolutely void, and cannot have the
(4) Service:
effect of appeal, writ of error or certiorari, for the
- By whom: sheriff or other proper officer
purpose of reviewing mere error and irregularities in
- How: leaving the original with the person to
the proceedings.
whom it is directed and preserving a copy
on which to make return
A release that renders a petition for a writ of habeas
- To whom: officer in custody or any officer
corpus moot and academic must be one which is free
(when in custody of person other than an
from involuntary restraint.
officer)
(5) Execution officer bring the person before the
WHC may be used with writ of certiorari for purposes
judge
of review:
The two writs may be ancillary to each other
where necessary to give effect to the B. Contents of the
supervisory powers of higher courts Return
WHC reaches the body of the jurisdictional
matters, but not the record. Writ of certiorari Made by the person or officer in whose custody the
reaches the record but not the body prisoner is found:
While generally, the WHC will not be granted (1) Whether he has or has not the party in his
when there is and adequate remedy like writ of custody or power, or under restraint
error, appeal, or certiorari, it may still be (2) If he has the party in his custody or power, or
available in exceptional cases under restraint, the authority and the true and
Generally, WHC is not the proper remedy for the whole cause thereof, set forth at large, with a
correction of errors of fact or law copy of the writ, order execution, or other
Exception: Error affects courts jurisdiction process, if any, upon which the party is held
(making the judgment void) (3) If the party is in his custody or power or is
WHC does not lie where the petitioner has the restrained by him, and is not produced,
remedy of appeal or certiorari particularly the nature and gravity of the
WHC is not proper: sickness or infirmity of such party by reason of
- To assert or vindicate denial of right to bail which he cannot, without danger, be bought
- For correcting errors in appreciation of fact before the court or judge
or law (4) If he has had the party in his custody or power,
or under restraint, and has transferred such
HC and not prohibition is the proper remedy for custody or restraint to another, particularly to
reviewing proceedings for deportation of aliens

whom, at what time, for what cause, and by
what authority such transfer was made.
The return or statement shall be signed by the
person who makes it; and shall also be sworn by him
if the prisoner is not produced, and in all other
cases, unless the return is made and signed by a
sworn public officer in his official capacity.
If it appears that the prisoner is in custody under a
warrant of commitment in pursuance of law, the
return shall be considered prima facie evidence of
the cause of restraint, but if he is restrained of his
liberty by any alleged private authority, the return
shall be considered only as a plea of the facts
therein set forth, and the party claiming the custody
must prove such facts.
C. Distinguish
Peremptory Writ from
Preliminary Citation
Preliminary citation requires the respondent to
appear and show cause why the peremptory writ
should not be granted
Peremptory writ unconditionally commands the
respondent to have the body of the detained person
before the court at a time and place therein
specified
D. When Writ Not Proper
or Applicable
WHC will not issue where:
(1) The person alleged to be restrained of his
liberty is in custody of an officer
(2) Under process issued by the court or judge
(3) By virtue of a judgment or order of a court of
record
(4) The Court or judge had which has jurisdiction to
issue the process, render the judgment or make
the order.
The operative act is detention or restraint (whether
or not physical). If there is none, no WHC will issue
despite the possibility of respondent being liable to
civil, criminal, or administrative action
Judicial discretion is exercised in issuance of the
writ, and will not issue as a matter of course
General Rule: the release, whether permanent or
temporary, of a detained person renders the petition
for habeas corpus moot and academic
Exception: Unless there are restraints attached to
his release which precludes freedom of action in
which case the Court can still inquire into the nature
of his involuntary restraint
General Rule: WHC will not issue where the person
alleged to be restrained of his liberty is in custody of
an officer under a process issued by the court which
has jurisdiction to do so
REMEDIAL LAW REVIEWER
Even if the arrest of a person is illegal, supervening
events may Bar his release or discharge form
custody 251
The legality of the detention is inquired into at
the earliest, the application for a WHC
Among the supervening events is the issuance of
a judicial process (defined as a writ, warrant,
subpoena, or other formal writing issued by
authority of law)
Another supervening event is the filing before a
trial court a complaint which issued a hold
departure order and denied motion to dismiss
and to grant bail (Velasco v. CA,1995)
Filing of an information for the offense for
which the accused is detained Bars the
availability of WHC
Improper arrest or lack of preliminary investigation
is not a valid ground for the issuance of WHC. The
proper remedy is a motion to quash warrant of arrest
and/or information before the trial court
Posting of a bail is not a waiver of the right to
challenge the validity of the arrest, and therefore
the right to resort to WHC (Revised Rules of Crim Pro
Sec. 26)
A person discharged on bail is not entitled to WHC,
because such person is not imprisoned or restrained
of his liberty in such a way as to entitle him to the
WHC
E. When Discharge Not
Authorized
Discharge from custody will not be allowed if:
(1) Jurisdiction appears after the writ is allowed,
despite any informality or defect in the process,
judgment, or order.
(2) Person is charged with or convicted of an
offense in the Philippines
(3) Person is suffering imprisonment under lawful
judgment
(4) If it appears that the prisoner was lawfully
committed, and is plainly and specifically
charged in the warrant of commitment with an
offense punishable by death
(5) Even if the arrest of a person is illegal, due to
supervening events
(a) Issuance of a judicial process (defined as a
writ, warrant, subpoena, or other formal
writing issued by authority of law)
(b) Another supervening event is the filing
before a trial court a complaint which
issued a hold departure order and denied
motion to dismiss and to grant bail (Velasco
v. CA,1995)
(c) Filing of an information for the offense for
which the accused is detained bars the
availability of WHC
Improper arrest or lack of preliminary investigation
is not a valid ground for the issuance of WHC
Proper remedy is a motion to quash warrant of arrest
 REMEDIAL LAW REVIEWER
and/or information before the trial court
252 A person discharged on bail is not entitled to WHC,
because such person is not imprisoned or restrained
of his liberty in such a way as to entitle him to the
WHC
F. Distinguished from
Mandatory pre-trial
Writ of Amparo and
Habeas Data
See Annex B.
G. Custody of Minors and
Writ of Habeas Corpus
in Relation to Custody
of Minors (A.M. No.
03-04-04-SC)
Applicability
Applies to petitions for custody of minors and
writs of habeas corpus in relation thereto.
Rules of Court shall apply suppletorily.
Petition for Rightful Custody
Verified petition for the rightful custody of a
minor may be filed by any person claiming such
right.
Party against whom it may be filed shall be
designated as the respondent.
Filed with the Family Court of the province or
city where the petitioner resides or where the
minor may be found.
Contents:
(1) The personal circumstances of the petitioner
and of the respondent
(2) The name, age and present whereabouts of the
minor and his or her relationship to the
petitioner and the respondent
(3) The material operative facts constituting
deprivation of custody
(4) Such other matters which are relevant to the
custody of the minor
Verified and accompanied with a certificate against
forum shopping signed by the petitioner personally.
If court is satisfied that the petition is sufficient in
form and substance, it shall direct the clerk of court
to issue summons, which shall be served together
with a copy of the petition personally on the
respondent.
Answer to the Petition
General rule: Motion to dismiss the petition is not
allowed. Any other ground that might warrant the
dismissal of the petition may be raised as an
affirmative defense in the answer.
Exception: On the ground of lack of jurisdiction over
the subject matter or over the parties.
Personally verified and filed within 5 days after
service of summons.
Upon the filing of the verified answer or the
expiration of the period to file it, the court may
order a social worker to make a case study of
the minor and the parties and to submit to the
court at least 3 days before pre-trial.
Notice - 15 days after the filing of the answer or
the expiration of the period to file answer, the
court shall issue an order:
(1) Fixing a date for the pre-trial conference
(2) Directing the parties to file and serve their
respective pre-trial briefs
(3) Requiring the respondent to present the
minor before the court.
The notice of its order shall be served
separately on both the parties and their
respective counsels.
Pre-trial brief contains the following:
(1) A statement of the willingness of the
parties to enter indicating its terms
(2) A concise statement of their respective
claims
(3) Admitted facts and proposed stipulations of
facts
(4) The disputed factual and legal issues
(5) All the evidence to be presented
(6) The number and names of the witnesses and
their respective affidavits
(7) Such other matters as the court may require
to be included.
Failure to file the pre-trial brief or to comply
with its required contents has same effect as
failure to appear at the pre-trial.
If the petitioner fails to appear personally at the
pre-trial, the case shall be dismissed.
Unless his counsel or a duly authorized
representative appears in court and proves a
valid excuse for the non-appearance of the
petitioner.
If the respondent has filed his answer but fails
to appear at the pre-trial, the petitioner shall
be allowed to present his evidence ex parte.
The Court shall then render judgment on the
basis of the pleadings and the evidence thus
presented.
At the pre-trial, the parties may agree on the
custody of the minor. If the parties fail to agree,
the court may refer the matter to a mediator
who shall have 5 days to effect an agreement
between the parties. If the issue is not settled
through mediation, the court shall proceed with
the pre-trial.
After an answer has been filed or after
expiration of the period to file it, the court may
issue a provisional order awarding custody of the
minor to:
(1) Both parents jointly

(2) Either parent
(3) The grandparent, or if there are several
grandparents, the grandparent chosen by
the minor over 7 years of age and of
sufficient discernment
(4) The eldest brother or sister over 21 years of
age
(5) The actual custodian of the minor over 21
years of age
(6) Any other person or institution the court
may deem suitable.
Interim Reliefs
Temporary visitation rights - court shall provide
in its order awarding provisional custody
appropriate visitation rights to the non-custodial
parent or parents.
Unless the court finds said parent or parents
unfit or disqualified.
The temporary custodian shall give the court
and non custodial parent or parents at least 5
days' notice of any plan to change the residence
of the minor or take him out of his residence for
more than 3 days
Hold Departure Order the minor child shall
not be brought out of the country without prior
order from the court while the petition is
pending.
- The Court, motu proprio or upon application
under oath, may issue ex parte a hold
departure order, addressed to the Bureau of
Immigration and Deportation (BID), directing
it not to allow the departure of the minor
from the Philippines without court permission.
- The Family Court issuing the hold departure
order shall furnish the DFA and the BID of the
DOJ a copy of the hold departure order within
24 hours from its issuance.
- The court may recall the hold departure order
motu proprio or upon verified motion of any
of the parties after summary hearing.
Protection Order (PO)- court may issue a PO
requiring any person:
(1) To stay away from the home, school,
business, or place of employment of the
minor, other parent or any other party, or
from any other specific place
(2) To cease and desist from harassing,
intimidating, or threatening such minor or
the other parent or any person to whom
custody of the minor is awarded
(3) To refrain from acts or omission that create
an unreasonable risk to minor
(4) To permit a parent, or a party entitled to
visitation by a court order or a separation
agreement, to visit the minor at stated
periods
(5) To permit a designated party to enter the
residence during a specified period of time
in order to take personal belongings not
contested in a proceeding pending with the
Family Court
REMEDIAL LAW REVIEWER
(6) To comply with such other orders as are
necessary for the protection of the minor.
Judgment 253
Court shall render judgment awarding the custody of
the minor to the proper party considering the best
interests of the minor.
If both parties are unfit to have the care and custody
of the minor, the court may designate either the
paternal or maternal grandparent of the minor, or
his oldest brother or sister, or any reputable person
to take charge of such minor, or commit him to any
suitable home.
Court may order either or both parents to give an
amount necessary for the support, maintenance and
education of the minor, irrespective of
custodianship.
The court may also issue any order that is just and
reasonable permitting the parent who is deprived of
the care and custody of the minor to visit or have
temporary custody.
Appeal
Appeal from the decision shall be allowed, unless
the appellant has filed a motion for reconsideration
or new trial within 15 days from notice of judgment.
An aggrieved party may appeal from the decision by
filing a Notice of Appeal within 15 days from notice
of the denial of the motion for reconsideration or
new trial and serving a copy on the adverse parties.
Writ of Habeas Corpus in Relation to Custody of
Minors
A verified petition for a writ of habeas corpus
involving custody of minors filed with the Family
Court. The writ shall be enforceable within the
judicial region the Family Court belongs.
However, the petition may be filed with a regular
court in the absence of the presiding judge of the
Family Court provided that the regular court shall
refer the case to the Family Court as soon as its
presiding judge returns to duty.
Petition may also be filed with the appropriate
regular courts in places where there are no Family
Courts.
The petition may be filed with the SC, CA, or with
any of its members and shall be enforceable
anywhere in the Philippines. The writ may be made
returnable to a Family Court or to any regular court
within the region where the petitioner resides or
where the minor may be found for hearing and
decision on the merits.
Upon return of the writ, the court shall decide the
issue on custody of minors.
 REMEDIAL LAW REVIEWER
254
XIV. WRIT OF AMPARO
A. Coverage
B. Distinguish from habeas corpus and
habeas data
C. Differences between Amparo and search
warrant
D. Who may file
E. Contents of return
F. Effects of failure to file return
G. Omnibus waiver rule
H. Procedure for hearing
I. Institution of separate action
J. Effect of filing of a criminal action
K. Consolidation
L. Interim reliefs available to petitioner and
respondent
M. Quantum of proof in application for
issuance of writ of Amparo
WRIT OF AMPARO
Literally means to protect
Came originally from Mexico and evolved into
many forms
(1) Amparo libertad for protection of personal
freedom
(2) Amparo contra leyes for judicial review of
the constitutionality of statutes
(3) Amaparo casacion judicial review of
constitutionality and legality of judicial
decisions
(4) Amparo agrario for protection of
peasants rights
AM No 7-9-12-SC (Rules on the Writ of Amparo)
was promulgated by the Supreme Court by
virtue of the 1987 Constitution stating that the
SC has the power to [p]romulgate rules
concerning the protection and enforcement of
constitutional rights (Art VIII Sec. 5).
- Interpreted as the additional power to
promulgate rules to protect and enforce rights
guaranteed by the fundamental law of the
land.
Yano v. Sanchez (2010): The failure to establish
that the public official observed extraordinary
diligence in the performance of duty does not result
in the automatic grant of the privilege of the amparo
writ. It does not relieve the petitioner from
establishing his or her claim by substantial evidence.
The omission or inaction on the part of the public
official provides, however, some basis for the
petitioner to move and for the court to grant certain
interim reliefs.
A. Coverage
Remedy available to any person whose right to life,
liberty and security is violated or threatened with
violation by an unlawful act or omission of a public
official or employee, or of a private individual or
entity
(1) Extralegal killings (killings committed without
due process of law) and
(2) Enforced disappearances (Sec. of National
Defense v. Manalo 2008), the elements of which
are:
(a) An arrest, detention or abduction of a
person by a government official or
organized groups or private individuals
acting with the direct or indirect
acquiescence of the government
(b) The refusal of the State to disclose the fate
or whereabouts of the person concerned or
a refusal to acknowledge the deprivation of
liberty which places such persons outside
the protection of law
Enumerates the constitutional rights protected by
the writ, which is only the right to life, liberty and
security of persons.
Limits the coverage because other constitutional
rights are already protected through different
remedies.
However, the coverage is still broader compared to
other jurisdictions:
(1) Philippine writ covers both actual and
threatened violations of constitutional rights
(2) Covers not only the public but also private
individual and entities
Right to security as a guarantee of protection by
the government, is violated by the apparent threat
to the life, liberty and security of their person.
Secretary of Justice v. Manalo (supra): Even if the
respondents have escaped from captivity and are
physically free, there is a continuing violation of
their right to security because there is a violation of
freedom from threat by the apparent threat to
life, liberty and security of their person from the
following facts:
(1) Threat of killing their families if they tried
to escape
(2) Failure of the military to protect them from
abduction
(3) Failure of the military to conduct effective
investigation
B. Distinguish from Writ of Habeas
Corpus and Habeas Data
See Annex C
C. Distinguish Writ of Amparo
From Search Warrant
Secretary of Defense v. Manalo (2008): The
production order under the Amparo Rule should not
be confused with a search warrant for law
enforcement under Article III, Section 2 of the 1987
Constitution.

The Constitutional provision is a protection of the
people from the unreasonable intrusion of the
government, not a protection of the government
from the demand of the people such as respondents.
Instead, the Amparo production order may be
likened to the production of documents or things
under Section 1, Rule 27 of the Rules of Civil
Procedure i.e. Upon motion of any party showing
good cause therefor, the court in which an action is
pending may (a) order any party to produce and
permit the inspection and copying or photographing,
by or on behalf of the moving party, of any
designated documents, papers, books of accounts,
letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence
material to any matter involved in the action and
which are in his possession, custody or control...
D. Who may file
(1) Aggrieved party
(2) Any member of the immediate family namely:
the spouse, children and parents of the
aggrieved party
(3) Any ascendant, descendant or collateral relative
of the aggrieved party within the fourth civil
degree of consanguinity or affinity, in default of
those mentioned in the preceding paragraph or
(4) Any concerned citizen, organization, association
or institution if there is no known member of
the immediate family or relative of the
aggrieved party.
Petition may be filed by the aggrieved party or by
any qualified person or entity
The filing of a petition by the aggrieved party
suspends the right of all other authorized parties to
file similar petitions
Order which must be followed by those who can sue
for the writ i.e. filing of the petition by an
authorized party on behalf of the aggrieved party
suspends the right of all others. This provides for the
order which must be followed by those who can sue
for the writ
(1) Necessary for the prevention of indiscriminate
and groundless filing of petitions for amparo
which may even prejudice the right to life,
liberty or security of the aggrieved party
(2) Untimely resort to the writ by a non-member of
the family may endanger the life of the
aggrieved party
If authorized by (1) or (2), (3) may file
Canlas v. NAPICO (2008): The claim to dwelling,
assuming there is still a right despite the adverse
final and executory judgment, does not constitute
right to life, liberty and security. There is,
therefore, no legal basis for the issuance of the writ
of amparo.
Where:
REMEDIAL LAW REVIEWER
(1) RTC where the threat, act or omission was
committed or any of its element occurred
(2) Sandiganbayanunlike the writ of habeas
corpus, because public officials and employees 255
will be respondents in amparo petitions
(3) Court of Appeals
(4) Supreme Court
(5) Any justice of such courts
May be filed or any day, including Saturdays,
Sundays, and holidays; from morning until evening
Contents:
(1) The personal circumstances of the petitioner;
(2) The name and personal circumstances of the
respondent responsible for the threat, actor
omission or if the name is unknown or uncertain,
the respondent may be described by an assumed
appellation;
(3) The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of the
respondent, and how such threat or violation is
committed with the attendant circumstances
detailed in supporting affidavits;
(4) The investigation conducted, if any, specifying
the names, the personal circumstances and
addresses of the investigating authority or
individuals, as well as the manner and conduct
of the investigation, together with any report;
(5) The actions and recourses taken by the
petitioner to determine the fate or whereabouts
of the aggrieved party and the identity of the
person responsible for the threat, act or
omission; and
(6) The relief prayed for.
May include a general prayer
Signed and verified
E. Contents of Return
The respondent shall file a verified written return
together with supporting affidavits within 72 hours
after service of the writ.
Contents:
(1) The lawful defenses to show that the
respondent did not violate or threaten with
violation the right to life, liberty and security of
the aggrieved party, through any act or omission
(2) The steps or actions taken by the respondent to
determine the fate or whereabouts of the
aggrieved party and the person responsible for
the threat, act or omission
(3) All relevant information in the possession of the
respondent pertaining to the threat, act or
omission against the aggrieved party and
(4) If the respondent is a public official or employee
the return shall further state the actions that
have been or will still be taken[...].
(5) The return shall also state matters relevant to
the investigation, its resolution and the
prosecution of the case.
 REMEDIAL LAW REVIEWER
F. Omnibus Waiver Rule
256
Defenses not pleaded deemed waived.
All defenses shall be raised in the return, otherwise,
they shall be deemed waived.
G. Effect of Failure to File a
Return
In case the respondent fails to file a return, the
court, justice or judge shall proceed to hear the
petition ex parte.
H. Procedure for Hearing on the
Writ
Summary Hearing
Hearing on the petition shall be summary.
BUT: The court, justice, or judge may call for a
preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations
and admissions from the parties.
Prohibited Pleadings and Motions
(1) Motion to dismiss
(2) Motion for extension of time to file return,
opposition, affidavit, position paper and other
pleadings
(3) Dilatory motion for postponement
(4) Motion for a bill of particulars
(5) Counterclaim or cross-claim
(6) Third-party complaint
(7) Reply
(8) Motion to declare respondent in default
(9) Intervention
(10) Memorandum
(11) Motion for reconsideration of interlocutory
orders or interim relief orders and
(12) Petition for certiorari, mandamus or prohibition
against any interlocutory order.
Allows motion for new trial and petition for relief
from judgment
I. Institution of Separate Actions
The Rule shall not preclude the filing of separate
criminal, civil or administrative actions.
Neither does the writ of amparo suspend the filing of
criminal, civil or administrative actions
But a claim for damages should instead be filed in a
proper civil action.
If the evidence so warrants, the amparo court may
refer the case to the Department of Justice for
criminal prosecution, because the amparo
proceeding is not criminal in nature and will not
determine the criminal guilt of the respondent.
J. Effect of Filing of a Criminal
Action
When a criminal action has been commenced, NO
SEPARATE PETITION for the writ shall be filed.
Reliefs under the writ shall be available by motion in
a criminal case.
Procedure under this Rule shall govern the
disposition of the reliefs available under the writ of
amparo.
K. Consolidation
When a criminal action is filed subsequent to the
filing of a petition for the writ, the latter shall be
consolidated with the criminal action.
After consolidation, the procedure under this Rule
shall continue to apply to the disposition of the
reliefs on the petition.
L. Interim Reliefs Available to
Petitioner and Respondent
Upon filing of the petition or at any time before
final judgment
Interim Reliefs available to the Petitioner
(1) Temporary Protection Order. The court,
justice or judge, upon motion or motu proprio,
may order that the petitioner or the aggrieved
party and any member of the immediate family
be protected in a government agency or by an
accredited person or private institution capable
of keeping and securing their safety. If the
petitioner is an organization, association or
institution referred to in Section 3(c) of this
Rule, the protection may be extended to the
officers concerned.
The SC shall accredit the persons and private
institutions that shall extend temporary
protection to the petitioner or aggrieved party
and any member of the immediate family, in
accordance to the guidelines which it shall
issue.
The accredited persons and private persons and
private institutions shall comply with the rules
and conditions that may be imposed by the
court, justice or judge.
- Different from the inspection and production
order in that the temporary protection order
and the witness protection order do not need
a verification and may be issued motu proprio
or ex parte
(2) Inspection Order. The court, justice or judge
upon verified motion and after due hearing may
order any person in possession or control of a
designated land or other property, to permit
entry for the purpose of inspecting, measuring,

surveying, or photographing the property or any
relevant object or operation thereon.
The motion shall state in detail the place or
places to be inspected. It shall be supported by
affidavits or testimonies of witnesses having
personal knowledge of the enforced
disappearances or whereabouts of the aggrieved
party.
If the motion is opposed on the ground of
national security or of the privileged nature of
the information, the court, justice or judge may
conduct a hearing in chambers to determine the
merit of the opposition.
The movant must show that the inspection order
is necessary to establish the right of the
aggrieved party alleged to be threatened or
violated.
The inspection order shall specify the person or
persons authorized to make the inspection and
the date, time, place and manner of making the
inspection and may prescribe other conditions to
protect the constitutional rights of all parties.
The order shall expire five (5) days after the day
of its issuance, unless extended for justifiable
reasons.
- Requires hearing, may be availed of both the
petitioner and the respondent
- If the court, justice or judge gravely abuses
his or her discretion in issuing the inspection
order, the aggrieved party is not precluded
from filing a petition for certiorari with the
Supreme Court
(3) Production Order. The court, justice or judge,
upon verified motion and after due hearing may
order any person in possession, custody or
control of any designated documents, papers,
books, accounts, letters, photographs, objects
or tangible things, or objects in digitized or
electronic form which constitute or contain
evidence relevant to the petition or the return,
to produce and permit their inspection, copying
or photographing by or on behalf of the movant.
The motion may be opposed on the ground of
national security or of the privileged nature of
the information, in which case the court, justice
or judge may conduct a hearing in chambers to
determine the merit of the opposition.
The court, justice or judge shall prescribe other
conditions to protect the constitutional rights of
all the parties.
- Only granted upon motion and hearing
- Not the same as search warrant for law
enforcement under Art. III, Sec. 2 of the
Constitution since the latter is a protection of
the people from unreasonable intrusion of the
government, not a protection of the
government from the demand of the people
such as respondents
REMEDIAL LAW REVIEWER
- More similar to production of documents or
things under Sec. 1 Rule 27 of Rules of Civil
Procedure
257
(4) Witness Protection Order. The court, justice
or judge, upon motion or motu proprio, may
refer the witnesses to the Department of Justice
for admission to the Witness Protection,
Security and Benefit Program, pursuant to
Republic Act No. 6981.
The court, justice or judge may also refer the
witnesses to other government agencies, or to
accredited persons or private institutions
capable of keeping and securing their safety.
Interim Reliefs available to the Respondent
Inspection Order
Production Order
Requisites:
(1) Verified motion of the respondent
(2) Due hearing
(3) Affidavits or testimonies of witnesses having
personal knowledge of the defenses of the
respondent.
M. Quantum of Proof in Application
for Issuance of Writ: Substantial
Evidence
The parties shall establish their claims by substantial
evidence.
Respondent public official or employee cannot
invoke the presumption that official duty has been
regularly performed to evade responsibility or
liability
Respondent who is a private individual or entity must
prove that ordinary diligence as required by
applicable laws, rules and regulations was observed
in the performance of duty.
Respondent who is a public official or employee
must prove that extraordinary diligence as required
as required by the applicable laws, rules and
regulations was observed in the performance of
duty.
Sec. of Justice v. Manalo (supra): With the secret
nature of an enforced disappearance and the torture
perpetrated on the victim during detention, it
logically holds that much of the information and
evidence of the ordeal will come from the victims
themselves
Their statements can be corroborated by other
evidence such as physical evidence left by the
torture or landmarks where detained.
 REMEDIAL LAW REVIEWER
XV. CHANGE OF NAME AND
258 CANCELLATION OR CORRECTION
OF ENTRIES IN THE CIVIL
REGISTRY
A. Differences under Rule 103, RA 9048 and
Rule 108
B. Grounds for change of name
A. Differences under the
Applicable Rules (Rule 103,
Rule 108, RA 9048)
See Annex D
B. Grounds for change of name
See Annex D
Jurisprudence
Laperal vs. Republic (1962): Legal separation is not
a ground for the female spouse to apply for a change
of name under Rule 103.
No Yao Siong v. Republic (1966): The name that
can be changed is the name that appears in the civil
register, and not in the baptismal certificate or that
which the person is known in the community.
Ong Huan Tin v. Republic (1967): An alien may
petition for change of name but he must be
domiciled in the Philippines.
Oshito vs. Republic (1967): Verification is a formal,
not a jurisdictional, requirement. The lack of
verification is not a ground for dismissing the
petition. However, before setting the petition for
hearing, the court should have required the
petitioner to have the petition verified.
Go Chiung Beng vs. Republic (1972): All aliases of
the applicant must be set forth in the petitions
title. Such defect is fatal, even if said aliases are
contained in the body of the petition.
Secan Kok vs. Republic (1973): A change of name
granted by the court affects only a petitioner. A
separate petition for change of name must be filed
for his/her spouse and children.
Silverio vs. Republic (2007): A persons first name
cannot be changed on the ground of sex
reassignment. RA 9048 does not sanction a change of
first name on the ground of sex reassignment. Before
a person can legally change his given name, he must
present proper or reasonable cause or any
compelling reason justifying such change. In
addition, he must show that he will be prejudiced by
the use of his true and official name. Silverio failed
to show, or even allege, any prejudice that he might
suffer as a result of using his true and official name.
Rather than avoiding confusion, changing
petitioners first name may only create grave
complications in the civil registry and the public
interest.
No law allows the change of entry in the birth
certificate as to sex on the ground of sex
reassignment. RA 9048 only allows correction of
clerical or typographical errors. A correction in the
civil registry involving the change of sex is not a
mere clerical or typographical error. The birth
certificate of petitioner contained no error. All
entries therein, including those corresponding to his
first name and sex, were all correct. No correction is
necessary.
People vs. Cagandahan (2008): Intersexuality is a
valid ground for change of name and change of entry
of sex in the civil registry. Where the person is
biologically or naturally intersex the determining
factor in his gender classification would be what the
individual, having reached the age of majority, with
good reason, thinks of his sex. Sexual development
in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity
that the gender of such persons is fixed.
Failure to implead the local civil registrar as well as
all persons who have or claim any interest did not
render the petition fatally defective. Cagandahan
furnished the local civil registrar a copy of the
petition, the order to publish, and all pleadings,
orders or processes in the course of the proceedings.
There was therefore substantial compliance of the
provisions of Rules 103 and 108 of the Rules of
Court.
XVI. ABSENTEES
A. Purpose of the Rule
B. Who may file; when to file
A. Purpose of the Rule
IN RE: PETITION FOR DECLARATION OF ABSENCE
OF ROBERTO L. REYES (1986): The declaration of
absence made in accordance with the provisions of
the Civil Code has for its SOLE PURPOSE to enable
the taking of the necessary precautions for the
administration of the estate of the absentee.
There is a need to have a person judicially declared
an absentee when:
(1) he has properties which have to be taken cared
of or administered by a representative
appointed by the Court (Article 384, Civil Code);
(2) the spouse of the absentee is asking for
separation of property (Article 191, Civil Code);
or
(3) his wife is asking the Court that the
administration of an classes of property in the
marriage be transferred to her (Article 196, Civil
Code).

B. Who may file; when to
file
Who may file
Petition for Appointment of a Representative
(1) Any interested party
(2) Relative
(3) Friend
Petition for Declaration of Absence and
Appointment of Trustee or Administrator
(1) The spouse present
(2) The heirs instituted in a will, who may
present an authentic copy of the same
(3) The relatives who would succeed by the law
of intestacy
(4) Those who have over the property of the
absentee some right subordinated to the
condition of his death.
When to file
Petition for Appointment of a Representative -
When a person:
(1) Disappears from his domicile, his
whereabouts being unknown
(2) Has not left an agent to administer his
property or the power conferred upon the
agent has expired.
Petition for Declaration of Absence and
Appointment of Trustee or Administrator
- After 2 years:
(1) From the disappearance of and without
any news from the absentee OR
(2) Since the receipt of the last news about
him.
- After 5 years, if the absentee left an
administrator of his property.
XVII. CANCELLATION OR
CORRECTION OF ENTRIES IN THE
CIVIL REGISTRY
A. Entries subject to cancellation or
correction under Rule 108, in relation to
RA 9048
A. Entries subject to cancellation
or correction under Rule 108,
in relation to RA 9048
Under RULE 108: SUBSTANTIAL CHANGES in entries
in the civil registry, excluding name which is
governed by Rule 103.
Substantial Change change that affects the civil
status, citizenship, or nationality of a party.
(1) Births
(2) Marriage
(3) Deaths
(4) Legal separations
(5) Judgments of annulments of marriage
REMEDIAL LAW REVIEWER
(6) Judgments declaring marriages void from the
beginning
(7) Legitimations
(8) Adoptions 259
(9) Acknowledgments of natural children
(10) Naturalization
(11) Election, loss or recovery of citizenship
(12) Civil interdiction
(13) Judicial determination of filiation
(14) Voluntary emancipation of a minor
(15) Changes of name
Under RA 9048: CLERICAL or TYPOGRAPHICAL
ERRORS
Clerical Error: A mistake committed in the
performance of clerical work in writing, copying,
transcribing or typing an entry in the civil register
that:
(1) Is harmless and innocuous.
(2) Is visible to the eyes or obvious to the
understanding (Patent)
(3) Can be corrected or changed only by reference
to other existing record or records
(4) Does not involve the change of nationality, age,
status or sex of the petitioner.
Such changes have public interest implications and
must only be made upon approval of the Court.
Silverio vs. Republic (2007): RA 9048 now governs
the change of first name. It vests the power and
authority to entertain petitions for change of first
name to the city or municipal civil registrar or consul
general concerned. Under the law, jurisdiction over
applications for change of first name is now
primarily lodged with the aforementioned
administrative officers. The intent and effect of the
law is to exclude the change of first name from the
coverage of Rules 103 and 108, until and unless an
administrative petition for change of name is first
filed and subsequently denied. It likewise lays down
the corresponding venue, form and procedure. In
sum, the remedy and the proceedings regulating
change of first name are primarily administrative in
nature, not judicial.
NOTE: The procedure recited in Rule 103 regarding
change of name and in Rule 108 concerning the
cancellation or correction of entries in civil registry
are separate and distinct. They may not be
substituted one for the other. If both reliefs are to
be sought in the same proceedings all the
requirements of Rule 103 and 108 must be complied
with. [Republic v. Valencia (1986)]
XVIII. APPEALS IN SPECIAL
PROCEEDING
A. Judgments and orders for which appeal
may be taken
B. When to appeal
C. Modes of appeal
D. Rule on Advance Distribution
 REMEDIAL LAW REVIEWER

D. Rule on Advance Distribution

A. Judgments and orders for
260 which appeal may be taken Notwithstanding a pending controversy/appeal in
estate settlement proceedings, the court may permit
(1) If it allows or disallows a will that the estates parts which are not affected by the
(2) If it wholly determines who are the lawful heirs controversy/appeal be distributed, upon compliance
or the distributive shares with Rule 90.
(3) If it wholly or partially allows or disallows a
claim against a decedents estate, or any claim
presented on the decedents estate, or any
claim presented on the estates behalf on offset
to claim against it
(4) If it settles the account of an
executor/administrator/trustee/guardian
(5) If it constitutes a final determination in the
lower court of the rights of the party appealing
in proceedings relating to estate settlement or
administration of a trustee/guardian

Exception: Appointment of a special

administrator is not appealable
- Remedy: Petition for certiorari under Rule 65,
if there is grave abuse of discretion.

(6) If it is the final order/judgment rendered in the

case, and affects the substantial rights of the
person appealing

Exception: Orders granting/denying a MFR/MNT

While some of the items in Rule 109. Sec. 1 may be

considered as interlocutory under ordinary special
actions, the nature of special proceedings declares
them as appealable as exceptions to Rule 41, Sec. 2.

B. When to appeal
In a special proceeding, the period of appeal is 30
days.

The appeal period may be interrupted by the filing

of an MFR/MNT. Once the appeal period expires
without an appeal/MF/MNT, the order becomes
final.

C. Modes of appeal
NOTICE and RECORD ON APPEAL REQUIRED.

Rule 109 contemplates multiple appeals during the

pendency of special proceedings. A record on appeal
in addition to the notice of appeal is thus
required to be filed as the original records of the
case should remain with the trial court to enable the
rest of the case to proceed in the event that a
separate and distinct issue is resolved by said court
and held to be final. However, a record on appeal is
not necessary where no other matter remained to be
heard and determined by the trial court after it
issued the appealed order granting the petition for
cancellation of birth record and change of surname
in the civil registry. [Republic v. Nishina (2010)]

Annex A
Domestic Adoption (RA 8552)
Governing Body DSWD
Adoption need not be the last resort
When may
adoption be
resorted to
(1) Any FILIPINO CITIZEN (regardless of
where residing)
(a) of legal age,
(b) at least sixteen (16) years older
than the adoptee, (may be waived
when the adopter is the biological
parent of the adoptee, or is the
spouse of the adoptee's parent)
(c) in possession of full civil capacity
and legal rights,
(d) of good moral character, has not
been convicted of any crime
involving moral turpitude,
emotionally and psychologically
capable of caring for children,
(e) who is in a position to support and
care for his/her children in
keeping with the means of the
family.
(2) Any ALIEN possessing the same
qualifications as above stated for
Filipino nationals: Provided,
(a) that he/she has been living in the
Philippines for at least three (3)
Who may adopt continuous years prior to the filing
of the application for adoption and
maintains such residence until the
adoption decree is entered,
(b) that his/her country has
diplomatic relations with the
Republic of the Philippines,
(c) he/she has been certified by
his/her diplomatic or consular
office or any appropriate
government agency that he/she
has the legal capacity to adopt in
his/her country, and
(d) that his/her government allows
the adoptee to enter his/her
country as his/her adopted
son/daughter:
(e) that the requirements on
residency and certification of the
alien's qualification to adopt in
his/her country may be waived for
the following:
(i) a former Filipino citizen who
seeks to adopt a relative
within the fourth (4th) degree
of consanguinity or affinity; or
(ii) one who seeks to adopt the
legitimate son/daughter of
his/her Filipino spouse; or
REMEDIAL LAW REVIEWER
261
Intercountry Adoption (RA 8043)
Inter-country Adoption Board (ICAB)
Adoption only as last resort: No child shall be
matched to a foreign adoptive family unless it
is satisfactorily shown that the child cannot
be adopted locally (Sec.11)
(1) FILIPINO CITIZEN permanently
residing abroad may file an
application for inter-country
adoption of a Filipino child if he/she:
(a) is at least twenty-seven (27)
years of age
(b) at least sixteen (16) years older
than the child to be adopted, at
the time of application unless
the adopter is the parent by
nature of the child to be
adopted or the spouse of such
parent:
(c) has the capacity to act and
assume all rights and
responsibilities of parental
authority under his national
laws, and has undergone the
appropriate counseling from an
accredited counselor in his/her
country;
(d) has not been convicted of a
crime involving moral turpitude;
(e) is in a position to provide the
proper care and support and to
give the necessary moral values
and example to all his children,
including the child to be adopted
(f) if married, his/her spouse must
jointly file for the adoption;
(g) is eligible to adopt under his/her
national law;
(h) agrees to uphold the basic rights
of the child as embodied under
Philippine laws, the U.N.
Convention on the Rights of the
Child, and to abide by the rules
and regulations issued to
implement the provisions of this
Act;
(i) comes from a country with
whom the Philippines has
diplomatic relations and whose
government maintains a similarly
authorized and accredited
agency and that adoption is
allowed under his/her national
laws;
 REMEDIAL LAW REVIEWER
(iii) one who is married to a
Filipino citizen and seeks to
262 adopt jointly with his/her
spouse a relative within the
fourth (4th) degree of
consanguinity or affinity of
the Filipino spouse; or
(3) The GUARDIAN with respect to the
ward after the termination of the
guardianship and clearance of his/her
financial accountabilities. ( Sec. 7)
(a) Any person below eighteen (18) years of
age who has been administratively or
judicially declared available for adoption;
(b) The legitimate son/daughter of one spouse
by the other spouse;
(c) An illegitimate son/daughter by a qualified
adopter to improve his/her status to that of
legitimacy;
Who may be (d) A person of legal age if, prior to the
adopted adoption, said person has been consistently
considered and treated by the adopter(s) as
his/her own child since minority;
(e) A child whose adoption has been
previously rescinded; or
(f) A child whose biological or adoptive
parent(s) has died: Provided, That no
proceedings shall be initiated within six (6)
months from the time of death of said
parent(s). (Sec. 8)
Petition for adoption shall be filed with
Family Court of the province or city where the
prospective adoptive parents reside (Rule on
Adoption, Sec. 6)
Venue
Trial Custody Takes place in Philippines
Only upon petition of adoptee, never by
adopters (Sec.19)
Rescission
(j) possesses all the qualifications
and none of the disqualifications
provided herein and in other
applicable Philippine laws.
(2) ALIEN with above qualifications
a) Filipino children (Sec. 3(a))
b) Below 15 years of age (Sec. 3(b))
c) Who are legally free, meaning children who
have been voluntarily or involuntarily
committed to the DSWD (Sec. 3(f) and Sec. 8)
IRR of 2004 adds that:
Any child who has been voluntarily or
involuntarily committed to the Department as
dependent, abandoned or neglected pursuant
to the provisions of the Child and Youth
Welfare Code may be the subject of Inter-
Country Adoption xxx (Sec. 26)
Either with the Philippine RTC having
jurisdiction over the child, or with the Inter-
country Board through an intermediate
agency, in the country of the adoptive
parents (Sec. 10)
IRR of 2004 provides that:
Application shall be filed with the Board or
the Central Authority or the Foreign Adoption
Agency in the country where the applicant
resides. In case of foreign nationals who file
petition for adoption under RA 8552 or
Domestic Adoption Law, the Court after
finding petition to be sufficient in form and
substance and proper case for inter-country
adoption shall immediately transmit the
petition to the board for appropriate action.
(Sec. 30)
Where adoptive parents reside
No provision limiting act of rescission only to
adoptee.
In IRR, the procedure is provided for when
adoption process is terminated:
SECTION 47. DISRUPTION AND TERMINATION
OF PLACEMENT. - In the event of serious
damage in the relationship between the child
and the applicant/s where the continued
placement of the child is not in his/her best
interests, the Central Authority and/or the
 REMEDIAL LAW REVIEWER

FAA shall take the necessary measures to

protect the child, in particular, to cause the
child to be withdrawn from the applicant/s
and to arrange for his/her temporary care. 263
The Central Authority and/or FAA shall
exhaust all means to remove the cause of the
unsatisfactory relationship which impedes or
prevents the creation of a mutually
satisfactory adoptive relationship. A complete
report should be immediately forwarded to
the Board with actions taken as well as
recommendations and appropriate plans.
Based on the report, the Board may terminate
the pre-adoptive relationship.

SEC. 48. NEW PLACEMENT FOR CHILD. In the

event of termination of the pre-adoptive
relationship, the Board shall identify from the
Roster of Approved Applicants a suitable
family with whom to place the child. The
Central Authority and/or the FAA may also
propose a replacement family whose
application shall be filed for the approval of
the Board. No adoption shall take place until
after the Board has approved the application
of such replacement family.
 REMEDIAL LAW REVIEWER
Annex B
COMPARATIVE TABLE ON HABEAS CORPUS and RULE ON CUSTODY OF MINORS
264 HABEAS CORPUS (RULE 102)
Rights Right to liberty
involved Rightful custody of the aggrieved party
Situations Actual violation of the aggrieved partys right Deprivation of rightful custody
applicable
Party Party for whose relief it is intended or by some
authorized to person in his behalf
file
Respondents May or may not be an officer
Before which (1) RTC or any judge thereof
court or (2) CA or any member thereof in instances
judicial authorized by law
authority (3) SC or any member thereof
filed (4) Special jurisdiction given to first level
courts in the absence of RTC judges in a
province or city (SECTION 35, BP 129)
(5) In aid of appellate jurisdiction of the
Sandiganbayan ( RA 8249 further
expanding its jurisdiction)
Contents of Signed, verified either by the party for whose
the petition relief it is intended, or by some person in his
behalf and shall set forth: (PDIC)
(1) That the person in whose behalf the
application is made is imprisoned or
restrained on his liberty;
(2) The officer or name of the person by
whom he is so imprisoned or restrained
or, if both are unknown or uncertain, such
officer or person may be described by an
assumed appellation, and the person who
is served with the writ shall be deemed
the person intended;
(3) The place where he is so imprisoned or
restrained, if known;
(4) A copy of the commitment or cause of
detention of such person, if it can be
procured without impairing the efficiency
of the remedy or, if the imprisonment or
restraint is without any legal authority,
such fact shall appear.
RULE ON CUSTODY AND HABEAS CORPUS FOR
MINORS (A.M. 03-04-04)
Petition for the rightful custody of a minor
A verified petition for a writ of habeas corpus
involving custody of minors shall be filed with
the Family Court. The writ shall be
enforceable within its judicial region to which
the Family Court belongs.
However, the petition may be filed with the
regular court in the absence of the presiding
judge of the Family Court, provided,
however, that the regular court shall refer the
case to the Family Court as soon as its
presiding judge returns to duty.
The petition may also be filed with the
appropriate regular courts in places where
there are no Family Courts.
The verified petition shall allege the following:
(PRMO)
(1) The personal circumstances of the
petitioner and of the respondent
(2) The name, age and present whereabouts
of the minor and his or her relationship
to the petitioner and the respondent
(3) The material operative facts constituting
deprivation of custody and
(4) Such other matters which are relevant to
the custody of the minor.
The verified petition shall be accompanied by
a certificate against forum shopping, which the
petitioner must sign personally.

Annex C
Writ Matrix (Comparison of the Writs)
WHC Writ of Habeas Corpus
WD Writ of Habeas Data
RWD Rules on Habeas Data
CA - Court of Appeals
RTC Regional Trial Court
Habeas Corpus
Nature, scope, All cases of illegal
function confinement and detention
which any person is deprived
of his liberty or rightful
custody of any person is
withheld from the person
entitled (102.1)
Actual violation before writ
issues. Note Villavicencio v.
Lukban on applicability of the
writ in case of constructive
restraint
Limitations May be suspended in cases of
invasion or rebellion when
public safety requires it
(Consti. Art. III Sec. 15)
Who may file By a petition signed and
verified by the party for
whose relief it is intended, or
by some person on his behalf
(102.3)
Where filed Granted by:
(1) SC or any member
thereof, on any day and
at any time
(2) CA or any member
thereof in instances
authorized by law
(3) RTC or a judge thereof,
on any day and at any
time, enforceable only
within his judicial
district (102.2)
(4) MTC OR FIRST LEVEL
COURTS in the absence
of RTC judges in a
judicial region (section
35 BP 129)
Where If SC or CA issued, anywhere
enforceable in the Philippines
WA Writ of Amparo
RWA - Rules on the Writ of Amparo
SC Supreme Court
SB Sandiganbayan
CoC Clerk of Court
Amparo
Involves right to life, liberty
and security violated or
threatened with violation by
an unlawful act or omission of
a public official or employee
or a private individual or
entity
It covers extralegal killings
and enforced disappearances
or threats thereof.
Shall not diminish, increase or
modify substantive rights
(RWA Sec. 23)
Petition filed by the
aggrieved party or by any
qualified person or entity in
the following order:
(1) Any member of the
immediate family
(2) Any ascendant,
descendant or collateral
relative of the
aggrieved within the 4th
civil degree of
consanguinity or affinity
(3) Any concerned citizen,
organization,
association or
institution
Filing by the aggrieved
suspends the right of all
others (RWA Sec. 2 )
Filed on any day and at any
time:
(1) SB, CA, SC, or any justice
of such courts
(2) RTC of place where the
threat, act, or omission
was committed or any
element occurred (RWA
Sec. 4)
Writ shall be enforceable
anywhere in the Philippines
REMEDIAL LAW REVIEWER
265
Habeas Data
Involves the right to privacy
in life, liberty or security
violated or threatened by an
unlawful act or omission of a
public official or employee,
or of a private individual or
entity engaged in the
gathering, collecting or
storing of data or information
regarding the person, family,
home and correspondence of
the aggrieved party.
Shall not diminish, increase or
modify substantive rights
(RWD Sec. 23)
Any aggrieved party may file
a petition for the WHD
However, in cases of
extralegal killings and
enforced disappearances, the
petition may be filed by (also
successive):
(1) Any member of the
immediate family of the
aggrieved
(2) Any ascendant,
descendant or collateral
relative of the
aggrieved party within
the fourth civil degree
of consanguinity or
affinity, (RWD Sec. 2)
Petition may be filed with
RTC where the petitioner or
respondent resides or that
which has jurisdiction over
the place where the data or
information is gathered,
collected or stored, at the
option of petitioner
If public data files of
government offices, petition
shall be filed with the SC, CA,
or SB (RWD Sec. 3)
Writ shall be enforceable
anywhere in the Philippines
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Habeas Corpus Amparo Habeas Data

(RWA Sec. 4) (RWD Sec. 3)
266 If granted by the RTC or
judge thereof, it is
enforceable in any part of the
judicial region (Section 21, BP
129 which modified the term
judicial district in Section 2,
Rule 102 into judicial region)
where the judge sits
Where If the one that granted the If the one that granted the If issued by:
returnable writ: writ: (1) The SC or any of its
(1) Is the SC or CA, or a (1) Is the SC or any of its justices, before such
member thereof, justices, before such Court or any justice
returnable before such court or any justice thereof, or CA or SB or
court or any member thereof, or before the any of its justices, or
thereof or an RTC SB or CA or any of their the RTC of the place
(2) An RTC, or a judge justices, or to any RTC where the petitioner or
thereof, returnable of the place where the respondent resides /
before himself (102.2) threat, act or omission has jurisdiction over the
was committed or any place where the data or
of its elements occurred information is gathered,
(2) The SB or CA or any of stored or collected
their justices, before (2) The CA or SB or any of its
such court or any justices, before such
justice thereof, or to court or any justice
any RTC of the place thereof, or the RTC
where the threat, act, (same with scenario: SC
or omission was issued and then
committed or any of its returned in RTC)
elements occurred (RWA (3) RTC, returnable before
Sec. 3) such court or judge
(RWD Sec. 4)
Docket Fees upon the final disposition of Petitioner shall be exempted None for indigent petitioner
such proceedings the court or from the payment of the Petition shall be docketed
judge shall make such order docket and other lawful fees and acted upon immediately,
as to costs as the case - Court, justice or judge w/o prejudice to subsequent
requires (102.19) shall docket the petition submission of proof of
and act upon it indigency not later than 15
immediately (RWA Sec 4) days from filing (RWD Sec. 5)
Essential Signed and verified either by Signed and verified and shall Verified and written petition
allegations/ the party for whose relief it is allege: shall contain:
Contents of intended or by some person (1) The personal (1) Personal circumstances
petition on his behalf, setting forth: circumstances of the of petitioner and
(1) The person in whose petitioner respondent
behalf whose the (2) Name or appellation and (2) Manner the right to
application is made is circumstances of the privacy is violated or
imprisoned or restrained respondent threatened and its
of his liberty (3) The right to life, liberty, effects
(2) Name of the person and security violated or (3) Actions and recourses
detaining another or threatened with taken by the petitioner
assumed appellation violation, to secure the data or
(3) Place where he is (4) The investigation information
imprisoned or restrained conducted, if any, plus (4) The location of the files,
of his liberty circumstances of each registers, or databases,
(4) Cause of detention (5) The actions and the government office,
(102.3) recourses taken by the and the person in
petitioner charge or control
(6) Relief prayed for (5) The reliefs prayed for

May include a general prayer Such other relevant reliefs as

When proper Court or judge must, when a
petition is presented and it
appears that it ought to issue,
grant the same and then:
for other just and equitable
reliefs (RWA Sec. 5)
Upon the filing of the
petition, the court, justice,
or judge shall immediately
order the issuance of the writ
are just and equitable (RWD
Sec. 6)
Upon filing of the petition,
the court, justice, or judge
shall immediately order the
issuance of the writ if on its

Habeas Corpus
the clerk of court (CoC)
shall issue the writ under
the seal of the court or
in case of emergency, the
judge may issue the writ
under his own hand, and
may depute any officer or
person to serve it (102.5)
Also proper to be issued when
the court or judge has
examined into the cause of
restraint of the prisoner, and
is satisfied that he is
unlawfully imprisoned (102.5)
How and who Writ may be served in any
serves province by the (a) sheriff,
(b) other proper officer, or
(c) or person deputed by the
court or judge
Service is made by leaving the
original with the person to
whom it is directed and
preserving a copy on which to
make return of service
If that person cannot be
found, or has not the
prisoner in his custody,
service shall be made on
any other person having or
exercising such custody
(102.7)
Respondent May or may not be an officer
How executed The officer to whom the writ
and returned is directed shall convey the
person so imprisoned or
restrained before:
- the judge allowing the writ,
- or, in his absence or
disability, before some
other judge of the same
court
on the day specified in the
writ,
unless person directed to
be produced is sick or
infirm, and cannot, without
danger, be brought therein
officer shall then make due
return of the writ, with the
day and cause of the caption
and restraint according to the
command thereof (102.8)
When to file On the day specified on the
return writ
Contents of When the person to be
return produced is imprisoned or
restrained by an officer the
person who makes the return
shall state, and in other cases
Amparo
if on its face it ought to issue
CoC shall issue the writ
under the seal of the court
or
In case of urgent necessity,
the justice or the judge
may issue the writ under
his or her own hand, and
may deputize any officer
or person to serve it
The writ shall be served upon
the respondent by a judicial
officer or by a person
deputized by the court,
justice or judge who shall
retain a copy on which to
make a return of service
In case the writ cannot
be served personally on
the respondent, the rules
on substituted service
shall apply (RWA Sec. 8)
Respondent is a public official
or employee or private
individual or entity
Respondent files the return
Within 5 working days after
service of the writ
Within 5 working days after
service of the writ, the
respondent shall file a secrets,
verified written return
together with supporting
REMEDIAL LAW REVIEWER
Habeas Data
face it ought to issue.
CIC shall issue the writ
under the seal of the court 267
and cause it to be served
within 3 days from issuance
or
In case of urgent necessity,
the justice or judge may
issue the writ under his or
her own hand, and may
deputize any officer or
person to serve it (RWD
Sec. 7)
The writ shall be served upon
the respondent by a judicial
officer or by a person
deputized by the court,
justice or judge who shall
retain a copy on which to
make a return of service
In case the writ cannot be
served personally on the
respondent, the rules on
substituted service shall apply
(RWD Sec. 9)
A public official or employee
or a private individual or
entity engaged in gathering,
collecting or storing data
Respondent files the return
Same with WA
(1) Lawful defenses such as
national security, state
privileged
communications,
confidentiality of the
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Habeas Corpus Amparo Habeas Data

the person in whose custody affidavits which shall, , source of information of
268 the prisoner is found shall contain: media etc.
state in writing to the court (1) Lawful defenses (2) In case of respondent in
or judge before whom the (2) The steps or actions charge, in possession or
writ is returnable: taken to determine the in control of the data or
(1) Truth of custody/power fate or whereabouts of information subject of
over the aggrieved the aggrieved party the petition:
(2) If has custody or power, (3) All relevant information (a) A disclosure of the
or under restraint, the in the possession of the data or information
authority and the cause respondent pertaining about the
thereof, with a copy of to the threat, act or petitioner, the
the writ, order, omission against the nature of such data
execution or other aggrieved party or information, and
process, if any upon (4) If the respondent is a the purpose for its
which the party is held public official or collection
(3) If the party is in his employee, the return (b) The steps or actions
custody or power, and is shall further state acts: taken by the
not produced, (a) To verify identity of respondent to
particularly the nature aggrieved party ensure the security
and gravity of the (b) To recover and and confidentiality
sickness or infirmity preserve evidence of the data or
(4) If he has had the party in (c) To identify and information
his custody or power, collect witness (c) The currency and
and has transferred such statements accuracy of the
custody or restraint to (d) To determine cause, data or information
another, particularly to manner, location, held
whom, at what time, for and time of death
what cause, and by or disappearance Other allegations relevant to
what authority such (e) To identify and the resolution of the
transfer was made. apprehend persons proceeding (RWD Sec.10)
(102.10) involved
(f) Bring suspected
offenders before a
competent court
(RWA Sec.9)
Formalities of Return or statement shall be the respondent shall file a Respondent shall file a
return signed and sworn to by the verified written return verified written return
person who makes it if the together with supporting together with supporting
prisoner is not produced, affidavits (RWA Sec. 9) (RWD Sec. 10)
Unless the return is made
and signed by a sworn
public officer in his official
capacity (102.11)
Penalties CoC who refuses to issue CoC who refuses to issue COC who refuses to issue
the writ after allowance the writ after its the writ after its allowance,
For refusing to and demand, allowance, or or
issue or serve Or a person to whom a writ a deputized person who a deputized person who
is directed, who: refuses to serve the same, refuses to serve the same,
(1)neglects/refuses to obey
or make return of the shall be punished by the shall be punished by the
same according to the court, justice or judge for court, justice, or judge for
command thereof, contempt without prejudice contempt without prejudice
(2)or makes false return, to other disciplinary actions to other disciplinary actions
For faulty (3)or upon demand made by (RWA Sec. 7) (RWD Sec. 8)
return or on behalf of the
prisoner, refuses to The court, justice, or judge The court, justice, or judge
deliver to the person may order the respondent may punish with
demanding, within 6 who refuses to make a imprisonment or fine a
hours a true copy of the return, or who makes a respondent who commits
warrant or order of false return, or any person contempt by:
commitment, who otherwise disobeys or (1) Making a false return or
resist a lawful process or (2) Refusing to make a
shall forfeit to the party order of the court to be return or
aggrieved the sum of P1000, punished for contempt (3) Any person who
recoverable in a proper Contemnor may be otherwise disobeys or
action, and may also be imprisoned or imposed a resists a lawful process
 REMEDIAL LAW REVIEWER

Habeas Corpus Amparo Habeas Data

punished for contempt fine (RWA Sec. 16) or order of the court
(102.16) (RWD Sec. 11)
Is period of No, not even on highly Yes, by the court, for 269
return meritorious grounds. justifiable reasons (RWD Sec.
extendable? 10)
Is a general Yes. No prohibition in Rule. No, by virtue if A.M. No. 07-9- No, by virtue of RWD Sec. 10,
denial 12-SC last sentence.
allowed?
Defenses not If not raised in return deemed
pleaded waived (RWA Sec 10)

Effect of Court or justice shall proceed Court, judge, or justice shall

failure to file to hear the petition ex parte hear the motion ex parte,
return (RWA Sec. 12) granting the petitioner such
reliefs as the petition may
warrant
Unless the court in its
discretion requires the
petitioner to submit evidence
(RWD Sec. 14)
Nature of Summary. However, the Summary. With possibility of
Hearing court, justice, or judge may preliminary conference
call for a preliminary similar to the writ of amparo
conference to simplify the (RWD Sec. 14)
issues and look at possibility Hearing on chambers may be
of obtaining stipulations and conducted where respondent
admissions from the parties. invokes the defense of
Hearing shall be from day national security or state
to day until completed secrets, or the data is of
same priority as petitions public or privileged character
for WHC (RWD Sec. 12)

Date and time As specified in the writ Not later than 7 days from Not later than 10 working
of hearing the issuance of the writ days from the date of
issuance writ
Prohibited In custody of minors: a Motion to dismiss, Motion for Same as writ of amparo (RWD
pleadings motion to dismiss, except on extension of time to file Sec. 13)
the ground of lack of opposition, affidavit, position
jurisdiction paper and other pleadings,
Dilatory motion for
postponement, Motion for bill
of particulars, Counterclaims
or cross-claims, Third-party
complaint, Reply, Motion to
declare respondent in
default, Intervention,
Memorandum, Motion for
reconsideration of
interlocutory orders or
interim relief orders, petition
for certiorari, mandamus, or
prohibition (RWA Sec.11)
Burden of Preponderance of evidence Establish claims by substantial Substantial evidence required
Proof evidence to prove the allegations in the
if respondent is a private petition (RWD Sec. 16)
individual or entity,
ordinary diligence
if public official or
employee, extraordinary
diligence
Presumption of Yes. Consonant wit 102.13, Public official or employee
Official duty stating that if warrant of cannot invoke the
commitment is in pursuance presumption that official duty
with law, serves as prima has been regularly performed
facie cause of restraint (RWA Sec. 17)
 REMEDIAL LAW REVIEWER

Habeas Corpus Amparo Habeas Data

Judgment The court shall render Within 10 days from the time
270 judgment within 10 days from the petition is submitted for
the time the petition is decision (RWD Sec. 16)
submitted for
decision (RWA Sec. 18)
Appeals Within 48 hours from notice 5 working days from the date 5 working days from the date
of the judgment of final order of notice of adverse judgment of notice of adverse judgment
appealed Rule 45 filed with the SC Rule 45 filed with the SC
Consolidation May be consolidated with a May be consolidated with a
of actions criminal action filed criminal action filed
subsequent to the petition subsequent to the petition
(RWA Sec. 23) (RWD Sec. 21)
Effect of filing No more separate petition Same as WA
criminal action shall be filed. Reliefs
available by motion in the
criminal case (RWA Sec. 22)
 REMEDIAL LAW REVIEWER

Annex D
Rule 103 Rule 108 RA 9048
Applicability Substantial Changes Substantial changes in Change of First Names or 271
entries in the civil registry Nicknames
(other than name)
Change brought about by clerical or
typographical errors
Nature Judicial Judicial Administrative
Who May File 1. The person desiring to Natural person having direct A natural person having direct and
change his name and personal interest in the personal interest in the change of
2. Some other person on correction of error in an first name or nickname in the civil
his behalf entry in the civil register register.
Where Filed RTC of the province in RTC of the province where The local civil registry office of the
which the person desiring the civil registry is located city or municipality where the
to change his name record being sought to be
resides. corrected/changed is kept.

EXCEPTIONS:
If the petitioner has already
migrated to another place in
the country, the petition shall
be filed with local civil
registrar of the place where
the interested party is
presently residing or domiciled
If the petitioner is a Filipino
citizen presently residing or
domiciled in a foreign country,
the petition shall be filed in
the nearest Philippine
Consulate.

Rationale: It would not be practical

for him, in terms of transportation
expenses, time and effort, to
appear in person before the local
civil registrar keeping the
documents to be corrected or
changed
Standing of Not a party to the Made a party to the
the LCR proceeding proceeding as a respondent
Notice No mention of notice to be The court shall cause
requirement sent reasonable notice to be
given to persons named in
the petition
Contents of Title: In Re: Petition for 1. Facts necessary to establish
Petition Change of Name of X, also the merits of the petition.
known as Y and Z, to ABC.
X, Petitioner. 2. A showing that the petitioner is
competent to testify to the
Names or Aliases of the matters stated.
Applicant (must appear in
the caption of the 3. Particular erroneous entry or
petition) entries which are sought to be
Omission is fatal to the corrected and/or the change
petition sought to be made.
To allow a reader of
the published petition
to notice the said
aliases

Petitioner has been a

bona fide resident of the
province where the
petition is filed for at
least 3 years prior to the
 REMEDIAL LAW REVIEWER

Rule 103 Rule 108 RA 9048

date of such filing.
272
Cause for which the
change of the petitioner's
name is sought
Petitioner must show a
proper or compelling
reason for the change
of name + the fact
that he will be
prejudiced by the use
of his official name.

Name asked for

Form of The petition shall be Verified petition 1. In the form of an affidavit
Petition signed and verified. 2. Verified
3. Subscribed and sworn to before
any person authorized by law
to administer oaths.
Procedure for 1. Filing of petition for 1. Filing of petition 1.Filing of petition and its
Changing of change of name. supporting papers in 3 copies to
Name 2. Court shall promulgate an be distributed to:
2. Court shall promulgate order fixing the time The concerned city or
an order fixing a date and place for hearing municipal civil registrar or
and place for hearing the petition and cause the consul general
the petition. The date reasonable notice to be The Office of the Civil
set for the hearing shall given to the persons Registrar General
not be: named in the petition. The petitioner
Within 30 days prior Civil registrar and all
to an election AND persons who have or 2.The City or Municipal Registrar or
Within 4 months claim any interest the Consul General shall post the
after the last which would be petition in a conspicuous place
publication of the affected thereby for ten 10 consecutive days after
notice. shall be made parties he finds the petition and its
to the proceeding supporting documents sufficient
3. Court shall direct a copy in form and substance.
of the order to be 3. Court shall direct a copy
published before the of the order to be 3.The petition shall be published at
hearing published before the least once a week for 2
At least once a hearing consecutive weeks in a
week for 3 At least once a week newspaper of general circulation.
successive weeks for 3 successive
In some newspaper weeks 4.The City or Municipal Registrar or
of general In some newspaper the Consul General shall render a
circulation of general decision not later than 5
published in the circulation published working days after the
province. in the province. completion of the posting and/
or publication requirement. He
4. Hearing shall be 4. File opposition shall transmit a copy of his
conducted. Within 15 days from decision together with the
The SolGen or the notice of the petition records of the proceedings to the
proper provincial or or from the last date Office of the Civil Registrar
city fiscal shall of publication General within 5 working days
appear on behalf of from the date of the decision.
the Government of 5. Hearing shall be Where the petition is denied
the Republic. conducted. by the city or municipal civil
Court may expedite registrar or the consul
5. Judgment granting or the proceedings and general, the petitioner may
denying the change of also grant preliminary either appeal the decision to
name. injunction for the civil registrar general or
preservation of rights file the appropriate petition
6. Copy of judgments shall of the parties with the proper court.
be furnished the civil
registrar of the 6. Judgment granting or 5.The Civil Registrar General shall,
municipality or city denying the change of within 10 working days from
where the court issuing name. receipt of the decision granting a
 REMEDIAL LAW REVIEWER

Rule 103 Rule 108 RA 9048

the same is situated,
who shall forthwith
enter the same in the
civil register.
7. Copy of judgments shall
be furnished the civil
registrar concerned who
shall annotate the same
in the records
petition, exercise the power to
impugn such decision by way of
an objection. 273
Grounds for objection
(a) The error is not clerical
or typographical
(b) The correction of an
entry or entries in the
civil register is
substantial or
controversial as it
affects the civil status
of a person
(c) The basis used in
changing the first name
or nickname of a person
does not fall under one
of the valid grounds.

If the civil registrar general fails to

exercise his power to impugn the
decision of the city or municipal
registrar or of the consul general
within the period, such decision
shall become final and executory.

6.The civil registrar general shall

immediately notify the city or
municipal civil registrar or the
consul general of the action
taken on the decision.

7.Upon receipt of the notice

thereof, the city or municipal
civil registrar or the consul
general shall notify the petitioner
of such action.

8.Appeal. The petitioner may seek

reconsideration with the civil
registrar general or file the
appropriate petition with the
proper court.
Opposition Any interested person Civil registrar and any N/A
person having or claiming NOTE: The Civil Registrar General is
interest under the entry given the power to object to the
whose cancellation or decision of the Local Civil Registrar.
correction is sought
Grounds for Republic v. Hernandez: Entries subject to Sec. 4: Grounds for Change of
Change of Valid Grounds for Change cancellation or correction: First Name or Nickname
Name of Name (1) Birth
(1) The name is (2) Marriage (1) The first name or nickname is
ridiculous, tainted (3) Death ridiculous, tainted with
with dishonor or (4) Legal separation dishonor or extremely difficult
extremely difficult to (5) Judgment of annulment to write or pronounce.
write or pronounce. (6) Judgment declaring
(2) Change results as a marriage null and void (2) The new first name or
legal consequence of (7) Legitimation nickname has been habitually
legitimation (8) Adoption and continuously used by the
(3) The change will avoid (9) Acknowledgment of petitioner and he has been
confusion. natural children publicly known by the first
(4) A sincere desire to (10) Naturalization name or nickname in the
adopt a Filipino name (11) Election, loss or community.
to erase signs of recovery of citizenship
 REMEDIAL LAW REVIEWER

Rule 103 Rule 108 RA 9048

former alienage (Ang (12) Civil interdiction (3) The change will avoid
274 Chay vs. Republic, (13) Judicial determination confusion.
1970) of filiation
(5) Having continuously (14) Voluntary
used and been known emancipation of minor
since childhood by a (15) Changes of name
Filipino name, having
been unaware of alien
parentage (Uy vs.
Republic, 1965)