CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
Let me start with the latest amendment to Rule
14 which took effect in March of this year. Rule
14 12 -On service of summons to a foreign
juridical entity. If you will look at your code, all
that your code will tell you is that service of
summons to a foreign juridical entity which is
transacting business in the Philippines is either
any of the following:
1. to a resident agent;
2. a government official designated by
law;
3. any officer found in the Philippines.
However, with the amendment in March of
2011 they have expanded this and they have
added these phrases, they said that if a foreign
juridical entity is not registered in the
Philippines service of summons can be made
WITH LEAVE OF COURT in any of the following:
1. service of summons to a foreign
court where the defendant resides
through the facilities of the Department
of Foreign Affairs;
2. by publication in the place where the
defendant corporation holds office AND
service of summons by registered mail
in their last known address here in the
Philippines;
3. service of summons by facsimile or
other means of electronic messaging for
as long as it can generate proof of
service; and
4. other means as may be determined
by the court subject to its discretion.
Now, let me now give you some highlights of
what I feel are important topics for you to
consider. First and foremost class let me touch
on the MANNER OF FILING FESS. This is
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important! You have always read and it has
always been said that payment of filing fees is
jurisdictional. What I would like to tell you that
there is also a requirement of paying filing fees
in criminal cases and that is found in RULE 111. I
am making now a comparison, let me touch on
CIVIL FILING FEES and I would like to cite the
case of Philippine First Insurance vs. First
Logistics citing the case of Sun Insurance of
course this case of Philippine First Insurance
created two scenarios. I will not repeat the Sun
Insurance case because I know you know that.
The First Insurance case it says, if the claim is
for money, the action is for money and there is
no prayer for the amount and for that reason
there is no payment of filing fees the court can
dismiss the case. If there is an allegation or
claim for damage or money that has no value at
all the court would expunge it. The second
scenario is, if the claim is other than for money
but its coupled of course with other claims for
money but the payment of filing fees are
what...INSUFFICIENT! Then, the court will not
dismiss the case outright but will allow you
reasonable time to pay filing fees. Now you may
have come across with the case of Del Rosario
and I would like to be very clear with this, the
basic rule class in terms of insufficiency in terms
of payment of filing fees. If your payment is
based on what you believe was the correct
amount as assessed by the clerk of court, then
you cannot be faulted. Do you follow? And
therefore the court is deemed to have acquired
a jurisdiction, are we clear? However class, if
there was blatant disregard and bad faith with
an intention not to pay the government with
the correct filing fees then Manchester rule will
apply, the court will not acquire jurisdiction.
Now let me touch on the case of Proton
Pilipinas vs. Banque Nacional De Paris, why am I
even citing this in terms of filing fees in civil
cases. As you will recall in the Sun Insurance
case;
1. you have to pay filing fees within the
prescriptive period or reglementary
period;
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
2. you will have to pay for filing fees for
permissive counterclaims --- Do you
have to file a filing fee for a compulsory
counterclaim? If you follow the case of
Alday vs. FGU for the longest time the
court had made pronouncement that
you do not have to pay filing fees for
compulsory counterclaim. However,
with the case of Korean Technologies
where the Supreme Court made no
explanation at all but merely said, citing
RULE 141 which was amended in 2004
there is a requirement of payment of
filing fees not only for compulsory
counterclaim but also for crossclaim. Do
you follow? So class you will take note.
So sir, you will ask me how will I answer
the question. Of course now its multiple
choice and I would tell you in that light
you will get the best answer, you should
identify the best answer. I am giving
you this so that when you choose the
best answer you would know how to
pick the best answer. If it says,
according to jurisprudence or if it says
Korean Technology case, that is the
latest on the matter. You will have to
pay filing fees for compulsory
counterclaim, that is a 2008 case.
3. if you did not pay or if there was
insufficient payment, it will be alien on
the judgment award. You remember
that, it will be alien on the judgment
award. But I am citing to you the case of
Proton Pilipinas for one particular
reason, you could only use and avail
that lien on the judgment award IF THE
CLAIM FOR INTEREST OR DAMAGES
HAS ACCRUED WHILE THE
ACTION IS PENDING. Can you follow?
Has accrued while the action is pending,
because of course you cannot expect
them to ascertain the amount of
filing fees because it has not yet
accrued. But if
the claim for interest or damages has
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been determined, meaning it has
already ripen then you will have to pay
filing fees.
Now, let me now touch on the CRIMINAL FILING
FEES. The pertinent provision when you talk of
criminal filing fees is RULE 111 1. And what
does it say; you will have to pay filing fees for
MORAL, EXEMPLARY, NOMINAL and
TEMPERATE. Liquidated is not included, for
ACTUAL or COMPENSATORY DAMAGES you will
not be assessed filing fees in Criminal Cases.
However, I will have to add this; for BP 22 cases
ALL CLAIMS FOR DAMAGES will have to
assessed filing fees. I will repeat ALL CLAIMS
FOR DAMAGES will have to assessed MORAL,
EXEMPLARY, NOMINAL, TEMPERATE and
LIQUIDATED including ACTUAL DAMAGES, all of
those that is found in RULE 111.
Now, let me touch on matters on JURISDICTION. I
will not tell you it is RA 7691 amending BP 129
because I assume you know. Tama?! BP 129 as
amended by RA 7691. I will not go down to the
nitty gritty of the enumeration of jurisdictions in
civil cases but I would like you to remember this
so that you will have something to cling on
when it comes to figures. In Metro Manila, the
claim should exceed Php400,000.00 - in Metro
Manila EXCEEDING. Remember that word,
EXCEEDING. So kapag tinanong sa bar, which
court has jurisdiction Php400,000.00?
Metropolitan Trial Court. Baka sabihin sayo a.
Municipal Trial Court; b. Metropolitan Trial
Court; c. Municipal Circuit Trial Court. What is
the answer? B. METROPOLITAN TRIAL COURT.
Are we clear? So you have to be very accurate.
Now, for OUTSIDE of Metro Manila exceeding
the amount of Php300,000.00 and I would like
you to always remember this catch-all phrase
"that jurisdiction in CIVIL CASES is determined
by the amount of the claim exclusive of
DAMAGES, INTEREST, ATTORNEY'S FEES and
COST OF SUIT. However, in the light of Supreme
Court Circular 09-94 that clarified that provision
of BP 129 as amended by RA 7691. If the claim
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
is purely for DAMAGES, the amounts that I have
mentioned will apply. Are we clear?
Now, before I move on in my comparison to a
CRIMINAL CASE. Let us look at the basic rule.
What is the GENERAL RULE when it comes to
question of jurisdiction? Can QUESTION OF
JURISDICTION be raised at anytime? Even on
appeal? The answer is YES!!! That is the RULE!
Eh sir, how about ESTOPPEL BY LACHES on
question of jurisdiction. That is what? That is
rather the exception. That was cited in the case
of Figueroa vs. People, the Supreme Court
made it very clear that the QUESTION OF
JURISDICTION COULD BE RAISED AT ANYTIME,
EVEN ON APPEAL-that is the general rule. The
exception is the case of Tijam vs. Sibunghanoy
on QUESTION OF ESTOPPEL BY LACHES ON
QUESTION OF JURISDICTION - meaning there
was UNREASONABLE DELAY IN YOUR HAVING
QUESTIONED THE LACK OF JURISDICTION. Now,
how about jurisdiction of court in CONTEMPT
CASES? Ariola case - how will the court acquire
jurisdiction in INDIRECT CONTEMPT. Take note
INDIRECT CONTEMPT, the court will acquire
jurisdiction UPON FILING OF A VERIFIED
PETITION. Take note there are two ways to
initiate an action for indirect contempt, it is not
by motion. One is by VERIFIED PETITION and the
second one is UPON A FORMAL CHARGE by the
judge. You can no longer initiate an indirect
contempt proceeding today through a motion -
that is prohibited. Take note that in CIVIL CASES
jurisdiction can be separate from venue,
because on VENUE; parties can agree, parties
can stipulate, it could be subject to a waiver, it
could be subject of consent. That is not true in
CRIMINAL CASES, in criminal cases VENUE IS
JURISDCITIONAL - the place of commission is
the place where the acet tion will be instituted.
Now, let me ask you this question; How about
the case of Mangundadatu. The crime was
committed where? In Maguindanao. Do you
follow? How come the action is prosecuted in
Quezon City and the judge handling the case is a
judge from Quezon City. Sir, Is that not in
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violation of your statement that venue is
jurisdictional? NO. Class you cannot
compromise venue in criminal cases, you
cannot stipulate, it cannot be subject of waiver,
it cannot be subject of consent. So what
happened to that case? What happened to that
case was the action was first instituted in
Maguindanao. What was transferred to Quezon
City is the VENUE OF HEARING/TRIAL and that is
subject to the approval of the Supreme Court
based on the constitution. So we cannot
compromise that, we cannot consent to a
transfer in criminal cases of venue for purposes
of institution, IT IS ALWAYS IN THE PLACE OF ITS
COMMISSION. Unless of course it is a
CONTINUING OFFENSE or a TRANSITORY
OFFENSE where there is two or more venue.
Now let me ask you this question. How about
class a REHABILITATION CASE, is that ordinary
civil action? Let us define ORDINARY CIVIL
ACTION. Ito class basic - an ordinary civil action
is: a.) establishes an action or a right; b. Every
ordinary civil action should have a cause of
action; c.) it is subject of special rules. What is
the answer? B. Every ordinary civil action
should have a cause of action. How about a
CORPORATE REHABILITATION CASE is it an
ordinary civil action? NO. It is a special
proceeding, the nature of the proceeding is
summary in nature and it requires no cause of
action. Now let us proceed to the next item. I
am still on the item of parties, misjoinder of
parties. In RULE 3, is a misjoinder of parties a
ground for dismissal? The answer is NO. A party
could be dropped or severed without dismissing
the case. However, if you talk of an
indispensable party, the non-inclusion of an
indispensable party. Will it cause the dismissal
of the case? YES. If it an indispensable party.
However, if it is only a necessary party will that
cause the dismissal of the case? NO. That will
not cause the dismissal of the case. What if a
necessary party refused to be included, what is
your remedy? Your remedy is to implead him as
an unwilling co-plaintiff. Now class, having
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
touched on misjoinder of parties. Let me now
touch on, joinder of causes of action. In criminal
cases do you have causes of action? In criminal
cases according to RULE 110 9 - You have
CAUSE OF ACCUSATION. You have cause of
action in CIVIL CASES, but in CRIMINAL CASES
you have cause of accusation. Let us look at
joinder of cause of action. I would like you to
remember the rules. According to RULE 2 5 it
says: that causes of action could be joined
whether in the alternative or otherwise. Take
note, it could be in the alternative or otherwise
and you have to take note of the following
rules:
1. you cannot those covered by
special rules - for example: you
have an action for ejectment and an
action for recovery of sum of
money. Can you join those? NO.
You cannot, because one is covered
by ordinary civil action and the
other is special civil action. Let us
you want a determination of your
right as legitime in a holographic
will and the other is reconveyance
of a title of property which you
claim you own. Can you join them?
NO. One involves special
proceeding probate and the other
involves ordinary civil action;
2. you will have to respect joinder of
parties - yes, you could join causes
of action but you have to respect
joinder of parties, permissive
joinder of parties - RULE 3 6.
Otherwise, there will be confusion
and take note of this IT SHOULD
ARIS FRO TH SAM
E M E E
TRANSACTION OR SERIES OF
TRANSACTION AND SHOULD HAVE
COMMON FACT OR LAW WHETHER
JOINTLY, SEVERALLY OR IN THE
ALTERNATIVE. So you cannot join
together causes of action where
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parties are totally unrelated. When
their claims are not intertwined or
interlocked, you cannot do that.
Otherwise you will only cause
confusion.
3. you will have to respect
JURISDICTION and VENUE - and of
course if one claim falls within the
jurisdiction of the RTC, all other
claims will fall in the RTC.
4. totality rule - it is the SUM OF ALL
THE MONETARY CLAIMS, therefore
if taken separately, jurisdiction
could be determined but if taken
together you have another set of
jurisdiction.
Let us look at the case of Oca vs. Limbaring, in
terms of REAL PARTY IN INETEREST. What does
it tell us? Should a party be a real party in
interest only because his right arises from a
contract? Tama ba yun? Should you say that a
party is a real party in interest if they a party to
the contract or signatories to the contract. The
GENERAL RULE is YES. However, not all claims
would arise from a contract. Therefore, it could
also arise from tort. There is no contractual
obligation, from negligence could there be an
action arising from tort...YES! It is also possible
class that you are not a party or signatory to the
contract but you could be a real party in
interest, if there is a breach in the contract.
What is that? If there is a stipulation pour
autrui. So please, take note of those. Another
question that I would like to answer is in
connection with a case decided by court in
connection with agrarian dispute. What if there
is a "KASUNDUAN" in the DARAB? What if there is
a "KASUNDUAN" as to who would be entitled to a
piece of land and that was resolved and
determined by the DARAB? For that reason the
DARAB case was terminated. Let us say the
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
"KASUNDUAN" was not complied with. Which
court has jurisdiction, is it the REGULAR COURT
or the DARAB? It remains to be with the DARAB,
it arising from the tenancy relation and even if it
was already terminated, the source was a
TENANCY REALTIONSHIP.
Now, let me touch on a question on
SUBSTITUTION. What about substitution? Class, I
would like to call your attention on the case of
Sumaljap. I would like you to bear this in mind,
a lot of questions could be taken from this 16
we've waited for this question since 2003.
When you study 16 of RULE 3 bear in mind
that you also have to study at the same time
20 of RULE 3. Tandaan niyo yan ha! What is
the rule? The first thing that you will have to
remember is, there should be DEATH. Death of
who? Death of a PARTY. The provision of the
law made no mention as to who died. It does
not say it is the plaintiff or the defendant. I
want to be very clear with that, it does not say
it is the plaintiff or the defendant. But what
does it say, A PARTY DIES. So it could be the
plaintiff or the defendant. So despite the death
of the party the action survives, take note of
that. So what are kinds of action wherein, if a
party dies the action is extinguished - actions
which are purely personal that without him the
action can no longer be performed like if you
are a painter, you can no longer perform even
specific performance if you are dead. If you are
a singer you can no longer perform. If you are
to give support, of course you are dead. What
are the rules that you have to remember? I will
group it into this.
What is the duty of a counsel?
The duty of a counsel is:
1. to inform the court of the FACT of
death - within how many days in
case of substitution by reason of
death; a. Within 30 days from
knowledge; b. Within 30 days from
the fact of death; c. At the option of
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the lawyer, whether upon
knowledge or upon the fact of fact.
What is the answer? B. The 30 days
is counted from the FACT OF
DEATH, not from the knowledge but
from the fact of death;
2. to inform the court of the NAME
and ADDRESSES of the legal
representative - take note,
according to the provision the legal
representative could be who? The
legal representative could be an
HEIR, there is no requirement that
it is an executor or administrator
but you can have an executor or
administrator but I would suggest
that you appoint an heir because
you do not need court approval.
What is the duty of the court?
The duty of the court is:
1. to come up with a notice for the
lawyer or for the representative to
appear within 30 days from receipt
of notice; and
2. to order substitution.
Take note of this, absence of any of these will
not lead to a valid substitution. Eh sir, kung mali
ang husgado? Walang substitution. Do you
follow? That is already answered in the case of
Brioso. Kapag mali ang husgado, wala. So, both
requirements should take place - the duty of
the lawyer and the duty of the court.
Now, let me call your attention to this case of
Sumaljap. What happened in this case? Class
ganito nangyari ditto eh. During the lifetime of
the deceased he transferred his interest to
someone else, not known to other people. He
died, the lawyer now would like to make the
transferee in interest as the substitute. During
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
the lifetime of the deceased there was a
transfer of interest but unfortunately he died.
Now the lawyer would like to name NOT an
executor, NOT an administrator and NOT even
an heir. Can he do that? The court said NO. You
cannot do a transfer of interest once the
transferee of transferor had died. The transfer
of interest should take place during the lifetime
of both of them. In this particular case, the
person who transferred had passed away
therefore the regular provision of 16 of RULE 3
should apply. Before I leave this topic of
substitution in civil cases, let me ask the three
kinds of substitution in civil cases.
What are the three kinds?
1. substitution by reason of death;
2. death of a public officer - this is
17. Let me give you the
requirements briefly.
a. there should be a death of a
public officer;
b. there is a new one appointed -
a successor to take his place but
before a successor could take
his place, this is the duty of the
requirement of the law, he
should have been:
i. notified;
ii. he should have been
given the opportunity
to be heard; and
iii. he adopts or
threaten to adopt the
act of the predecessor
Wag niyo munang i-substitute
kaagad. Let us say a
department secretary died, and
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there is new one appointed
does it mean that he is
substituted to the actions of the
secretary - NO. You have to
comply with the requirement of
law.
3. transfer of interest. 19
Let me touch on 20. I cannot discuss 16
without touching on 20. What does 20 tell
us? There is death also. Take note, there is
death. But who dies? Here the provision of law
is specific. Who dies? The DEFENDANT dies not
the plaintiff. So class, under this scenario it
should be the defendant who dies. Second item
that I would like you to take note. The NATURE
OF THE ACTION. Take note, the nature of the
action is very specific - it involves a claim for
sum of money whether express or implied. IT
SHOULD BE A CLAIM FOR MONEY.
It is like this, the plaintiff dies and the claim is
for a sum of money, the defendant is alive.
What provision will apply? Will 16 or 20? NO.
16 will apply. Because the provision of 20 is
very specific. It says, the defendant dies and it
involves a claim for money whether express or
implied. Now, let us look at the provision of the
law. What if the defendant dies and the claim is
for money? Will the case be dismissed or
terminated? IT WILL NOT BE DISMISSED. Will
there be substitution? THERE WILL BE NO
SUBSTITUTION. It will continue against the
ESTATE of the deceased person. Yan ang
tandaan niyo! Please! Bakit ko sinasabi na
please?! Because class may nagveventure na
ganito, kasi naman ang may hawak ng estate eh
executor or administrator eh dapat
substitution. Totoo yun na ang may hawak ng
estate executor or administrator. Pero sinsabi
ng batas, sa titulo ng kaso mo ano? ESTATE OF
THE DECEASED PERSON, whatever his name is.
Will it continue? YES. Tandaan niyo lang, it will
not be dismissed.
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
Let me now move on. Baka mamaya tanungin
kayo ng substitution sa criminal procedure. Sir,
may substitution na dyan? Who says yes?! Sir,
sino ba naman gustong magsubstitute sa
akusado. Sino gusto magsubstitute? Tatawa-
tawa kayo papakita ko sainyo ang provision.
Walang gustong magsubstitute sa akusado, of
course. According to RULE 111 4: if the
accused dies AFTER ARRAIGNMENT, both the
CRIMINAL and the CIVIL ACTION arising from
the DILECT WILL BE EXTINGUISHED. But if the
accused dies BEFORE ARRAIGNMENT and a case
has already been filed, IT WILL CONTINUE
AGAINST THE ESTATE. Can there be
substitution? Look at the second paragraph of
4 of RULE 111 and if you look at the latter
portion of that provision class, you will see
basically the same provision as 16. Have you
noticed? Eh di sir may substitution sa criminal
cases? Before you be mislead, listen to this. YES,
there is substitution ONLY FROM THOSE CLIAMS
AGAINST THE ACCUSED WHO IS A DEFENDANT,
IN CASES INVOLVING OTHER SOURCES OF
OBLIGATION including INDEPENDENT CIVIL
ACTIONS.
If there is no SUBSTITUTION OF THE ACCUSED in
the delict. Can there be a SUBSTITUTION OF
INFORMATION? YES. RULE 110 14 that is why
the title of that provision is AMENDMENT AND
SUBSTITUTION. If the prosecution believes that
they will not be able to prove or establish the
offense committed based on the information,
they could request for a substitution of
information. Sir, masyado nang malalim ang
discussion natin ditto... Kaya nga critical di ba?
Yun ang purpose ko dito. Baka sabihan niyo
wala naman ka torya-torya to! Hehe! Kidding
aside class. Now, let us proceed.
Doon naman tayo sa INDIGENT. I think that you
are aware of the leading case Algura vs. LGU of
the City of Naga. The pertinent provision is in
21 if you follow the provision it is fairly simple,
it only tells you that the proceeding is summary,
ex-parte, without notice to the other party and
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that you would like to be indigent to be entitled
to stenographic notes, you are not to pay filing
fees for the time being but should you win
there will be a lien on the award. Indigent is
defined under 21 as someone whose income is
not sufficient for his food, clothing and shelter.
Kapag ito lang ang tinandaan niyo tagilid kayo!
Huwag lang yan ang tatandaan niyo. You have
to make note of the case of Algura. Why?
Because there is a RULE 141 19 that was
amended in 2004 that gave as a new definition
of an indigent. Sir, bakit? The code that you
have 21 was the 1997 Code but when they
issued they came up with RULE 141. Who is an
indigent? An indigent is someone whose
income and that of his immediate family does
not exceed double the monthly minimum wage.
Take note: whose income does not exceed
double the monthly minimum wage. Kapag
nakalagay diyan sa codal mo eh Php5,000.00
luma ang codal mo. Tingnan mo yung codal mo
malamang yan eh 2003 pa. His income and that
of his immediate family does not exceed double
the monthly minimum wage and does not have
real property with a fair market value exceeding
Php300,000.00. Why do in need to lay the basis
for this discussion? Ganito kasi class ang sinabi
ng Supreme Court - if the person, the applicant,
who wants to be declared as an indigent falls
within the definition of RULE 141, meaning his
income and that of his immediate family does
not exceed double the monthly minimum wage
and he does not own real property with fair
market value not exceeding Php300,000.00,
then he is an indigent. However class, if he does
not fall squarely within the definition meaning
he has property in excess of Php300,000.00 fair
market value or he has an income more than
but he claims to be an indigent, you will have to
go through an INDIGENCY TEST, consistent with
21. Sir, what do you mean by indigency test?
The court will have to ascertain whether your
income is not sufficient for your food, clothing
and shelter. Are we clear? So that one you will
have to take note. If the question makes it
appear that he falls under RULE 141 indigent na
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
siya, if he does not fall under RULE 141 but he
claims to be an indigent 21 will apply but the
court will have to conduct an indigency test, in
the determination whether or not he is an
indigent. Now, let me ask you this question.
Who should submit an affidavit for the
determination of who is an indigent? According
to the case of Tokyo Marine Malayan Insurance
vs. Valdez - it is only the litigant who needs to
prepare an affidavit.
Now, let us look at the RULE on VENUE. Eh sir,
papaano in a CRIMINAL CASE I cannot afford a
lawyer, there is what you call a PUBLIC
ATTORNEY who will be assigned to you in a
criminal case if you cannot afford a counsel.
What are the rules? Let me give a breakdown of
the rules in criminal cases. The rule is AN
ACCUSED IS ENTITLED TO A COUNSEL DE
PARTE (a counsel of choice). Kung kaya niya,
kumuha siya. If he cannot afford one he could be
given a COUNSEL DE OFFICIO for
purposes of arraignment - pwede yun for
purposes of arraignment only, for purposes
of the entire proceeding. Is it possible class that
the Court of Appeals will also appoint a counsel
de officio for an accused? YES. If the accused
files an appeal by himself or he has no counsel
de parte. The court could appoint counsel de
officio. Can the Supreme Court appoint a
counsel de officio? YES. The court can appoint
a counsel de officio for an accused. Sir, why did
you touch on this? Walang pera, indigent eh. But
if you talk of CIVIL CASES, the provisions that I
discussed will apply. What is the difference
between a PUBLIC INTEREST CASE and a
PRIVATE CASE? Do you have real party in
interest there? In a private action you talk of
real party in interest, as a party. In a public
case you talk of, not a real party in interest.
You talk of a party who suffered substantial
interest by reason of the governmental act;
you are not talking of a real party in interest.
There are a few items that I would like to touch
on VENUE. First item that I would like you to
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remember is the case of Irene Marcos-Araneta
vs. Court of Appeals. This is instructive because
of the word principal. I will repeat just a few
provisions in the code that you have to
remember. Personal action is where plaintiff or
principal plaintiff resides or defendant or
principal defendant resides. Real action is
dictated by what? The place where the property
is located. Are we clear? This case of Irene
Marcos-Araneta involves that, not real action
but personal action. What is the problem in this
case? Irene Marcos-Araneta resides in Forbes
Park, Makati. She is a plaintiff in an action
involving a trust, where she is a beneficiary. But
aside from Irene Marcos-Araneta who resides in
Forbes Park, Makati there were three other
plaintiffs who were designated by Irene
Marcos-Araneta as trustees of her beneficial
trust. So you have three more. The three
resides in Batac, Ilocos Norte but in the
complaint they said that Irene Marcos-Araneta
resides in Batac, Ilocos Norte. So yun ang
question, sabi dapat i-dismiss yan because
Batac, Ilocos Norte is not the proper venue
according to the other party. Why? Because
they said that based on the provision on rule of
venue, the principal plaintiff is Irene Marcos-
Araneta because she is the beneficiary of the
trust. So, what did the Supreme Court said? In
that case the venue should have been in Makati
and not Batac, Ilocos Norte. The next question
that I would like to touch on is this; can the
court dismiss a case motu propio on the ground
of improper venue? NO. The court cannot do
that. Improper venue as a ground for dismissal
could only be availed of if there is a motion to
dismiss, the court cannot dismiss that motu
propio. The next item that I would like to touch
on venue would be WORDS OF EXCLUSIVITY. Ito
tandaan ninyo, it comes in handy that you
know. Legaspi vs. Republic, words of exclusivity.
In cases the party STIPULATE or AGREE on a
venue in a civil action, there should be words of
exclusivity like EXCLUSIVELY, ONLY, WAIVING
ALL OTHER VENUES those are words of
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
exclusivity and that will limit the venue to the
place where the parties have agreed upon.
Let me now touch on CRIMINAL. Awhile ago
class, I mentioned that venue should be
jurisdictional in criminal cases. Do you agree
with me?! Ok! Venue should be jurisdictional in
criminal cases. However class I need to touch on
the HUMAN SECURITY LAW. What about the
human security law? Because class the human
security law gives exceptions to the rule, of
course the Revised Penal Code likewise provides
an exception in Article 2 - where it involves
counterfeiting of Philippine bank notes,
although committed outside of the Philippines;
could it be prosecuted in the Philippines? YES.
This is another set of exceptions provided
outside of the RPC, under the HUMAN
SECURITY LAW.
What are those?
1. If it is committed within the
diplomatic premises of the
Philippines or against its officers
although committed outside the
Philippines could be prosecuted
here;
2. If the act is committed against the
Republic of the Philippines in
connection with the human security
law meaning there is act of
terrorism then it could be
prosecuted in the Philippines;
3. If it is committed against a
particular ethnic group or it is an
act against ethnicity - like isang
particular ng... ayokong magbanggit
ng grupo sa Pilipinas eh. Patayin
ang mga ganito. Even if committed
in Hongkong, could it be prosecuted
here? YES.
Page 9 of 101
Now, let me now touch on SUMMARY
PROCEDURE. The period class to respond to a
case in a complaint for summary procedure is
10 days - the period to file an aswer. Can that
period be extended? The period CANNOT be
extended - a motion for extension is a
prohibited pleading. Let us look at SMALL
CLAIMS. What is the period to respond to a
small claim action? Is it 10 days 0r is it 15 days?
The period to respond to a small claim action is
a period of 10 days. You cannot file an
extension and all of the available evidence
already be appended to and attached to the
answer. Let me tell you know the jurisdiction in
summary procedure. Do you still remember the
jurisdiction in civil cases for summary
procedure? The magic numbers are 200,000
and 100,000. In Metro Manila not exceeding
Php200,000.00 - summary procedure. Outside
of Metro Manila not exceeding Php100,000.00
- summary procedure. What is the jurisdiction
of the court in small claims? Php100,000.00.
The claims for a sum of money does not exceed
Php100,000.00. Now, this is the problem.
Where will you file a small claims action outside
of Metro Manila and when will you file a
summary procedure case, because both falls
within Php100,000.00. It is determined by who
files the case. If you want to file summary
procedure, you file summary procedure. If you
want to file small claims action, you do so. But I
would like you to take note that it is within the
threshold of Php100,000.00 and please take
note class on small claims, it also includes civil
action arising from or the civil aspect of a
criminal case. So if there is a claim for sums of
money arising from a criminal case that will still
be included, that will still be subject of a small
claims action.
Now, let us look at SPECIFIC DENIALS - Republic
vs. Sandiganbayan. Let me touch on denial
which says LACK OF KNOWLEDGE OR
INFORMATION TO FORM A BELIEF AS TO THE
TRUTH THEREOF. You remember that, there are
three kinds of denial under 10 of RULE 8.
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
What are those?
1. Specific denial;
2. Qualified denial ( I admit the
portion and deny the rest); and
3. Lack of knowledge or information
to form a belief as to the truth
thereof.
The question raised before this case is when can
you use the denial. This is the case involving the
Marcoses, in the allegation was this; the
Marcoses responded there were clear
allegations against them that they have
performed acts that affected the Philippine
economy and what did they say - lack of
knowledge or information to form a belief as to
the truth thereof. What did the Supreme Court
say? Despite the serious and specific allegations
against them, the Marcoses responded by
simply saying that they had no knowledge or
information sufficient to form a belief as to
truth of such allegations. Such a general self-
serving claim of ignorance alleged in the
petition for forfeiture was insufficient to raise
an issue. So what is the standard you have to
take note when it comes to lack of knowledge
or information to form a belief? It was cited in
the case of Morales vs. Court of Appeals, where
the court ruled that if an allegation directly and
specifically charges a party with having done,
performed or committed a particular act which
the latter did not in fact do A CATEGORICAL
AND EXPRESS DENIAL MUST BE MADE. Are we
clear? So if there is a clear allegation that you
have performed or you have done a particular
act, you cannot just deny by lack of knowledge
or information sufficient to form a belief as to
the truth thereof. Also pertinent to this case is a
GENERAL DENIAL. A general denial class,
wherein there are specific allegations of
wrongdoing that has been done and performed
cannot be denied by a general denial because A
GENERAL DENIAL WILL AMOUNT TO AN
Page 10 of 101
ADMISSION. Take note of that, will amount to
an admission.
Now, let us touch on another item which is
ACTIONABLE DOCUMENTS. This is another
important item, actionable documents the
pertinent provisions are 7&8 of RULE 8 -
Actionable Documents. The rule class is this,
when it comes to actionable documents HOW
DO YOU ALLEGE? - That is the rule, but before I
touch on how to allege. What is the rule when it
comes to evidentiary matters? The rule is, a
pleading should make a statement of brief and
concise statement of ultimate facts devoid of
evidentiary matters. So what is the rule? You
simply make allegations. That's the rule. Sir, do I
need to attach evidence? NO!!! Because all that
is required in the pleading is a brief and concise
statement of ultimate facts devoid of
evidentiary matters, UNLESS IT IS BASED ON AN
ACTIONABLE DOCUMENT. Are we clear? If it is
based on an actionable document, how do you
allege an actionable document?
1. If you reproduce the substance,
only the substance, in the body of
the pleading you have to attach a
copy or an original but I would
suggest you attach a copy;
2. If you could reproduce the text
thereof in the body, then it is
sufficient.
So that is the way to allege an actionable
document. Now class, how do you specifically
deny an actionable document? An actionable
document is DENIED SPECIFICALLY UNDER
OATH. Take note, it is denied specifically under
oath. Sir, what is the effect if it is not under
oath? You are deemed to have admitted the
due execution and genuineness of the
document. I would like to be very clear with this
class. You did not lose the case, do you follow?
It does not mean class that you have admitted
the contents of the interpretation of the court,
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
no. It only tells you that the document is true
and it was validly executed. It should be
specifically denied under oath.
Let me give you the case of Natcher vs. Court of
Appeals. That gives a DISTINCTION OF A CIVIL
ACTION AND A SPECIAL PROCEEDING. What is
the difference between a civil action and a
special proceeding? Ah sir madali yan! Sasabihin
mo sir madali yan, a civil action there should be
a cause of action; a special proceeding
establishes a status, right or a particular fact.
Hindi lang yun ang sinabi ng case, making kayo.
Eto sinabi niya; What differentiates a special
proceeding form an ordinary civil action is this,
a SPECIAL PROCEEDING includes those
proceeding which are not ordinary in this sense
but is instituted according to some special
mode as in the case with proceedings
commenced with summons and prosecuted
without regular pleadings. Take note, without
regular pleadings. A special proceeding must
therefore be in the nature of a distinct and
independent proceeding for a particular relief,
such as may be instituted independently of a
pending action by petition or motion upon
notice. Baka i-multiple choice yun. Ah hindi,
status or right ang hinahanap mo eh wala! None
of the above. Di ba?! It is an action that
establish an independent relief. Are election
cases akin to ordinary civil actions? Are election
cases akin to ordinary civil actions, that if you
fail to file filing fees your case will be dismissed?
What did the court say? The ponencia declares
that failure to pay the filing fee warranted the
dismissal of his motion for reconsideration, the
error in this conclusion lies in the equally flawed
premise that 19 RULE 40 of the COMELEC rules
is analogous to 13 RULE 41 of the RULES OF
COURT. Are we clear? So the Supreme Court
said it is not analogous. Why? What is RULE 41
13 tell us? It tells you that you will have to pay;
you have to FILE AND PAY docket fees within
the regelementary period. The Supreme Court
says that election cases are not akin to ordinary
civil action and let me continue the ruling of the
Page 11 of 101
Supreme Court, under the COMELEC rules when
the prescribed filing fee is not paid on the same
day as the filing of the pleading or motion such
non-payment is not a mandatory ground for
dismissing or denying the pleading or motion.
Are we clear? So in COMELEC rules, it is not
automatic or mandatory to dismiss if you do not
pay filing fees. The COMELEC has reasonable
discretion to allow you to pay the filing fees.
Now, issues on impairment of legitime. Can it
be threshed out in a civil action for
reconveyance and damages? It could only be
threshed out in a special proceeding. Legitime is
not and can never be a subject of an ordinary
civil action. Take note of that.
Another item that I would like to discuss to you
is BILL OF PARTICULARS. Let me ask you this
question. Is this there bill of particulars in
criminal cases? YES. That is found in RULE 116
9 if I am accurate. Of course there is bill of
particulars in civil cases that is found in RULE
12. Eh sir, ano pala yung bill of particulars? Class
a motion for bill of particulars is filed before a
party responds to a pleading. Remember I used
the word pleading. Do you follow? Can you file
a motion for bill of particulars of a COMPLAINT?
YES, within the regelementary period. Can you
file a motion for bill of particulars of an
ANSWER, which appears to be not clear and
vague? YES. Can you file a motion for bill of
particulars of a REPLY? YES, within a period of
10 days upon the filing of the reply you can file
a motion for bill of particulars. What do you
need to remember when you file a motion for
bill of particulars and this is the same rule
whether in criminal and civil cases? What is
that? In motion for bill of particulars you have
to IDENTIFY THE DEFECTS AND THE DETAILS
DESIRED. Are we clear? Ganun yun ah! You have
to identify the defects and the details desired.
Para hindi niyo makalimutan class I will give you
an example. An example that you will
remember until you become a lawyer or not,
and I hope you become one. Ngayon madami
pa kayo, nagsisimula pa lang pero pagtumagal
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
na malalagasan na kayo, yung iba kelangan na
maghabol sa binabasa. Pero class sa ngayon ang
dami niyo dyan yung iba sainyo pa-banjing
banjing lang, papasok-pasok, paupo-upo tapos
kapag walang magawa they would identify the
defects, the defects of their seatmate, of their
co-reviewee dib a ganun yun! Alam mo
maganda siya, kaya lang... Kita mo yun, akala
niya gwapo siya... Ganun dib a?! You identify
defects but of course you will not tell them the
details desired. You will not tell them but in
motion for bill of particulars you will have to
identify the defects and you will have to tell the
other party, this is what I want. Like paragraph
2 is not clear, it is defective. I would like you to
give me the following details. Are we clear? Like
for example it is a claim for a motor vehicle. Aba
nakalagay dun is yellow Mitsubishi Lancer.
Aba'y sangkatutak ang Mitsubishi Lancer an
yellow. Ano bang model yun? Anong taon?
Wala, right?! So, I would ask paragraph 4 is
defective I need the following details: chassis
number, plate number, model number. Do you
follow?! All of these, I would ask from him. Do
you follow? Identify the defects and the details
desired. Now, let me give you this case. The
case of Reyes vs. RTC of Makati - can you file a
motion for bill of particulars in
INTRACORPORATE cases? Bago yan sir, bago!
Kapag hindi alam bago... can you file a motion
for bill of particulars in intracorporate cases?
NO. It is a prohibited pleading. Can you file a
motion for bill of particulars in a
SANDIGANBAYAN case? YES. Virata vs.
Sandiganbayan and the Rules of Criminal
Procedure are used in Snadiganbayan cases. In
fact class the consequences are basically the
same. Can the court DENY OUTRIGHT the
motion for bill of particulars? It could either
DENY or GRANT OUTRIGHT - 2 RULE 12. Now,
let me ask you this question. Let us say the
court grants the motion for bill of particulars.
What should the plaintiff do, as a rule or the
one who filed the pleading?
1. he should give the details desired;
Page 12 of 101
2. he could file a bill of particulars; or
3. the court can order an amendment.
Tandaan niyo yan ha! There are only two
instances in the code wherein despite the
absence of a motion to amend, the court can
order an amendment. What are those:
1. in motion for bill of particulars -
instead of the court ordering the
filing of bill of particulars, the court
will order AMEND para tumama yan
amend; and
2. motion to dismiss - a motion to
dismiss could either be granted,
denied or the court can order an
AMENDMENT, the court can order
an amendment, the court cannot
defer on a ruling on motion to
dismiss.
So let us say class that the plaintiff did not act
on the order of the court to file a motion for bill
of particulars. What will happen to the case?
What will happen to the case if the plaintiff did
not comply with the order of the court to file a
bill of particulars? What will the court do? The
court can DISMISS the case. This is based on
RULE 17 3, this is also based on the case of
Virata vs. Sandiganbayan. What if only portions
have not been clarified? Nagsubmit ng bill of
particulars, pero kung baga sa layman's
language yung sagot lusaw. Hindi rin
kinocomply pero nagsubmit lang. Allegations
could be expunged or stricken off the record.
What should the defendant or the other party
timely submitted a bill of particulars? He has to
file an answer. He has any of the following
options:
1. he could file an answer within the
remaining period after the
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
interruption in a period no less than
five days;
2. he could a motion for
reconsideration;
3. but if he feels that there is a grave
abuse of discretion he could file a
petition for certiorari.
Now, let us move or slide slowly to criminal
procedure. When can you file your motion for
bill of particulars in criminal cases? In civil cases,
it is before responding to a pleading - before a
complaint, before an answer. Look at RULE 116
9, what does it say? Does it say before
arraignment or before plea? Before
arraignment, so class even before the reading
you have to file a motion for bill of particulars.
Please take note of that, even before the
reading of information you have to file a motion
for bill of particulars. Before I leave this item, let
me now tell you class, just for purposes of easy
study for you. The counting of periods in bill of
particulars is more or less the same as motion
to dismiss. Do you follow? What are the rules
that I would like you to remember? If you file a
motion for bill of particulars, the period id
interrupted. If you file a motion to dismiss, the
period to file an answer is interrupted. Do you
follow? The period will stop and class once it is
denied and you feel like filing an answer, the
period will commence to run again but please
take note that if the period is less than five
days, in all cases it will be at least five days.
Now, let me touch on default. But before I
touch on default let me tell you this
motherhood statement. Ok! Para it comes in
handy for you. All defenses or objections are
deemed waived if not raised in an answer or a
motion to dismiss. So if the defenses or
objections are appealable you have to raise in
the first instance before an answer or a motion
to dismiss EXCEPT LACK OF JURISDICTION OVER
THE SUBJECT MATTER, LITIS PENDENTIA, RES
Page 13 of 101
JUDICATA AND STATUTE OF LIMITATIONS. Sa
madaling salita class, those grounds could be
raised even after answer or a motion to dismiss.
Do you follow? The rest are waived, you can no
longer raise them. However class jurisprudence
tells you and ADDS ONE MORE wala dyan sa
code niyo LACK OR ABSENCE OF CAUSE OF
ACTION. This is different class from the ground
in RULE 16 - Motion to Dismiss, this is different
because the ground in RULE 16 states that the
pleading asserting the claim states no cause of
action. Are we clear? You have to memorize it
that way. Hindi lang no cause of action, di ba
ganun shortcut eh! The pleading asserting the
claims states no cause of action. Class, it only
tells you that upon looking at the complaint
there is really no leg to stand on. However lack
or absence of cause of action could be raised
even after an answer or a motion to dismiss had
been filed, in fact it has been treated in the
nature of a demurrer to evidence. Even after
the plaintiff had presented his case or his
evidence and the defendant feels that there is
lack or absence of cause of action, he could file
it even after an answer or a motion to dismiss
and it must be treated as a demurrer to
evidence.
Now, let us touch on DEFAULT. What are the
things that I would like you to remember when
it comes to default. There is what you call:
1. general default;
2. default;
3. as in default.
General default usually applies in land
registration cases or in cases wherein there is
no defendant. Meaning IN REM ACTIONS, so
what happens is before the court will proceed
the court will ask - are there any oppositors
despite the publication of the notice? Your
honor there is none. CAN I MOVE FOR GENERAL
ORDER OF DEFAULT? That is general default. Do
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
you follow? The second kind is the regular one,
what is that regular one? Under RULE 10 and
what does it tell you? There is FAILURE TO FILE
AN ANSWER but class it should not be enough,
it should not stop there. It is not sufficient to
say that there is failure to file an answer, there
should be "PROOF OF SUCH FAILURE". That is
according to the provision; there should be
proof of such failure. You have to show proof of
failure to file answer. So not only absence of an
answer or a responsive pleading but there
should be what? Proof of such failure. Now,
what is your remedy? Iba yung ORDER of
default sa JUDGMENT by default. An order of
default is an order that tells you, you are now in
default and you cannot participate in the
proceeding and you are only entitled to notices.
Yun lang, yun ang order.
How do you lift an order of default?
-it should be first and foremost,
under oath - there should be a
motion to lift or set aside the order
of default under oath on the ground
of FAME (fraud, accident, mistake
or excusable negligence) and your
DEFENSE IS MERITORIOUS. Take
note class, that the negligence must
be excusable. If it is gross neglect
you cannot use this to lift the order
of default. Sir ano yung gross
neglect? Dala mo yung files mo
punta ka ng bar nakipag-inuman ka,
that is gross neglect. You should
have left that in your office or in
your car. Do you follow? As a rule
class take note, negligence of
counsel is negligence of client, that
is the general rule. However, if it is
gross that amounts to deprivation
of due process on the right of the
client, then the court can say that
the negligence of the lawyer is not
negligence of the client.
Page 14 of 101
Now, let me move further. Papano sir yung AS
IN DEFAULT? Ayan, ano yung as in default?
Class that is no longer used in our code.
However, because of the age of some justices
or some examiners it is better that you know
because they were taught under that rule but
the effect is also the same, except that the
provision had already been dropped. What do
you mean by as in default? The defendant did
not appear during the scheduled pre-trial, that
is as in default. What is your remedy? You have
to file a motion to set aside also on the ground
of fame but there is no need to say that your
defense is meritorious. On a regular default,
when you file a motion you will have to say that
you have a meritorious defense. On an as in
default, you have to file a motion to lift on the
ground of fame with no such statement. Why?
Because there is already an answer. What is the
effect of a party defendant present during a
pre-trial but did not submit a pre-trial brief? The
same, because failure to submit a pre-trial brief
is equivalent to absence during pre-trial,
therefore the effect is the same.
Let me now touch on DEFAULT JUDGMENT.
What is a default judgment? A default judgment
happens when a party-defendant has been
declared in default. He was given notices, did
not file a motion to lift and there was already a
judgment, that is a judgment by default. What
are your remedies for a judgment by default?
Can you file a motion for reconsideration? NO.
Because you did not present evidence - motion
for reconsideration says there is
misappreciation, there is excessive award of
damages and the evidence is insufficient to
justify the decision. You cannot file a motion for
reconsideration. You could file a MOTION FOR
NEW TRIAL within the regelementary period.
You could file an APPEAL within the
regelementary period. You could file a PETITION
FOR CERTIORARI if there is grave abuse of
discretion amounting to lack or excess of
jurisdiction. If the judgment became final with
no fault attributable to you, then you can file a
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
PETITION FOR RELIEF, otherwise you cannot file
a petition for relief from judgment. Take note
also, there could be PARTIAL DEFAULT. A partial
default can take place wherein there is more
than one party, meaning there are multiple
parties and one party-defendant did not file an
answer. Does it mean that the court will already
render a judgment? NO. The court can still hear
the case as to the non-defaulting defendants.
As to the non-defaulting defendants, can the
case proceed? Can they present their evidence?
YES! And class take note, if there is evidence
that will benefit the defaulted-defendant, it
could benefit him. Can there be DEFAULT IN
NULLITY CASES? Dapat nyan sagot niyo
matatapang na. WALA SIR! Eh, parang ngayon
niyo lang narinig. Can there be default in nullity
cases, annulment? WALA. Just to give you
briefly the process. Kapag binigyan kayo ng
ganyang qurstion, nullity case ang process
ganito - if there is no answer despite service of
summons, the court upon motion will schedule
or will refer the matter to a COLLUSION
CONFERENCE before a prosecutor, within the
period the prosecutor will determine whether
there was collusion and notify the parties and
thereafter the records will be returned to the
court and the court will issue a notice of pre-
trial. So there is no default in cases of that
nature. Now, let me now touch on lis pendens.
NOTICE OF LIS PENDENS. Not litis pendentia,
but lis pendens. Now let me ask you this
question, which has priority? Is it the registered
mortgage, that was registered ahead over a
notice of lis pendens? Ok, liliwanagin ko...
Nauna yung mortgage i-register and then
subsequently there was a notice of lis pendens
on the same property, which will be preferred
or priority? Does it mean that even if there is a
public sale the notice of lis pendens will always
be there? What did the court say? The auction
sale in a mortgage sale retroacts to the date of
the registration of the mortgage, putting the
auction sale beyond the reach of any
intervening lis pendens sale or attachment. A
contrary rule would make a prior registration of
Page 15 of 101
a mortgage or lien meaningless. But it is a
different story if the lis pendens was prior to
the mortgage.
The next item that I would like to cover would
be still lis pendens, applicability to certain
actions and proceedings. The question is, would
it include money claims. For example, if it is a
suit for recovery of sums of money let us say for
an amount of Php800,000.00. It is purely a
money claim, could you cause the annotation of
notice of lis pendens on the property of the
defendant on a purely money claim. The
pertinent case here is the case of Atlantic
Erectors and it says: by express provision of law
the doctrine of lis pendens does not apply to
attachments, levies of execution or to
proceedings for the probate of wills or for
administration of estate of deceased persons.
Generally, the doctrine of lis pendens has no
application to a proceeding in which the only
object is recovery of money. Take note, if the
action is solely for recovery of money lis
pendens cannot be applied for. It is essential
that the property be directly affected as where
the relief sought in the action includes the
recovery of possession or enforcement of a lien
or adjudication between conflicting claims of
title, possession or right of possession. So class,
A PURELY MONEY CLAIM THAT DOES NOT
involve possession, conflicts on title, matters of
enforcement of lien involving a title cannot be
subject of lis pendens. In this particular case
was, it involved recovery of money and
subsequently what the applicant did is to apply
for a notice of lis pendens on the property of
the defendant. What are the purpose of notice
of lis pendens? The case of St. Mary of the
Woods School vs. Office of the Register of
Deeds of Makati.
The purpose are as follows:
Generally it is founded it is on public policy and
necessity;
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
1. to keep the property within the
power of the court;
2. to announce to the whole world
that a particular property is subject
of a litigation and that also serves a
notice that anyone who touches the
property is subject to the notice of
lis pendens.
Can you cancel the notice of lis pendens? Which
court has the inherent power in notice of lis
pendens? It is the trial court that has the
inherent power to cancel a notice of lis
pendens.
The grounds are as follows:
1. if the purpose of the annotation is
for molesting the adverse party;
and
2. when the annotation of the notice
is no longer necessary to protect
the title of the party.
Now let us touch on this next question in the
same case. In this case class, there was a
question of forum shopping because there was
an appeal in connection of the main case and
while that was pending there was another
motion filed and the motion was a motion to
reinstate, re-annotate a notice of lis pendens.
There was an appeal of the main case, where
one of the issues is the lis pendens and there is
a motion subsequently filed wherein the
purpose of which is to re-annotate or reinstate
the notice of lis pendens that was already
cancelled. Can you follow? How did the
Supreme Court treat an appeal and a motion to
reinstate a notice of lis pendens? The Supreme
Court said that the motion was merely a
reiteration of the request to reinstate, the
Supreme Court did not consider it as forum
shopping it was merely treated as a reminder to
the court that they really wanted the
Page 16 of 101
reinstatement of the lis pendens. Let me ask
you this nenxt question. Does a notice of lis
pendens create a right or a title? If you
annotate a notice of lis pendens does it create a
right or a title over the property that was
subject of the lis pendens? That is the case of
Vicente vs. Avera. It was answered there that it
serves to protect the real rights of the
registration while the case involving the same is
pending. While the notice of lis pendens
remains on the certificate of title, the registrar
could rest assure that he would not lose the
property or any part of it during the litigation.
So in simple words, a notice of lis pendens
neither affects the merits of a case nor creates
a right or a lien. It only puts the certificate of
title on notice and put the property secured
until the termination of the case. The next
question that I would like to answer still on the
notice of lis pendens is this: Whether or not the
claim of a party, respondent, has merit if it
affects the annotation of lis pendens on the title
of the property? According to the case in
Romero vs. Court of Appeals there is nothing in
the rules which require that a party seeking
annotation to show that the land belongs to
him. So ownership is not required to cause the
annotation of a notice of lis pendens. You do
not need to claim or to say that I am the owner, I
title to the land. All that you need is that,
according to the rules, the property subject of
the notice of lis pendens is the subject of the
litigation, the subject of the pending
controversy. You do not need to say that I am
the owner, that the property belongs to me.
There is no requirement that the party applying
for the annotation must prove his right or
interest over the property annotated. All that
the rules require is that to have the annotation
as an affirmative relief since the notation
neither affects the merits of the case nor
creates a right. I would to be very clear with
this, a notice of lis pendens does not affect the
merits of the case it will not create a right or a
lien. That is why it is pure and simple, what?
Notice. How do you effect the notice? You
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
simply prepare a memorandum or anything in
writing directed to the register of deeds. And
what should it say? It should say that there is a
pending case, the description of the property,
who are the parites and the title number and
you already have a notice. Can you follow?
What is harder is to cancel the notice of lis
pendens. The grounds as I mentioned a while
ago for the cancellation of the notice of lis
pendens is what? If it will only molest the
adverse party or there is no reason to protect
the property subject of the litigation. Now,
what do you need in order to cancel the notice
of lis pendens? You need an order from the
court. It is easy to cause the notation, it is
harder to cause the cancellation because the
cancellation would require an order from the
court. As I mention to you a while ago there is
no requirement that the property subject of the
notice of lis pendens is owned by the person
who effects the notice of lis pendens. Let me
now touch on the case of Heirs of Lopez, which
is very informative on what is the nature of the
action. Meaning, when you say notice of lis
pendens you are practically telling the whle
world, this is subject of a pending litigation. In
this case, there was no action filed. Take note,
there was no action, there was no complaint
filed, there was no commencement of any
proceeding. What happened? He simply filed a
motion to cancel the title or to nullify the title.
Where? In the Land registration Authority. He
did not file a case in court. Take note, he did not
file a case in court but he filed a motion in the
LRA to annul or to cancel the title. What did the
court say? The application for lis pendens was
bereft of the original petition or complaint upon
which this office will base its action. So what is
required class to effect a notice of lis pendens is
an actual court action. Not in any quasi-judicial
agency like the LRA but there should be a
pending litigation in court. Let me call your
attention still on the case of Heirs of Lopez
class, because this case gave us an enumeration
where a notice of lis pendens is appropriate.
This might be helpful to you.
Page 17 of 101
Where a notice of lis pendens is appropriate:
1. an action to recover possession of
real estate;
2. an action to quite title;
3. an action to remove cloud;
4. and for partition; and
5. any other proceeding of any kind
directly affecting title to the land,
the use or occupation thereof.
When will the notice of lis pendens do not
apply:
1. in preliminary attachments;
2. in proceedings for probate of will;
3. in levies on execution;
4. on proceedings for administration
of estate of deceased persons; and
5. in proceedings where the sole
object of the action is recovery of
money.
This was mentioned in the case of Atlantic
Erectors. So I hope that will help you on lis
pendens. I am still on service because lis
pendens is in RULE 13 on Service. Let me touch
on the case of PCI vs. Court of Appeals. Which is
very helpful, in the definition of FILING AND
SERVICE. What do you mean by FILING? It is an
act of presenting a pleading in court. What is
SERVICE? It is the act of providing a party with
the copy of the pleading. Again, filing is the act
of submitting or presenting a pleading in court
while service is the act of providing a copy to a
party. I would like you to take note and for you
to highlight, that when we say service it is not
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
limited to an individual party. Service could be
made to a juridical entity, to an individual, to a
court, to a tribunal, to an agency. Do you
follow? For as long as they are parties to the
case. Now, let us now answer this question:
What are the modes of filing? I do not want you
to be confused. Very simple, what are the
MODES OF FILING? It is either by PERSONAL
SERVICE or by REGISTERED MAIL. Ordinary mail
is not allowed, do you follow? Ulitin ko, on filing
it is only PERSONAL SERVICE and SERVICE BY
REGISTERED MAIL. When you talk of SERVICE
class, it could either by personal service,
registered mail, what else? Ordinary mail. In
service you include ordinary mail, in filing you
do not. You only limit it to personal service and
registered mail. What is the reason for that? It
is very hard to prove when ordinary mail.
Right?! So... Hindi ho na-file ko yan eh, pinadala
ko yan eh. Kelan mo pinadala? Pinadala ko ho
yan! It is very hard to prove. Do you follow?
That is why you would note as I started our
discussion this afternoon I touched on
summons. Wherein they said, if it is a foreign
juridical entity. Service of summons to foreign
juridical entity with leave of court if it is not
registered to do business in the Philippines, one
of the modes is by facsimile or other electronic
mode WHERE PROOF OF SERVICE COULD BE
GENERATED. What I notice that they should
have included was what? Express mail. You
know what express mail is? LBC, UPS, DHL
because they have tracking number there is a
way to generate proof of service. Although we
could say because the last provision or
subsection of the new 12 says other modes as
may be determined by the court. Besides for all
intents and purposes you have to secure leave
of court.
Let us now touch on another item that I feel is
important is PRIORITY OF SERVICE. Still on RULE
13, priority of service and I would like to touch
on the case of Shecker vs. Shecker. What is the
rule? I would like you to bear in mind what is
the rule in terms of priority in service and filing.
Page 18 of 101
What is the priority of service and filing?
PERSONAL - on 11. It should be personal, that
is the general rule. If you cannot do it personally ,
you should make an explanation but that it is
an exception and it is not enough for you to
make an explanation. In one case decided by
the court, ang sinabi niya ito lang ha: sabi niya
time constraints, because of time constraints I
am unable to file by personal service. Anong
sabi ng Supreme Court? Sandali lang! Ang
opisina mo ay sa T.M. Kalaw yung kalaban mo
sa Legaspi Village sa Makati, ang paliwanag mo
time constraints. The Supreme Court did not
buy the idea and denied it and said that there
was no proper filing. So what should you bear in
mind? It is not enough for you to make an
explanation. That is why if you read the
provision 11 it says: whenever practicable. Do
you follow? Nakita niyo? It says, whenever
practicable. Meaning personal service should be
made or personal filing whenever practicable.
So your explanation would show that it is
impracticable. Do you follow? That it is
impracticable. Like for example class in the case
decided by the court in Musa vs. Amor sabi nito:
Eh kung yung filing sa Court of Appeals yung
magpa-file nasa Donsol, Sorsogon sabi ng court
that is what? Impracticable. Do you follow? And
in the case of Shecker vs. Shecker ano naman
ito? There was failure ot make an explanation
but the Supreme Court said the RTC should
have known, sabi nila. Why? That the party
holds office in, petitioner holds office in Salcedo
Village, Makati and the assailed orders were
issued in Iligan City so obviously you cannot do
it by personal service. Right?! What did the
court say? The lower court should have taken
judicial notice of the great distance between
said cities and realize that it is indeed not
practicable to serve and file money claim
personally. Do you follow? Pinagalitan pa siya,
sabi niya hindi mo ba alam na mas malayo yun
Iligan sa Makati? So here the court used what?
Judicial Notice. Sir, ano ngayon ang standard na
dapat naming tandaan for purposes of the bar
the GENERAL RULE IS PERSONAL SERVICE. If you
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
cannot do it by personal service, you should
show that it is impracticable to do it personally
and give an explanation. This case of Shecker is
an exceptional case wherein there was no
written explanation but the court said, you
should have taken the judicial notice na malayo
but this not the standard, this is rather an
exception. Wherein the court said you should
have taken judicial notice. I am not certain that
if confronted with the same fact in the future,
similar facts in the future the Supreme Court
will decide in the same manner. So all you need
to remember is general rule personal service, if
it is impracticable to do it you do it by
registered mail but with an explanation. A time
constraint is not a good explanation. Distance
between the court and the petitioner's office is
that a good explanation? YES. Unavailability of
messenger sir, is that a good explanation? YES.
That could be a good explanation. Sir, paano mo
nalaman? Ginagamit ko yun eh! Hindi pa naman
ako nadidismiss eh. Now, let us now look at
class, before I leave that portion a few more
itmes on... baka gulatin kayo i-codal kayo. Ano
yun?! COMPLETENESS OF SERVICE. What do
you mean by completeness of service? The
service has been what? Completed or in a
sense, properly executed. How? By personal
service UPON ACTUAL RECEIPT. By ordinary mail
UPON THE LAPSE OF A PERIOD OF 10-days. So
ibig sabihin kapag nagpadala kayo ng mail -
ordinary bahala na matatanggap niya yan
because after the period of 10-days it is
deemed to have been complete service. What
else? How about registered mail? Ito class a
little bit tricky, kapag kinodal kailangan alam
niyo. Upon actual receipt or lapse of a period of
five days from first notice whichever comes
first. Again, Upon actual receipt or lapse of a
period of five days from first notice whichever
comes first. How about PROOF?
What is proof of personal service? Class there
are three:
Page 19 of 101
1. written acknowledgment or
admission of the one who received
it;
2. OFFICIAL RETURN and this provision
on official return apply only to
what? SHERIFFS, PROCESS
SERVERS. Sir, bakit ganun? Bakit
may personal service ang court?
Did you not ask yourself? Sir, bakit
kasama sila dyan eh di ba ang
nagseserve lang yung parties, sila-
sila lang? For those of you who
work in courts, you know what I
mean because COURTS IN CIVIL
CASES serve notices, orders and
judgements/decisions - 9 RULE
13. That is why a proof of service
includes official returns because
courts in civil cases does not
promulgate in the trial court, they
do not promulgate. What do they
do? They serve orders, notices,
decisions and judgments;
3. AFFIDAVIT OF THE PERSON
SERVING - this happens when there
is refusal to receive. The party
serving would be asked to prepare
an affidavit.
When you talk of ordinary mail, what is the
proof? AFFIDAVIT OF THE PERSON MAILING
showing the circumstances under 7.
Finally, proof of service by registered mail.
AFFIDAVIT OF THE PERSON MAILING and
REGISTRY RECEIPT. However, class it does not
end there. There is the duty of the person
serving to file in court, submit or present the
REGISTRY RETURN CARD. You will have to
submit to the court the registry return card.
What if in the bar exams class you were given
this scenario, the registered mail was never
received but the document was returned to the
sender, can it happen? YES! Change of address,
the addressee cannot be located the document
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
will be returned. Have you served? Not yet.
How will you prove to the court that you have
served? You will have to submit NOT ONLY an
affidavit, NOT ONLY the receipt but also the
document including the return card, the
document itself that was returned plus a
certification from the postmaster on the reason
for the return. Maliwanag yun ha! So, you will
have to add something else when you talk of a
returned document of registered mail. You have
to file the registry return card plus the
document returned plus you have to get a
certification from the postmaster for the reason
of the return. Are we clear? Now my last item
here is, SUBSTITUTED SERVICE, as distinguished
from SUBSTITUTED SERVICE IN SUMMONS. Ok!
Sir, alam ko lang na substituted service eh yung
ano , yung sa summons. Is there substituted
service IN FILING? YES! That is 8. So we will
compare. When we talk of substituted service in
RULE 13, it means that there were efforts to
serve it either personally and by registered mail
but there was failure to serve. So what do you
do? You file it and submit it in court. Are we
clear? You should have made efforts to serve it
personally and to do it by registered mail but
for some reason it was not served. You will have
to get the document and submit it to the court,
with an explanation for that reason. That is
what you call substituted service. But
substituted service of summons is different. Do
you follow? Substituted service of summons
means that the person who should have
received it is not available to receive it and
there what you call impossibility of personal
service and for that reason if there is
impossibility of personal service. To whom
should you give it? To whom should you serve
it? In his house: to a person of suitable age and
discretion residing therein. Take note of that,
residing therein. He could be your uncle who is
old, he could be someone more than 18 years
of age but he is a transcient, he was there to
stay overnight in your home - that is not proper
substituted service. If you are to serve by
substituted service in the office, you are to
Page 20 of 101
leave to whom: to a person in-charge thereof.
So you will see it is different. RULE 13 -
Substituted Service vs. RULE 14 - Substituted
Service. Now, let us see another difference.
Personal service in RULE 13, what does it mean?
When you talk of personal service in RULE 13 it
means:
1. actual handing;
2. you leave it in his home to a person
of suitable age and discretion,
residing therein. Sir, parang mali?!
YES! That is personal service under
RULE 13 because that is service of
PLEADINGS and others documents;
and
3. by leaving a copy to a person in-
charge of the office.
On the other hand, let us look at SUMMONS
(RULE 14) - Personal service is what? By giving
or tendering of course he should receive, but it
could be tendered but there is refusal that is
different. It should have been given to him
personally, the rest is SUBSTITUTED. So in
summons, when you talk of personal it should
be handed to him personally. It should be
tendered. What if he refuses? Sir, anong
gagawin mo? Eh you have to tender. Sir, paano
ko gagawin? Ilalagay ko ba doon sa damit niya?
NO. You just have to tender. If he is in his
house, leave it in his house. But that is the work
of who? THE SHERIFF that is the work of the
sheriff. If there is something I would like to
remind you class. If there is something that I
would like to remind you, bear this in mind.
Class, when we talk of summons we apply only
what rule? RULE 14 and nothing else, tandaan
niyo yan ha! Baka ang style mo eh chopsuey
style ah pwede rin yung 13. Hindi pwede sir by
analogy yan eh. HINDI PWEDE! Kapag RULE 14
on SUMMONS, it SUMMONS RULE 14. There is
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
no priority in terms of application, you only
apply RULE 14.
Now, let me ask this question in connection
with the case of Cada vs. Time Saver. The
question is this, will the rules of court on service
of summons apply to labor cases before the
NLRC? This court declared in said case that
technical rules of procedure are not applied in
quasi-judicial proceedings only substantial
compliance is required. In quasi-judicial
proceedings before the NLRC and its arbitration
branch procedural rules of summons are not
strictly construed. So, the rules on summons in
the rules of court as a rule do not apply in NLRC
cases because they have their own rules.
The next question that we will try to answer is
the rules on SUBSTITUTED SERVICE. This was
first laid down in the case of Manotoc vs. Court
of Appeals and repeatedly cited. Sino yung
Manotoc dito? Si Imee naman, sikat sila ano?
Jurisprudence sila lagi ano?! Yung isa si Irene,
venue. Ito naman yung substituted. The
requirements were laid down in the case of
Manotoc and cited in the case of Pascual vs.
Pascual. Class bear this in mind. What do you
mean by IMPOSSIBILITY OF PROMPT PERSONAL
SERVICE to allow SUBSTITUTED SERVICE? It
says, the party relying on the substituted
service must show that defendant cannot be
served promptly or there is impossibility of
prompt service. Take note, not only
impossibility of service but impossibility of
prompt service. Yan yung sabi ng decision
because previous decicions impossibility of
service lang ang ginagamit lately impossibility of
prompt service and reference should to be
made to reasonable time. Of course we are
talking about prompt service, what is
reasonable time? According to the case,
reasonable time is defined as so much time as is
necessary for a reasonably prudent and diligent
man to do the service, having a regard for the
rights and possibility of loss, if any to the other
party. So there should have been necessary
Page 21 of 101
time as is necessary under the circumstances
for a reasonably prudent and diligent man.
Now, in this particular case sinabi pa nila ano
yung reasonable time? For a sheriff, what is
reasonable time? For the PLAINTIFF its seven
days notice, it means no more than seven days
since an expeditious processing of complaint is
what the plaintiff wants. For the SHERIFF it is a
period of 15 to 30 days because at the end of
the month, it is the practice of branch clerk of
court to require the sheriff to submit his return.
So for a plaintiff, reasonable time is seven days,
for a sheriff within a period of 15 to 30 days.
How about class several attempts? Because
when you say impossibility of prompt personal
service, what do you mean by several attempts?
So class is it once? Is it twice? It means at least
THREE tries, at least three tries to serve
preferably in at least two different dates, in
addition the sheriff must cite why such efforts
was unsuccessful. Let us move on to the next
requirement, the next requirement aside from
impossibility of prompt personal service is,
specific details in the return. This is very short
and very quick - specific details in the return.
The requirement is, the sheriff must describe
the manner by which or the circumstances he
attempted to serve. He cannot just say, I went
to the house and he was not there so I served
to the wife. That was asked n the bar exams in
2003, tinanong yan! Ang sabi, very brief
question the defendant was the husband and
he was out of the house when the summons
was served but the wife was in the house and
so the sheriff served it upon whom? To the
wife, is that proper service of summons? NO.
Because there was no showing of impossibility
of prompt personal service. Do you follow? He
could have returned, based on this case
Manotoc case and Pascual that says there
should have been several attempts. When you
say several attempts at least three tries at least
on two different dates. Ayan! Sana yan ang mga
itanong ano... Kaya lang baka hindi itanong.
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
Now, this is another item. The third
requirement is a PERSON OF SUITABLE AGE
AND DISCRETION. Who is a person of suitable
age and discretion? Alam niyo class kung
babasahin niyo yung provision, the provision of
the law only says person with suitable age and
discretion right?! It does not say that the person
who will receive summons should be of
majority age tama?! Walang sinasabing ganun!
Sabi lang suitable age and discretion. Could a 14
year old be of suitable age and discretion? YES!
Could a 16 year old boy be of suitable age and
discretion? YES! However, this case again
defined what is suitable age and discretion. It
said a person of suitable age and discretion is
one who has attained the AGE OF MAJORITY.
Akalain mo yun!? Akalain mo yun!? Ano!!!
Malupet ah! So si Nene, yung helper mo, hindi
pwede kasi wala pa siyang 18. Now let us
proceed further, majority age and is
CONSIDERED TO HAVE ENOUGH DISCERNMENT
to understand the importance of summons. Not
only of majority age, but should have enough
discernment to know the importance of
summons. That case even defined DISCRETION.
Suitable age and discretion; ano yung
discretion? They were not satisfied by simply
saying discernment they defined discretion.
They said discretion is the ability to make
decisions which represent a responsible choice
and for which an understanding of what is
lawful, right and wise maybe presupposed.
Napakahirap naman nito. Do you follow?
Papaano yun?! Responsible choice for which an
understanding of what is lawful, right or wise
maybe presupposed. So class again, majority
age - reasonable discernment, right! Discretion -
who is responsible enough to know what is
lawful, right, wise ok! What else? Ito pa
dinagdagan pa; Thus, the person must have
relation of confidence to the defendant
ensuring that the latter would receive or at
least be notified of the receipt of the summons.
All these things I am sharing with you, so that
you will know the details of the case. Do you
follow? And class, let me call your attention to
Page 22 of 101
that main case of Manotoc that was cited in
Pascual, what they said was relation of
confidence. In this particular case of Manotoc,
there was invalid substituted service of
summons to Imee Marcos; service was made to
the caretaker. Let us see how the Supreme
Court addressed this ah, the caretaker of the
unit of Imee Marcos and what does it say? This
is how the Supreme Court declared, in this case
the sheriff's return lack information as to
residence, age and discretion of Mr. Macky Dela
Cruz. Aside from the sheriff's general assertion
that Dela Cruz is the resident caretaker. It is
doubtful if Mr. Dela Cruz is residing with
petitioner Manotoc in the condominium unit
considering that a married woman of a stature
in society will unlikely hire a male caretaker to
reside in her dwelling. The realtion of
confidence here class is not a personal relation
but to make sure that the summons is received
by the defendant. You see now the standard?!
Finally the last requirement is A COMPETENT
PERSON IN-CHARGE OF THE OFFICE. This is
easier, who is a competent person in-charge?
He is one managing the office or business of
defendant such as the president or the manager
and such individual must have sufficient
knowledge to understand the obligation of the
defendant in the summons. Now, let us look at
the case of Manotoc on trying to answer who is
the substitute.
There are two requirements:
1. recipient must be of suitable age
and discretion;
2. recipient must reside in the house
or residence of the defendant.
Now, let me now ask this next question. This is
the case of Philamlife vs. Breva, this is in
connection to an amended complaint. The
question here is; do you need to serve another
SUMMONS in cases of an amended complaint?
The case simply explained it to us in this
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
manner. If based on the original complaint
summons has been served on the defendants
then that is a valid service of summons you do
not need to issue another separate summons. If
by virtue of the amended complaint there is a
new set of defendants or there is a new
defendant new summons should have to be
served. If by chance, the original parties
although summons has been served was not
able to receive it or there was failure of service
of summons you will simply request for an
ALIAS SUMMONS. What is important is there is
jurisdiction over the person of the defendant. In
fact in this case they said it is not pertinent
whether the summons is designated as original
or an alias summons as long as it adequately
served the purpose, the second summons
according to the case was technically not an
alias summons but more of a new summons on
the amended complaint. Take note, so if there
are new parties after the amendment you do
not issue an alias summons, you issue an
original summons.
Let us now touch on the case of Mogul, this is
important to illustrate to you what is PERSONAL
SERVICE OF SUMMONS. Bibigyan ko kayo ng
paraan para matandaan niyo ito kahit
makalimutan niyo itong kaso na ito alam niyo
ang sagot sa personal service. You remember
the case of Kris Aquino and James Yap, wherein
they try to tender it outside the coliseum, it was
not wrong, that is the nature of personal
service. WHEREVER YOU MAY BE FOUND, that is
personal service hindi yung sa bahay. That was
a misimpression that was actually the case of
Mogul. When you talk of personal service of
summons, where you may be found. Sir, kung
papaano kung nandun ako sa hotel nag-
gogoodtime-goodtime, eh doon ka nakita eh
inabot sayo eh, personal service. Do you follow?
What happened in this case? Ok! Bago ko ibigay
sainyo yung facts let me give you the essence of
personal service according to this case. The
ESSENCE OF PERSONAL SERVICE is the handing
or tendering of a copy of the summons to the
Page 23 of 101
defendant himself. Remember it is the
HANDING OR TENDERING of the summons to
the defendant himself, wherever he may be
found. That is wherever he may be, PROVIDED
HE IS IN THE PHILIPPINES. Take note, so
obligado kang i-hand kung saan mo siya Makita
for as long as he is in the Philippines. Baka
naman punta ho ako ng America, ay ibang
provision yun class. It is another provision, it
could be 14, 15 or 16 depending on the
circumstances, iba yun! What happened in this
case was the defendant spouses had a number
of cases, eh nandun sila siguro nagtago-tago eh
natunugan. When I say natunugan, the sheriff
may have been informed that the spouses were
in another court. Do you follow? May isa silang
kaso, so doon sila inabangan ng sheriff. Ok!
Anong ginawa? Inabot ng sheriff, ah sir ito po.
Anong ginawa nung abugado? Sabin g client,
meron siniserve. Sandali nga! Akin na yan!
Nahawakan na nung cliente, tingnan ko nga. Ay
hindi hindi hindi srve mo! Ibinalik nung
abugado. The lawyer said; No! You cannot
receive that you serve it in his residence. So
ibinalik ng abugado. That is the question, was
there proper service of summons? The Supreme
Court said, YES, because it was already there
handed to the defendant and the court said it
was already accomplished when the operative
act of handing a copy of the summons to the
respondent spouses were made in person. Do
you follow? The operative act is the handing of
the summons. So they came up with their own
and say that the court cannot acquire
jurisdiction over the person of the defendants.
In fact the court said, the instruction of the
counsel for respondent spouses not to obtain
the copy of the summons and the copy of the
complaint under the lame excuse that the same
must be served only in the address stated
therein was a gross mistake. Alam niyo na kapag
maging abugado kayo, kapag hi-nand sa cliente
niyo. Siyempre kelangan magpasikat din. Eh
nagpasikat yung abugado kaya nagkaproblema
siya. Sabi niya WAG! Huwag niyong tanggapin
akong bahala. Dapat dyan paliwanag mo yung
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
cliente mo, eh tanggapin na ho natin dahil nandito
na naiabot na eh . Take note ha! Once it
is handed to you, wherever you are that is the
operative act. Kindly take note that this case
also said that you cannot go for a substituted
service unless you have tried or attempted to
do personal service. There should have been
attempts or efforts to do it personally and if you
fail only then can you do substituted service of
summons.
Now, let me touch on 14, 15 and 16. Di ko
pwedeng hindi i-touch to. Importane yan! The
first scenario under 14 is a DEFENDANT
WHOSE WHEREABOUTS ARE NOT KNOWN OR
AN UNKNOWN DEFENDANT. Now, you could
serve summons by PUBLICATION. To be
determined by the court. You have to effect
service of summons by publication. Now, the
pressing question is will that apply in personal
actions or is that limited to action in personam
or in rem or quasi-in rem. Class, I would like to
be very clear. In the past, that was limited only
to in rem and quasi-in rem. However, more
recently the Supreme Court had made
pronouncement considering that the provision
of the law says, ANY ACTION, therefore now it
includes in personam.
15 tells us a scenario of the DEFENDANT WHO
DOES NOT RESIDE IN THE PHILLIPINES OR IS
NOT FOUND IN THE PHILIPPINES. Do you
follow? The provision enumerates the nature of
cases or actions involved.
That which involves:
1. the personal status of the plaintiff;
or
2. a real property of a non-resident
defendant;
3. or any other action which involves
property, whether actual or
contingent for as long as there is
property.
Page 24 of 101
How do you serve summons for a defendant
who is not found or does not reside in the
Philippines?
1. by PERSONAL SERVICE - Sir, what
do you mean by personal service in
the Philippines wala nga rito eh?!
Eh di sa abroad!!!
2. by PUBLICATION AND REGISTERED
MAIL AT HIS LAST KNOWN
ADDRESS;
3. other modes as may be determined
by the court.
The most recent case that could apply to the
other modes as may be determined by the
court, if I recall accurately the title of the case is
the Rodriguez case. It involves a nullity case
involving the personal status of the plaintiff
because the wife had abandoned him. He
instituted an action for nullity. His laywer
applied for extraterritorial service of summons
but instead of granting his application. The
court issued an order requiring that service be
coursed through the DFA and that an answer
should be made within a period of 30-days and
coupled with publication. If you read the order
carefully, it will not fall in any of the first two
modes; it is neither personal nor strictly
publication because that requires registered
mail. So it was questioned, a judgment for that
particular was questioned for being null and
void. Sabi nung babae, ay null and void di
naman niyo nakuha jurisdiction sa akin. Anong
sabi ng Supreme Court, pwede yan! It falls in
other modes as may be determined by the
court. So careful kayo doon ha, even on foreign
juridical entity they have that provision, there is
a window - other modes as may be determined
by the court.
Now, the next section that I would like you to
bear in mind is 16 - DEFENDANT/S
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
TEMPORARILY ABSENT. Are they resident/s of
the Philippines? YES! They reside in the
Philippines. Those who are away for 3 to 6
months for 8 months but they continue to
reside in the Philppines. How do you serve
summons? In the same manner as I enumerated
to you:
1. personal;
2. publication and service by
registered mail in his last known
address;
3. other modes as may be determined
by the court.
However, the Supreme Court likewise decided
in a situation like this considering that he
resides in the Philippines and if there are
several attempts to serve it, there could be
substituted service. Because he has a residence,
he resides in the Philippines. Do you follow?
There should be several attempts to serve it.
Now, just three more points on this before I
leave it completely. The first of the three is this;
CAN THERE BE SUBSTITUTED SERVICE OF
SUMMONS TO A NON-RESIDENT DEFENDANT?
NO! It has been answered in the case of
Gemperle vs. Shenker. Look at the provision on
substituted service - to a person of suitable age
and discretion residing therein; it assumes that
a person has a residence. So a non-resident
cannot be subject of substituted service.
Another question, Sir! CAN THERE BE A
SUBSTITUTED SERVICE FOR A CORPORATION?
NO! Only those enumerated under 11 can
receive summons for the corporation -
president, general manager, managing partner,
corporate secretary, treasurer or in-house
counsel. That is a close list and cannot be
expanded. Hindi mo pwedeng idagdag si
executive secretary, hindi mo pwedeng idagdag
si chief of staff. Only those enumerated, are we
clear?! The last question of summons is this;
HOW ABOUT SERVICE TO A NON-JURIDICAL
Page 25 of 101
ENTITY? HOW DO YOU SERVE SUMMONS TO A
NON-JURIDICAL ENTITY? Before I answer this
question, this has related provisions in RULE 3
15. Tingnan niyo! Could make a non-juridical
entity a party? YES! You could sue them under
the name by which they are commonly known.
Ok! Because they have represented to the
public that they are this and the public believe
them but in truth and in fact they are not a
juridical entity. Can they be parties? YES! Can
the name by which they are publicly known be
the defendant? YES! But there is duty on the
part of the defendant in their answer to disclose
their true names and addresses and that leads
me to RULE 14. How do you serve summons
upon them? You serve summons by serving
summons to ANYONE of them. Isa lang sa
kanila. Kung lima sila, isa lang sapat na or to any
person in charge of the office. So I am done
with that. Hindi pa tayo uwian, hindi pa! Meron
pa!
Let us now proceed to RULE 15. Let me touch
on MOTIONS now. Motions na ako ngayon.
What about motions class? First and foremost I
would like you to bear in mind that there was
an amendment of 7 in 2008. Sir ano yun? Eh di
MOTION DAY, but class that is not truly an
amendment if you look at it. It was an Office of
the Court Administrator Circular of 2008. If you
read the provision it still remains to be the
same. That circular was just issued by the Court
Administrator to underscore the importance of
following that to the letter because motion day
before that pronouncement was at the pleasure
of the judge. At the pleasure of the judge -
Lunes, Martes, Miyerkules kung kelan niya
gusto dun yun. But with the 2008 circular he
reiterated that it should be followed strictly so
motion day is what a FRIDAY! It can only be
moved to another day if a Friday is a holiday or
a non-working day on the next business day,
because class in the past this was a hot item
because you will see the motion day of the
courts you will check. Sometimes you go to
court, you will be surprised; bakit walang
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
hearing? And the staff will say hindi ho ngayon
ang motion day naming sa Lunes, that is the
rule. Now, still on motions, a motion is not a
pleading. Although class a motion can seek
reliefs, affirmative relief. It is not a pleading, it
could only seek relief based on the fact
presented on the motion. Class for easy
recollection tandaan niyo lang yung 4, 5, 6, 7.
Tandaan niyo yun, ok na kayo! Basta huwag
lang yung number ang tandaan niyo ha! Dahil
hindi niyo yun maisasagot, kailangan alam niyo
yung nilalaman ng number. The first thing that I
would like you to bear in mind is EVERY
MOTION SHOULD HAVE A NOTICE OF HEARING.
Ito class na susunod kong sasabihin ay alam ng
bawat law student, di ko sinabing abugado
bawat law student, that if you will not put a
notice of hearing your motion is a mere scrap of
paper and that notice of hearing should be
directed to the other party. SHOULD ALL
MOTIONS HAVE A NOTICE OF HEARING? Not all,
if a motion will not prejudice the right of the
adverse party. You do not need a notice of
hearing. That is good for the bar exams. Ok!
Gusto ko yan ang tandaan ninyo for the bar
exams. But as a lawyer huwag niyong gagawin
yan! Huwag niyong gagawin yan! Bakit?! Ah,
hindi napag-aralan ko sa review. I believe that it
will not prejudice the right of the... Sino
nagsabi?! Do you follow? The other party will
always claim it will injure me. It will prejudice
me, even if it is an extension. So do not file a
motion without a notice of hearing otherwise
pasasakitin ang ulo niyo ng kalaban niyo. Kasi
kukutkutin niya lang yan eh. Lalo na kung gusto
nilang i-delay, kukutkutin yun. Ang dami kaso
niyan, magcite yan ng sangkatutak na
authorities. So you have to be very careful once
you become lawyers. Make sure that all of your
motions should have a notice of hearing but for
your purposes in terms of the bar exams NOT
ALL MOTIINS SHOULD HAVE A NOTICE OF
HEARING, IF THE MOTION WILL NOT PREJUDICE
THE RIGHT OF THE ADVERSE PARTY. The next
item that I would like to tell you will be this, the
motion should have been FILED AND SERVED at
Page 26 of 101
least three days before the date of the hearing.
So the magic number is three and 10. Oh! Saan
ko nakuha yung 10? The three is it should have
been filed and served at least three days before
the date of the hearing and it should have been
scheduled for hearing not later than 10 days
from its filing. What is the consequence if you
set it for hearing 30 days after? It is a mere
scrap of paper; the court will not consider it.
The motion will be denied; if it is a motion for
reconsideration of judgment the judgment will
become final and executory. Remember that
three and 10! The three is it should have been
filed and served at least three days before the
hearing and it should have been scheduled for
hearing not later than 10 days from filing.
What is the OMNIBUS MOTION RULE? The
omnibus motion rule is a rule that all available
grounds for objection or defenses should be
raised in the motion if available, otherwise it
will be waived that is the omnibus motion rule.
All grounds available should be raised,
otherwise it is waived. Are we clear?
Let us now move on to DISMISSALS. OK! Class
kapag diniscuss ko yung dismissals, dapat dyan
nagrereview kayo pasok na sa isip
niyo...tsuk!tsuk!tsuk! ganun oh. May tunog pa
sir ah!(Chuckles) Dapat! Hindi class kidding side
kelangan yun may mental outline. Hindi yung,
ano nga yang dismissal na yan?! Class maikli
lang ang period to answer kaya kelangan kapag
tumaas ang dismissal may sagot kaagad. Now,
dismissals in CIVIL CASES can be MOTION TO
DISMISS that is one. A motion to dismiss
initiated by who? BY THE DEFENDANT - RULE
16. There is also what you call dismissals
initiated BY THE PLAINTIFF - RULE 17:
DISMISSAL OF ACTIONS. In that RULE 17 it also
includes FAILURE TO PROSECUTE FOR AN
UNREASONABLE LENGTH OF TIME. Ano pa yung
pangatlo kapag dismissals? Ano pa? Sir wala na!
Anong wala?! DEMURRER TO EVIDENCE - RULE
33, dib a dismissal din yun. Kapag na-grant it
will be dismissed. We will discuss that first and I
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
will discuss the equivalent in CRIMINAL CASES.
Sir meron pala yan ah?! Meron yan!
Ipaliliwanag ko sainyo. Now, let us start with
MOTION TO DISMISS. Motion to dismiss is
prompted or filed by the defendant under RULE
16 and there are number of grounds
enumerated under the rule. I will just highlight
a few:
1. unenforceable under the statute of
frauds;
2. non-compliance with a condition
precedent;
3. improper venue;
4. lack of jurisdiction over the subject
matter; when you talk of lack of
jurisdiction over the subject matter
you are referring to the law that
confers jurisdiction. So you have to
look at RA 7691 or other law that
confers jurisdiction;
5. lack of jurisdiction over the person
of the defendant; when you talk of
lack of jurisdiction over the person
of the defendant you are talking of
improper service of summons - was
the summons properly served?
6. the pleading asserting the claim
states no cause of action - I have
discussed that, lack of legal
capacity.
Now, having mentioned a number of them the
next question that I would like to ask is this;
once a motion to dismiss is granted, can you file
the case? Can you re-file the case class? Once
the motion to dismiss is granted, on certain
grounds: as provide under 5 of RULE 16
referring to 1 of the same rule - f, h, i:
f. res judicata or statute of limitations;
Page 27 of 101
h. payment, waiver, abandonment or
otherwise extinguished;
i. unenforceable under the provision of
statute of frauds.
So kapag dinidmiss na yan HINDI MO NA YAN
PWEDE RE-FILE. Wala na! The rest if dismissed
can you re-file? YES!!! Sir, saan niyo nakuha
yan? Nasa batas yan eh! So those grounds
cannot be a basis of re-filing, the rest yes you
can. But sir, can I file a motion for
reconsideration if the motion to dismiss was
granted? Why not, you could do that. Now, the
next question now that I would like to answer
on motion to dismiss is one which was cited in a
case. WHAT IS THE NATURE OF AN ORDER
DENYING A MOTION TO DISMISS? IS IT A
JUDGMENT ON THE MERITS OR IS IT AN
INTERLOCUTORY ORDER? It is only an
INTERLOCUTORY ORDER. An order denying a
motion to dismiss is an interlocutory order
which neither terminates nor finally disposes of
a case as it leaves something to be done by the
court before the case is finally decided on the
merits. Neither can an appeal, neither can it
deny a motion to dismiss which is subject of an
appeal, unless and until a final judgment is
rendered. Take note, a denial of a motion to
dismiss is not subject of an appeal because it is
an interlocutory order. In the same case, it
enumerated three courses of action that a court
can take on a motion to dismiss. The court can,
either:
1. grant;
2. deny; or
3. order and amendment, but it
cannot defer the resolution of a
motion to dismiss.
Another case I would like to touch on this time,
still on motion to dismiss on presentation of
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
evidence during hearing. This is the case of
Republic vs. Carmel. Take note that should a
case go to trial, the evidence presented during
the hearing of the motion to dismiss shall
automatically be part of the evidence of the
party presenting the same. It will form part of
the evidence presented in the case. So there is
no waste of time. One item that has not yet
been asked in the bar exams is the
PRELIMINARY HEARING OF THE AFFIRMATIVE
DEFENSES. Do you follow? Have you heard of
that? Oh yes! Sir, hindi ko pa naabot sa basa yan
eh. Maiintindihan ko rin yan. Preliminary
hearing of the affirmative defenses, that is the
last section of RULE 16.
Let me explain this for the class. In the light
class of the concerns of the Supreme Court that
cases had been delayed due to motions for
reconsideration on a denied motion to dismiss
and eventually a petition for certiorari to the
next level court. The Supreme Court figured out
something and this is it - that instead of filing a
motion to dismiss you could file an answer, you
could file an ANSWER WITH AN AFFIRMATIVE
DEFENSE and your affirmative defenses can be
heard just like a motion to dismiss unless you
have once filed a motion to dismiss and the
grounds have been heard, there will be no
hearing on the affirmative defenses. Can you
follow? So you now, the provision of the law
gave the party-defendant an option, you could
file a motion dismiss alleging the grounds or you
could file an answer with an affirmative
defense. So you practically have an answer
which joins the issues but at the same time the
grounds for motion to dismiss available and the
court can conduct a hearing, if the court is
convinced that it should be dismiss after the
hearing of the affirmative defenses, can it
dismiss the case? YES! So if the court is
convinced after the hearing of the affirmative
defenses that it should be dismissed, the court
need not wait for the trial of the case but could
already dismiss the case, can act on it
immediately. Now, considering I mentioned
affirmative defenses. Affirmative defenses are
Page 28 of 101
found in RULE 6. Because for the defendant it
could either be negative defense: a total denial
of the claims; or an affirmative defense. What is
an affirmative defense? An affirmative defense
is though hypothetically admitting the material
allegations of the complaint - so sinasabi mo
yun, practically admitting the allegations of the
complaint but it will nevertheless prevent or bar
recovery. I will give you an example because I
will jump to another concept in relation to
affirmative defenses. Let us say class Mr. A
owes me money, he owes me Php500,000.00. I
make a demand for him, it was due and
demandable on May 30 and today it has not
been paid. It was evidenced by a PN for the
same amount I made a demand letter but still
he ignored. So I filed a complaint against him
and my first allegation that he owes me money,
he admitted. He said, yes I owe you money. On
the allegation that it was evidenced by a PN he
said, oh yes I owe you money as evidenced by
the PN. Third allegation, it is not yet paid until
this time. It was due on May 30, he said, yes.
What will you do to prevent or bar recovery?
Can you prevent or bar recovery? If he says it is
till unpaid. If he admitted the material
allegations of the complaint, that will lead to
what? JUDGMENT ON THE PLEADINGS - RULE
34, the answer does not tender an issue, it did
not dispute the material allegations. To prevent
or bar recovery he should have said "Oo nga,
hindi ba ginawa mo na yang birthday gift ko?!
Inabandon mo na yan!" Do you follow? He
should have raised a defense that will bar
recovery. Now on a last item on affirmative
defense, my question is this - ARE YOUR
AFFIRMATIVE DEFENSES LIMITED ONLY TO
THOSE IN RULE 16 1? NO! Any ground that
would prevent or bar recovery could be used as
an affirmative defense in an answer. Take note
of this, as an affirmative defense in answer. Any
ground or any defense that could prevent or bar
recovery could be used as an affirmative
defense, even if not enumerated in 1 of RULE
16. However for a motion to dismiss, it is only
limited to those under 1 RULE 16.
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
Let us move on to the next kind of dismissal.
RULE 17 - DISMISSAL OF ACTION which
prompted by the plaintiff. Kaya lang class tatlo
to. Itong section dyan tatlo. So easily you should
be able to remember this. Ok! Bear in mind
class that dismissal can be effected by a plaintiff
BEFORE AN ANSWER. Ok! Wala pang sagot the
plaintiff decides, Naku! Dismiss ko na lang. Can
he do that? YES! That is upon notice. The
dismissal is without prejudice. Take note
without prejudice. However, if it is dismissed for
the second time on the same ground it is
already with prejudice. Now may I ask you,
what happens to the counterclaim? Class
murmurs... it survives! Walang counterclaim,
wala pa ngang answer eh! Di ba?! There was a
complaint, the plaintiff decides to dismiss the
case upon notice, there is no answer there is no
counterclaim to speak of. The next scenario of
dismissal by the plaintiff is once THERE WAS
ALREADY AN ANSWER. Can the plaintiff still
dismiss the case? YES! But this time UPON
MOTION AND SUBJECT TO THE DISCRETION OF
THE COURT. Before answer it is a matter of right
upon notice by the plaintiff. Once there is an
answer already it is upon motion and subject to
the discretion of the court. Now, if the court
grants that motion what happens to the
counterclaim? This is important rule and this
next statement of mine will not be found in the
code because it is found in the case of Pingla
which is doctrinal. That has vacated the BA
Finace case which was the long standing rule.
Ok! Liliwanagin ko ha! Liliwanagin ko! Lest I be
misquoted! The present rule is this, once the
main case is dismissed by the plaintiff, THE
COUNTERCLAIM WHETHER COMPULSORY OR
PERMISSIVE WILL SURVIVE. What is the present
rule if the plaintiff moves for the dismissal of
the case, what happens to the counterclaim of
the defendant? It will survive. The question is,
can he prosecute it in the main case or in a
separate action? If he wants it to be prosecuted
or maintained in the same action, he will have
to manifest it within a period of 15 days the
Page 29 of 101
dismissal is without prejudice, unless otherwise
stated. The next kind of dismissal is not
prompted by the plaintiff; it is BY THE FAULT OF
THE PLAINITFF. Unreasonable delay in
prosecuting the same, unreasonable length of
time. What else? Failure to present the
evidence in-chief. Tama ba ako? What is that? It
only means failure to present your witness on
direct examination. What else would cause the
dismissal of the case? Failure to comply with an
order of the court and failure to comply with
the rules. Now, I will now slide and discuss on
DEMURRER TO EVIDENCE. Demurrer to
evidence in civil case, very simple. You are to
file a demurrer to evidence in civil cases after
the plaintiff has completed the presentation of
his evidence. Take note, completed ha! Not
rested, sa criminal yun! Pero pareho lang yun!
Don't worry pareho lang yun. When the plaintiff
has completed the presentation of its evidence,
the defendant could file a demurrer to
evidence. Do you need leave of court? NO!
Class civil, demurrer to evidence you do not
need a leave of court, take note of that. Ang
kailangan mo sa criminal pero bukas na yan!
Baka maghalo. Now, if the demurrer to
evidence is granted, take note what is the
consequence? The case will be dismissed! What
is your remedy? Can you appeal? YES! Because
it is a final disposition of the case. If your
demurrer to evidence is denied, can you file an
MR? You could either present evidence or you
could file an MR. If you are still not convinced
despite the denial of the MR and that there is a
grave abuse of discretion , you could file a
PETITION FOR CERTIORARI. The next discussion
point is one which distinguish civil from
criminal. What is that? If the demurrer to
evidence is granted in a civil case, of course the
defendant was not able to present evidence
and on appeal by the losing plaintiff the court
reverses the case, will the defendant-appellee
be still required to present his evidence? No
more, the court can already render a judgment.
That is a provison peculiar to only demurrer in
civil case. So if your demurrer to evidence is
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
granted and the plaintiff appeals to the next
level court and the next level court sees that
there is no reason for the demurrer to evidence
and reverses it can it render a judgment
without the evidence presented by the
defendant-appellee? YES! The court will already
render a judgment.
I was late the next day... I hope I did not miss
anything substantial.
Let us now move on and touch on the case of
Salazar vs. People. This is the case that
enumerates what I told you about leave of
court and let me quote this for you - In a case
where the accused files a demurrer without
leave of court, he thereby waives his right to
present evidence and submits the case for
decision based on the evidence of the
prosecution, very clear! On the other hand, if
the accused was granted leave to file a
demurrer to evidence, he has the right to
adduce evidence not only on the criminal
aspect but also on the civil aspect of the case.
Now, this leads me to another scenario. Let us
that the demurrer to evidence is granted in a
criminal case, WHAT HAPPENS TO THE CIVIL
ASPECT OF THE CASE? Do you follow? Tapos na
eh! Ang sabi natin dito dismiss ang kaso, the
accused should have presented his evidence but
what happens to the civil case? DOES IT MEAN
THAT IT IS ALSO DISMISSED OR SHOULD THERE
BE RECEPTION OF EVIDENCE FOR PURPOSES
OF THE CIVIL ACTION OF THE CASE? This what
the Salazar case said - If demurrer is granted
and accused is acquitted by the court, the
accused has the right to adduce evidence on
the civil aspect of the case unless the court also
declares that the act or omission from which
the civil liability may arise did not exist.
Now, let me touch on the case of
Radiowealth vs. Del Rosario. This is the
consequence of REVERSAL OF APPEAL IN A
CIVIL CASE. As I mentioned yesterday, the
effect of a reversal on appeal of a grant of a
demurrer to evidence is to allow the
Page 30 of 101
court to render a judgment without requiring
the appellee-defendant to present its evidence.
Now, so we are done with dismissals in civil
cases. Let me now give you a brief overview and
outline of dismissals in criminal cases. There are
a number of them. The first one is, if you still
recall RULE 117 - MOTION TO QUASH. You file a
motion to quash before plea or arraignment.
What is the consequence of a motion to quash?
The case will be dismissed. However, I would
like you to take note that there are certain
grounds wherein the court will not
automatically dismiss, like if it does not
constitute an offense, the information is
defective the court can require the prosecution
to amend the information. This is another
example outside of the civil amendment that
we mentioned yesterday, wherein the court can
order an amendment without a motion to
amend. Here the court can order the
amendment of the information. So one is
motion to quash, we will discuss motion to
quash later on in more detail. The second one is
PROVISIONAL DISMISSAL - RULE 117. This is a
dismissal with the consent, with the knowledge
or even prompted by the accused himself and
with the provisional dismissal, can that case be
revived? YES! Tandaan niyo yan ah kapag
provisional dismissal. Sir, papaano ko ba
nalalamang provisional? Eto mga example; your
honor considering the repeated absence of the
witnesses for the prosecution, I move for the
provisional dismissal of this case. Do you
follow? Can the case be revived? YES! Let us say
that the prosecution has a difficulty looking for
its witnesses and the prosecution will ask the
court, can this case be dismissed in the mean
time or until such time that I am able to locate
some of the witnesses? What do you say
counsel for the accused, is there any objection?
No objection your honor. That is what? A
provisional dismissal. Any kind of dismissal that
is with the consent or prompted by the accused
is a provisional dismissal. However class a
provisional dismissal in the light of your new
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
rules on criminal procedure can lead to a
permanent dismissal. Can you follow? Can lead
to a permanent dismissal yan. Sir, what do you
mean by permanent dismissal? If the penalty,
nasusundan niyo pa ba ako?! If the penalty for
the offense exceeds 6 years, a lapse of 2 years
would be required to make the dismissal
permanent. Ok now! I have to call your
attention on when the period will start to run.
Kailangan alam niyo kung kelan nagstart to run.
When will it start to run? If you look at the
provision of RULE 117, it will tell you , it will
start to run upon notice of dismissal to the
offended party, that is clear in the provision of
the law. However class, you will have to read it
together with the Lacson case. That which
involve Senator Lacson wherein the Supreme
Court said, that there should likewise be a
notice to the Public Prosecutor. Not only to the
offended party but likewise to the public
prosecutor and what is the reason for that? It is
the public prosecutor who can revive the case.
Therefore the period will not start to run unless
the public prosecutor has been duly informed
or has received notice of the dismissal. If the
period of the offense carries a penalty not
exceeding 6 years, the provisional dismissal will
become permanent after the lapse of 1 year.
Now, class let me ask you this, I will backtrack a
little. I did mention a motion to quash, right? A
while ago, does it mean class that if a motion to
quash is granted; meaning the case is dismissed,
can it be re-filed? YES! Except prescription,
double jeopardy; meaning he has been
acquitted, he has been convicted or that case
has been dismissed without the express
consent of the accused. Sir, how about lack of
jurisdiction over the subject matter, it was filed
in the RTC wherein it should have been filed in
the MTC - once dismissed can you file again?
YES! In the proper court. Do you follow? Lack of
jurisdicition over the person of the accused,
how do you acquire jurisdiction over the person
of the accused? By a valid arrest or surrender. If
the accused has not yet been arrested, the case
could be dismissed. Can it be re-filed once the
Page 31 of 101
court acquires jurisdiction? YES! Maliwanag ba
clas? Iwant that to be very clear. So class in a
sense, it is similar with a motion to dismiss - in
terms of re-filing of its dismissal.
What is the next kind of dismissal that you can
think of? DEMURRER TO EVIDENCE IN
CRIMINAL CASE - RULE 119 23. What other
kinds of dismissal can you think of in a criminal
case? DISMISSAL ON THE GROUND OF SPEEDY
TRIAL. Take note class, there are 2 kinds of
speedy trial. Alam niyo bay un? Ah sir
uhmmm...dalawa nga ba yun? Dalawa pala yun
ano ha?! OO DALAWA YUN! One is SPEEDY
TRIAL UNDER THE RULES ON CRIMINAL
PROCEDURE. Listen to this: When should it be
invoked? At anytime before trial. The second
kind is SPEEDY DISPOSITION OF CASES UNDER
THE CONSTITUTION. Now, ano yan class? When
could you invoke it? At anytime for as long as
the case is pending, you could invoke that.
What is your remedy? So class ha, I am moving
further. Ito lumabas na sa bar, baka hindi na
itanong o baka umulit. Yung demurrer nga class
the distinctions that I gave you a while ago,
lumabas yan sa bar. Yan class ang tawag sa mga
ganyang tanong de kahon. Ibig sabihin nun,
yung mga yun ay dapat alam niyo. Walang
kapatawaran kapag hindi niyo alam. Do you
follow? Yun mga ganun dapat alam niyo! Kung
sa basketball, sainyong mga naglalaro ng
basketball. Yun ay parang free throw. Do you
follow? Kung hindi mo ma-shoot yan, ikaw ang
may kasalanan. Wala kang dapat sisihin. That
was asked, distinguish demurrer in civil and
criminal. So kapag alam mo masaya ka! Tapos
pag labas mo mayabang ka pa! Kayang-kaya
exam eh. Class ang iingatan niyo pag labas
ninyo, huwag niyon i-aassume na yung reading
niyo ng question ay pareho sa kaklase niyo. Di
ba ganun?! At baka magtalo kayo. Tapos baka
mag-away pa kayo. Tapos magtaka ka later on
bakit siya hindi pumasa, ikaw pumasa. So class
forget about it move on to the next
examination. Now let us proceed. What are
your remedies for violation of speedy trial
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
under the constitution? HABEAS CORPUS!
Because detention has been rendered illegal,
that is on the premise that he is detained. How
about violation of your right to speedy trial
under the rules of procedure? Your remedies
are CERTIORARI, PROHIBITION or MANDAMUS.
Let us now proceed to another point. Ano pa
yung dismissal? Meron pa ba? May naiisip pa ba
kayo? Ah class? In criminal cases, there is also,
similar to civil cases FAILURE TO PROSECUTE.
You also have that in criminal cases. Now that
we have discussed the kinds of dismissals both
in civil and criminal cases. I will now proceed
and discuss the case of Limaco vs. Shonan. Let
us look at the 2 kinds of dismissal by the
plaintiff. What are the 2 kinds of dismissal by
the plaintiff? According to this case:
1. upon notice, a dismissal as a matter
of right;
2. dismissal as a matter of discretion.
Let us now look at PRE-TRIAL. Ayokong sabihin
if you have time, you should have time and I
would like you to read the guidelines on pre-
trial and modes of discovery. It is there at the
back portion of your code GUIDELINES ON PRE-
TRIAL AND MODES OF DISCOVERY of 2004.
There is also the JUDICIAL DISPUTE
RESOLUTION RULE of 2006. Let me walk you
through this briefly, before I give a case. What
are the things that I would like you to consider
on pre-trial? The first one is this provision on
pre-trial requires the PLAINTIFF TO FILE AN EX-
PARTE MOTION TO SET IT FOR PRE-TRIAL once
issues have been joined, it is the duty of the
plaintiff to promptly file an ex-parte motion for
pre-trial. The provision of the law uses the word
promptly. However the guidelines on pre-trial
and modes of discovery has supplemented this
provision. The plaintiff should still file an ex-
parte motion to set the case for pre-trial but
that is AFTER THE FILING OF THE LAST
PLEADING OR REPLY WITHIN A PERIOD OF 5
Page 32 of 101
DAYS. Doon may period na. Do you foolow? Sa
code walang period. Sir, ano magpprevail? Eh di
syempre yung mas bago - 5 days! Eh papaano
kung hindi nagfile ng ex-parte motion? What is
the duty of the court? Under the guidelines on
pre-trial and modes of discovery, IT IS THE DUTY
OF THE CLERK OF COURT TO ISSUE A NOTICE
OF PRE-TRIAL. If you look at the code you will
not find such a provision. That is only found
where? In the guidelines of pre-trial and
modes of discovery. Considering I touch on the
guidelines in relation to pre-trial. Let me now
tell you the new form of summons. Baka
mamaya itanong yan i-a, b, c. Sabi a. You have
to answer within the period of fifteen days
otherwise you will be declared in default; b.
you have to file an answer within a period of
30 days; c. you have to file an answer with an
affirmative defense in lieu of a motion to
dismiss within the reglementary period of 15
days. Which is the right answer? C! That is in
the guidelines. Now, the court persuades, it is
not mandatory baka naman sabihin niyo, ay
prohibited pleading pala ang motion to
dismiss! NO!!! It is not a prohibited pleading.
I want to be very clear. In ordinary cases a
motion to dismiss is not a prohibited
pleading. Liliwanagin ko! Baka mamaya
sisihin niyo pa ako! Di ba sinabi sa bar review
naming na it is a ... NO! IT IS NOT A
PROHIBITED PLEADING. Except that you have a
new form of summons and kindly take note
based on the guidelines that summons should
be served upon the defendant and this is not
provided for in RULE 14 within a period of 1
day. A few questions has been asked in the bar
exams in connection with these guidelines. Ano
yung mga yun? Like the MOST IMPORTANT
WITNESS RULE. Have you heard of that? Ano ba
yung most important witness rule? You start
with your presentation of witness in terms of
their importance. Aba'y baka unahin mo yung
nagpadala lang ng demand letter. Kasi ganun
ang abugado nun because of lack of a witness.
Sino nga bang pwede? The judge will ask, who is
your witness the? Your honor! My messenger.
Who is that? The one who delivered the
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
demand letter. In the absence of that provision,
kahit sino pwede mong dalhin eh. Anothe rule
that you have to take note on this is ONE DAY
EXAMINATION OF WITNESS RULE. Ibig sabihin
sa isang araw tapos ka na sa isang testigo. The
direct, cross, re-direct and re-cross should have
been completed in one sitting of the witness.
Pero sasabihin mo, sir parang... I work in court
but I do not see that. That is the prerogative of
the judge but the provision of the guidelines
suggest that judges should strictly follow the
same. We cannot blame judges because they
have so many cases and they have to give time
to all of those cases, otherwise baka sila ang
ma-icomplain kung isa lang at isa ang
pinepresent na testigo. So please take note of
those.
The next item that would like to touch on pre-
trial is this ABSENCE. The case of Alcaraz vs.
Court of Appeals. What happened in this was
that the lawyer was absent and the party was
also absent. Who was present? The wife of the
party. Maya dala-dala siyang medical certificate
which was not notarized. Your honor hindi ho
pwede yung asawa ko, yung lawyer ng asawa ko
hindi rin pwede. What is the effect 0f absence?
If the plaintiff was absent during pre-trial, what
happen? The case could be dismissed. If the
defendant was absent, the plaintiff will be
allowed to present evidence ex-parte. I think I
discussed with you yesterday the remedy of this
situation. As in default, you recall? Your remedy
according to the case of Saguid vs. Court of
Appeals is to file an MR or to LIFT ORDER OF
DEFAULT on the ground of FAME. In order not
to suffer the consequence of absence, what can
you do? You should send a representative, an
authorized representative or you should give a
legal or a valid excuse that the court should be
satisfied with. In the absence of any, the
consequence that I have mentioned to you will
occur. I said if the defendant is absent, the
plaintiff will be allowed to present evidence ex-
parte. Now let us make a comparison. How
about in default? If a party is declared in default
Page 33 of 101
in RULE 10 will the plaintiff be allowed to
present evidence ex-parte, in cases of default or
can the court render a judgment at its
discretion based on what the pleading may
warrant or alleges? That is new in that
provision, under the old rules presentation of
evidence ex-parte may be availed by the
plaintiff but today subject to the discretion of
the court. Subject to the discretion of the judge
he could already render a judgment based on
what the pleading may warrant.
Now, let me now touch on the case of Macasaet
vs. Macasaet. Why am I citing this case class? I
am citing this case because the provisions of
RULE 18 on absence or failure to appear was
adopted on an ejectment case or was made to
apply in a RULE 70 8. If you would note on
ejectment cases, there is no similar provision on
failure to appeal. What I mean by no similar
provision is there is no excuse or there is no
requirement of sending a representative. If the
plaintiff is absent in an ejectment case, it will be
dismissed. If the defendant is absent, the court
can already render judgment. However, there is
nothing in that provision in RULE 70 hat gives
them a reason for an excuse or the right to send
their representatives. In this case of Macasaet
vs. Macasaet, the court said: The spirit behind
the exception to personal appearance under
the rules on pre-trial is applicable to preliminary
conference in summary procedure. For the
longest time, I recall hindi ko ito na-touch
kahapon so babalikan ko, there has been no
question on amendment to conform with the
evidence. There were questions on amendment
as a matter of right before answer and after
answer with leave of court. But for the longest
time there has been no question on
amendment to conform to the evidence. This is
in 5 of RULE 10. Kindly take note that there are
2 kinds of AMENDMENT TO CONFORM TO THE
EVIDENCE: if there is no objection on the part of
the other party. But before I give you the kind
let me explain this to you. What do I mean by
amendment to conform to the evidence?
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
Ganito lang yun class, remember in your RULE 8
an answer is based on allegations, are evidence
required? The answer is NO! Unless it is an
actionable document. Therefore class in the
course of the trial, what has been alleged
should be supported by evidence and let me
lead you to the definition of evidence. RULE 128
1 - Evidence is the means sanctioned by the
rules in a judicial proceeding to establish the
truth as to a matter of fact. When do you
present evidence? During trial. To illustrate to
you more vividly let us say, my claim for sum of
money is Php500,000.00 but in the course of
the trial by presentation of invoices and other
receipts I was able to show that my claim is for
the amount of Php800,000.00 there is a
discrepancy from that which was alleged and
that which was established during trial. This is
where that provision will apply; you could
amend the pleading to conform with the
evidence. Ito na yung 2 kinds.
2 kinds of AMENDMENT TO CONFORM TO THE
EVIDENCE:
1. if the other party does not object,
in that case there could be
amendment of the pleadings to
conform to the evidence even after
judgment. Even after judgment that
could still be amended;
2. If the other party objects, it is left to
the sound discretion of the court.
Moving further on pre-trial, can you still apply
for DEPOSITION after pre-trial or you could only
apply for deposition at anytime before pre-
trial? YES! Jonathan Land Oil vs. Mangundadatu,
it is fairly settled now class. For as long as the
action is pending, you could apply for
deposition and if you will the Jonathan Land Oil
case, you will see that they are already at the
execution and there were certain facts that the
court had to be informed of. So please take
note of that.
Page 34 of 101
Please take note also of the EFFECT OF FAILURE
TO SUBMIT A PRE-TRIAL BRIEF. The effect of
failure to submit a pre-trial brief is as if you
were not present and therefore the
consequences of non-appearance will likewise
apply.
Let us now proceed to INTERVENTION. Let me
start with the case of Looyuko vs. Court of
Appeals. This is not a new case but this is
important because of its pronouncement. It lays
the general rule. When can you intervene? Class
ang kailngan niyo lang tandaan dito aside from
pwede ka magcomplaint-in-intervention, pwede
ka mag answer-in-intervention or you could be
a complainant-in-intervention against the
original parties, pwede rin yun! But more
importantly you will have to take note that the
period to file an intervention is at ANYTIME
BEFORE RENDITION OF JUDGMENT IN THE
TRIAL COURT. That is by express provision of 2
of RULE 19 - at anytime before rendition of
judgment in the trial court. I would like to be
very clear with this THERE IS NO PARTNER
PROVISION OF INTERVENTION IN THE COURT
OF APPEALS OR EVEN THE SUPREME COURT.
Even if you look at the provisions of RULE 46 to
55, you will not find a similar provision. Why?
Because only trial courts are allowed by law. Eh
sir ba't ganun? However, appellate courts have
reasonable judicial discretion to allow, not
under the provision but reasonable judicial
discretion to allow an intervention. Now, so the
GENERAL RULE is before or during trial you
could intervene is there an EXCEPTION
according to the case of Looyuko? YES! In the
Director of Lands vs. Court of Appeals,
intervention was allowed even when the
petition for review of the assailed judgment was
already submitted for decision in the Supreme
Court. Another case in Mago vs. Court of
Appeals, the court granted intervention despite
the case being final and executory. Eh sir ba't
ganun? Final and executory na may intervention
pa? What is the key? What will allow you to
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
intervene even if judgment has already been
rendered? According to this case, it must be
noted that in both this cases intervenors were
INDISPENSABLE PARTIES. So INDISPENSABLE
PARTIES CAN INTERVENE EVEN AFTER THE
RENDITION OF THE CASE. Class kindly take note
that there should be what? The INTERVENOR
SHOULD HAVE A LEGAL INTEREST. When I say
legal interest it should be material and actual
such that if you are the plaintiff, you should
have suffered some injury or damage. Let me
ask you this, is a mortgage lien a legal interest?
Let me give you the facts of this case, ano bay
un? Eh, nangutang eh! Ano yung sinangla? Ano
yung ginawang security? Yung barko, ang
pangalan pa ng barko ay Felipa. It was used as a
security, well just like any other loan if it
reaches the court it is unpaid. Hindi nabayaran
ok! Now, there was extra-judicial foreclosure on
the vessel. In the meantime the crew members
filed in court an action to recover the interest
and unpaid wages based on the preference of
credit. So nataranta yung nagpautang,
nataranta yung bangko. Anong ginawa nung
bangko? Doon sa court case wherein there is
preference of credit na mas superior yung
interest nung mga crew, what did they do? They
filed a complaint-in-intevention. The bank a
complaint-in-intervention based on what they
claim to be a mortgage lien. Sabi nila, meron ho
kaming mortgage lien dyan eh so pwede mag-
intervene. Anong sabi ng court? A MORTGAGE
LIEN IS NOT SUFFICIENT, if you are a plaintiff-in-
intervention you should have your own cause of
action and for that reason you should have
suffered some damage or injury by reason of
the fact. Similar case class, let us look at this
question: if the principal complaint has been
dismissed what happens to the complaint-in-
intervention? Can it stand alone just like a
counterclaim? Do you follow the same thing in
intervention? The answer is NO! According to
the court, intervention is merely ancillary and
supplemental to the existing litigation and
never an independent action, the dismissal of
the principal action necessarily results in the
Page 35 of 101
dismissal of the complaint-in-intervention. Take
note also of another case in intervention, the
case of Lim Po vs. Court of Appeals. This is
important because of the pronouncement of
the court that intervention will only be allowed
aside from existence of legal interest, if it will
not undue delay or prejudice the rights of the
original parties to the case. If it will unduly delay
and prejudice the rights of the original parties
to the case, the court will not allow
intervention.
Let us now proceed to a discussion on
SUBPOENA. What about subpoena? Class of
course I would like you to bear in mind that
there are 2 kinds of SUBPOENA:
1. subpoena AD TESTIFICANDUM, to
appear and testify; and
2. subpoena DUCES TECUM, to
appear and bring the documents in
court.
The next case that I will touch on is Collado vs.
Bravo. The question is this, the clerk of court
issues a subpoena when there is no pending
case. Can the court issue a subpoena without a
pending case, just to act as a mediator or as a
conciliator for a pending dispute? NO! Absent
any action a subpoena cannot be issued. Hindi
yun basta...ah i-susubpoena kita! Hindi pwede
yun. But of course class other investigative
bodies could issue a subpoena. The
Ombudsman could issue a subpoena, the DOJ
could issue a subpoena, the NBI issues a
subpoena, congress in aid of legislation could
issue a subpoena. Can they issue a subpoena?
YES! Can the Supreme Court or the Court of
Appeals issue a subpoena? YES! Can a judge
issue a subpoena in connection with the
application for a deposition? YES! Please take
note of that! I think more importantly you have
to take note of this, how to quash a subpoena?
How about how do you quash a subpoena
duces tecum? It is what? Unreasonable,
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
oppressive, failure to tender kilometrage,
failure to tender witness fees, failure to
describe the items to be brought that is in 3
and failure to tender the cause of production,
duces tecum eh! Ad testificandum, you are not
bound thereby. You are not bound! Hindi ako
dapat na pinipresenta. I still remember the
question in the bar exams where the examiner
was Justice Bersamin that question was a bit
tricky because it touched on something which
was privileged. Medjo ang tanong doon eh
pwede bang i-subpoena yung abugado na nag-
initial investigate doon sa kaso ng cliente niya.
Can you move to quash it? Are you bound?
Immediately you could say I am not bound
because of the privilege. You could invoke that.
When you say I am not bound thereby, you
have to show the reasons why you cannot be
compelled to sit at the stand. Another
important item that I would like to take note is
the 100-kilometer distance of the witness to the
court where the hearing is to be conducted.
Kailangan tandaan niyo yan 100 ha hindi 60.
May libro kasi sinsabi 60 luma yun! Why? What
is the importance of the witness within the 100-
kilometer radius from the place where the
hearing is to be conducted? If a subpoena has
been issued and he fails to appear the can use
its compulsive process. What do you mean by
compulsive process? The court can hold him in
contempt. Is that direct or indirect contempt?
Sir, mabigat na tanong yan ah! Who says A.
Direct contempt; B. Indirect contempt; C. None
of the above. That is indirect contempt, that is
3 of RULE 71. If I were you class I will
memorize RULE 71 3, it comes in handy; failure
to comply with the order, writ of process of the
court, when you made representations to be
lawyer where in fact you are not, any act of
disobedience outside of direct contempt, when
possession had already been divested and you
surreptitiously returned or took possession,
failure to comply with a subpoena issued by the
court - that is INDIRECT CONTEMPT. EH sir, ano
yung DIRECT CONTEMPT. Madaling-madali yan
class! Yan ah, tinuro ko na sainyo para alam
Page 36 of 101
niyo. Ang direct contempt class napakadali.
What? Galitin mo lang si judge. Galitan mo
lang, ganun! Inisin mo si judge. You could be
held liable for direct contempt because the
magic phrase is "IN THE PRESENCE OF OR SO
NEAR THE JUDGE". Ok! Kung katabi mo siya sa
sinehan, hindi ka macocontempt. Sabihan mo:
judge, mali-mali desisyon mo! Hindi ka
macocontempt ok! Eh bakit?! Sir we are near
each other. It should be in the presence or near
the judge while performing his judicial function.
In one case decided by the Supreme Court in
the Ibay case. Alam niyo ba yung kasong Ibay?
Nagamit yung parking! Ginamit yung parking
niya. Aba'y nagalit. Yun pala staff ng city hall. Eh
syempre magagaling yang mga staff ng city hall.
Hinahanap siya ngayon ni judge. Pagkapark niya
umalis na siya, umuwi. Kasi nagpadala si judge
ng notice: you should appear in the afternoon
and explain why you should not be held in
contempt of court. Kita niyo nagulat kayo oh!
Eh siguro sa galit niya explain why you should
be not be held in direct contempt of court. Eh
syempre hindi yun umattend... Kinontempt
niya! Siya ngayon ang dinemanda. Anong sabi
ng court? The act of the judge was improper he
should not have declared the person in
contempt. So direct contempt is in the presence
or so near the judge. In his presence, let us say
the person is in the courtroom and he was
asked ok you sit on the stand, you refused!
Could you be held indirect or direct contempt?
Direct! The court says, you raise your hand and
be placed on oath, you refused. Ayoko! Could
he be placed in contempt? YES! Direct
contempt.
So class that is one compulsive process, if you
are within the 100-kilometer radius you refused
to appear. You could be placed in contempt -
indirect contempt. Second is what? Your
appearance can be compelled by an ARREST.
The arrest is what you call a BENCH WARRANT,
hindi yan warrant of arrest. That is a bench
warrant, it is a warrant issued upon the
authority of the court. Ang warrant of arrest
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
presupposes that there is a pending criminal
case that is why there is a warrant of arrest.
Now let us now proceed and discuss certain
items on deposition. I still remember the
question on whether there could be
DEPOSITION ON A SPECIAL PROCEEDING
CASE? YES! Ok, tinanong na yan sa bar. Can
there be deposition or modes of discovery in a
criminal case? YES! So class every year
questions have been asked on deposition.
Titingnan natin ngayon kung magtatanong,
pero class multiple choice kelangan nila ng
tanong. Madami eh! So kung kayo ay di pa
naniniwala sa forecast na ito, basahin niyo na
yan! You are not in my regular review, this is
again, critical. So yung critical lang din
didiscussin ko, but kidding aside class you will
need it. Ang feeling may mga itatanong dyan
and for the last 3 years there have been
questions on deposition, para kapag minultiple
choice kayo alam niyong sagutin. Let us look at
the case of Cariaga vs. Court of Appeals, this is a
good case because it gives us an example of a
testimony or deposition at a former proceeding.
You know that? I will give you this example
before I discuss the case, this is in connection
with the provision on evidence as an exception
to the hearsay rule. RULE 130 47 -
DEPOSITION ON EXAMINATION OF A WITNESS
GIVEN IN ANOTHER TO BE USED IN THE
PRESENT PROCEEDING. What is the
requirement in that provision? So madaling
salita class imaginin niyo ako yung judge dito sa
husgado na to may ipipresenta ngayon na
testimonya but the witness to be presented is
unavailable. Do you follow? Because according
to 47, the person is dead or unavailable, that is
why it is an exception to the hearsay rule and
the requirement there class is, THERE SHOULD
HAVE BEEN AN OPPORTUNITY TO CROSS-
EXAMINE, not actual cross-examination but you
should have been given an opportunity. Kapag
tinanong ka magcross-examine ka? Ay, hindi na
ho! Ok na! Ok na yun, there was an
opportunity. What is prohibited is that you
were not even given the chance to cross-
Page 37 of 101
examine. But that was not the question in the
case of Carriaga vs. Court of Appeals, the
question in the case of Carriaga vs. Court of
Appeals was the question of unable to testify.
Ano ba yung ibig sabihin nung unabale to
testify? And class this has a partner provision in
RULE 115 1(f) tingnan niyo on rights of the
accused. Di ba? The witness is dead or
unavailable. Do you get me? Deposition or
examination in another proceeding can be used
for as long as there is an opportunity to cross
examine. Nakita niyo RULE 115 1(f)? So class,
in this case they touch on bought 47 RULE 130
and RULE 115 1(f). What did the court say?
They cited the case of Tan vs. Court of Appeals,
that ruled unable to testify for that matter
unavailability does not cover the witnesses who
were subpoenaed but did not appear. Ok!
Unavailability or unable to testify does not
cover situations wherein witnesses have been
subpoenaed, pinadalhan ng subpoena pero
hindi umappear. Hindi kasama yun sabi dito. It
may refer to inability of proceeding from a
grave cause, dapat daw for a grave cause
almost amounting to death as when the witness
is old and has lost the power of speech it does
not refer to tampering of witnesses. Ok, so
kelangan there should be a good reason or
grave cause for the unavailability. Referring
now to the case of Carriaga, the court said: the
records reveal that witness Carriaga was
subpoenaed only once and did not appear to
testify in the criminal case against petitioner.
Considerably, this witness was not deceased or
out of the Philippines. Do you follow? He was
not deceased or out of the Philippines. Can this
be witness be categorized as one that cannot be
found despite due diligence, unavailable or
unable to testify? The answer was NO. DO you
follow? Are we clear? The answer was NO!
Mere sending of subpoena and failure to
appear is not sufficient to prove inability to
testify and more particularly class in this case
the Supreme Court said, sandali lang this is a
criminal case. Do you follow? And it refers to
the right of the accused and therefore it should
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
be read in the context on how the constitution
gave it to them.
Now, if you will recall I mentioned the case of
Jonathan Land Oil vs. Mangundadatu a while
ago. Let me quote to you the declaration of the
court. Depositions may be taken at anytime,
after the institution of the action or whenever
necessary or convenient. There is no rule that
limits deposition taking only to the period of
pre-trial or before it. No prohibition against the
taking of deposition after pre-trial. Are we
clear? There is no prohibition for taking of
deposition after pre-trial. Now I will give you a...
Before i move further on the cases on
deposition. Let me just give you an outline of
RULE 23. Class huwag kayong pupunta ng bar
exam ng hindi niyo nabasa ang RUKE 23. Ok?! O
di sir RULE 23 lang ang babasahin ko? Eh bahala
ka!hehehe... Hanggang 29 basahin niyo ah! Pero
yung RULE 23 kasi class is the heart of it all. If
you know RULE 23 chances are you know
deposition. Let me help you outline the
provision. How many sections do you have
there? You have 29 sections! Is that right?
Madali lang yan class, ganito lang ang pag-
outline nyan, from sections 1 to 14: GENERAL
PROVISIONS; meaning it applies to both ORAL
DEPOSITION AND WRITTEN INTERROGATORIES.
Ok yang lahat ng yan so ienumerate ko briefly
ha. Ano ba yung mga yun? Hindi ko lalahatin but I
will highlight it. Ano yung mga kailangan dun?
Of course both applies to oral and written. How
to initiate or commence? Before an answer you
file what? A MOTION. Again, BEFORE AN
ANSWER HAS BEEN FILED after the institution of
the action. You file a MOTION TO TAKE
DEPOSITION. AFTER ANSWER you file a NOTICE
TO TAKE DEPOSITION. Kapag kayo ay nalilito
tandaan niyo kabaliktaran lang to ng
amendment. Kabaliktaran lang, before answer -
motion. Do you follow? After answer - notice,
that is in 1 - How to apply. Ito class it comes in
handy kasi yung mga nakaraang questions on
deposition revolves around this question -
What is the coverage? Kapag alam mo to madali
Page 38 of 101
kang maka-wiggle out at madali mong ma-
conclude yung sagot eh. What is the coverage?
What matters could be subject of deposition?
ANY MATTER FOR AS LONG AS IT IS NOT
PRIVILEGED. Ok! Any matter for as long as it is
not privileged. Ok! Of course it says relevant
mater, hindi naman yung walang ka torya-torya
di ba!? Relevant matter for as long as it is not
privileged. Now, let me touch on privileged. Ok!
Para naman may tinatakbuhan tayo. What do
you mean by privileged? This is covered by
RULE 130 24 of the rules on evidence. Ok!
Privileged, I will not discuss that in details but I
will enumerate to you:
1. attorney-client;
2. doctor-patient;
3. penitent and priest;
4. husband and wife;
5. public officer in relation to the
state;
6. secrecy of bank deposit;
7. non-disclosure of who you voted
for, except in election fraud cases;
8. non-disclosure of trade secrets;
9. non-disclosure of result of census.
These are examples of privileged
communications. Do you follow? So, they
cannot compel you to testify in the same vain or
in the same manner, they cannot compel you to
be a deponent. Are we clear? They cannot
compel you to be a deponent. Ano pa, general
provisions? Class, THE FACT OF TAKING OF
DEPOSITION DOES NOT MEAN THAT YOU ARE
MAKING THE DEPONENT AS YOUR WITNESS.
Take note of this, the fact of taking, kapag
kinuha mo it does not mean that you are
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
making him as your witness. But class the very
moment you, the magic word, USE A PORTION
you practically open it for examination. Do you
follow? The mere fact of taking, you are not
making him as your witness but the fact of use
of a portion of deposition allows the other party
to examine the entire deposition. Class kung
ako sainyo kailangan kabisado ninyo ang 4,
kailangan kabisado niyo yan! Kailangan
kabisado niyo ang 4. Deposition can be taken
for ANY PURPOSE.
Deposition could be taken if the court finds
that:
1. the witness is dead;
2. the witness resides more than 100-
kilometers where the place of trial
is conducted. Please take note class
of the 100. If you are within the
100-kilometers, your appearance
could be compelled by a subpoena.
You could be arrested. You could be
place in contempt. More than 100-
kilometers from the place where
the hearing is to be conducted,
there could be no compulsive
process but your remedy is to take
his deposition;
3. that the witness is unable to testify
because of age, sickness or
infirmity;
4. that the party offering the
deposition has been unable to
procure attendance of the witness
by subpoena; meaning the witness'
appearance cannot be procured by
subpoena; and
5. other exceptional circumstances.
Class, you have to take note of that. Take note
that the use of deposition under RULE 23 is the
same in RULE 24 and in RULE 25. Ok! In RULE 24
Page 39 of 101
and in RULE 25, the same uses. Ok now, the
next item that I will touch on is BEFORE WHOM
SHOULD DEPOSITION BE TAKEN. Dito wala pang
tanong.
Before whom in the Philippines?
1. before ANY JUDGE;
2. before a NOTARY PUBLIC;
3. before ANY PERSON WHO COULD
ADMINISTER OATH AND
STIPULATED UPON BY THE PARTIES
under 14.
The next class, foreign countries before where?
1. consul, consular officer, secretary of
legation; itong susunod itinanong
na
2. through letters rogatory or a
commission - what is a LETTERS
ROGATORY - a letters rogatory is a
communication from one judicial
authority to another, yan ang
letters rogatory. That has been
explained in the case of Dulay vs.
Dulay, it is a communication with
one judicial authority to another
and IF THE DEPOSITION WILL
PROCEED WHAT RULES WILL BE
APPLIED? The RULES OF THE
FOREIGN COUNTRY on taking of
deposition. How about
COMMISSION? Commission is the
appointment or naming of a person
before whom deposition is to be
taken by the court in the Philippines
and obviously what rules will be
followed? The rules in the
Philippines; and finally
3. any person auhtorized to
administer oath but should be
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
stipulated by the parties consistent
with 14.
Ok now, let us look at DISQUALIFICATION. What
about disqualification?
If the deposition officer has:
1. financial interest;
2. relationship to the party within the
6th degree of consanguinity or
affinity;
3. relation with the counsel within the
same degree of affinity or
consanguinity.
Ok let us look at...class the case of! Ok! Baka
gulatin kayo nito: WHEN DO YOU USE A
MOTION TO SUPPRESS DEPOSITION? That is in
RULE 23 29, I think that is in the last
subsection. Motion to suppress deposition, you
use a motion to suppress class, take note of this
if the procedure for the taking of the deposition
according to 17, 19, 20 and 21 was not
followed. I leave that to you, basahin niyo yun
ha 17, 19, 20 and 21. Sir ano ba yun? Inoutline
lang nun kung paano kumuha ng deposition.
Kapag hindi sinunod yun, expect a motion to
suppress deposition. The case of Sales vs.
Sabino. Ok! What about this according to the
case of Sales vs. Sabino, while depositions may
be used as evidence in court proceedings, they
are not generally meant to substitute for the
actual testimony in open court of a party or a
witness. Although you could take deposition,
you cannot make it as a substitute for
presenting the witness on the stand. However
class, if the uses that I enumerated are present,
then you could use it even without presenting
the witness. Obviously, if the witness is dead
you cannot present him anymore. Ok now, let
us now look at this. Let me now touch on
before I wind up on deposition, I still have 15
minutes before the break, your break is 10:30.
Ok! Nakita ko sa relo niya eh. Is that right I have
Page 40 of 101
15 minutes or I have 30 minutes...Parang gutom
na kayo eh. Relax lang kayo. What I intend to do
class, honestly, is to be able to capture it until
criminal procedure and evidence. The highlight
of those, I intend to capture it. If I could touch
on a little of specpro I will do that but I touch on
something already yesterday. I think this is the
bulk because in the bar exams 5% is specpro eh.
Nakita niyo ba? 5% eh, doon sa coverage nung
remedial. Hindi ko sinasabing huwaqg niyong
basahin ah, ang ibig kong sabihin, considering
my time is very limited with you. I have only 12
hours so I would like to cover until evidence.
Specpro bahala na kayo! Hindi...hindi naman!
Pwede mong basahin yun may reviewer naman
kayo dun eh but I intend to cover until
evidence. Ok! I will highlight it.
Now let me now touch on DEPOSITION BEFORE
ACTION. Take note that is perpetuation of
testimony. Deposition before action, that is
perpetuation of testimony and the other kind is
DEPOSITION PENDING APPEAL. Let us
distinguish class WRITTEN INTERROGATORIES
UNDER RULE 23 and WRITTEN
INTERROGATORIES UNDER RULE 25.
What is the difference?
1. written interrogatories under RULE
23 CAN BE DIRECTED BEFORE ANY
PERSON, HE COULD BE A PARTY OR
NOT TO THE CASE. On a RULE 25
written interrogatories to parties, IT
IS DIRECTED ONLY TO A PARTY TO
THE CASE, THE ADVERSE PARTY.
Maliwanag ba yun?! Ok! Yung RULE
23 written interrogatories kahit
kanino, kahit sino for as long as
relevant. RULE 25 based on the title
it could only be directed to whom?
To an adverse party, are we clear?!;
2. written interrogatories under RULE
23, you will have to go through
direct, cross, re-direct and re-cross.
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
Do you follow?! On written
interrogatories under RULE 25, you
do not have direct, cross, re-direct
and re-cross. What do you have?
Only a litany of questions. Only a
set of questions to be answered by
who? The adverse party. Ok! It is
different in that line. Class, it is
different in that line.
Now, let me now end on this point on
deposition on 2 items, just on 2 items. The most
common mode of discovery and has not been
asked in the bar exams is request for admission.
Ok! REQUEST FOR ADMISSION - that is in RULE
26. Ok! This is a mode of discovery that could
be APPLIED FOR AT ANYTIME AFTER ANSWER.
After issues has been joined. Take note of that,
it could only be applied for after answer, a
request for admission and please take note you
are to request for:
1. admission of a material or relevant
fact; and
2. a genuineness and due execution of
the document. Why? What is the
consequence if you cause the
admission of genuineness and due
execution of a document? If that
document is admitted, you do not
need to authenticate the document
anymore consistent with RULE 130
18-33. You do not need to
authenticate, inamin niya eh. Do
you follow? We are not talking of
best evidence, we are not talking of
parol evidence, we are not talking
of that, WE ARE TALKING OF
AUTHENTICATION. If it is admitted,
wala na. You do not need to go
through the process of
authenticating, whether it is a
public document or a private
document. And please take note
class, IF YOU FAIL TO OBJECT TO A
Page 41 of 101
REQUEST FOR ADMISSION IT
AMOUNTS TO AN IMPLIED
ADMISSION and please take note
that a REQUEST FOR ADMISSION IF
ADMITTED AMOUNTS TO A
JUDICIAL ADMISSION consistent
with RULE 129 4 - any admission
in court during its pendency is a
judicial admission. Can you change
a judicial admission? YES. If it was
MADE THROUGH
PALPABLE
MISTAKE OR THERE WAS NO
INTENTION TO MAKE SUCH AN
ADMISSION.
The last two items that I would like to touch on
this is this one: PRODUCTION OR INSPECTION
OF BOOKS, PAPERS AND DOCUMENTS. OK!
Please take note that this provision covers two
possible orders, not one. Two possible orders,
what is that? FOR PRODUCTION, INSPECTION,
EXAMINATION OF BOOKS, PAPERS AND
DOCUMENTS INCLUDING PHOTOGRAPHIC. It
also includes AN ORDER TO ENTER THE
PREMISES OR TO LEAVE THE PREMISES. So it is
not limited to books, papers and documents.
You could ask for inspection of real properties
consistent with RULE 27 and let me call your
attention to this problem. Class, if you produce
or if you received a notice to produce or a
motion to produce be careful. Ok! Be careful,
you might be of the impression that it is a RULE
27 provision that will apply or it is a mode of
discovery only. Ok! Be careful...why? Because
that may be a prelude or a preliminary to a
presentation of secondary evidence, where the
original is in the custody of the adverse party.
Do you follow?
What are the requirements for presentation or
to compel the adverse party to present the
original in his possession?
1. there should have been a notice to
produce;
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
2. you should establish that the
document actually existed and the
document is in the possession of
the adverse party; and
3. despite notice to produce he refuse
to produce, you can now present
secondary evidence.
You can now present secondary evidence which
could be what? It must be presented in the
manner as enumerated under 5 of RULE 130.
1. a copy;
2. recital in some authentic
documents; and
3. testimony of the witnesses.
Ok! Giding pa ba kayo? Ok sige! Now, let us now
proceed...ay hindi pa pala! Isa na lang. Yung
PHYSICAL AND MENTAL EXAMINATION.
Remember this ah! Physical and mental
examination. Ito ang gusto ko lang tandaan
niyo. This mode of discovery COULD ONLY BE
USED IF THE MENTAL OR PHYSICAL CONDITION
OF THE PARTY IS SUBJECT OF THE
CONTROVERSY. Do you follow? Aba'y kung hindi
siya subject of the controversy, do not use this.
Do not file an action for some of money and for
mental examination of the defendant who
refuses to pay, you cannot do that. Do you
follow?! Where the mental or physical
condition of the party is in controversy. Ok! And
my last point now as I end with this is class,
please take note that kapag ito itinanong. Ang
pinakamahirap na pwedeng itanong dyan sa
RULE 28 is itong discussion na to. Class,
everyone wants something for free. Di ba?! Sino
bang ayaw ng free, kapag alam niyong free
andun kayo. Nakapila kayo! Libreng kape, libre
sa mall...Ganun! gusto natin libre but in this
provision class be very careful. Why? Take note,
let us say imagine that I am the person
Page 42 of 101
examined. Ok, ako yung ineksamin. Ineksamin
ako class, ngayon ang ginawa ko humingi ako. If I
ask a copy of that examination it opens the
door. What? It waives all of my privilege, they
can now...humingi ako! Pahingi naman nung
examination ko. The other could now ask copies
of my examination, whether previously or
subsequently taken. If I refuse to do so and I
present the doctors who made the previous
examination, their testimony will be rendered
inadmissible or they will not be allowed to sit
on the stand. Do you follow? This is a
consequence of asking a copy of the
examination. If I am the person examined, my
mental condition was examined and I asked a
copy, that opens the door. The other party can
now ask all my previous and subsequent
examinations and if I present my doctors, their
testimony could be stricken out or could be
rendered inadmissible. Ok now, let me end this
session. Hindi ito ah, hindi pa uwian. Let me end
this session by comparing, let me end this
session... recall this was asked of me by a
lawyer and it was a very good question, the
question was DO WE FOLLOW THE RULES ON
DEPOSITION ON RULE 23 AND APPLY IT IN
CRIMINAL CASES? Do you follow? Yan ang
tanong. Do we follow the same procedure as in
RULE 23 in criminal cases? The answer
is...anong sagot? RULE 23 ba ang nag-aapply?
What applies is in the nature of deposition is
RULE 119 12, 14 and 15. Tingnan niyo yun.
CONDITIONAL EXAMINATION OF WITNESSES
FOR THE ACCUSED AND CONDITIONAL
EXAMINATION OF WITNESSES FOR THE
PROSECUTION. Tingnan niyo yun. Sir bakit yun?!
Eh criminal yan eh. Sir hindi ba pwede yung
deposition before action? Ano ka!?
GOODLUCK!!! How can you know that he will
commit an offense? Do you follow? That is what
you call conditional examination of witnesses
for the accused and for the prosecution.
What are the requirements? What are the
grounds for the prosecution? Anong sabi?
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
1. when the witness about to depart
with no definite day of returning; or
2. the witness is sick or infirm.
Eh dun sa kabila? Doon sa accused:
1. the witness is sick or infirm and
unavailable.
Now, knowing this class before I end. Please
take note that there is a disparity in terms of
when examination will be conducted. There is a
distinction, if you are to call the witnesses for
the prosecution on conditional examination, the
examination will only be conducted where? IN
THE PLACE WHERE THE CASE IS PENDING.
Tandaan niyo yun! Ok maliwanag ba?! When
you call on the witnesses for the accused, the
examination could be:
1. before any judge in the Philippines
including the place where it is
pending if you want; or if not
practicable
2. before any member of the Bar; or
3. any judge directed by a superior
court directing an inferior court.
So please take note that there is some level of
flexibility, when it comes to conditional
examination of the witnesses for the accused.
If you are conducting a conditional examination
of witnesses for the prosecution, it could only
be conducted; the examination could only be
conducted in the place or in the court where
the case is pending. It is 9:30 right? I will give
you now a break I will be back in a few minutes
then we will continue until 12:30.
OK! I have here with me a number of questions.
What I will do is before we take a break at 12:30 I
will try to respond to your questions rather
than take it now because I would assume that it
Page 43 of 101
would take around 15 to 20 minutes to discuss
because I have 3...4...5 questions here. But I
think before we end around 12:15 or 12:20 I will
be responding to this questions.
Ok now, let us now continue with our
discussion. I am now on... let us look at how
POSTPONEMENTS ARE TREATED BY THE
COURT. Based on the provisions of the rule
class, there
are grounds for postponement of hearing:
1. absence or unavailability of
evidence: the requirements are as
follows:
a. the evidence should be material
and relevant; and
b. efforts have been made to
present or to procure the
evidence but despite diligent
efforts, it cannot be presented.
2. the most common ground for
postponement is sickness or illness
- class you just do not claim that a
person is ill or sick of course you
will have to show that the presence
or the attendance of the witness or
counsel is indispensable; meaning
he is to be presented on that day,
the witness or that the lawyer is
required by court to be present on
that day so the presence of
someone who is asking for
postponement is what?
INDISPENSABLE and the nature of
the illness is that which would
render his what? His absence
excusable. Do you follow? So not
any kind of illness. Your honor
masakit ho ang ngipin ko ngayon.
Ok! Your honor medyo ah...kinakati
ho ako, may allergy ako ngayon. Do
you follow? Can be, the nature of
the illness is that which would
render it what? The absence
excusable. I do not want to ask you
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
because if I will ask you I will get the
most serious kind of illness, heart
attack, stroke, AIDS...mga ganun!
Baka kung anu-ano...but class what
is important is THE NATURE OF THE
ILLNESS IS THAT WHICH WOULD
RENDER THE ABSENCE
EXCUSABLE and the most
common in court is sore eyes,
because first and foremost it is
contagious. Try niyo kapag lawyer
kayo! Kung totoong may sore eyes
kayo ha!!! Tumawag
kayo...sasabihin nila attorney sige
huwag na kayong dumating ok lang!
Attorney! Ayaw nilang mahawa
sayo eh. Chickenpox...ayaw nilang
mahawa sayo. Ok ano pa? Mumps.
Ayaw rin nila. Do you follow? But of
course if you have serious illnesses,
that will also be an excuse.
Now, let me cite the case of Hap Hung
Hardware vs. Philippine Company. The question
is - WHAT COULD BE A STANDARD IN
ALLOWING A POSTPONEMENT? Lagi na lang
bang kapag humihingi ka ng postponement eh
ibibigay? The court said that the standard
should be the reason for the postponement is
UNAVAOIDABLE AND ONE THAT COULD NOT
HAVE BEEN FORESSEN. Ok! It is unavoidable
and something that which have not been
foreseen. In this particular case of Hap Hung the
scenario was the person applying for
postponement had to go to the US because of a
new born grandchild that she had to take care
of and that she at the same time will be
attending a convention. Do you know the
answer of the court? Was that a good reason?
Was that something which was unavoidable and
one that could have not been foreseen? The
answer is NO! Sabi ng Supreme Court NO! You
could have scheduled when you will fly because
you will know the date of birth and at the same
time we are talking of conventions, the dates of
convention are predetermined and for that
reason you could have scheduled your
Page 44 of 101
departure. So according to the court that is not
a good reason. So please take note, a good
reason for a postponement when it comes to
other than illness or absence of evidence is the
ABSENCE IS UNAVOIDABLE AND ONE THAT
COULD NOT HAVE BEEN FORESEEN.
Now, let us touch on CONSOLIDATION. Class on
consolidation all that I would like you to
remember would be this phrase "THERE IS
COMMONALITY OF FACT OR LAW". Do you
follow? There is commonality of fact or law,
look at the provision. Does it say AND or does it
say OR? Ok it says OR. So there could be
common facts or common law applicable. Now
let me cite you the case of Zulueta vs. Asia
Brewery which is helpful on this point. The
concern of this particular case was, it involves a
dealership agreement. A dealership agreement
between Asia Brewery and Zulueta, there was a
dispute arising from the dealership agreement.
Zulueta was from Iloilo therefore the action was
instituted where? In Iloilo. However Asia
Brewery likewise notice that there was violation
of the dealership agreement, hence there was
an action instituted in the court of Makati. Do
you follow? So there is a case pending in Iloilo
and there is a case pendignin Makati. The
question is - Cant these two cases be
consolidated? How was it answered by the
court? The issues in both civil cases pertain to
the respective obligations of the same parties
under the sane agreement, the dealership
agreement. Thus, every transaction as well as
liability arising from it must be resolved in the
judicial forum where it is in issue. The
consolidation of the two cases then becomes
imperative to a complete, comprehensive and
consistent determination. What you would
notice with this particular case is that - the two
cases are pending in two different judicial
districts. Do you follow? One is in Iloilo an one is
Makati, is there any prohibition in consolidation
because it is in two judicial districts? NO! Can
there be consolidation of cases in the same
judicial district? YES! There could be
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
consolidation. Take note that in the case of
Mega Land vs. CE Construction. The Supreme
Court said: that in cases of forum shopping, the
remedy is not consolidation. Magaling ang
abugado niya ano...magaling ang abugado!
Napansin na nagpoforum shopping siya. Ang
ginawa niya, he moved for a consolidation. Kita
mo ang galing nung abugado! Sabi ng Supreme
Court dito, hindi pwede yun! If one litigant has
filed multiple suits involving the same parties
for the same cause of action, the consolidation
of these suits is not the correct palliative.
Consolidation is not the remedy; these suits
should instead be dismissed on the ground of
forum shopping. Take note of that, the case
should have been dismissed on the ground of
forum shopping. So if forum shopping exists,
consolidation is not a remedy. Take note class
that according to the case of De Vera vs. Agloro,
consolidation is left within the sound discretion
of the court. Ok! It is within the sound judicial
forum to consolidate the two cases.
Let me share with you the case of Heirs of
Valdez vs. Court of Appeals. What was the
problem in this case? It involved two conflicting
decisions, class two conflicting decisions of the
same division of the Court of Appeals. Ok! Two
conflicting decisions of the same division of the
court of appeals. One was for dismissal and the
other for continuation of the case with one
cancelling out the other. Do you follow? Biro
mo isang division dalwa resolution - one
dismissing, one to proceed. How did the court
treat this? Can the dismissal attain finality? Can
one of the decisions be treated as the proper
decision. The Supreme Court cited the rule on
IMMUTABILITY OF JUDGMENT - as a rule
judgments are immutable and unalterable. You
cannot change that anymore unless:
1. there are typographical or clerical
errors;
Page 45 of 101
2. there are nunc pro tunct
judgments: meaning judgments
that do not speak the truth; and
3. when we speak of void judgments,
however the Supreme Court added
one more for this particular case to
be sure according to the court;
4. the rule does not apply in cases
where a supervening event such as
the mistake undisputedly
committed by the court.
So they treated the mistake as a supervening
event -that is the unintended release of the
one of the resolutions thus resulting in the
conflict and confusion. Mabait pa nga ang
Supreme Court eh, dito?! Mabait ang Supreme
Court on how they treated the conflicting
decision. They said there was a mistake and
they said that is a supervening event that would
not lead to the finality of the judgment. Kung
ibang division ng Supreme Court siguro
pinagalitan sila. They should have been more
circumspect and careful in issuing resolutions.
The Supreme Court was very kind in terms of
rendering the decision.
Let us now proceed class, I have discussed
demurrer. Now let me now touch on
COMMISSIONERS. Ok! Briefly, baka i-codal kayo
sa commissioners class. First and foremost
class, a commissioner is a:
1. referee;
2. an accountant; or
3. an examiner.
Ok! And take note that any matter can be
referred to a commissioner for as long as the
parties agree. Take note that any matter can be
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
referred to a commissioner for as long as the
parties agree.
If they disagree only the following grounds
could be basis for a referral to a commissioner
in 2 of RULE 32:
1. long accounts;
2. there is a need for the account or
an account so that the court can be
guided in rendering the judgment;
and
3. there are facts arising outside of
the pleading that has to be within
the knowledge of the court.
Class take note of this: A COMMISSIONER
COULD ONLY ACT IF IT IS WITHIN THE ORDER OF
REFERENCE. Ok! The commissioner could only
act if it is within the order of reference and the
commissioner should be placed on oath.
What do you mean by an ORDER OF
REFERENCE? Class yung lang yung ano, inissue
ng husgado ITO ANG GAGAWIN MO!
Can a commissioner issue a subpoena? YES! Ok!
Duces tecum? YES!
Can a commissioner determine objections and
admissibility of evidence? YES, IF WITHIN THE
ORDER OFREFERENCE.
Now, let us compare with a clerk of court. Can
the clerk of court determine admissibility of
evidence? The answer is NO!
Can the clerk of court issue a subpoena duces
tecum? NO! But a subpoena ad testificandum?
YES! Because class if it is a simple request for
testimony, the court will usually entertain but a
duces tecum it is usually within the cound
judicial discretion.
Page 46 of 101
Now, what matters can be referred to a clerk of
court for ex-parte presentation of evidence?
1. default proceedings;
2. ex-parte proceedings, in the nature
of course of default and ex-parte
proceedings where defendants do
not appear and matter is referred
to a clerk of court like land
registration cases;
3. when parties stipulate.
Now, let me ask you this question - can the
court render a judgment without a trial? The
answer is YES! If the parties agree on facts this
is RULE 30 6. If parties agree on facts whether
partially or wholly, the court may require
submission of memorandum when what is left
to be resolved is a matter of law, the court can
already render a judgment.
Let me now distinguish based on the case of
Wood Technology vs. Equitable Banking,
JUDGMENT ON THE PLEADINGS class and
SUMMARY JUDGMENT. Class kapag ang
estudyante hindi na nila matandaan ito, ang
tinatandaan nila ay ano? Yung distinction but
class this should not be very hard for you to
remember. Before I give you the distinction I
will give you a simple explanation of judgment
on the pleadings. Class yesterday I touched on
it, it is fairly simple. IF YOU DO NOT CONTEST
OR MAKE AN ISSUE OUT OF MATERIAL
ALLEGATION OR IN SIMPLE WORDS THE CAUSE
OF ACTION IT LEADS TO A JUDGMENT ON THE
PLEADINGS. Kuha niyo? Maliwanag ba?! Wala
kang kinontest eh. Inamin mo lahat eh. What
happens? Judgment on the pleadings. That is
why the definition of judgment on the pleadings
is the answer does not tender an issue or
admits the material allegations of the
complaint. The next is summary judgment. How
is it defined by law? There is no genuine issue as
to a material fact. Take note that you are
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III

referring on summary judgment on a fact. There the answer does not PLAINTIFF can ask for
is no genuine issue, therefore sir are there tender an issue. summary judgment
other issues? YES! Are there other disputes on AFTER AN ANSWER
the matter? May be YES! That is why you have a has been filed; the
complete or full summary judgment and a DEFENDANT can ask
partial summary judgment. for summary judgment
at ANYTIME WHILE
What do you mean class by THERE IS NO THE ACTION IS
GENUINE ISSUE AS TO A MATERIAL FACT? It PENDING.
means that even if there is an issue, it is what? The COURT The COURT CAN
FALSE, it is SHAM. Ok?! Let me give you an SIMPLY GO
example para Makita niyo yung distinction na RELIES ON THE BEYOND THE
sinsabi ko. When I say the answer does not PLEADINGS, meaning PLEADING AND
tender an issue - sinabi ko may utang ka sa the complaint and the REFER
akin, anong sabi mo? Sabi ko due na yun May answer and the TO DOCUMENTS,
30 di mo pa binayaran. Sabi mo OO! Inamin mo attachments thereto. AFFIDAVITS AND
lahat yun, judgment on the pleadings. When DEPOSITIONS to
will it become summary judgment? Anong sabi determine if there is
mo? Ah bayad na yan! Do you follow?! Did you no genuine issue.
create an issue? YES, because saying that you Affidavits should be
have paid it will prevent or bar recovery. Do you within the personal
follow? Sabi mo, bayad na yan eh! But in truth knowledge of the
affiant.
and in fact is you have not paid it. Correct?! You Now, let me give you a very simple example and
have not paid it. So you have created an issue I hope you would know whether it is summary
which is false, where in fact you have judgment that will apply or judgment on the
communicated to me saying: pwede ba bigyan pleadings. In a case decided by the court, there
mo pa ako ng lang araw? Hindi ko pa talaga was a loan extended let us say to me. A loan
kayang bayaran or can you give me until August extended to me and that loan of Php1M was
30 eh it is only July. Do you follow? That fact evidenced by a promissory note, except that the
will show, that the issue that you have created promissory note did not provide for a due date
is merely false or sham, there is no genuine but for all intents and purposes we have agreed
issue. that the due date was May 30, 2011. So when
May 30 came, the same was still unpaid there
Let me give you the comparison: was a request for me to pay I ignored it. Can
you follow? Now, so what happens? I was sued,
JUDGMENT ON THE SUMMARY when I was sued what did I say in my answer?
PLEADINGS JUDGMENT Yes I owe you money, yes there is a promissory
It is a full judgment; it It is either a FULL OR note but look at that the promissory note is
is ALWAYS A PARTIAL SUMMARY blank as to the due date and therefore it is not
FULL JUDGMENT. yet due and demandable. Can you follow? What
JUDGMENT. There is can I file? Will I file a judgment on the pleadings
no partial judgment or will I file summary judgment? The regional
on the pleadings. It is the PLAINTIFF OR trial court that resolved that issue said, because
As a rule, it is the the DEFENDANT who what was filed was judgment on the pleadings,
PLAINTIFF who asks could ask for summary granted the judgment on the pleadings. It was
for judgment on the judgment - the elevated to the higher court and the Supreme
pleadings - because
Page 47 of 101
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III

Court said: while it is true that you could render

a judgment, the Supreme Court said that the
proper remedy should have been summary
judgment, because there was an issue...
Correct! Although the issue was not genuine.
Ginawan niya ng issue eh, blangko yan oh! Kita
niyo blangko, hindi pa due. Do you follow?
There is no genuine issue. As an example I
always give my students so that they will not
forget in the bar review like this, you will always
remember no genuine issue. Gusto niyo
malaman kung paano? Kaya lang huwag yung
example ko ang tandaan niyo but how to apply
it. Katulad ngayon marami kayong makikilala di
ba? Marami kayong bagong friends, so yung
mga iba dyan may mga magugustuhan at may
girlfriend o boyfriend kapag nakita ulet yung
boyfriend or yung girlfriend. Dahil nga may bago
nang gusto; Alam mo kailangan talaga ako sabi
ni mommy mag-aral ng mabuti! Di ba ganun?!
Mag-aral ng mabuti kaya dapat di muna tayo
magkita masyado. Kasi baka ako bumgasak sa
bar eh. Sa ngayon cool-off muna tayo! Is there a
genuine issue? NO! There is no genuine issue,
you only fabricated the issue. Tama ba ako
meron bang gumagawa ngayon niyan? There is
no genuine issue, it is sham, it is false. so dapat
yun sina-summary judgment ka! Ok! Now, let us
move on...talaga itong bar review na ito eh!
What is an ENTRY OF JUDGMENT? An entry of
judgment is issued by the court after the lapse
of the reglementary period to appeal and for
that reason, judgment is already final and
executory. Do you follow?
Can that be a basis of execution? YES! Hat could
be a basis of execution.
Can a final judgment that has not aatained
finality or does a final judgment which is not yet
final and executory subject of execution? YES!
That is what you call DISCRETIONARY
EXECUTION or the way you want it said
EXECUTION PENDING APPEAL. Do you follow?
Whether it be a final and executory judgment or
simply a final judgment that could be subject of
an appeal, both could e subject of execution.
Before I proceed and discuss execution. Let me
give you a rundown first. OK! A rundown of a
distinction between an MR and a MOTION FOR
NEW TRIAL.
MNT MR
1. FAME ( fraud, 1. Contrary to law;
accident, mistake
and excusable 2. Judgment is not
negligence); and supported by
GROUN

Now let us proceed to JUDGMENT. I touched evidence; and

judgment a while ago but let me touch on the 2. NEWLY
DS

case of Intramuros Tennis vs. PTA. This case DISCOVERED 3.Award of

distinguished a final judgment from an EVIDENCE. damages is
interlocutory order. A FINAL JUDGMENT under excessive.
RULE 36 -That which finally disposes of the A second MNT can A second MR is a
case. An INTERLOCUTORY ORDER - Something
EFFECT OF

be allowed if the prohibited

else has to be done. Why is this an important ground was not yet pleading.
2 FILIN

discussion because that will lead us to our in existence at the

G

discussion on, execution. But class, I would like time of the filing of
ND

you to distinguish a SEVERAL JUDGMENT FROM the first MNT.

a SEPARATE JUDGMENT. A several judgment is a
judgment involving PARTIES, defendants-
several. When you talk of separate judgment,
you talk of what? CLAMS! You talk of claims as
would apply to summary judgment.
Now, significantly class take note of the Neypes
ruling on the FRESH PERIOD RULE. You know
what I mean right?! If you file a MOTION FOR
RECONSIDERATION and you is denied. You have

Page 48 of 101
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
a fresh period of 15-days within which to file
your appeal.
What do we mean by PROFORMA MOTION FOR
RECONSIDERATION? OK! What do you mean by
proforma? This is the case of Tan vs. Court of
Appeals. What do you mean by proforma
motion for reconsideration? Class a motion for
reconsideration may be proforma:
1. if it only repeat or reiterate matters
which have already been passed
upon by the court, it is proforma;
2. is that which did not meet the
requirements of 4 and 5 of RULE
15 of the Rules of Court.
So class it is treated as a mere scrap pf paper.
Do you follow? Sir, ano ibig sabihin nun? Ypu
file a motion for reconsideration without a
notice of hearing; without serving a copy
thereof to the other party, that is a proforma
motion for reconsideration. Are we clear? You
did not set it for hearing or you did not serve
notice or serve a copy at least 3 days before the
date of the hearing, that is proforma motion for
reconsideration. Are we clear?
Now, let me ask you this question. If you are to
file a MOTION FOR NEW TRIAL within the
reglementary period of 15-days, in the trial
court from rendition of judgment, WITHIN HOW
MANY DAYS CAN YOU FILE A MOTION FOR NEW
TRIAL IN THE COURT OF APPEALS? Pareho ba
yun? Ah class, pareho bay un? You are to file it
in the Court of Appeals...open to RULE 53 ata
yun! 53 ba yun or 52? Motion for New Trial in
the CPOURT OF APPEALS, the sole ground class
listen to this, the sole ground in the Court of
Appeals of a Motion for New Trial is NEWLY
DISCOVERED EVIDENCE. Tandaan niyo yun baka
i-multiple choice kayo dyan. Only newly
discovered evidence, it is not FAME. FAME is
not included and the period to file a Motion for
New Trial in the Court of Appeals is from the
Page 49 of 101
time appeal is perfected for as long as the Court
of Appeals has jurisdiction. Again, FROM THE
TIME APPEAL IS PERFECTED AND FOR AS LONG
AS THE COURT OF APPEALS HAS JURISDICTION.
Maliwanag ba? Unlike the trial court, within the
period of 15-days. In the Court of Appeals NO!
From the time appeal is perfected it has
jurisdiction and for as long as it has jurisdiction
you could file a motion for new trial on a
singular ground of newly discovered evidence.
Now let me ask you this question. Can you file a
MOTION FOR NEW TRIAL IN THE SUPREME
COURT? Will that RULE 53 apply in the Supreme
Court? Class huwag niyong ah...ano yun! Huwag
niyong iisipin na yang RULE 46-55, wlang
kwenta yan! Di ko babasahin! Tinanong yan sa
bar noong 2008. The last question was I still
remember, can you enumerate original actions
filed in the Court of Appeals? Ok! Can you file a
Motion for New Trial in the Supreme Court?
Can you apply RULE 53? The answer you will
find in RULE 56 2-3. Tingnan niyo yan may
enumeration ng mga rules. Is RULE 53 included?
NO! It is not included. So as a rule, you do not
file a motion for new trial in the Supreme Court.
However, you have seen motion for new trial in
the Supreme Court that is left within the sound
judicial discretion of the court but in terms of
law, you cannot file a motion for new trial in the
Supreme Court. Only in the Court of Appeals
and only in the trial court.
Let me now touch on PETITIONS FOR RELIEF
FROM JUDGMENT. How many kinds of petitions
for relief from judgment do you have? How
many kinds? Sir bakit may kinds ba yung
petition for relief from judgment? YES! HOW
MANY KINDS OF PETITION FOR RELIEF not
petition for relief from judgment? How many
kinds of petition for relief do you have? You
have 2!
1. petition for relief from JUDGMENT;
2. petition for relief from DENIAL of
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
APPEAL.
Both are grounded on FAME. Now, kapag
tinanong ka, WHAT ARE THOSE REMEDIES
WHEREIN FAME IS A GROUND:
1. motion to lift order of default;
2. motion for new trial;
3. petition for relief from judgment or
denial of an appeal;
Now, let me cite to you the 2010 case of Torres
vs. China Banking Corporation. The question is,
what is the remedy of a party in having been
prevented to file an appeal? Remember my
word, the word that I used PREVENTED. A party
has been what, prevented to file an appeal,
what is the remedy? According to the court the
proper remedy for allegations of MISTAKE OR
INEXCUSABLE NEGLIGENCE OF COUNSEL which
prevented a party from taking an appeal is a
PETITION FOR RELIEF FROM DENIAL OF APPEAL,
under RULE 38. Whether it be class a petition
for relief from judgment or a petition for relief
from denial of appeal, what is the period to file.
Ok! You have to memorize this, it is not 15-
days, it is not 60-days IT IS WITHIN 6 MONTHS
FROM ENTRY OF JUDGMENT BUT WITHIN 60-
DAYS FROM KNOWLEDGE. Are we clear? 6
months from entry of judgment but within 60-
days from knowledge. Let me illustrate this for
you. I have made this illustration in my classes,
undergrad classes. Class, look at this bottle look
at it as the 6-months period. Do you follow? Let
us say the 6-months period is from June 1 to at
the end December 1. Let us say, there was entry
of judgment on June 1, if you learned of the
judgment on August 1, until when can you file a
petition for relief judgment or for denial of
appeal? Until, technically October 1, right?
October 1. But what if you learn of the
judgment or you knew of the judgment on
November 15, until when can you file a petition
for relief? Until December 1! You cannot go out
Page 50 of 101
of that deadline. Do you follow? That cannot be
extended. It is always 6 months. So your 60-
days will always play within the 6 months. If you
learned of it before or almost before the
expiration of the 6 months, that is your
problem! That is not the problem of the court.
Ok? Let me give you the classic example of
Alaban vs. Court of Appeals. That will tell you
whether to use an annulment of judgment or a
petition for relief from judgment before I touch
on this.
RULE 47 is annulment of judgment, what are
the grounds for annulment of judgment?
EXTRINSIC FRAUD, that is one and the second
one, is that LACK OF JURISDICTION? YES! Lack of
jurisdiction.
When should you raise the annulment of
judgment, petition for annulment of judgment?
For grounds of extrinsic fraud WITHIN 4-YEARS
FROM DISCOVERY.
For lack of jurisdiction at ANYTIME BEFORE YOU
ARE BARRED BY LACHES. Estoppels by laches on
question of jurisdiction. Take note that when
you say lack of jurisdiction on annulment of
judgment IT COVERS NOT ONLY LACK OF
JURISDICTION OVER THE SUBJECT MATTER BUT
LIKEWISE COVER LACK OF JURISDICITION OVER
THE PERSON OF THE DEFENDANT. Ok? So it
includes both lack of jurisdiction over the
subject matter and lack of jurisdiction over the
person of the defendant.
Now let us now discuss the case of Alaban.
What happened here? This case tried to
answer, WHO IS A PARTY? Do you follow? Look
at 1 of RULE 38 and it says, that only a party to
a case can file a petition for relief from
judgment. Can you look at that? Can you find
the word party? Tama ba?! ONLY A PARTY CAN
FILE A PETITION FOR RELIEF FROM JUDGMENT
but we hbave to bear in mind that the fault for
not filing an appeal or an MR or MNT is not
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
attributable to a party filing the petition for
relief. Now, this was the question in the case of
Alaban, what happened? It involved the estate
of a deceased person and there was someone
Mr. A came forward to say I am the sole heir.
The rest of the heirs were not informed, they
did not know that there was a settlement of
estate. Only he came forward and the estate
was adjudicated in his favour. The other heirs
learned of it within 60-days or 2 months from
the entry of judgment. Do you follow? Within
two months from the entry of judgment. So
what did they do? They filed a motion to set
aside the judgment. But what did the court do?
The motion was denied, sabi ng court
wala...hindi! denied yan! Ano ngayon ang
nangyari? Nung sinabi ng court na denied, they
were left with no option but to go to the Court
of Appeals. They filed a petition for annulment
of judgment. Do you follow? Annulment of
judgment and not a petition for relief from
judgment. One of the reasons given by them in
filing a petition for annulment is that, we are
not a party to the original case. Sabi nila we are
not a party to the original case and for this
reason petition for relief is not a proper remedy
for them because 1 tells you that you should
be a party. Mukhang tama sila, tama? It looks
that there is sense in their argument. However
the Court of Appeals think of it different. They
said and it was affirmed by the Supreme Court.
The Supreme Court said that in cases like this -
this are what actions IN REM, that requires
publication, the fact of publication effrectively
gave notice on the heirs and made them as
parties even if they are not parties on the case.
The fact of publication, because this is an
ACTION IN REM and for this reason they said,
the court said hat the proper remedy shold
have been a petition for relief from judgment.
Besides according to the court, you have
learned of the judgment within 60-days from its
entry, so it is within the period mandated. But
other than the case of Alaban, you have to take
note that you should be a PARTY.
Page 51 of 101
OK! Now, let me now proceed and touch on
EXECUTION. A few items on execution, still on
the case of Intramuros. Take note that the
execution or the WRIT OF EXECUTION must:
1. conform with the dispositive portion of
the judgment. Ok that is number one.
The writ of execution must conform
with what is provided for in the
judgement. It cannot go outside of it.
2. a hearing for the issuance of writ of
execution does not require a full blown
or trial type hearing, all that is required
is that there is a hearing. It does not
require a full blown or a trial type
hearing.
Now, IF IT IS AN EXECUTION AS A MATTER OF
RIGHT, DO YOU NEED A GOOD REASON FOR
THE COURT TO GRANT YOUR MOTION FOR
EXECUTION? The answer is NO! If it is a matter
of right, the reglementary period to appeal had
lapsed and the decision had attained finality
and therefore it is a matter of right. You do not
need to give a reason, the decision alone is
enough reason for the court to execute.
However class if it is AN EXECUTION PENDING
APPEAL or you call it DISCRETIONARY
EXECUTION, you have to give what? Good
reasons. In this case of Intramuros, he problem
was, the reason given for execution pending
appeal. Was that, the tennis court which was
the subject of the controversy was deteriorating
and is on unsanitary condition which was
subject of the comlaint of the tennis players.
Was that a good reason for the court to allow
execution pending appeal? The Supreme Court
said, YES! The unsanitary condition and the
deteriorating condition of the tennis court were
good reasons for the court to grant execution
pending appeal.
Other good grounds for execution pending
appeal would be:
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
1. the assets of the losing party is about
to be wasted and dissipated;
2. the coporation is about to be
insolvent;
3. is advance age a ground for execution
pending appeal? Age alone is not
sufficient but age coupled with other
reasons like; need for medication,
need to continue with his sustainance -
then these are good reasons for
execution pending appeal.
Do you need a BONd? Class, do you need a
BOND FOR EXECUTION PENDING APPEAL OR
DISCRETIONARY EXECUTION? The answer is NO!
All you need is good reason/s. You need a bond
to STAY EXECUTION PENDING APPEAL. I want to
be very clear with that ha! All you need is good
reason/s but for the other party to stay
execution pending appeal, you need a bond.
Ok now, let me call your attention class to the
case of Mina vs. Bianson. This is very much
instructive on WHERE TO FILE THE MOTION FOR
EXECUTION? There was a demolition order in an
ejectment case which court will issue the
demolition order. In this particular case class,
there was already a judgment of the MTC, the
court of original jurisdiction and it was reviewed
by the RTC and while pending in the RTC there
was a motion for issuance of a demolition
order. WHICH COURT WILL ISSUE THE
DEMOLITION ORDER, IS IT THE RTC OR THE
MTC? It is the MTC, the court of original
jurisdiction. Which rendered the original
decision. According to the court, it is therefore
clear that in the EXECUTION OF JUDGMENT IN
EJECTION CASES. The issuance of the demolition
order is within the jurisdiction of the MTC which
rendered the decision. The RTC that affirms the
decision of the MTC cannot order execution of
its judgment. Although class it is a different
story, listen to this... it is execution pending
appeal. Take note, ON AN EXECUTION PENDING
Page 52 of 101
APPEAL WHERE CAN YOU APPLY FOR THE
MOTION? Where could you file the motion? IT
DEPENDS. If the court continues to have
jurisdiction, meaning within the reglementary
period, the MTC could issue a writ of execution.
For as long as it is in possession of the records
of the case. Tandaan niyo!!! Hindi lang yung
within the reglementary period, FOR AS LONG
AS IT IS IN POSSESSION OF THE RECORDS OF
THE CASE. However, WHEN IT LOSES
JURISDICTION CAN THERE STILL BE EXECUTION
PENDING APPEAL? YES! Where will it be applied
for? BEFORE THE APPELLATE COURT. I want that
to be very very clear, before the appellate
court. The example that I gave you the Mina
case is an example wherein the decision of the
RTC became final and once final, application is
within the original court.
Always remember class that when it is
EXECUTION AS A MATTER OF RIGHT. As a rule,
motions should be filed where? Even if it has
been appealed to the next level court and until
the Supreme Court. The motion should always
be filed where? BEFORE THE COURT OF
ORIGINAL JURISDICTION. The writ should
always be where? issued by the court of original
jurisdiction. Except for just causes, the motion
for execution should be FILED where? BEFORE
THE APPELLATE COURT, I am talking of as a
matter of right but the writ can only be ISSUED
BY THE COURT OF ORIGINAL JURIDISDICTION.
Can you follow? Yes, for good cause pwede yan
sa appellate court if you appeal but the writ is
always issued by the court of original
jurisdiction.
Can the COURT OF APPEALS ISSUE A WRIT OF
EXECUTION? YES! On original actions filed
before the Court of Appeals.
Can there be ORIGINAL ACTIONS FILED IN THE
COURT OF APPEALS? YES!
1. Certiorari;
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
2. Prohibition;
3. Mandamus;
4. Quo Warranto;
5. Habeas Corpus;
6. Habeas Corpus and Custody of Minors;
7. Writ of Amparo;
8. Writ of Habeas Data.
Do you follow? The Court of Appeals has
original jurisdictions and in some of those, it has
also concurrent jurisdiction. Ok now, let us
move on...baka gutom na kayo ha?! Mukha
naming hindi pa kayo gutom, dilat pa naman
kayo eh. We still have 45 m inutes ok! My goal
is ah, hopefully in 45 minutes I am able to cover
yung civil procedure na gusto kong i-cover, so
that when I return after lunch I will start with
criminal procedure. Ok? That is my intention.
Ok? So you have to bear with me.
Now let me ask you, now the next question -
WHAT ARE THE 2 ASPECTS OF RES JUDICATA?
According to the case of Barreto vs. Court of
Appeals. Sir, di ba isa lang yang res judicata na
yan?! This case cited the rule in RULE 39 47.
That is effect of judgments. They zeroed in on
subsections b and c. Subsection B is really res
judicata, subsection C is preclusion of issue and
in this case the court said: the DOCTRINE OF
RES JUDICATA is of 2 aspects:
1. the first, the effect of judgment as a
BAR TO THE PROSECUTION of second
action upon THE SAME CLAIM,
DEMAND OR CAUSE OF ACTION. In
simple words, the res judicata in
subsection B covers a bar to
prosectution involving, the same claim,
demand or cause of action;
Page 53 of 101
2. the second aspect of res judicata which
is subsection C of your RULE 39 47
subsection C, PRECLUDES THE
RELITIGATION OF PARTICULAR FACT OR
ISSUE IN ANOTHER ACTION between
the same parties or their successors-in-
interest, on a different claim or cause
of action. Can you follow?
The first one you cannot relitigate the same
claim or cause of action - that is the first res
judicata.
The second one which is preclusion of issue,
you cannot relitigate an issue that has already
been, what? Passed upon by the court in a
different case involving a different cause of
action.
I will give you an example. Ok! Para
maintindihan ninyo. Class, let us say that I was
the contractor of this law school, let us say I
was the contractor of this building and there
were breaches of the agreement so I sued the
principal. Yung eskwela ang idinemanda ko sa
madaling salita, nagdemandahan kami and in
that case gusto ko ipa-nullify yung kontrata. Do
you follow? I said this contract is null and void
because of the following... but the court said
what? The court said that the contract is valid.
Do you follow? Sabi nung court valid. Is that res
judicata on that cause of action? YES! That is
already res judicata. But let us say, I am the
main contractor and I let us say I have a
subcontractor. Tama ba yun? Yung bahala sa
bintana, yung bahala sa pinta, bahala sa
elevator, iba-iba yun. Let us say, there was a
suit between me and my subcontractor, not
involving the school. Correct? Involving the
elevators. Can we relitigate the validity of the
mother contarct with the school? NO MORE -
That is preclusion of issue, it is a different cause
of action, it involves the problem of the
elevator but we can no longer relitigate the fact
of the validity of the mother contract but we
could litigate on items involving the elevator.
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
Are we clear? So those are the 2 aspects of res
judicata.
Now, let us look at another provision on
execution which is 14. Ok! What about 14?
This is the duty of the sheriff to what? To make
a report on intervals of 30 days. Take note class,
THE 30 DAYS THERE IS NOT THE EFFECTIVE LIFE
OF WRIT OF EXECUTION. The 30 days there is
what? The duty of the sheriff to make a report.
Ok! To make a report and let me quote from
the decision RULE 39 14 mandates the manner
in which the writ of execution is to be returned
to the court. As well as the requisite reports to
be made by the sheriff and to see whether the
judgment has been satisfied, in any case every
30 days until is fully satisfied. Are we clear? The
30 days there is the duty of the sheriff to report
on the conduct of his execution.
Now, let me ask you this - what is the life of the
writ of execution? If you read 14 carefully it
will give you the answer, the period is 5 years
but it does not say 5 years all it says within in
that period that it could be enforced by motion
and a judgment could be ebforced by motion
within the period of 5 years.
Take note of the case of Cagayan de Oro
Coliseum vs. Court of Appeals. This is important
and I am citing this case because of the
requirement of PRIOR LAWFUL LEVY BEFORE A
PUBLIC SALE. Take note of this, THERE SHOULD
HAVE BEEN A PROPER AND VALID LEVY
BEFORE what? YOU EFFECT A PUBLIC SALE,
meaning there should have been a service of
the writ before you effect the sale. In the
SAME MANNER CLASS THAT IN MONEY
JUDGMENTS, there should been what? A
DEMAND ON THE PART OF THE SHERIFF TO
PAY THE SUM, PAL vs. Baliber and only if there is
failure to pay can you go on levying his real or
personal property and in the order of things, if
the losing party does not make a choice as
to which property will have to go first,
personal property will have to go first.
Page 54 of 101
Now, CAN THE COURT ISSUE A WRIT OF
EXECUTION MOTU PROPIO? That was answered
in an administrative case Office of the Court
Administrator vs. Corpuz. Can the court motu
propio issue a writ of execution? The answer is
NO! The court could only issue a writ of
execution upon motion, ONLY UPON MOTION.
The case of Budget vs. Bacleg, the lifetime of
the writ of execution which is 5 years, let me
touch on independent action. Ok! Let us look at
an independent action, this 6 of RULE 39. This
has been repeatedly asked in the bar exams.
Ok! The question is - WHEN DO YOU FILE AN
INDEPENDENT ACTION TO REVIVE THE
JUDGMENT? Within a period of 5 years? NO!
After the lapse of 5 years from the entry of
judgment. Do you follow? Within 5 years from
the entry of judgment, you could file a motion
for execution. After the lapse of 5 years from
the entry of judgment but within a period of 10
years or the prescriptive period as mentioned,
not in the rules of court but in civil code which
is 10 years, you could file an independent action
to revive the judgment and once it is revived
and the revived judgement is final and
executory, you could again file a motion for
execution.
Ok now, let us now proceed and see this case of
Solid Bank vs. Court of Appeals. What was the
problem in this case? The decision did not
mention of 12% on the subject liability meaning
on the judgment there was no mention at all of
interest to be borne by the losing party.
However, the sheriff took it upon himself to
charge 12% on the subject liability and the
interest imposed for the amount in which he
was liable. Was it correct for the sheriff to do
that? The answer was NO! The sheriff went
beyond the decision of the court, the sheriff has
no authority, no judicial discretion to add on
the judgment, all that he could do is to execute.
Let us distinguish ISSUANCE OF THE WRIT from
AWARDING thereof. What is the difference?
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
This was explained in the case of Separa vs.
Maceda, the court said: it is well to state the
difference between issuance of the writ and
awarding of the same. The function of
ORDERING THE EXECUTION IS JUDICIAL AND
DEVOLVES UPON THE JUDGE. Again, the
function of ordering the execution is judicial
and devolves upon the judge; whereas, the ACT
OF ISSUING THE WRIT IS MINISTERIAL AND CAN
BE PERFORMED BY ANOTHER PERSON THAT IS
THE CLERK OF COURT.
Now, let us now proceed before I leave this
item completely and touch on appeal. Ok! Let
me remind that you that there is also a REVIVAL
OF JUDGMENT, aside from 6. There is revival
of judgment at the instance of 33 of the same
RULE. How does that takes place class, revival of
judgment under that provision? It happens this
way class, 33 scenario class is, you are winning
buyer or participant in a public sale but for one
reason or another, you were not able to take
possession or that someone came in with a
better interest tha you are, in that case class
you already paid but you are left with an empty
bag. Do you follow? The law gives you now the
remedy in 33, that is revival of judgment.
What are your remedies?
1. you could file a motion to reciver that
amount in the same case;
2. you could file a separate action; and
3. you could file a motion for issuance of
the judgment, in your own name.
Do you follow? What is the effect of having the
judgment in your own name? You could do a
regular execution as if you are the regular
oblige. It is just like that you are asking for the
amount that you have paid but if he cannot pay
that anymore you could go on regular execution
because you have taken the place of the
judgment oblige.
Page 55 of 101
Ok! Now, I think my final point on execution
would be THIRD PARTY CLAIM. Matagal nang
walang tanong dyan, third party claim that is
16 of RULE 39. Please take note that there is a
partner provision, in attachment also. May
third-party claim in attachment in 14 of
ATTACHMENT and there is also third-party
claim in REPLEVIN. Tingnan muna natin ang
concept... but before I proceed ano nang oras?
Alas dose?! Ok pa! Ok pa kayo. Ngayon pa nga
lang ako gingaganahan eh. Medyo kahapon,
nangangalawang pa ako nung unang oras.
Matagal akong... Kayo ang una kong bar review,
sunod-sunod na to eh. May August, may
October, may katapusan, may September
because of the new schedule, November right? I
have regular classes but of course it is different
in a bar review, dito mahaba kang nagsasalita,
ikaw lang nagsasalita. Kapag nakalimutan mo
hindi mo pwedeng tanungin sila kung ano, sa
klasepwedeng tanungin mo sila. Sa bar review
hindi, ikaw lang salita ng salita.
The next question that I would like us to answer
is third-party claim. Class, WHAT IS A THIRD-
PARTY CLAIM? A third-party claim is a claim of a
third-party or a PERSON WHO IS NOT A PARTY
TO THE CASE where the court has not acquired
jurisdiction over him. Class please take note
lookm at this basic scenario, I am discussing
about execution the judgment oblige class -
what is the interest of the judgment obligee? To
have the execution to proceed. Do you follow?
He wants execution to proceed. Correct?! but if
there is a third-party claimant who files an
affidavit or who serves an affidavit on the
sheriff, what happens? THE EXECUTION WILL BE
STAYED. It will be suspended. Take note, it will
be stayed AS TO THAT PROPERTY baka naman
buong exectution itigil mo because there is a
third-party claim only on that subject property.
Do you follow? So class, with the service of an
affidavit on the sheriff the execution on that
property will be stayed.
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
How will it run again? When will it continue? If
the judgment oblige, the winning party will post
a bond in favor of the third-party claimant.
Akalain mo ikaw na nanalo, ikaw pa ngayon
magbibigay ng bond in favour of the third-party
claimant.
Now, the next discussion point is important.
Where can the third-party claimant can
vindicate his right? He could vindicate his right
in a separate action or in the same action? In a
SEPARATE ACTION. Bakit? Eh final and
executory na yun eh but the JUDGMENT
OBLIGEE can vindicate his right in the SAME or
in a SEPARATE action. As distinguished from
attachment. Basically the concept is the same,
except tha in attachment, the case is still active
and pending. Correct?! The third-party claimant
can what? Vindicate his right in the same or
separate action, just like the person who
applied for attachment. Do you follow? He
could vindicate his right in the same or separate
action in simple words, he could still what?
Intervene. That is the difference and you apply
the same rule for purposes of replevin.
My last point, real last point in execution is
PUNITIVE DAMAGES. You know punitive
damages? You will not find that in the civil code.
Punitive damages class are damages under the
rules of court that person will suffer by
conducting a sale without notice or defacing a
notice of sale. If you deface a notice of sale, you
could be liable for punitive damages.
Now, let us now proceed and discuss APPEALS.
Ok! Doon muna ako sa basic before I give you
the new cases that I have, doon muna tayo.
Class, tandaan niyo to...wag lang yung sabihin
niyo nagreview kayo appeal is the remedy in
law, yung mga ganun...distinguish petition for
review on certiorari. Dapat alam niyo yun mode
baka kasi tanungin kayo niyan eh. Ok! I think
two years ago the modes were asked, as to
where to go. Ok! So you should know this.
Page 56 of 101
WHERE DO YOU GO FROM AN ORIGINAL
JUDGMENT IN THE MTC? RTC
WHAT WILL YOU FILE? A Notice of Appeal.
WHERE DO YOU FILE THE NOTICE OF APPEAL?
IN THE MTC - that is what you call an ordinary
appeal. Do you follow?
On an ORIGINAL JURISDICTION OF THE RTC, if it
renders a decision. WHERE WILL YOU GO? Court
of Appeals
WHAT WILL YOU FILE? A Notice of Appeal.
WHERE WILL YOU FILE IT? In the RTC. Do you
follow? ORDINARY APPEAL. Yan ang
pinakasimple. One step up, NOTICE OF APPEAL.
Do you follow? But you FILE IT IN THE COURT
THAT RENDERED THE JUDGMENT.
Now, let us complicate it a little bit. A judgment
of the MTC, as a court of original jurisdiction
reviewed by the RTC after an ordinary appeal,
where a notice of appeal was filed and where
will you go, if you still lost the case? COURT OF
APPEALS
WHAT WILL YOU FILE? A Petition for Review.
Tama yan! You will file a petition for review. Not
a petition for review on certiorari but a
PETITION FOR REVIEW.
You will meet a petition for review but not in
court but in a QUASI-JUDICIAL AGENCY when
you talk of the DOJ. From a decision or
resolution of the office of the prosecutor, you
proceed to the Department of Justice on a
Petition for Review, that is not covered ny your
RULE 42 that is covered by Circular 17 of the
DOJ.
So if you are asked, HOW MANY KINDS OF
PETITION FOR REVIEW DO YOU HAVE?
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
1. Petition for REVIEW under RULE 42,
that I discussed;
2. Petition for REVIEW under RULE 43 -
review of decisions of QUASI-JUDICIAL
AGENCIES. Where do you go? To the
COURT OF APPEALS, on a PETITION FOR
REVIEW. Ok! Civil Aeronautics Board,
SEC, DARAB you go to the Court of
Appeals. How about THE OFFICE OF THE
PRESIDENT? The Court of Appeals. How
about HLURB? Do you go to the Court
of Appeals? OFFICE OF THE PRESIDENT,
Housing and Land Use Regulatory Board -
you do not go directly to the Court of
Appeals, you go to the Office of the
President. NLRC where do you go?
Court of Appeals BUT NOT on a petition
for review but on a PETITION FOR
CERTIORARI under RULE 65, St. Martin
Funeral case and the reason behind
that is by law the decision of NLRC is
FINAL and EXECUTORY there being no
appeal nor any plain nor speedy remedy
in the ordinary course of law, there
being no appeal if there is grave abuse
of discretion your remedy is RULE 65.
Are we clear? So you now know the 3 petitions
for review and then class your last mode is a
PETITION FOR REVIEW ON CERTIORARI. Take
note class that a PETITION FOR CERTIORARI IS
NOT AN APPEAL. The appeal is a PETITION FOR
REVIEW ON CERTIORARI.
Always remember this motherhood statement:
The only way to go up to the Supreme Court is a
PETITION FOR REVIEW ON CERTIORARI IN CIVIL
CASES.
Ok! However in CRIMINAL CASES, this is the
motherhood statement: The only way to go up
to the Supreme Court whether in CIVIL or
CRIMINAL CASES is through a PETITION FOR
REVIEW ON CERTIORARI, except when the
penalty is LIFE OR DEATH. Ok!
Page 57 of 101
Let us now proceed with a few cases. The case
of Torres vs. China Bank, IS FAILURE TO FILE AN
APPEAL A DENIAL OF DUE PROCESS? The right
to appeal is not a natural right or part of due
process, it is merely a statutory privilege and
may be exercised only in the manner and in
accordance with the law. Class, tandaan niyo to
kapag naging abugado kayo,
mapapakinabangan niyo to kapag nagkamali
kayo. Hindi ko pa naman sa awa ng diyos
pinakinabangan ito. Bakit? Kapag sinabi ng
cliente mo, bakit hindi mo i-nappeal attorney?
Attorney bakit na-dsimiss yung appeal?
Remember!(while chuckling) It is not a natural
right, it is only a statutory right. Ok! Alam niyo
mga abugado, madudunong yan eh. Ok! But
class you should make sure that you file your
appeal on time. Do not shelter yourself with
that case of Torres.
Now, let us look at the case of Fajardo vs.
Flores. The question that I would like to raise
here is CLAIMS ARISING FROM TERMINATED
TENANCY RELATIONS, WHICH COURT HAS
JURISDICTION? Is it the DARAB or the REGULAR
COURT? The Supreme Court said: Undeniably
the said case involves TENURAL
ARRANGEMENT. There still exist an agrarian
dispute because the controversy involves the
home of the petitioners, an incident arising
from LANDLORD-TENANT relationship and the
court further said, even assuming that the
tenancy relation between the parties had
ceased due to the KASULATAN there still exist
an agrarian dispute because the action involves
an incident arising from the landlord-tenant
relationship.
Now, let us look at this Celestino Baluz vs.
Baluz. Ok! The court said in this case: No extra-
judicial settlement when there is no co-
ownership of the property. Take note ha, this is
a special civil action. NO EXTRA-JUDICIAL
SETTLEMENT IF THERE IS NO CO-OWNERSHIP. In
this particular case, what happen was the extra-
judicial settlement was made between the
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
party and his siblings. Ok! In what they thought
was the ownership of the property but the
problem was, the property that was made
subject of the extra-judicial settlement was
already bought by the bank. They no longer co-
own the property. So the Supreme Court said,
you cannot extra-judicially settle a property
which you no longer own. Ok! You cannot do
that.
Now, CAN THERE BE A PRESUMPTION OF
AGRICULTURAL TENANCY? Pwede ba yun?
Senese vs. Ramos a 2010 case it says: NO
PRESUMPTION OF EXISTENCE OF
AGRICULTURAL TENANCY. In evidence if you will
recall in RULE 131, there is an enumeration of
disputable presumption. So class, no
presumption of existence of agricultural
tenancy the fact alone of working in a
landholding does not give rise to the
presumption of existence of agricultural
tenancy. Substantial evidence requires more
than a mere scintilla of evidence in order that
the fact of sharing can be established, again
there is no presumption of agricultural tenancy.
Now, before I proceed further let us first touch
on the case of Catmon Sales vs. Inson, this is
another 2010 case. It said, it is well settled that
a party who has not appealed from a decision
cannot seek any relief, other than what is
provided in the judgment appealed from. Do
you follow?
This is different from CRIMINAL CASES. Right?!
Sa civil hindi ka nag-appeal sorry ka! You could
only enjoy those that are provided for in the
judgment because you did not appeal. Right?!
But in criminal cases, if you are an accused who
did not appeal but one of your co-accused
appealed and he secured a favourable
judgment that will affect you, that will apply on
you. Do you follow? That is different in civil
cases. However class, do not apply the criminal
explanation tha I gave in a situation like this I
am an accused I have another co-accused both
Page 58 of 101
of us appealed he filed on time, I FILED OUT OF
TIME AND MY APPEAL WAS DISMISSED - he
obtained a favourable judgment I can no longer
avail of that favorable judgment because I
appealed except that my appeal was dismissed.
Ok! Now, what time is it? Oh ayan! Sagutin na
natin to. Tingnan natin, yung isa mahaba yung
tanong eh! Isang paragraph...ayan! and then I
will continue.
The question is: After the defendant had filed
the interrogatories and admission requested by
the plaintiff, I will assume that this is
interrogatories to parties ha! Ok! The counsel of
plaintiff presented the defendant before the
court, however the counsel forgot to offer the
testimony of the defendant. Counsel for
defendant moved to strike out the testimonies
of the defendant. The judge did not rule on the
motion of the defendant's counsel, I would
assume to strike out the testimony but
requested to waive the right of the defendant,
later the judge asked to defer his ruling on the
motion. Is the judge correct? Medyo halo kasi
yung tanong. Ganito ko sasagutin yan para
makatulong sainyo. In a scenario class where
the plaintiff served written interrogatories to
the defendant, take note that he is not obliged
or even the defendant to present that written
interrogatories. In fact class if you apply RULE
25, the written interrogatories is only a
requirement to be able to call, who? The
adverse party on the stand, that is a pre-
reuqisite. So kukunin ko interrogatory... I will
give you a clear example. I would like to call him
onthe stand, I am the plaintiff he is the
defendant, my lawyer wants to call him on the
stand. My lawyer cannot call him, unless as a
rule, we served a written interrogatories, yun
lang ang purpose nun. So that he will not be
caught by surprise. If you want that marked, no
problem but the fact of marking it is not an
issue at all. Do you follow? It will not affect you
case.
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
Now, let us look at another question. Does
administrative matter...you are referring to the
guidelines. Make the duration of any bond
issued in criminal or civil action, special
proceedings or any proceeding be from the
approval of the court until the action or
proceeding is finally decided, resolved or
terminated, if so does this repeal 2(a) of RULE
114, he is already referring to rules in criminal
procedure on bonds, bail bonds. I still remember
I was in court two weeks ago, in one of my
hearings and I remember this question. Ok! The
guideline class, administrative matter when it
says duration of effectivity of the bond is only
some sort of a security, to make it known to the
bonding company that it should be effective
that annually once it expires if it is a corporate
bond, you will have to pay for it. I recall that
there was a similar statement outside of the
courtroom where I appeared sabi: Please bear in
mind that a bond issued will be effective until
the termination of the case. That is a
commitment that they require from a bonding
company. Such that the bonding company will
not immediately cancel it but it is the duty of the
applicant to pay it on a regular basis.
Can permissive counterclaim be included in a
motion to dismiss? I cannot follow the question
but I would like to assume that ah...CAN WE
FILE A MOTION TO DISMISS OF A PERMISSIVE
COUNTERCLAIM? I would like to read it that
way. First I will answer it this way, if it is not
enumerated as a ground for dismissal on a
motion to dismiss under RULE 16 1 it is not a
ground. Do you follow? If I read it the way I
want to read it, if I could file a motion to dismiss
on a permissive counterclaim. Why not! Yes you
can because a permissive counterclaim is a
stand alone case besides that is why you are
required to pay a filing fee.
In a writ of execution pending appeal, can we
stay the execution by a Temporary restraining
order? This is a question that can create a
number of complications, why? In an execution
Page 59 of 101
pending appeal can we stay the execution by
temporary restraining order? Well class, you
have to look at it this way. You have a
judgment, a judgment could be an ordinary
judgment, correct?! an ordinary judgment or a
judgment which is executory by its nature. Do
you follow? Let us look at it as an ordinary
judgement, can you stay it by temporary
restraining order? If there is a clear and
unmistakable right, if you could establish the
existence of an issuance of an injunction,
temporary restraining order why not. However
when you talk of executory judgment it is a
different scenario. Why? For example
ejectment, by law at the level of the MTC and by
jurisprudence it is what? EXECUTORY. Can it be
stayed? YES! According to 19 of RULE 70 - by
filing a notice of appeal, posting a supersedeas
bond to cover you arrears and to deposit on a
monthly basis your rentals before the appellate
court, that stays. However, at the level of the
RTC as an appellate court. It is what? Once it
renders adecision it is executory and cannot be
stayed. Do you follow? And according to the
Benedicto case unless you secure a TRO, the
decision of the RTC confirming or affirming the
decision of the MTC will have to stand. Do you
follow? So you have to treat it differently.
The next is, if the court did not issue a writ of
execution, can we have a remedy of
mandamus? Let us try to ask this question, in
fact I have a case here involving mandamus. I
would have discuss this later on but I will discuss
it now, on what is the concept of mandamus.
Let us look at the case of Uy Kiaw Eng vs.
Dickson Lee a 2010 case. What is MANDAMUS?
It is a command from a court of law of
competent jurisdiction in the name of the
sovereigndirected to some inferior court,
tribunal or board or to some corporation,
requiring the performance of a particular duty
therein specified which duty results from the
official station of the party to whom the writ is
directed or from operation of law. This
definition recognizes the public character. So
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
mandamus is an action of public character and
clearly excludes the idea that it may be resorted
to for the purpose of enforcing duties in which
public has no interest. So please take note that
this is what? A prerogative writ, it is of public
characterand therefore what is the answer? If
the court by law considering that the judgment
has attained finality, should be acting on the
execution and refuses to do so, he could be
required to act upon by mandamus because
that is an act of public character. Ok! And he
could be enjoined. Ok! Because class once it
attains finality it is a matter of right, he has to
conform. Do you follow? It is ministerial for him
to issue it. He does not even have to exercise
what? Discretion, it is a different matter if it is
execution pending appeal because he needs to
exercise discretion.
Ok! So I will... what time is it? Ano nang oras?
Ayan 12:20. Pwede pa pala tayo. Sandal lang,
saying din yang 10 minutes. Bibigyan ko lang
kayo ng pasakalye nung PROVISIONAL
REMEDIES. I would like to remind you that
please do not miss RULE 46-55! Ok! I will give
you a run down before I touch on provisional
remedies. Class, RULE 46 tells you of the
original action of the Court of Appeals. Original
actions in the Court of Appeals. Take note that
the Court of Appeals can conduct a hearing. The
Court of Appeals in original actions can direct a
trial court to conduct a hearing and report to
them. An annulment of judgment class is an
original action in the Court of Appeals.
How about a PRELIMINARY CONFERENCE? Take
note of this, you also have a preliminary
conference in the Court of Appeals. I will
repeat, you have a preliminary conference on
SUMMARY PROCEDURE, you have a preliminary
conference today according to the guidelines on
modes of discovery BEFORE THE CLERK OF
COURT on ordinary actions and you have
preliminary conference before the COURT OF
APPEALS. Absent of the appellant during the
Page 60 of 101
preliminary conference will cause the dismissal
of the appeal.
The next question is, WHAT HAPPENS DURING
THE PRELIMINARY CONFERENCE?
Can the parties stipulate on facts? YES! If it is an
original action.
Can the parties enter into a compromise? YES,
even in the Court of Appeals.
Should motions be heard in the Court of
Appeals and the Supreme Court? As a GENERAL
RULE: NO! There is no need of notice of hearing
in the Court of Appeals and Supreme Court. Sir,
where is that found? RULE 49 3. Unless
required by the appellate court, motions are
not heard in the appellate courts.
But please take note although both motion for
reconsideration in the trial court and in the
appellate court are filed within the period of 15
days, the period of its resolution is different in
the trial court and the appellate court. In the
trial court, motion for reconsideration should
be resolved within a period of 30 days, in the
appellate court including the Supreme Court it
should be resolved within the period of 90 days.
As a final point on this rule, 55. Jurisdiction of
the Supreme Court is it 56? It is 56! Ok!
Supreme Court. Take note class as I end my
discussion on this. Take note that the Supreme
Court has original actions. Actions could
originally be filed in the Supreme Court and it
also has appellate jurisdiction.
What are the original cases to be filed in the
Supreme Court?
1. Certiorari;
2. Prohibition;
3. Mandamus;
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III

A the person in
4. Quo Warranto; T A mode of discovery possession to bring
U the documents. You
5. Habeas Corpus; R could treat this as a
E COMPULSIVE
PROCESS.
6. Disciplinary action against members of
The consequences of
the bench and bar; non-compliance is
found in RULE 29.
7. Actions against ambassadors, ministers There is nothing really
and ministers plenipotentiary; express in terms of
arrest or contempt It is clear that the
8. Actions involving tax impost; because even in non- compulsive process

EFFECT OF NON-
compliance with can be applied.
9. Constituionality and validity of treaties, modes of discovery like

executive agreements, ordinance and
law, as provided for under the
constitution.
Now class, briefly as an exercise - can the
Supreme Court have original jurisdiction? YES!
What is the petition that you have to file in
appealed case in the Supreme Court? PETITION
FOR REVIEW ON CERTIORARI, only petition for
review on certiorari.
What time is it? 12:30 na? Totoo na?! Ok! So I
will give you a break, we will be back at 2
o'clock. I expect to cover the remaining items
on civil procedure in 30 minutes and then I will
start with criminal procedure. Ok!
Ok! We are now on our final 4 hours, we will
have a break at 4 o'clock. I will try to answer
first one question which is civil in nature.
WHAT ARE THE DISTINCTIONS BETWEEN RULE
27 AND SUBPOENA DUCES TECUM? The
distinction is very clear.
RULE 27 - PRODUCTION
OR INSPECTION OF SUBPOENA
DOCUMENTS OR DUCES
THINGS TECUM
It is a process
N requiring the party or
COMPLIANCE
refusal to answer a
deposition question,
y could be
ou
compelled to answer, you
could be placed in
contempt or even
arrest you will find that in
RULE 29.
Let us go now to PROVISIONAL REMEDIES. This
will be very quick, not quick that in a sense that
in a few minutes it is over. I will try to simplify it
as possible. I would want to be very brief and
concise, to make it clear as possible.
The case of Mangila vs. Court of Appeals. When
should jurisdiction over the defendant be
acquired? Some of you may be surprised. Bakit
kailangan pa yang jurisdiction? Class kindly take
note that under RULE 57 if I am accurate. I am
accurate that is 57 but I am just not so accurate
if it is 5. It tells you that in 5, service of
summons should be prior to or
contemporaneous with the order of
attachment. That leads us to the standing rule
that AT THE TIME OF THE FILING OF THE
COMPLAINT jurisdiction over the person, over
the defendant is not required, AT THE TIME OF
THE ISSUANCE OF THE ORDER OF
ATTACHMENT jurisdiction over the person of the
defendant is not required because it could be
issued ex-
parte. JURISDICTION OVER THE PERSON OF THE

Page 61 of 101
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
DEFENDANT IS REQUIRED DURING THE
IMPLEMENTATION OR ENFORCEMENT OF THE
ORDER OF ATTACHMENT. Do you follow? And
that could only be enforced on someone to
whom the court had already acquired
jurisdiction. The order cannot be served upon
him if jurisdiction has not been acquired over
his person. Are we clear? So again, jurisdicition
over the person of the defendant to whom the
order of attachment is to be enforced is only
required when? When the writ of attachment is
to be enforced. Do you follow? At the time of
the filing of the complaint, ok lang because the
court could examine the complaint ex-parte;
without notice to the other party. When the
court issues the order granting the attachment,
should the party be notified? NO! BUT AT THE
TIME OF THE ENFORCEMENT, JURISDICTION
SHOULD HAVE BEEN ACQUIRED OVER THE
PERSON OF THE DEFENDANT.
Now, the next case is Yu vs. Nguyen this is a
2007 case but it is important for evidence
required for wrongful attachment. The key
provision here class when you talk of wrongful
attachment if RULE 57 20, if you could recall
and to make your review easy I would to tell
you that your 20 RULE 57 APLLIES TO ALL
PROVISIONAL REMEDIES, except SUPPORT. If
there is wrongful support or the person giving
support should not have given one or the
person receiving is not entitled to support -
what is the remedy? It is not claim for damages
BUT REIMBURSEMENT. Do you follow?
Reimbursement, it is not damages. Let me lay
down for you the rules of when to apply. I am
not yet discussing the case I am just giving you a
background of when to apply. You will have to
apply it for as long as the action is pending for
IRREGULAR, IMPROPER OR EXCESSIVE
ATTACHMENT for as long as the action is
pending, in fact it tells you during trial before
appeal is perfected right? Or before judgment
becomes final. So class at the point in time for
as long as the action is pending - could you
apply for damages? YES! Sir, on appeal? If the
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case has been appealed, can I apply for
damages by reason of wrongful attachment?
YES! You could apply BUT THE RECEPTION OF
EVIDENCE will always be with the trial court.
Ok! The reception of evidence will always be
with the trial court. The only exception wherein
the court will allow reception of evidence EVEN
AFTER THE CASE HAS BEEN TERMINATED is
when there is a motion to dismiss and there
was no opportunity on the part of the
defendant to present his side.
Now, let us touch on the case of Yu vs. Nguyen.
The first item that I would like to touch here is
WHAT CAN YOU RECOVER FOR WRONGFUL
ATTACHMENTS? WHAT KIND OF DAMAGES CAN
YOU RECOVER? As a rule you could recover
actual damamges. However, number two IF IT IS
NOT ONLY WRONGFUL BUT IT IS LIKEWISE
MALICIOUS. The issuance of attachment is
wrongful and malicious, you could recover
BOTH MORAL AND EXEMPLARY DAMAGES. Ok!
Let us look at the award of damages.
HOW DO YOU PROVE YOUR CLAIM FOR
DAMAGES TO BE ENTITLED TO DAMAGES? You
have to prove with the best evidence available
the fact of loss or injury and that which you
suffered and the amount thereof. Again you will
have to prove with the best available evidence
THE FACT OF LOSS OR INJURY THAT YOU
SUFFERED AND THE AMOUNT THEREOF.
Now, let us look at class the case of Metro Inc.
vs. Lara Gifts and Decor. Ok! Let us look at this.
This case zeroed in, in one of the grounds for
attachment. Class if I were you I will memorize
1 of RULE 57, madali lang yan. Ilan ba yan?
Anim lang naman yan eh. Ha?! Tama ba ako
anim? YES! Class if I were you I will do that. So I
will zero in on 1(d) of RULE 57 - what is that?
THERE WAS FRAUD IN CONTRACTING THE
OBLIGATION OR IN THE PERFORMANCE
THEREOF. These are two different grounds in
one subsection. One if not for the fraud, you
would not have entered into the transaction
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
and the other one is you entered in as plain and
simple an arms-length transaction but in the
course of its performance you committed fraud.
WHAT IS THE RULE? When the writ of
attachment is issued upon a ground which is at
the same time applicant's casue of action, the
only way that the writ can be lifted or dissolved
is by posting a COUNTER-BOND. Take note of
this, I know you have studied 12 and 13 on the
ways to dissolve. Let me give a rundown before I
repeat the rule. What is the rundown? It could
be dissolved upon posting of a counter-bond for
as long as the writ has already been what?
Enforced. Do you follow? Hindi pwedeng you
try to anticipate and oppose the counter-bond,
you cannot do that. Do you follow? THE WRIT
OF ATTACHMENT SHOULD FIRST BE ENFORCED
BEFORE YOU POST A COUNTER-BOND.
Now, the next question is HOW ABOUT IF THE
GROUND FOR DISSOULTION OR DISCHARGE IS
IRREGULAR, IMPROPER OR EXCESSIVE
ATTACHMENT? continuation of the third-party claim. So the
What is an IRREGULAR ATTACHMENT? We say
irregular when the process or procedure was
not complied with like:
1. an attachment was issued without a
bond;
2. an attachment was issued without
an affidavit.
Do you follow? That is what? THAT IS AN
IRREGULAR - because the procedure was ot
followed.
HOW ABOUT IMPROPER? It is improper when
there is no ground under 1. If none of those
enumerated in 1 is present, then it is
improper.
EXCESSIVE - too much to which he was entitled.
Page 63 of 101
WHAT IS THE RULE? The rule says according to
the Metro Inc. Vs. Lara case, when the writ of
attachment is issued upon the ground which is
at the same time the cause of action. Ok? Sir, is
it possible that the ground is not the cause of
action? YES! It is possible like, he does not
reside in the Philippines. Do you follow? The
defendant does not reside in the Philippines,
that is not the cause of action. Do you follow?
Therefore you could present other gorunds but
here WHEN THE GROUND IS LIKEWISE THE
CAUSE OF ACTION THE ONLY WAY THE WRIT
CAN BE DISSOLVED IS BY COUNTER-BOND.
Now, let us look at the case of Rural Bank of Sta.
Barbara vs. Manila Mission - motion to release.
In this particular case what was filed was a
motion to release property from attachment. So
that court was in a quandary... ano ba itong
finile mo?! Motion to release property from
attachment but the court later on figured out
that the person who filed it was not a party to
the case so the court treated it as a mere
motion to release, the court said, was hinge to
the third-party claim or the court said it could
be alternatively treated as a motion to
intervene.
Magaling vs. Ong, IN THE DISCHARGE OF
ATTACHMENT IS HEARING REQUIRED? Ayan! Is
hearing required in a discharge of an
attachment? What did the court say in the case
of Magaling vs. Ong - DISCHARGE OF
ATTACHMENT FOR HAVING BEEN IMPROPERLY
OR IRREGULARLY ISSUED HEARING IS
REQUIRED. Ok? When is a hearing required for
discharge? When the ground is improper or
irregular issuance. In the absence of a hearing,
there will be no discharge if the grounds are
improper or irregular issuance.
Ok! The next is Security Pacific vs. Triunfante -
DOES A POSTING OF A COUNTER-BOND
AUTOMATICALLY DISCHARGES AN
ATTACHMENT? NO! Mere posting of a counter-
bond does not automatically discharge the
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
attachment. Only after hearing and only after
the judge orders the discharge in a cash deposit
or counter-bond. So class, the mere fact of
posting will not discharge, the court should still
come up with an order of discharge, after
accepting the cash deposit or the counter-bond.
Now, before I leave that item on attachment let
me ask you this question. This next question
was already asked in the bar exams kaya lang
multiple choice na ngayon sigurado
napakaraming tanong. Tinanong na ito, I am not
too certain kung 2006 o 2007. This was a 2004
case, this was asked...5..6.. ah 2007! The case of
D.M. Wenceslao vs. Redicon Trading. This case
said that the posting of the counter-bond is not
tantamount to a waiver of the right to damages
arising from wrongful attachment. I would like
to be very clear, THE MERE FACT THAT YOU
POST A COUNTER-BOND DOES NOT MEAN THAT
YOU WAIVED YOUR CLAIMS FOR DAMAGES.
Again, the mere postiung of a counter-bond
does not mean that you waive your right to
damages.
Now, let us now touch on...before I move on to
preliminary injunction. Please take note class
that the attached properties are used for what
purpose? THE ATTACHED PROPERTIES ARE
USED AS A SECURITY. Ok! It is not yet used to
satisfy the judgment therefore class AFTER A
FINAL AND EXECUTORY ATTACHMENT THE
ATTACHED PROERTIES WILL BE APPLIED FIRST.
If there is money it will be applied first then
real and personal properties and if there is an
excess it will be returned - but if the
attached properties are nto sufficient what
happens? The winning party will have to go
through regular or ordinary execution. Take
note of that, if the attached properties are not
sufficient to cover the judgment, you will
have to go through ordinary execution.
Now, let us look at the case of Dela Cruz vs.
DECS the same requisites as cited in the case of
Medina vs. Greenfield case it enumerated the
Page 64 of 101
requisites of PRELIMINARY INJUNCTION. Ok!
Now, before I give the requisites of preliminary
injunction. Let me ask you - can there be an
INJUNCTION AS A PRINCIPLA ACTION and not as
a provisional remedy? YES!!! Injunction is a
judicial writ, process or proceeding whereby a
party is ordered or refrain to do such an act.
This is the case of Garayblas vs. Atienza, class I
would like to repeat you can have an original
action not a provisional remedy of injunction
and in that principal action for injunction you
could still ask for preliminary injunction and
temporary restraining order. Let me touch on
the requisites as I have mentioned a while ago:
1. there should be a clear and
unmistakable right, meaning there
should be a right in esse;
2. there is a violation of such right;
3. there is a need to protect from
clear and irreparable injury.
Class in a TRO and a Preliminary Injunction is a
hearing required? YES! The hearing is what?
SUMMARY ok! The hearing is summary - and
what is to be presented? Only sampling of
evidence, when I say sampling of evidence it
does not mean photocopy, it does not mean
sample. When I say sampling of evidence, it
means that evidence which is sufficient to
establish the TRO or Preliminary Injunction. Ok!
The case of Limitless Potential vs. Court of
Appeals, dissolution of the injunction even if the
injunction was obtained in good faith amounts
to a determination that the injunction was
wringfully obtained and the right of action in
the injunction bond immediately accrues. Take
note, I will repeat, dissolution of the injunction
even if issued in ggod faith amounts to a
determination that the injunction was
wrongfully obtained and the right of action in
the injunction bond accrues.
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
Now, let me touch on a few more items on
injunction. Class, preliminary injunction - what
is the period of a preliminary injunction? Ah
may period ba yun?! For as long as the action is
pending the preliminary injunction is in effect.
But are you aware of the amendment of RULE
58 in relation to rule 65 dated Decmber 2007 -
that if a court or tribunal issues a preliminary
injunction it is incumbent for that court or
tribunal to resolve the main case WITHIN A
PERIOD OF 6 MONTHS. Ok! Gone were the days
that if you got a prelimnary injunction the case
could linger for years. Today class as of
December 2007, you could check that in your
codal in RULE 58 in relation to RULE 65 the
issuing court has to resolve the main case
within a period of 6 months.
Now, take note of my next statement. The TRO
in the trial court has a period of 20 days not
subject of renewal, not subject of extension. In
the Court of Appeals a TRO is for a period of 60
days. In the Supreme Court, a grant of TRO has
no period, unitl futher orders of the court.
Let me touch on EX-PARTE TRO, is tere an ex-
parte TRO? How many ex-parte TRO do you
have today? Take note that your 5 was
likewise amended in 2007.
1. the first kind of ex-parte TRO is that
which is issued by an EXECUTIVE
JUDGE for a period of 72 hours, an
executive judge of a MULTI-SALA
COURT. Is there a need of a
hearing? NO! He could issue that
ex-parte, thereafter the case will be
raffled and the judge to whom it is
assigned will determine whether
that 72 hours will be made to 20
days or plus 17 days. Do you
follow? ONLY AN EXECUTIVE JUDGE
OF A MULTI-SALA COURT CAN
ISSUE 72 HOURS OR A PRESIDING
JUDGE OF A SINGLE-SALA COURT.
Class when I say an executive judge
Page 65 of 101
in a multi-sala court, there are
numerous judges like in Makati
more than 20. Do you follow? In
Manila more than 40, do you
follow? That is a multi-sala court, te
executive judge of that court
appointed by the Supreme Court
can issue ex-parte TRO for 72 hours.
Are we clear? When I say a
presiding judge of a single-sala
court, it means there is only one
judge in that area and this is very
common in the provinces;
2. the next kind of ex-parte which was
a part of the amendment in 2007
was...IF THERE IS A GRAVE OR
IRREPARABLE INJURY. Ok! The
court, not the executive judge, the
judge of a regular branch to whom
a case is assigned can issue what? A
20-day ex-parte TRO WITHOUT
NOTICE AND HEARING. A regular
court judge if there is a grave orm
irreparable injury, can issue a 20-
day TRO without notice and
hearing.
The next question that I will ask you is this - can
a judge issue a preliminary injunction without a
notice and hearing? NO! That is a BIG NO NO!
You cannot do that. The judge will be sued
administratively for doing that.
The concept of injunction is to prohibit, that is
one, or the other one is mandatory which is to
enjoin and before I proceed further please take
note class that under the ADR Law, provisional
remedies as the one that I have been discussing
right now can be instituted as an original action
in aid of an arbitration case.
Before I go to receivership I just want you to
take note of this - on how to dissolve an
injunction? INSUFFICIENCY is a ground for
DENIAL but not for dissolution. Again,
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
insufficiency is a ground for denial but not for
dissolution. Submission of affidavits is a ground
for dissolution and denial. What else? Posting of
a counter-bond is not only simply posting a
counter-bond as basis for dissolution, it should
be coupled with this statement THAT THE
DAMAGE TO BE SUFFERED BY THE APPLICANT
OR BY THE PERSON POSTING THE COUNTER-
BOND IS FAR GREATER THAN THAT OF THE
APPLICANT, plus post a counter-bond. Ok! Di
lang sapat na magcounter-bond ka, that the
damage to be suffered by the applicant or by
the person posting the counter-bond is far
greater than that of the applicant.
Let us now proceed to RECEIVERSHIP. What
about receivership? Class on receivership, you
have to take note that this is a provisional
remedy that is used to protect the property or
the subject of the controversy from being
wasted or dissipated and this is the only
provisional remedy class where you have 2
BINDS. Ok! Dalawa yun, the BOND OF THE
RECEIVER and the BOND OF THE APPLICANT.
This is also the ONLY PROVISIONAL REMEDY
THAT COULD BE APPPLIED FOR EVEN IF THE
JUDGMENT IS ALREADY FINAL AND EXECUTORY.
You could apply for receivership even after the
judgment has become final and executory and
the reason for this is also found in RULE 39 41.
Now, let us look at class. HOW TO DISSOLVE A
RECIEVRSHIP? You could dissolve a receivership,
you could dissolve or discharge by saying there
is no casue for the continuation of the receiver
and upon posting a counter-bond.
Let us look at REPLEVIN. Ok?! Replevin. If I were
you I will memorize the contents of a replevin-
affidavit. Ok! I will memorize:
1. that you are the owner - lawful
owner or possessor;
Page 66 of 101
2. that the same has not been subject
of levy, attachment or not in
custody of the court;
3. the ground is WRONGFUL
DETENTION OR THERE IS
DEPRIVATION
4. the FAIR MARKET VALUE of the
property.
Replevin is the only provisional remedy where
the BONS IS DOUBLE THE VALUE OF THE
PROPERTY. Take note of the case of Superlines
Transportation vs. PNCC which says PROPERTY
HELD AS EVIDENCE IN A CRIMINAL CASE
CANNOT BE SUBJECT OF REPLEVIN. Ok! Are we
clear? If property or objects are OBJECTS OF
CRIMES OR TO BE USED AS EVIDENCE IN A
CRIMINAL CASE IT CANNOT BE SUBJECT OF
REPLEVIN. It is in the nature of custodia legis.
The case of Dagudag vs. Paderanga, forest
products detained by the Bureau of Forest
Development is not subject of replevin like logs
recovered from illegal loggers. Forest products
detained by the Bureau of Forest Development
is not subject of replevin.
Let us now look at the last provisional remedy
which is SUPPORT. Ok! SUPPORT PENDENTE
LITE. This is the only provisional remedy where
there is no requirement of a bond because the
person is asking for support. This the only
provisional remedy wherein wrongful support
or there was an error in giving support is not
subject of damages but subject of
reimbursement. This is also the only the
provisional remedy where there is an express
provision for criminal cases for offsprings which
were results of commission of offense. Ok!
Kindly take note if the case is still pending and
there is wrongful support, you could recover in
the same action but if there is already a
judgment, you will have to recover it in a
separate action.
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
Now, let me give you a rundown of a few items
more before I move on to criminal procedure.
Let us look at DECLARATORY RELIEF. It is in
RULE 63, Malana vs. Papa. Declaratory relief
presupposes that there is no breach. Ok! NO
BREACH!!! Once a breach is committed, there
will be a conversion from a special civil action to
an ordinary civil action. Please take note that
declaratory relief is not limited to interpretation
or determination of validity by the cour, it also
includes other similar remedies like quieting of
title, removal of cloud, reformation and what
else? Consolidation is included but please take
note for those of you who are curious about
consolidation, it refers not to foreclosure of
mortgage - it refers to a pacto de retro sale.
WHICH COURT HAS ORIGINAL JURISDICTION
OVER ACTIONS FOR DECLARATORY RELIEF?
Liga ng mga Barangay vs. Atienza, the
REGIONAL TRIAL COURT. Declaratory relief is
in the original exclusive jurisdiction of the trial
court unless of course there is question on
constitutionality, in which case the Supreme
Court can have original jurisdiction on
constitutionality, even the Court of Appeals.
Now, let us now look at an example on
INTERPLEADER. What do you have to remember
about interpleader? You just have to remember
in the case of Ocampo vs. Tirona, the action of
interpleader is a remedy whereby a person or
his property whether personal or real or an
obligation to render wholly or partially without
claiming any right in both. IN SIMPLE WORDS
THERE ARE TWO CONFLICTING CLAIMANTS AND
YOU HAVE NO INTEREST AND IF YOU AHVE AN
INTEREST, YOUR INTEREST IS NOT IN CONFLICT
WITH THEM. So what do you do? You institute
an action for interpleader to ask the courts to
determine the rights of the conflicting
claimants. The classic example of this is the
claims of a spouse and someone who claims
also to be as the spouse of a deceased insured
individual, this is a classic example. So when the
Page 67 of 101
person died there was a named beneficiary, the
spouse, but someone comes forward "ako ang
asawa talaga!" and presents a marriage
certificate, both of them have marriage
certificate. So to avoid damages, what will they
do? What will the insurance company do? They
will file an action for interpleader so that they
will determine their rights.
Class , the next item is PETITION FOR
CERTIORARI under RULE 64. Class, RULE 64 is a
petition for certiorari please bear that in mind...
Ha sir?! Hindi ba 65?! 64!!! Is a petition for
certiorari FOR REVIEW OF JUDGMENTS OF COA
OR COMELEC. Ok! Petition for certiorari yan ah!
Review of judgments of COA or COMELEC.
The next question is, WITHIN HOW MANY DAYS
CAN YOU FILE A PETITION FOR CERTIORARI
UNDER RULE 64? Within a period of 30 days and
there is no extension. I will not take much of
your time on certiorari, prohibition and
mandamus because I have slightly discussed
that and I do not want to waste time. Except
that I would like you to bear this in mind CAN
YOU FILE AN EXTENSION OF A PETITION FOR
CERTIORARI, TODAY? Is there an extended
period? Could you file a motion for extension?
Based on the amendement of 2007 you can no
longer file what? AN EXTENSION. If your codal
proviosion still has 15 days, that has already
been amended. So if you are asked in the bar
exams, the petition for certiorari under RULE 65
cannot be extended. It is a fixed period of 60
days.
A while ago I discussed mandamus, let me now
touch on the recent case on mandamus that I
feel I have to touch on. In this case 2010 case of
Uy Kiaw Eng vs. Nickson Lee it say that
recognized in this jurisdiction is the principle
that MANDAMUS CANNOT BE USED TO
ENFORCE A CONTRACTUAL OBLIGATION
BECAUSE IT IS NOT AN OBLIGATION OF PUBLIC
CHARACTER and it is a prerogative writ. Bear in
mind in this case, the question was about the
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
original holographic will. Yun ang
pinagtatalunan, gusto i-mandamus. Yung may
possession or custody ng holographic will gusto
niya i-mandamus. What did the court say?
Without unnecessarily ascertaining whether the
obligation involved in the production of the
original holographic will is in the nature of
public or private duty, because that is the
determination for mansamus, rules of the
remedy of mandamus cannot be availed of by
respondent Lee if there lies another plain,
speedy and adequate remedy and what is that
plain, speedy and adequate remedy when you
talk of a holographic will? For that purpose
according to the court, the party is not
prevented from instituting probate proceedings
and require presentation of copies thereof. Do
you follow?! So here, how was it attacked?
There is a plain, speedy and adequate remedy
therefore mandamus will not lie. They did not
even determine whether it is a public or private
character.
Let us now proceed to QUO WARRANTO. Just
one point on quo warranto class. Calleja vs.
Panday, which court has jurisdiction when iy
comes to quo warranto involving USURPATION
OF OFFICE IN A CORPORATION? Ok! Not
usurpation of public office but usurpation of
office in a private coraporation, which court has
jurisdiction? The REGIONAL TRIAL COURT
having special jurisdiction or what you call the
COMMERCIAL COURTS.
Now on matters of EXPROPRIATION I will not
delve too much on expropriation. Please take
note that THERE ARE TWO STAGES ON
EXPROPRIATION and please take note based on
the case of NHA a COMPLAINT OR A PETITION
FOR EXPROPRIATION CAN BE WITHDRAWN AT
ANYTIME, BEFORE AN ORDER OF
EXPROPRIATION. However, if damages has been
suffered by the property now subject of the
withdrawal of the petition the government will
have to pay for damages. Now, Masikit vs. City
of Pasig, the need for expropriation must be
Page 68 of 101
based on a public purpose. There should be a
necessity, necessity must be of public character.
In this case of Masikit, what happened was the
basis of an expropriation was through an
ordinance which says that the intended
beneficiaries where the Melendres compound
homeowners association, a private non-profit
organization of residents. Can you follow? It
already violated the requirement of the law.
Ok! I already mentioned partition a while ago
and I mentioned ejectment and contempts. So I
will now proceed to CRIMINAL PROCEDURE.
I will start class with what I said yesterday, the
case or the petition for radio and television
coverage of the multiple-murder cases against
the Maguindanao governor Zaldy Ampatuan et.
al. and this included the letter of President
Benigno Aquino to the Supreme Cour asking for
tv coverage on this. How did the Supreme Court
resolved this? As I mentioned to you yesterday
the resolution on this case is for this particular
purpose pro hac vice, for this particular purpose
and they have enumerated how the guidelines
on tv coverage. In the past, they were guided by
the Corazon Aquino libel case and the Joseph
Estrada plunder case of 2001, that recording
will only be allowed for historical or
documentary purposes. To allow a broadcast of
this will be in violation of the rights of the
accused. Ok! So how did they treat it? I will
enumerate to you the guidelines that they have
enumerated. According to them:
1. audio-visual recording of the
proceedings maybe made both for
documentary and for transmittal to
live broadcast. Ok! So it is used for
documentary and if you wish,
transmittal for live broadcast;
2. the media entities must file with the
trial court a letter-application, there
should be a letter-application
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
directed to the trial court where the
case is pending;
3. there should be no selective or
partial coverage - hindi mo
pwedeng galitin ang tao sabihinm
mo ipapakita mo lang itong portion
na to. Do you follow? Or you will
highlight only this portion. You will
have to show the entirety;
4. there should be a single fixed
compact camera - when you say
single fixed compact camera, that
would cover the entire room or area
with no need of panning, hindi ka
pwedeng magzoom, hindi ka
pwedeng magpan. Hindi pwede!
Basta yun lang kukunan mo lang;
5. the broadcast for a particular day
must be continuous in its entirety;
6. there shall be no commercial
breaks, unless there is already
adjournment or there was a recess;
7. there is no voive overs, meaning no
opinions except brief annotations as
may be necessary to explain them
at the beginning and at the end. So
hindi pwede yung mga opinion
katulad sa radio na marooning pa
sila, hindi pwede yun! Ok!;
8. finally, no repeat airing, if it is
shown now , live...you watch it. It
cannot be viewed later on replay. It
should be a live airing and once
shown cannot be repated. Until
after the finality of judgment.
This is something new class, that is why the
Supreme Court if you would notice, does not
want ot be tied down in this case. That is why
they said at the outset this is for this particular
Page 69 of 101
pupose-pro hac vice. Do you follow? For that
particular purpose only, because in the future if
they do not say that baka matali sila eh. Right?
And they felt the need to come up with these
because of the numerous victims and their
families who would want to see the outcome of
the case plus the accused themselves nd theire
families. I hope that is clear, kapag sinama nila
at least may working knowledge kayo kung ano
yun.
Now, let us start with the case of...what time is
it? 2:55 accurate itong aking timer. Kayo naman
nadito na rin kayo eh di makinig na lang eh
nagmamadali pa kayo. Ano bang papanoorin
niyong sine na naman mamaya? Ano ba yung
showing? Transformer no! Ayan! Manonood na
naman kayo ng sine. Alam niyo ako noon nung
nagrereview ako kapag nanonood ako ng sine
yung wala nang pumapasok sa utak ko, meaning
have you had thet chance or taht experience
wherein you are sitting down and you keep on
reading you understand every word but as if
nothing is in...o ba't parang lahat kayo?!
(chcuckles) at that point in time class may be
you have to stop because you are tired. Just like
last night, I came from here I wanted to read and
when I started reading frist I got a call then I
wan to read, I started reading at some point
in time around 10:30 sabi ko pagod na talaga
ang utak ko, pagod na so what I did was to
sleep. Kapag pagod na itulog niyo. Hindi ko
sinabing i-sine niyo. Itulog niyo!!! For the next
day, ok! So that you have energy for the next
day.
Now class, the case of Isip vs. People is the
reiteration of a long standing rule that the place
where the criome was committed determines
not only the venue of the action but its
essential elements. Ok! This is a repetition that
VENUE IS JURISDICTIONAL. Unless of course the
place fo commission is the place where you will
institute the action but if it is a transitory
offense or a continuing offense for example a
BP 22 case - where could you institute the
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
action? You could institute it in the place of
issue or the place where the check bounced.
Class, you could file in the place of issue or in
the place where the check bounced.
At whose option? The filing party, but I would
suggest, if you want to become lawyers you file
it in the place where the check bounced.
Jurisdicition of the RTC as a SPECIAL AGRARIAN
COURT. Sir, why did you even touched on
special agrarian court? We are already in
criminal procedure. Listen to this, the exception
to the DAR's original exclusive jurisdiction are:
1. all petitions for determination of
just compensation;
2. the prosecution of all criminal
offenses under RA 6657. Which are
within the jurisdiction of the RTC
SITTING AS A SPECIAL AGRARIIAN
COURT. Do you follow?
Ulitin ko, all matters pertaining to agricultural
tenancy falls within the DAR. However, there
are two items which will go to the regular
courts, subject to judicial determination: 1. to
determine just compensation; and 2. all
criminal offenses under RA 6657. Which are
within the jurisdiction of the RTC sitting as an
agrarian court.
Yesterday I discussed in class jurisdiction of
courts. Right?! I disussed that yesterday. Now,
let me start with the SANDIGANBAYAN. People
vs. Sandiganbayan. Public office as constituted
element of the offense. WHAT DOES THIS
MEAN? According to the court, as long as the
offense charged in the information is intimately
connected with the office and is alleged to have
been perpetrated while the accused was in the
performance of his office then it will fall within
the jurisdiction of Sandiganbayan. What do you
mean by this? In simple words WITHOUT THE
OFFICE THE CRIME WOULD NOT HAVE BEEN
Page 70 of 101
COMMITTED. That the office is the constituted
element of the offense. It further said that a
simple analysis after a plain reading of the
provision shows that those public officials
enumerated under 4(a) of PD 1606 as
amended may not onle be charged in the
Sandiganbayan for violation of the Anti-Graft
Law RA 1379 and Title 7 of the Revised Penal
Code. Can they be charged with other ordinary
offenses? YES! For as long as it is a constituted
element of the offense. This abuse your minds
that Sandiganbayan cases are only limited to
Anti-Graft, Bribery and the like. Do you follow?
For as long as the office is a constituted
element of the offense and you fall within the
proper salary grade of 27 you fall under the
jurisdiction of Sandiganbayan.
Let me call your attention to the case of Alarilla
vs. Sandiganbayan, where the public official was
charged with the crime of grave threats. Ok!
Ang demanda sa kanya grave threats, eh hindi
yan bribery, hindi yan anti-graft but grave
threats, but anong sabi ng court? Accused was
performing his official duty as municipal mayor
when he attended said public heaqring and that
accused violent act was precipitated by
complainant's criticism of his administration. So
grave threats would not have been committed
if not for the exercise of his office. Do you
follow?!
Now the next question is - CAN A UP STUDENT
REGENT BE CONSIDERED AS A PUBLIC OFFICER
AND BE PROSECUTED IN THE SANDIGANBAYAN?
Do you know this case? The case of Serrana vs.
Sandiganbayan. The student regent contends,
hindi po ako public officer. I am not a public
officer and I do not draw salary from the
government. I do not receive a single centavo
from the government, therefore I cannot be
prosecuted in the Sandiganbayan. Ang nangyari
kasi dito class, napagkatiwalaan siya ng pera
nung panahon na yun ni Erap and she failed to
account for it and she is now being prosecuted.
So, how is a public officer defined in this case? A
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
public office is the right, authority and duty
created and conferred by law for a given period
either fixed by law or enduring at the pleasure
of the creating power. The Supreme Court said,
while the first part of 4(a) covers only officials
with Salary Grade of 27 and higher its second
oart specifically includes other executive
officials whose positions may not be salary
grade 27 and higher but by express provision of
law are placed under the jurisdiction of the
Sandiganbayan. For example itong 4 1(g) let
me read it for you and the student regent will
fall in this category "the Sandiganbayan has
jurisdiction over presidents, directors, trustees
or managers of government-owned and
controlled corporations, state universities or
educational institutions or foundations.
According to the court, STUDENT REGENTS fall
under this category, the salary grade is
immaterial because by express provision of law,
the position fall within the jurisdiction of
Sandiganbayan.
The next question class is this, answered in the
case of Esquivel vs. Ombudsman. Where a co-
accused is within the jurisdiction of
Sandiganyaban. Ano ibig sabihin nun? FOR AS
LONG AS ONE OF THE ACCUSED IS SALARY
GRADE 27 REGARDLESS OF HIM BEING A
PRINCIPAL, ACCOMPLICE OR AN ACCESSORY,
FOR AS LONG AS ONE FALLS WITHIN THE
JURISDICTION OF SANDIGANBAYAN, EVERYONE
FALLS WITH THE SANDIGANBAYAN. Do you
follow? As in this case of Esquivel, ang
pinagtatlunan nila, as the position of municipal
mayor and barangay captains are not
mentioned therein, they claim that they are not
covered by the said law under the principle of
expressio unius est exclusio alterius. But class
this has already been answered in the case of
Binay that a municipal mayor falls within thye
jurisdiction of Sandiganbayan. Considering that
the municipal mayor is with the Sandiganbayan,
the barangay captain who was part of it as co-
accused is also within the jurisdiction of the
Sandiganbayan.
Page 71 of 101
The next question is this - WHAT IF THE CO-
ACCUSED IS A PRIVATE INDIVIDUAL - there is a
public officer who falls within the jurisdiction of
Sandiganbayan, salary grade 27 - will the
private individual falls within the jurisdciction of
Sandiganbayan? YES!!! In the case of Republic
vs. Court of Appeals, wherein private
contractors of the DPWH were joined as co-
accused with nthe officers of the DPWH.
Let us now proceed and answer the next
question. WHICH COURT CAN ISSUE A HOLD-
DEPARTURE ORDER? The case of Mondejar vs.
Buban, the REGIONAL TRIAL COURT has
exclusive jurisdiction to issue hold-departure
order. This is based on Circular 39-97, that
LIMITS THE AUTHORITY TO ISSUE HDO to
criminal cases within the jurisdiction of second
level courts, when I say second level courts I am
referring to the regional trial court. However
class, the DEPARTMENT OF JUSTICE CAN ISSUE
A HOLD DEPARTURE ORDER, that is within the
power of the DOJ.
You have repeatedly heard of this JURISDICTION
IS DETERMINED BY THE ALLEGATIONS OF THE
COMPLAINT - Foz vs. People. What does it
mean? Allegations in the complaint or
information does not confer jurisdiction. It is
the law that confers jurisdiction. However, it is
the allegations that determines. Iba yun! What
confers jurisdiction is the law, for the court to
know whether or not it has jurisdiction or it can
act, it is the allegations that determines
jurisdiction.
Ok! Let us look at Badiola vs. Court of Appeals.
WHAT HAPPENS IF THERE IS A WRONG MODE
OF APPEAL? What happens to the petition if
there is a wrong mode? The PETITION WILL BE
DISMISSED.
From a review of the CA on a RULE 43 - review
of decisions of quasi-judicial agencies, where
will you go from the CA under RULE 43? You will
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
go to the Supreme Court on a RULE 45 -
PETITION FOR REVIEW ON CERTIORARI.
Still on the case of Badiola, this will interest you
because the GENERAL RULE is a second MR is
not allowed, it is prohibited. As found in 2 of
RULE 52. However the court said in the case of
Badiola, such motion is a prohibited pleading
which shall not be allowed except...that is the
general rule, the second MR is a prohibited
pleading is a general rule EXCEPT FOR
ORDINARILY PERSUASIVE REASONS AND ONLY
AFTER AN EXPRESS LEAVE SHALL HAVE BEEN
OBTAINED.
Still on Badiola, DISMISSAL OF CRIMINAL
CHARGE DOES IT CARRY WITH IT DISMISSAL OF
THE ADMINISTRATIVE CASE? Ha class?! Na-
dismiss yung crim... Sir, eh mas mataas yung
degree require in a criminal case eh di damay
na rin. HINDI! Citing the case of Tecson vs.
Sandiganbayan, it simply means that a public
officer may be held civilly, criminally and
administratively liable. Do you follow? So it
does not mean that if a criminal case against a
public officer is dismissed, the administrative
case is likewise dismissed. These are STAND
ALONE CASES.
WHAT IS THE POWER OF THE OMBUDSMAN?
Ombudsman naman tayo ngayon. Ok! What is
the power of the ombudsman, DOJ vs. Liwag, IT
WAS GRANTED MORE THAN THE USUAL
POWERS GIVEN BY THE PROSECUTORS. But
unlike prosecutors class, the Office of the
OMBUDSMAN CAN INVESTIGATE WITHOUT A
FORMAL COMPLAINT LODGED BEFORE IT.
Tandaan niyo yan! Unlike the office of the
prosecutor, there should be an affidavit-
complaint, in the Office of the Ombudsman
even without a formal complaint lodged before
it, it can investigate. It can inquire also on acts
of governments agencies based on reports in
the media. Take note of this, IT COULD INQUIRE
AND INVESTIGATE ON ACTS OF GOVERNMENT
AGENCIES BASED ON REPORT IN THE MEDIA
Page 72 of 101
AND THOSE WHICH COME TO HIS ATTENTION
THROUGH SOURCES OTHER THAN A
COMPLAINT. So sir, pwede palang chismoso ang
ombudsman? Ganun ba yun? Kelangan malaki
ang tenga mo at kinig ka ng kinig. Ok!
The METHOD OF FILING OF A COMPLAINT in the
Ombudsman is DIRECT, INFORMAL, SPEEDY
AND INEXPENSIVE.
CAN THE OMBUDSMAN TAKE JURISDICTION
ONLY OF CASES THAT IS IN RELATION TO THE
OFFICE? IS THAT A REQUIREMENT FOR THE
OMBUDSMAN TO TAKE COGNIZANCE OF THE
CASE? SHOULD THE ACT COMMITTED BY THE
PUBLIC OFFICER BE IN RELATION TO THE
OFFICE? NO. Any act of, any misfeasance,
malfeasance, non-feasance will fall within the
jurisdiction of the Ombudsman. May kapitbahay
ka public officer, binaril mo manok pwede kang
idemanda sa ombudsman. Do you follow? Pulis
ka, wala ka sa duty baril-baril ka illegal
discharge pwede ka sa ombudsman. Do you
follow? Kahit wala ka sa duty it does not matter.
WHETHER OR NOT IT IS COMMITTED IN
RELATION TO THE OFFICE, ANY ACT OF PUBLIC
OFFICER CAN BE INSTITUTED - ANY
MISFEASANCE, MALFEASANCE OR NON-
FEASANCE COULD BE INSTITUTED IN THE
OFFICE OF THE OMBUDSMAN. Ok! Bear that in
mind.
In the case of DOJ vs. Liwag, the question is
WHICH HAS PRIMARY JURISDICTION TO
INVESTIGATE CASES COGNIZABLE BY THE
SANDIGANBAYAN? Primary jurisdiction is with
the OMBUDSMAN, over cases cognizable by the
Sandiganbayan. While the DOJ has general
jurisdiction to conduct preliminary investigation
involving violations of the Revised Penal Code.
But both of them can conduct prelimnary
investigation, are we clear BUT ONLY THE
SANDIGANBAYAN HAS PRIMARY JURISDCITION
OVER SANDIGANBAYAN CASES.
IS THE OMBUDSMAN A COURT? NO! It is not a
court, it is an investigative agency or body.
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III

Now, the case of Lazatin vs. Desierto, I have
noticed that within the last five years certain
questions was taken from OFFICE OF SPECIAL
PROSECUTOR which is not part of your Rules on
Criminal Procedure. Wala yan! You cannot find
it there, office of special prosecutor cannot be
found there.
WHO IS A SPECIAL PROSECUTOR? Lazatin vs.
Desierto - Office of the Special Prosecutor is
merely a component of the Office of the
Ombudsman and may only act under the
supervision, control and authority of the
ombudsman. Again, the OSP is only a
component of the office of the Ombudsman.
The power to prosecute crimes according to the
court carries with it the power to file
information and listen to this, which power is
not been to the OSP. In the 2010 bar
examinations there was a question answerable
by this one, by this concept wherein there was
information already in the Sandiganbayan,
there was a motion to amend it, it was returned
and amende by the OSP and the new
information was filed, IS THE INFORMATION
VALID? NO. Because the OSP HAS NO
DELEGATED AUHTORITY TO FILE AN
INFORMATION. case of Panaguiton vs. DOJ. Class, I am now
Let us now move and discuss procedure before
the office of the Ombudsman. WHAT IS THE
PROCEDURE BEFORE THE OMBUDSMAN? Fairly
simple class, according to this caseof Sesbreo
ALL PROSECUTORS ARE NOW DEPUTIZED AS
OMBUDSMAN PROSECUTORS, based on AO
#08. Therefore the resolution of an assistant
prosecutor deputized by the ombudsman will
be reviewed by whom? By the CITY or
PROVINCIAL PROSECUTOR. OK! The deputized
public prosecutor of the Ombudsman, the
resolution will be reviewed by the City oy
Provincial Prosecutor and the resolution of the
City or Provincial Prosecutor will be reviewed by covered by special law the period of
the DEPUTY OMBUDSMAN that will ne later
approved by the Obudsman.
CAN THE OFFICE OF THE OMBUDSMAN DISMISS
A CASE OUTRIGHT WITHOUT GIVING THE
OTHER PARTY OR THE RESPONDENT THE
OPPORTUNITY TO BE HEARD? YES! The office of
the Ombudsman can dismiss a case outright.
Let us now look at this case, the case of People
vs. Duka. This is important because it defined
the DUTY OF THE OFFICE OF THE SOLICITOR
GENERAL. It said here, complaint or information
shall be prosecuted under the direction of
whom? UNDER THE DIRECTION OF THE PUBLIC
PROSECUTOR. However class, take note this
case of People vs. Duka, when a criminal action
reached appeal the Court of Appeals or the
Supreme Court, the office of the Solicitor
General must represent the People of the
Philippines and not the Prosecutor. Therefore in
this particular case, there was an error in maing
a service of the petition to the prosecutor and
not to the Office of the Solicitor General
because the sole representative of the State for
appealed cases is the Office of the Solicitor
General.
Let us now proceed, I would like to touch on
PRESCRIPTION and I would like to touch on the
referring to RULE 110 1 last paragraph, that it
says that the prescriptive period is interrupted
upon filing of the complaint or information.
WHERE, that is the question? If it is an ordinary
offense, filing before the office of the
prosecutor - Brillantes vs. Republic, is a
reiteration of the long standing rule. So THE
MERE FACT THAT YOU FILE IN THE OFFICE OF
THE PROSECUTOR, PRESCRIPTIVE PERIOD
INTERRUPTED.
HOW ABOUT SPECIAL LAWS? The long standing
rule class prior to this case of Panaguiton was
cited in your books in ACT 3326 that says, if it
prescription will be interrupted only when?
Upon filing of the complaint or information in
court, however at the advent of Panaguiton vs.

Page 73 of 101
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
DOJ a 2008 case. Thequestion presented before
the Panaguiton case is - HOW ABOUT BP 22
CASES? Of course the contention was that it is a
special law but they went on to the narrative of
the history of Act 3326 but the Supreme Court
said...sandali! sandali! Yang Act 3326 of 1926,
kaya sinabi niyan na upon filing in court because
at that time the justice of peace can conduct
preliminary investigation, sabi nila. Today can
an MTC judge conduct a preliminary
investigation? Who says yes? NO! A MTC judge
today cannot conduct PI, that was an
amendment as early as October 2005. So kapag
and code sinsabi pa sa 2 of RULE 112 andyan
pa yung MTC judge who could conduct PI, i-eks
mo siya. Ok! Ibig sabihin luma nag codal mo. So
going back to the case of Panagution, what did
the court say? Sabi ng court ganun kasi yun
nung araw in 1926 but the Supreme Court said
and cited the cases of Ingko vs. Sandiganbayan
and Sanrio Co. Ltd. sinabi rito class even
violation of the securities act an investigation
ofm the SEC is considered already an
interruption of the prescriptive period because
to them it was the commencement of the
investigation process.
Now going back to the question on BP 22 -
when will the prescriptive period be
interrupted, IT IS INTERRUPTED UPON FILING
OF THE INFORMATION IN THE OFFICE OF THE
PROSECUTOR, that is the Panaguiton case.
Let us now continue, still on criminal procedure.
Class, what time is it? 4...ha what time 4! Ayan
mahaba pa, parang gutom kayo ano! Hindi kayo
mapakali, gutom na gutom kayo. Relax lang
kayo ok!
What other items do I want you to take note of,
let us try to answer this. Ito na to eh, criminal
na! Let us try to answer this question of your
classmate ang tanong niya is in connection with
General Garcia. Piakliin ko lang ha! Kabit-kabit
naman yung tanogn iya eh. Ok! In the PLEA
BARGAINING of General Carlos Garcia at the
Page 74 of 101
Sanndiganbayan - WHO IS THE OFFENDED
PARTY THAT MUST GIVE CONSENT AND MUST
BE NOTIFIED? Doon muna tayo sa CONCEPT ng
plea bargaining, ganyan class sumagot ng
tanong. Ano ba yung pinag-uusapan natin? Plea
bargaining, ok!
WHEN CAN YOU ENTER INTO A PLEA
BARGAINING? Do you follow? Plea bargaining is
A PLEA OF GUILT OT A LESSER OFFENSE. You will
first meet that in RULE 116 1. Nakalagay doon,
as a rule DURING THE ARRAIGNMENT the
offended party need not be present unless
there is a plea of guilty to a lesser offense or
there is a plea bargaining because the
OFFENDED PARTY SHOULD GIVE CONSENT plus
the PUBLIC PROSECUTOR. At anytime AFTER
ARAIGMENT BUT BEFORE TRIAL, you could
enter into a plea bargaining or plea of guilt ot a
lesser offense. So arraignment, after
arraignment but before trial can you enter a
plea of guilt to a lesser offense? YES! The last
instance you could do that is when? DURING
PRE-TRIAL FOR A PLEA BARGAINING.
Maliwanag? Yun ang huling pagkakataon na
pwede mong gawin yun.
Ang tanong niya dito WHO IS THE OFFENDED
PARTY THAT MUST GIVE ITS CONSENT AND
MUST BE NOTIFIED? Sino ba ang offended
party? Is it the State or is it the Armed Forces of
the Philippines. Ok yun ang tanong. Is it the
STATE or the AF? Di ko sinama yun Solicitor
General kasi wala siyang pakialam dyan,
papasok lang siya para reviewhin yung plea
bargain kung meron man because he is the
counsel of the State. He may be entitled to
notice if it is on Appeal. How about yung
Ombudsman? Wala nang pakialam yun, basta
na-file yung info tapos na yung trabaho niya
because an Ombudsman work just like a public
prosecutor. To my mind because if you talk of
the State, you will be looking at the highest
officer of the land. Ok! The offended party here
is technically the AFP dahil ang kinuhanan nila
ay AFP.
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
IS A PLEA BARGAIN WITH CIRCUMSTANCES
SUBSTANTIALLY SIMILAR TO THAT OF GENERAL
GARCIA VALID? WHAT IS THE RULE? Because
this is a highly controversial question and more
or less political and you will be giving a political
answer. Ang sagot lang dyan ganito, what is the
rule? AS A RULE A PLEA BARGAIN SHOULD BE
NECESSARILY INCLUDED IN THE OFFENSE
CHARGED. Hindi pwede na yung charge ay
murder, sige aminin ko na rape! Hindi pwede
yun!!! NECESSARILY INCLUDED IN THE OFFENSE
CHARGED. In fact, if it is necessarily included in
the offense charged for as long as the offended
party is notified and the public prosecutor is
notified, even if the offended party is not
present during the arraignment, there could be
a plea of guilt to a lesser offense, if it is
necessarily included in the offense charge. Kaya
ko ito diniscuss, ayan na-cover ko na yung plea
bargain.
Now, let us now touch on...yung mga gusto niyo
ganyan eh. Yung mga nasa news. Yan ang mga
gusto niyo!
Dito naman tayo sa DOWNGRADING, kung may
plea of guilt to a lesser offense let us touch on
downgrading. Downgrading class is BEFORE
PLEA! Ok! Tandaan niyo yun, downgrading of an
offense let us say muder to homicide is before
plea. Ok!
WHAT ARE THE REQUIREMENT:
1. the same should be with notice to
the offended party a motion filed
by the public prosecutor and with
leave of court. Ok! Yun ang
requirement nun!
HOW ABOUT EXCLUSION? Anong exclusion?!
Exclusion of the accused. Remember exclusion
here is BEFORE PLEA and for that reason even if
you are excluded, does it mean that double
jeopardy has set-in? NO! Double jeopardy has
Page 75 of 101
not set-in therefore if later on there is sufficient
evidence against you. Can they institute action
against you? YES! Ok!
The case of Yu vs. RTC of Tagaytay. STATE
WITNESS. Doon tayo sa state witness, the
pertinent provision class when you talk of state
witness is RULE 119 17 - DISCHARGE OF THE
ACCUSED AS A STATE WITNESS. Yan yun class
when you talk of state witness. The
requirement class is:
1. you will have to submit an affidavit;
and
2. you should been arraigned.
THE APPLICATION TO BE STATE WITNESS
SHOULD BE WHEN? At anytime before the
prosecution would have rested its case. Bago,
kapag tapos na yan wala na. At anytime before
the prosecution would have rested its case.
Therefore class, if you are validly and legally
declared as a state witness you are already
ACQUITTED! Ok! Because you are a witness of
the state. Which is differentiated to a state
witness under a witness protection program.
Take note, there is a state witness under the
witness protection program and trhe requisites
are the same as under the rules on criminal
procedure, EXCEPT that the approval is given by
the DOJ and communicated to the city or
provincial prosecutor, the downside of a state
witness under the witness protection program
is what? DOUBLE JEOPARDY WILL NOT SET-IN.
Why? Because he has not yet been arraigned,
he has not entered a plea, there is no court of
comptetent jurisdiction. Do you follow? And
there is what? No dismissal without the express
content, acquittal or conviction. Do you follow?
At that point in time there will still be NO
DOUBLE JEOPARDY.
Now my next discussion point would be this.
Yesterday I discussed amendment in civil cases
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
and I touched on substitution but I did not
touch on amendment. Ok!
CAN AN INFORMATION BE AMENDED? I am
referring to RULE 110 14. The answer is YES!
1. BEFORE PLEA, both as a matter of
form and substance;
2. take note AFTER PLEA but only as a
matter of form.
But it should not stop there; I want to be very
clear. It should not stop there. Sir it is a matter
of form! NO! IT IS A MATTER OF FORM FOR AS
LONG AS IT WILL NOTE PREJUDICE THE RIGHTS
OF THE ACCUSED. It could be a matter of form
but it will prejudice the rights of the accused
then it will not be allowed by the court. Sinabi
mo, sir nagkamali lang typographical error, yung
edad nung victim hindi siya ano...19...17 pala!
Ay hindi! That would prejudice the rights of the
accused. Do you follow? Because the penalty
will be greater if the same is amended. Do you
follow? So after plea, take note that YES as to
matter of FORM for as long as it will not
prejudice the rights of the accused.
Next, hindi ko sainyo didiscussin ang sufficiency
of information but I would want you to bear this
in mind class i-memorize niyo yung 6 kasi
kapag alam niyo yung 6 pasok yan hangga't
12. So kelanga memoryado niyo yan! Ok
because the succeeding sections are bonly
descriptions of 6.
Let me discuss the THREE-FOLD DUTY OF A
PROSECUTOR:
1. to CONDUCT PRELIMNARY
INVESTIGATION;
2. to PROSECUTE THE CASE, because
under 5 RULE 110 a criminal case
is under his direct control and
supervision; and
Page 76 of 101
3. CONDUCT INQUEST PROCEEDING.
Unahin ko muna yung preliminary investigation.
Sir, bakit mo inuna yung preliminary
investigation? Kasi class kapag diniscuss ko yung
1 ng RULE 110 kailangan ko i-discuss ang RULE
112. Ganun yun, so I have to discuss that. So
unahin ko itong preliminary investigation. Class
ito, after this discussion it is easier for you to
understand preliminary investigation. Ganito
lang ka-simple yun. Hindi natin pahihirapan.
Ganito ang tandaan niyo. Ask yourself "IF A
CRIME WAS COMMITTED IN MANILA OR IN A
CHARTERED CITY WHERE WILL YOU FILE THE
CASE. Dyan muna tayo. If a crime is committed
in Manila, it is a chartered city or Quezon City
where will you institute the action?! First
question. First sub-question, IF IT REQUIRES
PRELIMINARY INVESTIGATION WHERE WILL
YOU FILE? Office of the prosecutor. Tama yun!
Second sub-question, IF IT WILL NOT REQUIRE
PRELIMINARY INVESTIGATION WHERE WILL
YOU FILE IT? Office of the Prosecutor. Do you
follow?!
NOT REQQUIRING PRELIMINARY
INVESTIGATION FALLING UNDER THE RULES ON
SUMMARY PROCEDURE WHERE WILL YOU FILE
IT? Office of the Prosecutor. Madali di ba?! Yun
lang muna para hindi magulo. Do you follow?
Kapag may krimen sa Manila o kung saang
chatered city ang magfile ka lang ng kaso
assuming that he is not caught in flagrante
delicto, ibang usuapan yun inquestbyun, ang
usapan dito consummated later nagfile, are we
clear?! In this instance, Manila or chartered city
where will you file? Whether requiring PI, NO PI
or under the rules on summary procedure, IN
THE OFFICE OF THE PROSECUTOR. Maliwanag!
Now, dito naman tayo sa outside of Manila or
IN THE PROVINCES. Ok liliwanagin ko
REQUIRING PRELIMINARY INVESTIGATION
WHERE WILL YOU FILE? Office of the prosecutor
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
because today only the office of the prosecutor,
ombudsman, regional state prosecutor, state
prosecutor can conduct PRELIMINARY
INVESTIGATION. You cannot file it in court. Do
you follow? So even in the provinces you file
only in the office of the prosecutor, if it requires
PI.
The next question NOT REQUIRING
PRELIMINARY INVESTIGATION WHERE CAN YOU
FILE IT, IN THE PROVINCES? You could file either
before the office of the prosecutor or before
the MTC. I would like to be very clear with that
MUNICIPAL TRIAL COURT. You could file it
before the office of the prosecutor or municipal
trial court. WALA NAMANG REQUIREMNT NG
PRELIMINARY INVESTIGATION RIGHT?!
NOT REQUIRING PRELIMINARY INVESTIGATION
AND FALLING UNDER THE RULE ON SUMMARY
PROCEDURE, WHERE WILL YOU FILE? Same,
either MTC or office of the prosecutor.
Maliwanag?! Yun lang yun. So kapag tinanong
kayo bear that in mind, the question where will
you file, chartered city? Lahat yan prosecutor
class. However class, this is now the time to
disitinguish, iba na to. Kasi class, we as lawyers
filing in the office of the prosecutor, we only
think of SAAN KO I-PAFILE? Do you follow?! But
the procedure that is the problem of the
prosecutor but as a student you have to know
that, as a student who will take the bar exams
you have to know that.
Now let us try to understand preliminary
investigation, ganito lang yun ka-simple. The
entire provision of preliminary investigation in
RULE 112 3. Yung buong yan ah! Class yung
buong yan! Kapag sinabi kong yung buong yan,
kasama yung pagsubscribe sa piskal. Do you
follow? Or in his absence or unavailability,
before a notary public or any person authorized
to administer oath kasama yun and after that
raffle, issuance of subpoena and complaint and
filing of counter-affidavit, yun ang PI in the
simpliest way I could present it to you. Do you
Page 77 of 101
follow? Mahaba yung provision, basta pinag-
require ng counter-affidavit PI yun!!! May PI. Do
you follow?! Eh sir, paano yung may reply-
affidavit, may rejoinder, sa practice na yun.
Hindi yan required sainyo ngayon but some
prosecutors allow the parties to file that. Are
we clear?!
The next question now is HOW ABOUT SIR NOT
REQUIRING PRELIMINARY INVESTIGATION?
WHAT WILL APPLY? Sir may counter-affidavit.
ONLY RULE 112 3(a) will apply. Ok?! Yun lang.
The same will apply for summary procedure not
requiring PI. Yung 3(a) lang nakita niyo yun?
Hangga't doon lang s a pagsubscribe. Do you
follow? That is the procedure to be observed by
the prosecutor when there is no preliminary
investigation required. Are we clear? Bearing
this is mind let us now touch on...iwanan ko
muna yun mamaya na ako sa mga warrants.
Tandaan niyo yan ha! Didiscussin ko yun
warrants in relation to that later on.
HOW ABOUT PROSECUTION IN COURT? The
prosecutor has what? COMPLETE CONTROL
AND DIRECTION OF A CRIMINAL CASE. What
does that mean? He has to be there. If he is
ABSENT as a GENERAL RULE, can the criminal
case proceed? NO! All of those criminal cases
will be what? CANCELLED AND RE-SCHEDULED
AT A FUTURE TIME. Sir, ganun ba yun? OO!
Unless, according to 5 you are able to secure a
certification from the chief of the prosecution
office allowing you to prosecute even in the
absence of the public prosecutor. Pwede yun
but you have to secure a certification. So the
GENERAL RULE is CRIMINAL CAE IS UNDER THE
DIRECT CONTROL AND SUPERVISION OF THE
PUBLIC PROSECUTOR.UNLESS, you are able to
secure a certification from the chief of the
prosecutor. Are we clear?!
The THIRD DUTY IS INQUEST! The provision non
inquest is found under RULE 112 6. If your
provision tells you it is 7 that is an old code. So
kapag 7 pa yung inquest mo your holding an
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
old code because today it is already 6. Please
take note of this class! A few items on inquest
only OFFENSES THAT WOULD HAVE GONE
THROUGH PRELIMINARY INVESTIGATION WILL
GO THROUGH INQUEST. Tandaan niyo yun look
at the provision, only those offenses that would
have gone through preliminary investigation
wiil go to inquest. What are those? At least 4
years, 2 months and 1 day. Yun yun! Kapag mas
mababa dun ang penalty, hindi ini-inquest yun.
Kung may pulis dito, makikipagtalo sa akin
mamaya. Sir ang tawag dun inquest! Yun ang
tawag niyo. Hndi inquest yun! Ang gagawin mo
kasunod kapag kulong piyansa. Ganun yun, do
you follow.
When you talk of offenses that requires
preliminary investigation, that will have to go
through inquest. What happens is you get
arrested, you will be placed inside. Ganun muna
and then after a few hours or kung madaling
araw na in the morning, you will be placed on
inquest. Ok!
IS AN INQUEST PROCEEDING A PRELIMINARY
INVESTIGATION? NO! It is not a prelimnary
investigation.
WHAT IS THE FUNCTION THEN OF AN INQUEST?
An inquest is a determination of the prosecutor,
whether there is sufficient evidence to hold you
or to detain you upon a proper charge or to
release you for further preliminary
investigation.
WHAT DO I MEAN BY FURTHER PRELIMINARY
INVESTIGATION? Ang mangyayari dun, parang
regular filing. Parang hindi ka naaresto na
gumgawa ng krimen. Sin sir yung complainant?
Eh di yung pulis! A competent person
considering it is a public offense. Do follow?!
Unless, it is a private offense. Kahit na nakulong
ka nahuli ka. Na-inquest ka, sab ng piskal
release to. Kapag sinabi ng oiskal naku malakas
to sige kulong mo yan. Kulong mo yan at
sampahan na natin. Magpprepare ng
Page 78 of 101
information yun. Do you follow?! But he could
still ask for what? Preliminary investigation but
he has to waive ARTICLE 125 of the Revised
Penal Code. But if in the same time if it is a
bailable offense, he could ask for bail. So class
please bear that in mind. If the prosecutor says
release it does not mean dismissed. If the public
officer says release, it means that the complaint
made by the arresting officer will now be filed
before the office of the prosecutor and will go
thorugh regular preliminary investigation that is
the process.
We have discussed the three-fold duties of a
public prosecutor ok. Now, let me touch on the
civil aspect of a criminal case. Just a few items
here class, the first that I would like you to
touch on is, AN INDEPENDENT CIVIL ACTION
NEED NOT BE RESERVED.
IF THERE IS A QUALIFYING CIRCUMSTANCE,
WHAT IS THE RULE? You have to allege it in the
information. Otherwise it will not be considered
by the court.
HOW ABOUT A GENERIC AGGRAVATING
CIRCUMSTANCE, SHOULD IT BE ALLEGE TO BE
CONSIDERED BY THE COURT? YES, that is the
present rule. That has been asked in the 2005
bar exams. Even a generic aggravating
circumstance should be alleged in the
information to be taken against the accused.
So, DO YOU NEED TO RESERVE AN
INDEPENDENT CIVIL ACTION? NO! No need to
reserve, this is Article 31, 32, 33 and 2176 of the
Civil Code.
Class please bear in mind also PREJUDICIAL
QUESTION. For the longest time there is no
question on prejudicial question and what are
the minimum requirements of a prejudicial
question:
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III

1. the civil action which should have 1. You were caught while
been instituted ahead of the COMMITTING, ABOUT TO COMMIT
criminal action; OR HAS JUST COMMITTED, the
magic phrase "IN HIS PRESENCE".
2. the issue in the civil action is Do you follow? In his presence. Ibig
determinative of the guilt or sabihin within his view, of the
innocence of the accused. arresting officer, in his presence.
Ok!
Ok! WHAT IS THE EFFECT? WHAT IS SUSPENDED
IS IT THE CIVIL OR THE CRIMINAL? The criminal 2. the second subsection there in 5
case will be suspended not the civil. says, what? THE CRIME HAS JUST
BEEN COMMITTED, hindi kasama
CAN YOU APPLY FOR SUSPENSION ON THE ang about to and committing, but
GROUND OF PREJUDICIAL QUESTION IN THE just been committed but THERE IS
OFFICE OF THE PROSECUTOR? YES, you could PERSONA KNOWLEDGE BASED ON
file this. PROBABLE CAUSE, there was a
personal assessment. He was not
CAN YOU FILE FOR A SUSPENSION ON there, it was not in his presence but
PROCEEDINGS ON A GROUND OF PREJUDICIAL there is probable cause to believe
QUESTION IN COURT? YES, you could file it also. that he was the one who
committed it. It is no longer
So please take note, not only in the office of the suspicion BUT THE PROBABILITY
prosecutor but also in court, you could a THAT THE PERSON TO BE
ARRESTED
suspension of the proceedings on the ground of BASED ON FACTS AND
prejudicial question. CIRCUMSTANCES IS THE ONE WHO
COMMITTED THE OFFENSE.
Yesterday I discussed filing fees. So I will now
touch on ARREST. For this I will touch on 5 3. He is DETAINED whether
RULE 113 People vs. Laguio. Class i-simplify niyo temporarily or permanently and HE
lang ha, kapag arrest. Kasi ang estudyante ESCAPES. You will have to add to
minsan pag arrest, ang isip lang nila lagi may this...ah sir may addition pa ba yan?
warrant of arrest. ARREST COULD BE UPON A YES!
WARRANT OR WARRANTLESS. Ok! Or
sometimes when they read RULE 113 ang 4. A person who is arrested without a
natatandaanlang niya warrantless. Ok! Now, warrant is RESCUED, there could be
what is the difference? When you talk of an arrest without a warrant - 13 of
WARRANTLESS ARREST, is there already a the same rule.
criminal case which is pending? When you talk
of WARRANTLESS ARREST, is there already a 5. There could also be an arrest
pending criminal case, ha class? WALA! without a warrant if THE ACCUSED
Warrantless nga eh. Nadampot ka in layman's WHO IS OUT ON BAIL attempts to
language, in police lingo. Ikaw ay nadampot na depart from the Philippines without
may ginagawa - WARRANTLESS. Di ba?! Ganun approval from the court, there
yun warrantless. That is 5 of RULE 113 and could be an arrest without a
what does it say? warrant.

Page 79 of 101
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
Now, going to the case of People vs. Laguio this
was the problem, ang nangyari dito, the facts
and circumstances surrounding the case the
question was, was there suspicion that he
committed the offense, was there reason to
believe that he commiited the offense. What
happened? Respondent Wang was just on his
way to his car coming from his apartment and
was about to enter his car when the police
operatives arrested him, searched his person
and commanded him to open the compartment
of the car which was later found to be onwed
by his friend. Is there a reason to arrest him
without a warrant? NO! was he committing?
About to commit? Or has just committed? A will
not apply.
Will B apply? Has just committed and there is a
reasonable ground to believe based on
probable cause that he committed it? NO
Is he an escapee? NO, RULE 113 5 will not
apply.
When you talk class of a warrant of arrest
THERE IS ALREADY A CRIMINAL CASE. Ok!
Therefore, there is already a case, PEOPLE OF
THE PHILIPPINES. Now, bearing this in mind, let
us try to know when the court will issue a
warrant of arrest. Ok! Alamin natin. KELAN BA
MAG-IISSUE ANG HUSGADO NG WARRANT OF
ARREST? Let us try to simplify this, what is the
pertinent provision? The pertinent provision in
RULE 112 5. Ok! Liliwanagin ko to ha, RULE 112
5. Ano requirement? Ito lang yun class ha,
listen to this. I will classify it in this manner: IF
AN INFORMATION IS FILED IN THE RTC, we
presuppose that there was preliminary
investigation, correct? because the penalty in
the RTC exceeds 6 years, so nag-PI yun.
1. Once an information is filed in he
RTC, what should the court do? The
court upon finding of probable
cause ISSUES A WARRANT OF
Page 80 of 101
ARREST, it could issue a warrant of
arrest.
2. the court can DISMISS THE CASE
FOR ABSENCE OF PROBABLE
CAUSE.Sir, bakit ganun? Eh nag-PI
na bakit may determination of
probable cause pa? that is what you
call JUDICIAL DETERMINATION OF
PROBABLE CAUSE. Can the court
dismiss it? YES!
3. the court can REQUIRE FURTHER
PRESENTATION OF EVIDENCE for
him to personally determine
whether or not there exists a
probable cause.
So class, kapag RTC ang kaso chances are
issuance ng warrant yan and once the court
issues a warrant of arrest, it means that THERE
IS INITIAL DETERMINATION OF PROBABLE
CAUSE. You can no longer file a motion for
determination of probable cause because the
court already issued a warrant of arrest. Ok!
Dapat Pina-file yung motion na yun before a
warrant is issued.
Now, let us look at the next discussion point.
How about the MTC. Once an information is
filed in court, what should it do? You have to
listen to this: if the penalty for the offense is AT
LEAST 4-2-1 and therefore went through
preliminary investigation, you follow exactly
what I discussed. Ganun lang! do you follow? If
it went thorugh preliminary investigation,
information is filed, penalty at least 4-2-1, you
follow what I discussed. The court could ISSUE A
WARRANT OF ARREST, THE COURT COULD
DISMISS FOR ABSENCE OF PROBABLE CAUSE
AND THE COURT COULD REQUIRE FURTHER
PRESENTATION OF EVIDENCE. Yun lang, are we
clear?!
WHAT IF THE PENALTY IS BELOW 4-2-1? Can
you follow? Below 4-2-1, BUT NOT FALLING
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
UNDER THE RULES ON SUMMARY PROCEDURE,
the information is filed what can the court do?
Listen to this because this is not usually the
practice in court. This is exactly what the
provision says, if it is asked in the bar exams this
is the answer.
1. If it is below 4-2-1 and not falling
under the rules on summary
procedure the court MAY ISSUE A
WARRANT if he finds based on his
discretion that a warrant should be
issued; or in lieu thereof the court
will issue what? SUMMONS. This is
the ONLY instance that in a criminal
case, summons can be issued. Ok!
2. the court can also DISMISS for
absence of probable cause; and
3. the court can conduct further
hearing.
Now, ok na yun! Punta tayo ngayon sa
SUMMARY PROCEDURE. Those OFFENSES
WHERE THE PENALTY IMPOSABLE DOES NOT
EXCEED 6 MONTHS. Ok! Hindi lumalampas ng
anim na buwan. Ito ang tanong class. Once the
information is filed in court, take note - will it
require preliminary incvestigation? NO! just like
the other one below 4-2-1 not requiring PI. If
the information is filed in court, CAN THE
COURT ISSUE A WARRANT OF ARREST? The
answer is NO! For those not requiring PI and
falling under the rule on summary procedure,
the court will NOT AUTOMATICALLY issue a
warrant of arrest. A warrant of arrest will only
be issued when? If DEPSITE REPEATED NOTICE
for the accused to appear, he failed to appear
only then it will issue a warrant of arrest. This is
not covered by the rules on criminal procedure,
it is covered by the rule on summary procedure.
What time is it? Ah 4! Ok let us have a break.
Class I will be back in less than 15 minutes. Ok!
Baka naman pumunta pa kayo sa Mendiola para
Page 81 of 101
kumainhehe! O sa Espaa O see you in a
while.
This is our last set, last 2 hours. Hopefully we
will cover as much. My last discussion point was
a warrant of arrest, right?! I discussed
warrantless arrest. Now let me touch on a
SEARCH WITHOUT A WARRANT. Ang dami
naman nito(referring to the submitted
questions) para akong singer nito ah. Di ba
ganun yung singerbuti walang dedication
dito!(chuckles) mamaya mamaya bago tayo
mag-uwian. Di ba ganun yun binibigyan ng
napkin tapos babasahin mo yun.
Now let us proceed, my next discussion point is
SEARCH WITHOUT A WARRANTBUT ON THE
SPOT TIP CALLS. What is the rule? For as long as
a search warrant could be obtained you have to
apply for a search warrant, that is the key under
RULE 126. IF YOU COULD APPLY FOR A SEARCH
WARRANT, YOU CANNOT DO A SEARCH
WITHOUT A WARRANT. This is the case of
People vs. Ayanggao. I will give you the facts
then tell me if there should be application for
search warrant. The informant arrives at the
police station at 5AM on August 13, 1999 and
informed the officers that the accused would be
arriving at 6AM, an hour later. Ok! So the tip of
the informant was given 5 in the morning and
the informant said that the accused will be in
the polace designated at 6AM, so a difference
of an hour. The circumstances clearly calls for
an immediate response, this is an example of an
on the spot tip - do you need a search warrant?
NO! To all other pertinent details wer known by
the officers except the date, they coulf not have
applied for a search warrant, besides according
to the this case the search warrant has only
have an effective life of 1o days.
HOW ABOUT A WARRANT OF ARREST? HOW
MANY DAYS? NO! until vacated or set aside, a
warrant of arrest will be in effect. Ok!
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
Let me now touch on the case of Ortega vs.
People. In the determination of exemption of a
child in conflict with the law under 64,
RA9344. As you know below 15 years old, the
offenders are exempt from criminal lliability.
What happens? The case will be dismissed and
the child shall be referred to the appropriate
local social welfare and development officer,
that is what will happen, right?! A child above
15 but below 18 who acted without
discernment will likewise not be liable, right?!
But if he acted with discernment that is a
different story.
Now the question is how do you determine the
age? Is it age at the time of commission or age
at the time of promulgation of judgment?
According to this case of Ortega, what is
controlling with respect to exemtion from
criminal liability of the child in conflict with the
law is not the age at the time of promulgation
of judgment BUT THE AGE AT THE TIME OF THE
COMMISSION OF THE OFFENSE. Ok! Please take
note of that.
The next item I would like to discuss with you is
BAIL. Ok! Dalawa lang class ang didiscussin ko
sainyono three items. The first one is this case
of Mabutas vs. Perillo. Why am I discussing to
you this case? This case discussed and outlined
the need for a hearing on application for bail
and according to this case, the hearing in an
application for bail is MANDATORY. Ok! Let us
look at this.
WHAT WERE THE REQUIREMENTS LAID DOWN
BY THIS CASE? It said: whether bail is a matter
of right or a matter of discretion, THE
PROSECUTOR SHOULD BE GIVEN REASONABLE
NOTICE OF HEARING OR AT LEAST HIS
RECOMMENDATION ON THE MATTER MUST BE
SOUGHT.
The judge is required to observe the following
duties:
Page 82 of 101
1. in all cases whether bail is a matter
of right or discretion YOU HAVE TO
NOTIFY THE PROSECUTOR of the
hearing or REQUIRE HIM to submit
a recommendation;
2. where bail is a MATTER OF
DISCRETION, CONDUCT A HEARING
OF THE APPLICATION FOR BAIL,
regardless whether or not the
prosecution refuses to present
evidence to show the guilt of the
accused is strong;
3. DECIDE WHETHER THE GUILT OF
THE ACCUSED IS STRONG based on
the summary evidence of the
prosecution;
4. IF THE GUILT IS NOT STRONG,
DISCHARGE the accused upon
approval of the bail bond.
You know this but I need to discuss this outside
of this case because for me it is not as accurate.
Ok! It assumes that everything which is a matter
of discretion falls under the determination of
whether or not the evidence of guilt is strong. IT
IS WRONG! Again, with all due respect it is
wrong. Why? When is bail a matter of right?
Tinanong na to sa bar exams when the
examiner was Justice Pardo. Tinanong na to,
WHAT IS THE DIFFERENCE OF BAIL AS A
MATTER OF RIGHT AND A MATTER OF
DISCRETION. Very simple, WHEN IS A BAIL A
MATTER OF RIGHT?
1. All cases falling within the
jurisdiction of the MTC, BEFORE OR
AFTER CONVICTION FOR AS LONG
AS THE ACTION IS STILL PENDING.
Ahbaka sabihin, kahit nap ala
convicted sa MTC pwede
magpiyansa?! HINDI! Kulong ka na
nun di ba! In the MTC, whether
before or after conviction you could
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
apply for bail, meaning baka i-apela
mo pa eh. Do you follow?! Where
else?
2. In the RTC before conviction, where
the penalty is NOT death, life
imprisonment or reclusion perpetua
- that is a matter of right.
I have always given this example to draw my
point, to stress my point so that the students
will not forget the point of bail as a matter of
right in the RTC. Let me give you a classic
example that has had he headlines in the
longest time for the last 3 years or so, the story
of Governor Leviste. You know this story. What
happen there is he was alleged to have killed his
aid. Do you follow? What did his lawyer do? He
surrendered! Correct?! and he applied for bail.
Why? Because he was charged originally of
homicide. If you are charge with homicidethe
penalty is life, death, reclusion perpetua
therefore you are entitled to bail as a matter of
right, maliwanag?! Bail as a matter of right!
Ganun yun! Magaling yung pag-aaral nila dun.
Now, WHEN IS BAIL A MATTER OF DISCRETION?
After conviction in the RTC if the penalty is NOT
death, life imprisonment or reclusion perpetua.
Wala pa tayong pinag-uusapan ditong death,
life, reclusion perpetua ha?! RTC mgaestafa!
Ganyan! Ok! Where the penalty is not life,
death or reclusion perpetua, after conviction.
However class, the fact alone that you are
convicted is not sufficient for the court to
exercise discretion. The fact of its grant or
denial of the bail will depend on other
conditions provided for in 5, if you are a flight
risk, if you are a recidivist, if you are a quasi-
recidivist, if you are a habitual delinquent. So
hindi lang porket na-convict ka ay! Apply ako
ng bail. Do you follow? You will have to show
that none of the conditions enumerated applies
to you because if it does, the judge can opt not
to give you bail. Maliwanag ba?! Yun yung
classic class, a matter of right and a matter of
discretion.
Page 83 of 101
However class, yung sinasabi nila yung 6, 7 and
8 yan sinasabi nila, capital offense. Yun yun
class! Yun yung kadalasang pinaghahalo kaya
they assume when you talk of discretion it is
always determination of the evidence of guilt is
strong. You only make a determination that the
evidence of guilt is strong if the penalty is a
capital offense. When at the time of
commission of the offense and application for
bail, the penalty is what? Death, that includes
aside from death, life and reclusion perpetua.
Do you follow?!
Sa mga ganung sitwasyon class, what do you
do? Most of the time where the penalty is
death, life or reclusion perpetua, ano yun?
These are NON-BAILABLE. Ok! Murder, rape,
what else? Large-scale estafa, pluder yan mga
non-bailable. Yung katulad nung kay GMA kapag
na-file yun, non-bailable yun. Ibig sabihin class
yun, once an information is filed in court you
are not as a rule entitled to bail. Sasabihin
niyosir, that is a constitutional right! YES! You
can apply but for the time being you are not
entitled to bail! Can you follow? That is why you
have to establish that the evidence of guilt is
NOT STRONG against you. The burden of the
prosecution is established when you file an
application that evidence of guilt is strong. Ok!
So there will be a summary hearing. The
prosecutor will be given notice so that he could
give his recommendations and to appear. If the
court grants bail without giving the prosecutor
the chance to recommend or to appear, the
judge could be administratively held liable. Do
you follow?! That is the concept. So you have 3
sets:
1. bail as a MATTER OF RIGHT;
2. bail as a MATTER OF DISCRETION;
and
3. NON-BAILABLE OFFENSES
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
Yun yung ina-apply mo ng PETITION FOR BAIL.
Is ARRAIGNMENT PRE-REQUISITE TO FILING A
PETITION FOR BAIL? NO! Serapio vs.
Sandiganbayan. That has already been
answered in the case of Erap. YOU DO NOT
NEED TO BE ARRAIGNED TO APPLY FOR BAIL.
The very moment there is deprivation of liberty,
you could already apply for bail.
The next point that I would like to discuss is
WHERE TO APPLY? I think this is 17 if not 16 of
RULE 114. Where to apply?
IF IT IS A MATTER OR DISCRETION - you could
only apply for it IN THE COURT WHERE THE
ACTION IS PENDING.
IF THERE IS YET NO CHARGE AND YOU ARE
ALREADY HELD IN CUSTODY - meaning you may
have been caught in flagrante delicto - in the
PROVINCE, CITY OR MUNICIPALITY WHERE YOU
ARE HELD. Do you follow?!
WHAT IF CLASS, THERE IS ALREADY A PENDING
CASE? For example here in Manila and you
were arrested in Manila. Ok! Do you follow?
Ang kaso mo nasa RTC ng Manila, nahuli ka sa
Manila, where will you apply for bail? Your
application for bail will be, THE COURT WHERE
THE ACTION IS PENDING. Kasi sa Manila ka
nahuli dun rin yung kaso mo. Do you follow? IN
THE COURT WHERE THE ACTION IS PENDING OR
IN HIS ABSENCE OR UNAVAILABILITY, BEFORE
ANY RTC OR MTC OF MANILA. Do you follow?
What else? What if you have a case pending in
Manila and you were arrested in Antipolo,
where will you apply for bail? Yes, you could
apply for bail in the court where the action is
pending but you can also apply for bail, before
any RTC of Antipolo. Do you follow? Or in their
absence or unavailability before any MTC of
Antipolo. Are we clear? Yan class abangan niyo,
it could be a source of questions.
Page 84 of 101
Let me proceed with the next item, the
DETERMINATION OF PROBABLE CAUSE BY THE
JUDGE. Ocave vs. Guttierez. If the judge is able
to determine existence or non-existence of
probable cause on the basis of the records
submitted by the investigating prosecutor,
there will no longer be need to order the
elevation of the rest of the records of the case.
What are they trying to tell us? The judge
should have what? A personal, independent
determination of probable cause and in his duty
to conduct probable cause - what should he
do? He should look at the records of the case to
the extent of requiring the prosecutor to
elevate the records, the case os Adaza vs.
Abalos.
Let us look at ARRAIGNMENT. What about
arraignment? Arraignment is waiver to right to
preliminary investigation and the right to
question the irregularity. The very moment a
person is arraigned and enters a plea, HE
WAIVES ANY QUESTION ON IRREGULARITY OF
PI OR EVEN THE VALIDITY OF THE ARREST. The
waiver is tantamount to finding of probable
cause, for this reason there is no need for the
court to determine the existence or non-
existence of probabale cause.
My next question is WHAT IS YOUR REMEDY
FOR AN ACQUITTAL? Kita niyo nagulat kayoSir,
may remedy pa pala yun? Is there a remedy for
an acquittal? People vs. Hernandez. This is
rather an exception more than the rule. In order
that the judgment of acquittal may be
successfully challenged, in a petition for
certiorari. The petitioner must prove that the
trial court in acquitting the accused not only
committed errors of judgment but grave abuse
of discretion, take note of that. Take note of
that! THE REMEDY FOR AN ACQUITTAL IS A
PETITION FOR CERTIORARI, ASSUMING THERE
WAS GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION.
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
Now, let us look at the word EXCLUSIONS. You
remember this? Exclusions! Saan niyo narinig
yan, yang exclusions na yan? That is found in 3
of RULE 119. Oh nakita niyo na? ang haba ano?
What is the use of that provision? Mental
examination of the accused, pedency of other
extraordinary remedies, failure to acquire
jurisdiction of some of the accused, there are
pending other criminal cases, unavailability or
absence of witnesses - WHAT IS THE NATURE
OF EXCLUSIONS? Exclusions will protect who?
THE PROSECUTION from claims for violation of
speedy trial. For example, in one case decided
by the Supreme Court the pre-trial took place
after 8 years, why did it happened considering
the right ot speedy trial? Because the petition
for review was pending for almost 8 years.
Should it be dismissed? NO! do you follow?
These are what you call exclusions - THIS IS
NOT INCLUDED IN THE COUNTING OF THE
PERIODS IN SPEEDY TRIAL.
Now, I would like to call your attention to
SPEEDY TRIAL and when you hear speedy trial
remember the letters V-C-O. oh kita niyo!? May
naisip na naman kayo! Ayan, diyan kayo
magaling ano?! V-C-O is VEXATIOUS,
CAPRICIOUS AND OPPRESSIVE DELAYS.
Class,but if I were you considering that you
have a multiple choice examination
kakabisaduhin ko na rin yung days required,
kakabisaduhin ko na rin yun. Iilan lang naman
yun. Kakabisaduhin ko na yun! Bakit? Eh baka
mamaya magtanong sila dun eh. Kasi hindi na
kayo mahihirapan eh. They
will give the answer it is a matter of choosing.
Let us do some exercises. WHEN SHOULD
ARRAIGMENT TAKE PLACE? Within 30 days from
the time the court acquires jurisdiction over the
person of the accused.
WHEN SHOULD PRE-TRIAL TAKE PLACE? Pre-
trial should take place within 30 days from the
time the court acquires jurisdiction over the
Page 85 of 101
person of the accused but after arraignment.
Ok! RULE 118. Please take note of that.
And ARRAIGMENT TO TRIAL SHOULD BE WITHIN
THE PERIOD OF? O ganyan! Codal yan. Tingnan
niyo sa 6 of RULE 119. Arraignment to trial
should be within the period ofmay magbibigay
sa akin ng 180 dyan, may magbibigay sa akin ng
120. Ano? How many? 80 na lang ngayon!
Because it had lapsed for a number of years
and at this time it is already 80. Do you follow?
So these days are important otherwise if the bar
examination was still in the nature of essay
what I would like you to remember would
simply be vexatious, capricious and oppressive
delays.
In one case decided by the court People vs. The,
the case was postponed for 20 times, the
criminal case for 20 times. What did the court
say? When the accused moved for dismissal on
the ground of speedy trial, what did the court
said: sabi ng court hindi! Bakit? Because they
said, the prosecution made efforts to make sure
that the witnesses were there, they even
applied for a warrant of arrest, sabi ng court. So
you cannot blame the prosecution for inaction,
therefore the rgith to speedy trial was not
violated. Do you follow? So you have to take
note of exclusions and pleas take note of the
days.
The next, let us compare and contrast a
MOTION TO QUASH and a PROVISIONAL
DISMISSAL. What is the difference? Let us look
at this, class mahaba-haba to. This is the case of
Los Baos vs. Pedro a 2009 case. Both are found
in RULE 117, however they made a comparison.
They said, a first notable feature of 8 RULE 117
that is Provisional Dismissal is that it does not
exactly state what a provisional dismissal is, it
does not say. There are no grounds, correct?! it
does not say what provisional dismissal is. The
modifier PROVISIONAL directly suggest that the
dismissal ESSENTIALLY REFERS TO THOSE THAT
ARE TEMPORARY IN CHARACTER, so yun ang
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III

sinasabi. That are temporary in character and information for defects of information.
not dismissals that are permament. Based on defects and defenses So a case could be
the law and jurisprudence, PERMANENT apparent in the dismissed
DISMISSALS ARE THOSE THAT ARE BARRED BY information or provisionally even if
DOUBLE JEOPARDY, by the previous extinction complaint. the information is not
of criminal liability and speedy trial. But class, defective. May be for
kindly take note this pronouncement of the absence of witnesses,
court when they say it is temporary or lack of interest, but
provisional, they did not say that it will attain that is not a ground
permanency. Do you follow?! Our discussion, it for motion to quash.
will become permanent and for that reason Before arraignment. Even when the trial is
cannot be refilled, all they said thus the already on-going.
modifier was provisional, therefore it is There could be a
temporary. To that extent I agree, ok! It is provisional dismissal
provisional. even after
arraignment and when
The second feature is that 8 does not state the trial is on-going.
grounds to lead to a provisional dismissal, this is Stays quashed until Is by its own terms
in contrast with the motion to quash, where revived. A motion to impermanent until the
grounds are specified under 3. Ok! quash if granted, stays TIME-BAR RULE
PROVISIONAL - there are no grounds, MOTION quashed until revived applies. Ayun! Sinabi
TO QUASH - there are grounds. unless it is na nila, it is provisional
prescription, unless it until the time-bar
Third, MOTION TO QUASH - focuses on the is double jeopardy. applies, at which time
consequences of a meritorious motion to it becomes
quash, this feature also answers the question of permanent.
WHETHER QUASHAL OF INFORMATION CAN BE
TREATED AS PROVISIONAL DISMISSAL. I think
more importantly now is the five points IS A DENIAL OF A MOTION TO QUASH
presented by the court, there are five points or REVIEWABLE BY CERTIORARI? As a GENERAL
differences presented by the court: RULE it is NOT REVIEWABLE by certiorari. The
case wil have to be completed before questions
MOTION TO QUASH PROVISIONAL on the motion to quash can be raised.
DISMISSAL
Is filed by the accused At the instance of Now, CONDITIONAL EXAMINATION OF
to question the either the prosecution WITNESSES. Ok! Manguera vs. Risos, this is
efficacy of the or the accused. important because the Supreme Court made a
complaint or very clear pronouncement on how you will treat
information. this conditional examination of witnesses. It is
The form is provided Can be made orally in true according to the Supreme Court that 1
for in 2, these open court. RULE 3 of the RULES OF COURT provides that
requirements of form the rules of civil procedure applies to all actions,
are not required in civil or criminal and special proceedings. In
provisional dismissal. effect it says, that the rules of civil procedure
Asaails validity of the May be grounded on haqve suppletory application to criminal cases.
complaint or reasons other than This is important, the next point however it is

Page 86 of 101
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
likewise true that the criminal proceedings are
primarily governed by the rules on criminal
procedure considering RULE 119 adequately
and squarely covers the situation in the instant
case, we find no cogent reason to apply RULE
23 suppletorily or otherwise. We have
answered the question that I have raised a
while ago. You do not need to apply RULE 23 on
DEPOSITION because there is RULE 119 on
conditional examination of witnesses.
To reiterate as a final point, the conditional
examination of a prosecution witness for the
purpose of taking his deposition should be
made before the court or at least before the
judge where the action is pending. In this
particular case, the court treated conditional
examination as in the nature of deposition in
criminal cases.
To procedd we further, we still have enough
time. Let us look at class the SWEETHEART
THEORY. You know this right?! The sweetheart
theory, People vs. Guillermo. It is AN
ADMISSION OF CARNAL KNOWLEDGE OF THE
VICTIM AND CONSEQUENTLY PLACES THE
ACCUSED THE BURDEN OF PROVING THE
SUPPOSED RELATIONSHIP BY SUBSTANTIAL
EVIDENCE. So a sweetheart theory is an
admission of carnal knowledge but you will
have to establish existence of relationship.
HOW DOES THE LAW TREAT AN AFFIDAVIT OF
RETRACTION? According to this case recanted
testimony is highly questionable because it
could be secured through monetary
considerations. Ok! So the court frowns upon a
recanted affidavit because to them it is usually
by reason of monetary consideration. In certain
cases the Supreme Court had said that IT TAKES
JUDICIAL NOTICE THAT RECANTATIONS OR
RETRACTIONS ARE USUALLY UPON MONETARY
CONSIDERATION. It is dangerous for the court
to reject testimony solemnly given before the
court simply because witnesses changed their
mind.
Page 87 of 101
The next item that I would like to discuss is
People vs. De Leon. I would like to discuss
ILLEGAL SALE OF PROHIBITED DRUGS in relation
to CHAIN OF CUSTODY. Remember class that in
the conduct of an arrest, there is an incidental
search. Do you follow?! A search as an incident
of a valid arrest. I will discuss this in the case of
People vs. De Leon. Ok! WHAT ARE THE
ESSENTIAL ELEMENTS OF ILLEGAL SALE OF
PROHIBITED DRUG:
1. the accused sold and delivered a
prohibited drug to another; and
2. he KNEW that what he sold and
delivered was a prohibited drug.
WHAT IS THE CORPUS DELICTI IN A DRUG CASE?
It is the POSSESSION or the ILLEGAL DRUG. In a
murder case or a homicide case, what is the
corpus delicti? It is the body of the victim. Do
you follow? Now, let us look at the CHAIN
OF CUSTODY RULE. Ok! This has always been a
source of conflict between judges and the
police enforcers. Ok! Why? Because they have a
very strict rule in 21 of RA 9165 - DANGEROUS
DRUGS LAW. The chain of custody requires that
the substance bought during the buy-bust
operation is the same substance offered in
court. Do you follow? THAT WHICH WAS TAKEN
AT THE SCENE, IS THE SAME SUBSTANCE
PRESENTED IN COURT. Now, there is a duty
here in 21 - WHAT IS THE DUTY OF THE
ENFORCEMENT OFFICERS OR THE POLICE
OFFICERS? This is very hard, for those of you in
the police force you know how hard it is, THERE
SHOULD BE A PHYSICAL INVENTORY. Where? AT
THE SCENE WHERE THE SEARCH AND ARREST
WAS EFFECTED, IN THE PRESENCE OF THE
ACCUSED, IN THE PRESENCE OF THE MEDIA IF
POSSIBLE, IN THE PRESENT OF THE
REPRESENTATIVE OF THE DOJ. Yan yun rule!
Class ha! Baka itanong yan sainyo, ok?! Pero
class this is usually rejected by police enforcers,
bakit? Bakit ka naman gagawa ng inventory
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
kung saan mo sila nahuli, kadalasan doon sila
napapatay, di totoo yun! Dun sila napapatay,
yan ang reklamo nila because I lectured before
the PDEA and the Judges on this, anong
nangyari? Sir, doon kami napapatay, doon yung
mga kasama naming napapatay. Bakit? Di
babalikan nung nahuli. Ok so this is the cource
of problem because some police officers
instead of doing an inventory at the scene of
the crime or where the buy-bust operation was
conducted in the presence of media or DOJ,
they bring it somewhere else, they bring it to
the plaza or sometimes they bring it to the
police station because the requirement is, it will
be photographed and it will be signed. Kung
sachet siya kailangan pirmado din yun para
alam na that is the same substance taken at the
scene of the buy-bust operation.
But IS THAT AN IRON-CLAD RULE? Are there
exceptions? This is what the provision says, the
non-compliance with this requirements under
justifiable grounds, as long as the integrity and
the evidentiary value of the seized items are
properly preserved. If you are to remember
something this is what you have to remember
as exception. The exception to that rule on non-
compliance in the inventory at the scene of the
buy-bust operation is this, you will have to
establish the integrity and the evidentiary value
of the seized items as properly preserved by the
apprehending officer, that was the declaration
of the court. A close examination of the law
reveals that it admits an exception and the
court said that, that is the exception the
preservation of the integrity and evidentiary
value of the seized items as the same would be
utilized in the determination of the guilt or
innocence of the accused .
Let us look at ANIMUS POSSIDENDI. What is
animus possidendi here in this case? The finding
of dangerous drug in the house or within the
premises of the house of the accused is prima
facie evidence or knowledge of animus
possidendi and is enough to convict in the
Page 88 of 101
absence of satisfactory explanation. So that is
animus possidendi, not necessarily in your
possession or physical possession but may be
where? Within the premises of the house of the
accused or in his house.
Ok! Next let us look at POSITIVE
IDENTIFICATION. Peple vs. Abella. CAN POSITIVE
IDENTIFICATION BE OVERCOME BY BARE
DENIAL? NO! Bare denials and uncorroborated
alibis cannot overcome positive identification.
Alibi is unacceptable when there is positive
identification of the accused by a credible
witness. Ok! In order for alibi to stand, ito ang
sabi ng court, sabi ng court para magamit mo
yung alibi you have to comply with this
standard, IT IS NOT ENOUG TO PROVE THAT
THE ACCUSED IS SOMEWHERE ELSE, na nasa
ibang lugar siya during the commission of the
crime, IT MUST ALSO BE SHOWN THAT IT
WOULD HAVE BEEN IMPOSSIBLE FOR HIM TO
BE ANYWHERE WITHIN THE VICINITY OF THE
CRIME. Again, it is not enough for the accused
to shaow that he is somewhere, kadalasan
ganun ang alibihindi nandun ako. Do you
follow? But he has likewise to show that it
would be impossible for him to be there, within
the vicinity of the crime.
Let us now proceed on the case of Samuel Lee
vs. KBC Bank a 2010 case. Class this is important
because of discussion on INDEPENDENT
PERSONAL ASSESSMENT OF THE JUDGE. Kapag
ang eksaminer niyo medyo praktisado baka mga
ganitong tanong ang matanggap niyo. Ano
yun?! Sir, there is a motion to withdraw
information in court. Do you follow? So bakit
pina-withdraw? Eh kasi ang recommendation ng
office of the prosecutor o ng DOJ dismissed. So
ang gagawin ng public prosecutor, a motion to
withdraw information. Do you follow?! Yun ang
pinagtatalunan dito. What is in dispute id the
order issued by a judge, he issued an order
granting the motion to withdraw ito lang sinabi
niya class, pakinggan niyo to ha! The motion to
withdraw information filed by the prosecution
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
is hereby granted. Ayan! And the two
informations for the crime of estafe are hereby
withdrawn from the dockets of this court.
Ganun lang! That is one paragraph, the other
paragraph reads: after an in depth scrutiny of
the arguments raised by the prosecution and
private complainant, the court finds the
contention of the prosecution to be sufficient
and meritorious, yun lang! Is that sufficient? Ol!
So that order was questioned, sabi bakit mo
grant yan? What is the duty of the judge? THE
JUDGE SHOULD CONDUCT AN INDEPENDENT
ASSESSMENT OF THE MERITS OF THE CASE
BASED ON THE AFFIDAVITS AND COUNTER-
AFFIDAVITS AND DOCUMENTS APPENDED TO
THE INFORMATION. Do you follow? If it is not
possible, he could ask for copies from the office
of the public prosecutor. So here, the court
noted kulang. It is not enough class to say that
yes it is granted it is sufficient, the judge should
have what? An independent personal
assessment and he should have a discussion on
why he feels the case should have been
withdrawn, this is the standard in withdrawal of
cases. I have seen judges simply do a one-liner
on approving a motion to withdraw, this is the
standard, the judge should make an idependent
personal assessment.
Now, in fact they said they should embody the
assessment in the written order disposing the
motion, not only saying that we have consider
the arguments and we have seen the
arguments to be sufficient because the concept
here is, once the case is already in the court
who is in control of the case? The judge, it is for
him to dismiss or not the case, that is why the
prosecutors only fle a motion to withdraw.
Remember that, there should ne an
independent personal assessment of the judge
in cases of a motion to withdraw filed befor
him. Ok!
Now, let us look at another case Hilario Soriano
vs. People, this is in connection with the Rural
Bank of San Miguel. Ok! The question here class
Page 89 of 101
is fairly simple. I will simplify it for you, the BSP
transmitted affidavits of its investigating
officers to whom? To the office of the
prosecutor, transmit nila. So kinontest yun, sabi
nila letter-transmittal lang yan eh, that cannot
be a basis of a complaint. Yes there is letter-
transmittal but there are affidavits appended
thereto, what did the court say? The letters
merely transmitted for preliminary investigation
the affidavits of people who have personal
knowledge, we rule that these affidavits not the
letter transmitting initiated the preliminary
investigation, these are merely transmittals but
what is important is the affidavits and
considering the affidavits where duly subscribed
before a notary public, these are valid affidavit-
complaints that will commence the action. Yun
ang sabi ng court.
Ok! In a similar vain, the NBI had a similar case
whereinthey only forwarded a transmittal
together with the affidavits of those who have
personal knowledge, is that a proper affidavit
for commencement of the action? YES! In this
particular case, another point which is subject
of controversy is the information. Sabi niya
insufficient ang information. Why? He moved to
quash the information because according to
him, yes there was violation of the DOSRI rule,
alam niyo ba yung dosri? Sa mga bank hindi
pwedeng mangutang ang director, officerhindi
dapat sila nangungutang pero nangungutang pa
rin sila. Sabi nial, yes violation yan ng dosri but
there is no estafa through falsification of
commercial documents because he said
according to the information, it is not I who
borrowed the money. So what is in dispute here
is the information. Was there a valid
information? That is why there was a motion to
quash. Anong sinabi ng court dito, sandali!
Doon sa 83 ng Banking Law, sinabi doon a loan
could either be direct, indirect for himself or as
representative and looking at the information it
says, that the loan was obtained indirectly by
the accused and the funds were received by
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
him. The court said, the information was proper
and not defective.
Let us look at now an OUT OF COURT
IDENTIFICATION. Ano ba sir yung out of court?
Yung mga police line-up type. The case of Vidar
vs. People. The question is WHETHER AN
OUT OF COURT IDENTIFICATION IS POSITIVE OR
DERIVATIVE. What are the rules that you have
to consider? You have to consider the TOTALITY
OF CIRCUMSTANCES and the court has
enumerated four:
1. witness' opportunity to view the
criminal at the time of the crime;
2. the witness' degree of attention at
the time;
3. accuracy of any prior description
given by the witness;
4. level of certainty of the
identification;
5. length of time between the crime
and identification;
6. the suggestiveness of the
identification.
Class, what the court said here is IF YOU
COMPLY WITH THE PARAMETERS, THE OUT OF
COURT IDENTIFICATION IS PROPER. But even if
the out of court identification is irregular,
meaning it suggested who the accused is or
who the suspect is, for as long as there is
positive identification in court it validates the
out of court identification. Do you follow? For
as long as there is proper court identification in
the course of the proceedings in court then it
validates the otherwise defective identification.
Now, I will touch on a few items on evidence.
Let us touch on JUDICIAL NOTICE. Ano na bang
oras? Oh 5 kita niyo mas isang oras ka pa.
Page 90 of 101
Anong oras tayo uuwi? 6 o'clock. Corinthian
Garden case. What is the rule when you talk of
judicial notice? The provision on judicial notice
is where? RULE 129. Ok tandaan niyo yan ha!
RULE 129. Class ang evidence konti lang yan eh
128-133. Ah sir, 134? Wala na yan! That has
been superseded by RULE 24. Ah sir ganun ba?!
OO!(chuckles) wala na yan! Yang 134 na yan ay
wala na, pinalitan na yan nung 24 na diniscuss
ko kanina.
Judicial notice is found in RULE 129, what do I
want you to bear in mind when you talk of
judicial notice? THERE IS NO NEED OF
INTRODUCTION OF EVIDENCE. Yun yun!
WHOSE NOTICE IS THAT? That is the notice of
the judge! That is not your problem as a party-
litigant, that is for the judge to take notice of.
Ok! Without introduction of evidence. Look at
that 1 ok! And class I will not go through the
process of enumerating what is mandatory. But
let me give you the case of Corinthian Gardens,
what does it say? A COURT CANNOT TAKE
JUDICIAL NOTICE OF FACTUAL MATERS. Factual
matters because, these are not settled or
studied, in fact these are disputed matters.
CAN THE COURT TAKE JUDICIAL NOTICE OF AN
ORDINANCE? The case of Social Justice Society
vs. Atienza. The ordinance subject of dispute is
an ordinance adopting the Manila
Comprehensive Land Use and Zoning Regulation
of 2006. Is the court required to take judicial
notice? This is what the court said: while the
court's are requied to take judicial notice of law
enacted by Congress, the RULE WITH RESPECT
TO LOCAL ORDINANCES IS DIFFERENT. Even
when there is a statute that requires the court
to take judicial notice of municipal ordinances, a
court is not required to take judicial noyices of
ordinances that are not before it and to which it
does not have access. Laws enacted by
Congress, YES! But ordinances, if it is not within
their access it is not bound ta take judicial
notice. In this case they even cited RA409 50,
allowing the courts to take judicial notice of
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
ordinances passed by the City of Manila. Take
note, dinisregard ng husgado yun. Sabin g
husgado, pwede ordinances if it is within the
access of the judges but if not they cannot take
judicial notice.
HOW ABOUT JUDICIAL ADMISSIONS? Do you
need to introduce evidence when you talk of
judicial admissions? NO! that is why class if you
wpould note, judicial notice and judicial
admissions are under the same rule. They are
under the same rule because there is no need
of introduction of evidence.
Now, let us look ta the KINDS OF JUDICIAL
NOTICE:
1. mandatory;
2. discretionary, what are
discretionary?
- of public knowledge ;
- of unquestionable
demonstartion;
- that which the judge ought to
know by reason of his judicial
function.Sir, DO YOU NEED TO
INTRODUCE EVIDENCE?NO!
discretionary, meaning the
court can decide whether to
take judicial notice if it is of
public knowledge, right?! Or if
the judge ought to know by
reason of his judicial function.
Here there is some sort of
overlapping when it comes to
what the judge ought to know
by reason of his judicial
function. But pleas bear in
mind, the lesser important a
circular becomes or
administrative circulars in
departments or administrative
Page 91 of 101
agencies of the government,
the lesser that it becomes a
matter of judicial notice. In the
same manner as roads,
important rivers, the lesser
importance of that road, the
lesser it becomes of judicial
notice.
3. any matter could be subject of
judicial notice - when hearing
necessary. ok! The hearing there is
for what purpose? Not presentation
of evidence but to call the attention
of the court.
- BEFORE JUDGMENT is
rendered, any matter could be
subject of judicial notice
meaning full moon ba sa araw
na ganito? umuulan bas a araw
na ganito? Do you follow? The
court could take judicial notice
of that, you could call the
attention of the court.
- However, ONCE THERE IS A
JUDGMENT you cannot just ask
the court to take judicial notice.
The court will only take judicial
notice if it will change the
outcome of the case.
Now, let us look at the BEST EVIDENCE RULE.
This is the case of Edsa Shangrila resort. Class
this case merely presented best evidence and
likewise secondary evidence.
WHAT IS THE BEST EVIDENCE RULE? Where the
CONTENTS OF THE DOCUMENT IS THE
SUBKJECT OF THE INQUIRY you will have to
present the original, yun yun! That is the best
evidence rule. When the contents thereof is the
subject of the inquiry, you will have to present
the original. Stated otherwise, when the
contents of he document is not the subject of
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
the inquiry, you could simply present a copy in
court because the contents are not the subject
of the inquiry.
Now, if we say that there are instances where
the originals are not available. You know that
right?! I will not give you the exceptions, it will
eat much of our time but I will touch on the
secondary ok!
WHAT IS SECONDARY EVIDENCE? if the original:
1. has been lost or destroyed;
2. if it is in the custody of the adverse
party.
In that case class you could present a
1. copy;
2. recital in some authentic
documents; or
3. testimony of witnesses
WHAT IF THE ORIGINAL IS RECORDED IN A
PUBLIC OFFICE OR IN THE CUSTODY OF A
PUBLIC OFFICER? Do you need to present the
original in court? NO! it is sufficient to present
simply a certified true copy or a certification.
A while ago this morning I gave the requisites of
secondary evidence when the original is in the
custody of the adverse party.
HOW ABOUT SECONDARY EVIDENCE WHERE
THE ORIGINAL HAS BEEN LOST OR
DESTROYED?
You will have to ESTABLISH:
1. the existence;
2. the fact that it has been lost or
destroyed; and
Page 92 of 101
3. that due diligence was effected to
procure it.
Let us look at the case of Garcillano vs. House of
Representatives. This is in connection with
ANTI-WIRE TAPPING RA4200.
WHAT IS THE GENERAL RULE WHEN IT COMES
TO RA 4200? I think you were aware of this, the
Garci tapes, right?! Illegally wire tapped
material is inadmissible, unless of course you
have a court order for its presentation.
However, in this particular case the Supreme
Court made a very narraow exception in
addition to what is provided for under RA 4200.
What does it say? As a very narrow exception:
1. THE WIRE TAPPED MATERIAL MAY
BE USED AND IS ADMITTED IN A
JUDICIAL PROCEEDING
FOR
PROSECUTION OF VIOLATION OF
RA4200. Do you follow? The wire
tapped llegally obtained
information can be presented in a
judicial proceeding, where a person
is prosecuted for violation of
RA4200;
2. in a legislative investigation in aid of
legislation whose purpose is
precisely TO ADDRESS ILLEGAL
WIRE TAPPING. Although class in
this case, it could be used to aid
Congress in its legislative
investigation. It cannot be used in
the prosecution of electoral fraud.
Do you follow? Yes, you can use it
in aid of legislation. Alam na alam
mo narinig ng bayan yan na
talagang may kalokohan but it is
inadmissible for purposes of
prosecution in connection with
electoral fraud.
Let us proceed to another item. What is that
another item? PAROL EVIDENCE RULE. What
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
about the parol evidence rule? The basic rule is,
THE DOCUMENT IS THE MONUMENT OF WHAT
THE PARTIES HAVE AGREED UPON. Everything
that you have agreed upon is in the document
that you have executed, you cannot go outside
of it. If you go outside of what is in the
document you will be in violation of the parol
evidence rule.
HOW CAN YOU PRESENT EVIDENCE OUTSIDE
OF WHAT IS IN THE DOCUMENT? That is
the question answered in the case of ACI vs.
Coquia yun ang tanong. Papaano? And this
is very important class it is in the code but it is
cited in the case. YOU HAVE TO PUT IT IN ISSUE
IN THE PLEADINGS - you could modify, explain
or add for as long as you put it in issue in
the pleadings. If you did not put it in issue in
the pleadings, you cannot present the
exceptions to the parol evidence rule. Ok! And
class if I can
give you a few of the exceptions, you have:
1. when the document is not
reflective of the true agreement of
the parties;
2. as to matters of validity;
3. mistake of fact;
4. intrinsic ambiguity;
5. imperfection.
Now,let us look at this case of Chua-Gao vs.
Chua a 2008 case that explains to us whether or
not you need to present an original, in a case.
WHERE THE ISSUE IS ONLY AS TO WHETHER
THE DOCUMENT WAS ACTUALLY EXECUTED
OR EXIST OR THE CIRCUMSTANCES RELEVANT
TO OR SORROUNDING ITS EXECUTION, the
best evidence rule DOES NOT APPLY. Are we
clear? The best evidence rule will not apply
when it is a question of execution, its
existence or the circumstances surrounding its
existence, you do
not need to present the original. In fact the
court said here that, the presentation of copies
of the transfer certificate of title and the deeds
are enough, you do not need to present the
original.
The next question that I would like to touch on
would be in the case of Sansan vs. NLRC. I think
the pertinent provision here is RULE 128 2,
what is that? The RULES ON EVIDENCE APPLIES
IN ALL COURTS IN THE PHILIPPINES EXCEPT AS
OTHERWISE PROVIDED FOR BY LAW. Do you
follow? NLRC is not a court, it is a quasi-judicial
agency. The question presented before the
Supreme Court was CAN THERE BE
PRESENTATION OF NEW EVIDENCE ON APPEAL
IN THE NLRC AND NOT WITH THE LABOR
ARBITER. So the documents were not presented
at at the labor arbiter but at the NLRC on
appeal. What did the Supreme Court say? The
submission of additional evidence before the
NLRC is not prohibited by its new rules of
procedure, after all rules of evidence prevailing
in courts of law or equity are not controlling in
labor cases. The NLRC and labor arbiters are
directed to use every and reasonable means to
ascertain the facts, the submission of additional
evidenc on appeal does not prejudice the other
party for the latter could submit counter-
evidence.
You know class that is the difficulty later on, if
you will note in the NLRC. You could present
just anything. You photocopy, you fold it your
pocket, then you attach it to the pleading it is
ok because technical rules of evidence do not
apply. As they say, even if you present it there,
there is an opportunity to present counter-
evidence.
The next question presented in that case is this
PRESENTATION OF PHOTOCOPIES. Sabi niya
bakit naman photocopy lang presenta mo, hindi
naman original, considering the best evidence
rule, correct?! the court said, even assuming
that petitioners were given mere photocopies
Page 93 of 101
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
again we stress that proceedings before the
NLRC are not vovered with technical rules of
procedure, as observed by regular courts. Do
you follow? That is why if you recall your
administrative law. What does the Supreme
Court usually do in adapting decisions of quasi-
judicial agencies, they have special skills,
knowledge and expertise therefore the
Supreme Court sees no reason to disturb the
findings of facts by quasi-judicial agency.
Now, let us try to answer this question - CAN
AN EVIDENCE BE CONSIDERED AFTER THE
DECISION AND NOT FORMALLY OFFERED? Ok!
Basic rule this has been asked repeatedly in bar
exams, no formal offer. The answer is NO and
that is the GENERAL RULE. However class, let
me call your attention to another case involving
the same matter. The case of Rafael Dizon vs.
Court of Appeals citing the long standing rule of
Vda. De Oate. What is this case of Vda. De
Oate? This particular case only declare
together with some other cases, that EVEN IF IT
IS NOT FORMALLY OFFERED BUT IT IS MADE
PART OF THE RECORD, THE COURT CAN
CONSIDER THE SAME. However class these are
what? According to the case of Rafael Dizon
MERELY EXCEPTIONS TO THE GENERAL RULE.
WHAT IS THE GENERAL RULE? No evidence will
be considered by the court UNLESS FORMALLY
OFFERED the Vda. De Oate case is just an
exception.
Now, let us look at POSITIVE IDENTIFICATION
vis--vis ALIBI, People vs. Bayot. Settled
jurisprudence is that, CATEGORICAL AND
CONSISTENT POSITIVE IDENTIFICATION ABSENT
ANY SHOWING OF ILL-MOTIVE ON THE PART OF
THE EYE WITNESS PREVAILS OVER DEFENSES
OF DENIAL AND ALIBI.
Let us look at ADVERSE PARTY WITNESS. Ok! I
have mentioned that a while ago. Adverse party
witness that is found in RULE 132 13. It is in
Page 94 of 101
the same paragraph as a hostile witness.
Tingnan natin to class. What does it say?
WHO IS AN ADVERSE PARTY WITNESS? The
adverse party witness is the other party who
you want to call on the witness stand, that is an
adverse party witness. When you say ADVERSE
PARTY'S WITNESSES those are the witnesses of
the other party but when you say ADVERSE
PARTY WITNESS I am the plaintiff he is the
defendant, he is the adverse party witness.
CAN I CALL THE OTHER PARTY ON THE STAND?
Yes! But I should have served written
interrogatories consistent with RULE 25.
WHO IS A HOSTILE WITNESS? May nagkonsulta
sa akin hirap na hirap akong magdiscuss, kasi
sabi niya osabi niya sa akin eh papaano yang
hostile na yan eh gusto niya ganito raw yung
ano ginawa ng kalaban niya, his opponent even
before presenting his witness said, your honor I
will be presenting a hostile witness(the class
chuckles) Oh! Marunong kayo, marunong kayo!
Tama yun! A HOSTILE WITNESS ONLY BECOMES
ONE ONLY AFTER THE COURT DECLARES HIM
TO BE A HOSTILE WITNESS because he has
misled you, his position is adverse. Do you
follow?! All of these things makes him a hostile
witness but the mere fact that you feel that
he may be hostile will not make him as a
hostile witness. What did the court say on
Chua-Gao vs. Chua? Unlike an ordinary
witness, the calling party may impeach an
adverse witness in all respects as if he had
been called by the adverse party, except by
evidence of his bad character. Are we clear?! So
if I call on an adverse party witness, meaning
my opponent I could impeach him, I could
destroy his testimony but I cannot present
his bad character. Are we clear?! He is as if on
cross-examination because obviously his interest
is adverse to my interest. So again, unlike an
ordinary witness, the calling party may impeach
an adverse witness in all respects as if he had
been called by the adverse party, except by
evidence of his bad character.
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
Ok! Now, let us look at the case involving
GOVERNMENT PRIVILEGE, Neri vs. Senate
Committee on Accountability.
WHAT IS A GOVERNMENT PRIVILEGE? A
government privilege is invoked against public
disclosure of state secrets covering military,
diplomatic and other national security matters.
In the Reynolds case it was held that there must
be a formal claim, THERE SHOULD BE A FORMAL
CLAIM FOR A GOVERNMENT PRIVILEGE of
privilege lodge by the head of the department.
WHO SHOULD LODGE THE CLAIM? The head of
the department. Ok! For the government
privilege and has control over the matter after
actual consideration by that officer, the court
must thereafter determine whether the
circumstances are appropriate for the claim of
the privilege.
Again, a governmental privilege is a privilege to
prevent disclosure of state secrets covering
military, diplomatic or other national security
matters and based on the old Reynolds case,
the requirement is to lodge a formal claim by
the head of the department to be able to
invoke.
HOW ABOUT AN EXECUTIVE PRIVILEGE? WHO
CAN INVOKE AN EXECUTIVE PRIVILEGE? Only
the president or the executive secretary can
invoke the executive privilege according to this
case.
CAN PRESIDENTIAL COMMUNICATIONS UNDER
THE SO-CALLED EXECUTIVE PRIVILEGE BE
PIERCED? The presidential communication
privilege can be pirced by showing of specific
need of the party seeking presidential
information in order to perform its functions
mandated by the constitution. So you would
note that what could pierce the executive or
the presidential privilege communication is the
Page 95 of 101
need to perform the functions under the
constitution.
Let us look at class the 2 TYPES OF POSITIVE
IDENTIFICATION. What are the 2 types of
positive idenfication?
1. as DIRECT EVIDENCE, meaning you
were there and you were able to
see how it was committed;
2. as CIRCUMSTANTIAL EVIDENCE.
Let us look at EXTRA-JUDICIAL CONFESSION. As
a rule extra-judicial confession can only be used
against the person making it, that is the rule.
WHAT ARE THE EXCEPTIONS?
1. where there are EXTRA-JUDICIAL
STATEMENTS HAD BEEN MADE BY
SEVERAL PERSON charged with an
offense and THERE COULD HAVE
BEEN NO COLLUSION with
reference to said several
confession;
2. this is also admissible as
circumstantial evidence against the
person implicated to show the
probability of the latter's actual
participation;
3. may also serve as corroborative
evidence, if it is clear from other
facts and circumstances that other
person had participated in the
commission of the crime.
These are known as INTERLOCKING
CONFESSIONS.
Let us now look at WHEN JUDICIAL ADMISSION
TO BE MADE? Cuenco vs. Talisay.
1. it could be made in the pleadings,
according to this case;
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
2. during the trial whether verbal or
written;
3. in other stages of the proceedings.
Now, let us touch on OFFER OF COMPROMISE.
Under RULE 130 27. In CIVIL CASES at ANY
STAGE of the proceedings you could offer
compromise. Right?! However, in a CRIMINAL
CASE an offer of compromise of an accused is
an IMPLIED ADMISSION OF LIABILITY. Now, this
case of People vs. Ergueza is informative. Ok!
Why? An offer of COMPROMISE FROM AN
UNAUTHORIZED PERSON CANNOT AMOUNT TO
THE ADMISSION OF THE PARTY HIMSELF. So at
times the party has a representative, if the
person in unauthorized it cannot amount to the
admission of the party himself. THE ACCUSED
SHOULD HAVE BEEN PRESENT OR AT LEAST
AUTHORIZED THE PROPOSED COMPROMISE. So
what you find here is some sort of agency. The
accused was not there, someone else offers a
compromise so called for him but if he is
unauthorized the compromise or the offer of
compromise cannot be taken against the
accused.
Let us now proceed on a few more items, video
recoding of evidence. Before I go to the video
recording let us take note of the DNA RULE
which was passed by the Supreme Court in
2008. Do you still remember that? Sir, meron ba
nun? OO! Meron yun(chuckles). I will highlight
the points that I feel necessary for your study.
Under that rule there is what you call POST
CONVICTION DNA EXAMINATION. Sir, ano yun
post conviction DNA examination? You have
already been CONVICTED, you are rendered
GUILTY, you are ALREADY SERVING SENTENCE,
COULD YOU ASK FOR DNA EXAMINATION? YES!
COOULD SOMEONE ELSE ASK THE
EXAMINATION FOR YOU? YES!
CAN YOU BE RELEASED if after the DNA
Examination it is found that you are not the
Page 96 of 101
perpetrator of the offense? YES! But you have
to FILE something - what do you need to file? A
PETITION FOR HABEAS CORPUS in the COURT
THAT ORIGINALLY RENDERED THE JUDGMENT.
Take note of that hindi pa lumalabas yan! Baka
biglang i-multiple choice kayo dyan. What else?
ON MATTERS OF FILIATION - WHAT ABOUT
MATTERS OF FILIATION? That rule said that if it
is:
1. 99.9% and above it is
CORROBORATIVE EVIDENCE;
2. Below 99.9% it is a DISPUTABLE
PRESUMPTION.
WHAT FIGURES AM I TELLING YOU? After your
examination, your relationship to the child is
established to be 99.9% that is corroborative
evidence, below 99.9% that is only disputable
presumption.
Let us look at VIDEO RECORDING as evidence.
Torralba vs. People. CAN YOU USE VIDEO
RECORDING? a while ago we discuss this in the
light of the recent decision of the court in the
Mangundadatu case.
WHAT ARE THE REQUIREMENTS FOR YOU TO
PRESENT A VIDEO RECORDING?
1. a showing that the recording device
is capable of taking the testimony;
2. that the operator of the device was
competent, not only the device
must be capable but also the
operator;
3. establishment of the aunthenticity
or correctness of the recording - is
it authentic or correct;
4. showing of changes, additions or
deletions or either splicing;
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
5. showing of the manner of
preservation of the recording or in
the manner as we call, chain of
custody;
6. identification of the speakers;
7. showing the testimony was
voluntarily made without any kind
of inducement.
Is PARAFFIN TEST, still a reliable test today?
NOT ANYMORE. Ok! Because there are ways
that you could acquire nitrate burns not
necessarily by firing a gun. There are also ways
today of removing it so the nitrates can no
longer be detected.
Let us look at the child witness examination
rule. Remember that?! Before we discuss the
child witness examination rule let me set the
rule that you have to take note when it comes
to testimony of witnesses. OK! Parang mga
antok na antok na kayo ah! What time is it?!
6Ayan 5:40 na bumilis ah! Ok! Gusto nang
umuwi
Now, class WHAT IS THE RULE WHEN IT COMES
TO TESTIMONIAL EVIDENCE? Class I tell you, do
not go to the bar exams na hindi niyo kabisado
ang RULE 130 at RULE 132. Yung 131, kapag
minalas ka at tinanong talagang malas ka
because that was asked in the bar exams of
2003, the presumptions. Ok! So RULE 130 and
132, you have to know that by heart. Ok! I am
not saying that you do not read the rest, you
also study the rest but you have to know by
heart RULE 130 and 132.
WHAT IS THE RULE WHEN IT COMES TO
TESTIMONIAL EVIDENCE? the rule is this, that
the witness is ABLE TO PERCEIVE AND
PERCEIVING COULD MAKE KNOW HIS
PERCEPTION TO ANOTHER. The rule does not
require you to be a college degree holder, to be
a higschool graduate all that it requires is that
Page 97 of 101
you are able to perceive and perceiving you
could make known your perception to another,
the rest are what? Disqualifications. Do you
follow?! Yun ang rule, qualification. The
succeeding provisions are disqualifications.
WHAT ARE THE DISQUALIFICATIONS?
1. mental immaturity and mental
sanity - dyan papasok yung child
witness examination rule. When
you talk of mental maturity class,
again the provision of the law did
not provide for an age, if you would
note that is why it used maturity
and that leads me to CHILD
WITNESS EXAMINATION RULE -
applies to CIVIL. CRIMINAL AND
EVEN ADMINISTRATIVE cases.
CAN YOU ASK LEADING QUESTIONS
ON A CHILD WITNESS UNDER THE
CHILD WITNESS EXAMINATION
RULE? YES but you have to inform
the other party that you will be
asking leading questions.
CAN DEPOSITIONS BE TAKEN
UNDER THE CHILD WITNESS
EXAMINATION RULE?
YES
depositions can be taken.
SHOULD THE COURT DETERMINE
THE ABILITY OF THE CHILD TO
TESTIFY AND TO KNOW WHAT IS
RIGHT AND WHAT IS WRONG? YES
that has to be determined under
the child witness examination rule.
There is what you call COMFORT
OBJECTS! Ano yung mga comfort
objects? Dapat alam niyo yan baka
i-multiplt choice kayo dyan. Those
objects where the child witness is
comfortable, that she could hold on
to in the course of the proceedings.
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III

THE DEAD MAN'S STATUTE? Any

WHO ARE COMFORT PERSONS? claim on the estate of a deceased
Comfort persons could be a nanny, person, any party or assignors of
a yaya or ANY PERSON TO WHOM parties are disqualified to testify
SHE FEELS THE TRUST AS SHE because he has an interest on the
TESTIFIES. estate of a deceased person or a
person of unsound mind. Are we
SHOULD THE EXAMINATION OF A clear? So person who have
CHILD WITNESS BE FACE-TO-FACE interests, like parties or assignors of
IN COURT OR COULD IT BE ON A TV parties cannot testify, they are
LIVE LINK PROCEEDINGS? YES. Take disqualified to be a witness.
note, the proceedings here could However, witnesses in documents
also be treated confidential. they have executed, witnesses can
testify based on the Sanzo case,
CAN A PERSON BE IDENTIFIED BY HIS PHYSICAL they could also present documents
BUILT, VOICE AND PECULIAR SMELL? In this that were executed by the
particular casekayo naman oh! Para kayong deceased during his lifetime.
niloloko! Hindi ko kayo niloloko!(chuckles). Can
an accused be identified by reason of his WHO ARE PROHIBITED? WHO ARE
physical built, voice and peculiar smell? People DISQUALIFIED?Only parties or
vs. Caete, while it may be true that it was dark assignors of parties. Involving take
when the appellant ravished the private note, this is a very narrow provision
complainant or raped her in his house, the meaning the application is limited,
physical built of the appellant but also with his you could only invoke
voice and peculiar smell, the victim was able to disqualification if it involves a claim
identify. Alam niyo naman siguro yun, yung against the estate of the deceased
smell! Meron nga ibang tao yun at yun ang or a person of unsound mind. Are
amoy eh!(chuckles) we clear?!

2. by REASON OF MARRIAGE - this not 4. another set of disqualification is

a privilege, this is a disqualification PRIVILEGED COMMUNICATION -
by reason of marriage and class ngayon may time ako to highlight
please take note that the important paragraphs because I still
INFORMATION HERE IS NOT have 15 minutes. Ok!
CONFIDENTIAL, it is the marriage
that disqualifies you to testify. BUT A. Class bear this in mind
AFTER THE MARRIAGE CAN YOU ATTORNEY - CLIENT, IN VIEW
TESTIFY? YES, unlike privileged TO OR IN THE COURSE OF one's
communication by reason of professional engagement. The
marriage, even after the privilege extends not only
termination of the marriage are you during the life of the attorney-
still bound by the privilege? YES. client relationship but also in
view to, meaning in anticipation
3. The provision in 23 in the last 8 of a professional engagement is
years has been asked once, the likewise covered. Do you
DEAD MAN'S STATUTE. WHAT IS follow?! That involves

Page 98 of 101
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
confidential information that
you have received and please
take note of the privileged
communications under 24 this
is the only privileged
communication that the
privilege extends to an agent, a
secretary, a clerk, this is the
only privileged communication
where it extends to the
secretary, clerk or stenographer
and it could only be waived, the
privilege, upon consent of the
lawyer and the client.
B. How about DOCTOR-PATIENT?
That you do not have agency in
doctor-patient. Ok! It only says
that for a doctor-patient
privilege to attach, that the
information that he received
should be necessary for him to
treatment or advice.
Remember that paragraph, that
information given to him is
necessary for him to give
treatment and advice.
Let me ask you this
question,he received a
laboratory examination.
As per instruction of the doctor
there is a need for me to go
undergo a laboratory
examination. IS THE TO WHICH HE BELONGS,
LABOARTORY EXAMINATION
COVERED BY THE DOCTOR-
PATIENT PRIVILEGE? For you to
be able to answer that you will
answer this question, WHO
REQUIRED YOU TO TAKE THAT
EXAMINATION? If you are the
doctor who required to take the
examination and it is necessary
for him to give you advuce and
treatment by reason of that
Page 99 of 101
information, that is covered by
the privilege. Pero kung ilaw eh.
Feel mo lang magpa-eksamin.
Di ba may ganun! Pa-eksamin
nga ako. Kung feel mo lang, ay
wala! Eh wala ka naming doctor
papaano magkakaroon ng
privilege. Do you follow? But if
it was necessary for the doctor
to act and to give treatment
and advice then it is covered by
the privilege and always
remember THAT ONLY
DOCTORS WHO ARE DOCTORS
OF:
- MEDICINE;
- SURGEONS;
- OBSTETRICS are covered by
the privilege. Ok! Non- give
traditional doctors are not
covered by this privilege, the
midwives are not covered
by this privilege, nurses are
not covered by this
privilege. Ok ba?!
C. Now the next one is PENITENT
and PRIEST. Ok! Take note class
that this privilege will only
apply if what IF IT IS ENJOINED
BY THE RELIGIOUS INSTITUTION
meaning confession is required
by the religious institution to
which he belongs, if it is not
then this privilege will not
apply. Therefore, generally it
applies to the Catholic Church
others would not require you to
confess before a priest. Yes you
go to the pastor but he is not
covered by the privilege. Yes
you publicly proclaim that you
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
committed a sin that is not
covered by the privilege. It
should be enjoined by the
religious institution to which he
belongs. Last point on this
privilege, WHAT IF YOU
CONFESSED BEFORE A NUN?
Natawa na naman kayopara
kayong niloloko! That is not
covered by the privilege that is
not covered.
D. There is also what you call a
FILIAL PRIIVILEGE. YOU CANNOT
TESTIFY AGAINST AN
ASCENDANT OR A
DESCENDANT UNLESS HE
WAIVES IT. Ok! That is subject to
waiver.
Let me endAyan, end na! Oh may 5 minutes
pa. I would like to end in discussing admission,
ay hindi pa pala yan! Tatlo pa! Eh, paano baka
mamaya may lumabas hindi ako
nakokonsensya. Kasi ganun ako eh, I want to
give it to you paraBy my conscience I have
given what I have to teach you.
The first of the three that I would like to discuss
would be SIMILAR CONDUCT. Ok! You know
that?! Class that is fairly simple, just remember
this. THE FACT THAT YOU DID OR DID NOT DO
AN ACT AT SOME TIME DOES NOT MEAN THAT
YOU DID OR DID NOT DO AN ACT ON ANOTHER
TIME. Do you follow? Ganun lang yun, sir anong
ibig sabihin nun? Parang magulomaganda lang
pakinggan sir! In simple words class, the fact let
us say that I committed robbery on a bank here
in Recto, let us say if there is an Allied Bank
here in Recto, does it mean that I am the same
person who committed the robbery of an Allied
Bank in Ayala Avenue. Do you follow?! It does
not mean that way, you cannot attribute to acts
which appears to be similar. Do you follow?!
However, if you can establish, it cannot be
presented, again my act of robbing the Allied
Bank in Recto, the facts surrounding that
Page 100 of 101
commission can be presented in that case but
the facts surrounding the commission cannot be
presented in the case involving the Allied Bank
robbery in Ayala. Do you follow? Because it is
totally unrelated however, the facts in both
cases could be used to establish a scheme, an
intent, a pattern. Ok! among others. For
example - ang klase ng pagnanakaw mo
nirerentahan mo yung kabilang building tapos
binubutas mo lagi, malamang ikaw yun. Do you
follow? Pattern, intent - what is an example of
intent? Unang asawa mo namatay naka-claim
ka ng insurance. Pangalawang asawa mo,
namatay na naman naka-claim ka ng insurance.
Yung pangatlo, muntikan lang mamatay. That is
intent ok! Bakit lahat ng asawa mo namamatay
at kumikita ka?! Do you follow?! There you will
see the intent, when it comes to the insurance.
You will see that they are what? They are
insured. Do you follow?!
The next which I think I should discuss with you
is ADMISSION OF A THIRD PARTY. Do you
follow? Admission of a third party, as a rule
ONLY YOUR ADMISSION CAN BE TAKEN
AGAINST YOU, A THIRD PARTY ADMISSION
CANNOT BE TAKEN AGAINST YOU, UNLESS YOU
ARE A: joint owner, co-owner, co-debtor: there
is what you call common interest for as long as
you are partners in a partnership or there is
agency, principal-agent relationship.
WHAT ARE THE REQUISITES?
1. there is common interest;
2. that the act or the relationship has
been established by the fact other
than the admission - meaning there
are documents to show the
partnership, there are document to
show the principal-agent
relationship;
3. the act would have been committed
during the existence of the
partnership or the relationship.
 CRITICAL AREAS IN REMEDIAL LAW
Dean Tranquil S. Salvador III
Now, that likewise applies to CONSPIRACY and
the following are the requisites:
1. the conspiracy would have been
established by a fact other than the
admission of a co-conspirator;
2. there is a commn design;
3. it was made during the existence of
the conspiracy.
But please take note of this, a declaration of a
co-conspirator is excluded only, if made extra-
judicially. But if the co-conspirator is in court.
Imagine I am the judge and he sits here and
points at you, at you, at you, can that be taken
against you? YES because that is subject to
cross-exaination.
As a final point class I would like you to take
note of AUTHENTICATION OF DOCUMENTS. I
will not discuss that anymore, that is 18-33 of
RULE 132, that is a good source of question. You
have to know the difference between
privatehow to authenticate a private document
fro a public document. You should
know what is an ancient document, an ancient
document is in existence for more than 30 years
and it should have been in the custody of the
person whou should have been in custody of
the same and it appears to be unblemished. Ok!
That is an ancient document.
So with that IT IS 6 O'CLOCK! It is already 6
o'clock so thank you for your patience!(Class
APPLAUDING!) GOODLUCK!!! Naku! Meron
akong hindi nasagot, you want me to answer
this pa?! YES! Hindi huwag na sige, those who
will ask questions just approach meANSWER
sir! Answer!!!(Class)
Ok! Sige is a MOTION FOR CONSIDERATION
MANDATORY before filing a PETITION FOR
CERTIORARI? That is a PRE-REQUISITE! Unless
you fall in the exceptions, but in a PETITION FOR
Page 101 of 101
REVIEW ON CERTIORARI that is not a pre-
requisite.
In case of denial of a petition for certiorari,
what will be your remedy? Ay kulang ang
question mo! Ang tanong dyan ganito,
remember RTC, CA and SC have concurrent
jurisdiction. Do you follow? Kapag sa Supreme
Court, eh wala ka nang remedy MAG-MR ka
kung gusto mo! For example class, let us look at
this, RTC there was a petition for
certioraricorrect?! there was a petition for
certiorari in RTC on an interlocutory order, the
court disposes of the case, where do you go
from the RTC - resolution of your petition for
certiorari? In the CA, what will you file?
Remember the petition for certiorari is an
original action filed before the RTC, you file
what? A notice that is an ordinary appeal. If let
us say, if the CA, it is a petition for certiorari in
the CA, it finally disposes of the case because
when the court decides a petition for certiorari
it finally disposes the case, where do you go?
SUPREME COURT on a PETITION FOR REVIEW
ON CERTIORARI. Ok!
The last question, mahaba ito ah! In an
ejectment case a final judgment was rendered
after almost 10 years by mere motion
judgment-obligee obtained a writ of execution
and a notice to vacate was served to a third
party in possession of the subject property by
virtue of a concession agreement, what is the
best remedy of the third party? It will depend
on the nature of his possession. Ano ba yung
nature ng possession ng third party? Has he
purchased the property? Iba yun, in that case
he will have to recover possession. Do you
follow? The regular action for recovery of
possession. if let us say he is not authorized or
not entitled to stay on the property, he has no
remedy but to recover from the person who has
tolerated or has allow him to use the property if
there was once a consideration.
SoYun lang!!! SALAMAT! Thank you!