Re

m
ed
ial
La
w
 Sources

Rules of Court
Jurisprudence
Criminal Procedure ByRiano
Evidence ByRiano
UST Golden Notes
Judge Marinas’ Class Discussion (Civil Procedure)
Atty. Gayya’s Class Discussion (Remedial Law Review)
Atty. Mangallay’s Class Discussion and Notes (Crim Pro)
Prosecutor Elmer Sagsago’s Class Discussion and Notes (Evidence)

© Gironella – Macadatar 2017

 Contents
General Principles ................................................................................................................................................................................................................................................. 1
Concept of Law ...................................................................................................................................................................................................................................................... 1
Judicial Power and the Role of Judiciary......................................................................................................................................................................................................... 1
Rule Making Power of the Supreme Court.............................................................................................................................................................................................. 2
Concept of Courts........................................................................................................................................................................................................................................... 2
Civil Jurisdiction ....................................................................................................................................................................................................................................................4
Concept of Jurisdiction ........................................................................................................................................................................................................................................4
Jurisdiction over the Subject Matter .........................................................................................................................................................................................................4
Jurisdiction Over The Parties ...................................................................................................................................................................................................................... 5
Jurisdiction Over The Issues ........................................................................................................................................................................................................................ 6
Jurisdiction Over The Res or Property in Litigation ............................................................................................................................................................................. 6
Power of the Congress to Define, Prescribe, and Apportion the Jurisdiction of Courts............................................................................................................. 6
Kinds of Jurisdiction ............................................................................................................................................................................................................................................. 6
Specific Jurisdiction of Court ............................................................................................................................................................................................................................. 7
Supreme Court ................................................................................................................................................................................................................................................. 7
Court of Appeals ............................................................................................................................................................................................................................................. 7
Sandiganbayan ................................................................................................................................................................................................................................................. 8
Regional Trial Court ...................................................................................................................................................................................................................................... 8
Municipal Trial Court.................................................................................................................................................................................................................................... 9
Courts of Muslim Mindanao........................................................................................................................................................................................................................ 9
Other Special Courts .................................................................................................................................................................................................................................... 10
The 1987 Rules of Civil Procedure.................................................................................................................................................................................................................... 11
General Provisions ................................................................................................................................................................................................................................................ 11
Applicability .................................................................................................................................................................................................................................................... 11
Cases Covered by the Rules ........................................................................................................................................................................................................................ 11
Inception of an Action ......................................................................................................................................................................................................................................... 11
Commencement of Action ........................................................................................................................................................................................................................... 11
Concept of Ordinary Civil Action and cause of action ........................................................................................................................................................................ 11
Concept of Venue .......................................................................................................................................................................................................................................... 13
Filing of Complaint....................................................................................................................................................................................................................................... 13
The Law on Pleadings ......................................................................................................................................................................................................................................... 13
Definition of Pleadings ................................................................................................................................................................................................................................ 13
Parts of a Pleading ......................................................................................................................................................................................................................................... 13
Kinds of pleadings other than a complaint ............................................................................................................................................................................................ 15
Manner of Making Allegations in Pleadings ......................................................................................................................................................................................... 17
Rules Regarding the Effect of Failure to Plead ..................................................................................................................................................................................... 17
Rules on Amendment of Pleadings........................................................................................................................................................................................................... 17
Rules on the filing and service of Pleadings / Judgment / Final Orders / Resolutions .............................................................................................................. 17
The Rules on Parties to Civil Actions ............................................................................................................................................................................................................ 17
Parties to a Civil Action .............................................................................................................................................................................................................................. 17
The Rules on Summons...................................................................................................................................................................................................................................... 17
Significance of Service of Summons; In rem vs. In Personam Actions ............................................................................................................................................ 17
Modes of Service of Summons ................................................................................................................................................................................................................... 17
Other Rules ..................................................................................................................................................................................................................................................... 17
Effect of lack of Summons........................................................................................................................................................................................................................... 17
The Rules on Motions ........................................................................................................................................................................................................................................ 17
Motions in General ....................................................................................................................................................................................................................................... 17
Some Motions under the Rules on Civil Procedure ................................................................................................................................................................................... 17
Omnibus Motion Rules ............................................................................................................................................................................................................................... 17
 Motion for Leave ........................................................................................................................................................................................................................................... 17
Motion to Declare Defendant in Default ................................................................................................................................................................................................ 17
Motion for Bill of Particulars ..................................................................................................................................................................................................................... 17
Motion to Dismiss......................................................................................................................................................................................................................................... 17
Motion to Intervene ..................................................................................................................................................................................................................................... 19
Dismissal by the Plaintiff .................................................................................................................................................................................................................................. 20
Dismissal upon notice by plaintiff / as a matter of right ................................................................................................................................................................... 20
Dismissal upon motion of plaintiff / judicial discretion .................................................................................................................................................................... 20
Dismissal due to fault of plaintiff:............................................................................................................................................................................................................. 21
The Rules On Pre Trial ....................................................................................................................................................................................................................................... 21
Concept, Nature and Purpose ................................................................................................................................................................................................................... 21
Matters to consider during Pre-Trial ...................................................................................................................................................................................................... 21
Effects of failure to appear during Pre-Trial .......................................................................................................................................................................................... 21
Pre-trial Brief .................................................................................................................................................................................................................................................. 21
Pre- Trial Order ............................................................................................................................................................................................................................................. 21
Pre – Trial In Criminal Cases .................................................................................................................................................................................................................... 22
Modes of Discovery ............................................................................................................................................................................................................................................ 22
Nature, Rationale, Importance, Purpose and Scope ........................................................................................................................................................................... 22
Kinds................................................................................................................................................................................................................................................................ 22
Upon showing for good cause and upon motion is required for an order for the production or inspection of documents or things ............................... 30
May be issued upon ex parte application .................................................................................................................................................................................................... 30
Can only be directed to a party ....................................................................................................................................................................................................................... 30
May be directed to a non-party ...................................................................................................................................................................................................................... 30
The Rules on Trial Proper .................................................................................................................................................................................................................................32
CONCEPT AND DEFINITION ................................................................................................................................................................................................................32
THE RULES ON COMPUTATION OF TIME.................................................................................................................................................................................... 34
THE RULES ON SUBPOENA.................................................................................................................................................................................................................. 34
ADMINISTRATIVE CIRCULAR NO. 3-99 (January 15, 1999) .......................................................................................................................................................35
TRIAL BY COMMISSIONER ...................................................................................................................................................................................................................36
THE RULE ON CONSOLIDATION AND SEVERANCE.................................................................................................................................................................38
Adjudication ..........................................................................................................................................................................................................................................................38
CONCEPT AND REQUIREMENTS ......................................................................................................................................................................................................38
KINDS OF JUDGMENT AND DEFINITION....................................................................................................................................................................................... 41
PROMULGATION OF JUDGMENT .................................................................................................................................................................................................... 42
Remedies against Judgment and Final Orders ........................................................................................................................................................................................... 43
Before finality of judgment and final orders ......................................................................................................................................................................................... 43
After finality of judgment and final orders............................................................................................................................................................................................ 56
Ways of attacking a final judgment ......................................................................................................................................................................................................... 57
Execution ............................................................................................................................................................................................................................................................... 57
Basic Concepts and Doctrines ................................................................................................................................................................................................................... 57
Kinds of Execution ...................................................................................................................................................................................................................................... 58
Effect of Total or Partial Reversal or Annulment of the Executed Judgment ............................................................................................................................. 60
How Final Judgments and Orders are Executed ................................................................................................................................................................................. 60
Execution in Case of Death of Party ........................................................................................................................................................................................................ 61
Grounds to Quash Writ of Execution .................................................................................................................................................................................................... 62
Specific Rules ................................................................................................................................................................................................................................................ 62
Properties Exempt from Execution ........................................................................................................................................................................................................ 66
Provisional Remedies ......................................................................................................................................................................................................................................... 66

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 Concept and Purpose .................................................................................................................................................................................................................................. 66
Common Requirements ..............................................................................................................................................................................................................................67
Deposit as Provisional Remedy .................................................................................................................................................................................................................67
Preliminary Attachment ..............................................................................................................................................................................................................................67
Preliminary Injunction.................................................................................................................................................................................................................................72
Receivership ...................................................................................................................................................................................................................................................76
Replevin ........................................................................................................................................................................................................................................................... 77
Support / Alimony Pendente Lite .............................................................................................................................................................................................................79
Special Civil Actions .......................................................................................................................................................................................................................................... 80
Interpleader .................................................................................................................................................................................................................................................... 81
Declaratory Relief and Similar Remedies .............................................................................................................................................................................................. 82
Review on Judgement and Final Orders or Resolutions of the COMELEC and the COA...................................................................................................... 84
Certiorari, Prohibition, Mandamus ........................................................................................................................................................................................................ 86
Quo Warranto................................................................................................................................................................................................................................................87
Expropriation ................................................................................................................................................................................................................................................ 88
Foreclosure of Real Estate Mortgage....................................................................................................................................................................................................... 91
Partition / Actio Communi Dividendo ................................................................................................................................................................................................... 92
Forcible Entry and Unlawful Detainer .................................................................................................................................................................................................. 94
Contempt ....................................................................................................................................................................................................................................................... 96
Criminal Procedure ............................................................................................................................................................................................................................................112
Basic Concepts ....................................................................................................................................................................................................................................................112
Jurisdiction ...........................................................................................................................................................................................................................................................112
Jurisdiction over the Subject Matter / Nature of the Offense / offense charged .........................................................................................................................112
Jurisdiction over the territory / Venue ...................................................................................................................................................................................................112
Jurisdiction over the Person of the accused ..........................................................................................................................................................................................113
Injunction to Restrain Criminal Prosecution.......................................................................................................................................................................................113
Criminal Jurisdiction of Courts ......................................................................................................................................................................................................................113
MTC, MCTC, and MeTC ..........................................................................................................................................................................................................................113
Regional Trial Court ...................................................................................................................................................................................................................................113
Sandiganbayan ..............................................................................................................................................................................................................................................113
Rule 110 – Prosecution of Offenses................................................................................................................................................................................................................ 114
Institution of Criminal Action ................................................................................................................................................................................................................ 114
Prosecution of the Criminal Action ....................................................................................................................................................................................................... 114
Intervention of the offended party in the prosecution of the criminal action .............................................................................................................................115
Prosecution of private crimes ...................................................................................................................................................................................................................115
The Complaint and Information ..............................................................................................................................................................................................................116
Venue of Criminal Action .......................................................................................................................................................................................................................... 117
Amendment and Substitution of the Complaint or Information....................................................................................................................................................118
AMENDMENT ......................................................................................................................................................................................................................................118
SUBSTITUTION ...................................................................................................................................................................................................................................118
Rule 111 – Prosecution of Civil Action .......................................................................................................................................................................................................... 119
Independent Civil Actions:.......................................................................................................................................................................................................................120
Prejudicial Question ...................................................................................................................................................................................................................................120
Effect of Acquittal on Civil Liability .......................................................................................................................................................................................................121
Effect of death of the accused on the Civil Action ..............................................................................................................................................................................121
Rule 112 – Preliminary Investigation ............................................................................................................................................................................................................ 122
Inquest Proceedings ................................................................................................................................................................................................................................... 123
Review ............................................................................................................................................................................................................................................................ 126

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 Warrant of Arrest ....................................................................................................................................................................................................................................... 126
Rule 113 – Arrest ................................................................................................................................................................................................................................................. 126
In Flagrante Delicto .................................................................................................................................................................................................................................... 128
Hot Pursuit ................................................................................................................................................................................................................................................... 128
Remedies / Summary .................................................................................................................................................................................................................................. 129
Rule 126 – Searches and Seizure .................................................................................................................................................................................................................... 129
Rule 114 – Bail ..................................................................................................................................................................................................................................................... 134
Hold Departure Order and Bureau of Immigration Watchlist....................................................................................................................................................... 138
Rule 115 – Rights of the Accused ................................................................................................................................................................................................................... 138
Rule 116 – Arraignment and Plea ................................................................................................................................................................................................................... 141
Plea Bargaining: ...........................................................................................................................................................................................................................................148
Improvident plea of guilty: ...................................................................................................................................................................................................................... 144
Rule 117 – Motion to Quash ........................................................................................................................................................................................................................... 144
Rule 118 – Pre - Trial.......................................................................................................................................................................................................................................... 147
Alternative Dispute Resolution (ADR) ................................................................................................................................................................................................149
Rule 119 – Trial....................................................................................................................................................................................................................................................149
Discharge of accused to be state witness ..............................................................................................................................................................................................151
Order of trial: ................................................................................................................................................................................................................................................ 152
Reopening of the proceedings: ................................................................................................................................................................................................................ 157
Trial in Absentia: ......................................................................................................................................................................................................................................... 152
Demurrer to Evidence ................................................................................................................................................................................................................................ 152
Rule 120 – Judgment .........................................................................................................................................................................................................................................154
Promulgation of judgment: ....................................................................................................................................................................................................................... 155
Post-Conviction Remedies.............................................................................................................................................................................................................................. 157
Rule 121 – New Trial or Consideration ........................................................................................................................................................................................................ 157
Rule 122 - Appeal ............................................................................................................................................................................................................................................... 158
MODES OF APPEAL (Flowcharts) ....................................................................................................................................................................................................... 160
Rule 123 – Procedure in the Municipal Trial Court ..................................................................................................................................................................................161
Rule 124 – Procedure in the Court of Appeals ............................................................................................................................................................................................161
Rule 125 – Procedure in the Supreme Court .............................................................................................................................................................................................. 162
Rule 127 – Provisional Remedies in Criminal Cases ................................................................................................................................................................................ 162
Evidence ............................................................................................................................................................................................................................................................... 174
Rule 128: General Provisions .......................................................................................................................................................................................................................... 174
ADMISSIBILITY OF EVIDENCE ........................................................................................................................................................................................................... 174
Revised Rules on Summary Procedure ........................................................................................................................................................................................................ 165
Civil Cases ..................................................................................................................................................................................................................................................... 165
Judicial Affidavit Rule ...................................................................................................................................................................................................................................... 167
Rules of Procedure for Environmental Law Cases ................................................................................................................................................................................... 169
Rules of Procedure for Small Claims ............................................................................................................................................................................................................ 170

© Gironella – Macadatar 2017 | General Principles 6

 How are remedial laws implemented in our system of government? They are
General Principles implemented through the judicial system, including the prosecutory service of
courts and quasi-judicial agencies.
Concept of Law
Judicial Power and the Role of Judiciary
The term law may be understood in two concepts:
1. General or abstract sense (derecho) JUDICIAL POWER:
 the science of moral rules, founded on the rational nature of
man, which govern his free activity, for the realization of the Section 1, Art. VIII, 1987 Constitution
individual and social ends, of a nature both demandable and
reciprocal. Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.
2. Specific or material sense (ley)
 juridical proposition or an aggregate of juridical propositions, Judicial power includes the duty of the courts of justice to settle actual controversies involving
promulgated and published by the competent organs of the
rights which are legally demandable and enforceable, and to determine whether or not there has
State in accordance with the Constitution.
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.
REMEDIAL LAW: It is a branch of public law, which prescribes the procedural
rules to be observed in litigations, whether civil, criminal, or administrative, and in
CONSTITUTIONAL GUARANTEES on JUDICIAL INDEPENDENCE:
special proceedings, as well as the remedies or reliefs available in each case.
 It is also known as procedural law.
Supreme Court as a Constitutional Body
 Another name is adjective law

Section 4 (1), Art. VIII, 1987 Constitution

Substantive vs. Remedial Law:
Section 4. (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate
Substantive Law Remedial Law Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any
Part of the law which creates, Refers to the legislation vacancy shall be filled within ninety days from the occurrence thereof.
defines or regulates rights providing means or methods
concerning life, liberty or whereby causes of action may Impeachment
property or the powers of be effectuated, wrongs
agencies or instrumentalities for redressed and relief obtained Section 2, Art. XI, 1987 Constitution
the administration of public (also known as Adjective Law).
affairs. Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of
Creates vested rights. Does not create vested rights the Constitutional Commissions, and the Ombudsman may be removed from office on
Prospective in application. Retroactive in application impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft
Cannot be enacted by the The Supreme Court is expressly and corruption, other high crimes, or betrayal of public trust. All other public officers and
Supreme Court. empowered to promulgate employees may be removed from office as provided by law, but not by impeachment.
procedural rules.
Minimum original and appellate jurisdiction of the SC
SIGNIFICANCE OF REMEDIAL LAW: It plays a vital role in the administration
of justice. It lies at the very core of procedural due process, which means a law Section 5, Art. VIII, 1987 Constitution
which hears before it condemns, which proceeds upon inquiry and renders
judgment only after trial, and contemplates an opportunity to be heard before Section 5. The Supreme Court shall have the following powers:
judgment is rendered.
(1) Exercise original jurisdiction over cases affecting ambassadors, other public
SOURCES OF REMEDIAL LAW: ministers and consuls, and over petitions for certiorari, prohibition, mandamus,
1. Constitution quo warranto, and habeas corpus. (Original)
2. Different laws creating the judiciary, defining and allocating jurisdiction
to courts of different levels (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or
3. Procedural laws and rules promulgated by the Supreme Court the Rules of Court may provide, final judgments and orders of lower courts in:
4. Circulars (Appellate)
5. Administrative orders a. All cases in which the constitutionality or validity of any treaty,
6. Internal rules international or executive agreement, law, presidential decree,
7. Court decisions proclamation, order, instruction, ordinance, or regulation is in question.
b. All cases involving the legality of any tax, impost, assessment, or toll, or
any penalty imposed in relation thereto.
c. All cases in which the jurisdiction of any lower court is in issue.

© Gironella – Macadatar 2017 | General Principles 1

 d. All criminal cases in which the penalty imposed is reclusion perpetua or
higher. (e) All cases in which only an error or question of law is
involved.
Appellate jurisdiction of the SC may not be increased by law
without its advice and concurrence
Section 2 in rel. to Section (2), Art. VIII, 1987 Constitution
Section 2. The Congress shall have the power to define, prescribe, and apportion the jurisdiction of
the various courts but may not deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5 hereof.
No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its
Members.
The system of pleading used in the Philippines is the Code pleading following the
system observed in some states of the United States. This system is based on
codified rules or written set of procedure as distinguished from common law
procedure (Marquez vs. Valera)
Adversarial System vs. Inquisitorial
Uniform Procedure in Trial Courts
The procedure in the Municipal Trial Courts shall be the same as in the Regional
Trial Courts, except:
a. where a particular provision expressly or impliedly applies only to either of
said courts, or
b. in civil cases governed by the Rule on Summary Procedure.

Concept of Justiciability:
Administrative power of the SC over all lower courts and their
personnel / Security of tenure of members of the Judiciary
Justiciable Questions v Political Questions

The Members of the Supreme Court and judges of lower courts shall hold office during good
Justiciable Question
behavior until they reached the age of seventy years or become incapacitated to discharge the
 calls upon the duty of the courts to settle actual controversies wherein
duties of their office. The Supreme Court en banc shall have the power to discipline judges of lower there are rights involved which are generally demandable and
courts, or order their dismissal by a vote of a majority of the Members who actually took part in enforceable
the deliberations on the issues in the case and voted thereon.  one which is proper to be examined or decided in courts of justice
because its determination would not involve an encroachment upon the
Rule Making Power of the Supreme Court legislative or executive power

Vs. Judicial Legislation: Political Question

 one which, under the Constitution, is to be decided by the people in
Limitations on the Rule Making Power of the Supreme Court: their sovereign capacity, or in regard to which full discretionary
1. It shall provide a simplified and inexpensive procedure for the speedy authority has been delegated to the legislative or executive branch of the
disposition of cases. government
2. The rules must be uniform for all the courts of the same grade.  concerned with issues dependent upon the wisdom, not the validity or
3. The rules must not diminish, increase or modify substantive rights legality, of a particular measure or a contested act

The power of judicial Review

Power of the Supreme Court to Amend and Suspend Procedural Rules:
Requisites:
The Supreme Court may suspend the application of the Rules of Court in the 1) that the question must be raised by the proper party;
interest of just and expeditious proceedings because the rules were precisely 2) that there must be an actual case or controversy;
adopted with the primary objective of enhancing fair trial and expeditious justice. 3) that the question must be raised at the earliest possible opportunity;
and,
PEA vs. Yuico, GR 140486: the Court has had occasions to suspend 4) that the decision on the constitutional or legal question must be
its own rules, or to except a particular case from its operation, necessary to the determination of the case itself
whenever the purposes of justice require it.8 Strong compelling
reasons, such as serving the ends of justice and preventing a Role of Judiciary
miscarriage thereof, can warrant a suspension of the rules.9 While  To settle actual controversies involving rights which are legally
there is a crying need to unclog court dockets, on the one hand, demandable and enforceable;
there is, on the other hand, an incomparable demand for resolving  To determine whether there has been grave abuse of discretion
disputes fairly and equitably. amounting to lack or excess of jurisdiction by any branch of the
government
Liberal Construction Rule:
Concept of Courts
These Rules shall be liberally construed in order to promote their objective of
securing a just, speedy and inexpensive disposition of every action and proceeding.

System of Code pleadings vs. Common Law System:

© Gironella – Macadatar 2017 | Judicial Power and the Role of Judiciary 2
COURT: an organ of the government, belonging to the judicial department, whose by public officers or employees including those in GOCCs in relation to
function is the application of laws to controversies brought before it and the their office.
public administration of justice
Fourth Level (Supreme Court)
Court Judge
Entire body in which the judicial Only an officer or member of 2. SPECIAL COURTS
power is vested the court  Sandiganbayan
May exist without a present judge There may be a judge without  CTA
a court  Shari’a District Courts
Disqualification of a judge does May be disqualified  Shari’a Circuit Courts
not affect the court
3. QUASI COURTS OR QUASI JUDICIAL AGENCIES - CSC
Classifications of Philippine courts:
Constitutional Court vs Statutory Court
1. REGULAR COURTS
Constitutional Court Statutory Court
First Level (MTCs, MeTCs, MCTCs, MTCCs) Created by the constitution Created by law
1. criminal actions involving e.g. SC e.g. CTA
a. violations of city or municipal ordinances committed within Cannot be abolished by May be abolished by Congress by
their respective territorial jurisdiction Congress without amending the just simply repealing the law
b. offenses punishable with imprisonment not exceeding 6 years Constitution which created those courts
irrespective of the amount of fine and regardless of other
imposable accessory or other penalties, and Courts of Law and Equity
2. civil actions including ejectment, recovery of personal property with a
value of not more than P300,000 outside MM or does not exceed Courts of Law Courts of Equity
P400,000 in MM; Any tribunal duly Any tribunal administering justice outside
administering the the law, being ethical rather than jural and
Second Level (RTCs, Family Courts) laws of the land belonging to the sphere of morals rather
(1) courts of general jurisdiction; than of law. It is grounded on the precepts
(2) incapable of pecuniary estimation, or of conscience and not on any sanction of
(3) involving title to or possession of real property where the assessed value positive law, for equity finds no room for
of the property exceeds P20,000 outside MM or exceeds P50,000 in application where there is law.
MM, except actions for ejectment (forcible entry and unlawful Decides a case Adjudicates a controversy according to
detainer), or according to what the common precepts of what is right and
(4) where the demand exclusive of interest, damages of whatever kind, the promulgated just without inquiring into the terms of
attorney’s fees, litigation expenses, and cost, or the value of the personal law is the statutes
property or controversy exceeds P300,000 outside MM or exceeds
P400,000 in MM. Courts of Original and Appellate Jurisdiction
(5) to review cases appealed from courts of the first level;
Courts of Original Courts of Appellate jurisdiction
Third Level (Court of Appeals, Sandiganbayan) jurisdiction
1. CA is an appellate court, reviewing cases appealed to it from the RTC, Courts exercising Superior Courts reviewing and
on questions of fact or mixed questions of fact and law. jurisdiction in the first deciding cases previously decided
2. Appeals to it decided by the RTC in the exercise of original jurisdiction instance by a lower court
are a matter of right; appeals with respect to cases decided by the RTC
in the exercise of its appellate jurisdiction are a matter of discretion. Courts of General and Special Jurisdiction
3. Occasionally, CA may act as a trial court, as in actions praying for the
annulment of final and executor judgments of RTCs on the ground of Courts of General jurisdiction Courts of Special jurisdiction
extrinsic fraud subsequently discovered, against which no other
Takes cognizance of all cases , Takes cognizance of special
remedies lies.
civil or criminal, of a particular jurisdiction for a particular
nature, or courts whose purpose, or are clothed with
Sandiganbayan has jurisdiction over:
judgment is conclusive until special powers for the
1. all criminal and civil cases involving graft and corrupt practices act
modified or reversed on direct performance of specified
2. Such other offenses committed by public officers and employees
attack, and who are competent duties, beyond which they
including those in GOCCs in relation to their office.
to decide on their own have no authority of any kind
3. It also has exclusive appellate jurisdiction over final judgments,
jurisdiction
resolutions, or orders of RTCs whether in the exercise of their own
original or appellate jurisdiction over criminal and civil cases committed

© Gironella – Macadatar 2017 | Judicial Power and the Role of Judiciary 3

 Superior and Inferior Courts
Error of Jurisdiction Error of Judgment
Superior Inferior One where the court, officer One that the court may commit
courts which have the power of those which, in relation to or quasi-judicial body acts in the exercise of jurisdiction; it
review or supervision over another court, are lower in rank without or in excess of includes errors of procedure or
another and lower court and subject to review and jurisdiction, or with grave mistakes in the court’s findings
supervision by the latter abuse of discretion
Renders a judgment void or Does not make the court’s
Courts of Record and Not of Record at least voidable decision void
Correctible by certiorari Correctible by appeal
Courts of Record: These are courts whose proceedings are enrolled and which are There is an exercise of The court acted with jurisdiction
bound to keep written records of all trials and proceedings handled by them. R.A. jurisdiction in the absence of but committed procedural errors
No. 6031 mandates all Municipal Trial Courts to be courts of record. jurisdiction in the appreciation of the facts or
the law
Courts Not of Record – courts which are not required to keep a written record or
transcript of proceedings held therein How jurisdiction is conferred and determined

PRINCIPLE OF JUDICIAL HIERARCHY It is conferred by substantive law.

A higher court will not entertain direct resort to it unless the redress desired
cannot be obtained in the appropriate courts. The Supreme Court is a court of last
resort and must so remain if it is to satisfactorily perform assigned to it.
DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF JUDICIAL
STABILITY
Courts of equal and coordinate jurisdiction cannot interfere with each other’s
orders. Thus, the RTC has no power to nullify or enjoin the enforcement of a writ
of possession issued by another RTC. The principle also bars a court from
reviewing or interfering with the judgment of a co-equal court over which it has no
appellate jurisdiction or power of review.
Exception: The doctrine does not apply where a third party claimant is involved
DOCTRINE OF JUDICIAL SUPREMACY
 The doctrine recognizing that the judiciary is vested with the power to
annul the acts of either the legislative or the executive or of both when
not conformable to the fundamental law.
 The power of judicial review under the Constitution.
Civil Jurisdiction
Concept of Jurisdiction
Instances in which jurisdiction cannot be conferred
1. By the administrative policy of any court;
2. A court’s unilateral assumption of jurisdiction;
3. An erroneous belief by the court that it has jurisdiction;
4. By the parties through a stipulation e.g. contract;
5. The agreement of the parties acquired through, or waived, enlarged or
diminished by, any act or omission of the parties;
6. Parties silence, acquiescence or consent
Doctrine of Primary Jurisdiction, exhaustion of administrative
remedy
Doctrine of Primary Jurisdiction: Courts will not resolve a controversy involving
a question which is within the jurisdiction of an administrative tribunal, especially
where the question demands the exercise of sound administrative discretion
requiring the special knowledge and experience of said tribunal in determining
technical and intricate matters of fact
Doctrine of Ancillary Jurisdiction: It involves the inherent or implied powers of
the court to determine issues incidental to the exercise of its primary jurisdiction.
Will the failure to exhaust administrative remedies affect the jurisdiction of
the court?

Jurisdiction overthe Subject Matter
It is the power to deal with the general subject involved in the action, and means
not simply jurisdiction of the particular case then occupying the attention of the
court but jurisdiction of the class of cases to which the particular case belongs.
General Rule: No. It is not jurisdictional but the case will be dismissed on the
ground of lack of cause of action. It only renders the action premature.
Exception: Before a party may be allowed to invoke the jurisdiction of the courts, he
is expected to have exhausted all means of administrative redress

Jurisdiction vs. Exercise of Jurisdiction Exceptions to the Exceotion:

1. Question raised is purely legal;
Jurisdiction is the authority to hear and decide cases. 2. When the administrative body is in estoppels;
3. When the act complained of is patently illegal;
Exercise of jurisdiction is any act of the court pursuant to such authority, which 4. When there is need for judicial intervention;
includes making decisions. 5. When the respondent acted in disregard of due process;
6. When the respondent is the alter-ego of the President, bear the implied
Error of Jurisdiction vs. Error of Judgment or assumed approval of the latter;

© Gironella – Macadatar 2017 | Civil Jurisdiction 4

 7. When irreparable damage will be suffered; reason of public policy (Filipinas Shell Petroleum Corp. v. Dumlao, G.R. No. L-
8. When there is no other plain, speedy and adequate remedy; 44888, Feb. 7, 1992).
9. When strong public interest is involved; and
10. In quo warranto proceedings 3. A party who invokes the jurisdiction of the court to secure affirmative
relief against his opponents cannot repudiate or question the same after
Principle of adherence of jurisdiction failing to obtain such relief

Jurisdiction, once attached, cannot be ousted by subsequent happenings or events Effect of estoppel on objections to jurisdiction
although of a character which would have prevented jurisdiction from attaching in
the first instance, and the court retains jurisdiction until it finally disposes of the The active participation of a party in a case is tantamount to recognition of that
case. court’s jurisdiction and will bar a party from impugning the court’s jurisdiction.
 This only applies to exceptional circumstances.
Exceptions:
1. Where a subsequent statute expressly prohibits the continued exercise Jurisdiction Over The Parties
of jurisdiction;
2. Where the law penalizing an act which is punishable is repealed by a Jurisdiction over the Complainant or Plaintiff:
subsequent law;  It is acquired from the moment of filing the complaint, petition or
3. When accused is deprived of his constitutional right such as where the initiatory pleading.
court fails to provide counsel for the accused who is unable to obtain
one and does not intelligently waive his constitutional right; Jurisdiction over the Defendant:
4. Where the statute expressly provides, or is construed to the effect that It is acquired either:
it is intended to operate as to actions pending before its enactment; a. By his voluntary appearance in court and his submission to its authority
5. When the proceedings in the court acquiring jurisdiction is terminated, b. By service of summons
abandoned or declared void; c. Other coercive process upon him
6. Once appeal has been perfected;
7. Curative statutes Note: Jurisdiction over the defendant is not essential in actions in rem or quasi in
rem as long as the court has jurisdiction over the res
Note: Jurisdiction being a matter of substantive law, the established rule is that
statute in force at the time of the commencement of the action determines Jurisdiction Over the Subject Jurisdiction Over the Person
jurisdiction. Matter
Determined by the allegations of Acquired by the filing of the
Objections to jurisdiction over the subject matter; when raised the complaint petition in case of the plaintiff
or by arrest, by valid service of
Effect of lack of jurisdiction over the subject matter: Note: Tenancy relationship is summons or voluntary
 the court shall dismiss it not presumed and it is not submission to the court’s
enough that it is alleged. There authority in case of the
The court may on its own initiative object to an erroneous jurisdiction and may ex must be evidence to prove that defendant
meromotu take cognizance of lack of jurisdiction at any point in the case and has a it exists and that all its elements
clearly recognized right to determine its own jurisdiction are established.

When Raised: at any stage of the proceedings

Conferred by law which may be It is sometimes made to depend,

Note: Jurisdiction can be questioned even for the first time on appeal
either the Constitution or a indirectly at least, on the party’s
statute volition
Exceptions:
Cannot be conferred by the GR: The appearance of the
1. Estoppel by laches.
agreement of the parties, by defendant in whatever form is
contract or by parties’ silence or submission to the jurisdiction
SC barred a belated objection to jurisdiction that was raised only after an adverse
acquiescence of the court
decision was rendered by the court against the party raising the issue of
jurisdiction and after seeking affirmative relief from the court and after
EX: If the appearance is to
participating in all stages of the proceedings(Tijam v. Sibonghanoy, G.R. No. L-
object or question the court’s
21450, Apr. 15, 1968).
jurisdiction

2. Public policy
Note: In criminal cases,
jurisdiction over the accused is
One cannot question the jurisdiction which he invoked, not because the decision is
always required
valid and conclusive as an adjudication, but because it cannot be tolerated by

© Gironella – Macadatar 2017 | Concept of Jurisdiction 5

Sharuff vs. Bubla, 12 SCRA 79: Petitioner insists that the
respondent court acquired no jurisdiction over the person of
respondent Bubla. We find this to be without merit. It is settled law
in this jurisdiction that a court may acquire jurisdiction over the
person of a party either by his voluntary appearance in court
demanding affirmative relief or by having him served with summons
within the territorial jurisdiction of the Philippines. Bubla was the
plaintiff in Civil Case No. 33461 filed against the herein petitioner.
By filing his complaint, therefore, Bubla submitted voluntarily to
the jurisdiction of the respondent court and the latter acquired such
jurisdiction even if, as a matter of fact, Bubla had never been able to
enter the Philippines.
Jurisdiction Over The Issues
It is the power of the court to try and decide issues raised in the pleadings of the
parties or by their agreement in a pre-trial order or those tried by the implied
consent of the parties.
 It may also be conferred by waiver or failure to object to the
presentation of evidence on a matter not raised in the pleadings
Pe vs. IAC, 195 SCRA 137: Time and again, We stress that "courts
of justice have no jurisdiction or power to decide a question not in
issue." A judgment going outside the issues and purporting to
adjudicate something upon which the parties were not heard is not
merely irregular, but extrajudicial and invalid.
Thus, the lower court erred in discussing novation, an issue which
is neither raised in the pleadings nor material to the controversy.
Jurisdiction Over The Res or Property in Litigation
It is acquired either by:
1. The seizure of the property under legal process.
2. As a result of the institution of legal proceedings, in which the power of
the court is recognized and made effective.
3. The court by placing the property of thing under its custody
(custodialegis) - attachment of property.
4. The court through statutory authority conferring upon it the power to
deal with the property or thing within the court’s territorial jurisdiction
- suits involving the status of the parties or suits involving the property
in the Philippines of non-resident defendants.
Lucas vs. Lucas, 650 SCRA 667: was the service of summons
jurisdictional? The answer to this question depends on the nature of
petitioner’s action, that is, whether it is an action in personam, in
rem, or quasi in rem.
An action in personamis lodged against a person based on personal
liability; an action in rem is directed against the thing itself instead
of the person; while an action quasi in rem names a person as
defendant, but its object is to subject that person's interest in a
property to a corresponding lien or obligation.
A petition directed against the "thing" itself or the res, which
concerns the status of a person, like a petition for adoption,
annulment of marriage, or correction of entries in the birth
© Gironella – Macadatar 2017 | Kinds of Jurisdiction
certificate, is an action in rem.
In an action in personam, jurisdiction over the person of the
defendant is necessary for the court to validly try and decide the
case. In a proceeding in rem or quasi in rem, jurisdiction over the
person of the defendant is not a prerequisite to confer jurisdiction
on the court, provided that the latter has jurisdiction over the res.
Jurisdiction over the res is acquired either (a) by the seizure of the
property under legal process, whereby it is brought into actual
custody of the law, or (b) as a result of the institution of legal
proceedings, in which the power of the court is recognized and
made effective.
The herein petition to establish illegitimate filiation is an action in
rem. By the simple filing of the petition to establish illegitimate
filiation before the RTC, which undoubtedly had jurisdiction over
the subject matter of the petition, the latter thereby acquired
jurisdiction over the case. An in rem proceeding is validated
essentially through publication. Through publication, all interested
parties are deemed notified of the petition.
If at all, service of summons or notice is made to the defendant, it is
not for the purpose of vesting the court with jurisdiction, but
merely for satisfying the due process requirements.
Power of the Congress to Define, Prescribe, and Apportion the
Jurisdiction of Courts
The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the
various courts but may not deprive the Supreme Court of its jurisdiction over cases enumerated in
Section 5 hereof.
Kinds of Jurisdiction
I. ORIGINAL vs. APPELLATE
Original when actions or proceedings are originally filed with it.
Appellate when it has the power of review over the decisions or orders of a lower
court
II. EXCLUSIVE vs. CONCURRENT
Exclusive precludes the idea of co-existence and refers to jurisdiction possessed to
the exclusion of others.
Concurrent is the power of different courts to take cognizance of the same subject
matter
III. ORIGINAL EXCLUSIVE vs. ORIGINAL CONCURRENT
IV. GENERAL vs. SPECIAL
Courts of general jurisdiction are those with competence to decide on their own
jurisdiction and take cognizance of all cases, civil and criminal, of a particular
nature.
6
 2. Civil Service Commission
Courts of special (limited) jurisdiction have special jurisdiction only for a 3. Quasi-judicial agencies (file with the CA first)
particular purpose or are clothed with special powers for the performance of 4. RTC and lower courts;
specified duties beyond which they have no authority of any kind
b. Petitions for issuance of writ of kalikasan
Specific Jurisdiction of Court With the Court of Appeals and Regional Trial Court
1. Petitions for habeas corpus and quo warranto; and
Supreme Court 2. Petitions for issuance of writs of certiorari, prohibition
and mandamus against the lower courts or other bodies
En Banc Cases: With the CA, RTC and Sandiganbayan
1. Petitions for the issuance of writ of amparo
a. All cases involving the constitutionality of a treaty, international or executive 2. Petition for writ of habeas data, where the action
agreement, or law; involves public data or government office
b. Cases involving the constitutionality, application or operation of presidential 3. Petitions for habeas corpus and quo warranto; and
decrees, proclamations, orders, instructions, ordinances and other 4. Petitions for issuance of writs of certiorari, prohibition
regulations; and mandamus against the lower courts or other bodies
c. A case where the required number of vote in a division is not obtained; With the Regional Trial Court
d. A doctrine or principle laid down in a decision rendered en banc or by Actions affecting ambassadors and other public ministers and
division is modified, or reversed; consuls
e. All other cases required to be heard en banc under the Rules of Court
Court of Appeals
Exclusive Original:
Petitions for issuance of writs of certiorari, prohibition and Exclusive Original:
mandamus against the following: Actions for annulment of judgments of RTC based upon extrinsic
1. Court of Appeals fraud or lack of jurisdiction
2. Commission on Elections En Banc Appellate:
3. Commission on Audit
1. Final judgments, decisions, resolutions, orders, awards of:
4. Sandiganbayan
a. RTC
Appellate: i. In the exercise of its original jurisdiction;
1. Appeal by petition for review on certiorari: ii. In the exercise of its appellate jurisdiction;
a. Appeals from the CA b. Family Courts;
b. Appeals from the CTA; c. RTC on the appealed first to the CA;
c. Appeals from RTC exercising original jurisdiction in the d. Appeals from RTC in cases appealed from MTCs
following cases: which are not a matter of right.
i. If no question of fact is involved and the case involves: 2. Appeal from MTC in the exercise of its delegated
a) Constitutionality or validity of treaty, jurisdiction (R.A. 7691).
international or executive agreement, law, 3. Appeals from Civil Service Commission;
presidential decree, proclamation, order, a. Appeals from quasi-judicial agencies questions of
instruction, ordinance or regulation constitutionality, validity of tax, jurisdiction
b) Legality of tax, impost, assessments, or toll, or involving questions of fact, which should be
penalty in relation thereto 4. under Rule 43;
c) Cases in which jurisdiction of lower court is in 5. Appeals from the National Commission on Indigenous
issue Peoples (NCIP); and
ii. All cases in which only errors or questions of law are 6. Appeals from the Office of the Ombudsman in
involved. administrative disciplinary cases
Concurrent:
2. Special civil action of certiorari – filed within 30 days
With the Supreme Court
against the COMELEC / COA
1. Petitions for issuance of writs of certiorari, prohibition
Concurrent:
and mandamus against the following:
With the Court of Appeals: a. NLRC under the Labor Code.
a. Petitions for issuance of writs of certiorari, prohibition and b. Civil Service Commission
mandamus against the following c. Quasi-judicial agencies
1. NLRC under the Labor Code. d. RTCs and other lower courts.
2. Petitions for issuance of writ of kalikasan
Note: The petitions must first be filed with the CA, otherwise, they
With Supreme Court and Regional Trial Court
shall be dismissed.
1. Petitions for habeas corpus and quo warranto; and

© Gironella – Macadatar 2017 | Specific Jurisdiction of Court 7

 2. Petitions for the issuance of writs of certiorari,
prohibition and mandamus against the lower courts
With the SC, RTC and Sandiganbayan
1. Petitions for the issuance of writ of amparo
2. Petition for writ of habeas data, where the action
involves public data or government office
Sandiganbayan
Exclusive Original:
Cases involving violations of:
a. EO No. 1 (Creating the PCGG);
b. EO No. 2 (Illegal Acquisition and Misappropriations of
Ferdinand Marcos, Imelda Marcos their close relatives,
subordinates, business associates, dummies, agents or
nominees);
c. EO No. 14 [Cases involving the ill-gotten wealth of the
immediately mentioned persons (Marcos and dummies)];
and
d. EO No. 14-A (amendments to EO No. 14)
Where one or more of the accused are officials occupying the
following positions in the government, whether in a permanent,
acting or interim capacity, at the time of the commission of the offense:
(1) ―Officials of the executive branch occupying the positions
of regional director and higher, otherwise classified as
Grade ’27’ and higher, of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758),
specifically including:
a. Provincial governors, vice-governors, members
of the sangguniangpanlalawigan, and
provincial treasurers, assessors, engineers, and
other provincial department heads:
b. City mayors, vice-mayors, members of the
sangguniangpanlungsod, city treasurers,
assessors, engineers, and other city department
heads;
c. Officials of the diplomatic service occupying
the position of consul and higher;
d. Philippine army and air force colonels, naval
captains, and all officers of higher rank;
e. Officers of the Philippine National Police while
occupying the position of provincial director
and those holding the rank of senior
superintendent and higher;
f. City and provincial prosecutors and their
assistants, and officials and prosecutors in the
Office of the Ombudsman and special
prosecutor;
g. Presidents, directors or trustees, or managers
of government-owned or controlled
corporations, state universities or educational
institutions or foundations.
(2) Members of Congress and officials thereof classified as
Grade ’27’ and higher
© Gironella – Macadatar 2017 | Specific Jurisdiction of Court
(3) Members of the judiciary without prejudice to the
provisions of the Constitution;
(4) Chairmen and members of the Constitutional
Commissions, without prejudice to the provisions of the
Constitution; and
(5) All other national and local officials classified as Grade
’27’ and higher
Provided, That the Regional Trial Court shall have exclusive
original jurisdiction where the information:
a) does not allege any damage to the government or any
bribery; or
b) alleges damage to the government or bribery arising from
the same or closely related transactions or acts in an
amount not exceeding P1,000,000.00
Appellate:
Appeals from final judgments, resolutions or orders of the RTC,
whether in the exercise of their original or appellate jurisdiction, in
cases involving public officials or employees not otherwise
mentioned in the preceding enumeration.
Concurrent:
With the Supreme Court
Petitions for certiorari, prohibition, mandamus, habeas corpus,
injunction and other ancillary writs in aid of its appellate
jurisdiction, including quo warranto arising in cases falling under
Executive Order Nos. 1, 2, 14 and 14-A.
With Supreme Court, CA and Regional Trial Court
Petitions for the issuance of writ of amparo and writ of habeas data.
Q: Governor Charles of Tarlac was charged with indirect bribery
before the Sandiganbayan for accepting a car in exchange for the
award of a series of contracts for medical supplies.
TheSandiganbayan, after going over the information, found the
same to be valid and ordered the suspension of Charles. The latter
contested the suspension claiming that under the law (Sec. 13, R.A.
3019), his suspension is not automatic upon the filing of the
information and his suspension under Sec. 13, R.A. 3019 is in conflict
with Sec. 5 of the Decentralization Act of 1967 (R.A. 5185). The
Sandiganbayan overruled Charles’ contention stating that the
suspension under the circumstances is mandatory. Is the court's
ruling correct?
A: Yes. Charles’ suspension is mandatory, although not automatic.
It is mandatory after the determination of the validity of the
information in a pre-suspension hearing. The purpose of the
suspension is to prevent the accused public officer from frustrating
or hampering his prosecution by intimidating or influencing
witnesses or tampering with evidence or from committing further
acts of malfeasance while in office. (2001 Bar Question)
Regional Trial Court
Exclusive Original:
1. Actions in which the subject of litigation is incapable of
8
 pecuniary estimation;
2. Actions involving title to or possession of real property or Where there are several claims or causes of actions between the same or different
any interest therein where the assessed value exceeds parties embodied in one complaint, the amount of the demand shall be the totality
P20,000 or P50,000 in Metro Manila, except forcible of the claims in all causes of action irrespective of whether the causes of action
entry and unlawful detainer; arose out of the same or different transaction
3. Actions in admiralty and maritime jurisdiction where
demand or claim exceeds P300,000 or P400,000 in Metro Municipal Trial Court
Manila;
4. Matters of probate, testate or intestate, where gross value Exclusive Original
of estate exceeds P300,000 or P400,000 in Metro Manila; 1. Actions involving personal property where the value of
5. Cases not within the exclusive jurisdiction of any court, the property does not exceed P300,000 or, in Metro
tribunal, person or body exercising judicial or quasi- Manila P400,000;
judicial function; 2. Actions for claim of money where the demand does not
6. Civil actions and special proceedings falling within exceed P300,000 or, in Metro Manila P400,000;
exclusive original jurisdiction of Juvenile and Domestic 3. Probate proceedings, testate or intestate, where the value
Relations Court and Court of Agrarian Reforms; of the estate does not exceed P300,000 or, in Metro
7. Other cases where the demand, exclusive of interest, Manila P400,000;
damages, attorney’s fees, litigation expenses and costs, or
value of property in controversy exceeds P300,000 or Note: In the foregoing, claim must be exclusive of interest, damages,
P400,000 in Metro Manila; and attorney’s fees, litigation expense, and costs
8. Intra-corporate controversies under Sec. 5.2 of the
Securities and Regulation Code. 4. Actions involving title to or possession of real property or
Appellate: any interest therein where the value or amount does not
General Rule: All cases decided by lower courts (MTC etc.) in their exceed P20,000 or, in Metro Manila P50,000 exclusive of
respective territorial jurisdictions. interest damages, attorney’s fees, litigation expense, and
costs; (2008 Bar Question)
Exceptions: Decisions of lower courts in the exercise of delegated 5. Maritime claims where the demand or claim does not
jurisdiction. exceed P300,000 or, in Metro Manila P400,000
Concurrent: 6. Inclusion or exclusion of voters
With the Supreme Court, SB and CA 7. Those covered by the Rules on Summary Procedure:
1. Writ of amparo a. Forcible entry and unlawful detainer;
2. Writ of habeas data b. Other civil cases except probate where the
With Supreme Court total amount of the plaintiff’s claims does not
exceed P100,000 or, in Metro Manila P200,000
Actions affecting ambassadors and other public ministers and
exclusive interest and costs (as amended by
consuls
A.M. No. 02-11-09-SC).
With Supreme Court and Court of Appeals
8. Those covered by the Rules on Small Claims - where the
1. Certiorari, prohibition and mandamus against lower
value of the claim does not exceed Two Hundred
courts and bodies;
Thousand Pesos (P200,000.00) exclusive of interest and
2. Habeas corpus and quo warranto;
costs.
With Municipal Trial Court
Delegated
Cases involving enforcement or violations of environmental and Cadastral or land registration cases covering lots where:
other related laws, rules and regulations a. There is no controversy or opposition;
b. Contested but the value does not exceed P100,000
Test to determine whether an action is capable of pecuniary estimation: Special
Petition for habeas corpus in the absence of all RTC judges in the
The criterion is the nature of the principal action or the remedy sought. If it is
province or city
primarily for the recovery of a sum of money, the claim is considered capable of
pecuniary estimation, and whether jurisdiction is in the MTCs or in the RTCs
Courts of Muslim Mindanao
would depend on the amount of the claim.

Shari'a District Courts

However, where the basic issue is something other than the right to recover a sum
of money, where the money claim is purely incidental to, or a consequence of, the
principal relief sought like specific performance suits and in actions for support, or
for annulment of a judgment or foreclosure of mortgage, such actions are incapable
of pecuniary estimation, and are cognizable exclusively by the RTCs
Aggregate or Totality Rule
Exclusive Original
(1) All cases involving custody, guardianship, legitimacy,
paternity and filiation arising under the Code of Muslim
Personal Laws;
(2) All cases involving disposition, distribution and

© Gironella – Macadatar 2017 | Specific Jurisdiction of Court 9

 settlement of estate of deceased Muslims, probate of
wills, issuance of letters of administration or
appointment of administrators or executors regardless of
the nature or aggregate value of the property
(3) Petitions for the declaration of absence and death for the
cancellation or correction of entries in the Muslim
Registries mentioned in Title VI, Book Two of the Code
of Muslim Personal Laws;
(4) All actions arising from the customary contracts in which
the parties are Muslims, if they have not specified which
law shall govern their relations; and
(5) All petitions for mandamus, prohibition, injunction,
certiorari, habeas corpus, and all other auxiliary writs
and processes in aid of its appellate jurisdiction.
Concurrent with all Civil Courts
(1) Petitions by Muslim for the constitution of a family
home, change of name and commitment of an insane
person to an asylum;
(2) All other personal and legal actions not mentioned in
paragraph 1 (d) wherein the parties involved are Muslims
except those for forcible entry and unlawful detainer,
which shall fall under the exclusive jurisdiction of the
Municipal Circuit Court; and
(3) All special civic actions for interpleader or declaratory
relief wherein the parties are Muslims or the property
involved belongs exclusively to Muslims.
Shari'a Circuit Courts
Original
1. All cases involving offenses defined and punished under
Presidential Decree No. 1083;
2. All civil actions and proceedings between parties who are
Muslims or have been married in accordance with Article
13 of Presidential Decree No. 1083 involving disputes
relating to:
i. Marriage;
ii. Divorce recognized under Presidential Decree No.
1083;
iii. Betrothal or breach of contract to marry
iv. Customary dowry (mahr);
v. Disposition and distribution of property upon
divorce;
vi. Maintenance and support, and concolotary
gifts(mut'a); and
vii. Restitution of marital rights.
3. All cases involving disputes relative to communal
properties.
Shari'a Appellate Courts
Agama Arbitration Council
The Shari’a District Court or the Shari’a Circuit Court may constitute an Agama
Arbitration Council to settle certain cases amicably and without formal trial. The
Council is composed of the Clerk of Court as Chairperson and a representative of
each of the conflicting parties.
© Gironella – Macadatar 2017 | Specific Jurisdiction of Court
Cases which can be heard by the Agama Arbitration Council
1. Dispute brought about by wife’s exercise of tafwid (when a husband has
delegated to the wife the right to effect a divorce at the time of the
celebration of the marriage or thereafter)
2. Dispute brought about by husband’s exercise of talaq (when divorce is
effected by the husband in a single repudiation of his wife during her
nonmenstrual period within which he has totally abstained from carnal
relation with her)
3. Dispute brought about by husband’s intention to contract a subsequent
marriage and the wife objects
4. Dispute arising from husband’s refusal to give consent to wife’s exercise
of profession or occupation or engagement in lawful business
5. Dispute brought about by a commission of an offense against customary
law which can be settled without formal trial.
Other Special Courts
FAMILY COURTS
Exclusive Original
(1) Petitions for guardianship, custody of children, habeas
corpus in relation to minor;
(2) Petitions for adoption of children and its revocation;
(3) Complaints for annulment and declaration of nullity of
marriage and those relating to marital status and
property relations of spouses or those living together
under different status and agreements; and petitions for
dissolution of conjugal partnership of gains;
(4) Petitions for support and/or acknowledgment;
(5) Summary judicial proceedings under the Family Code of
the Philippines;
(6) Petitions for declaration of status of children as
abandoned, dependent or neglected children, petitions
for voluntary or involuntary commitment of children, the
suspension, termination, or restoration of parental
authority and other cases cognizable under PD 603, EO
and other related laws; and
(7) Petitions for the constitution of the family home
COMMERCIAL COURTS
Cases previously falling within the original exclusive jurisdiction of the SEC, now
within the Original exclusive jurisdiction of the RTCs designated as commercial
courts.
10
 SPECIAL PROCEEDINGS: Remedy by which a party seeks establish a status, a
The 1987 Rules of Civil right, or a particular fact.

Procedure Civil Action Special Proceedings

 Where a party  Where his purpose is to seek the
General Provisions litigant seeks to appointment of a guardian for an
recover property insane person, his remedy is a
Applicability from another, his special proceeding to establish the
remedy is to file an fact or status of insanity calling for
These Rules shall apply in all the courts, except as otherwise provided by the action. an appointment of guardianship.
Supreme Court  To protect a right  To establish a status, a right or a
and prevent or particular fact.
Exceptions: redress a wrong.  may involve a right but there need
a. election cases  Involves a right not be a violation of this right
b. land registration and a violation of  Specific kinds of special
c. cadastral such right. proceedings are found in Rule 71 -
d. naturalization 109
e. insolvency proceedings
f. other cases not provided for except by analogy or in a suppletory Inception of an Action
character

Commencement of Action
Cases Covered by the Rules
A civil action is commenced by the filing of the original complaint in court.
CIVIL ACTIONS: One by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong.
In case where there are Additional Defendant: If an additional defendant is
impleaded in a later pleading, the action is commenced with regard to him on the
 Ordinary Civil Action: Formal demand of one’s legal rights in a court of
date of the filing of such later pleading, irrespective of whether the motion for its
justice in the manner prescribed by the court or by law.
admission, if necessary, is denied by the court.
o Governed by ordinary rules.

Docket Fees:
Provisional Remedies:
1. Preliminary attachment
In Manchester v. Court of Appeals, it was held that a court acquires jurisdiction over
2. Preliminary injunction
any case only upon the payment of the prescribed docket fee.
3. Receivership
4. Replevin
The strict application of thisrule was, however, relaxed two (2) years after in the
5. Support pendente lite
case of Sun Insurance Office, Ltd. v. Asuncion, wherein the Court decreed that where
the initiatory pleading is not accompanied by the payment of the docket fee, the
 Special Civil Action: It has special features not found in ordinary civil
court may allow payment of the fee within a reasonable period of time, but in
actions.
no case beyond the applicable prescriptive or reglementary period. This ruling
o It is governed by ordinary rules but subject to specific rules
was made on the premise that the plaintiff had demonstrated his willingness to
prescribed under Rules 62-71.
abide by the rules by paying the additional docket fees required.
Interpleader
Declaratory relief and similar remedies
Review of judgments and final orders or
Concept of Ordinary Civil Action and cause of action
resolutions of the COMELEC and COA
Certiorari, prohibition, mandamus CAUSE OF ACTION: the act or omission by which a party violates the rights of
Quo warranto another
Expropriation
Foreclosure of Real Estate Mortgage Requisites:
Partition 1. The existence of a legal right of the plaintiff
Forcible entry and unlawful detainer 2. A correlative duty of the defendant to respect one’s right
Contempt 3. An act or omission of the defendant in violation of the plaintiff’s right.

CRIMINAL ACTION:One by which the State prosecutes a person for an act or Nature: predicated on substantive law or on quasi-delicts under the NCC
omission punishable by law.
Basis: the allegations of the plaintiff in the complaint
 Not affected by affirmative defenses

© Gironella – Macadatar 2017 | The 1987 Rules of Civil Procedure 11

  That means that realty or interest therein is the
RIGHT OF CAUSE OF ACTION: Remedial right or right to relief granted by law subject matter of the action.
to a party to institute an action against a person who has committed a delict or
wrong against him It is important that the matter in litigation must also involve any of the following
issues:
Requisites: 1. Title to
1. There must be a good cause (existence of a cause of action) 2. Ownership
2. A compliance with all the conditions precedent to the bringing of the 3. Possession
action 4. Partition
3. The action must be instituted by the proper party. 5. Foreclosure of mortgage
6. Any interest in real property.
Nature: It is procedural in character is the consequence of the violation of the right
of the plaintiff Venue: court where the property or portion thereof is located

Basis: the plaintiff’s cause of action b. Personal: Personal property is sought to be recovered or
 Affected by affirmative defenses where damages for breach of contract are sought
 Founded on privity of contract such as damages,
Note: There is no right of action where there is no cause of action. claims of money, etc.

Failure to state cause of action vs No cause of action Venue: the place where the plaintiff or any of the principal plaintiffs resides or any
of the defendants resides, at the election of the plaintiff
Failure to state cause of action No cause of action  in the case of a non-resident defendant, where he may be found
Insufficiency in the allegations Failure to prove or establish by
of the complaint evidence one’s stated cause of III. As to Object
action a. In Personam: A proceeding to enforce personal rights and
Raised in a motion to dismiss Raised in a demurrer to obligations brought against the person
under Rule 16 before a evidence under Rule 33 after the  An action to impose a responsibility or liability
responsive pleading is filed plaintiff has rested his case upon a person directly
Determined only from the Resolved only on the basis of  Jurisdiction over the person of the defendant is
allegations of the pleading and the evidence he has presented in required
not from evidentiary matters support of his claim  Judgment is binding only upon parties impleaded
or their successors-in-interest
Test of the sufficiency of a cause of action: Examples:
1. Action for specific performance
1. Whether or not admitting the facts alleged, the court could render a 2. Action for breach of contract
valid verdict in accordance with the prayer of the complaint 3. Action for ejectment
2. The sufficiency of the statement of cause of action must appear on the 4. Action for a sum of money; for damages
face of the complaint and its existence is only determined by the
allegations of the complaint b. In Rem: A proceeding to subject the property of such persons
to the discharge of the claims assailed.
Note: The truth or falsity of the allegations is beside the point because the  A proceeding to determine the state or condition of
allegations in the complaint are hypothetically admitted. Thus a motion to a thing
dismiss on the ground of failure to state a cause of action, hypothetically admits  Directed against the thing itself; directed against
the matters alleged in the complaint the whole world
 Jurisdiction over the person of the defendant is not
CLASSIFICATION OF CIVIL ACTIONS: required. Jusrisdiction over the RES is required
through publication in a newspaper of general
I. As to Nature circulation.
a. Ordinary – see discussion under ―concept of ordinary civil Examples:
action‖ 1. Probate proceeding
b. Special 2. Cadastral proceeding
3. Land registration proceeding
II. As to Cause or Foundation
a. Real: When it affects title to or possession of a real property, Splitting a single cause of action vs Consolidation of cases vs Severance:
or an interest therein
 When it is founded upon the privity of a real SPLITTING: It is the act of instituting two or more suits on the basis of the same
estate. cause of action

© Gironella – Macadatar 2017 | Inception of an Action 12

  The filing of one or a judgment upon the merits in any one action is
available as a ground for the dismissal of the others. 1. Right to relief arises out of the same transaction or series of transactions
o LitisPendencia (connected with the same subject matter of the suit);
o Res Judicata 2. There is a question of law or fact common to all the plaintiffs or
 The rule against splitting a single cause of action applies not only defendants; and
to complaints but also to counterclaims and cross-claims. 3. Joinder is not otherwise provided by the provisions of the Rules on
jurisdiction and venue
Illustration: An action for forcible entry should include not only the plea for restoration of
possession but also claims for damages arising out of the forcible entry. COMPULSORY JOINDER OF INDISPENSABLE PARTIES: Parties in interest
without whom no final determination can be had of an action shall be joined either
CONSOLIDATION:When actions involving a common question of law or fact are as plaintiff or as defendants
pending before the court, it may order a joint hearing or trial of any or all the
matters in issue in the actions, it may order all the actions consolidated Concept of Venue

SEVERANCE: The court, in furtherance of convenience or to avoid prejudice, may Real actions: proper court which has jurisdiction over the area wherein the real
order a separate trial of any claim, cross-claim, counterclaim or third-party property involved, or a portion thereof is situated
complaint, or any separate issue or of any number of claims, cross-claims,  actions affecting title to or possession of real property, forcible entry
counterclaims, third-party complaints or issues. and detainer

Totality Rule: Where there are several claims or causes of actions between the Personal actions: where the plaintiff or any principal plaintiffs resides, or where
same or different parties embodied in one complaint, the amount of the demand the defendant or any of the principal defendants resides
shall be the totality of the claims in all causes of action irrespective of whether the  in the case of a non-resident defendant, where he may be found, at the
causes of action arose out of the same or different transaction, the aggregate election of the plaintiff
amount shall determine the jurisdiction of the court
Actions against non-residents: if the action affects the personal status of the
Joinder vs. Misjoinder: plaintiff, or any property of said defendant located in the Philippines, the action
may be commenced and tried in the court of the place where the plaintiff resides,
Rules on proper joinder of action: or where the property or any portion thereof is situated or found
1. Proper joinder of parties
2. Shall not include special civil action or actions governed by special rules When rules are not applicable
3. Rule on venue a. Cases where a specific rule or law provides otherwise
4. Totality Rule b. Where the parties have validly agreed in writing before the filing of the
action on the exclusive venue thereof
PROPER JOINDER OF PARTIES: It is the assertion of as many causes of action a
party may have against another in one pleading alone Filing of Complaint

NON-JOINDER: A party is not joined when he is supposed to be joined but is not COMPLAINT: The complaint is the pleading alleging the plaintiff’s cause or
impleaded in the action. causes of action.
 The names and residences of the plaintiff and defendant must be stated
MISJOINDER: A party is misjoined when he is made a party to the action in the complaint.
although he should not be impleaded
The Law on Pleadings
Effect of misjoinder: not a ground for dismissal of an action
 A misjoined cause of action may, on motion of a party or on the initiative
Definition of Pleadings
of the court, be severed and proceeded with separately.

Pleadings are the written statements of the respective claims and defenses of the
Note: There is no sanction against a non-joinder of several causes of action since a
parties submitted to the court for appropriate judgment.
plaintiff needs only a single cause of action to maintain an action.
 Neither misjoinder and non-joinder of parties is ground for dismissal of
Note: Pleadings cannot be oral because they are clearly described as ―written‖
an action.
statements.
 Parties may be dropped or added by order of the court on motion of any
party or on its own initiative at any stage of the action and on such
terms as are just. Parts of a Pleading

PERMISSIVE JOINDER: All persons against whom any right to relief, in respect CAPTION:The caption sets forth
to the same transaction/s, may join as plaintiffs or be joined as defendants in one 1. The name of the court,
complaint, where any question of law or fact common to all such plaintiffs or to all 2. the title of the action, and
such defendants may arise in the action 3. The docket number if assigned.

© Gironella – Macadatar 2017 | The Law on Pleadings 13

 13. Petition for indirect contempt
Title of the action:It should indicate the names of the parties. They shall all be 14. Petition for appointment of general guardian
named in the original complaint or petition but in subsequent pleadings, it shall be 15. Petition for leave to sell or encumber property of an estate by a guardian
sufficient if the name of the first party on each side be stated with an appropriate 16. Petition for the declaration of competency of a ward
indication when there are other parties. 17. Petition for habeas corpus
18. Petition for change of name
SIGNATURE and ADDRESS:The complaint must be signed by the plaintiff or 19. Petition for voluntary judicial dissolution of a corporation;
counsel representing him indicating his address. 20. Petition for correction or cancellation of entries in Civil Registry. (1996
Bar Question)
Note: This address should not be a post office box. An unsigned pleading produces
no legal effect. Effects of lack of verification:A pleading required to be verified but lacks the proper
verification shall be treated as an unsigned pleading
In case of deficiency:However, the court may, in its discretion, allow such deficiency - Hence, it produces no legal effect
to be remedied if it shall appear that the same was due to mere inadvertence and - It does not necessarily render the pleading defective.
not intended for delay. - It is only a formal and not a jurisdictional requirement.
- The requirement is a condition affecting only the form of the pleading
Disciplinary Actions:Counsel who: and non-compliance therewith does not necessarily render it fatally
1. deliberately files an unsigned pleading, or defective
2. signs a pleading in violation of this Rule, or
3. alleges scandalous or indecent matter therein, or How to cure lack of verification:The absence of verification may be corrected by
4. fails to promptly report to the court a change of his address
requiring an oath.

VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING:

Certification of Non Forum Shopping:

Verification:
Nature:It is a mandatory requirement in filing a complaint and other initiatory
pleadings asserting a claim or relief
How:It is verified by an affidavit.

Who executes certification against forum-shopping?It is the plaintiff or principal party

This affidavit declares that the:
who executes the certification under oath.
1. Affiant has read the pleading; and
- It must be signed by the party himself and cannot be signed by his
2. Allegations therein are true and correct of his personal knowledge or
counsels.
based on authentic records
- It is the plaintiff who is in the best position to know whether he or it
actually filed or caused the filing of a petition.
Necessity of verification: it is not necessary except when otherwise specifically
required by law or rule, pleadings need not be under oath, verified or accompanied
by affidavit Undertakings:

1. That the party has not commenced or filed any claim involving the same
Significance of Verification:it is intended to secure an assurance that the allegations in
issues in any court, tribunal, or quasi-judicial agency and, to the best of
a pleading are true and correct and not the product of the imagination or a matter
his knowledge, no such other action or claim is pending
of speculation, and that the pleading is filed in good faith. The absence of a proper
2. That if there is such other pending action or claim, a complete statement
verification is cause to treat the pleading as unsigned and dismissible
of the present status thereof
3. That if he should therefore learn that the same or similar action or claim
Pleadings that should be verified:
has been filed or is pending, he shall report that fact within five days
therefrom to the court wherein his aforesaid complaint or initiatory
1. Petition for relief from judgment
pleading has been filed
2. Petition for review from the RTCs to the CA
3. Petition for review from the CTA and quasi-judicial agencies to the CA
Effects of non-compliance with the rule on certification:It is not curable by mere
4. Appeal by certiorari from the CA to the SC
amendment and shall be a cause for the dismissal of action
5. Petition for annulment of judgments or final orders and resolutions
6. Complaint for injunction
Note: When the case is dismissed due to non-compliance with the certification,
7. Application for appointment of receiver
filing fees cannot be recovered.
8. Application for support pendente lite
9. Petition for certiorari against the judgments, final orders or resolutions
Effects of non-compliance with the undertakings of submission of false certification:It has the
of constitutional commissions
same effect as the submission of false certification. Hence, such failure shall
10. Petition for certiorari, prohibition, mandamus, quo warranto
constitute indirect contempt of court without prejudice to the corresponding
11. Complaint for expropriation
administrative and criminal sanctions.
12. Complaint for forcible entry or unlawful detainer

© Gironella – Macadatar 2017 | The Law on Pleadings 14

Effects of willful and deliberate forum shopping:It shall be a ground for summary
dismissal. This dismissal is with prejudice and shall constitute direct contempt as
well as cause for administrative sanctions
Is belated filing allowed by the courts?
General Rule: No. The lack of certification against forum shopping is generally not
curable by the submission thereof after the filing of the petition.
Exceptions: In certain exceptional circumstances, however, the Court has allowed
the belated filing of the certification. In Loyola v. Court of Appeals, et al. (245
SCRA 477 [1995]), the Court considered the filing of the certification one day after
the filing of an election protest as substantial compliance with the requirement.
Q: Mayor Miguel, Mayor of City Koronadal, filed an action against
RD Corporation for the annulment of the deed of absolute sale over
several real properties of City of Koronadal alleging irregularities
thereto with the RTC. The said deed of absolute sale was
authorized by Mayor Miguel’s predecessor, Mayor de Jesus. The
RTC dismissed the petition because the certification against forum
shopping was signed by the City Legal Officer of City of Koronadal
and not by Mayor Miguel. Is the RTC correct?
Affirmative defenses – allegation of a new matter which while hypothetically
admitting the material allegations in the pleading would nevertheless prevent or
bar recovery by the claiming party. It is in the nature of confession and avoidance
Negative defenses – specific denial of the material facts or facts alleged in the
pleading essential to establish the plaintiff’s cause of action
Negative pregnant - A denial which does not qualify as a specific denial. It is
conceded to be actually an admission.
- It is a form of denial which, at the same time, involves an affirmative
implication favorable to the opposing party.
Where a fact is alleged with some qualification or modifying language and the
denial is conjunctive, a negative pregnant exists, and only the qualification or
modification is denied, while the fact itself is admitted.
COUNTER – CLAIM: It is any claim which a defending party may have
against an opposing party. It partakes of a complaint by the defendant against the
plaintiff
- A counterclaim may be asserted against an original counter-claimant
and a cross-claim may also be filed against an original cross-claimant.

A: Yes. It is the mayor, not the City Legal Officer, who has the Compulsory Counterclaim Permissive Counterclaim
authority to file suits for the recovery of funds and property on One which arises out of or is It does not arise out of nor is it
behalf of the city even without the prior authorization from the necessarily connected with the necessarily connected with
Sanggunian. Here, Mayor Miguel had the authority to institute the transaction or occurrence that is the subject matter of the
action against RD Corporation. However, being the proper party to the subject matter of the opposing opposing party’s claim
file such suits, Mayor Miguel must necessarily be the one to sign the party’s claim
certification against forum-shopping, and not the City Legal Officer, It does not require for its It may require for its
who, despite being an official of the City, was merely its counsel adjudication the presence of third adjudication the presence of
and not a party to the case (City of Caloocan v. CA, G.R. No. parties of whom the court cannot third parties over whom the
145004, May 3, 2006). acquire jurisdiction court cannot acquire
jurisdiction
Kinds of pleadings Barred if not set up in the action Not barred even if not set up
in the action
1. Complaint Need not be answered; No default Must be answered,:
2. Counterclaim Otherwise, default
3. Cross-claim Not an initiatory pleading. Initiatory pleading.
4. Third party claim Need not be accompanied by a Must be accompanied by a
5. Reply certification against forum certification against forum
6. Answer shopping and certificate to file shopping and whenever
7. Complaint in intervention action by the required by law, also a
LupongTagapamayapa. certificate tofile action by the
COMPLAINT: It is a concise statement of the ultimate facts constituting the LupongTagapamayapa
plaintiff’s cause or causes of action, with a specification of the relief sought, but it The court has jurisdiction to Must be within the
may add a general prayer for such further relief as may be deemed just or equitable. entertain both as to the amount jurisdiction of the court where
and nature the case is pending and
Note: A pleading alleging the plaintiff’s cause or causes of action. The names and cognizable by regular courts of
residences of the plaintiff and defendant must be stated. justice otherwise, defendant
will have to file it in separate
ANSWER: It is the pleading where the defendant sets forth his affirmative or proceeding which requires
negative defenses. It may likewise be the response to a counterclaim or a cross- payment of docket fee
claim.
Note: A plaintiff who fails or who chooses not to answer a compulsory
Note: An answer is a compulsory pleading. This pleading may be an answer to the counterclaim may not be declared in default, principally because the issues raised
complaint, an answer to counter claim or an answer to a cross-claim

© Gironella – Macadatar 2017 | The Law on Pleadings 15

in the counterclaim are deemed automatically joined by the allegations of the
complaint
- In an original action before the RTC, the counterclaim may be
considered compulsory regardless of the amount
Effect of the dismissal of a complaint on the counterclaim:
1. If no motion to dismiss has been filed, any of the grounds for dismissal
under rule 16 may be pleaded as an affirmative defense in the answer,
and in the discretion of the court, a preliminary hearing may be had
thereon as if a motion to dismiss has been filed.
After hearing, when the complaint is dismissed, the
counterclaim, compulsory or permissive is not dismissed.
2. When the plaintiff himself files a motion to dismiss his complaint after
the defendant has pleaded his answer with a counterclaim. If the court
grants the motion, the dismissal shall be limited to the complaint.
It shall be without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action unless within
15 days from notice of the motion, manifests his preference to
have his counterclaim resolved in the same action (Sec. 2,
Rule 17).
3. When the complaint is dismissed through the fault of the plaintiff and
at a time when a counterclaim has already been set up
the dismissal is without prejudice tothe right of the
defendant to prosecute his counterclaim in the same or
separate action
Q: Fe filed a suit for collection of P387,000 against Ramon in the
RTC of Davao City. Aside from alleging payment as a defense,
Ramon in his answer set up counterclaims for P100,000 as damages
and P30,000 as attorney's fees as a result of the baseless filing of the
complaint, as well as for P250,000 as the balance of the purchase
price of the 30 units of air conditioners he sold to Fe. Suppose that
instead of alleging payment as a defense in his answer, Ramon filed
a motion to dismiss on that ground, at the same time setting up his
counterclaims, and the court grants his motion. What will happen
to his counterclaims?
A: Since Ramon filed only a motion to dismiss, not an answer, the
dismissal of the complaint would also bring about the dismissal of
his counterclaims but he can file a separate action for his permissive
counterclaims. The compulsory counterclaims are deemed waived
when he filed a motion to dismiss the complaint instead of
answering the same (Financial Building Corp. v. Forbes Park
Association, Inc., G.R. No. 133119, Aug. 17, 2000). (2008 Bar
Question)
CROSS – CLAIMS:
1. A claim by one party against a co-party;
2. It must arise out of the subject matter of the complaint or of the
counterclaim; and
3. The cross-claimant is prejudiced by the claim against him by the
opposing party.
Effect if a cross-claim was not set up:
General Rule: Barred if not set up. (Sec.2, Rule 9)
© Gironella – Macadatar 2017 | The Law on Pleadings
Exceptions: If it is not asserted through oversight, inadvertence, or excusable
negligence, it may still be set up with leave of court by amendment of the
pleadings.
THIRD (FOURTH, ETC) PARTY COMPLAINTS:A third (fourth, etc.) party
complaint is a claim that a defending party may, with leave of court, file against a
person not a party to the action, called the third (fourth, etc.) party defendant, for
contribution, indemnity, subrogation or any other relief, in respect of his
opponent's claim.
Third Party complaint vs. Bringing in New Parties:
A third-party complaint is proper when not one of the third-party defendants therein
is a party to the main action.
Whereas in bringing in new parties, if one or more of the defendants in a counterclaim
or cross-claim is already a party to the action, then the other necessary parties may
be brought in under the rules on bringing in new parties
Reason; Need of Leave of Court:To obviate delay in the resolution of the
complaint such as when the third-party defendant cannot be located; or
unnecessary issues may be introduced; or the introduction of a new and separate
controversy.
Tests to determine whether the third-party complaint is in respect of plaintiff’s
claim:
1. Whether it arises out of the same transaction on which the plaintiff’s
claim is based, or, although arising out of another or different
transaction, is connected with the plaintiff’s claim;
2. Whether the third-party defendant would be liable to the plaintiff or to
the defendant for all or part of the plaintiff’s claim against the original
defendant; and
3. Whether the third-party defendant may assert any defenses which the
third-party plaintiff has or may have to the plaintiff’s claim.
Note: Where the trial court has jurisdiction over the main case, it also has
jurisdiction over the third party complaint, regardless of the amount involved as a
third-party complaint is merely auxiliary to and is a continuation of the main
action
- A third party complaint is not proper in an action for declaratory relief.
- The court is vested with the discretion to allow or disallow a party to an
action to implead an additional party. Thus, a defendant has no vested
right to file a third party complaint
Q: Abby obtained a favorable judgment against UNICAP for a sum
of money. For failure to get full payment, Abby went after
UNICAP’s debtor Ben. Ben is a policy holder of Insular. The court’s
sheriff then served a notice of garnishment to Insular over several
account receivables due to Ben. Insular refused to comply with the
order alleging adverse claims over the garnished amounts. The trial
court ordered Insular to release to Abby the said account
receivables of Ben under the policies. Insular then filed a petition for
certiorari with the CA alleging that the trial judge gravely abused
his discretion when he issued the garnishment order despite its
adverse claim on the garnished amounts. The CA gave due course to
the petition and annulled the order of the trial court. Is the Court of
Appeals correct?
16
 Modes of Service of Summons
A: No. Neither an appeal nor a petition for certiorari is the proper
remedy from the denial of a third-party claim. Since the third-party
claimant is not one of the parties to the action, he could not, strictly Other Rules
speaking, appeal from the order denying its claim, but should file a
separate reinvindicatory action against the execution creditor or a
complaint for damages against the bond filed by the judgment
Effect of lack of Summons
creditor in favor of the sheriff. The rights of a third-party claimant
should be decided in a separate action to be instituted by the third
person (Solidum v. CA, G.R. No. 161647, June 22, 2006).

COMPLAINT IN INTERVENTION:An intervention pleading filed for the The Rules on Motions
purpose of asserting a claim against either or all of the original parties.
Motions in General
REPLY:

Necessity of reply: it is not necessary

- If a party does not file such reply. All the new matters that were alleged Some Motions under the Rules on Civil Procedure
in the answer are deemed controverted
Omnibus Motion Rules
Exceptions
1. Where the answer alleges the defense of usury in which case a reply
under oath should be made. Otherwise, the allegation of usurious
Motion for Leave
interest shall be deemed admitted.
2. Where the defense in the answer is based on an actionable document, a
reply under oath pursuant to Sec. 8 of Rule 8 must be made. Otherwise,
the genuineness and due execution of the document shall be deemed Motion to Declare Defendant in Default
admitted.

Motion for Bill of Particulars

Manner of Making Allegations in Pleadings

Motion to Dismiss

Rules Regarding the Effect of Failure to Plead Definition

 It is a litigated motion.
 If you file a motion to dismiss you waived your right to interpose a
Rules on Amendment of Pleadings
counterclaim. Therefore if you have a counterclaim that is potent do not
file a motion to dismiss, file an answer with counterclaim using your
ground for motion to dismiss as affirmative defenses.
Rules on the filing and service of Pleadings / Judgment / Final
Orders / Resolutions Purpose

The Rules on Parties to Civil Actions Time to file

Parties to a Civil Action Within the time for but before filing the answer to the complaint or pleading
asserting a claim

Who must file

The Rules on Summons

Form and Contents
Significance of Service of Summons; In rem vs. In Personam
Actions Procedure in Hearing

© Gironella – Macadatar 2017 | The Rules on Parties to Civil Actions 17

Hearing of motion: At the hearing of the motion, the parties shall submit their  Under the law it is held that while lack of jurisdiction over the person of
arguments on the questions of law and their evidence on the questions of fact the defendant may be duly and seasonably raised, his voluntary
involved except those not available at that time. appearance in court without qualification is a waiver of such defense.

Should the case go to trial, the evidence presented during the hearing shall LACK OF JURISDICTION OVER THE SUBJECT
automatically be part of the evidence of the party presenting the same. MATTER OF THE ACTION

Resolution of Motion: After the hearing, the court may: This ground is not waivable. It can be raised anytime on the proceedings.
 Dismiss the action or claim
 deny the motion, or; Note: Under the law, jurisdiction over the subject matter is conferred by law and
 Order the amendment of the pleading. determined by the allegations in the complaint regardless of whether or not the
plaintiff is entitled to recover upon all or some of the claims asserted therein.
Note: The court shall not defer the resolution of the motion for the reason that the
ground relied upon is not indubitable. Exceptions: Estoppel by laches.
Where a party invokes the jurisdiction of a court to obtain affirmative relief, and it
In every case, the resolution shall state clearly and distinctly the reasons therefor. failed, he cannot therefor repudiate such jurisdiction.

Specific Grounds / Effects of grant or denial / Remedies While the issue of jurisdiction may be raised at anytime, he is estopped as it is
tantamount to speculating on the fortunes of litigation.
If the motion is denied: the movant shall file his answer within the balance of the
period to which he was entitled at the time of serving his motion Also where the other party knows the lack of jurisdiction but filed a counterclaim.
o but not less than 5 days in any event
o Computed from his receipt of the notice of the denial. VENUE IMPROPERLY LAID
o Proceed then to trial
NO LEGAL CAPACITY TO SUE
Remedies:
o If decision is adverse, appeal therefrom and raise as error the denial of LITIS PENDENTIA / LIS PENDENS / DOCTRINE OF
the motion to dismiss. AUTERACTION PENDANT
o If there is grave abuse of discretion amounting to lack or excess of
jurisdiction, certiorari or prohibition may lie under Rule 65. Requisites:
o If there is unlawful neglect of the performance of an act which the law a. Identity of the parties
specifically enjoins, mandamus is the proper remedy. b. Identity of rights asserted and reliefs prayed for, being founded on the
same facts
If the pleading is ordered to be amended: he shall file his answer within the c. Identity with respect to the two preceding particulars, such that any
period prescribed judgment that may be rendered in the pending case would amount to
o counted from service of the amended pleading red adjudicate in the other case.
o Unless the court provides a longer period.
ACTION BARRED BY PRIOR JUDGMENT / RES
Effect of dismissal JUDICATA

Bar the refiling of the same action or claim STATUTE OF LIMITATIONS

An order granting a motion to dismiss based on:
1. That the cause of action is barred by a prior judgment or by the statute FAILURE OF THE COMPLAINT TO STATE A CAUSE
of limitations OF ACTION
2. That the claim or demand set forth in the plaintiff's pleading has been
paid, waived, abandoned, or otherwise extinguished Curable by amendment
3. That the claim on which the action is founded is enforceable under the
provisions of the statute of frauds CLAIM OR DEMAND HAS BEEN PAID, WAIVED,
ABANDONED, OR OTHERWISE EXTINGUISHED
If the dismissal is without prejudice: the plaintiff may re-file the complaint.
STATUTE OF FRAUDS
If the dismissal is with prejudice: the plaintiff may file an appeal.
NON – COMPLAINCE OF A CONDITION PRECEDENT
LACK OF JURISDICTION OVER THE PERSON OF THE
DEFENDANT Pleading the grounds for a motion to dismiss as affirmative defenses

 This ground is waivable especially if there is a voluntary appearance. When: If no motion to dismiss has been filed

© Gironella – Macadatar 2017 | Some Motions under the Rules on Civil Procedure 18
What: any of the grounds for dismissal provided for in this Rule may be pleaded as
an affirmative defense in the answer
Hearing: in the discretion of the court, a preliminary hearing may be had thereon as
if a motion to dismiss had been filed.
Effect of the Dismissal: shall be without prejudice to the prosecution in the same or
separate action of a counterclaim pleaded in the answer.
Vs. motion to quash in criminal cases
d. So situated as to be adversely affected by a distribution or
other disposition of the property in the custody of the court
or of an officer thereof
3. Intervention will not unduly delay or prejudice the adjudication of the rights
of original parties; and
4. Intervenor’s rights may not be fully protected in a separate proceeding
Legal interest: It must be one that is actual and material, direct and of an
immediate character, not merely contingent or expectant so that the intervenor
will either gain or lose by the direct legal operation of the judgment.

Demurrer to evidence and demurrer to evidence in criminal cases Vs. interpleader

Rule 33 (Demurrer to Intervention Interpleader

Rule 16 (Motion to Dismiss)
Grounded on preliminary
objections
May be filed by any defending
party against whom a claim is
asserted in the action
Should be filed within the time
for but prior to the filing of the
answer
If denied, defendant answers, or
else he may be declared in
default.
If granted, plaintiff may appeal or if
subsequent case is not barred, he
may re-file the case
Motion to Intervene
Concept and Nature
Evidence)
Based on insufficiency
evidence
May be filed only by
defendant against
complaint of the plaintiff
May be filed only after
plaintiff has completed
presentation of his evidence
If denied, defendant may present
evidence. If granted, but on
appeal the order of dismissal is
reversed, the defendant loses
his right to present evidence
An ancillary action An original action
of Proper when the intervenor has legal Presupposes that the plaintiff
interest in the matter in litigation, or has no interest in the subject
the in the success of either of the parties, matter of the action or has
the or an interest against both, or is so interest therein, which in
situated as to be adversely affected by whole or in part, is not
the a distribution or other disposition of disputed by the other parties
the property in the custody of the court. to the action.
Defendants are already original Defendants are being sued
parties to the pending suit precisely to implead them
Who may intervene
A person who has a legal interest in:
1. the matter in litigation, or
2. in the success of either of the parties, or
3. an interest against both, or
4. is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer
thereof may

It is a legal proceeding by which a third person is permitted by the court to How: with leave of court
become a party by intervening in a pending action after meeting the conditions
and requirement set by the Rules of Court. What the court will consider:
1. Whether or not the intervention will unduly delay or prejudice the
This person who intervenes is one who is not originally impleaded in the action. adjudication of the rights of the original parties, and
2. Whether or not the intervenor's rights may be fully protected in a
- An intervention should not alter the theory of both parties separate proceeding.
- Never an independent action but ancillary and supplemental to the
existing litigation Time to intervene
- It is merely optional and permissive
May be filed at any time before rendition of judgment by the trial court
Exception:
- When intervention has been allowed and the complaint-in-intervention Intervention after judgment:
has already been filed before plaintiff’s action had been expressly
dismissed General rule: After rendition of judgment, a motion to intervene is barred,
even if the judgment itself recognizes the right of the movant.
Requisites:
1. There must be a motion for intervention filed before rendition of judgment by Exception:
the trial court 1. With respect to indispensable parties, intervention may be allowed even
2. The movant must show in his motion that he has: on appeal;
a. Legal interest in the matter in controversy; 2. When the intervenor is the Republic;
b. Legal interest in the success of either of the parties;
c. Legal interest against both parties; or

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 3. Where necessary to protect some interest which cannot otherwise be Dismissal by the Plaintiff
protected, and for the purpose of preserving the intervenor’s right to
appeal;
Dismissal upon notice by plaintiff / as a matter of right
4. May be allowed during the pendency of the appeal, where the interest of
justice so required.
How: by filing a notice of dismissal

Required form
When to file: at any time before service of the answer or of a motion for summary
judgment.
A copy of the pleading-in-intervention shall be attached to the motion and served
on the original parties.
Nature of the dismissal: the dismissal is without prejudice

Pleadings-in-intervention
Exception:
1. Where the notice of dismissal so provides.
Complaint-in-intervention: if he asserts a claim against either or all of the
2. Where the plaintiff has previously dismissed the same case in a court of
original parties.
competent jurisdiction twice [two dismissal rule].
3. Even where the notice of dismissal does not provide that it is with
Answer-in-intervention: if he unites with the defending party in resisting a claim
prejudice but it is premised on the fact of payment by the defendant of
against the latter.
the claim involved.

Answer to complaint-in-intervention: shall be filed within 15 days from notice of

Note: the court will not exercise its discretion but it will issue an order confirming
the order admitting the same, unless a different period is fixed by the court.
the dismissal.

How to assail a complaint–in-intervention

TWO DISMISSAL RULE:
- Operates as adjudication upon the merits when filed by a plaintiff who
Show that the intervenor does not qualify in the given requisites for the filing of a
has once dismissed in a competent court an action based on or including
Motion to Intervene (See no. 2 requisite)
the same claim.
Effects
Elements:
1. Plaintiff dismissed an action twice
If Granted
2. The action is based OR includes the same claim or cause of action
3. The same was filled in a court of competent jurisdiction.
- The third party becomes a party to the suit either as one of the plaintiffs
or one of the defendants.
Note: the two dismissal rule is not self-executing. It is up to the defendant to
invoke it.
Nature: A grant of motion to intervene is interlocutory

Dismissal upon motion of plaintiff / judicial discretion

Remedy: Anyone who objects can file a petition for certiorari for improper granting
of intervention
How: by filing a motionwith leave of court

If denied, Remedies
When to file: after the service of an answer

- Mandamus will not lie except in case of grave abuse of discretion

Counterclaim by the Defendant: If a counterclaim has been pleaded by a
- Denial of the motion does not constitute res judicata
defendant prior to the service upon him of the plaintiff’s motion for dismissal, the
- File a separate action dismissal shall be limited to the complaint.

Notes: The dismissal shall be without prejudice to the right of the defendant to prosecute
 Intervention is not allowed in land registration cases. File an opposition his counterclaim in:
to the action. Land registration cases are proceedings in rem. 1. a separate action
2. Unless within 15 days from notice of the motion he manifests his
Things to consider in resolving intervention: preference to have his counterclaim resolved in the same action.
The Ground    
The right to speedy, efficient and Nature of the dismissal: Unless otherwise specified in the order, a dismissal shall
   
effective trial be without prejudice.
The possibility of separately prosecuting
   
his claims or defenses by the intervenor Note: A class suit shall not be dismissed or compromised without the approval of
Deny or Grant D D G D/G the court.

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 Dismissal due to fault of plaintiff:
When:
1. If, for no justifiable cause, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint, or
2. to prosecute his action for an unreasonable length of time, or
3. to comply with these Rules or any order of the court
How: the complaint may be dismissed upon motion of the defendant or upon the
court's own motion,
- without prejudice to the right of the defendant to prosecute his
counterclaim in the same or in a separate action.
Effect of the dismissal: This dismissal shall have the effect of an adjudication
upon the merits, unless otherwise declared by the court.
The plaintiff’s failure to appear at the trial after he has presented his
evidence and rested his case does not warrant the dismissal of the
case on the ground of failure to prosecute. It is merely a waiver of his
right to cross-examine and to object to the admissibility of evidence
(Jalover v. Ytoriaga, G.R. No. L-35989, Oct. 28, 1977).
The Rules On Pre Trial
Concept, Nature and Purpose
It is a procedural device by which the court is called upon, after the filing of the
last pleading, to compel the parties and their lawyers to appear before it, and
negotiate an amicable settlement or otherwise make a formal statement and
embody in a single document the issues of fact and law involved in the action, and
such other matters as may aid in the prompt disposition of the action (Herrera,
Vol. I, p. 1074, 2007 ed.)
When conducted: After the last pleading has been served and filed
Duty of the Plaintiff: to promptly move ex parte that the case be set for pre-trial
Nature: it is mandatory
Matters to consider during Pre-Trial
The court shall consider:
To whom it is served: shall be served on counsel, or on the party who has no
counsel.
- The counsel served with such notice is charged with the duty of
notifying the party represented by him.
Effects of failure to appear during Pre-Trial
It shall be the duty of the parties and their counsel to appear at the pre-trial.
When nonappearance may be excused:
1. if a valid cause is shown therefor or
2. if a representative shall appear in his behalf
 fully authorized in writing to enter into an:
i. amicable settlement
ii. to submit to alternative modes of dispute
resolution, and
iii. to enter into stipulations or admissions of facts and
of documents
Effect of failure to appear:
 The failure of the plaintiff to appear - cause for dismissal of the action.
o The dismissal shall be with prejudice, unless other-wise
ordered by the court.
 Failure on the part of the defendant - allow the plaintiff to present his
evidence ex parte and the court to render judgment on the basis thereof.
Pre-trial Brief
The parties shall file with the court and serve on the adverse party, in such manner
as shall ensure their receipt thereof at least 3 days before the date of the pre-trial,
their respective pre-trial briefs
Contents:
(a) A statement of their willingness to enter into amicable settlement or
alternative modes of dispute resolution, indicating the desired terms
thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented stating the purpose thereof;
(e) A manifestation of their having availed or their intention to avail
themselves of discovery procedures or referral to commissioners; and
(f) The number and names of the witnesses, and the substance of their
respective testimonies.

(a) The possibility of an amicable settlement or of a submission to alternative

Note: Failure to file the pre-trial brief shall have the same effect as failure to appear
modes of dispute resolution;
at the pre-trial.
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the pleadings;
Pre- Trial Order
(d) The possibility of obtaining stipulations or admissions of facts and of
documents to avoid unnecessary proof;
It is an order issued by the court reciting the actions taken, the facts stipulated and
(e) The limitation of the number of witnesses;
the evidence marked during the pre-trial conference. Such order binds the parties
(f) The advisability of a preliminary reference of issues to a commissioner;
and limits the trial to those matters not disposed of.
(g) The propriety of rendering judgment on the pleadings, or summary judgment,
or of dismissing the action should a valid ground therefor be found to exist;
When issued:within 10 days after the termination of the pre-trial.
(h) The advisability or necessity of suspending the proceedings; and
(i) Such other matters as may aid in the prompt disposition of the action.
Contents:
1. Actions taken during the pre-trial conference;
NOTICE OF PRE – TRIAL:

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 2. Facts stipulated;
3. Admissions made;
4. Evidence marked; and
5. Number of witnesses to be presented and the schedule of trial
Pre – Trial In Criminal Cases
Pre-trial in civil case
It is set when the plaintiff
moves ex parte to set the case for
pre-trial
The motion to set the case for
pre-trial is made after the last
pleading has been served and
filed
It considers the possibility of an
amicable settlement as an
important objective.
Requires the proceeding during
the preliminary conference to be
recorded in the ―minutes of
preliminary conference‖ to be
signed by both parties and/or
counsel. The rule allows either
the party or his counsel to sign
the minutes
Sanctions for non-appearance in
a pre-trial are imposed upon the
plaintiff and the defendant in a
civil case
Specifically required to be
submitted in a civil case (Sec. 6,
Rule 18)
Pre-trial in criminal case
It is ordered by the court and no
motion to set the case for pre-
trial is required from either the
prosecution or the defense
The pre-trial is ordered by the
court after arraignment and
within 30 days from the date the
court acquires jurisdiction over
the person of the accused.
It does not include the possibility
of amicable settlement of
criminal liability as one of its
purposes
All agreements or admissions
made or entered during the pre-
trial conference shall be reduced
in writing and signed by both the
accused and counsel, otherwise,
they cannot be used against the
accused
The sanctions in a criminal case
are imposed upon the counsel for
the accused or the prosecutor
Specifically required to be
submitted in a civil case (Sec. 6,
Rule 18)
- It shorten the period of litigation
- Speed up adjudication
Scope:
1. To serve as a device, along with pre-trial hearing to narrow and clarify the
basic issues between the parties
2. As a device for ascertaining the facts relative to those issues
Nature:
- these modes are cumulative not alternative or mutually exclusive
- Discovery still applies even if motion for bill of particulars was denied
- Available to criminal cases except interrogatories to parties and deposition
before action
Limitations:
1. Those matters which are privileged
2. Those under protection order
3. The modes of discovery must not be conducted in bad faith
Kinds
Modes of discovery under the Rules of Court:
1. Depositions pending actions (Rule 23) - deposition de bene esse
2. Depositions before action or pending appeal (Rule 24) - deposition
perpetuam rei memoriam
3. Interrogatories to parties (Rule 25)
4. Admission by adverse party (Rule 26)
5. Production or Inspection of documents or things (Rule 27)
6. Physical or mental examination of persons (Rule 28)
 DEPOSITIONS

Modes of Discovery

Nature, Rationale, Importance, Purpose and Scope

Discovery: is a device employed by a party to obtain information about relevant

matters on the case from the adverse party in preparation for trial.
- The device may be used by all parties to the case.

Purpose: to permit mutual knowledge before trial of all relevant facts gathered by
no parties so that either party may compel the other to disgorge facts whatever he
has in his possession.
- Designed to serve as an additional device aside from a pretrial.
- Not for the purposes of fishing evidence
- Can be utilize in civil and in criminal procedure

Importance: to disgorge whatever facts he has in his possession. - It is the taking of testimony of any person, whether he be a party or not, but at
the instance of a party to the action
- Advances the stage at which the disclosure can be compelled from the time of - This testimony is taken out of court.
trial to the period proceding to it, thus reducing the possibility of surprise.

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 Affidavit
Under oath
It is executed ex parte without any
opportunity for the other parties to
attend and cross examined the affiant
It is hearsay and inadmissible in
evidence
Two Kinds:
1. Deposition De Bene Esse
2. Deposition in perpetuam rei memoriam
Two methods:
1. An oral examination
2. A written interrogatory
Deposition
Under oath - The manner of taking is not subject to stipulations
There is opportunity to
attend and cross examine Deposition upon oral examination:
Admissible in evidence Requirements:
Exception to the hearsay A party desiring to take the deposition of any person upon oral examination shall
rule give to every party to the action a reasonable notice in writing, which contains the
following:
1. The time and place for taking the deposition
2. The name and address of each person to be examined, if known; if not known
, there must be a general description sufficient to identify him or the
particular class or group to which he belongs.
Protection orders before examination:

Used: How: upon motion seasonably made by any party or by the person to be
1. In a pending action examined and for good cause shown
2. A future action
3. For use in a pending appeal Orders that the court may make for the protection of parties and deponents:
1. That the deposition shall not be taken;
 Deposition de bene esse 2. That it may be taken only at some designated place other than that
stated in the notice;
Leave of court: 3. That it may be taken only on written interrogatories;
4. That certain matters shall not be inquired into;
- leave of court is not required after an answer has been served 5. That the scope of the examination shall be held with no one present
- Leave of court is required before the service of an answer but after jurisdiction except the parties to the action and their officers or counsel;
has been acquired over any defendant or over property subject an action 6. That after being sealed, the deposition shall be opened only by order of
the court, or that secret processes, developments, research need not be
Ex abudanticautela (out of abundant caution) - does not make an answer less of closed;
an answer 7. That the parties shall simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by the
court; or
Who can avail:
8. The court may make any other order which justice requires to protect the
party or witness from annoyance, embarrassment, or oppression
- The testimony of any person, whether a party or not, may be taken, at the
instance of any party, by depositions upon oral examination or written
Deposition taking proper:
interrogatories.
- Unequivocally, the rule does not make any distinction or restriction as to
Direct and cross examination:
who can avail of deposition.

The deponent may be examined or cross examined following the procedures for
Scope of Examination:
witnesses in a trial.

The deponent may be examined regarding:

He may be asked questions on direct, cross, re-direct, or re-cross.
a) any matter, not privileged (ultimate and evidentiary facts)
b) which is relevant to the subject of the pending action, whether relating
He has the same rights a witness and may be impeached like a court witness.
to the claim or defense of any other party,
c) including the existence, description, nature, custody, condition, and
Record of Examination: oath: objections:
location of any books, documents, or other tangible things and
d) The identity and location of persons having knowledge of relevant facts.
Guidelines:
e) Not covered by a protective order of the court

1. The officer before whom the deposition is taken shall put the witness on
Deposition of prisoner: his deposition may be taken only with leave of court and
oath.
upon such terms as the court may prescribed
2. The testimony of the witness or deponent must be recorded and be taken
stenographically, unless the parties agreed otherwise.
Manner:
3. All objections made at the time of the examination shall be noted.

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4. Evidence objected to shall be taken but subject to the objections
Option of parties NOT participating in the Oral Examination:
In lieu of participating in the oral examination, parties may serve with notice of
taking a deposition may transmit written interrogatories to the officers, who shall
propound them to the witness and record the answers verbatim.
The officer before whom the deposition is taken has no authority to rule on the
objections interposed during the course of the deposition.
When the testimony is fully transcribed, the deposition shall be submitted to the
witness for examination and shall be read to or by him.
Unless such examination and reading are waived by the witness and by the
parties.
Changes:
Any changes in form or substance which the witness desires to make shall be
entered upon the deposition by the officer.
- With a statement of the reasons given by the witness for making them.

Objections to be noted: Signing:

1. Qualifications of the officer taking the deposition; The deposition shall then be signed by the witness
2. Manner of taking the deposition; - unless the parties by stipulation waive the signing or
3. Evidence presented; - The witness is ill or cannot be found or refuses to sign.
4. Conduct of any party; or
5. Any other objection to the proceedings If the deposition is not signed by the witness, the officer shall sign it and state on
the record the fact of the waiver or of the illness or absence of the witness or the
Motion to Terminate / Limit Examination: fact of the refusal to sign together with the reason given therefor, if any, and the
deposition may then be used as fully as though signed
When: at any time during the taking of the deposition
Remedy: Motion to suppress
How: on motion or petition of any party or of the deponent - the court holds that the reasons given for the refusal to sign require rejection of
the deposition in whole or in part
Grounds: the examination is:
1. being conducted in bad faith or Certification and filing:
2. in such manner as unreasonably to annoy, embarrass or oppress the
deponent or party Officer:
3. The information is privileged The officer shall certify on the deposition that the witness was duly sworn to by
4. The information is not relevant and not material to the case him and that the deposition is a true record of the testimony given by the witness.

What court: the court in which the action is pending of the RTC of the place
where the deposition is being taken
Order: the officer conducting the examination to cease from taking the deposition
or may limit the scope and manner of the taking of the deposition
1. He shall then securely seal the deposition in an envelope indorsed with the
title of the action and marked "Deposition of (here insert the name of
witness)" and
2. shall promptly file it with the court in which the action is pending or send it
by registered mail to the clerk thereof for filing. (20, R24)

When terminated: resumed only after the order of the court in which the action is Notice of filing - The officer taking the deposition shall give prompt notice of its
pending filing to all the parties.

The court may impose upon either party or upon the witness the requirement to Uses:
pay such costs or expenses as the court may deemed reasonable
Against:
Motion to terminate Vs. Protection Order: a. Against any party who was present or represented at the taking of the
deposition, or
Protection Order (Sec. 16, Motion to Terminate or Limit b. Against one who had due notice of the deposition
Rule 23) Examination (Sec. 18, Rule 23)
Provides protection to the Provides such protection during the When:
party or witness before the taking of deposition. 1. at the trial or
taking of deposition. 2. upon the hearing of a motion or
The Motion is filed with the Motion or petition is filed in the 3. An interlocutory proceedings
court in which the action is court in which the action is
pending. pending or the RTC of the place May be used for the following purpose:
where the deposition is being
taken. 1. For contradicting or impeaching the testimony of the deponent as a witness

Submission to witness; signing:

© Gironella – Macadatar 2017 | Modes of Discovery 24

2. For any purpose by the adverse party where the deponent is a party or, at the
time of taking the deposition was an officer, director p, or managing agent of
a public or private corporation, partnership, or association which is a party
3. By any purpose by any party, whether the deponent is a witness, whether or
not a party, if the courts finds that:
or impose conditions therefor or to terminate the process on motion and upon a
showing that it is being conducted in bad faith
2. Such person or officer as may be appointed by commission or letters rogatory
- leave of court is necessary

a. The witness is dead Commission Letters Rogatory

b. That the witness resides more than 100 kilometers from the
place of trial or hearing, or is out of the Philippines, unless it
appears that his absence was procured by the party offering
the deposition
c. That the witness is unable to attend or testify because of age,
sickness, infirmity p, or imprisonment
d. That the party offering the deposition has been unable to
procure the attendance of witnesses by subpoena
e. When exceptional circumstances exists, upon application
and notice.
4. If only part of a deposition is offered in evidence by a party, the adverse party
may require him to introduce all of it which is relevant to the part introduced,
and any party may introduce any other parts.
Effects of substitution:
It does not affect the right to use the depositions previously taken.
"Carry - Over" Principle:
when an action has been dismissed and another action involving the same subject
is afterward brought between the same parties or their representatives or
successors in interest, all depositions lawfully taken and duly filed in the former
action may be used in the latter as if originally taken therefor.
These are just documents in order to perpetuate the testimony of a
deponent
Deponent no longer within the jurisdiction of a country
An instrument issued by Is a formal communication from a
the court of Justice, or domestic court in which an action is
other competent tribunal pending to a foreign court requesting
to authorize a person to that the testimony of a witness residing
take depositions, or do in such foreign jurisdiction be taken
any act by authority is under the direction of the court
such court or tribunal. addressed and transmitted to the court
making the request.
Issued to a non -judicial Issued to the appropriate judicial
foreign officer who will officer of the foreign country who
directly take the will direct somebody in saidforeign
testimony. country to take down testimony.
Applicable rules of Applicable rules of procedure are
procedure are those of those of the foreign court requested
the requesting court. to act.
Resorted to if permission Resorted to if the execution of the
of the foreign country is commission is refused in the foreign
given. country. Or when there is no legation
office
3. A person authorized to administer oaths by written stipulation of the parties

The court will grant the commission. The clerk of court will forward the commission and the
Effect of Taking deposition:
questions to the DFA. The DFA will forward the same to the country where the deposition shall be
taken.
It does not, by reason of such deposition, make such person the witness of said
party.
Letters Rogatory:
Persons before whom depositions may be taken: - The power to issue is inherent.
- It is not dependent on court rules and or statute alone but rests also upon
Within the Philippines international goodwill toward each other.
- In the language of the country where it is taken.
1. Before a judge
2. Notary public Disqualified to take depositions:
3. Before any person authorized to administer oaths if the parties so stipulate in 1. A relative within the sixth degree of consanguinity or affinity, or employee or
writing counsel of any of the parties
2. A relative within the same degree, or employee of such counsel
Outside of Philippines 3. One financially interested in the action

1. A secretary of an embassy or legation, consul general, consul, vice consul, or
consular agent of the Philippines
- Leave of court is not necessary.
The court intervenes when: a party moves to enlarge or shorten the time stated in
the notice or upon notice and good cause shown, to prevent the deposition taking
Deposition vs. Bill of Particulars
Déposition: witness's sworn out-of-court testimony. It used to gather
information as part of the discovery process and, in limited circumstances,
may be used at trial.
- The witness being deposed is called the "deponent."
- Depositions usually do not directly involve the court.

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Bill of Particulars: It is designed to clarify ambiguities in a pleading or to state 2. The name and descriptive title and address of the officer before whom the
with sufficient definiteness allegations in a pleading. It is therefore directed to a deposition is to be taken.
pleading.
Cross interrogatories:
Use of Deposition: - Serve by the party served with the interrogatories
- Must be within 10 days from servic of the written interrogatories
Effect of using the deposition of a person:
Re-direct interrogatories
The introduction of the deposition or any part thereof, makes the deponent the
- within 5 days
witness of the party introducing the deposition.

Re-cross interrogatories
Exception:
- within 3 days from the service of the re-direct interrogatories
1. The deposition was introduced to impeach or contradict the witness
2. If the deposition introduced was the deposition of an opposing part
Officers to take responses and prepare records:

Objections to admissibility
A copy of the notice and copies of all interrogatories served shall be delivered by
the party taking the deposition to the officer designated in the notice
Subject to the provisions of Section 29 of this Rule, objection may be made at the
trial or hearing to receiving in evidence any deposition or part thereof for any
Then he shall proceed promptly to take the testimony of the witness in response to
reason which would require the exclusion of the evidence if the witness were then
the interrogatories and to prepare, certify, and file or mail the deposition, attaching
present and testifying.
thereto the copy of the notice and the interrogatories received by him.

Rebutting deposition
Notice of filing and furnishing copies:

At the trial or hearing, any party may rebut any relevant evidence contained in a
1. When a deposition upon interrogatories is filed, the officer taking it
deposition whether introduced by him or by any other party
shall promptly give notice thereof to all the parties, and;
2. May furnish copies to them or to the deponent upon payment of
Effect of failure to attend \ Subpoena:
reasonable charges therefor.

Failure to attend of party giving notice

Orders for the protection of parties and deponents:

 If the party giving the notice of the taking of a deposition fails to attend
When: After the service of the interrogatories and prior to the taking of the
and proceed therewith
testimony of the deponent
 another attends in person or by counsel pursuant to the notice
Who: the court in which the action is pending
Consequences:The court may order the party giving the notice to pay such other
party the amount of the reasonable expenses incurred by him and his counsel in so
Condition:
attending, including reasonable attorney's fees.
1. on motion promptly made by a party or a deponent, and
2. for good cause shown,
Failure of party giving notice to serve subpoena
Order:
 If the party giving the notice of the taking of a deposition of a witness 1. may make any order specified in Sections 15 (Deposition upon oral
fails to serve a subpoena upon him examination, notice, time and place), 16 (Orders for the protection of
 the witness because of such failure does not attend, parties and deponents) and 18 (Motion to Terminate or limit
 if another party attends in person or by counsel because he expects the examination) which is appropriate and just or
deposition of that witness to be taken, 2. An order that the deposition shall not be taken before the officer
designated in the notice or
Consequences: the court may order the party giving the notice to pay such other 3. That it shall not be taken except upon oral examination.
party the amount of the reasonable expenses incurred by him and his counsel in so
attending, including reasonable attorney's fees. Effects or errors and irregularities:
Deposition upon written interrogatories:

- Waivable
Service and Notice:
- Unless, written objection is promptly served
notice
As to

upon the party giving the notice

Served the interrogatories upon every other party with a Notice stating the:
1. Name and address of the person who is to answer them

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 Petition, contents
- Waivable
disqualification

- Unless made before the taking of the deposition

The petition shall be entitled in the name of the petitioner and shall show:
of officer

begins or as soon thereafter as the

As to

disqualification becomes known or could be

discovered with reasonable diligence
- not waived by failure to make them before or
during the taking of the deposition
competency or
relevancy of
(a) That the petitioner expects to be a party to an action in a court of the
Philippines but is presently unable to bring it or cause it to be brought;
(b) The subject matter of the expected action and his interest therein;
(c) The facts which he desires to establish by the proposed testimony and
his reasons for desiring to perpetuate it;

- Unless the ground of the objection is one which (d) The names or a description of the persons he expects will be adverse
evidence

might have been obviated or removed if parties and their addresses so far as known; and
presented at that time
(e) The names and addresses of the persons to be examined and the
substance of the testimony which he expects to elicit from each, and
shall ask for an order authorizing the petitioner to take the depositions
of the persons to be examined named in the petition for the purpose of
Grounds: perpetuating their testimony.
 in the manner of taking the deposition,
As to oral examination and other

 in the form of the questions or answers,

 in the oath or affirmation, or Notice and Service Requirements
 in the conduct of the parties and errors of any
kind which might be obviated, removed, or cured
-
particulars

The petitioner shall serve a notice upon each person named in the
if promptly prosecuted
petition as an expected adverse party
- waivable - Together with a copy of the petition,
- unless reasonable objection thereto is made at - Stating that the petitioner will apply to the court, at a time and place
the taking of the deposition
named therein, for the order described in the petition.

When: At least 20 days before the date of the hearing

- Waivable
- unless served in writing upon the party Court’s Duty: the court shall cause notice thereof to be served on the parties and
interrogatories
As to form of

propounding them within the time allowed for prospective deponents in the manner provided for service of summons.
written

serving succeeding cross or other interrogatories

and within 3 days after service of the last
interrogatories authorized Order and Examination

Condition: If the court is satisfied that the perpetuation of the testimony may
prevent a failure or delay of justice,
- waivable
As to manner of

- Unless a motion to suppress the deposition or

preparation

some part thereof is made with reasonable

promptness after such defect is, or with due
diligence might have been, ascertained.
 Deposition in perpetuam rei memoriam
What Order:
1. It shall make an order designating or describing the persons whose
deposition may be taken and
2. Specifying the subject matter of the examination and
3. Whether the depositions shall be taken upon oral examination or
written interrogatories.

Coverage The depositions may be taken in accordance with Rule 23 before the hearing.

What testimony: Reference to court

1. A person who desires to perpetuate his own testimony or
2. that of another person - For the purpose of applying Rule 23 to depositions for perpetuating testimony,
- each reference therein to the court in which the action is pending shall be
Subject matter: regarding any matter that may be cognizable in any court of the deemed to refer to the court in which the petition for such deposition was filed
Philippines
Use of Deposition
What to file: may file a verified petition
- it would be admissible in evidence,
Venue: in the court of the place of the residence of any expected adverse party.

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- it may be used in any action involving the same subject matter sub-sequently Not served upon the adverse party It is served directly upon
brought in accordance with the provisions of sections 4 (Use of depositions) directly. They are instead delivered to the parties
and 5 (Effect of substitution of parties) of Rule 23. the officer designated in the office

 Deposition Pending Appeal

The service of written interrogatories is a mode of deposition

When:
separate and distinct from interrogatories to parties.
a) If an appeal has been taken from a judgment of a court, including the
Court of Appeals in proper cases, or
b) before the taking of an appeal if the time therefor has not expired
Scope

Where to file: Direct, cross, redirect, re-cross Only one set of

- the court in which the judgment was rendered interrogatories

How to file: Binding effect

In such case the party who desires to perpetuate the testimony may
To anyone who is present during the Only to the parties
- Make a motion in the said court for leave to take the depositions,
deposition
- Upon the same notice and service thereof as if the action was pending therein.

Time to Answer
Contents of the motion:
(a) The names and addresses of the persons to be examined and the No fixed time Within 15 days unless
substance of the testimony which he expects to elicit from each, and extended or reduce by the
(b) The reason for perpetuating their testimony. court

 INTERROGATORIES Through motion or petition Through a motion

How Can be availed of more than once Once as a general rule

- By filing and serving upon the adverse party written interrogatories to be

answered by the party served. Vs. Bill of Particulars
- if the party served is a public or private corporation or a partnership or
Interrogatories Bill of Particulars
association, by any officer thereof competent to testify in its behalf Interrogatories to parties are Designed to clarify ambiguities in
- through motion not directed to a particular a pleading or to state with
pleading. Instead, they seek to sufficient definiteness allegations
Who can avail disclose all material and in a pleading. It is therefore
relevant facts from a party directed to a pleading
- any party desiring to elicit material and relevant facts from any adverse parties
Answer to the interrogatories
Against who
The interrogatories shall be:
- Any adverse party a) Answered fully in writing and
b) Shall be signed and sworn to by the person making them.
Vs. deposition upon written interrogatories
When to file and serve a copy of the answers: within 15 days after service
thereof
Written Interrogatories in a Interrogatories to
deposition Parties - Unless the court on motion and for good cause shown, extends or shortens the
time.
Deponent
Objection to interrogatories
Party or ordinary witness Party only
When to present: within 10 days after service thereof, with notice as in case of a
Service motion;

Effect: answers shall be deferred until the objections are resolved, which shall be
at as early a time as is practicable.

Leave of court:

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General Rule: It is not necessary after answer has been served, for the first set of
interrogatories.
Exception: It is necessary before answer has been served because, at that time, the
issues are not yet joined and the disputed facts are not yet clear.
Number of interrogatories
General rule: No party may serve more than one set of interrogatories to be
answered by the same party.
Implied Admission
General Rule: Each of the matters of which an admission is requested shall be
deemed admitted
Exception: the party to whom the request is directed files and serves upon the
party requesting the admission a sworn statement either:
(1) Denying specifically the matters of which an admission is requested or
(2) Setting forth in detail the reasons why he cannot truthfully either admit
or deny those matters.

Exception: more than one if there is with leave of court
Scope and use
Matter: the deponent may be examined regarding:
a) any matter, not privileged, which is relevant to the subject of the
pending action, whether relating to the claim or defense of any other
party,
b) including the existence, description, nature, custody, condition, and
location of any books, documents, or other tangible things and
c) The identity and location of persons having knowledge of relevant facts.
Use: same with depositions
Effect of failure to serve written interrogatories
General Rules: a party not served with written interrogatories may not be
compelled by the adverse party to:
a. give testimony in open court, or
b. to give a deposition pending appeal
Exception: allowed by the court for good cause shown and to prevent a failure of
justice
Note: if the answer was signed and sworn to by the counsel – it is already a
sufficient compliance
Period:
1. within a period designated in the request, which shall not be less than
15 days after service thereof, or
2. within such further time as the court may allow on motion
A request for admission is not proper where the subject matters thereof are the
same as the ultimate facts alleged in the requesting party's complaint for which the
requested party had already denied in his answer.
- a party should not be required to make a second denial of those already denied
on his answer to the complaint
Objectionsto any request for admission:
- shall be submitted to the court by the party requested
- within the period for and prior to the filing of his sworn statement
- his compliance therewith shall be deferred until such objections are resolved
Effect of Admission
- for the purpose of the pending action only and
- shall not constitute an admission by him for any other purpose
- nor may the same be used against him in any other proceeding

 ADMISSION BY ADVERSE PARTY

Withdrawal

Request for admission The court may allow the party making an admission under the Rule, whether
express or implied, to withdraw or amend it upon such terms as may be just.
When:
- At any time after issues have been joined - File a motion to be relieved of the effects of his admission

How: Effect of Failure to file and serve request

- a party may file and serve upon any other party a written request for the
admission by the latter General Rule: a party who fails to file and serve a request for admission on the
adverse party of material and relevant facts at issue which are, or ought to be,
Matter: within the personal knowledge of the latter, shall not be permitted to present
1. Of the genuineness of any material and relevant document described in evidence on such facts.
and exhibited
2. With the request or of the truth of any material and relevant matter of Exception: allowed by the court for good cause shown and to prevent a failure of
fact set forth in the request. justice

Copies of the documents shall be delivered with the request unless copies have Consequence for failure to answer request for admission:
already been furnished.
- The facts or documents are deemed admitted
- It must be served directly with the parties

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  PRODUCTION AND INSPECTION OF DOCUMENTS OR for trial issuance intends to present in
THINGS evidence the witness or the
things subject thereof
Motion for production or inspection; order A mode of discovery Means of compelling production
of evidence
How: Upon motion of any party showing good cause Issued only upon motion with Ex parte application
notice to the adverse party
Order: the court in which an action is pending may
(a) order any party to produce and permit the inspection and copying or Acts permitted
photographing, by or on behalf of the moving party, of any designated
documents, papers, books, accounts, letters, photographs, objects or Limitations:
tangible things, not privileged, which constitute or contain evidence 1. Should not be privileged;
material to any matter involved in the action and which are in his 2. Should constitute or contain evidence material to any matter involved in
possession, custody or control, or the action and which are in his (the party ordered) possession, custody,
(b) Order any party to permit entry upon designated land or other property or control (Sec. 1, Rule 27); and
in his possession or control for the purpose of inspecting, measuring, 3. In the petition, the papers and documents to be produced must be
surveying, or photographing the property or any designated relevant sufficiently described.
object or operation thereon.
In criminal procedure
The order shall specify the time, place and manner of making the inspection and
taking copies and photographs, and may prescribe such terms and conditions as How: Upon motion of the accused showing good cause and with notice to the
are just. parties, the court

Privileged Documents: What: in order to prevent surprise, suppression, or alteration

(Section 24, Rule 130) Privileged Communications:
1. Communication between husband and wife Action: may order the prosecution to produce and permit the inspection and
2. Communication between attorney and client copying or photographing of any written statement given by the complainant and
3. Communication between physician and patient other witnesses in any investigation of the offense conducted by the prosecution or
4. Communication between priest and penitent other investigating officers, as well as any designated documents, papers, books,
5. Communication of public officers involving public interest accounts, letters, photographs, objects or tangible things not otherwise privileged,
which constitute or contain evidence material to any matter involved in the case
Others: and which are in the possession or under the control of the prosecution, police, or
1. Editors may not be compelled to disclose the source of published news other law investigating agencies.
2. Voters may not be compelled tp disclose for whom they voted
3. Trade secrets  PHYSICAL AND MENTAL EXAMINATION
4. Information contained in tax census returns
5. Bank deposits When may be ordered

Vs. unreasonable searches - In an action in which the mental or physical condition of a party is in
controversy
Unreasonable Searches - Discretionary on the part of the court
- A search of an individual or his/her premises (including an automobile) and/or - Applicable to parties only and not to witnesses
seizure of evidence found in such a search by a law enforcement officer without
a search warrant and without "probable cause" to believe evidence of a crime is
Example:
present.
1. An action for annulment of a contract where the ground relied upon is insanity
2. A petition for guardianship of a person alleged to be insane
Production or inspection of
Subpoena DucesTecum 3. An action to recover damages for personal injury where the issue is the extent of the
documents or things
Upon showing for good cause May be issued upon ex parte injuries of the plaintiff
and upon motion is required for application
an order for the production or Which court: the court in which the action is pending
inspection of documents or
things Order: order him to submit to a physical or mental examination by a physician.
Can only be directed to a party May be directed to a non-party
It is a pre-trial discovery device It is a process used during trial Note: Since the results of the examination are intended to be made public, the
intended to obtain facts or proper and contemplates that same are not covered by the physician-patient privilege.
documents in order to prepare the party applying for its
Order of examination

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How made:
1. Only on motion for good cause shown and
2. upon notice to the party to be examined and to all other parties,
Contents of the notice: the time, place, manner, conditions and scope of the
examination and the person or persons by whom it is to be made.
Report of findings
When: If requested by the party examined
What: the party causing the examination to be made shall deliver to him a copy of
a detailed written report of the examining physician setting out his findings and
conclusions.
After such request and delivery, the party causing the examination to be made
shall be entitled upon request to receive from the party examined a like report of
any examination, previously or thereafter made, of the same mental or physical
condition.
If the party examined refuses to deliver such report, the court on motion and
notice may make an order requiring delivery on such terms as are just
If a physician fails or refuses to make such a report the court may exclude his
testimony if offered at the trial.
Waiver of privilege
How:
1. By requesting and obtaining a report of the examination so ordered or
2. by taking the deposition of the examiner
Matter: The party examined waives any privilege he may have in that action or any
other involving the same controversy, regarding the testimony of every other
person who has examined or may thereafter examine him in respect of the same
mental or physical examination.
General rule: a party is not entitled to the result of examination
Unless: he request to be given copies
Effect: he cannot present any medical certificate contrary to what was stated in
the medical certificate that was given to him.
Rationale: with such knowledge the adverse party may fabricate the result of the
medical certificate contrary to the medical certificate given to him
Remedy: do not ask a copy, instead submit himself to a medical examination, and
use it when the former medical examination was presented as evidence
 SANCTIONS AND PENALTIES
Refusal to answer
- The examination may be completed on other matters or adjourned as the
proponent of the question may prefer.
Remedy: The proponent may thereafter apply to the proper court of the place
where the deposition is being taken, for an order to compel an answer.
The same procedure may be availed of when a party or a witness refuses to answer
any interrogatory submitted under Rules 23 or 25.
If the application is granted:
1. the court shall require the refusing party or deponent to answer the
question or interrogatory and
2. if it also finds that the refusal to answer was without substantial
justification, it may require the refusing party or deponent or the
counsel advising the refusal, or both of them, to pay the proponent the
amount of the reasonable expenses incurred in obtaining the order,
including attorney's fees.
If the application is denied:
- and the court finds that it was filed without substantial justification,
- The court may require the proponent or the counsel advising the filing of the
application, or both of them, to pay to the refusing party or deponent the
amount of the reasonable expenses incurred in opposing the application,
including attorney's fees.
Contempt of court
When:
1. Party or other witness refuses to be sworn or
2. refuses to answer any question after being directed to do so by the court
of the place in which the deposition is being taken
Party refuses to obey an order: the court may make such orders in regard to the
refusal as are just, and among others the following:
(a) An order that the matters regarding which the questions were asked, or
the character or description of the thing or land, or the contents of the paper, or
the physical or mental condition of the party, or any other designated facts shall be
taken to be established for the purposes of the action in accordance with the claim
of the party obtaining the order;
(b) An order refusing to allow the disobedient party to support or oppose
designated claims or defenses or prohibiting him from introducing in evidence
designated documents or things or items of testimony, or from introducing
evidence of physical or mental condition;
(c) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or proceeding or
any part thereof, or rendering a judgment by default against the disobedient party;
and
(d) In lieu of any of the foregoing orders or in addition thereto, an order
directing the arrest of any party or agent of a party for disobeying any of such
orders except an order to submit to a physical or mental examination.
Expenses on refusal to admit
- He may apply to the court for an order requiring the other party to pay him the
reasonable expenses incurred in making such proof, including attorney's fees.
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- Unless the court finds that there were good reasons for the denial or that
admissions sought were of no substantial importance, such order shall be
issued.
Failure of party to attend or serve answers
6. Where, the parties agree in writing, upon the facts involved in the
litigation, and submit the case for judgment on the facts agreed upon,
without the introduction of evidence. If however, there is no agreement
as to all the facts in the case, trial may be held only as to the disputed
facts

How: on motion and notice Trial Hearing

Reception of evidence and Not confined in trial but embraces
What: the court; other processes. several stages of litigation, including
1. May strike out all or any part of any pleading of that party, or the pre-trial stage.
2. dismiss the action or proceeding or any part thereof, or The period for the Does not necessarily imply
3. enter a judgment by default against that party, and introduction of evidence presentation of evidence in open court
4. in its discretion, order him to pay reasonable expenses incurred by the by both parties. but the parties are afforded the
other, including attorney's fees. opportunity to be heard.

Expenses against the Republic of the Philippines. Calendar of cases

Expenses and attorney's fees are not to be imposed upon the Republic of the The clerk of court, under the direct supervision of the judge, shall keep a calendar
Philippines under this Rule. of cases:
1. for pre-trial,
The Rules on Trial Proper 2. for trial,
3. those whose trials were adjourned or postponed, and
4. Those with motions to set for hearing.
Concept and Definition
Cases which are given preference
Trial: An examination, usually involving the offering of testimony before a
competent tribunal according to establish procedures, of facts or law put in
Preference shall be given to:
issue in a cause for the purpose of determining such issue.
1. habeas corpus cases,
- The judicial process of investigating and determining the legal
2. election cases,
controversies, starting with the production of evidence by the plaintiff and
3. special civil actions, and
ending with his closing arguments.
4. Those so required by law.

Notice of trial
Assignment of cases, only by raffle if multi sala court

When: Upon entry of a case in the trial calendar

The assignment of cases to the different branches of a court shall be done
exclusively by raffle.
Clerk's duty: the clerk shall notify the parties of the date of its trial

The assignment shall be done in open session of which adequate notice shall be
Duration: in such manner as shall ensure his receipt of that notice at least 5 days
given so as to afford interested parties the opportunity to be present.
before such date

Order of trial
Is trial necessary?
General Rule: When an issue exists, trial is necessary. Decision should not be made
The trial shall be limited to the issues stated in the pre-trial order and shall
without trial. proceed as follows:
Exceptions: There is no need for trial in the following cases:
1. Where the pleadings of the parties tender no issue at all, a judgment on (a) The plaintiff shall adduce evidence in support of his complaint;
the pleadings may be directed by the court (Rule 34);
2. Where from the pleadings, affidavits, depositions and other papers, (b) The defendant shall then adduce evidence in support of his defense,
there is actually no genuine issue, the court may render a summary counterclaim, cross-claim and third-party complaint;
judgment (Rule 35);
3. Where the parties have entered into a compromise or an amicable (c) The third-party defendant, if any, shall adduce evidence of his defense,
settlement either during the pre-trial or while the trial is in progress counterclaim, cross-claim and fourth-party complaint;
(Rule 18; Art. 2028, NCC);
4. Where the complaint has been dismissed with prejudice (Sec. 5, Rule (d) The fourth-party, and so forth, if any, shall adduce evidence of the material
16; Sec. 3, Rule 17; last. par., Sec. 5, Rule 7); facts pleaded by them;
5. Where the case falls under the operation of the Rules on Summary
Procedure (Rule 17);

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(e) The parties against whom any counterclaim or cross-claim has been pleaded, When: During the hearing or trial of a case
shall adduce evidence in support of their defense, in the order to be prescribed by
the court; What: any statement made by the judge shall be made of record in the
stenographic notes.
(f) The parties may then respectively adduce rebutting evidence only, unless the
court, for good reasons and in the furtherance of justice, permits them to adduce Matter:
evidence upon their original case; and 1. with reference to the case, or
2. to any of the parties, witnesses or counsel
(g) Upon admission of the evidence, the case shall be deemed submitted for
decision, unless the court directs the parties to argue or to submit their respective Suspension of actions
memoranda or any further pleadings.
- Shall be governed by the provisions of the Civil Code.
If several defendants or third-party defendants, and so forth, having separate - Willingness to discuss a possible compromise
defenses appear by different counsel, the court shall determine the relative order of
presentation of their evidence. Judge to receive evidence; delegation to clerk of court

Note:
- This order of trial applies to a regularly controverted claim. (Reverse order of
trial)
- This will not apply if the answer admits the defendant's obligation as
alleged in the complaint but special defenses are alleged
 plaintiff does not have to present evidence since judicial admissions
do not require proof, and
 it should be the defendant who should forthwith present evidence
in support of his special defenses.
- This order of trial will also not apply if there was a separate trial of the
counterclaim, cross-claim, third-party complaint, etc.… or if the court for
special reasons otherwise directs.
General rule: The judge of the court where the case is pending shall personally
receive the evidence to be adduced by the parties.
Exception: the court may delegate the reception of evidence to its clerk of court
who is a member of the bar:
1. in default or
2. ex parte hearings, and
3. In any case where the parties agree in writing.
Limitation of the power: The clerk of court shall have no power to rule on
objections to any question or to the admission of exhibits
- note the objection and report it to the court

Agreed statement of facts Objections :

- shall be resolved by the court upon submission of his report and the
Form: in writing transcripts within 10 days from termination of the hearing

What: The parties to any action may agree upon the facts involved in the Additional evidence
litigation, and submit the case for judgment on the facts agreed upon, without the - may be offered at the rebuttal stage:
introduction of evidence.
Provided:
Partial: If the parties agree only on some of the facts in issue, the trial shall be held 1. if it was newly discovered, or
as to the disputed facts in such order as the court shall prescribe. 2. omitted through mistake or inadvertence, or
3. where the purpose is to correct evidence previously offered,
Note: 4. Subject to the discretion of the court.
- Counsel cannot stipulate on what their respective evidence consists of
and ask that judgment be rendered on the basis of such stipulation. Adjournments and postponements
- Stipulations of facts are not permitted in actions for annulment of marriage,
legal separation, declaration of nullity of marriage General Rule: A court may adjourn a trial from day to day, and to any stated time,
as the expeditious and convenient transaction of business may require
Stipulation of facts in civil cases vis-a-vis criminal cases:
Limitation: shall have no power to adjourn a trial for a longer period than one
Civil Cases Criminal Cases month for each adjournment, nor more than three months in all
May be signed by the counsel Must be signed both by the
alone who has a special power of counsel and the accused. Exception: when authorized in writing by the Court Administrator or the
attorney. Supreme Court.
May be made verbally or in Strict. It must always be in
writing. writing. - are addressed to the sound discretion of the court and
- In the absence of grave abuse of discretion, cannot be controlled by mandamus.
Statement of judge
Requisites of motion to postpone trial for absence of evidence

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 Subpoena Summons
A motion to postpone a trial on the ground of absence of evidence can be granted An order to appear and testify or Order to answer complaint
only upon: to produce books and documents
May be served to a non-party Served on the defendant
1. affidavit showing the materiality or relevancy of such evidence, and Needs tender of kilometrage, Does not need tender of
2. That due diligence has been used to procure it. attendance fee and reasonable cost kilometrage and other fees
of production fee
Note: But if the adverse party admits the facts to be given in evidence, even if he
objects or reserves the right to object to their admissibility, the trial shall not be Kinds
postponed.
Subpoena DucesTecum:
Requisites of motion to postpone trial for illness of party or counsel - To appear and bring the papers and documents.
- It is a process requiring a person to bring with him any books, documents, or
A motion to postpone a trial on the ground of illness of a party or counsel may be
other things under his control.
granted if it appears:
Subpoena Ad Testificandum:
1. upon affidavit or sworn certification that the presence of such party or
- To appear and testify
counsel at the trial is indispensable and
- It is a process requiring a person to attend and to testify at the hearing or the
2. That the character of his illness is such as to render his non-attendance
trial of an action, or at any investigation conducted by competent authority, or
excusable.
for the hearing of his deposition.

The Rules on Computation of time

Blanket subpoena ducesTecum:
- provides occasions for fishing expedition
How to compute time

Contents
- The day of the act or event from which the designated period of time begins to
run is to be excluded and the date of performance included. A subpoena shall state:
1. the name of the court and
- If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or 2. the title of the action or investigation
a legal holiday in the place where the court sits, the time shall not run until the 3. It shall be directed to the person whose attendance is required, and
next working day. 4. In the case of a subpoena ducestecum, it shall also contain a reasonable
description of the books, documents or things demanded which must
Effect of interruption appear to the court prima facie relevant.

- The allowable period after such interruption shall start to run on the day after
Who issues

notice of the cessation of the cause thereof.

The subpoena may be issued by:
- The day of the act that caused the interruption shall be excluded in the a) the court before whom the witness is required to attend;
computation of the period b) the court of the place where the deposition is to be taken;
c) the officer or body authorized by law to do so in connection with
The Rules on Subpoena investigations conducted by said officer or body; or
d) Any Justice of the Supreme Court or of the Court of Appeals in any case or
I. Concept, nature, purpose and limitation investigation pending within the Philippines.

- It is used during trial.

Who may be subpoenaed, exceptions

- No subpoena can be issued in the absence of an action pending in court. Subpoena to a prisoner: the judge or officer shall examine and study carefully
such application to determine whether the same is made for a valid purpose.
Definition
Exception:
Subpoena is a process directed to a person requiring him to attend and to testify at 1. Witness residing more than 100 kilometers with the place where he
the hearing or the trial of an action, or at any investigation conducted by shall testify
competent authority, or for the taking of his deposition. 2. Detention prisoner
3. When Authority from the Supreme Court is needed, to be brought
It may also require him to bring with him any books, documents, or other things outside, for appearance or attendance in any court: prisoner sentenced:
under his control, in which case it is called a subpoena ducestecum. a. to death,
b. reclusion perpetua or
Subpoena vs. Summons:
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 c. life imprisonment and 4. The witness fees and kilometrage allowed by these Rules were not
d. who is confined in any penal institution tendered when the subpoena was served.
Subpoena ad testificandum
Service of subpoena
Grounds:
How: made in the same manner as personal or substituted service of summons. 1. that the witness is not bound thereby
2. the witness fees and kilometrage allowed by these Rules were not
The original shall be exhibited and a copy thereof delivered to the person on whom tendered when the subpoena was served.
it is served, tendering to him the fees for one day's attendance and the kilometrage
allowed by these Rules IV. Failure to respond to a subpoena

Exception: when a subpoena is issued by or on behalf of the Republic of the
Philippines or an officer or agency thereof, the tender need not be made.
Purpose: to allow the witness a reasonable time for preparation and travel to the
place of attendance.
Cost of Production:
- If the subpoena is ducestecum, the reasonable cost of producing the books,
documents or things demanded shall also be tendered.
If a person is present in court, is there a need for subpoena in order for
him to testify?
No! A person present in court before a judicial officer may be required to
testify as if he were in attendance upon a subpoena issued by such court of
officer.
II. Vs. produce order and detention mittimus and search warrant in criminal
cases
Production order:
- producetheprisonerincourtataspecifiedtimeandplace
General Rule:
 The court or judge issuing the subpoena may issue warrant of arrest
to the sheriff or his deputy to arrest the witness and bring him
before the court or officer where his attendance is required and
 the cost of such warrant and seizure of such witness shall be paid
by the witness if the court issuing it shall determine that his
failure to answer the subpoena was willful and without just cause.
Before the witness can be arrested it must be shown to the court or judge
that:
1. There was a proof of service of the subpoena.
2. The witness failed to appear.
Exceptions:
a. Arrest and contempt against a witness shall not apply to a witness
who resides more than 100 kilometers from his residence to the place
where he is to testify by the ordinary course of travel.
Viatory Right:
 Viatory right of a witness is applicable only in civil cases!
 Right of a witness not to be compelled by subpoena

Detention Mittimus b. Arrest and contempt will not apply to a detention prisoner if no
- a court order directing a sheriff or other police officer to escort a convict to a permission of the court in which his case is pending was obtained.
prison
- can command a jailer to safely keep a felon until he or she can be transferred to Sanctions for unjustifiable failure to obey subpoena
a prison
- deemed a contempt of the court from which the subpoena is issued.
Search Warrant - If the subpoena was not issued by a court, the disobedience thereto shall
- a court order issued by a judge or magistrate judge that authorizes the law be punished in accordance with the applicable law or Rule
enforcement officers to conduct a search of a person or location for evidence of
a crime and to confiscate evidence if it is found. Remedy in order to obtain the testimony of a witness exempt
from subpoena
III. Quashing a subpoena, grounds
- Get their depositions using the different modes of discovery.
Subpoena ducestecum
Administrative Circular No. 3-99 (January 15, 1999)
How: upon motion promptly made
When: at or before the time specified therein
The session hours of all RTCs and MTCs

Grounds:
1. if it is unreasonable and oppressive, or
- From 8:30 A.M. to noon and from 2:00 P.M. to 4:30 P.M. from Monday to
2. the relevancy of the books, documents or things does not appear, or Friday.
3. If the person in whose behalf the subpoena is issued fails to advance the
reasonable cost of the production thereof. Morning:

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- devoted to the conduct of trial c) Waiver

Afternoon: utilized for Judges’ Duty

(1) The conduct of pre-trial conferences;
(2) Writing of decisions, resolutions, or orders; or
(3) the continuation of trial on the merits, whenever rendered necessary
In multi-sala courts in places where there are few practicing lawyers
- The schedule may be modified upon request of the Integrated Bar of the
Philippines
- such that one-half of the branches may hold their trial in the morning and the
other half in the afternoon.
1. The judge must keep a calendar of cases submitted for decision, noting
therein the exact day, month and year when the 90-day period is expire.
2. In criminal cases, the judge will do well to announce in open court at the
termination of the trial the date of the promulgation of the decision, which
should be set within 90 days from the submission of the case for decision.
3. All Judges must scrupulously observe the period prescribed in Section 15,
Article VIII of the Constitution.
Trial By Commissioner

Schedule of Motions Who is a commissioner

- on Friday afternoons, or
- if Friday is a non-working day, in the afternoon of the next business day.
"Commissioner" includes a referee, an auditor and an examiner.

A person to whom a case pending in court is referred, for him to take testimony,
Exception: Except those requiring immediate action
hear the parties and report thereon to the court, and upon whose report, if
confirmed, judgment is rendered.
 Judges must be punctual at all times.

Trial - Clerks of courts cannot be commissioners

1. Unless the docket of the court requires otherwise, not more than 4 cases Delegation to Clerk of Trial by Commissioner
shall be scheduled for trial daily. Court
2. The Presiding Judge shall make arrangements with the prosecutor and Delegation is made during Commissioner can be appointed even
the PAO so that a relief prosecutor and a PAO attorney are always trial. after the case has become final and
available in case the regular prosecutor or PAO attorneys are absent. executory.
3. Contingency measures must likewise be taken for any unexpected Clerk of court must be a Commissioner need not be a lawyer.
absence of the stenographer and other support staff assisting in the trial. lawyer.
4. The issuance and service of subpoenae shall be done in accordance with Clerk of court cannot rule Commissioner can rule on objections
Administrative Circular No. 4 dated 22 September 1988. on objections or on the or on admissibility of evidence.
5. The judge shall conduct trial with utmost dispatch, with judicious admissibility of evidence.
exercise of the court’s power to control trial proceedings to avoid delay.
6. The judge must take notes of the material and relevant testimonies of What is the rule on trial by commissioner?
witnesses to facilitate his decision-making. General Rule: Discretionary upon the courts.
7. The trial shall be terminated within ninety (90) days from initial
hearing. Appropriate disciplinary sanctions may be imposed on the Exception:
judge and the lawyers for failure to comply with this requirement due to a. Expropriation (Rule 67);
causes attributable to them. b. Partition (Rule 69);
c. Settlement of estate of a deceased person in case of contested claims; and
Exception: in drugs cases trial dates – 60 days from date of filing. Decision – 15 days d. Submission of accounting by executors or administrator.
from submission
How
8. Each party is bound to complete the presentation of his evidence within
the dates assigned to him. After the lapse of said dates, the party is 1. By written consent of both parties, the court may order any or all of the issues
deemed to have completed the presentation of evidence. However, upon in a case to be referred to a commissioner: (reference by consent)
verified motion based on compelling reasons, the judge may allow a a. to be agreed upon by the parties or
party additional trial dates in the afternoon; provided that said b. To be appointed by the court
extension will not go beyond the three-month limit computed from the
first trial date except when authorized in writing by the Court 2. When the parties do not consent, the court may, upon the application of
Administrator, Supreme Court. either or of its own motion, direct a reference to a commissioner (Reference
ordered on motion)
Reset / Cancellation / prolonging trial; penalties
a) Pay What are binding issues: question of facts not question of law
b) Deduction from trial dates

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Failure of parties to appear before commissioner
Powers and functions of a commissioner
When a party fails to appear at the time and place appointed the commissioner
may: a. The commissioner has and shall exercise the power to regulate the
1. Proceed ex parte or, proceedings in every hearing before him and
2. in his discretion, adjourn the proceedings to a future day, b. To do all acts and take all measures necessary or proper for the efficient
performance of his duties under the order.
 Giving notice to the absent party or his counsel of the adjournment. c. He may issue subpoenas and subpoenas ducestecum,
d. swear witnesses, and
Refusal of witness e. Unless otherwise provided in the order of reference, he may rule upon
the admissibility of evidence.
Deemed contempt of the court which appointed the commissioner, when the
witness refuses: The trial or hearing before him shall proceed in all respects as it would if held
a. to obey a subpoena issued by the commissioner or before the court
b. to give evidence before him
Commissioner’s report
Oath of commissioner
When:
Before entering upon his duties the commissioner shall be sworn to a faithful and a. Upon the completion of the trial or
honest performance thereof b. hearing or
c. proceeding before the commissioner
Rationale
What: he shall file with the court his report in writing upon the matters
The expertise of the appointed commissioner is needed to settle the submitted to him by the order of reference.
controversy
 When his powers are not specified or limited, he shall set forth his
Who will appoint findings of fact and conclusions of law in his report.
 He shall attach thereto all exhibits, affidavits, depositions, papers and
- By the court the transcript, if any, of the testimonial evidence presented before him.

Applicable instances– valid referral even without the consent of the
parties
1. When the trial of an issue of fact requires the examination of a long
account on either side, in which case the commissioner may be directed
to hear and report upon the whole issue or any specific question
involved therein;
2. When the taking of an account is necessary for the information of the
court before judgment, or for carrying a judgment or order into effect.
3. When a question of fact, other than upon the pleadings, arises upon
motion or otherwise, in any stage of a case, or for carrying a judgment or
order into effect.
Order of reference; contents
When a reference is made, the clerk shall forthwith furnish the commissioner with
a copy of the order of reference.
 Notice to parties of the filing of report
When: Upon the filing of the report
What: the parties shall be notified by the clerk,
Objection: they shall be allowed 10 days within which to signify grounds of
objections to the findings of the report, if they so desire.
Note: Objections to the report based upon grounds which were available to the
parties during the proceedings before the commissioner, other than objections to
the findings and conclusions therein, set forth, shall not be considered by the court
unless they were made before the commissioner.
 Hearing upon report
When: Upon the expiration of the period of 10 days (objections)
What: the report shall be set for hearing

The order may: Court’s action: after which the court shall issue an order:
1. specify or limit the powers of the commissioner, and  adopting,
2. may direct him to report only upon particular issues, or  modifying, or
3. to do or perform particular acts, or  rejecting the report in whole or in part, or
4. to receive and report evidence only and  recommitting it with instructions, or
5. may fix the date for beginning and closing the hearings and  requiring the parties to present further evidence before the
6. For the filing of his report. commissioner or the court

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 Stipulations as to findings. What: The court may order a separate trial of any claim, cross-claim,
counterclaim, or third-party complaint, or of any separate issue or of any number
When the parties stipulate that a commissioner's findings of fact shall be final, of claims, cross-claims, counterclaims, third-party complaints or issues.
only questions of law shall thereafter be considered.
Adjudication
Compensation of commissioner
Concept and Requirements
The court shall allow the commissioner such reasonable compensation as the
circumstances of the case warrant, to be taxed as costs against the defeated party,
- Judgment contrary to the express provisions of law is erroneous but it is
or apportioned, as justice requires.
not void
- Once it becomes final and executory, it is binding and effective as any
The Rule on Consolidation and Severance
judgment and though erroneous, will be enforced as a valid judgment in
accordance with its dispositions.
Consolidation

Responsibility of courts and judges

Requisites:
1. When actions involving a common question of law or fact are pending
No judge or court shall decline to render judgment by reason of the:
before the court
1. silence,
2. There must be at least 2 actions pending before the same court
2. obscurity or
3. insufficiency of the laws. (Article 9, NCC)
 it may order a joint hearing or trial of any or all the matters in issue in
the actions;
Basis:
 it may order all the actions consolidated, and
 laws of suppletory application
 it may make such orders concerning proceedings therein as may tend to
 decision of the Court of Appeals
avoid unnecessary costs or delay
 customs
 applies to both civil and criminal cases
 foreign decisions

Ways of consolidating cases

The ponencia

Recasting the Cases Consolidation Test-Case Method

- It is the decision of the court
Proper
Reshaping of the It is a joint trial By hearing only the
Constitutional requirement on judgments
cases by amending with joint principal case and
the pleading, decision, the suspending the hearing
Conclusion of the Supreme Court:
dismissing some cases retaining on the other cases until
- Shall be reached in consultation before the case is assigned to a Member
cases and retaining their original judgment has been
for the writing of the opinion of the Court.
only one case. There docket rendered in the
must be joinder of numbers. principal case. The
Non Participation: Any Member who:
causes of action and cases retain their
a. Took no part, or
of parties. original docket
b. dissented, or
numbers
c. abstained from a decision or resolution

What is the rule on consolidation of cases?

Effect: must state the reason therefor

General Rule:Consolidation is discretionary upon the court to avoid multiplicity of

Applicability: The same requirements shall be observed by all lower collegiate
suits, guard against oppression or abuse, prevent delay, clear congested dockets,
courts.
and simplify the work of the trial court and save unnecessary costs and expenses.
Requirement for a decision:
Exceptions: Consolidation becomes a matter of duty when:
- Express therein clearly and distinctly the facts and the law on which it
1. If two or more cases are pending before the same judge; or
is based.
2. If filed with the different branches of the same RTC and one of such cases has
not been partially tried.
Petition for review or motion for reconsideration of a decision:
- The court shall not refused due course or denied without stating the
Separate trials
legal basis therefor.

Purpose: in furtherance of convenience or to avoid prejudice

Requirements; Judgment

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 Sin Perjuicio Judgment:
CIVIL CASE: - Contains only the fallo
 Rendition of judgments and final orders: - No ratio decidendi, no findings and holdings
- Void judgment
Requirements:
a. shall be in writing Nunc pro tunc (now for then) amendment of judgment:
b. personally and directly prepared by the judge, - Its only function is to record some act of the court which was done at a
c. stating clearly and distinctly the facts and the law on which it is based, former time, but which was not then recorded, in order to make the
d. signed by him, and record speak the truth, without any changes in substance or in any
e. filed with the clerk of the court material respect.
- In short – amended decision
CRIMINAL CASE:
- It is a valid decision?
 Judgment definition and form. o It depends
 When the amendment is only clerical or
Judgment is the adjudication by the court that the accused is guilty or not guilty typographical the decision is valid
of the offense charged and the imposition on him of the proper penalty and civil  When the amendment affects substantive right the
liability, if any. decision is invalid

Requirements: Obiter dictum:

a. It must be written in the official language,
- Opinion of a judge in a judgment which is not relevant to the case
b. personally and directly prepared by thejudge and
- Does not necessarily form part of the decision
c. signed by him and
- ―by the way‖
d. shall contain clearly and distinctly a statement of the facts and the law
upon which it is based.
Findings:
Note: The case should be decided on its totality - Established evidentiary facts in the decision
- Basis of the decision
Note: it is the filing of the signed decision with the Clerk of Court, and not its
pronouncement in open court that constitute rendition of judgment Holding:
- Decision of the court in appreciating the facts
Language: must be in the official language – Filipino or English.
Per Curiam:
 Two Parts of Judgment - ―by the court‖
- defining a decision of an appeals court as a whole in which no judge is
1. The body of the judgment or the ratio decidendi identified as the specific author.
2. The dispositive portion of the judgment or fallo - Whole decision of the collegiate courts and he Supreme Court
- The ponente is unanimous
Note:
 The body of the decision is not part of the judgment that is subject to NotatuDignum:
execution but the fallo because it is the latter which is the judgment of - the presumption of regularity in the performance of a judges functions
the court - hence, bias, prejudice and even undue interest cannot be presumed,
 The fallo should state whether the complaint of petition is granted or especially weighed against a judges sacred allegation under oath of office
denied, the specific relief granted or the costs to administer justice without respect to any person and do equal right
to the poor and the rich
Rule, conflict between the dispositive portion of the decision and the body:
Fallo:
General rule:The dispositive portion controls irrespective of what appears in the
- The dispositive portion of the judgment
body of the decision.
- It is part of the judgment which actually settles and declares the rights
and obligations of the parties, finally definitively, and authoritatively
Exception:
1. Where the inevitable conclusion from the findings of fact in the opinion
Ratio Decidendi:
is so indubitable and clear as to show that there was mistake in the
- The body of the judgment which states the facts and the law upon the
dispositive portion OR;
decision was based
2. Where explicit discussion and settlement of the issue is found in the
body of the decision.
Minute resolutions:
Some concepts

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 - Mean the Supreme Court agrees with or adopts the findings and Judgment by confession:
conclusions of the lower court, that is, that the latter’s decision sought - is not a plea but an affirmative and voluntary act of the defendant
to be reviewed and set aside is correct. himself
- When the appeal is found to be filed to interpose for delay - The court exercises a certain amount of supervision over the entry of
- Applies with the CA and RTC judgment, as well as equitable jurisdiction over their subsequent status.
- Rendered by the court when the parties expressly agrees to the other
Memorandum decisions: party’s claim
- A one liner decision affirming the decision and attaching the decision of
the court a quo Some Rules
- to be valid, such memorandum decision should actually embody the
factual findings and legal conclusions in an annex attached to and made Period to render Judgment:
an integral part of the decision.
Within 24 months from date of
Supplemental decisions: submission
Supreme Court
- Does not take the place of or extinguish the original decision; it only
serves to bolster or add something to the primary decision. Unless reduced by the Supreme Court
All lower collegiate 12 months
Rule of immutability of judgment vs. doctrine of total nullity: courts
All other lower 3 months
RIJ: a final judgment may no longer be altered, amended or modified, even if the courts
alteration, amendment or modification is meant to correct what is perceived to be
an erroneous conclusion of fact or law and regardless of what court, be it the When is a case submitted for decision:
highest Court of the land, rendered it.
- Upon the filing of the last pleading, brief, or memorandum required by
DTN: the decision is void thus it cannot be executed even if the judgment is the Rules of Court or by the court itself.
already final and executory
Note: Despite the expiration of the applicable mandatory period, the court,
Stare decisis et non quietamovere without prejudice to such responsibility as may have been incurred in consequence
- That once the case is decided by the Supreme Court as the final arbiter thereof, shall decide or resolve the case or matter submitted thereto for
of any justifiable controversy one way or another, then another case determination, without further delay.
involving exactly the same point at issue should be decided in the same
manner. When does a judgment become final:

Law of the case doctrine: - If no appeal or motion for new trial or reconsideration is filed within the
- When a court decides upon a rule of law, that decision should continue time provided in these Rules
to govern the same issues in subsequent stages in the same case. - Upon the lapse of 15 days from the date of notice to the party of such
- Applies in a situation where an appellate court has made a ruling on a judgments, if such party does not employ valid remedies to toll the
question on appeal and thereafter remands the case to the lower court running of such period.
for further proceedings; the question settled by the appellate court - The judgment or final order shall forthwith be entered by the clerk in
becomes the law of the case at the lower court and in any subsequent the book of entries of judgments.
appeal. - The date of finality of the judgment or final order shall be deemed to be
- It means that whatever is irrevocably established as the controlling legal the date of its entry.
rule or decision between the same parties in the same case continues to
be the law of the case, whether correct on general principles or not, so Effect of final and executory judgment
long as the facts on which the legal rule or decision was predicated
continue to be the facts of the case before the court General rule: once judgment becomes final and executory it becomes immutable
and unalterable.
Judgment on consent:
- is one where the provisions and terms of which are settled and agreed Exception:judgment maybe change in cases of:
upon by the parties to the action, and which is entered in the record by 1. Typographical error
the consent of the court. 2. Void judgment
3. Judgment nunc pro tunc.
There must be an unqualified agreement among the parties to be bound by the
judgment on consent before said judgment may be so entered and the court does Rules of interpretation of judgment:
not have the power to supply terms, provisions or essential details not previously
agreed to by the parties. Judgment for or against one or more of several parties:

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Judgment may be given for or against one or more of several plaintiffs and for or Who files: either the plaintiff or defendant (when the reply admits the
against one or more of several defendants. truthfulness of the defenses)

When justice so demands, the court may require the parties on each side to file
adversary pleadings as between themselves and determine their ultimate rights
and obligations.
Several judgments:
When: In an action against several defendants
What: the court may, when a several judgment is proper, render judgment against
one or more of them, leaving the action to proceed against the others.
Oppositions: The adverse party may serve opposing affidavits, depositions, or
admissions at least 3 days before the hearing.
Ground: if the pleadings, supporting affidavits, depositions, and admissions on
file, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.
- Specific denials or affirmative defenses are in truth set out in the answer
but the issues thus arising from the pleadings are sham, fictitious or not
genuine, as shown by affidavits, depositions, or admissions.

Separate judgments: Exception: the amount of damages

When:
1. When more than one claim for relief is presented in an action SUMMARY:
2. at any stage Judgment on the Summary judgments
pleadings
What: the court, upon a determination of the issues material to a particular claim
Answer does not tender an There is an issue tendered in the
and all counterclaims arising out of the transaction or occurrence which is the
issue answer, but it is not genuine or
subject matter of the claim, may render a separate judgment disposing of such
real issue as may be shown by

Answer
claim.
affidavits and depositions that
there is no real issue and that the
The judgment shall terminate the action with respect to the claim so disposed of
party is entitled to judgment as a
and the action shall proceed as to the remaining claims.
matter of right
Movants must give a 3-day Opposing party is given 10 days
In case a separate judgment is rendered the court by order may stay its
Notice

notice of hearing notice

enforcement until the rendition of a subsequent judgment or judgments and may
prescribe such conditions as may be necessary to secure the benefit thereof to the
party in whose favor the judgment is rendered. Entire case may be May only be partial
Terminati

terminated
on

Judgment against entity without juridical personality: May be interlocutory or on the

- The judgment shall set out their individual or proper names, if known. On the merits merits
Only the plaintiff or the Either the plaintiff or the
Who can file

Kinds of Judgment and Definitions defendants as far as the defendant may file it
counterclaim, cross-claim
Without reception of evidence or third-party complaint is
concerned can file the same
Judgment on the Pleading Based only on the Based on the pleadings, affidavits,
Basis of the
judgment

pleadings alone, hence, depositions, and admissions

Grounds: only on the complaint and
1. Where an answer fails to tender an issue (factual and legal), or the answer
2. otherwise admits the material allegations of the adverse party's pleading
3. or the answer is negative pregnant
With partial reception of evidence
How: on motion by the plaintiff
Judgment by Default
Exception:
1. Actions for declaration of nullity or When: defending party fails to answer within the time allowed
2. annulment of marriage or
3. for legal separation, How: upon motion of the claiming party with notice to the defending party, and
proof of such failure
Summary Judgment
Thereupon, the court shall proceed to render judgment granting the claimant such
Time to file: The motion shall be served at least 10 days before the time specified relief as his pleading may warrant, unless the court in its discretion requires the
for the hearing. claimant to submit evidence.

Such reception of evidence may be delegated to the clerk of court.

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 Ex parte Presentation of evidence
- It shall be the duty of the parties and their counsel to appear at the pre-
trial.
- Failure on the part of the defendant shall be cause to allow the plaintiff
to present his evidence ex parte and the court to render judgment on the
basis thereof.
- Includes Rule 17 - due to the fault of the plaintiff
Judgment on demurrer to evidence
When: After the plaintiff has completed the presentation of his evidence
How: the defendant may move for dismissal of the action
Ground: that upon the facts and the law the plaintiff has shown no right to relief.
If his motion is denied:
- He shall have the right to present evidence.
If the motion is granted but on appeal the order of dismissal is reversed:
- he shall be deemed to have waived the right to present evidence
Ordinary judgment / Judgment on the Merits
- There is full blown trial
Judgment based on Compromise agreement
Nature: not appealable and has the effect of res judicata from the moment it is
rendered.
As a rule, a judgment upon compromise is immediately executory in the absence of
a motion to set the same aside on the ground of fraud, mistake, etc., and if such
motion is made and denied, appeal may be taken from such order of denial.
Lack of consent to the compromise agreement: the remedy is:
1. to move for its reconsideration and
2. to appeal from the judgment if the motion is denied; or
3. If the judgment is already final and executory, to file petition for relief
under Rule 38.
Against a person who is not a party to the compromise agreement: Remedy:
- He may file an original petition for certiorari to quash the writ of
execution.
He could not move to have the compromise set aside and then appeal from the
order denying the motion since he is not a party to the compromise or the
judgment therein.
- A petition for relief would be an adequate remedy as the execution was
already being carried out.
Promulgation of Judgment
In civil cases vs. in criminal, promulgation of judgment in absentia in
criminal cases
Promulgation of judgment in Civil cases:
Trial Courts:
- None! Judgment, final orders are served or handed to the parties, not
promulgated.
- The service is either personal or registered.
Appellate courts:
- Yes! But the type of promulgation is not the same as the promulgation
contemplated in criminal cases.
- Promulgation is done in the appellate courts when the Clerk of Court
will announced that the #rd Division of the SC or CA rendered a
decision on the case of … and on the day of…
In an election contest between Mr. Palma and Mr. Monsod, the
COMELEC En Banc unanimously resolved the dispute in favor of
Monsod.couCOMELEC Commissioner Garci participated in the
deliberation of the said resolution. Howevr, on the resolution of the
said dispute was promulgated by the COMELEC EnBanc,Garci was
no longer a member of the COMELEC En Banc. Mr. Palma contends
that the decision was null and void because Garci, who was part of
the resolution of the case, was no longer connected with the
COMELEC. Is Mr. Palma Correct?
Answer: NO. a decision becomes binding only after it is
promulgated. Consequently, if at the time of the promulgation of a
decision or resolution, a member of a collegiate court who had earlier
signed or registered his vote has vacated his office; his vote is
automatically withdrawn or cancelled. The resolution in this case
remains valid because it is still supported by majority of the
COMELEC En Banc
Promulgation of judgment in Criminal cases:
The judgment is promulgated by:
1. Reading it in the presence of the accused and any judge of the court in
which it was rendered.
2. However, if the conviction is for a light offense, the judgment may be
pronounced in the presence of his counsel or representative.
3. When the judge is absent or outside of the province or city, the
judgment may be promulgated by the clerk of court.
Confined or detained in another province or city:
- the judgment may be promulgated by the executive judge of the RTC
having jurisdiction over the place of confinement or detention
- How: upon request of the court which rendered the judgment.
Accused tried in absentia:
 Because he jumped bail or
 Escaped from prison
- The notice to him shall be served at his last known address.
Accused fails to appear at the scheduled date of promulgation of judgment
despite notice:
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 - the promulgation shall be made by recording the judgment in the Remedies against Judgment and Final Orders
criminal docket and
- Serving him a copy thereof at his last known address or thru his counsel.

Judgment is for conviction and the failure of the accused to appear was
without justifiable cause:
- He shall lose the remedies available in these rules against the judgment
and the court shall order his arrest.

Remedies: when to file

- Within 15 days from promulgation of judgment, however, the accused
may surrender and file a motion for leave of court to avail of these
remedies.
- He shall state the reasons for his absence at the scheduled promulgation
and if he proves that his absence was for a justifiable cause, he shall be
allowed to avail of said remedies within fifteen (15) days from notice.

Before what court and before whom

- The court, who heard and tried the case Before finality of judgment and final orders

Q: what if the judge who rendered the judgement is not the judge who heard the Motion for Reconsideration
case, can there be a valid judgment?
- It is a litigated motion
A: YES. There is no requirement in the rules that requires the same.
Time to file: Within the period for taking an appeal - this is within 15 days from
General Rule: a case once raffled the receipt of the notice of the judgment or final order.

Who are covered by the Rules on Judgments? Note: A motion to extend the reglementary period for filing a motion for
- Courts or Records [RTC and MTC] reconsideration is not authorized.

Supreme Court: Where to file: The motion shall be filed with the trial court, i.e., the court which
- Is not compelled to adopt a definite and stringent rule on how its rendered the judgment.
judgments shall be framed.
- It has the discretion to decide whether a ―minute resolution‖ should be Who files: losing or winning party
used in lieu of ―full blown decision‖ in any particular case
Grounds:
A minute resolution of dismissal of a petition for review on certiorari constitutes 1. The damages awarded are excessive
adjudication on the merits of the controversy or subject matter of the petition. 2. the evidence is insufficient to justify the decision or final order, or
3. the decision or final order is contrary to law.
Since the grant of a petition for review on certiorari is not a matter of right but of
sound judicial discretion, there is accordingly no need to fully explain the court’s Form: in writing
denial.
Contents:
Book of entries of judgment The motion shall:
1. state the factual or legal ground or grounds
Judgment and entries book 2. shall point out specifically the findings or conclusions of the judgment
 The clerk shall keep a judgment book containing a copy of each or final order which are:
judgment rendered by the court in order of its date, and a. not supported by the evidence or
 a book of entries of judgments containing at length in chronological b. which are contrary to law
order entries of all final judgments or orders of the court. o making express reference to the testimonial or
documentary evidence or
The record shall contain the dispositive part of the judgment or final order and o to the provisions of law alleged to be contrary to
shall be signed by the clerk, within a certificate that such judgment or final order such findings or conclusions
has become final and executory.
Notice: A written notice of which shall be served by the movant on the adverse
party.

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Action upon the motion: If the court finds that excessive damages have been
awarded or that the judgment or final order is contrary to the evidence or law, it
may amend such judgment or final order accordingly.
Resolution of motion: shall be resolved within 30 days from the time it is
submitted for resolution.
Note: No party shall be allowed a second motion for reconsideration of a judgment
or final order
- the motion must come from the same party
Remedy against order denying a motion for reconsideration:
- An order denying a motion for reconsideration is not appealed, the
remedy being an appeal from the judgment or final order.
- In the appeal, assign as one of the errors the denial of the Motion for
Reconsideration.
Motion for New Trial / Berry Rule
- It is a litigated motion
- If granted there will be a hearing
Time to file: Within the period for taking an appeal, that is within 15 or 30 days
from notice of the judgment.
Contents:
The motion shall be made:
1. in writing
2. stating the ground or grounds therefor
3. a written notice of which shall be served by the movant on the adverse
party.
Grounds:
1. Fraud, accident, mistake or excusable negligence(FAME)
which ordinary prudence could not have guarded against
and by reason of which such aggrieved party has probably
been impaired in his rights; or
2. Newly discovered evidence
First Ground:
FRAUD:
- Only extrinsic fraud can be ground for new trial.
- Fraud as a ground for new trial must be extrinsic or collateral that is, it
is kind of fraud which prevented the aggrieved party from having trial or
presenting his case to the court, or was used to procure the judgment
without fair submission of the controversy.
- There is denial of the right to due process
Acts Constitutive of Collateral fraud:
1. Acts intended to keep the unsuccessful party away from the court by a
false promise of compromise.
2. Acts which purposely keeps the unsuccessful party ignorant of the suit.
3. An act where the attorney fraudulently pretends to represent a party
and connives at his defeat, or corruptly sells out his client’s interest
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Vs. Intrinsic Fraud:
Refers to the acts of a party at the trial which prevented a fair and just
determination of the case and which could have been litigated and determined at
the trial or adjudication of the case, such as falsification, false testimony and so
forth, and does not constitute a ground for new trial.
MISTAKE:
- Mistake generally refers to mistakes of fact but may also include
mistakes of law where in good faith; the defendant was misled in the
case.
- Constitutive act of mistake of law: a mistake as to the scope and extent
of the coverage of an ordinance, or a mistake as to the effect of a
compromise agreement upon the need for answering a complaint.
Note: As a general rule, a client is bound by the mistakes of his counsel. Only when
the application of this general rule would result in serious injustice should an
exception hereto be applied.
EXCUSABLE NEGLIGENCE:
- It must be excusable and generally imputable to the party.
- But the negligence of counsel is binding on the client just as the latter is
bound by the mistakes of his lawyer.
- However, negligence of the counsel may also be ground for new trial if it
was so great that the party was prejudiced and prevented from fairly
presenting his case or where the party may be unjustly deprived of his
property. (extra ordinary or gross negligence)
ACCIDENT:
- Defined as an event that takes place without one’s foresight or
expectation; an undersigned, sudden, and unexpected event.
- In an accident, a party claiming the benefit of an accident must not be
negligent.
Example:
- An illness may be considered an accident.
- Loss or delay in the mails may be deemed an accident.
- Notices were sent to a wrong lawyer
Effect of granting the motion: the entire proceeding will be vacated and there
will be new trial de novo.
Second Ground:
Requisites: for newly discovered evidence to warrant new trial:
a. Must have been discovered after trial;
b. Could not have been discovered and produced at the trial despite
reasonable diligence;
c. And if presented would probably alter the result of the action.
 Material and relevant and not merely corroborative or
commutative
How to prove:
A motion for new trial shall be proved in the manner provided for proof of motion.
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 1. First Ground - supported by affidavits of merits which may be rebutted by
affidavits and an affidavit supporting the FAME.
Affidavit of merits:executed by those who have knowledge of FAME. It must be
under oath.
- It recites the nature and character of FAME on which the motion is
based.
- It serves as the court’s jurisdictional basis to entertain a petition or
motion
NOTE: If these grounds were used in a motion to lift order of Default it cannot be
used as a ground for trial de novo where the circumstances are the same.
2. Second Ground - shall be supported by affidavits of the witnesses by
whom such evidence is expected to be given, or by duly authenticated
documents which are proposed to be introduced in evidence.
Effect of granting the motion: no new trial de novo, previous proceedings are
carried over plus additional evidence.
- The judgment may either affirm or reverse the previous proceedings
Note: the recorded evidence taken upon the former trial, insofar as the same is
material and competent to establish the issues, shall be used at the new trial
without retaking the same
Period to resolve the motion: shall be resolved within 30 days from the time it is
submitted for resolution.
 Second motion for new trial:
General Rule:A motion for new trial shall include all grounds then available
- Those not so included shall be deemed waived.
- Apply the omnibus motion rule
Exception: A second motion for new trial, based on a ground neither existing nor
available when the first motion was made
Effect of order for partial new trial:
When less than all of the issues are ordered retried, the court may:
1. Either enter a judgment or final order as to the rest, or
2. stay the enforcement of such judgment or final order until after the new
trial.
Remedy against order denying a motion for new trial:
- An order denying a motion for new trial is not appealed, the remedy
being an appeal from the judgment or final order.
Effect of filing a Motion for New Trial:
- It suspends the running of the period to appeal, but does not extend the
time within which an appeal must be perfected hence if denied, the
movant is entitled to fresh period of 15 days to file his appeal from the
receipt of the order denying the Motion for New Trial.
Note: A pro forma motion for new trial or reconsideration shall not toll the
reglementary period of appeal.
- A scrap paper without legal and binding effect
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A Motion for New Trial is considered as pro-forma where:
1. It is based on the same ground as that raised in a preceding motion for
new trial or reconsideration which has already been denied.
2. It contains the same arguments and manner of discussion appearing in
the prior opposition to the motion to dismiss and which motion was
granted.
3. The new ground alleged in the second motion for new trial already
existed, was available and could have been alleged in the first motion for
new trial which was denied.
4. It is based on the ground of insufficiency of evidence or that the
judgment is contrary to law but does not specify the supposed defects in
the judgment.
5. It is based on the ground of fraud, mistake or excusable negligence but
does not specify the facts constituting the grounds and/ or is not
accompanied by an affidavit of merits. Note that fraud and mistake must
be alleged with particularity.
NOTE: A party can avail of the remedy of Motion for New Trial even though a
Motion for Reconsideration is pending, provided that any grounds for motion for
new trial is present. Ergo, Motion for Reconsideration and Motion for New trial is
not mutually exclusive.
What shall be the first to be entertained?
- The Motion for New Trial because there is a possibility that the decision
sought to be reconsidered can be vacated.
Vs. Reopening of civil cases
- Litigated motion
- In civil case, it is not a remedy before finality of judgment
- In criminal case, it is a remedy before finality of judgment
Time to file: Must be filed after the trial but before decision.
Who can file: any party
How: through a motion by a party or motuproprio
Grounds:
- Any ground because it is discretionary upon the court.
- In the intent of justice
Effect if the Motion for Re-opening of Trial is granted:
- The case is not deemed submitted for decision
Effect if the Motion for Re-opening of Trial is denied:
- Appeal the decision and assign as one of the error the denial of the
Motion for Re-opening of trial.
A motion for reopening, unlike a motion for new trial, is not specifically mentioned
and prescribed as a remedy by the Rules of Court. There is no specific provision in
the Rules of Court governing motions to reopen. It is albeit a recognized
procedural recourse or device, deriving validity and acceptance from long,
established usage.
Motion for new trial in
Reopening of a case
civil or criminal actions
45
A may be applied for and controlled by no other rule than that of the
granted only upon specific, paramount interests of justice, resting An interlocutory order is not appealable until after the rendition of the judgments
well-defined grounds, set entirely in the sound judicial discretion of on the merits.
forth respectively in Rules a Trial Court; and its concession, or denial,
37 (Section 1) and 121 by said Court in the exercise of that 4. An order disallowing or dismissing an appeal.
(Section 2). discretion will not be reviewed on appeal 5. An order denying a motion to set aside a judgment by consent,
unless a clear abuse thereof is shown. confession or compromise on the ground of fraud, mistake, or duress, or
any other ground vitiating consent.
Appeal 6. An order of execution.
7. A judgment or final order for or against one or more of several parties or
 General Principles is separate claims, counterclaims, cross-claim, and third party
complaints, while the main case is pending, unless the court allows an
Nature of the Right to appeal: appeal therefrom.
- The right to appeal is neither a natural right nor a part of due process. 8. An order dismissing an action without prejudice.
- It is merely a statutory privilege and may be exercised only in the
manner and in accordance with the provisions of law. When motion for reconsideration or new trial a precondition to
- Thus, one who seeks to avail of the right to appeal must comply with the perfection of the appeal
the requirements of the Rules. - cases involving custody of minors
- Failure to do so often leads to the loss of the right to appeal. - Writ of Habeas corpus in relation to the custody of
- The period to appeal is fixed by both statute and procedural rules. BP minors
129, as amended, provides: - Annulment of voidable marriage
- Declaration of absolute nullity of void marriages
Sec. 39. Appeals. The period for appeal from final orders, resolutions, - Legal separation
awards, judgments, or decisions of any court in all these cases shall be
fifteen (15) days counted from the notice of the final order, resolution, Cristobal vs. CA: NO motion for extension of time to file a motion
award, judgment, or decision appealed from. Provided, however, that in for reconsideration or new trial with the MTC, RTC and the CA.
habeas corpus cases, the period for appeal shall be (48) forty-eight hours Such motion may be filed on only in cases pending with the SC as a
from the notice of judgment appealed from. court of last resort which may, in its sound discretion, grant or deny
the extension requested. The illness of a counsel is not a valid
Basic guidelines ground to for asking an extension.
a. No trial de novo shall be made.
b. There can be no new parties; Remedy on matters which are not appealable:
c. There can be no change of theory - The aggrieved party may file the appropriate special civil action under
d. There can be no new matters Rule 65
e. There can be amendments of pleadings to conform to the evidence
submitted before the trial court
Canada vs. All Commodities Marketing Corp., GR No. 146141,
f. The liability of solidarity defendant who did not appeal is not affected
October 17, 2008:
by appeal of solidarity debtor
As a rule, no question will be entertained on appeal unless it has been
g. Appeal by guarantor does not inure to the principal
raised in the court below. Points of law, theories, issues and arguments
h. In ejectment cases, the RTC cannot award to the appellant on his
not brought to the attention of the lower court ordinarily will not be
counterclaim more than the amount of damages beyond the jurisdiction
considered by a reviewing court because they cannot be raised for the
of the MTC
first time at that late stage.
i. The appellate court cannot dismiss the appealed case for failure to
prosecute because the case must be decided on the basis of the record
Exception - Section 8, Rule 51 in essence provides that the court may consider an
error raised on appeal provided the same falls within any of the following
Who may appeal:
categories:
- Only parties to a case can appeal.
1. It is an error that affects the jurisdiction over the subject matter.
2. It is an error that affects the validity of the judgment appealed from.
What do you call the parties on appeal:
3. It is an error which affects the proceedings.
o Appellant - the one who appealed the case.
4. It is an error closely related to or dependent on an assigned error and
o Appellee - the one who responds to the appeal.
properly argued in the brief.
5. It is a plain and clerical error.
When appeal is not applicable:
1. An order denying a motion for new trial or reconsideration
If a judgment is appealed and reverse in favor of the appellant, is the judgment
2. An order denying a petition for relief or any similar motion seeking relief
binding upon a party who did not appeal?
from judgment.
3. An interlocutory order.

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General rule: In the appellate proceedings, the reversal of the judgment on appeal
is binding only on the parties in the appealed case and does not affect or inure to
the benefit of those who did not join or were not made parties to the appeal.
Exception: where the interest of those who appealed and those who did not are
interwoven and dependent on each other as to be inseparable such that a reversal
to one operates as a reversal as to all.
Remedy if an action was dismissed without prejudice:
- Not appeal but to file another action or move for Motion for
Reconsideration.
Remedy of denial of a Motion for Execution:
- Appeal because the subject matter of the motion is final and executory.
May an order of execution be appealed?
General rule: No because it is final. Final and executory judgments cannot be
appealed.
of the judgment. The Supreme Court ruled in one case that this fresh period of
appeal is applicable in criminal cases.
Yu vs. Samsun Tatad:
Does the fresh period rule apply to appeals in criminal cases?
Yes. While Neypes involved the period to appeal in civil cases, the
Court’s pronouncement of a "fresh period" to appeal should equally
apply to the period for appeal in criminal cases under Section 6 of
Rule 122 of the Revised Rules of Criminal Procedure, for the
following reasons:
First, BP 129, as amended, the substantive law on which the Rules
of Court is based, makes no distinction between the periods to
appeal in a civil case and in a criminal case." Ubilex non
distinguitnecnosdistingueredebemos. When the law makes no
distinction, the Court also ought not to recognize any distinction.

Exceptions: It can be appealed when- Second, the provisions of Section 3 of Rule 41 of the 1997 Rules of
1. When the terms of the judgment are varied. Civil Procedure and Section 6 of Rule 122 of the Revised Rules of
2. When the terms of the judgment are not clear and there is room for Criminal Procedure, though differently worded, mean exactly the
interpretation. same. There is no substantial difference between the two provisions
insofar as legal results are concerned – the appeal period stops
 Final order vs. Interlocutory Order: running upon the filing of a motion for new trial or reconsideration
and starts to run again upon receipt of the order denying said
Final order Interlocutory order motion for new trial or reconsideration. It was this situation that
disposes of the subject matter in its Does not dispose of a case Neypes addressed in civil cases. No reason exists why this situation
entirety or terminates a particular completely, but leaves in criminal cases cannot be similarly addressed.
proceeding or action leaving nothing something more to be
else to be done but to enforce by adjudicated upon. Third, while the Court did not consider in Neypes the ordinary
execution what has been determined by appeal period in criminal cases under Section 6, Rule 122 of the
the court Revised Rules of Criminal Procedure since it involved a purely civil
The term ―final‖ judgment or order a court order is merely case, it did include Rule 42 of the 1997 Rules of Civil Procedure on
signifies a judgment or an order which interlocutory in character if it petitions for review from the RTCs to the CA, and Rule 45 of the
disposes of the case as to all the parties, leaves substantial 1997 Rules of Civil Procedure governing appeals by certiorari to this
reserving no further questions or proceedings yet to be had in Court, both of which also apply to appeals in criminal cases, as
directions for future determination. connection with the provided by Section 3 of Rule 122 of the Revised Rules of Criminal
controversy Procedure.
it is basically provisional in
its application  MODES OF APPEAL

 Fresh Period Rule o ORDINARY APPEAL

The movant has a fresh period of 15 days from receipt or notice of the order
denying or dismissing the motion for reconsideration within which to file a notice
of appeal.
This new period becomes significant if either a motion for reconsideration or a
motion for new trial has been filed but was denied or dismissed.
Obviously the 15 day period may be availed of only if either motion is filed;
otherwise, the decision becomes final and executory after the lapse of the original
appeal period provided in Rule 41, as held in the case of Neypes vs. CA [Sept. 14,
2005].
Appeal From Judgment of First Level CourtsRULE 40
- An appeal from a judgment or final order of a Municipal Trial Court may
be taken to the Regional Trial Court exercising jurisdiction over the
area to which the former pertains.
Appeal From Judgment of RTC in the Exercise of its Original
Jurisdiction:RULE 41
- An appeal from a judgment or final order of the Regional trial Court,
exercising original jurisdiction, to the Court of appeals

The Neypes ruling shall not be applied where no motion for new trial or motion for COMMON PROVISIONS:
reconsideration has been filed in which case the 15 day period shall run from notice
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Issues to be raised on appeal: d) order execution pending appeal in accordance with 2 of Rule 39, and
- Questions of fact or mixed questions of fact and law e) allow withdrawal of the appeal.

When to appeal: Efforts to complete the records fail:

- Notice of Appeal: Within 15 days after notice to the appellant of the - he shall indicate in his letter of transmittal the exhibits or transcripts
judgment or final order appealed from. not included in the records being transmitted to the appellate court,
- Record on appeal: within 30 days after notice of the judgment or final - the reasons for their non-transmittal, and
order. - the steps taken or that could be taken to have them available

To whom the Notice of Appeal is addressed: Dismissal of appeal:

- It must be addressed to the other party and not to the clerk of court. When: Prior to the transmittal of the original record or the record on appeal to the
- If addressed to the clerk of court, the court will not entertain the appeal appellate court
and the reglementary period to file an appeal will not be tolled. What: The trial courts may motupropio or on motion dismiss the appeal for
having been taken out of time.
Interruption of the Period to Appeal: by a timely motion for new trial or
reconsideration. Ordinary Appeal Petition for Review
- No motion for extension of time to file a motion for new trial or A matter of right Discretionary
reconsideration shall be allowed. All the records are elevated from No records are elevated unless
the court of origin the court decrees it
Within what period and to whom should the appellant pay the appeal fees: Notice or record on appeal is filed Filed with the CA
- Within the period for taking an appeal with the court of origin
- the appellant shall pay to the clerk of court of the court which rendered As to duration of residual powers: As to duration of residual powers:
the judgment or final order appealed from, Until the records are transmitted Until the CA gives due course
- The full amount of the appellate court docket and other lawful fees. to the appellate court. to the petition.

How to appeal: Residual Jurisdiction of the court:

- The appeal is taken by filing a notice of appeal.
The concept of residual jurisdiction is available at a stage in which the court is
Where to file notice of appeal: normally deemed to have lost jurisdiction over the case or the subject matter
- with the court that rendered the judgment or final order appealed from involved in the appeal. There is no residual jurisdiction to speak of where no
appeal or petition has even been filed.
Contents of the notice of appeal:
1. indicate the parties to the appeal, When:
2. the judgment or final order or part thereof appealed from, and a. Issue orders for the protection and preservation of the rights of the
3. State the material dates showing the timeliness of the appeal. parties which do not involve any matter litigated by the appeal.
b. Approve compromise agreements by parties after judgment has been
Approval of record on appeal: rendered,
If no objection is filed by the appellee within 5 days from receipt of a copy thereof, c. Permit appeals of indigent litigants.
the trial court: d. Order execution pending appeal
1. may approve it as presented or e. Allow withdrawal of appeal.
2. Upon its own motion or at the instance of the appellee, may direct its
amendment by the inclusion of any omitted matters which are deemed o PETITION FOR REVIEW:
essential to the determination of the issue of law or fact involved in the
appeal. Appeal From Judgment of the RTC in the Exercise of its Appellate
Jurisdiction: RULE 42
Time to amend: within ten (10) days from receipt
How appeal taken;
Joint record on appeal: - file a verified petition for review
- Where both parties are appellants, they may file a joint record on appeal - paying at the same time to the clerk of said court the corresponding
within the time fixed by section 3 of this Rule, or that fixed by the court. docket and other lawful fees, depositing the amount of P500.00 for
costs, and
- furnishing the Regional Trial Court and the adverse party with a copy of
Residual Jurisdiction of the Court: the petition.
a) Orders for the protection and preservation of the rights of the parties
which do not involve any matter litigated by the appeal, Where to appeal: with the Court of Appeals
b) approve compromises,
c) permit appeals of indigent litigants, Time for filing: shall be filed and served within 15 days from:

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 a) Notice of the decision sought to be reviewed or  within a period of 15 days from notice.
b) of the denial of petitioner's motion for new trial or reconsideration filed
in due time after judgment. The case shall be deemed submitted for decision: upon the filing of the last
pleading or memorandum required by these Rules or by the court itself.
Form and contents:
The petition shall be filed in 7 legible copies, with the original copy intended for Appeal From Judgment of Quasi-Judicial Bodies:RULE 43
the court being indicated as such by the petitioner, and shall:
(a) State the full names of the parties to the case, without impleading the Scope: from judgments or final orders of the:
lower courts or judges thereof either as petitioners or respondents;  Court of Tax Appeals and
(b) Indicate the specific material dates showing that it was filed on time;  any quasi-judicial agency in the exercise of its quasi-judicial functions
(c) set forth concisely a statement of the matters involved, the issues o the Civil Service Commission,
raised, the specification of errors of fact or law, or both, allegedly o Central Board of Assessment Appeals,
committed by the RTC, and the reasons or arguments relied upon for o Securities and Exchange Commission,
the allowance of the appeal; o Office of the President,
(d) be accompanied by clearly legible duplicate originals or true copies of o Land Registration Authority,
the judgments or final orders of both lower courts, certified correct by o Social Security Commission,
the clerk of court of the RTC, the requisite number of plain copies o Civil Aeronautics Board,
thereof and of the pleadings and other material portions of the record o Bureau of Patents,
as would support the allegations of the petition. o Trademarks and Technology Transfer,
o National Electrification Administration,
 There must be a certificate of non-forum shopping o Energy Regulatory Board,
o National Telecommunications Commission,
Effect of failure to comply with requirements: regarding the payment of the o Department of Agrarian Reform under Republic Act No.
docket and other lawful fees, the deposit for costs, proof of service of the petition, 6657,
and the contents of and the documents o Government Service Insurance System,
- sufficient ground for the dismissal thereof o Employees Compensation Commission,
o Agricultural Invention Board,
Comment on the petition: o Insurance Commission,
When to file: within 10 days from notice, o Philippine Atomic Energy Commission,
o Board of Investments,
Dismissal of the Petition; grounds: o Construction Industry Arbitration Commission, and
1. If it finds the same to be patently without merit, o Voluntary arbitrators authorized by law.
2. prosecuted manifestly for delay, or
3. That the questions raised therein are too insubstantial to require Cases not covered: judgments or final orders issued under the Labor Code of the
consideration. Philippines.

Contents of comment: The comment of the respondent shall be filed in 7 legible
copies, accompanied by certified true copies of such material portions of the record
referred to therein together with other supporting papers and shall
(a) state whether or not he accepts the statement of matters involved in
the petition;
(b) point out such insufficiencies or inaccuracies as he believes exist in
petitioner's statement of matters involved but without repetition; and
(c) state the reasons why the petition should not be given due course. A
copy thereof shall be served on the petitioner.
When the petition shall be given Due course:
- When the Court of Appeals finds prima facie that the lower court has
committed an error of fact or law that will warrant a reversal or
modification of the appealed decision
Where to appeal: to the Court of Appeals
Issues to be raised on appeal: questions of fact, of law, or mixed questions of fact
and law.
Period of appeal: within 15 days from:
 notice of the award, judgment, final order or resolution, or
 from the date of its last publication, if publication is required by law
for its effectivity, or
 of the denial of petitioner's motion for new trial or reconsideration
Motion for reconsideration: Only 1 motion for reconsideration shall be allowed.
How appeal taken: by filing a verified petition for review.

Elevation of record: within 15 days from notice, Contents of the petition: The petition for review shall
Whenever the Court of Appeals deems it necessary a) State the full names of the parties to the case, without impleading the court
or agencies either as petitioners or respondents;
Submission for decision: b) Contain a concise statement of the facts and issues involved and the grounds
If the petition is given due course, the Court of Appeals may set the case for: relied upon for the review;
1. oral argument or c) be accompanied by a clearly legible duplicate original or a certified true copy
2. require the parties to submit memoranda of the award, judgment, final order or resolution appealed from, together with

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 certified true copies of such material portions of the record referred to therein
and other supporting papers; and
d) Contain a sworn certification against forum shopping.
e) The petition shall state the specific material dates showing that it was filed
within the period fixed herein.
Effect of failure to comply with requirements: sufficient ground for the
dismissal.
Action on the petition: The Court of Appeals may require the respondent to file a
comment on the petition not a motion to dismiss
When to file: within 10 days from notice
Dismissal of the case:
a) if it finds the same to be patently without merit,
b) prosecuted manifestly for delay, or
c) that the questions raised therein are too unsubstantial to require
consideration.
Contents of comment. —The comment shall
a) Point out insufficiencies or inaccuracies in petitioner's statement of
facts and issues; and
b) State the reasons why the petition should be denied or dismissed.
When given Due course.: when the Court of Appeals finds prima facie that the
court or agency concerned has committed errors of fact or law that would warrant
reversal or modification of the award, judgment, final order or resolution sought to
be reviewed
Finding of facts: The findings of fact of the court or agency concerned, when
supported by substantial evidence, shall be binding on the Court of Appeals.
Effect of appeal: The appeal shall not stay the award, judgment, final order or
resolution sought to be reviewed unless the Court of Appeals shall direct
otherwise upon such terms as it may deem just.
Mode of appeal
RTC sitting as special agrarian court:
 petition for review under Rule 42 not through an
ordinary appeal under Rule 41
RTC sitting as special commercial courts
 corporate rehabilitation and intra corporate controversy
 To the CA through petition for review under Rule 43
All appeals from the decisions of the Ombudsman in
administrative disciplinary cases are taken to the Court of Appeals
by way of petition for review under Rule 43.
Decision of a voluntary arbitrator - Rule 43 to the CA
Secretary of Justice - Rule 65 with the CA
Except: penalty of the offense is reclusion perpetua appeal to the
Office of the President
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Decision of the Office of the President - appeal to the Ca under
Rule 43
o APPEAL BY CERTIORARIRULE 45
From what court: from a judgment or final order or resolution of the:
 Court of Appeals,
 the Sandiganbayan,
 the Regional Trial Court or
 other courts whenever authorized by law
Filing of petition with Supreme Court: file with the Supreme Court a verified
petition for review on certiorari.
Issue: The petition shall raise only questions of law which must be distinctly set
forth.
Time for filing; extension: within 15 days from notice of the judgment or final
order or resolution appealed from, or of the denial of the petitioner's motion for
new trial or reconsideration filed in due time after notice of the judgment.
Extension: On motion duly filed and served, with full payment of the docket and
other lawful fees and the deposit for costs before the expiration of the
reglementary period, the Supreme Court may for justifiable reasons grant an
extension of 30 days only within which to file the petition.
Contents of petition:
(a) state the full name of the appealing party as the petitioner and the adverse
party as respondent, without impleading the lower courts or judges thereof
either as petitioners or respondents;
(b) indicate the material dates showing when notice of the judgment or final
order or resolution subject thereof was received, when a motion for new
trial or reconsideration, if any, was filed and when notice of the denial
thereof was received;
(c) set forth concisely a statement of the matters involved, and the reasons or
arguments relied on for the allowance of the petition;
(d) be accompanied by a clearly legible duplicate original, or a certified true
copy of the judgment or final order or resolution certified by the clerk of
court of the court a quo and the requisite number of plain copies thereof,
and such material portions of the record as would support the petition; and
(e) contain a sworn certification against forum shopping
Dismissal or denial of petition: The failure of the petitioner to comply with any of
the requirements
Note: The Supreme Court may on its own initiative deny the petition on the
ground that:
1. the appeal is without merit, or
2. is prosecuted manifestly for delay, or
3. that the questions raised therein are too unsubstantial to require
consideration.
Nature of the power to review:
 A review is not a matter of right, but of sound judicial discretion
 will be granted only when there are special and important reasons
thereof
50
The following indicate the character of the reasons which will be considered: Stays the judgment Does not stay the judgment or
(a) When the court a quo has decided a question of substance, not theretofore sought to be appealed order subject of the petition

Effect
determined by the Supreme Court, or has decided it in a way probably not unless enjoined or restrained
in accord with law or with the applicable decisions of the Supreme Court;
or
(b) When the court a quo has so far departed from the accepted and usual The parties are the The tribunal, board, officer
course of judicial proceedings, or so far sanctioned such departure by a original parties with the exercising judicial or quasi-
lower court, as to call for an exercise of the power of supervision. appealing party as the judicial functions is impleaded

Parties
petitioner and the adverse as respondent
Due course; elevation of records: If the petition is given due course, the Supreme party as respondent
Court may require the elevation of the complete record of the case or specified without impleading the
parts thereof within 15 days from notice. lower court or its judge
Filed with the SC Filed with the RTC, CA, SC

Juris
Rule applicable to both civil and criminal cases:
 The mode of appeal prescribed in this Rule shall be applicable to both
civil and criminal cases
 except in criminal cases where the penalty imposed is  Cognate Rules
o death
o reclusion perpetua or o Stay of execution; exception
o life imprisonment.
GR: Judgment is not vacated by appeal, but is merely stayed and may be affirmed,
Q: Can a case decided by the RTC in the exercise of its appellate modified or reversed or findings of facts or conclusions of law may be adopted by
jurisdiction be appealed by way of a petition for review on certiorari reference.
under Rule 45?
Exception: Not applicable to civil cases under the Rules on Summary Procedure
A: No, where a case is decided by the RTC in the exercise of its which provides that the decision of the RTC in civil cases governed by said Rule
appellate jurisdiction, regardless of whether the appellant raises including forcible entry and unlawful detainer cases, shall be immediately
questions of fact, of law or mixed questions of fact and law, the executory without prejudice to a further appeal that maybe taken therefrom.
appeal shall be brought to the CA by filing a petition for review
under Rule 42 (Quezon City v. ABS-CBN Broadcasting o Question of facts vs. question of law
Corporation, GR No. 166408 October 6, 2008).
Question of law Question of fact
vs. petition for review under Rule 65: Exists when there is a doubt or exists when the doubt of
controversy as to what the law is on difference arises as to the
Rule 45 Rule 65 a certain state of facts. truth of falsehood of facts
Mode of appeal which Special civil action; an original One test whether the appellate court can determine the issue raised
seek to reviews final action. without reviewing or evaluating the evidence, in which case it is a
judgments and orders question of law, otherwise it will be a question of fact.
Nature

It may be directed against an Question of law must not involve the

A continuation of the
appellate process over the
original case
Raises question of law
Issues
interlocutory order or matters
where no appeal may be taken
from
Not part of the appellate
process but an independent
action
Raises question of jurisdiction
examination of the probative value of
the evidence presented.
o Notice of appeal vs. record on appeal
Notice of Appeal Record on Appeal
Deemed perfected as to him upon the Required only in Special
filing of the notice of appeal. Proceedings and other cases
If decision is made by the courts of of multiple or separate

1st level, notice of appeal need not appeals.

state the court to which the appeal is Deemed perfected as to him
being taken (Sec.3, Rule 40) because with respect to the subject
It shall be filed within 15 It shall be filed not later than there is only one court to which it matter thereof upon its
days from notice of 60 days from notice of shall be made – RTC approval. (30 days is the
Regele
Period

judgment or final order judgment, order or resolution period for filing, only the
appealed from sought to be assailed or from If decision is made by the RTC in its court may approve the
denial of MR or MNT original jurisdiction, notice of appeal record on appeal beyond
to the RTC must disclose where that period)

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appeal is to be taken. (Sec 5, rule 41) f) Every record on appeal exceeding 20 pages must contain a subject
index.

o Perfection of appeal; its effect

Period available is 15 days before the
judgment becomes final and executor
Period available is 15 days
before the judgment
becomes final and executor
Perfection of appeal;
- Notice of Appeal:upon the filing of the notice of appeal in due time.
- Record on Appeal:upon the approval of the record on appeal filed in due
time.

If required, the appellant has 30 days If required, the appellant

to file and serve both notice and
record on appeal.
Effects:
has 30 days to file and serve
Notice of appeal - the court loses jurisdiction over the case upon the
both notice and record on
perfection of the appeals
appeal.
Record on appeal - the court loses jurisdiction only over the subject
matter thereof upon the approval of the records on appeal

Except in civil cases decided under the Rule on Summary Procedure, the appeal
When record of appeal is required:
shall stay the judgment or final order unless the Court of Appeals, the law, or these
1. special proceedings and
Rules shall provide otherwise.
2. In other cases of multiple or separate appeals.

The remedy if a party whose notice of appeal is denied by the trial

Republic vs. Nishina, November 15, 2010: record on appeal is not
court, although such notice is filed within the period thereof, is to
necessary in proceedings involving cancellation of birth record and
file a motion for reconsideration is such order, and if the court
change if surname in the civil registry.
denies such motion, to file a petition for certiorari under Rule 65.

Zayco vs. Hinlo, April 16,2008: an order appointing an administrator of a

Failure to pay the full amount of the appellate court docket fee
deceased person's estate is a final determination of the rights of the
and other lawful fees is a ground for the dismissal of the appeal.
parties in connection with the administration, management and
Does appellant's failure to pay automatically result in the
settlement of the decedent' s estate ; hence, it is a final order and
dismissal of the appeal?
thus appealable. In special proceedings, such as appointment of an
administrator, record on appeal is required and is to be filed, along
Not automatic. The dismissal is discretionary on the part of the
with the notice of appeal, within 30 days from notice of the
appellate court. The appellate court may extend the time for the
judgment or final order appealed from.
payment if the appellant can show that there is justifiable reason
like FAMEN or similar supervening casualty, without fault in his
NOTE: no appeal shall be allowed from the appointment of special
part.
administrator. Remedy: certiorari

Duty of clerk of court of the lower court upon perfection of appeal: Within 30
It also includes an appeal from:
days after perfection, it shall be the duty of the clerk of court of the lower court:
1. Order of expropriation in eminent domain proceedings.
2. Judgment for recovery of property or partition with accounting.
(a) To verify the correctness of the original record or the record on appeal, as the
3. Judgment for or against one or more of several defendants leaving the
case may be aid to make certification of its correctness;
action to proceed against the others.
(b) To verify the completeness of the records that will be, transmitted to the
4. Foreclosure of mortgage.
appellate court;
(c) If found to be incomplete, to take such measures as may be required to
Forms and Contents:
complete the records, availing of the authority that he or the court may
a) The full names of all the parties to the proceedings shall be stated in the
exercise for this purpose; and
caption of the record on appeal and
(d) To transmit the records to the appellate court.
b) it shall include the judgment or final order from which the appeal is
taken and,
(2009) The filing of a motion for the reconsideration of the trial
c) in chronological order, copies of only such pleadings, petitions, motions
court’s decision results in the abandonment of a perfected appeal.
and all interlocutory orders as are related to the appealed judgment or
final order for the proper understanding of the issue involved,
SUGGESTED ANSWER:
d) together with such data as will show that the appeal was perfected on
FALSE. The trial court has lost jurisdiction after perfection of the
time.
appeal and so it can no longer entertain a motion for reconsideration.
e) If an issue of fact is to be raised on appeal, the record on appeal shall
include by reference all the evidence, testimonial and documentary,
ALTERNATIVE ANSWER: FALSE, because the appeal may be
taken upon the issue involved.
perfected as to one party but not yet perfected as to the other party

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who may still file a motion for reconsideration without
abandonment of his right of appeal even though the appeal of the
case is perfected already as to the other party.
(2012) Where and how will you appeal the following:
(1) An order of execution issued by the RTC. (1%)
SUGGESTED ANSWER: A petition for certiorari under Rule 65
before the Court of Appeals.
ALTERNATIVE ANSWER: The mode of elevation may be either by
appeal (writ of error or certiorari), or by a special civil action of
certiorari, prohibition, or mandamus. (Banaga vs. Majaducon cited in
General Milling Corporation-Independent Labor Union vs. General
Milling Corporation, G.R. No. 183122, June 15, 2011, Perez, J.).
(2) Judgment of RTC denying a petition for Writ of Amparo. (1%)
SUGGESTED ANSWER: Any party may appeal from the final
judgment or order to the Supreme Court by way of a petition for
review on certiorari under Rule 45 of the Rules of Court. the period
of appeal shall be five (5) working days from the date of notice of the
adverse judgment, and the appeal may raise questions of fact or law
or both. (sec. 19, Rule on Writ of Amparo, A.M. No. 07-9-12-SC, 25
September 2007).
(3) Judgment of MTC on a land registration case based on its delegated
jurisdiction. (1%)
SUGGESTED ANSWER: The appeal should be filed with the Court
of Appeals by filing a Notice of Appeal within 15 days from notice of
judgment or final order appealed from. (Sec. 34, Batas PambansaBlg.
129, or the Judiciary Reorganization Act of 1980, as amended by
Republic Act No. 7691, March 25, 1994).
(4) A decision of the Court of Tax Appeal's First Division. (1%)
SUGGESTED ANSWER: The decision of the Court of Tax Appeals
Division may be appealed to the CTA en banc. The decisions of the
Court of Tax Appeals are no longer appealable to the Court of
Appeals. Under the modified appeal procedure, the decision of a
division of the CTA may be appealed to the CTA en banc. The
decision of the CTA en banc may in turn be directly appealed to the
Supreme Court by way of a petition for review on certiorari under
Rule 45 on questions of law. (Section 11, R.A. 9282, March 30, 2004).
(2009) On July 15, 2009, Atty. Manananggol was served copies of
numerous unfavorable judgments and orders. On July 29, 2009, he
filed motions for reconsideration which were denied. He received the
notices of denial of the motions for reconsideration on October 2,
2009, a Friday. He immediately informed his clients who, in turn,
uniformly instructed him to appeal. How, when and where should he
pursue the appropriate remedy for each of the following:
(a) Judgment of a Municipal Trial Court (MTC) pursuant to its delegated
jurisdiction dismissing his client’s application for land registration?
© Gironella – Macadatar 2017 | Remedies against Judgment and Final Orders
SUGGESTED ANSWER: By notice of appeal, within 15 days from
notice of judgment or final order appealed from, to the Court of
Appeals;
(b) Judgment of the RTC denying his client’s petition for a writ of habeas data?
SUGGESTED ANSWER: By verified petition for review on certiorari
under Rule 45, with the modification that appellant may raise
questions of fact or law or both, within 5 work days from date of
notice of the judgment or final order to the Supreme Court (Sec. 19,
A.M. No. 08-1-16-SC).
(c) Order of a family court denying his client’s petition for habeas corpus in
relation to custody of a minor child?
SUGGESTED ANSWER: By notice of appeal, within 48 hours from
notice of judgment or final order to the Court of appeals (Sec. 14,
R.A. No. 8369 in relation to Sec. 3, Rule 41, Rules of Court).
(d) Order of the RTC denying his client’s petition for certiorari questioning the
Metropolitan Trial Court’s denial of a motion to suspend criminal proceedings?
SUGGESTED ANSWER: By notice of appeal, within 15 days from
notice of the final order, to the Court of appeals (Majestrado vs.
People, 527 SCRA 125 [2007]).
(e) Judgment of the First Division of the Court of Tax Appeals affirming the RTC
decision convicting his client for violation of the National Internal Revenue Code?
SUGGESTED ANSWER:
By petition for review filed with the court of Tax Appeals (CTA) en
banc, within 30 days from receipt of the decision or ruling in
question (Sec. 9 [b], Rule 9, Rev. Rules of CTA).
(2008) After receiving the adverse decision rendered against his
client, the defendant, Atty. Sikat duly filed a notice of appeal. For his
part, the plaintiff timely filed a motion for partial new trial to seek an
increase in the monetary damages awarded. The RTC instead
rendered an amended decision further reducing the monetary
awards. Is it necessary for Atty. Sikat to file a second notice of appeal
after receiving the amended decision?
SUGGESTED ANSWER: Yes, it is necessary for Atty. Sikat to file a
second notice of appeal after receiving the amended decision. In
Magdalena Estate vs. Caluag (11 SCRA 333 [1964]), the Court ruled
that a party must re-take an appeal within fifteen [15) days from
receipt of the amended ruling or decision, which stands in place of
the old decision. It is in effect, a new decision.
Problem: X filed a complaint for collection of sum of money against
H and W with the RTC. In their answer, W admitted the load, but
H denied liability on the ground that his wife, not being the
administrator, had no authority to bind the conjugal partnership. X
filed a motion for partial judgment based on W's admission, which
the trial court granted in a partial judgment dated May 14, 1996.
Counsel for H and W received a copy of the partial judgment on
53
May 21, 1996. Pretrial and trial were held against H. On June 2, 1997,
the trial court rendered judgment ordering H to pay the amount of
the loan plus interest. Counsel for H and W received a copy of this
judgment on June 6, 1997. In June 19, 1997, H, through counsel, filed
a notice of appeal. On June 25, 1997, W, through another counsel,
appealed from both judgments promulgated on May 14, 1996 and
June 2, 1997, by filing her own notice of appeal. The trial court
dismissed W's appeal on the ground that it was filed out of time. Is
the dismissal correct? When should the period to appeal
commence to run?
Answer: The partial judgement dated May 14, 1996 was rendered by
the trial court only with respect to one issue. It was, therefore,
merely interlocutory because it leaves other things for the trial court
to do and does not decide with finality the rights and obligations of
the parties. Being interlocutory, the partial judgement is not
appealable. It must be appealed together with the judge,net dated
Arjun's 2, 1997.
The period to appeal commence to run on June 6, 1997? When
counsel for H and W received a copy of the judgment dated June 2,
1997. Although W's appeal was filed beyond the 15-day period
(reckoned from June 2, 1997), still her husband H filed his notice of
appeal on June 19, or at least 13 days from June 6. H and W, having
been jointly sued under a common cause of action, the appeal made
by H inured to the benefit of W. The notice appeal filed by W was a
superfluity. Hence, the dismissal of W's appeal is not correct.
Problem: Plaintiff filed a complaint for specific performance against
defendant city government with the RTC. In Due time, the
defendant filed its answer signed by a private lawyer, not the city
legal officer. Plaintiff filed a motion to declare defendant in default
arguing that the city legal officer is the only authorized officer
under the LGC. The trial court denied the motion. Plaintiff moved
for reconsideration, but its MR was likewise denied. Plaintiff
elevated the matter to the CA via a petition for certiorari under Rule
65. The CA dismissed the petition outright because the person who
signed the verification did not appear to be authorized by the
petitioner. Petitioner filed a MR, but it was denied. Petitioner filed
with the SC a petition for certiorari under Rule 65. Is the petition
he proper remedy?
A: No, the resolutions of the CA which petitioner seeks to nullify
are order of dismissal. An order of dismissal is a final order which is
a proper subject of an appeal, not certiorari. If what is deign assailed
is a decision, final order or resolution of the CA, then appeal to the
SC is by means of a verified affidavit for review on certiorari under
Rule 45.
In cases where appeal is available, certiorari will not prosper even if
the ground therefore is grave abuse of discretion.
Problem: BL filed with the RTC (FC) a petition for the declaration
of the presumptive death of her absent absent. After publication
and hearing, the court rendered judgment granting the petition and
declaring the presumptive death of BL's husband. Within 15 days
from receipt of the decision, the SolGen filed a notice of appeal. The
© Gironella – Macadatar 2017 | Remedies against Judgment and Final Orders
RTC gave due course to the appeal. The CA denied the appeal and
affirmed decision of the RTC. Is the RTC correct in giving due
course to the appeal? Is the Ca correct in affirming the decision of
the RTC?
Answer: No. The RTC is not correct. The family code provides that
judgment of the court in Summary judicial proceedings is
immediately final and executory. Thus, there is no reglementary
period within which to perfect an appeal because judgments
rendered in Said summary proceedings are immediately final and
executory.
The CA erred in affirming the decision of the RTC. An appellate
court acquires no jurisdiction to review a judgement which, by
express provision of law, is immediately final and executory. The
CA should have dismissed the appeal outright in that ground.
Problem: Because of the failure of the spouses A and L to pay their
loan which was secured by a mortgage of a land, the metropolitan
bank foreclosed the real estate mortgage extrajudicially. The
mortgaged property was sold at the public auction on January 8,
1998 to the bank itself as the highest bidder. A certificate of sale was
executed by the sheriff in favor of the bank on January 14, 1998 and
was registered with the RD on January 27, 1998. On December 29,
1998, the bank wrote to the spouses that the one year redemption
period of the property would expire on January 19, 1999. Instead of
redeeming the property the spouses filed with the RTC on January
19, 1999 a complaint against the bank and the sheriff for annulment
of the extrajudicial sale. In their complaint (CC 3454), the spouses
alleged that the bank bloated their obligation by including
excessive interest. Charges etc. after the expiration of the one year
redemption period, the bank consolidated its ownership. On July
23, 1999, the bank filed a petition for writ of possession.
1. Does the CC 3454 constitute prejudicial question?
No. A prejudicial question ones into play in a situation where a civil
action and a criminal action are both pending, and there exists in
the civil action an issue that must be preemptive oh resolved before
the criminal action may proceed. In the case, there is no criminal
action.
2. The filing of CC 3454 before he expiration of the
redemption period equivalent to a formal offer to redeem,
and does it have the effect of preserving their right to
redeem?
It is not equivalent to a formal offer to redeem, and it does not have
the effect of preserving their right to redeem. It does not suspend
the period to redeem.
EXCEPT - if the action is one to enforce the repurchase of the
foreclosed property - has th effect of preserving the rights of the
mortgagor to redeemed.
3. May the court issue the writ of possession
notwithstanding the pendency of the action for
annulment
54

Yes. The proceedings in a petition for the issuance of a writ of
possession. After the lapsed of the redemption period, is summary
in nature. The trial court is mandated to issue the writ of possession
upon the expiration of the period of redemption without the
redemptioner having redeemed the property.
4. If the court issues the writ of possession and the spouses
wants to assail the issuance of said writ, what is their
remedy?
conducted by the bureau of lands. After the survey, the bureau of
lands submitted its report, showing that D had encroached on 89
square meters of P's lot. In due time the RTC rendered judgment in
favor of P, reversing the MTC judgment.
After the judgment become final, D filed an action for annulment of
judgment with the CA on the ground of extrinsic fraud. He argued
that the order of relocation survey is irregular. He cited section 7
Rule 40 which provides that RTC shall decide the case on the basis
of the entire record of the proceedings had in the court of origin and
such memoranda as are file. Is D correct?

Appeal by writ of error (writ of error simply means ordinary
appeal). Assuming that the trial court erred in issuing the writ of
possession, it's error is an error of judgment correctible only by
ordinary appeal. Rule 65 is not the proper remedy.
Herrera vs. Ballos: the MTC dismissed the case for lack of
jurisdiction, and the RTC reversed the dismissal but rendered
judgment ejecting the defendants from the parcel of land involved,
and condemning them to pay damages and attorney's fees. This is
not correct. In case of reversal, the case shall be remanded to the
MTC for further proceedings.
A: No. The conduct of the survey was not instigated by P, but upon
the order of the RTC, besides, the parties and their lawyers agreed
to the relocation survey. The relocation survey is a factual issue
which is a proper question for the RTC to inquire into. The result of
the survey is not ipso facto binding upon the parties even if they
consented to the survey, but only form part of the proofs on which
the RTC may base its decision.

In case the order of dismissal is affirm: the RTC, if it has jurisdiction

over the subject matter of the action p, shall try the case on the
merits as if the case was originally filed with it.

After a relocation survey, P found that a portion of his lot is

occupied by D. P then filed a case of ejectment against D with the
MTC which, in due time, rendered judgment dismissing the
complaint because, according to it, D did not encroach on the lot. P
appealed the judgment to the RTC. With concurrence of the parties
and their lawyers, the RTC judge ordered a relocation survey to be

SUMMARY:
PERIOD OF APPEAL
IF MR OR MNT WAS
MODE OF APPEAL PERIOD OF APPEAL ISSUES THAT MAY BE RAISED
FILED (Neypes
Doctrine)
Ordinary Appeal (MTC to RTC) Rule 40
a. Notice of Appeal Within 15 days after notice to the appellant of Within 15 days from Questions of fact or mixed questions
the judgment or final order appealed receipt of the order of fact and law.
denying the motion.

b. Record of Appeal Within 30 days after notice of the judgment or

final order

Ordinary Appeal (RTC to CA): Original Jurisdiction Rule 41

a. Notice of Appeal Within 15 days after notice to the appellant of Within 15 days from Questions of fact or of law or mixed
the judgment or final order appealed receipt of the order question of fact and law that has been
denying motion for raised in the court below and is within

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b. Record of Appeal Within 30 days after notice of the judgment or reconsideration or new the issues framed by the parties
final order trial.

Note: appeal in habeas corpus cases shall be

taken within 48 hours from notice of the
judgment or final order appealed from

Petition for Review (RTC to CA) ; Appellate Jurisdiction Rule 42

Within 15 days from notice of the decision to be Within 15 days from Questions of fact, of law, or mixed
reviewed or from the denial of a MR or new receipt of the order questions of fact and law
trial denying motion for
reconsideration or new
Note: The court may grant an additional period trial.
of 15 days provided the extension is sought:
a. Upon proper motion; and
b. Upon payment of the full amount of the
docket and other lawful fees before the
expiration of the reglementary period.

Petition for Review (Quasi- Judicial Bodies to CA) Rule 43

Within 15 days from receipt of judgment or Within 15 days from Questions of fact, of law, or mixed
final order or of last publication receipt of the order questions of fact and law
denying motion for
reconsideration or new
trial.
Petition for Review on Certiorari Rule 45
1. RTC to SC Within 15 days from notice of the judgment, Within 15 days from Only questions of law
final order or resolution appealed from receipt of the order
2. CA to SC denying motion for
Note: The SC may for justifiable reason grant reconsideration or new
3. Sandiganbayan to SC an extension of 30 days only within which to trial
file the petition provided:
4. CTA en banc to SC a. There is a motion for extension of time
duly filed and served;
5. Appeals from a b. There is full payment of the docket and
judgment or final order in other lawful fees and the deposit for costs;
a petition for a writ of and
amparoand writ of habeas c. The motion is filed and served and the
data to the SC payment is made before the expiration of
the reglementary period

months after such judgment or final order was entered, or such proceeding was
After finality of judgment and final orders taken

Relief From Judgment or Final Orders
A legal remedy whereby a party seeks to set aside judgment or final order rendered
against him by a court whenever he was unjustly derived of a hearing or was
prevented from taking an appeal because of FAME.
- An equitable remedy allowed only in exceptional cases
Time for filing petition: filed within 60 days after the petitioner learns of the
judgment, final order, or other proceeding to be set aside, and not more than 6
Contents: must be accompanied with affidavits showing the fraud, accident,
mistake, or excusable negligence relied upon, and the facts constituting the
petitioner's good and substantial cause of action or defense, as the case may be.
Order to file an answer: If the petition is sufficient in form and substance to
justify relief, the court in which it is filed, shall issue an order requiring the adverse
parties to answer the same.
Time to file an answer: within 15 days from the receipt thereof

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Preliminary injunction pending proceedings:
- for the preservation of the rights of the parties,
- upon the filing by the petitioner of a bond in favor of the adverse party,
- conditioned that if the petition is dismissed or the petitioner fails on the
trial of the case upon its merits, he will pay the adverse party all damages
and costs that may be awarded to him by reason of the issuance of such
injunction or the other proceedings following the petition,
- such injunction shall not operate to discharge or extinguish any lien
which the adverse party may have acquired upon, the property, of the
petitioner.
Proceedings after answer is filed:
- the court shall hear the petition and
- if after such hearing, it finds that the allegations thereof are not true, the
petition shall be dismissed;
- but if it finds said allegations to be true, it shall set aside the judgment or
final order or other proceeding complained of upon such terms as may be
just.
Procedure where the denial of an appeal is set aside: the lower court shall be
required to give due course to the appeal and to elevate the record of the appealed
case as if a timely and proper appeal had been made.
 Alleged therein with particularity the facts and the law relied upon for
annulment
 As well as those supporting the petitioner's good and substantial cause
of action or defense, as the case may be.
 The petitioner shall also submit together with the petition affidavits of
witnesses or documents supporting the cause of action or defense
 Certificate of non-forum shopping
Action by the court:
 Should the court find no substantial merit in the petition, the same may
be dismissed outright with specific reasons for such dismissal.
 Should prima facie merit be found in the petition, the same shall be
given due course and summons shall be served on the respondent.
Procedure: The procedure in ordinary civil cases shall be observed.
Effect of judgment: A judgment of annulment shall set aside the questioned
judgment or final order or resolution and render the same null and void, without
prejudice to the original action being refiled in the proper court.
- However, where the judgment or final order or resolution is set aside on
the ground of extrinsic fraud, the court may on motion order the trial
court to try the case as if a timely motion for new trial had been granted
therein.

Annulment of Judgment
Suspension prescriptive period: The prescriptive period for the refiling of the
aforesaid original action shall be deemed suspended from the filing of such original
Coverage: This Rule shall govern the annulment by the Court of Appeals of
action until the finality of the judgment of annulment.
judgments or final orders and resolutions in civil actions of Regional Trial Courts
- for which the ordinary remedies of new trial, appeal, petition for relief or
Note: However, the prescriptive period shall not be suspended where the
other appropriate remedies are no longer available through no fault of the
extrinsic-fraud is attributable to the plaintiff in the original action.
petitioner.

Relief available: The judgment of annulment may include the award of:
Grounds for annulment:
 Damages
1. extrinsic fraud
 attorney's fees
2. lack of jurisdiction.
 other relief.

Note: Extrinsic fraud shall not be a valid ground if it was availed of, or could have
Already been executed: the court may issue such orders of restitution or other relief as
been availed of, in a motion for new trial or petition for relief. (n)
justice and equity may warrant under the circumstances.

Period for filing action:

 extrinsic fraud - within 4 years from its discovery;
Ways of attacking a final judgment
 lack of jurisdiction - before it is barred by laches or estoppel.
Direct Attack

Where to file:
Judgment of RTC
Filed with the CA
Basis – It has exclusive original
jurisdiction over said action under
Sec. 9 (2), BP 129
CA may dismiss the case outright;
it has the discretion on whether or
not to entertain the petition.
It is an independent action must be filed to challenge the validity of judgment
whose nullity is not patent on its face
Judgment of MTC
Filed with the RTC
Collateral Attack
Basis – RTC as a court of general
jurisdiction under Sec. 19 (6), BP
It is made in another action to obtain a different relief; an attack on the judgment is
129
made as an incident in said action. This is proper only when the judgment, on its
RTC has no such discretion. It is
face is null and void, as where it is patent that the court which rendered such
required to consider it as an
judgment has no jurisdiction
ordinary civil action.

What to file: commenced by filing a verified petition

Execution

Contents of petition: Basic Concepts and Doctrines

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 - It is a remedy provided by law for the enforcement or satisfaction of a Manner of Enforcing:
final judgment. (a) Against the property of the judgment obligor - to satisfy the judgment,
with interest, out of the real or personal property of such judgment
Distinguish final judgments for purposes of appeal from final judgments for obligor;
purposes of execution: (b) If it be against real or personal property in the hands of personal
representatives, heirs, devisees, legatees, tenants, or trustees of the
Final Judgments for Final Judgments for purposes of judgment obligor, to satisfy the judgment, with interest, out of
purposes of appeal execution such property;
Dispose of, adjudicate, Becomes final and executory by (c) If it be for the sale of real or personal property to sell such property
or determine the right of operation of law. describing it, and apply the proceeds in conformity with the
the parties. judgment, the material parts of which shall be recited in the writ of
Still subject to appeal After lapse of period to appeal and no execution;
appeal was perfected, no further action (d) If it be for the delivery of the possession of real or personal
can be had. property, to deliver the possession of the same, describing it, to the
Execution of judgment Execution of judgment a matter of right. party entitled thereto, and to satisfy any costs, damages, rents, or
not a matter of right. profits covered by the judgment out of the personal property of the
person against whom it was rendered, and if sufficient personal
Exception; as to the rule that only final judgment become executory: property cannot be found, then out of the real property; and
1. An order granting support pendente lite
2. A judgment by an inferior court against the defendant in a forcibly entry NOTE: no appeal may be taken from an order of execution.
and unlawful detainer which is affirmed by the RTC unless the defendant
appeals, files a bond and pays monthly rental Remedy: Certiorari – Rule 65
3. Injunction
4. Receivership After a judgment become final and executory in the Supreme Court, is there a
need to remand the records of the case for purposes of execution:
WRIT OF EXECUTION: - NO. All the law requires is that the appeal be duly perfected and finally
- It is a judicial writ issued to an officer authorizing him to execute the resolved before execution may be applied.
judgment of the court.
Return of writ of execution: The writ of execution shall be returnable to the
Lifetime of the writ: The writ is enforceable within 5 years from the entry of court issuing it immediately after the judgment has been satisfied in part or in full.
judgment
When the judgment must be satisfied: within 30 days.
Portion of the judgment that must be executed:
- Dispositive portion Failure: the officer shall report to the court and state the reason therefor

Exception:
1. When there is ambiguity or uncertainty in the dispositive portion
2. Where extensive and explicit discussion and settlement of the issue is
found in the body of the decision
Address to: the ex officio sheriff not to the judgment obligor
Duration of the writ: Such writ shall continue in effect during the period within
which the judgment may be enforced by motion.
Report: The officer shall make a report to the court every 30 days on the
proceedings taken thereon until the judgment is satisfied in full, or its effectivity
expires.

How issued: upon motion Kinds of Execution

- Even if final and immediately executory there must be a motion
The writ of execution shall / Contents:
(1) issue in the name of the Republic of the Philippines from the court which
granted the motion;
(2) state the name of the court, the case number and title, the dispositive
part of the subject judgment or order; and
(3) require the sheriff or other proper officer to whom it is directed to
enforce the writ according to its terms,
MINISTERIAL EXECUTION / Execution as a Matter of Right / of
Course
 Upon a judgment or order that disposes of the action or proceeding
upon the expiration of the period to appeal therefrom if no appeal has
been duly perfected.
Where to apply:in the court of origin

Note: The motion for execution and the writ of execution must state specifically By whom: on motion of the judgment obligee
the amount of interest, costs, damages, rents, or profits due as of the date of
issuance of the writ, aside from the principal obligation. How issued: Execution shall issue upon motion
 Must comply with the 3 day notice rule, and 10 hearing rule

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When issued:
1. The judgment has become final and executory
Note: Once a decision becomes final and executory, it is the ministerial duty of the
presiding judge to issue a writ of execution except in certain cases, as when
subsequent events would render execution of judgment unjust (Mangahas vs.
Paredes, GR 157866, Feb. 14, 2007).
2. Judgment debtor has renounced or waived his right to appeal;
3. The period for appeal has lapsed without an appeal having been filed;
4. Having been filed, the appeal has been resolved and the records of the
case have been returned to the court of origin
May the court which rendered the judgment refuse to issue writ of execution:
General Rule: The court cannot refuse execution.
Remedy: mandamus
Exception/ when execution shall e denied when execution shall e denied:
1. When the judgment has already been executed by the voluntary
compliance thereof by the parties
2. When the judgment has been novated by the parties
- Such as entering into a compromise
- Allowed even if there is already a judgment
3. When a petition for relief is filed and a preliminary injunction is granted
4. When the judgment sought to be executed is conditional
5. When facts and circumstances transpire which would render execution
inequitable or unjust
6. When execution is sought more than 5 years from its entry without the
judgment having been revived;
7. When execution is sought against property exempt from execution
When there is novation or compromise agreement after final
judgment and one of the parties did not follow the undertaking in
the novation or compromise agreement – the remedy will be file a
motion for writ of execution – execute now the final judgment
San Buenaventura vs. Migrino, A.M. No. P-08-2574, January 22,
2014: the delay in the execution of the judgment could not be
wholly attributed to the respondent, but also to Acting Presiding
Judge Ongpauco as it concerned judicial orders issued by her.
It must be pointed out that the subject decision in Civil Case No.
6798 had already become final and executory. In fact, an entry of
judgment was already issued by the Supreme Court where the case
was elevated. Hence, as such, execution of the said decision should
have been issued as a matter of right.
Instead of immediately ordering the execution of the final judgment,
Judge Ongpauco allowed the case to drag on through several
resettings of the hearings of the case on such grounds as (1) the
defendant not being around; (2) the records of the case were not yet
in the court’s possession; (3) the granting of the defendant’s motion
and manifestation to submit his comment/opposition to plaintiff’s
motion for execution; (4) the records of the case had been elevated
anew to the Regional Trial Court.
Anama vs. Court of Appeals, GR no. 187021, January 25, 2012:
Argument:
Petitioner argues that the respondents failed to substantially
comply with the rule on notice and hearing when they filed their
motion for the issuance of a writ of execution with the RTC.
Ruling:
Elementary is the rule that every motion must contain the
mandatory requirements of notice and hearing and that there must
be proof of service thereof. The Court has consistently held that a
motion that fails to comply with the above requirements is
considered a worthless piece of paper which should not be acted
upon. The rule, however, is not absolute. There are motions that can
be acted upon by the court ex parte if these would not cause
prejudice to the other party. They are not strictly covered by the
rigid requirement of the rules on notice and hearing of motions.
The motion for execution of the Spouses Co is such kind of motion.
It cannot be denied that the judgment sought to be executed in this
case had already become final and executory. As such, the Spouses
Co have every right to the issuance of a writ of execution and the
RTC has the ministerial duty to enforce the same.
DISCRETIONARY Execution
When:
1. Execution pending appeal;
2. Execution of several, separate or partial judgments
How Construed:
- Must be strictly construed
Requisites:
1. There must be a motion filed by the prevailing party with notice to the
adverse party;
2. There must be a hearing of the motion for discretionary execution;
3. There must be good reasons to justify the discretionary execution; and
4. The good reasons must be stated in a special order
Good reasons:
- That favorable judgment may yield to an empty victory.
- An order for immediate execution of the judgment on the ground that
the appeal was frivolous and interposed only for delay is a serious error
 The authority to dismiss it is with the appellate court
- Filing of a bond by the successful party – not a good reason
- Financial distress – not a good reason
 Execution of a judgment or final order pending appeal:
How: On motion of the prevailing party with notice to the adverse party
Where to file:
 in the trial court while it has:
 jurisdiction over the case and
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  is in possession of either the original record or the record on
appeal
 After the trial court has lost jurisdiction the motion for execution
pending appeal may be filed in the appellate court.
 Execution of several, separate or partial judgments:
 may be executed under the same terms and conditions as execution of a
judgment or final order pending appeal
Stay of discretionary execution: upon approval by the proper court of a sufficient
supersedeas bond filed by the party against whom it is directed
Effect of Total or Partial Reversal or Annulment of the Executed
 Real Action – where the property is situated
 Personal Action – where the plaintiff or defendant resides
Exception: (through motion after the lapsed of 5 years)
1. Delays in the execution of the judgment were through causes
attributable to the judgment debtor or when the delay is incurred for his
benefit.
2. By agreement
Effect:suspend the running of the prescriptive period to enforce the judgment
When the 5 and 10 year periods do not apply:
1. Special proceedings – does not prescribed
2. Judgment for support – obligation is continuing

Judgment
Revival of Judgment:

The trial court may, on motion, issue such orders of restitution or reparation of
 This means that from the date of the finality of judgment, no motion was
damages as equity and justice may warrant under the circumstances.
filed for the execution of said judgment, thus the need for its
enforcement by action.
Q: In a complaint filed by Granger for rescission and damages, the
RTC ruled against JP Latex, defendant. On Aug. 5, 2006, Granger
When to file: The action to revive a judgment must be filed within 10 years from
moved for the execution pending appeal of the decision. Upon
the date of judgment became final because an action to enforce a judgment
receipt of the decision, JP Latex filed a motion for reconsideration
prescribes in 10 years from the finality of the judgment.
(MR). The RTC granted the execution ―pending appeal‖ without
acting on the motion for reconsideration. Is the order of the trial
Nature of the revived judgment: A revived judgment is deemed a new judgment
court correct?
separate and distinct from the original judgment.

A: No. Discretionary execution is allowed only when the period to

How enforced: may also be enforced by motion within 5 years from the date of its
appeal has commenced but before the trial court loses jurisdiction
entry or through an independent action after the lapsed of 5 years
over the case. The period to appeal where a motion for
 thereafter by action before it is barred by the statute of limitations.
reconsideration has been filed commences only upon the receipt of
 Effect: as if perpetual
the order disposing of the MR. The pendency of a MR, therefore,
prevents the running of the period to appeal.
RUFA A. RUBIO vs. LOURDES ALABATA, G.R. No. 203947,
February 26, 2014
The MR filed by JP Latex had not been acted upon by the RTC
before it ruled on the motion for execution ―pending appeal.‖ The
Facts:
pendency of the MR has prevented the period to appeal from even
The prior case before the RTC-43 involved a reconveyance of a parcel
commencing. The period within which a party may move for an
of land in favor of the rightful owners, the heirs of one
execution pending appeal of the RTC’s decision has not yet started.
AgapitoAlagadmo. Petitioners, in instituting the case against
Thus, where there is pending MR, an order of execution pending
respondent, showed their desire and resolve to pursue and take back
appeal is improper and premature. (JP Latex Technology, Inc. v.
what was rightfully theirs. Eventually, they succeeded in obtaining
Ballons Granger Balloons, Inc., et. al., G.R. No. 177121, Mar. 16, 2009)
justice and won back what was theirs. For their sufferings, the trial
court saw it fit to also assess moral damages and exemplary damages
How Final Judgments and Orders are Executed
against respondent.

Modes of execution of judgment:
 Execution on Motion: within 5 years from the date of its entry.
Where to file: court where the decision was rendered
 Execution by Independent Action: if the five year period has elapsed
and before it is barred by statute of limitations
When the case was elevated by respondent to the CA, the PAO
continued to represent petitioners’ cause. As it was an appealed case,
the matter was referred to, and handled by, SAC-PAO in Manila.
For reasons known only to her, the respondent withdrew her appeal,
which resulted in the RTC-43 Decision becoming final and
executory. The petitioners, however, never knew of this because
when they followed up the case with PAO-Dumaguete, they were
informed that the appeal was still pending.

Where to file: RTC – incapable of pecuniary estimation

It appears from the records that a copy of the Entry of Judgment was
Venue: depends whether real action or personal action sent to Atty. Ma. Lourdes Naz, the SAC-PAO lawyer in charge of

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their case, who had resigned. Unfortunately, she failed to inform
petitioners of the said entry of judgment before her resignation in
November 1997.
It was only in November 2007, when petitioners actually discovered
that their victory was already final after their nephew secured a copy
of the entry of judgment from RTC-43.
Ruling:
An action for revival of judgment is governed by Article 1144 (3),
Article 1152 of the Civil Code and Section 6, Rule 39 of the Rules of
Court. Thus, “Art. 1144. The following actions must be brought within ten years
from the time the right of action accrues: x x (3) Upon a judgment
Article 1152 of the Civil Code states:
Art. 1152. The period for prescription of actions to demand the fulfillment of
obligations declared by a judgment commences from the time the judgment became
final.”
To allow a strict application of the rules, however, would result in an
injustice to petitioners considering (1) that respondent decided not
to contest the RTC-43 decision and withdrew her appeal and (2)
that no fault could be attributed to petitioners.
General Rule: An appeal perfected in due time stays the execution of a judgment.
Exceptions: There are judgments which by express provision of law not stayed by
appeal:
1. Those judgments which by express provision of the rules are
immediately executor and are not stayed by appeal
 injunction,
 receivership,
 accounting and
 support unless the court rule otherwise.
2. Those judgments that have become the object of discretionary execution
Defenses available in an action for enforcement:
1. Prescription;
2. Satisfaction of claim; and
3. Counterclaims
(2009) M was renting an apartment unit in the building owned by
J. When M failed to pay six months’ rent, J filed an ejectment suit.
The MTC rendered judgement in favor of J, who then filed a motion
for the issuance of a writ of execution. The MTC issued the writ.
(a) How can M stay the execution of the MTC judgment?

SUGGESTED ANSWER: Execution shall issue immediately upon

No prejudice is caused to respondent because she withdrew her
motion, unless M
appeal. Withdrawing her appeal means that she respected the RTC-
(a) perfects his appeal to the RTC,
43 Decision, which voided the "Declaration of Heirship and Sale,"
(b) files a sufficient supersedeas bond to pay the rents, damages and
dismissed respondent’s counterclaim, and ordered her to reconvey
costs accruing up to the time of the judgment appealed from, and
the entire subject property to petitioners and to pay moral and
(c) deposits monthly with the RTC during the pendency of the
exemplary damages plus the cost of suit. Since the decision became
appeal the amount of rent due from time to time
final and executory, she has been in possession of the property which
rightfully belongs to petitioners. She will continue to hold on to the
(b) M appealed to the RTC, which affirmed the MTC decision. M
property just because of a technicality.
then filed a petition for review with the CA. The CA dismissed the
petition on the ground that the sheriff had already executed the
Due to the peculiarities of this case, the Court, in the exercise of its
MTC decision and had ejected M from the premises, thus rendering
equity jurisdiction, relaxes the rules and decides to allow the action
for the revival of judgment filed by petitioners. the appeal moot and academic. Is the CA correct?

SUGGESTED ANSWER: NO. The CA is not correct. The dismissal

of the appeal is wrong, because the execution of the RTC judgment
and Executory
Decision;Final

Grant / Deny

Grant / Deny
Motion for

Revival of
execution

Judgment
writ of

is only in respect of the eviction of the defendant from the leased

premises. Such execution pending appeal has no effect on the
merits of the ejectment suit which still has to be resolved in the
Feb 1, 2010 Feb 1, 2015  Feb 1, 2015  (*) pending appeal. Rule 70, Sec. 21 of the Rules provides that the RTC
Feb 1, 2010 Feb 2, 2015  Feb 2, 2015  judgment against the defendant shall be immediately executor,
Feb 1, 2010 Jan 20, 2014  Feb 1, 2020  ―without prejudice to a further appeal‖ that may be taken therefrom
Feb 1, 2010 Feb 1, 2020  Feb 2, 2020 (**)
*no cause of action yet –premature Execution in Case of Death of Party
**stature of limitation – extinguishes the right
In case of the death of the judgment obligee: upon the application of his:
May the period to execute the judgment be stayed? Yes:  executor or
1. by agreement of the parties;  administrator, or
2. by injunction; or  successor in interest;
3. by taking an appeal or writ of error.
In case of the death of the judgment obligor: against his executor or
What is the effect of an appeal to the execution of the judgment? administrator or successor in interest, if:

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 a. the judgment be for the recovery of real or personal property, or
b. the enforcement of a lien thereon.
In case of the death of the judgment obligor, after execution is actually levied
upon any of his property:
 the same may be sold for the satisfaction of the judgment obligation,
 The officer making the sale shall account to the corresponding executor
or administrator for any surplus in his hands.
(2009) C sued D for collection of a sum of money. During the trial,
but after the presentation of plaintiff’s evidence, D died. Atty. Cruz,
D’s counsel, then filed a motion to dismiss the action on the ground
of his client’s death. The court denied the motion to dismiss and,
instead, directed counsel to furnish the court with the names and
addresses of D’s heirs and ordered That the designated
administrator of D’s estate be substituted as representative party.
After trial, the court rendered judgment in favor of C. When the
decision had become final and executory, C moved for the issuance
of a writ of execution against D’s estate to enforce his judgment
claim. The court issued the writ of execution. Was the court’s
issuance of the writ of execution proper? Explain.
SUGGESTED ANSWER: No, the issuance of a writ of execution by
the court is not proper and is in excess of jurisdiction, since the
judgment obligor is already dead when the writ was issued. The
judgment for money may only be enforced against the estate of the
deceased defendant in the probate proceedings, by way of a claim
filed with the probate court. C should enforce that judgment in his
favor in the settlement proceedings of the estate of D as a money
claim in accordance with the Rule 86 or Rule 88 as the case may be.
Grounds to Quash Writ of Execution
1. When the writ of execution varies the judgment;
2. When there has been a change in the situation of the parties making the
execution inequitable or unjust;
3. When execution is sought to be enforced against a property exempt from
execution;
4. When it appears that the controversy has never been submitted to the
judgment of the court;
5. When the terms of the judgment are not clear enough and there remains
room for interpretation thereof;
6. When it appears that the writ of execution has been improvidently
issued;
7. When it appears that the writ of execution is defective in substance, or is
issued against the wrong party, or that the judgment debt has been paid
or otherwise satisfied or the writ is issued without authority
Specific Rules
Execution of judgments for money:
1. Immediate payment on demand
2. Satisfaction by levy
3. Garnishment
(a) Immediate payment on demand:
 By demanding from the judgment obligor the immediate payment of the
full amount stated in the writ of execution and all lawful fees.
The judgment obligor shall pay in:
 cash,
 certified bank check payable to the judgment obligee, or
 any other form of payment acceptable to the judgment obligee
If the judgment obligee or his authorized representative is not present to
receive payment: the judgment obligor shall deliver the aforesaid payment to the
executing sheriff – turnover it to the clerk of court or if not practicable, deposit
said amounts to a fiduciary account in the nearest government depository bank of
the RTC of the locality.
(b) Satisfaction by levy / Execution Sale
Levy: It is the act by which an officer sets apart or appropriates a part of the whole
of the property of the judgment debtor for purposes of the execution sale.
Resorted when: upon demand, the judgment obligor cannot pay the whole
amount in cash, certified bank checks or any other mode of payment acceptable to
the judgment creditor.
Option of the Judgment obligor: to immediately choose which property or part
thereof may be levied upon, sufficient to satisfy the judgment.
If the judgment obligor does not exercise the option:
 the officer shall first levy on the personal properties, if any
 then on the real properties if the personal properties are insufficient to
answer for the judgment.
Note: The sheriff shall sell only a sufficient portion of the personal or real property
of the judgment obligor which has been levied upon.
Notice of sale of property on execution: Before the sale of property on execution,
notice thereof must be given as follows:
(a) Perishable property, by posting written notice of the time and place of the
sale in 3 public places
Place of posting: Preferably in conspicuous areas of the:
 municipal or city hall
 post office
 public market in the municipality or city where the sale is to take place,
Time: For such time as may be reasonable, considering the character and condition
of the property;
(b) Other personal property, by posting a similar notice in the 3 public places
above-mentioned for not less than 5 days;
(c) Real property, by posting for 20 days in the 3 public places abovementioned a
similar notice particularly
Assessed value of the property exceeds P50,000: by publishing a copy of the
notice once a week 2 consecutive weeks in one newspaper selected by raffle,
whether in English, Filipino, or any major regional language published, edited and
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circulated or, in the absence thereof, having general circulation in the province or
city;
Note:In all cases, written notice of the sale shall be given to the judgment obligor, at
least 3 days before the sale
2. If desired, execute and deliver to him a certificate of sale.
Note: The sale conveys to the purchaser all the rights which the judgment obligor
had in such property as of the date of the levy on execution or preliminary
attachment.

Contents of the Notice: Conveyance to purchaser of personal property not capable of manual
1. Description of the Property delivery: the officer making the sale must:
2. the place where the property is to be sold - may be agreed upon by the  Execute and deliver to the purchaser a certificate of sale.
parties
Note: Such certificate conveys to the purchaser all the rights which the judgment
If no agreement: obligor had in such property as of the date of the levy on execution or preliminary
 Not capable of manual delivery: office of the clerk of court of the RTC or attachment.
the MTC which issued the writ of or which was designated by the
appellate court. Conveyance of real property; Upon a sale of real property, the officer must give to
 Personal property capable of manual delivery: the sale shall be held in the the purchaser a certificate of sale containing:
place where the property is located.
(a) A particular description of the real property sold;
3. date (b) The price paid for each distinct lot or parcel;
4. Exact time of the sale which should not be earlier than nine o'clock in the (c) The whole price paid by him;
morning and not later than two o'clock in the afternoon. (d) A statement that the right of redemption expires 1 year from the date of the
registration of the certificate of sale.
HOW PROPERTY SOLD ON EXECUTION
Registration: Such certificate must be registered in the registry of deeds of the
All sales of property under execution must be made at public auction, to the highest place where the property is situated.
bidder, to start at the exact time fixed in the notice.
Duty of the Sheriff:
NOTE: After sufficient property has been sold to satisfy the execution, no more 1. file with the Register of Deeds a copy of the order, description of the
shall be sold attached property and notice of attachment
2. Leaving with the occupant of the property copy of the same order,
When there is excess property: it shall be promptly delivered to the judgment description and notice.
obligor or his authorized representative, unless otherwise directed by the judgment
or order of the court. Certificate of sale where property claimed by third person: the certificate of
sale to be issued by the sheriff shall make express mention of the existence of such
Who may direct manner and order of sale: The judgment obligor, if present at the third-party claim.
sale, may direct the order in which property, real or personal shall be sold, when
such property consists of several known lots or parcels which can be sold to REDEMPTION:
advantage separately.
Who may redeem real property so sold:
Prohibition: Neither the officer conducting the execution sale, nor his deputies, can
become a purchaser, nor be interested directly or indirectly in any purchase at such a. The judgment obligor; or his successor in interest in the whole or any part of
sale. the property;
b. Redemptioner: A creditor having a lien by virtue of an attachment, judgment
Refusal of purchaser to pay: the officer may again sell the property to the highest or mortgage on the property sold, or on some part thereof, subsequent to the
bidder and shall not be responsible for any loss occasioned thereby; lien under which the property was sold.

Liability of the refusing purchaser: pay into the court the amount of such loss,
with costs, and may punish him for contempt if he disobeys the order
 The amount of such payment shall be for the benefit of the person
entitled to the proceeds of the execution
Judgment obligee as purchaser (alone): he need not pay the amount of the bid if it
does not exceed the amount of his judgment.
 If it does, he shall pay only the excess.
Conveyance to purchaser of personal property capable of manual delivery:
the officer making the sale must:
1. Deliver the property to the purchaser
When to redeem: may redeem the property at any time within 1 year from the
date of the registration of the certificate of sale
How to redeem: by paying the purchaser the:
1. amount of his purchase
2. with the per centum per month interest thereon in addition, up to the
time of redemption
3. together with the amount of any assessments or taxes which the
purchaser may have paid thereon after purchase
4. Interest on such last named amount at the same rate;

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 5. if the purchaser be also a creditor having a prior lien to that of the
redemptioner, other than the judgment under which such purchase was
made, the amount of such other lien, with interest.
Note: in case redeem by a redemptioner: Property so redeemed may again be
redeemed within 60 days after the last redemption
Notice to be given: Written notice of any redemption must be given to the officer
who made the sale and a duplicate filed with the registry of deeds of the place
Effect of redemption by judgment obligor: If the judgment obligor redeems he
must make the same payments
 Whereupon, no further redemption shall be allowed and he is restored to
his estate.
Duty of the person to whom the redemption payment is made: must execute and
deliver to him a certificate of redemption acknowledged before a notary public or
other officer authorized to take acknowledgments of conveyances of real property.
Where to file the certificate: filed and recorded in the registry of deeds of the place
in which the property is situated and the registrar of deeds must note the record
thereof on the margin of the record of the certificate of sale.
To whom payments on redemption made: may be made to the:
 purchaser or
 redemptioner, or
 to the officer who made the sale.
Proof required of redemptioner:
 copy of the judgment or final order under which he claims the right to
redeem, certified by the clerk of the court wherein the judgment or final
order is entered
 if he redeems upon a mortgage or other lien, a memorandum of the record
thereof, certified by the registrar of deeds, or an original or certified copy
of any assignment necessary to establish his claim;
 an affidavit executed by him or his agent, showing the amount then
actually due on the lien.
Manner of using premises pending redemption; a person in possession of the
property at the time of the sale, or entitled to possession afterwards, during the
period allowed for redemption, to continue to use it in the same manner in which it
was previously used, or to use it in the ordinary course of husbandry; or to make the
necessary repairs to buildings thereon while he occupies the property.
Waste restrained: Until the expiration of the time allowed for redemption, the
court may, as in other proper cases, restrain the commission of waste on the
property by injunction, on the application of the purchaser or the judgment obligee,
with or without notice;
Rents, earnings and income of property pending redemption: shall belong to the
judgment obligor until the expiration of his period of redemption.
IN case of no redemption: the purchaser is entitled to a conveyance and possession
of the property.
 the purchaser or redemptioner shall be substituted to and acquire all the
rights, title, interest and claim of the judgment obligor to the property as
of the time of the levy.
 The possession of the property shall be given to the purchaser or last
redemptioner by the same officer unless a third party adversely to the
judgment obligor.
Recovery of price if sale not effective:
Instances: If the purchaser of real property sold on execution, or his successor in
interest, fails to recover the possession thereof, or is evicted therefrom, in
consequence of:
1. irregularities in the proceedings concerning the sale, or
2. because the judgment has been reversed or set aside, or
3. because the property sold was exempt from execution, or
4. because a third person has vindicated his claim to the property
Remedy:
(1) he may on motion in the same action or in a separate action recover from
the judgment obligee the price paid, with interest, or so much thereof as
has not been delivered to the judgment obligor,
(2) he may, on motion, have the original judgment revived in his name for
the whole price with interest, or so much thereof as has been delivered
to the judgment obligor.
Effect of the revived judgment: the same force and effect as an original judgment
would have as of the date of the revival and no more.
If after the period of redemption the judgment obligor or any person authorized to
possess the property refuse to vacate the premises – the remedy of the higher
bidder or purchaser is to file an ejectment case.
(c) Garnishment of debts and credits
Garnishment: It is the act of appropriation by the court when the property of the
debtor is in the hands of third persons.
Note: The garnishee or the third person who is in the possession of the property of
the judgment debtor is deemed a forced intervenor.
Attachment Garnishment
Refers to corporeal Refers to money, stocks, credits and other
property in the incorporeal property which belong to the
possession of the judgment debtor but is in the possession
judgment debtor. or under the control of a third person.
Levy shall be made by serving notice upon the person owing such debts or having
in his possession or control such credits to which the judgment obligor is entitled.
Duty of the Garnishee:
 Make a written report to the court within 5 days from service of the
notice of garnishment stating whether or not the judgment obligor has
sufficient funds or credits to satisfy the amount of the judgment.
 If not, the report shall state how much funds or credits the garnishee
holds for the judgment obligor.
Delivery of the garnished amount: shall be delivered directly to the judgment
obligee within 10 working days from service of notice on said garnishee requiring
such delivery
 except the lawful fees which shall be paid directly to the court.
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Two or more garnishees holding deposits or credits sufficient to satisfy the
judgment: the judgment obligor, if available, shall have the right to indicate the
garnishee or garnishees who shall be required to deliver the amount due, otherwise,
the choice shall be made by the judgment obligee.
Q: The writ of execution was returned unsatisfied. The judgment
obligee subsequently received information that a bank holds a
substantial deposit belonging to the judgment obligor. If the bank
denies holding the deposit in the name of the judgment obligor but
your client's informant is certain that the deposit belongs to the
judgment obligor under an assumed name, what is your remedy to
reach the deposit?
Failure to comply: the officer shall oust all such persons therefrom:
 with the assistance, if necessary, of appropriate peace officers,
 employing such means as may be reasonably necessary to retake
possession,
 place the judgment obligee in possession of such property.
Any costs, damages, rents or profits awarded by the judgment shall be satisfied in
the same manner as a judgment for money.
Removal of improvements on property subject of execution; Special Order:
 litigable motion

A: A motion may be filed for a court order requiring the proper bank Who files: issued upon motion of the judgment obligee
officer to appear in court for examination under oath as to such bank
deposit, and subsequently move for a court order authorizing the When: after the hearing and after the former has failed to remove the same within
filing of an action against such bank for the recovery of the judgment a reasonable time fixed by the court.
obligor’s deposit/interest therein and to forbid a transfer or other
disposition of such deposit/interest within 120 days from notice of When granted: a writ of demolition shall be issued
the order (Secs. 37 and 43).(2008 Bar Question)
The party fails to comply within the time specified: the court may direct the act
Execution of judgments for specific act: to be done at the cost of the disobedient party by some other person appointed by
the court and the act when so done shall have like effect as if done by the party.
Judgments for
Manner of Execution
Specific Act Execution of special judgments:
Conveyance, Court can appoint some other person at the
delivery of deeds, expense of the disobedient party and the  It is a judgment that can be complied with only by the obligor himself.
or other specific act done shall have the same effect as if the  It requires the performance of any other act other than payment of
acts, vesting title. required party performed it. money, or the sale or delivery of real or personal property.
Sale of real and Sell such property and apply the proceeds
personal property in conformity with the judgment. Failure to comply: punishable by contempt by imprisonment.
If the party refuses to deliver, a writ of
execution directing the sheriff to cause the Effect of judgments or final orders:
defendant to vacate is in the nature of a
haberefaciaspossesionemand authorizes the In case of a judgment or final order against a:
Delivery or sheriff to break open the premises where specific thing
the judgment or final order is
restitution of real there is no occupant therein. the administration of the estate
conclusive upon the title to
property of a deceased person
the thing, the will or
If party refuses to vacate property, remedy is not in respect to the personal,
administration or the
political, or legal condition or
contempt. The sheriff must oust the party. condition, status or
status of a particular person or
But if demolition is involved, there must be relationship of the person
his relationship to another
a special order.
in respect to the probate of a will shall only be prima facie
Removal of General Rule: the officer shall not destroy,
or granting of letters of evidence of the death of the
improvements on demolish or remove said improvements
administration testator or intestate
property subject of
execution Exception: upon special order of the court
In other cases
Delivery of The officer shall take possession and deliver
personal property to the party entitled thereto. with respect to the matter conclusive between the parties
directly adjudged or as to any and their successors in interest, by
other matter that could have title subsequent to the
Delivery or restitution of real property:
been missed in relation commencement of the action or
thereto special proceeding, litigating for
The officer shall demand of the person against whom the judgment for the delivery
the same thing and under the same
or restitution of real property is rendered
title and in the same capacity
All persons claiming rights under him to peaceably vacate the property within 3
working days, and restore possession thereof to the judgment obligee Can a foreign judgment be enforce in the Philippine

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  being a member of the family of nation and because of committee and
provided that the foreign tribunal accords the same privilege , yes it can
be enforce in this jurisdiction
 Through an action of enforcement of foreign judgement
 It is a special proceeding case
 But the defendant in the action can assail the foreign judgment
Effect of foreign judgments or final orders:
(a) upon a specific thing:conclusive upon the title to the thing
BUT: it can be Assail based on the grounds to repel foreign judgments
 it is in rem
(b) Against a person: presumptive evidence of a right as between the parties and
their successors in interest by a subsequent title
 It is in personam
Grounds for repelling foreign judgment:
 want of jurisdiction
 want of notice to the party,
 collusion
 fraud
 clear mistake of law or fact.
Can a foreign arbitral award be enforced in the Philippines under those rules?
Explain briefly
SUGGESTED ANSWER: No, a foreign arbitral award cannot be
enforced in the Philippines under the rules on recognition and
enforcement of foreign judgments. A foreign arbitral award is not a
foreign judgment, and pursuant to the Alternative Dispute
Resolution Act of 2004, in relation to 1958 New York Convention
on the Recognition and Enforcement of Foreign Arbitral Awards,
the recognition and enforcement of the foreign arbitral awards shall
be in accordance with the rules of procedure to be promulgated by
the Supreme Court. At present, the Supreme Court is yet to
promulgate rules of procedure on the subject matter.
How about a global injunction issued by a foreign court to prevent dissipation of
funds against a defendant therein who has assets in the Philippines? Explain
briefly.
SUGGESTED ANSWER:
Yes, a global injunction issued by a foreign court to prevent
dissipation of funds against a defendant who has assets in the
Philippines may be enforced in our jurisdiction, subject to our
procedural laws. As a general rule, no sovereign is bound to give
effect within its dominion to a judgment or order of a tribunal of
another country. However, under the rules of comity, utility and
convenience, nations have established a usage among civilized
states by which final judgments of foreign courts of competent
jurisdiction are reciprocally respected and rendered efficacious
under certain conditions that may vary in different countries
Properties Exempt from Execution
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The following property, and no other, shall be exempt from execution:
(a) The judgment obligor's family home as provided by law, or the homestead
in which he resides, and land necessarily used in connection therewith;
(b) Ordinary tools and implements personally used by him in his trade,
employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or other beasts of burden,
such as the judgment obligor may select necessarily used by him in his
ordinary occupation;
(d) His necessary clothing and articles for ordinary personal use, excluding
jewelry;
(e) Household furniture and utensils necessary for housekeeping, and used for
that purpose by the judgment obligor and his family, such as the judgment
obligor may select, of a value not exceeding one hundred thousand pesos;
(f) Provisions for individual or family use sufficient for four months;
(g) The professional libraries and equipment of judges, lawyers, physicians,
pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other
professionals, not exceeding three hundred thousand pesos in value;
(h) One fishing boat and accessories not exceeding the total value of one
hundred thousand pesos owned by a fisherman and by the lawful use of
which he earns his livelihood;
(i) So much of the salaries, wages, or earnings of the judgment obligor for his
personal services within the four months preceding the levy as are
necessary for the support of his family;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities accruing or in any manner
growing out of any life insurance;
(l) The right to receive legal support, or money or property obtained as such
support, or any pension or gratuity from the Government;
(m) Properties specially exempted by law.
Provisional Remedies
Concept and Purpose
Provisional Remedies:are writs and processes which are not main actions and are
dependent for their application upon the existence of a principal action.
Nature:
 provisional means temporary, preliminary or tentative
 Not causes of action in themselves but merely adjuncts to a main suit
 Availed during the pendency of an action
Example: support pendente lite, main case may be support, annulment of marriage
when there are children that are affected
Purposes:
1. To preserve or protect the parties rights and interest while the main
action is pending
2. To secure the judgment
3. To preserve the status quo
4. To preserve the subject matter of the action
Court which has the jurisdiction:
- the court which has jurisdiction of the main action
Kinds
66
 1. Preliminary attachment Nature:
2. Preliminary injunction  proceeding in rem
3. Receivership  It is substantially a writ of execution except that it emanates at the
4. Replevin beginning
5. Support pendent lite
Basic purpose: to secure the outcome of the trial, the satisfaction of a pecuniary
The list is not exclusive obligation by virtue of a contract or law or some crime.
 include Rule 127
Distinguish Preliminary attachment from Final attachment
Common Requirements Preliminary Attachment (Rule Final Attachment (Rule 39)
57)
1. There is immediacy for the grant of the provisional remedy It is an auxiliary remedy to give It is a means for the execution
2. Merely temporary security for a judgment still to be of a final judgment.
3. All the remedies requires supporting affidavits rendered.
4. Posting of a bond - to protect the defendant or against whom the There is no sale because the It should always be
provisional remedy is directed against decision has not yet been accompanied by a sale at public
rendered. auction.
Deposit as Provisional Remedy Resorted to at the Available after the judgment in
commencement of the action or the main action had become
DAVID REYES vs. JOSE LIM, G.R. No. 134241. August 11, 2003 at any time before the entry of executory, and for the
judgment, for the temporary satisfaction of said judgment.
Facts: in an action for specific performance and nullification of sale seizure of the property of the
and title plus damages the buyer move that the seller be ordered to adverse party
deposit with the cashier of the trial court the 10M down payment The proceeds of the sale, in cases The proceeds of the sale are
on the land paid by the buyer to prevent the disposition of the allowed, are in custodial egis turned over to the attaching
amount pending resolution of the case creditor

Argument: How construed: strictly against the applicant

Reyes points out that deposit is not among the provisional remedies
enumerated in the Rules of Civil Procedure. Reyes stresses the Classes of attachment
enumeration in the Rules is exclusive. 1. Preliminary attachment - issued upon institution of action which can be
dissolved anytime
Ruling: 2. Garnishment - plaintiff seeks to subject to his claims properties of the
The trial court in the exercise of its equity jurisdiction may validly debtor in the hands of a stranger
order the deposit of the P10 million down payment in court. The
purpose of the exercise of equity jurisdiction in this case is to The court acquire jurisdiction over the garnishee:by service upon him of the
prevent unjust enrichment and to ensure restitution. writ if garnishment

On balance, it is unreasonable and unjust for Reyes to object to the 3. Levy on execution - issued after trial and final judgment to satisfy an
deposit of the P10 million down payment. The application of equity obligation
always involves a balancing of the equities in a particular case, a
matter addressed to the sound discretion of the court. Three stages in attachment
1. Order granting the application
Thus, a court may not permit a seller to retain, pendente lite, money - there is no need of jurisdiction over the person of the
paid by a buyer if the seller himself seeks rescission of the sale defendant
because he has subsequently sold the same property to another
- The issuance is ex parte
buyer.

2. Issuance of the writ

Note: the Rules of Court is not an act of the legislature but under
the Rule Making power of the Supreme Court. Thus the supreme 3. Implementation
court may validly include deposit as one of the provisional remedies
- the law requires that the court must have jurisdiction
- abide the rule on prior or contemporaneous service of
Preliminary Attachment summons

A plaintiff or any proper party may have the property of the adverse party attached The rule will not apply if the purpose of the PA is to acquire
as security for the satisfaction of any judgment that may be recovered jurisdiction over the person of the defendant – there must be

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publication 1. may be issued either ex parte or
2. upon motion with notice and hearing

Special function
Q: What is the rationale for allowing the ex parte issuance of a writ
 to acquire jurisdiction over the person of the defendant
of preliminary attatchment?
 Therefore effectively converting the action to personam
to In rem A: An ex parte issuance of the writ is intended to preempt any
possible disposition of property by the adverse property to the
Attachment vs. Garnishment: detriment of the attaching creditor and thus defeat the very purpose
Attachment Garnishment of attachment
Only two parties There are three parties
Officer takes actual possession No actual seizure of property Note: while a writ of attachment may be issued ex parte, a motion to quash the
of the property and a specific and no specific lien is acquired writ may not be granted without reasonable notice to the applicant
lien is acquired - there must be a hearing
Directed against tangibles Usually directed to intangibles
Who issues:
When to file: At the commencement of the action or at any time before entry of 1. The judge of any court in which the action is pending
judgment 2. A Justice of the Court of Appeals
3. A Justice of the Supreme Court
Who may apply: a plaintiff or any proper party
When not issued:
Grounds upon which attachment may issue: 1. party makes deposit or gives a bond

(a) In an action for the recovery of a specified amount of money or damages Amount:equal to that fixed in the order or the value of the property to be attached
as stated by the applicant, exclusive of costs
Exception:
- other than moral and exemplary, on a cause of action arising from law, 2. An action for moral and exemplary damages
contract, quasi-contract, delict or quasi-delict 3. When the indebtedness is secured, EXCEPT
- against a party who is about to depart from the Philippines with intent to a. The plaintiff abandons his security and brings an ordinary
defraud his creditors; action for the recovery of the debt
b. There is foreclosure and the creditor shows by affidavit that
(b) In an action for money or property embezzled or fraudulently misapplied or the proceeds from the sale of the property of the debtor
converted to his own use by a public officer, or an officer of a corporation, or would not be sufficient to answer the obligation
an attorney, factor, broker, agent, or clerk, in the course of his employment as
such, or by any other person in a fiduciary capacity, or for a willful violation of Rule on prior contemporaneous jurisdiction:
duty;
The applicant must serve with summons, the complaint and the affidavit and to
(c) In an action to recover the possession of property unjustly or fraudulently taken, the bond to the defendant
detained or converted, when the property, or any part thereof, has been
concealed, removed, or disposed of to prevent its being found or taken by the Except:
applicant or an authorized person; 1. where the summons cannot be served personally or by substituted
service despite diligent effort
(d) In an action against a party who has been guilty of a fraud in contracting the debt or 2. Defendant is resident of the Philippines temporary absent
incurring the obligation upon which the action is brought, or in the 3. Defendant is non resident
performance thereof; 4. Action is one in rem or quasi in rem

(e) In an action against a party who has removed or disposed of his property, or is
about to do so, with intent to defraud his creditors; or
(f) In an action against a party who does not reside and is not found in the
Philippines, or on whom summons may be served by publication.
Note: Insolvency of defendant is not a ground for attachment especially when
defendant has not been shown to have committed any act intended to defraud its
creditors
How issued:
Q: Alfred filed an action against Banjo for collection of sum of
money with an ex-parte application for a writ of preliminary
attachment which was granted by the trial court. A notice of
garnishment was served by the sheriff upon the bank and summons
was subsequently served upon Banjo. Banjo then filed a motion to
dissolve the writ of preliminary attachment on the ground that the
court did not acquire jurisdiction over his person as the writ was
served ahead of the summons. Resolve the motion.
A: The motion should be denied. The fact that the writ of
preliminary attachment was served ahead of the summons did not

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affect the jurisdiction of the court over his person. It makes the writ
unenforceable, however, all that is required is to re-serve the writ.
(2005 Bar Question)
Note: Where the writ of preliminary attachment had already been implemented,
the subsequent service of summons does not confer a retroactive acquisition of
jurisdiction over her person because the law does not allow for retroactivity of a
belated service.
Affidavit of merit:
An order of attachment shall be granted only when it appears by the affidavit of the
applicant, or of some other person who personally knows the facts, that:
1. a sufficient cause of action exists,
2. that the case is one of those mentioned in section 1 hereof (Grounds)
3. that there is no other sufficient security for the claim sought to be
enforced by the action, and
4. that the amount due to the applicant, or the value of the property the
possession of which he is entitled to recover, is as much as the sum for
which the order is granted above all legal counterclaims.
Condition of applicant's bond: The party applying for the order must thereafter
give a bond executed to the adverse party in the amount fixed by the court
 conditioned that the latter will pay all the costs which may be adjudged
to the adverse party and all damages which he may sustain by reason of
the attachment, if the court shall finally adjudge that the applicant was
not entitled thereto.
Manner of attaching property: The sheriff enforcing the writ shall without delay
and with all reasonable diligence attach, to await judgment and execution in the
action
Recording of attached real or personal property:
Real and personal property shall be attached by the sheriff executing the writ in the
following manner:
1. Real property, or growing crops thereon, or any interest therein - by
filing with the registry of deeds a copy of the order, together with a
description of the property attached, and a notice that it is attached, or
that such real property and any interest therein held by or standing in the
name of such other person are attached
 by leaving a copy of such order, description, and notice with
the occupant of the property, if any, or with such other person
or his agent if found within the province.
2. Personal property capable of manual delivery - by taking and safely
keeping it in his custody, after issuing the corresponding receipt therefor.
3. Stocks or shares, or an interest in stocks or shares, of any corporation
or company - by leaving with the president or managing agent thereof, a
copy of the writ, and a notice stating that the stock or interest of the
party against whom the attachment is issued is attached in pursuance of
such writ;
4. Debts and credits, including bank deposits, financial interest,
royalties, commissions and other personal property not capable of
manual delivery - by leaving with the person owing such debts, or
© Gironella – Macadatar 2017 | Provisional Remedies
having in his possession or under his control, such credits or other
personal property, or with his agent, a copy of the writ, and notice that
the debts owing by him to the party against whom attachment is issued,
and the credits and other personal property in his possession, or under
his control, belonging to said party, are attached in pursuance of such
writ;
5. The interest of the party against whom attachment is issued in
property belonging to the estate of the decedent - by serving the
executor or administrator or other personal representative of the
decedent with a copy of the writ and notice that said interest is
attached. A copy of said writ of attachment and of said notice shall also
be filed in the office of the clerk of the court in which said estate is being
settled and served upon the heir, legatee or devisee concerned.
Procedure when the property sought to be attached is in custodialegis: a copy
of the writ of attachment shall be filed with the proper court or quasi-judicial
agency, and notice of the attachment served upon the custodian of such property.
Other pertinent Rules:
Effect of attachment of interests in property belonging to the estate of a
decedent: shall not impair the powers of the executor, administrator, or other
personal representative of the decedent over such property for the purpose of
administration.
Examination of party whose property is attached and persons indebted to him
or controlling his property; delivery of property to sheriff: may be required to
attend before the court in which the action is pending, or before a commissioner
appointed by the court, and be examined on oath respecting the same.
 The party whose property is attached may also be required to attend for
the purpose of giving information respecting his property, and may be
examined on oath.
 The court may, after such examination, order personal property capable
of manual delivery belonging to him, in the possession of the person so
required to attend before the court, to be delivered to the clerk of the
court or sheriff on such terms as may be just, having reference to any lien
thereon or claim against the same, to await the judgment in the action.
When attached property may be sold after levy on attachment and before
entry of judgment: the proceeds of such sale to be deposited in court to abide the
judgment in the action.
1. perishable, or
2. that the interests of all the parties to the action will be subserved by the
sale thereof
Properties exempt from attachment
1. Family home
2. Title not in the defendant's name unless it is shown that he has
beneficial interest
3. Laborer's wages except debts incurred for food, clothing and medical
attention
REMEDIES OF DEFENDANT:
 Discharge of attachment upon giving counter-bond
69
Counterbondsare replacements of the property formerly attached, and just as the
latter, may be levied upon after final judgment.
 With due notice and hearing
Amount: in an amount equal to that fixed by the court in the order of attachment,
exclusive of costs.
Purpose:the cash deposit or the counter-bond shall secure the payment of any
judgment that the attaching party may recover in the action.
New order of attachment: Should such counter-bond for any reason be found to be
or become insufficient, and the party furnishing the same fail to file an additional
counter-bond
Q:If there is counter bond, the property attached is released. May it be attached
again in the same proceeding?
A: NO. It would have the effect of nullifying, without legal ground,
the previous order of discharge
Q: When is a motion to discharge or dissolve attachment not
allowed
A: A motion to discharge or dissolve attachment is not allowed if
the writ of preliminary attachment is issued upon a ground which is
at the same time the applicant's cause of action. The reason is that
the hearing on such a motion would be tantamount to trial of the
merits of e action.
 Discharge of attachment on other grounds: it was improperly or
irregularly issued or enforced
 That the bond is insufficient.
If the attachment is excessive, the discharge shall be limited to the excess.
What should the court do if a motion for reconsideration is filed on the order
granting the issuance of a writ of attachment?
 The MT is considered as a motion for the discharge of the
attachment
 Should have conducted a hearing or require the
submissions of counter affidavit
Q: May it be lifted on the ground that there was a compromise
agreement?
A: NO. An attachment lien continues until the debt is paid, or until
the judgment is satisfied or the attachment is discharged or vacated.
Q: May a writ of preliminary attachment be lifted by a substitute of
the attachment property with another property?
A: NO. Not allowed. Cannot be discharged except as provided by
law
Q: May be discharged on the alleged absence of fraud in contracting
© Gironella – Macadatar 2017 | Provisional Remedies
the obligation?
A: NO. This would entail trial on the merits
Q: After Defendant AAA’s properties were attached, AAA filed a
sufficient counterbond and the trial court discharged the
attachment. For having suffered substantial prejudice due to the
unwarranted attachment, the trial court rendered a judgment
ordering plaintiff to pay damages since the latter was not entitled to
the attachment. AAA moved to charge plaintiff’s attachment bond
and such was objected to by the plaintiff and his sureties on the
ground that the counter-bond lifted plaintiff’s attachment bond
from all liability. Rule on AAA’s motion.
A: AAA’s motion should be granted since the filing of a counterbond
does not constitute a waiver of his right to proceed against the
attachment bond. Furthermore, it is a condition in an attachment
bond that applicant will pay all the costs and damages which may
be adjudged to the adverse party.
Satisfaction of judgment out of property attached:
a. By paying to the judgment obligee the proceeds of all sales of perishable or
other property sold in pursuance of the order of the court, or so much as shall
be necessary to satisfy the judgment;
b. If any balance remains due, by selling so much of the property, real or
personal, as may be necessary to satisfy the balance, if enough for that
purpose remain in the sheriff's hands, or in those the clerk of the court;
c. By collecting from all persons having in their possession credits belonging to
the judgment obligor, or owing debts to the latter at the time of the
attachment of such credits or debts, the amount of such credits and debts as
determined by the court in the action, and stated in the judgment, and paying
the proceeds of such collection over to the judgment obligee.
Balance due collected upon an execution; Whenever the judgment shall have
been paid, the sheriff, upon reasonable demand, must return to the judgment
obligor the attached property remaining in his hands, and any proceeds of the sale
of the property attached not applied to the judgment.
Recovery upon the counter-bond: When the judgment has become executory,
the surety or sureties on any counter-bond given to secure the payment of the
judgment shall become charged on such counter-bond and bound to pay the
judgment obligee upon demand the amount due under the judgment, which
amount may be recovered from such surety or sureties after notice and summary
hearing in the same action.
Disposition of money deposited: it shall be applied under the direction of the
court to the satisfaction of any judgment rendered in favor of the attaching party
When there is balance: it shall be refunded to the depositor or his assignee.
If the judgment is in favor of the party against whom attachment was issued, the
whole sum deposited must be refunded to him or his assignee.
Disposition of attached property where judgment is for party against whom
attachment was issued:
What to deliver:
70
 a. all the proceeds of sales and money collected or received by the sheriff,
under the order of attachment, and
b. all property attached remaining in any such officer's hands
Effect: the order of attachment discharged.
Claim for damages:
(1) on account of improper, irregular or excessive attachment
When to file:before the trial or before appeal is perfected or before the judgment
becomes executory
Notice:with due notice to the attaching party and his surety or sureties
When awarded:Such damages may be awarded only after proper hearing and shall be
included in the judgment on the main case.
(2) If the judgment of the appellate court be favorable to the party against
whom the attachment was issued
When to Claim:he must claim damages sustained during the pendency of the appeal
by filing an application in the appellate court,
 with notice to the party in whose favor the attachment was issued or his
surety or sureties
 before the judgment of the appellate court becomes executory.
G.R. No. 171124 February 13, 2008
ALEJANDRO NG WEE vs. MANUEL TANKIANSEE
For a writ of attachment to issue under this rule, the applicant
must sufficiently show the factual circumstances of the alleged
fraud because fraudulent intent cannot be inferred from the
debtor's mere non-payment of the debt or failure to comply with
his obligation. The applicant must then be able to demonstrate that
the debtor has intended to defraud the creditor.
Let it be stressed that the provisional remedy of preliminary
attachment is harsh and rigorous for it exposes the debtor to
humiliation and annoyance. The rules governing its issuance are,
therefore, strictly construed against the applicant, such that if the
requisites for its grant are not shown to be all present, the court
shall refrain from issuing it, for, otherwise, the court which issues it
acts in excess of its jurisdiction.
PNCC vs. HON. AMALIA F. DY, G.R. No. 156887. October 3, 2005
What was missing and what should have been alleged in the
affidavit of merit was that the disposition of assets was attended by
the so-called badges of fraud, i.e., inadequate consideration,
fictitious sale, etc. As it is, the affidavit does not contain sufficient
concrete and specific grounds to sustain the issuance of the Writ of
Preliminary Attachment. Mere general averments render the writ
defective and the court that ordered its issuance acted with grave
abuse of discretion tantamount to excess of jurisdiction.
Q: May the salary check of a government officer be garnished?
© Gironella – Macadatar 2017 | Provisional Remedies
A: NO. If not up yet delivered physically to him, they do not belong
to him and still have the character of public funds.
Q:Defendant, whose property was attached, moved for the
discharge of the attachment, contending that the writ of preliminary
attachment was improperly issued by the court for lack of notice to
on him on the plaintiff's application for the issuance of the writ.
Rule on the motion.
A: motion denied. Notice to the defendant for the issuance is not
required since it may be issued ex parte
Q: where the writ of preliminary attachment is issued ex parte, may
levy pursuant to such writ be made before the defendant is
summoned?
A: no. Implementation of the writ, issued ex parte cannot be made
validly unless the defendant is first summoned
Problem: De Leon was the registered owner of lot no. 10 covered by
TCT 582. In January 1989, de Leon sold the lot to Du under a deed of
conditional sale. On April 28, 1989, de Leon again sold the same lot
to Caliwag. As a result, TCT 582 was cancelled and TCT 2200 was
issued in Favor of Caliwag.
Meanwhile, Stronghold insurance filed a civil case against Caliwag
for allegedly defrauding stronghold. The civil action is accompanied
by a prayer for writ of preliminary attachment. On August 7, 1990,
the levy on attachment was annotated at the back of TCT 2200.
On December 21, 1990, Du filed an action against de Leon and
Caliwag for the annulment of the sale by de Leon in favor Caliwag.
Du's action is anchored on her deed of conditional sale.
On January 3, 1992, Du caused a notice of lies pendent to be
recorded and annotated on TCT 2200.
On February 11, 1991, a decision was handed down in the case of
Stronghold, ordering Caliwag to pay Stronghold the sum of P8.6
million. On March 12, 1991, a notice of levy on execution was
annotated on TCT 2200. The attached property was sold in public
sale. TCT 2200 was cancelled and TCT 6444 was issued in favor of
Stronghold.
On August 5, 1992, Du was able to secure a favorable judgment
against de Leon and Caliwag. The judgment become final and
executory.
Now, Du files an action against stronghold for the cancellation of
txt 6444. Du claims priority rights over the property by virtue of her
unregistered deed of conditional sale and her notice of lies pendens
recorded on January 3, 1991.
71
Q: Who between Du and Stronghold will prevail?
A: Stronghold will prevail because its notice of levy on attachment
was duly recorded. Although Du bought the property first, his deed
of conditional sale was not registered. The rule is that an
attachment duly annotated on a certificate of title is superior to the
right of a prior but unregistered buyer.
1. Prohibitory - which command a person to refrain from performing a
particular act, To preserve status quo
2. Mandatory - which commands the performance of some positive act to
correct a wrong from the past, To restore status quo
Final injunction: it is one included in the judgement as the relief or part of the
relief granted as a result of the action.

Although Du had caused a notice of lies pendens to be annotated Important requisites for the issuance of writ of preliminary injunction:
before the lot was sold in a public sale, still Stronghold has a 1. The existence of a clear and unmistakably right that must be protected
superior right ps because the rule is that the subsequent sale of the 2. An urgent and paramount necessity for the writ to prevent serious
property to the attaching creditor retroacts to the date of levy. damage

Preliminary Injunction Irreparable injury: something that is beyond repair or compensation.

A preliminary injunction is an order granted at any stage of an action or proceeding
prior to the judgment or final order, requiring a party or a court, agency or a person
to refrain from a particular act or acts.
Nature of the power: the grant or denial is discretionary upon the trial court
Basic purpose: is designed to prevent future injury and maintain the status quo, the
last actual, peaceful and uncontested status preceding the controversy.
Distinguish a main action for injunction from a preliminary injunction
Q: the Spouses Dungog entered into a contract with Gothong lines
over a parcel of land which included a lot belonging to Filipe, their
son, who authorized them to sell. Since the delivery of the land,
Gothong constructed a road right of way through Filipe's lot to
maintain access to the other oar les of land delivered to it. Due to its
failure to pay subsequent installments, the spouses threatened to
cancel the contract and deny its passage through Filipe's lot, hence it
filed a petition for injunction with prayer for a TRO to maintain the
status quo as the spouses were about to close the right of way. Will
the petition prosper?

A: yes, because Gothong lines has a real right to preserve, that is, the
Injunction as an ancillary
Injunction as a main action status quo ante litem Moran where it had access to lots subject if the
remedy
contract through entrance gate on Filipe's property. The issuance of
Exist as an incident to a Independent action
PI is proper when the plaintiff appears entitled to the relief
principal action
demanded in the complaint and its issuance would preserve the
Seeks to preserve the status Seeks a judgment embodying a final
status quo that existed prior to the filing of the case until the issue in
quo or to prevent future injunction, to enjoin the defendant
their respective rights and obligations under the contract is
wrongs in order to preserve from the commission or continuance
determined after the trial.
and protect certain interests of a specific act, or to compel a
or rights during the particular act in violation of the
Who may grant preliminary injunction: granted by the:
pendency of the action rights of the applicant
1. Court where the action or proceeding is pending.
2. Court of Appeals
Distinctions among a preliminary injunction, prohibition and status quo order:
3. Supreme court
4. A judge of RTC in any action pending before an inferior court within
Injunction Prohibition Status Quo Order
its district
Directed against a Directed against a court, Directed against the adverse
5. Inferior court in proper cases like FEUD within their jurisdiction
party in an action tribunal or person party and is issued by the
exercising judicial court motupropio
Grounds for issuance of preliminary injunction:
powers
Does not involve the Issued on the ground Cease and Desist Order
(a) That the applicant is entitled to the relief demanded, and the whole or part of
jurisdiction of the that the court against intended to maintain the last,
such relief consists in restraining the commission or continuance of the act or
court whom the writ is sought actual, peaceable and
acts complained of, or in requiring the performance of an act or acts either for
acted without or in uncontested state of things
a limited period or perpetually;
excess of jurisdiction preceding the controversy
without requiring the doing
(b) That the commission, continuance or non-performance of the act or acts
or undoing of an act
complained of during the litigation would probably work injustice to the
May be the main Special Civil Action /
applicant; or
action (final Main action
injunction) or
(c) That a party, court, agency or a person is doing, threatening, or is attempting
provisional remedy
to do, or is procuring or suffering to be done some act or acts probably in
violation of the rights of the applicant respecting the subject of the action or
Kinds of Injunction:
proceeding, and tending to render the judgment ineffectual.

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 1. hearing
Evidence presented in a hearing for the issuance of the writ of preliminary 2. Prior notice to the party or person sought to be enjoined.
injunction:
Exception: great or irreparable injury would result to the applicant before the
The evidence submitted during the hearing is neither conclusive nor complete: only matter can be heard on notice – issue TRO
a "sampling" thereof is needed to give the trial court a fair idea of the justification for
the preliminary injunction, pending decision of the merits of the case. Temporary Restraining Order:

Limitations against the issuance of a writ of Preliminary Injunction: the writ When issued: acted upon only after all parties are heard in a summary hearing
may not issue:
1. Ex parte When Conducted: conducted within 24 hours after the sheriff's return of service
2. Where there is no irreparable injury and/or the records are received by the branch selected by raffle and to which the
3. Against court or tribunal of co-equal rank or quasi-judicial body of co- records shall be transmitted immediately.
equal rank
Effectivity: effective only for a period of 20 days from service on the party or person
As a rule, the RTC cannot enjoin the execution of a judgement of the NLRC. sought to be enjoined.
 The exception is when there is a third party claim.
Exceptions:
4. To transfer possession where title is not clear 1. If issued by the Court of Appeals or a member thereof, effective for 60
days from service on the party or person sought to be enjoined.
Except: FEUD case or in action for recovery where title is clear and cannot be 2. A restraining order issued by the Supreme Court or a member thereof
attacked collaterally shall be effective until further orders.

5. To restrain criminal prosecution Within the said twenty-day period, the court must order said party or person to
6. Against disposing of the case on the merits show cause, at a specified time and place, why the injunction should not be
7. Against consummated acts granted, determine within the same period whether or not the preliminary
8. To retrain collection of taxes injunction shall be granted, and accordingly issue the corresponding order. (Bar
Matter No. 803, 17 February 1998)
Except: where there are circumstances that bear the existence of irreparable injury
Note: the court cannot issue ex parte a status quo order which operate as TRO or
Requirements for the issuance of the writ: A PI or TRO may be granted only injunction
when:
 A second TRO is Void
(a) The application in the action or proceeding is verified, and shows facts
entitling the applicant to the relief demanded; and Remedy: issue an injunction

(b) Unless exempted by the court the applicant files a bond executed to the
Q: Is a second application for preliminary injunction allowed?
party or person enjoined

A: A second application for injunction, which rests in the sound

Amount: to be fixed by the court discretion of the court, will ordinarily be denied unless it is based
on facts unknown at the time of the first application.
To the effect that the applicant will pay to such party or person all damages which
he may sustain by reason of the injunction or TRO if the court should finally decide
Ex Parte TRO:
that the applicant was not entitled thereto.
Ground:if the matter is of extreme urgency and the applicant will suffer grave
Contemporaneous service of summons: The notice shall be preceded, or
injustice and irreparable injury
contemporaneously accompanied, by service of summons, together with a copy of
the complaint or initiatory pleading and the applicant's affidavit and bond, upon
Who issues: the executive judge of a multiple-sala court or the presiding judge of a
the adverse party in the Philippines.
single sala court

Exeptions:
Effectivity: effective for only 72 hours from issuance
1. where the summons could not be served personally or by substituted
service despite diligent efforts,
Thereafter, within the aforesaid 72 hours, the judge before whom the case is
2. the adverse party is a resident of the Philippines temporarily absent
pending shall conduct a summary hearing to determine whether the temporary
therefrom
restraining order shall be extended until the application for preliminary injunction
3. is a nonresident
can be heard.

Requirements of preliminary injunction:

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Maximum Period of the TRO: In no case shall the total period of effectivity of the 4. If it appears that the extent of the preliminary injunction or restraining
temporary restraining order exceed 20 days, including the original seventy-two order granted is too great, it may be modified.
hours provided herein. 5. Failed to pay the full bond

Denial of the application for preliminary injunction: the temporary restraining Is it sufficient ground to dissolve an injunction if the defendant posts a bond
order is deemed, automatically vacated. - No, it is not sufficient, the granting or dissolution of the PI is a matter or
discretion of the court.
Note: The effectivity of a TRO is not extendible without need of any judicial
declaration to that effect and no court shall have authority to extend or renew the Service of copies of bonds; the party filing a bond in shall forthwith serve a copy
same on the same ground for which it was issued. of such bond on the other party, who may except to the sufficiency of the bond, or
of the surety or sureties thereon.
Note: when there is no resolution after the 72 hours or 20 days it
means that there is nothing to enjoined unless the parties agree to Effect of disapproval of the bond:
maintain status quo  Applicant’s bond - the injunction shall be dissolved
 the bond of the adverse party - the injunction shall be granted or
Preliminary restored
Temporary Restraining Order
Injunction
Specie of preliminary injunction to maintain When final injunction granted: If after the trial of the action it appears that the
status quo before the resolution of the writ of applicant is entitled to have the act or acts complained of permanently enjoined
preliminary injunction on the ground of
irreparable injury Gordillo vs. Del Rosario, 39 Phil 829: the prayer for injunction relief
Effective during Duration (non-extendible): should not be granted for the purpose of taking the property, the
the pendency of 1. If issued by RTC/MTC – 20days from legal title to which is in dispute, out of possession of one person and
the action unless notice to person restrained putting it to the hands of another before the right of ownership is
earlier dissolved 2. If issued by CA – 60 days from notice determined.
3. If issued by SC – until lifted
Q: May the CHR issue a writ of injunction? If not, what should it do?
Note: Prohibition against the renewal applies
only if the same is sought under and by reason A: No, the CHR is not a judicial or quasi-judicial body, hence
of the same ground for which it was originally without authority to issue injunction or restraining order. In that
issued case, its remedy is to seek assistance of proper courts for injunctive
remedies.
Note: TRO is deemed automatically lifted
after the expiration of the effectivity period Q: A with use of force entered into the premises belonging to B. The
Notice and GR: Notice and hearing required latter demanded the vacation of the premises but the former refused
hearing always to vacate. Your services were engaged by B to enforce his right. What
required EX: ex parte TRO action would you file?

A: I would file an action for forcible entry with prayer for the
Can be issued to Cannot be issued to compel the performance
issuance of preliminary mandatory injunction in order to compel A
compel the of an act
to vacate the premises. Under the rule, PMI may be granted when it
performance of an
is established that a person refuses to perform an act complained of
act
during the litigation which would probably work injustice to the
applicant, in this case, A refused to vacate the premises which he
Grounds for objection to, or for motion of dissolution of, injunction or
occupied without the knowledge and consent of B, thus, resulting to
restraining order:
injustice to B as he was deprived of the right to use his property.
1. upon a showing of its insufficiency
2. upon affidavits of the party or person enjoined, which may be opposed by
Instances when an injunction is proper
the applicant also by affidavits.
1. In a petition for certiorari, prohibition, mandamus
3. if it appears that although the applicant is entitled to the injunction or
2. In a petition for relief from judgment
restraining order, the issuance or continuance thereof, as the case may be,
3. In an action for annulment of judgment, or to enjoin the enforcement of
would cause irreparable damage to the party or person enjoined while
the same on the grounds of fraud, collusion or lack of jurisdiction of the
the applicant can be fully compensated for such damages as he may suffer
court rendering it
4. To restrain the threatened enforcement of an invalid law
Bond: Theparty enjoined files a bond in an amount fixed by the court conditioned
5. To restrain continued breach of valid negative obligation;
that he will pay all damages which the applicant may suffer by the denial or the
6. To enjoin repeated trespass on land;
dissolution of the injunction or restraining order.

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 7. To restrain city from proceeding with abatement of nuisance per between the City of Mandaue and MALAYAN. However, that
accidens before it has been judicially declared as such; transaction appeared to be unauthorized. After sometime a
8. To restrain voting of disputed shares of stocks; confirmatory agreement was entered by the parties whereby
9. To restrain sheriff from selling property on execution not belonging to MALAYAN bound itself to undertake the project at its own
judgment debtor; expense. After the People power, the plan was resubmitted to the
10. To restrain criminal prosecutions as an exception, in the following cases: President for approval, the City of Mandaue however started
a. To afford adequate protection to constitutional rights of negotiated and contracted with FF Cruz & Co. for the reclamation
accused; project. MALAYAN filed a protest with the OP. The Executive
b. When there is a prejudicial question which is sub judice; Secretaery disapproved the project with MALAYAN, this prompted
c. Prosecution under an invalid law; MALAYAN to file with the RTC a petition for prohibitory and
d. Double jeopardy is clearly apparent; mandatory preliminary injunction. RTC issued a TRO. Upon
e. Court without jurisdiction over the offense; posting a bond, injunction was issued. Whether or not a writ of
f. Case of persecution rather than prosecution; preliminary injunction may be issued against the government?
g. Charges manifestly false and motivated by lust for vengeance;
h. There is clearly no prima facie case against accused and motion A: Under PD 1818 and RA 8735, injunction is not available to stop
to quash on said ground is denied; and infrastructure projects of the government
i. Preliminary injunction issued by SC to prevent threatened
unlawful arrest of petitioners. May a writ issued by a judge be enforced outside of the judicial region? If not,
what is the remedy?
Instances when injunction is not proper
1. In action to compel a spouse to cohabit with the other No, if the act sought to be prevented is in another region, he can
2. Restraining consummated acts enforce the writ within the region and file another action in that
3. To enjoin a public officer from performing duties specifically imposed by region or apply for such writ from the CA or SC, if proper, so that the
law same can be enforced anywhere in the Philippines.
4. To transfer possession of property from another
5. Act/s perpetrated outside the inferior courts’ territorial jurisdiction Q: A is the owner of a property which he used to secure a loan by way of REM
6. Against judgments of coordinate courts and quasi-judicial bodies of equal
with a bank. For failure to pay the loan, the bank foreclosed the mortgage. For
rank
failure to redeem, the bank consolidated its ownership over the property where a
7. Issuance will effectively dispose of the main case without trial and/or due
title was issued under its name. The consolidation was made during the pendency
process
of an action to annul the foreclosure sale, hence, the action was amended with
8. Labor disputes
9. In issuance of licenses, concessions as to disposition, exploitation, prayer for preliminary prohibitory injunction. If you were the judge, would you
utilization, exploration and/or development of natural resources grant the injunction? Why?
10. Implementation of Comprehensive Agrarian Reform Program, collection
of taxes, criminal prosecutions A: If I were the judge, I would deny the prayer for PPI because the act
11. Mandatory foreclosure of a mortgage by a government financial complained of has already been consummated.
institution
12. When action for damages would adequately compensate injuries caused Q:Can the mortgagor argue that the consolidation of title during the pendency of
13. To prevent directors from discharging their offices and restoring former an action for annulment and reconveyance will cause irreparable injury to him?
directors; Explain.
14. To restrain criminal prosecution where the Ombudsman had authorized
the Special prosecutor to conduct a preliminary investigation or to file an A: No, because as a purchaser at a public auction, he becomes the
injunction. absolute owner of the Property Purchase if it is not redeemed during
15. Against Department of Public Works and Highways to stop government the period of one year after the registration of the sale. Consolidation
infrastructure projects (Secs. 3 & 4, RA8975) takes place as a matter of right.

Exceptions: Q: A title was fraudulently transferred under the name of the

a. Extreme urgency
b. Matter involves a constitutional issue
c. Grave injustice and irreparable injury will arise
Note: Only the SC may issue injunction against the government, officials or any
person or entity whether public or private acting under the government direction,
to restrain, prohibit, or compel acts pursuant to the implementation and
completion of infrastructure projects.
Q: During the Marcos regime, a reclamation contract was signed
common law wife of the owner. When the heirs discovered it, they
filed an action to annul the title but later on they found out that the
transferee mortgaged it, the bank foreclosed the mortgage and so,
they amended the complaint to implead the bank and prayed for
injunction to stop it from proceeding with the foreclosure, the RTC
denied it but the RTC overturned the order granting the injunction
to prevent it from proceeding with the foreclosure and the
consolidation of title over the property, as they have a clear and
unmistakable right to protect their title and possession. Before the
Supreme Court the petitioner contended that the injunction is not

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proper as the respondent merely have possession, whereas, it has the
title to the property. The respondents contended that they would
suffer great irreparable damage if the writ is not granted as they
would lose their ancestral home. Are the respondents entitled to
injunctive relief? Why?
A: Yes. If indeed the deed of sale was a forgery, no parcel of land was
ever transferred to the purported buyer, who, not being the owner,
could not have validly mortgaged the property. Consequently,
neither has petitioner - the buyer and mortgaged of the same lot -
even acquired any title thereto. Clearly then, respondents have the
right to prevent petitioner from consolidating the title in its name.
(First requisite - existence of a right to be protected is present)
(Urgent and paramount necessity - second requisite is also present)
as what was sought to be enjoined was the consolidation of the title
of the subject property in petitioner's name.
Q: May an injunction lie to require the payment of rent where no
such obligation existed before? Why?
A: No, because it would be premature pending a final determination
of who between the parties is the lawful possessor of the premises.
The most prudent way to preserve the rights of the parties is to
deposit with the trial court all rentals on the premises.
Q: The MTC decision was appealed to the RTC. In due time, the
RTC rendered a decision in the appealed case. After the decision had
become final, another RTC issued a writ of preliminary injunction to
prevent the implementation of the decision of the MTC as affirmed
by the first RTC. In this problem, is the issuance of a writ of
preliminary injunction by another RTC to prevent the
implementation of the decision of the MTC correct?
A: No. Although the writ is directed against the MTC, the same has
the effect of preventing the execution of the decision on appeal of a
RTC which is a court of equal rank and jurisdiction.
OCA CIRCULAR NO. 25-2007
(1) No temporary restraining order or writ of preliminary injunction against the
extrajudicial foreclosure of real estate mortgage shall be issued on the
allegation that the loan secured by the mortgage has been paid or is not
delinquent unless the application is verified and supported by evidence of
payment.
(2) No temporary restraining order or writ of preliminary injunction against the
extrajudicial foreclosure of real estate mortgage shall be issued on the
allegation that the interest on the loan is unconscionable, unless the debtor
pays the mortgagee at least twelve percent per annum interest on the principal
obligation as stated in the application for foreclosure sale, which shall be
updated monthly while the case is pending.
(3) Where a writ of preliminary injunction has been issued against a foreclosure of
mortgage, the disposition of the case shall be speedily resolved.
(4) All requirements and restrictions prescribed for the issuance of a temporary
restraining order/writ of preliminary injunction, such as the posting of a bond,
© Gironella – Macadatar 2017 | Provisional Remedies
which shall be equal to the amount of the outstanding debt, and the time
limitation for its effectivity, shall apply as well to a status quo order.
Receivership
Nature: It may be the principal action itself or a mere provisional remedy
Receiver: is a representative of the court, appointed for the purpose of preserving
and conserving the property in litigation and preventing its possible destruction or
dissipation.
 He is not a representative of any of the parties but of all of them.
 He must be someone who is indifferent person between the parties and
should be impartial
 A clerk of court cannot be appointed as a receiver
Purpose: to preserve the property during the pendency of the litigation or to
dispose of it according to the judgement or otherwise carry the judgement into
effect.
May a receiver be appointed even if the property is under custodialegis? Yes,
when justified by special circumstances as when the appointment is necessary to
secure and protect the rights of real owner of a property.
When a receiver be appointed in a partition proceeding
1. Where the relations of the co-owners are strained
2. Where no satisfactory arrangement for administration can be
accomplished
Appointment of receiver: How made: Upon a verified application
May a receiver be appointed ex parte?
No there must be a hearing.
Where to file:
 where the action is pending
 by the Court of Appeals
 by the Supreme Court, or a member thereof
When issued:
1. Applicant has an interest in the property or fund subject of the action is
in danger of being lost, removed, or materially injured
2. Mortgaged property is in danger of being dissipated or materially
injured and that its value is probably insufficient to discharge the
mortgage debt or
3. Stipulation in the contract of mortgage
4. After judgment:
a. to preserve the property during the pendency of an appeal, or
Note: filed in and decided by the court of origin and the receiver appointed to be
subject to the control of said court.
b. to dispose of it according to the judgment, or
c. to aid execution when the execution has been returned
unsatisfied or the judgment obligor refuses to apply his
property in satisfaction of the judgment, or
d. otherwise to carry the judgment into effect;
5. Judgment debtor refuses to apply his property in satisfaction of the
judgment or to carry on the judgment
76
 6. Appointment of receiver is most convenient and feasible means of
preserving, administering or disposing of the property in litigation
Requirement before issuance of the order:the applicant must file a bond executed
to the party against whom the application is presented, in an amount to be fixed by
the court
Purpose:applicant will pay such party all damages he may sustain by reason of the
appointment of such receiver in case the applicant shall have procured such
appointment without sufficient cause
 that he will faithfully discharge his duties in the action or proceeding and
obey the orders of the court
Kinds of Bonds:
1. Bond posted by the applicant
2. Bond posted by receiver appointed
Compensation of the receiver:reasonable compensation as the circumstances of
the case warrant, to be taxed as costs against the defeated party, or apportioned, as
justice requires.
Q: X, the receiver of the properties subject of litigation between A and B entered
into a contract of sale over a portion of such properties. Rule on the validity of the
act of X.
A: The sale is void because a receiver like X has no power to enter a
contract without the approval of the court.
Replevin
It is a proceeding by which the owner or one who has general or special property
in the thing taken or detained seeks to recover possession in specie, the recovery of
damages being only incidental.

In case the bond of the adverse party is found to be insufficient in amount: the
Nature:
receiver shall be appointed or re-appointed, as the case may be.
 both a form of principal remedy and a provisional relief.
o mixed action; partly in rem and partly in personam
General Powers of receiver:
o In rem - recovery of specific personal property
1. the power to bring and defend, in such capacity, actions in his own name;
o In personam - claim for damages
2. to take and keep possession of the property in controversy;
3. to receive rents;
 a provisional remedy in the nature of possessory action
4. to collect debts due to himself as receiver or to the fund, property, estate,
o the applicant need not be a holder of legal title
person, or corporation of which he is the receiver;
o It is sufficient the is entitled to the possession thereof
5. to compound for and compromise the same;
6. to make transfers;
Note: Replevin will not lie for property under custodia legis.
7. to pay outstanding debts;
8. to divide the money and other property that shall remain among the
Replevin vs. Preliminary Attachment:
persons legally entitled to receive the same;
Replevin Preliminary Attachment
9. generally to do such acts respecting the property as the court may
Recovery of possession of Available even if recovery of
authorize.
personal property is the principal personal property is only an
relief and damages are incidental incidental relief
Liability for refusal or neglect to deliver property to receiver:
This is available before defendant Available from commencement
 may be punished for contempt
files an answer but before entry of judgment
 shall be liable to the receiver for the money or the value of the property
Available only where defendant is May be resorted to even if
and other things so refused or neglected to be surrendered
in actual or constructive personal property is in the
 together with all damages that may have been sustained by the party or
possession of personal property custody of a third person
parties entitled thereto as a consequence of such refusal or neglect
involved
Extends only to personal Extends to all kinds of property
Grounds to discharge receiver:
property capable of manual whether real, personal or
1. Posting of counterbond by adverse party
delivery incorporeal
Used to recover personal Recover property being
Note: Where counterbond is insufficient or defective, receiver may be re-appointed
property even if not being concealed, removed or disposed
concealed, removed or disposed
2. Appointment of receiver was made without sufficient cause
3. Insufficient or defective applicant’s bond Cannot be availed of when Can be resorted to even if
4. Insufficient or defective receiver’s bond property is in custodialegis(under property is in custodialegis
5. Receiver no longer necessary attachment) or seized under
search warrant
Termination of receivership; Property of GOCCs cannot be Properties of GOCCs may be
1. By court motupropio or on motion by either party reached reached if utilized in its
2. Based on the following grounds: proprietary function.
a. Necessity for receiver no longer exists Sheriff takes possession of the Sheriff does not take possession
b. Receiver asserts ownership over the property property subject of the replevin of the property attached except
3. After due notice and hearing to all interested party and hold the same for a period of contructively placing it under
5 days after which said property custodia legis.

© Gironella – Macadatar 2017 | Provisional Remedies 77

will be delivered to the party 3. if the adverse party requires the return of the property but his bond is
who obtained the writ. objected to and found insufficient and he does not forthwith file an
approved bond

Bond to be posted is double the Bond amount is fixed by court

Effect: the property shall be delivered to the applicant.
value of the property sought to be and does not exceed the claim
recovered or value of the property to be
If for any reason the property is not delivered to the applicant, the sheriff must
attached
return it to the adverse party.
Purpose:
Judgment: After trial of the issues the court shall determine who has the right of
1. Protect plaintiff’s right of possession to property
possession to and the value of the property and shall render judgment in the
2. Prevent defendant from destroying, damaging or disposing of the property
alternative for:
 The delivery thereof to the party entitled to the same, or
How: through affidavit under oath
 for its value in case delivery cannot be made, and
 Also for such damages as either party may prove, with costs.
Who may avail: the plaintiff and the defendant

Upon the dismissal of the complaint for replevin the court may direct the plaintiff
Subject matter: personal property but it cannot be incorporeal property
to release the property to the defendant despite the appeal by defendant from the
dismissal of his counterclaim.
When to file: at the commencement of the action or at any time before answer is
served
When shall an application for damages be applied? Before judgment is
executory
Jurisdictional Requirements:
(a) That the applicant is the owner of the property claimed
Note: the writ of replevin is addressed to the sheriff
(b) Detailed description of the personal property
(c) That the property is wrongfully detained by the adverse party, alleging the
cause of detention thereof according to the best of his knowledge, May a property seized by a search warrant be the subject of replevin?
information, and belief ;
(d) That the property has not been distrained or taken for a tax assessment or a It depends. No if it illegally possessed. Yes if legally possessed.
fine pursuant to law, or seized under a writ of execution or preliminary
attachment, or otherwise placed under custodialegis, or if so seized, that it May the issue of ownership be resolved in a replevin suit?
is exempt from such seizure or custody;
(e) The actual market value of the property. Yes, if issue of ownership is raised.

Bond:The applicant must also give a bond, executed to the adverse party
Amount of the bond:in double the value of the property
Return of property: If the adverse party objects to the:
1. sufficiency of the applicant's bond
2. of the surety or sureties thereon
BUT: he cannot immediately require the return of the property
Remedy for the return of property seized:
The defendant must, within 5 days from the date the sheriff took possession of the
property
1. Put up a bond in double the value of the chattel (Redelivery Bond)
2. Furnish the plaintiff with a copy of the undertaking
Note: both requirements are mandatory.
Disposition of property by sheriff: If within five (5) days after the taking of the
property by the sheriff, the adverse party does not object to the:
1. sufficiency of the bond, or of the surety or sureties thereon; or
2. if the adverse party so objects and the court affirms its approval of the
applicant's bond or approves a new bond, or
May a motion to discharge the writ of replevin on the ground that it was
improperly issued be allowed?
No. The remedy of the defendant is under Section 5 (Return of
property) and Section 6 (Disposition of property by sheriff)
What is the remedy of the defendant where a complaint for replevin was dismissed,
but the plaintiff refused to return the property seized?
The dismissal of a replevin case after seizure carries with it the
return of seized property enforceable by execution.
During the pendency of a replevin suit filed by X against Y, the later filed an
action for damages against X due to the seizure of the property. Is the action
proper? Why?
No, any claim for damages due to seizure of property in replevin
while the action is pending must be litigated in the replevin suit and
not by independent action. This is so because a court of coordinate
jurisdiction cannot interfere with the affairs of a coordinate court.
Q: X filed a replevin suit against Y, who filed a motion to dismiss with a
counterclaim for damages caused by plaintiff's alleged bad faith in the filing of the

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complaint. Is this sufficient to recover damages on the replevin bond?
A: No, because the damages referred to must arise out of the
wrongful seizure of the defendant's property.
Q: Plaintiff obtained a writ of replevin for the seizure of machines placed by the
defendant in the factory built on defendant's land. Is the issuance of the writ of
replevin correct?
A: No. Although the machines are movable on their own, they have
become immobilized by destination because they are essentials and
principal elects in the industry. Thus, the machines are real
properties and cannot be seized by replevin, except if the parties
have agreed to treat them as personal or movable properties.
Support / Alimony Pendente Lite
Support: anything that is indispensable for sustenance, dwelling, clothing and
medical attendance, according to the social position of the family.
Support pendente lite: it is an allowance made to the wife or family for her/their
maintenance during the pendency of the action.
When to file: At the commencement of the proper action or proceeding, or at any
time prior to the judgment or final order
What to file: a verified application
Who files: by any party
Contents: stating the grounds for the claim and the financial conditions of both
parties, and accompanied by affidavits, depositions or other authentic documents in
support thereof.
Comment: adverse party shall have 5 days to comment thereon unless a different
period is fixed by the court upon his motion.
Contents of the comment: shall be verified and shall be accompanied by affidavits,
depositions or other authentic documents in support thereof.
Hearing, when: After the comment is filed, or after the expiration of the period for
its filing,
Duration of the hearing: not more than 3 days
If the application is granted, the court shall fix the amount of money to be
provisionally paid or such other forms of support as should be provided, taking into
account the necessities of the applicant and the resources or means of the adverse
party, and the terms of payment or mode for providing the support.
If the application is denied, the principal case shall be tried and decided as early as
possible.
Enforcement of order: If the adverse party fails to comply with an order granting
support pendente lite, the court shall, motuproprio or upon motion; issue an order
of execution against him, without prejudice to his liability for contempt.
© Gironella – Macadatar 2017 | Provisional Remedies
Third person; Reimbursement:
When the person ordered to give support pendente lite refuses or fails to do so,
any third person who furnished that support to the applicant may, after due notice
and hearing in the same case obtain a writ of execution to enforce his right of
reimbursement against the person ordered to provide such support.
Support in criminal cases: In criminal actions where the civil liability includes
support for the offspring as a consequence of the crime and the civil aspect thereof
has not been waived, reserved and instituted prior to its filing
 the accused may be ordered to provide support pendente lite to the
child born to the offended party allegedly because of the crime.
The application therefor may be filed successively by the offended party, her
parents, grandparents or guardian and the State in the corresponding criminal case
during its pendency, in accordance with the procedure established under this
Rule.
Restitution: the person who has been providing support pendente lite is not liable
therefor
 the recipient must return to the former the amounts already paid with
legal interest from the dates of actual payment
 without prejudice to the right of the recipient to obtain reimbursement
in a separate action from the person legally obliged to give the support.
Failure to reimburse: the person who provided the same may likewise seek
reimbursement thereof in a separate action from the person legally obliged to give
such support.
What is the effect if the defendant in an action for support with support pendente
lite denies the right of the plaintiff?
The court cannot grant the support pendente lite. Likewise, if the
existence of the fact upon which the right to support depends is put
in issue by the pleadings, it cannot be presumed to exist for the
purpose of granting alimony.
Possible Defenses:
Adultery of the wife is a good defense in action for support. As to the child, such
defense is valid proof that the child is the fruit of such adulterous relationship
must be shown.
Invalidity of a marriage is also a defense in an action for support although support
pendente lite may still be achieved during the proceedings for annulment of
marriage.
A repeated illicit relation with women outside the martial home is sufficient to
entitle the wife to maintain a separate home and to have a separate support.
Contempt of court: disobedience to an order granting support pendente lite.
THIRD PARTY CLAIM
Remedies that are available if property is being claimed by a third person:
1. File a Third Party Complaint or terceria
2. File a Motion for Intervention
3. File an independent action to recover property
79
Note: The remedies are cumulative and may be resorted to by the third party 2. any officer duly representing it,
claimant independently of or separately from the others.
In case the sheriff is sued for damages as a result of the attachment:
PROCEEDINGS WHEN PROPERTY IS CLAIMED BY THIRD PERSONS - he shall be represented by the Solicitor General
- if held liable therefor, the actual damages adjudged by the court shall be
Effect of levy on execution as to third person: The levy on execution shall create a paid by the National Treasurer out of the funds to be appropriated for
lien in favor of the judgment obligee over the right, title and interest of the the purpose.
judgment obligor in such property at the time of the levy, subject to liens and
encumbrances then existing. Requisites for the recovery of damages against the replevin bond:
1. Application showing right to damages
Q:Aiza obtained a judgment for money against Bert. The sheriff 2. Notice given to plaintiff and his surety
enforcing the corresponding writ went to Celywho, is the pledgee 3. There must be a hearing in case recover is opposed: except if under the
of a ring Bert had given as security for a loan and insisted on taking contract, the surety promised to abide by the judgement of the court
possession of the ring for the purpose of eventually selling it at the 4. Award of damages must be included in the judgement of the court
execution sale to satisfy the judgment debt of Bert to Aiza. Does
Cely have the obligation to surrender the ring to the sheriff? Q: A obtained a money judgment against B. After the finality of the
Explain. decision, the court issued a writ of execution for the enforcement
thereof. Conformably with the said writ, the sheriff levied upon
A: No, because Cely has the right to retain the ring in his possession certain properties under B's name. C filed a third-party claim over
until the loan is paid. If the sheriff should take possession of the said properties claiming that B had already transferred the same to
ring, Cely may file a third-party claim. (1987 Bar Question) him. A moved to deny the third-party claim and to hold B and C
jointly and severally liable to him. After due hearing, the court
When to file: At any time, so long as the sheriff has the possession of the property denied the third-party claim and rendered an amended decision
levied upon, or before the property is sold under execution. declaring B and C jointly and severally liable to A for the money
judgment. Is the ruling of the court correct'?
Requisites for a claim by a third person:
1. The property is levied; A: No, C has not been impleaded as a party defendant. He cannot be
2. The claimant is a person other than the judgment obligor or his agent; held liable for the judgment against B without a trial. In fact, since
3. Makes an affidavit of his title thereto or right to the possession thereof no bond was filed by A, the sheriff is liable to C for damages. C can
stating the grounds of such right or title; and file a separate action to enforce his third-party claim. It is in that
4. Serves the same upon the officer making the levy and the judgment suit that A can raise the ground of fraud against C. However, the
obligee. execution may proceed where there is a finding that the claim is
fraudulent
Bond:
The sheriff shall not be bound to keep the property unless the attaching party or his Special Civil Actions
agent, on demand of the sheriff, shall file a bond approved by the court to indemnify
the third-party claimant
Ordinary Civil Action Special Civil Action
Must be based on a cause of Cause of action not necessarily
Amount:
action needed
Attachment: not less than the value of the property levied upon
Example:
Replevin: not less than the value of the property under replevin
Declaratory relief – action is brought
before there is any breach
Disagreement as to value: decided by the court issuing the writ of attachment.
Venue is determined either Not necessarily true as in quo
by the residences of the warranto, the venue is where the
Claim for damages: parties where the action is Supreme Court or Court of Appeals
GR: No claim for damages for the taking or keeping of the property may be enforced personal or by the location if the petition is commenced in any
against the bond of the property where the of these courts without taking into
Unless: the action therefor is filed within 120 days from the date of the filing of the action is real consideration the residences of the
bond.
parties
May be filed in MTC or Some actions may be filed only in
The sheriff shall not be liable for damages for the taking or keeping of such property
the RTC depending upon the MTC, some cannot be
to any such third-party claimant, if such bond shall be filed.
the jurisdictional amount commenced therein
or nature of the action
Exception; filing of bond:
May be commenced only May be commenced by the filing of
When the writ of attachment is issued in favor of:
by the filing of complaint a complaint or petition
1. the Republic of the Philippines, or

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How Initiated: brought in a RTC in the City of
By Complaint - PIFFE Manila, in the CA, or in the SC
a. partition
b. interpleader
c. foreclosure of real estate mortgage
d. forcible entry and unlawful detainer
Contempt
e. expropriation
MTC, RTC, CA, SC Where the charge for indirect
By Petition – PRC MCQ D
contempt has been committed
a. Prohibition
against RTC or a court of
b. review of judgments and final orders or resolutions of the
equivalent or higher rank, or against
COMELEC / COA
an officer appointed by it, the
c. Certiorari
charge may be filed with such
d. Mandamus
court.
e. Contempt
f. Quo Warranto
Where such contempt has been
g. declaratory relief
committed against a lower court,
the charge may be filed with the
Jurisdiction and Venue:
RTC of the place in which the
Jurisdiction Venue lower court is sitting; but the
Interpleader proceedings may also be instituted
MTC – where the value of Where the plaintiff or any of the in such lower court subject to
the claim or the personal principal plaintiff resides or where appeal to the RTC of such place
property does not exceed the defendant or any of the Unlawful Detainer /Forcible Entry
P300,000 or P400,000 in principal defendants resides
Metropolitan Trial Courts; Where the property is located
MM or where the value of
covered by Rule on
the real property does not
Summary Procedure.
exceed P20,000 or P50,000
in MM Partition
RTC 1. Real property – where the
RTC – if the value exceeds (incapable of pecuniary property is located
the above amounts or if the estimation) 2. Personal property – the place
subject matter is where the plaintiff or defendant
exclusively within the resides (Sec. 13, Rule 69)
jurisdiction of the RTC
Declaratory Relief
RTC Where the petitioner or the Foreclure of REM
respondent resides RTC (incapable of Where the land or any part thereof
Expropriation pecuniary estimation) is located
RTC Land: where the property is located

Personal property: the place where

the plaintiff or defendant resides
Certiorari, Prohibition, Mandamus
RTC, CA, SC, SB General rule on venue
COMELEC in aid of its
appellate jurisdiction
Quo Warranto
RTC, CA, SC, SB in aid of With the SC, CA, or in the RTC
its appellate jurisdiction exercising jurisdiction over the
territorial area where the
respondent or any of the
respondents resides.
When the Solicitor General
commences the action, it may be
Interpleader
When interpleader proper: Whenever conflicting claims upon the same subject
matter are or may be made against a person who claims no interest whatever in the
subject matter, or an interest which in whole or in part is not disputed by the
claimants, he may bring an action against the conflicting claimants to compel them
to interplead and litigate their several claims among themselves.
Interpleader vs. Intervention:
INTERPLEADER INTERVENTION
Special civil action, Not an original action but mere ancillary
independent and and depends upon the existence of a
original precious pending action.
Commenced by the Commenced by a motion to intervention
filing of a complaint. filed in a pending case attaching thereto

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 the pleading- in- intervention. Declaration of default: If any claimant fails to plead within the time herein fixed

Filed by a person who Filed by a person who has a legal interest If there are more than one claimant – partial declaration of default
has no interest in the in any of the following:
subject matter of the a. The subject matter of the litigation; How: on motion
action or if he has an b. The success of either of the parties; or
interest, the same is not c. The success of both of the parties; or Effect: the court will render judgment barring him from any claim in respect to the
disputed by the d. He may be adversely affected by the subject matter
claimants. disposition or distribution of property in
the judgment. Allowed pleadings: The parties in an interpleader action may file counterclaims,
The defendants are If a complaint- in- intervention is filed, cross-claims, third-party complaints and responsive pleadings thereto
brought into the action the defendants are already parties to an
only because they are existing suit not because of the  after issues are joined proceed to trial
impleaded as such in the intervention but because of the original
complaint. suit. Docket and other lawful fees, costs and litigation expenses as liens: The docket
and other lawful fees paid by the party who filed a complaint, as well as the costs
Requisites: and litigation expenses, shall constitute a lien or charge upon the subject matter of
1. Plaintiff claims no interest in the subject matter or his claim is not the action, unless the court shall order otherwise.
disputed  From the defendant who loses the action and is found by the court to
2. Two or more claimants asserting conflicting claims have caused the unnecessary litigation
3. The subject matter must be one and the same for the conflicting
claimants Q: May an interpleader be availed of the resolve breach of
4. Person in possession or obliged files a complaint. undertaking?
5. The parties to be interpleaded must make effective claims.
6. Payment of docket and other lawful fees. A: No. Such issue should be resolved in an ordinary civil action for
specific performance or other relief
When must an action for interpleader be filed:
 Within a reasonable time after a dispute has arisen without waiting to be Q: if there is a pending interpleader case filed before a replevin suit,
sued by claimants may the court taking cognizance of the replevin case effect the
 before such is barred from laches. seizure of the vehicles subject of the suit?

Which court has jurisdiction over an interpleader: Inferior courts have
jurisdiction so long as the amount involved is within their jurisdiction
Summons: served upon the conflicting claimants, together with a copy of the
complaint and order.
Motion to dismiss:
When to file: Within the time for filing an answer
Who files: each claimant may file a motion to dismiss
Grounds:
 impropriety of the interpleader action
 on other appropriate grounds specified in Rule 16.
Effects: The period to file the answer shall be tolled
A: no. A court taking cognizance of a replevin suit cannot effect
seizure of the subject vehicle unless clear right to possession has
been established and determined in the interpleader case filed prior
thereto and pending the court of co-equal and coordinate
jurisdiction. To bestow recognition to an alleged right of possession
of a party despite notice of an earlier interpleader case pending ,
amounts to manifest gross abuse of discretion and glaring disregard
of respect and comity due to co-equal court.
Declaratory Relief and Similar Remedies
This is an exception to the general rule that cases brought to the court are ripe for
adjudication.
Two Types of Action:
1. Declaratory relief
2. Other similar remedies

If the motion is denied:the movant may file his answer within the remaining period Declaratory Relief
 but which shall not be less than 5 days in any event, reckoned from
notice of denial. Requisites:
1. Filing of Petition before there is a breach or violation
Answer: 2. Subject matter is a deed, will, contract, written instrument, statute,
executive order, regulation or ordinance
When to file: within 15 days from service of the summons upon him 3. There is justiciable controversy

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 4. Issue is ripe for judicial determination i.e. litigation is imminent and Intended to determine any Intended to remedy or
inevitable question of construction or compensate injuries already
5. Adequate relief is not available through other means or other forms of validity suffered
action or proceedings prior to breach or violation After breach
6. The controversy is between persons whose interests are adverse;

Nature of the proceedings: To whom shall notices be given?

 the court is given the discretion to act or not to act on the petition  Solicitor General: In any action which involves the validity of a:
 non adversarial  statute
 preventive and anticipatory remedy  executive order or regulation, or
 any other governmental regulation
Exercise of Discretion:
 A refusal of the court to declare rights or construe an instrument is  Prosecutor or attorney of the local government unit if subject matter
actually the functional equivalent of the dismissal of the petition. involves validity of ordinance
 On the other hand, the court does not have the discretion to refuse to act
with respect to actions described as similar remedies.  All persons who have or claim any interest

Who may file petition: If such ordinance is alleged to be unconstitutional, the Solicitor General shall also
A. Any person interested under a: (COWD) be notified and entitled to be heard.
o Contract
o other written instrument When may a court refuse to make a judicial declaration / additional ground for
o Will motion to dismiss:
o Deed 1. A decision will not terminate the uncertainty or controversy which gave
rise to the action
B. whose rights are affected by a: 2. Declaration or construction is not necessary and proper under the
o statute circumstances
o executive order or regulation
o ordinance, or Note: Discretion to refuse does not extend to actions for reformation of an
o any other governmental regulation instrument quiet title or remove clouds or to consolidated ownership in a pacto de
retro sale.
Note: The enumeration of the subject matter is exclusive; hence, an action not
based on any of the enumerated subject matters cannot be the proper subject of Conversion into ordinary action:
declaratory relief.
When:before the final termination of the case
Parties: All persons who have or claim any interest which would be affected by the
declaration shall be made parties; What:a breach or violation of an instrument or a statute, executive order or
 no declaration shall, except as otherwise provided in the Rules, prejudice
regulation, ordinance, or any other governmental regulation takes place
the rights of persons not parties to the action.
The action may thereupon be converted into an ordinary action, and the parties
When to file: before breach or violation of one’s right shall be allowed to file such pleadings as may be necessary or proper.

Where to file: Regional Trial Court

Q: Is a third-party complaint proper in an action for declaratory
o Exception: far reaching implication – file it in the appropriate court relief?
o Treated as prohibition or mandamus
A: No. Because in a third-party complaint, such person seeks to
Purpose: obtain contribution, indemnity, subrogation or other reliefs and a
 to determine any question of construction or validity arising (for letter declaratory relief is confined merely to the interpretation of the
A) terms of a contract.
 For a declaration of his rights or duties (for letter B)
Instances wherein a declaratory relief is UNAVAILABLE:
Declaratory Judgment vs. Ordinary Judgment: 1. To obtain judicial declaration of citizenship;
2. To establish illegitimate filiation and determine hereditary rights;
Declaratory Judgment Ordinary Judgment 3. The subject of the action is a court decision;
Declaratory judgment stands by Ordinary judgment involves 4. Actions to resolve political questions;
itself and no executory process executor or coercive relief 5. Those determinative of the issues rather than a construction of definite
follows status, rights and relations;
6. Terms of assailed ordinances are not ambiguous or of doubtful meaning;

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 7. In a petition to seek relief from a moot and academic question; but to file an action for annulment of the contract
8. Where the contract or statute on which action is based has been
breached; Matters that cannot be reform:
9. When the petition is based on the happening of a contingent event; 1. Simple donation inter vivos wherein no condition is imposed;
10. When the petitioner is not the real party in interest; and 2. Wills; or
11. Where the administrative remedies have not yet been exhausted. 3. When the agreement is void
4. Marriage contract
Similar Remedies
Reformation of instruments like contracts may not be appropriate subjects for
1. Reformation of an instrument arbitration if one of the parties assails the jurisdiction of the arbitrator like the
2. Quiet title to real property or to remove clouds HLURB. The jurisdiction is vested in the RTC. (Frabelle Fishing Corporation vs. Phil
3. Consolidation of ownership Am Life, GR no 158560, August 17, 2007)

Note: they can be ordinary or special civil actions QUIETING OF TITLE TO REAL PROPERTY

REFORMATION OF AN INTRUMENT:
It is not an action brought to reform a contract but to reform the instrument
evidencing the contract.
It presupposes that there is nothing wrong with the contract itself because there is
a meeting of minds between the parties.
The contract is to be reformed because despite the meeting of minds of the parties
as to the object and cause of the contract, the instrument which is supposed to embody the
agreement of the parties does not reflect their true agreement by reason of mistake,
inequitable conduct or accident.
The action is brought so the true intention of the parties may be expressed in the
instrument
a) This action is brought to remove a cloud on title to real property or any
interest therein.
The action contemplates a situation where the instrument or a record is
apparently valid or effective but is in truth and in fact invalid, ineffective, voidable
or unenforceable, and may be prejudicial to said title to real property.
b) It may also be brought as a preventive remedy to prevent a cloud from
being cast upon title to real property or any interest therein
Possession: The plaintiff need not be in possession of the real property before he
may bring the action as long as he can show that he has a legal or an equitable title
to the property which is the subject matter of the action
CONSOLIDATION OF OWNERSHIP

When an instrument may be reformed: The action brought to consolidate ownership is not for the purpose of
consolidating the ownership of the property in the person of the vendee or buyer
The instrument may be reformed if it does not express the true intention of the but for the registration of the property.
parties because of lack of skill of the person drafting the instrument
The lapse of the redemption period without the seller a retro exercising his right of
Example: If the parties agree upon the mortgage or pledge of property, but the redemption, consolidates ownership or title upon the person of the vendee by
instrument states that the property is sold absolutely or with a right of repurchase, operation of law.
reformation of the instrument is proper.
Art. 1607 requires the filing of the petition to consolidate ownership because the
Equitable mortgage – Article 1602 – 1603; Pacto de Retro but the real agreement is law precludes the registration of the consolidated title without judicial order
mortgage
1. The price of the sale is unusually inadequate Q: May a counterclaim be set up in a petition for declaratory relief
2. The vendor retains possession as a lessee
3. After expiration of the period to repurchase – there is extension A: Yes. It is a rule that there is nothing in the nature of a special civil action for
4. Purchaser retains for himself part of the purchase price declaratory relief that proscribes the filing of a counterclaim based on the same
5. When the vendor binds himself to pay the taxes on the thing sold transaction, deed or contract subject to the complaint.
6. Other instances
Review on Judgement and Final Orders or Resolutions of the
Q: What is the remedy if the consent of a party to a contract has
COMELEC and the COA
been procured by fraud, inequitable conduct, or accident?

Rule 64 Rule 65
A: Where the consent of a party to a contract has been procured by
Directed only to the judgments, Directed to any tribunal, board
fraud, inequitable conduct or accident, and an instrument was
final orders or resolutions of the or officers exercising judicial or
executed by the parties in accordance with the contract, what is
COMELEC and COA; quasi-judicial functions;
defective is the contract itself because of vitiation of consent. The
Must be filed within 30 days Must be filed within 60 days
remedy is not to bring an action for reformation of the instrument
from notice of judgment or from notice of judgment or

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resolution
If MR is denied, the aggrieved
party may file the petition
within the remaining period,
but which shall not be less than
5 days.
Distinguish the mode of review of judgment, final orders or resolutions of
COMELEC and COA from other tribunals, persons and officers
Rule 64 for COMELEC and
COA
Petition is based on questions of
law
It is a mode of appeal but the
petition used is Rule 65
Involves review of judgments,
final orders or resolutions of
COMELEC and COA
Filed within 30 days from notice
of judgment, final order or
resolution sought to be
reviewed
Does not stay the execution
unless SC shall direct otherwise
upon such terms as it may deem
just
The COMELEC and COA shall
be public respondents who are
impleaded in the action
The filing of MNT or MR, if
allowed under the procedural
rules of the Commission, shall
interrupt period fixed
The court is in the exercise of its
appellate jurisdiction and
power of review Petition for
certiorari is to be filed before
the SC
resolution
If MR is denied, the aggrieved
party will have another 60 days
within which to file the petition
counted from the notice of
denial.
Review of judgment, final
orders or resolutions of other
tribunals, persons and officer
Petition is based on questions of
law
It is a mode of appeal
Involves the review of the
judgment final orders or
resolutions of the CA,
Sandiganbayan, CTA, RTC or
other courts
Filed within 15 days from notice
of judgment, final order or
resolution appealed from
Stays the judgment or order
appealed from
The appellant and the appellee
are the original parties to the
action, and the lower court or
quasi-judicial agency is not
impleaded
Motion for reconsideration is not
required
The court is in the exercise of its
appellate jurisdiction and power
of review Petition for certiorari is
to be filed only with the Court of
Appeals
Interruption of the period to file: The filing of a motion for new trial or
reconsideration, IF ALLOWED under the procedural rules of the Commission
concerned
When the motion is denied:the aggrieved party may file the petition within the
remaining period
- but which shall not be less than 5 days in any event, reckoned from
notice of denial.
Docket and other lawful fees: pay to the clerk of court the docket and other
lawful fees and deposit the amount of P500.00 for costs.
Form of the petition:The petition shall be verified and filed in 18 legible copies.
Contents of the Petition:
 name the aggrieved party as petitioner
 shall join as respondents the Commission concerned and the person or
persons interested in sustaining the judgment, final order or resolution a
quo.
 The petition shall state the facts with certainty, present clearly the
issues involved, set forth the grounds and brief arguments relied upon
for review, and pray for judgment annulling or modifying the questioned
judgment, final order or resolution.
Note:Findings of fact of the Commission supported by substantial evidence shall
be final and non-reviewable.
 state the specific material dates showing that it was filed within the
period fixed herein
 shall contain a sworn certification against forum shopping
 accompanied by proof of service of a copy thereof on the Commission
concerned and on the adverse party, and of the timely payment of
docket and other lawful fees.
GROUNDS TO DISMISS THE PETITION
A. Failure to comply with the requirements
B. if it was filed manifestly for delay
C. the questions raised are too unsubstantial to warrant further
proceedings
Order to comment: If the SC finds the petition sufficient in form and substance, it
shall order the respondents to file their comments on the petition
When to file comment:within 10 days from notice

Mode of review: A judgment or final order or resolution of the COMELEC and the
COA may be brought by the aggrieved party to the Supreme Court on certiorari
under Rule 65
How: throughverifiedpetition
Failure:the Court may dismiss the petition outright.
Note: No other pleading may be filed by any party unless required or allowed by
the Court.

Issues: question of law or want of jurisdiction Effect of filing petition for certiorari: shall not stay the execution of the
judgment or final order or resolution sought to be reviewed,
Time to file petition: within 30 days from notice of the judgment or final order or - Unless the SC shall direct otherwise upon such terms as it may deem
resolution sought to be reviewed. just.

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Submission for decision: the case shall be deemed submitted for decision upon the
filing of the comments on the petition, or of such other pleadings or papers as may
be required or allowed, or the expiration of the period to do so.
- Unless the Court sets the case for:
 oral argument,
 requires the parties to submit memoranda
Q: Where shall be a decision of the Civil Service Commission be
appealed
A: It shall be appeals to the Court of Appeals which has exclusive
appellate jurisdiction over all judgments or final orders of such
commission.
Q: May the prevailing party in an election protest file a motion for
execution pending appeal?
A: YES because the filing of a petition for certiorari from a judgment
or final order of the COMELEC shall not stay the execution of the
judgment or order sought to be reviewed, unless ordered otherwise
The COMELEC can grant execution pending appeal in the exercise
of its appellate jurisdiction
Certiorari, Prohibition, Mandamus
Petition for certiorari:
When any tribunal, board or officer exercising judicial or quasi-judicial functions
has acted:
 without or in excess its or his jurisdiction, or
 with grave abuse of discretion amounting to lack or excess of
jurisdiction, and
 there is no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law
a person aggrieved thereby may file a verified petition in the proper court, alleging
the facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and
pertinent thereto, and a sworn certification of non-forum shopping as provided in
the third paragraph of section 3, Rule 46. (1a)
Section 2. Petition for prohibition. — When the proceedings of any tribunal,
corporation, board, officer or person, whether exercising judicial, quasi-judicial or
ministerial functions, are without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no
appeal or any other plain, speedy, and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered
commanding the respondent to desist from further proceedings in the action or
matter specified therein, or otherwise granting such incidental reliefs as law and
justice may require.
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The petition shall likewise be accompanied by a certified true copy of the
judgment, order or resolution subject thereof, copies of all pleadings and
documents relevant and pertinent thereto, and a sworn certification of non-forum
shopping as provided in the third paragraph of section 3, Rule 46. (2a)
Section 3. Petition for mandamus. — When any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use and enjoyment of a right or office to
which such other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and praying
that judgment be rendered commanding the respondent, immediately or at some
other time to be specified by the court, to do the act required to be done to protect
the rights of the petitioner, and to pay the damages sustained by the petitioner by
reason of the wrongful acts of the respondent.
The petition shall also contain a sworn certification of non-forum shopping as
provided in the third paragraph of section 3, Rule 46. (3a)
Section 4. When and where petition filed. — The petition shall be filed not later
than sixty (60) days from notice of the judgment, order or resolution. In case a
motion for reconsideration or new trial is timely filed, whether such motion is
required or not, the sixty (60) day period shall be counted from notice of the denial
of said motion.
The petition shall be filed in the Supreme Court or, if it relates to the acts or
omissions of a lower court or of a corporation, board, officer or person, in the
Regional Trial Court exercising jurisdiction over the territorial area as defined by
the Supreme Court. It may also be filed in the Court of Appeals whether or not the
same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of
its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial
agency, unless otherwise provided by law or these Rules, the petition shall be filed
in and cognizable only by the Court of Appeals.
No extension of time to file the petition shall be granted except for compelling
reason and in no case exceeding fifteen (15) days. (4a) (Bar Matter No. 803, 21 July
1998; A.M. No. 00-2-03-SC)
Section 5. Respondents and costs in certain cases. — When the petition filed
relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal,
corporation, board, officer or person, the petitioner shall join, as private
respondent or respondents with such public respondent or respondents, the
person or persons interested in sustaining the proceedings in the court; and it shall
be the duty of such private respondents to appear and defend, both in his or their
own behalf and in behalf of the public respondent or respondents affected by the
proceedings, and the costs awarded in such proceedings in favor of the petitioner
shall be against the private respondents only, and not against the judge, court,
quasi-judicial agency, tribunal, corporation, board, officer or person impleaded as
public respondent or respondents.
Unless otherwise specifically directed by the court where the petition is pending,
the public respondents shall not appear in or file an answer or comment to the
petition or any pleading therein. If the case is elevated to a higher court by either
party, the public respondents shall be included therein as nominal parties.
However, unless otherwise specifically directed by the court, they shall not appear
or participate in the proceedings therein. (5a)
86
Section 6. Order to comment. — If the petition is sufficient in form and substance
to justify such process, the court shall issue an order requiring the respondent or Elective Office Appointive Office
respondents to comment on the petition within ten (10) days from receipt of a copy Issue: eligibility of the respondent Issue: validity of the
thereof. Such order shall be served on the respondents in such manner as the court appointment
may direct together with a copy of the petition and any annexes thereto. Occupant declared Court will oust the person
ineligible/disloyal will be illegally appointed and will
In petitions for certiorari before the Supreme Court and the Court of Appeals, the unseated but petitioner will not order the seating of the person
provisions of section 2, Rule 56, shall be observed. Before giving due course thereto, be declared the rightful occupant who was legally appointed and
the court may require the respondents to file their comment to, and not a motion to of the office. entitled to the office.
dismiss, the petition. Thereafter, the court may require the filing of a reply and such
other responsive or other pleadings as it may deem necessary and proper. (6a) Distinguish quo warranto under Rule 66 from quo warranto under Omnibus
Election Code:
Section 7. Expediting proceedings; injunctive relief. — The court in which the
petition is filed may issue orders expediting the proceedings, and it may also grant a Quo Warranto In
temporary restraining order or a writ of preliminary injunction for the preservation Quo Warranto Under Rule 66
Electoral Proceedings
of the rights of the parties pending such proceedings. The petition shall not
Prerogative writ by which the To contest the right of an
interrupt the course of the principal case unless a temporary restraining order or a
government can call upon any person elected public officer to
writ of preliminary injunction has been issued against the public respondent from
to show by what title he holds a hold public office.
further proceeding in the case. (7a)
public office or exercises a public
franchise.
Section 8. Proceedings after comment is filed. — After the comment or other
Grounds: Grounds:
pleadings required by the court are filed, or the time for the filing thereof has
1. usurpation ineligibility or
expired, the court may hear the case or require the parties to submit memoranda. If
2. forfeiture disqualification to hold the
after such hearing or submission of memoranda or the expiration of the period for
3. illegal association office
the filing thereof the court finds that the allegations of the petition are true, it shall
Presupposes that the respondent is Petition must be filed
render judgment for the relief prayed for or to which the petitioner is entitled.
already actually holding office and within 10 days from the
action must be commenced within 1 proclamation of the
The court, however, may dismiss the petition if it finds the same to be patently
year from cause of ouster or from the candidate.
without merit, prosecuted manifestly for delay, or that the questions raised therein
time the right of petitioner to hold
are too unsubstantial to require consideration. (8a)
office arose.
The petitioner must be the May be filed by any voter
Section 9. Service and enforcement of order or judgment. — A certified copy of the
government or the person entitled to even if he is not entitled to
judgment rendered in accordance with the last preceding section shall be served
the office and who would assume the the office.
upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person
same if his action succeeds.
concerned in such manner as the court may direct, and disobedience thereto shall
be punished as contempt. An execution may issue for any damages or costs awarded Person adjudged entitled to the office Actual or compensatory
in accordance with section 1 of Rule 39. (9a) may bring a separate action against damages are recoverable in
the respondent to recover damages. quo warrantoproceedings
under the OEC.
Quo Warranto

Who files:
A proceeding or writ issued by the court to determine:
1. Solicitor General or Public Prosecutor
 the right to use an office, position or franchise and
2. A person claiming to be entitled to public office
 to oust the person holding or exercising such office, position or franchise
if his right is unfounded or if a person performed acts considered as
 Leave of court is sine quo non
grounds for forfeiture of said exercise of position, office or franchise.
 Must be set for hearing
 The respondent must be duly notified
How to commence the action: by a verified petition brought in the name of the
Republic of the Philippines
Classification of quo warranto:
1. Mandatory
Against who:
2. Discretionary
a. A person who usurps, intrudes into, or unlawfully holds or exercises a public
office, position or franchise;
When Solicitor General or public prosecutor must commence action:
b. A public officer who does or suffers an act which, by the provision of law,
(MANDATORY)
constitutes a ground for the forfeiture of his office; or
1. When directed by the President of the Philippines
c. An association which acts as a corporation within the Philippines without
2. When upon complaint
being legally incorporated or without lawful authority so to act.
3. when he has good reason to believe that any case specified in the
preceding section can be established by proof
Distinguish quo warranto in elective office from an appointive office.

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When Solicitor General or public prosecutor may commence action with
permission of court: (DISCRETIONARY)
 At the request and upon the relation of another person;
 but the officer bringing it may first require an indemnity for the expenses
and costs of the action
o Amount: approved by and to be deposited in the court by the
person at whose request and upon whose relation the same is
brought.
What Court: the court in which the action is to be commenced
Hearing: the court shall direct that notice be given to the respondent so that he may
be heard in opposition thereto
When an individual may commence such an action: A person claiming to be
entitled to a public office or position usurped or unlawfully held or exercised by
another may bring an action therefor in his own name.
Contentsof petition against usurpation:
 set forth the name of the person who claim to be entitled thereto, if any
 with an averment of his right to the same
 that the respondent is unlawfully in possession thereof.
Parties: All persons who claim to be entitled to the public office, position or
franchise may be made parties, and their respective rights to such public office,
position or franchise determined, in the same action.
3. Such further judgment may be rendered determining the respective
rights in and to the public office, position or franchise of all the parties
to the action as justice requires.
Judgment in favor of the complaint to be entitled to the public office: he may,
after taking the oath of office and executing any official bond required by law,
1. Take upon himself the execution of the office
2. may immediately thereafter demand of the respondent all the books and
papers in the respondent's custody or control appertaining to the office
to which the judgment relates.
Respondent refuses or neglects to deliver any book or paper pursuant to such demand, he may be
punished for contempt as having disobeyed a lawful order of the court.
3. The person adjudged entitled to the office may also bring action against
the respondent to recover the damages sustained by such person by
reason of the usurpation.
Prescriptive period of the action: must be commenced within 1 year after the
cause of such ouster, or the right of the petitioner to hold such office or position,
arose
Prescriptive period of an action for damages: must be commenced within 1 year
after the entry of the judgment establishing the petitioner's right to the office in
question.
Expropriation

Venue:only in the: It is the procedure in enforcing the right of eminent domain.

1. Supreme Court When proper:
2. the Court of Appeals 1. The owner refuses to sell
3. in the RTC exercising jurisdiction over the territorial area where the 2. When the latter agrees, agreement to the price cannot be reached.
respondent or any of the respondents resides
4. But when the Solicitor General commences the action, it may be brought Requisites of a valid expropriation:
in a RTC in the City of Manila, in CA, or in the SC. 1. Due process of law
2. Payment of just compensation
Priority: the action may be given precedence over any other civil matter pending in 3. Taking must be for public use
the court.
How to commence: by the filing of a verified complaint
Q: A group of businessmen formed an association in Cebu City
calling itself Cars Co. to distribute/sell cars in said city. It did not Note: it is the actual filing of the complaint which binds the land
incorporate itself under the law nor did it have any government  However the owner of the land may still dispose the property
permit or license to conduct its business as such. The Solicitor  The grantee would merely be substituted in his place and holds the land
General filed before the RTC in Manila a verified petition for quo subject of the result of the action
warranto questioning and seeking to stop the operations of Cars Co.
The latter filed a motion to dismiss the petition on the ground of Contents:
improper venue claiming that its main office and operations are in 1. shall state with certainty the right and purpose of expropriation
Cebu City and not in Manila. Is the contention of Cars Co. correct? 2. describe the real or personal property sought to be expropriated
Why? 3. join as defendants all persons owning or claiming to own, or occupying,
any part thereof or interest therein, showing, so far as practicable, the
A: No. As expressly provided in the Rules, when the Solicitor separate interest of each defendant.
General commences the action for quo warranto, it may be brought 4. Averment shall be made in the complaint for the following
in a Regional Trial Court in the City of Manila, as in the case, in the a. If the title to any property sought to be expropriated appears
CA or in the SC (Sec. 7, Rule 66). (2001 Bar Question) to be in the Republic of the Philippines, although occupied by
private individuals; or
Judgment where usurpation found: b. If the title is otherwise obscure or doubtful so that the
1. Respondent be ousted and altogether excluded therefrom plaintiff cannot with accuracy or certainty specify who are
2. That the petitioner or relator, as the case may be, recover his costs. the real owners.
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 shall deliver its 5-hectare lot in Sta. Rosa, Laguna originally
Properties that are subject to expropriation: intended as a residential subdivision for the Manila City Hall
All properties can be expropriated, except money and choses of action. employees. Explain.

Choses of action – right to personal things of which the owner has not the possession, A: Yes, Congress may enact a law to expropriate property but it
but merely a right of action for their possession cannot limit just compensation. The determination of just
compensation is a judicial function and Congress may not supplant
Jurisdiction: RTC or prevent the exercise of judicial discretion to determine just
compensation. Under Sec. 5, Rule 67 of the Rules of Court, the
TWO STAGES ascertainment of just compensation requires the evaluation of 3
commissioners. (2006 Bar Question)
1. Determination of the authority of the plaintiff to exercise the power of
eminent domain and the propriety of the exercise in the context of the Entry of plaintiff:
facts involved. 1. Upon the filing of the complaint or at any time thereafter
2. after due notice to the defendant
It will end at the order of issuance of expropriation 3. he deposits with the authorized government depositary
4. tender, or payment with legal interest from taking of possession of the
2. Determination of just compensation though the court appointed property, of compensation fixed by the judgment and payment of costs
commissioners by plaintiff.

Q: City of Iloilo (petitioner) represented by Mayor Treñas filed a See: RA 8974

complaint for eminent domain against Javellana seeking to
expropriate two parcels of land. Mayor Treñas filed a motion for Form of deposit:Such deposit shall be in:
issuance of writ of possession alleging that it had deposited 10% of  money,
the amount of compensation of which the court issued. A writ of  certificate of deposit of a government bank of the Republic of the
possession was subsequently issued, and petitioner was able to take Philippines payable on demand to the authorized government
physical possession of the properties. After which, the depositary.
expropriation proceedings remained dormant. 16 years later,
Javellana filed an ex parte motion/manifestation, where he alleged Note: once the preliminary deposit has been made, the expropriator is entitled to a
that when he sought to withdraw the money, he discovered that no writ of possession as a matter of right
deposit was made. Thus, Javellana filed a complaint for recovery of
possession, fixing and recovery of rental and damages. The City of Amount of deposit:
Iloilo argues that Javellana could no longer bring an action for  Real Property – tax return
recovery since the subject property was already taken for public  Personal Property - fixed by the court
use. The trial court in its orders and amended orders maintained
that the assailed orders issued by it were interlocutory in character Note: the preliminary deposit is necessary if the petitioner desires to enter the
and as such are always subject to modification and revision by the land upon its institution of action
court anytime. Is the order of expropriation final?
Defenses and objections:
A: Expropriation proceedings have two stages. The first phase ends NO objections: the defendant may file and serve a notice of appearance and a
with an order of dismissal, or a determination that the property is to manifestation to that effect, specifically designating or identifying the property in
be acquired for a public purpose. The second phase consists of the which he claims to be interested, within the time stated in the summons.
determination of just compensation. Both orders, being final, are - Thereafter, he shall be entitled to notice of all proceedings affecting the
appealable. same.

An order of condemnation or dismissal is final, resolving the

There are objections:he shall serve his answer within the time stated in the summons.
question of whether or not the plaintiff has properly and legally
exercised its power of eminent domain. Once the first order
Contents of the Answer:
becomes final and no appeal thereto is taken, the authority to
1. Shall specifically designate or identify the property in which he claims
expropriate and its public use can no longer be questioned. Thus, it
to have an interest
has become final, and the petitioner’s right to expropriate the
2. state the nature and extent of the interest claimed
property for a public use is no longer subject to review.
3. adduce all his objections and defenses to the taking of his property

Q: May Congress enact a law providing that a 5,000 square meter Prohibited:No counterclaim, cross-claim or third-party complaint shall be alleged
lot, a part of the UST compound in Sampaloc, Manila, be or allowed in the answer or any subsequent pleading.
expropriated for the construction of a park in honor of former City
Mayor ArsenioLacson? As compensation to UST, the City of Manila Note: A defendant waives all defenses and objections not so alleged

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Remedy of the defendant if the answer omits some defenses:
 Amendment to the answer
 to be made not later than 10 days from the filing thereof.
Exception:at the trial of the issue of just compensation whether or not a defendant
has previously appeared or answered, he may present evidence as to the amount of
the compensation to be paid for his property, and he may share in the distribution
of the award.
Order of Default: defendant cannot be declared in default. Failure to fle an answer
would not bar the court from rendering judgment on the right of expropriation
without prejudice to the defendant’s right to present evidence on just compensation
and to share in the distribution of the award
ORDER OF EXPROPRIATION
When:
1. If the objections to and the defenses against the right of the plaintiff to
expropriate the property are overruled, or
2. when no party appears to defend as required by this Rule
Action against the order:may be appealed by any party aggrieved by record on
appeal
Effect of the appeal:Such appeal, however, shall not prevent the court from
determining the just compensation to be paid.
Note: After the rendition of such an order, the plaintiff shall not be permitted to
dismiss or discontinue the proceeding except on such terms as the court deems just
and equitable.
Reversal of the decision on appeal:if the appellate court determines that plaintiff
has no right of expropriation, judgment shall be rendered ordering the RTC to
forthwith:
 enforce the restoration to the defendant of the possession of the
property, and
 to determine the damages which the defendant sustained and may
recover by reason of the possession taken by the plaintiff
JUST COMPENSATION
It is the full and equivalent of the property sought to be expropriated.
 The measure is not the taker’s gain but the owner’s loss
 To be just, it must be fair not only to the owner but also to the taker
The payment of just compensation to be determined as of the date of:
1. the taking of the property or
2. the filing of the complaint, whichever came first.
How to determine just compensation: first ascertain the market value of the
property then add consequential damages less consequential benefits
Effect of nonpayment of just compensation:
 does not entitled the private owner to recover possession
 except non Payment within 5 years
APPOINTMENT OF COMMISSIONERS
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Ascertainment of compensation: the court shall appoint not more than 3
competent and disinterested persons as commissioners
 To ascertain and report to the court the just compensation for the
property sought to be taken.
Contents of the order of appointment: it shall:
1. Designate the time
2. place of the first session of the hearing to be held by the commissioners
3. specify the time within which their report shall be submitted to the
court.
Objections to the appointment: shall be filed with the court within 10 days from service
- shall be resolved within 30 days after all the commissioners shall have
received copies of the objections.
Proceedings by commissioners:
 Before entering upon the performance of their duties
o the commissioners shall take and subscribe an oath that they
will faithfully perform their duties as commissioners
The oath shall be filed in court with the other proceedings in the case.
 Evidence may be introduced by either party before the commissioners
who are authorized to administer oaths on hearings before them
 The commissioners shall, unless the parties consent to the contrary,
after due notice to the parties, to attend, view and examine the property
sought to be expropriated and its surroundings, and may measure the
same,
o after which either party may, by himself or counsel, argue the
case.
 The commissioners shall assess the consequential damages to the
property not taken and deduct from such consequential damages the
consequential benefits to be derived by the owner from the public use or
purpose of the property taken, the operation of its franchise by the
corporation or the carrying on of the business of the corporation or
person taking the property.
o But in no case shall the consequential benefits assessed
exceed the consequential damages assessed, or the owner be
deprived of the actual value of his property so taken.
Report by commissioners and judgment thereupon:
 The court may order the commissioners to report when any particular
portion of the real estate shall have been passed upon by them, and may
render judgment upon such partial report,
 Direct the commissioners to proceed with their work as to subsequent
portions of the property sought to be expropriated, and may from time
to time so deal with such property.
 The commissioners shall make a full and accurate report to the court of
all their proceedings, and such proceedings shall not be effectual until
the court shall have accepted their report and rendered judgment in
accordance with their recommendations.
When to file the report:within 60 days from the date the commissioners were notified
of their appointment
- which time may be extended in the discretion of the court.
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Objections to the finding of the report:Upon the filing of such report, the clerk of the court 4. date of the note or other documentary evidence of the obligation secured
shall serve copies thereof on all interested parties, with notice that they are allowed by the mortgage, the amount claimed to be unpaid thereon; and
10 days within which to file objections to the findings of the report 5. the names and residences of all persons having or claiming an interest in
the property subordinate in right to that of the holder of the mortgage
Action upon commissioners' report:
Causes of Action in a Foreclosure Suit:
When: Upon the expiration of the period of 10 day period to file objection, or even  non-payment of the mortgage loan
before the expiration of such period but after all the interested parties have filed  violation of some of the conditions therein
their objections to the report or their statement of agreement therewith
Defendants that must be joined:
Court’s Action: 1. the persons obligated to pay the mortgage debt
1. The court may, after hearing, accept the report and render judgment in 2. the persons who won, occupy, or control the mortgage premises
accordance therewith, 3. the transferee or grantee of the property
2. for cause shown, it may recommit the same to the commissioners for 4. the second mortgagee or junior encumbrancer, or any person claiming a
further report of facts, or right or interest in the property subordinate to the mortgage sought to
3. it may set aside the report and appoint new commissioners; or be foreclosed
4. it may accept the report in part and reject it in part and it may make such
order or render such judgment But if the action is by junior encumbrancer – the first mortgagee may also be joined
as defendant
Uncertain ownership; conflicting claims:
1. If the ownership of the property taken is uncertain, or Effect if the junior encumbrancer is not impleaded: His equity or right of
2. there are conflicting claims to any part thereof redemption is not affected or barred by the judgment of the court
- only a necessary party not an indispensable party
The court may order any sum or sums awarded as compensation for the property to
be paid to the court for the benefit of the person adjudged in the same proceeding to Judgment on foreclosure: It is the judgment of the court ordering the debtor to
be entitled thereto. pay
 within a period not less than 90 days nor more than 120 days from the
But the judgment shall require the payment of the sum or sums awarded to either entry of judgment after ascertaining the amount due to the plaintiff
the defendant or the court before the plaintiff can enter upon the property, or retain
it for the public use or purpose if entry has already been made. Foreclosure sale: When the defendant fails to pay the amount of the judgment
within the period specified therein, the court, upon motion, shall order the
Rights of plaintiff upon judgement and payment: property to be sold in the manner and under the provisions of Rule 39 and other
1. enter upon the property expropriated and to appropriate the same for regulations governing sales of real estate under executions
public use or purpose
2. to retain possession already previously made Effect of sale of mortgaged property: the purchaser in a foreclosure sale is
entitled to a writ of possession – ministerial upon the court
When defendant refuse to received the amount tendered:  he is not required to bring a separate action for possession after the
 deposited in court redemption period has expired
 effect as actual payment
Right to Notice of Sale of mortgage:
Foreclosure of Real Estate Mortgage
The mortgagor does not have the right to a notice of sale after his failure to pay the
Real Estate Mortgage: debt
 An accessory contract executed by a debtor in favor of a creditor as
security for principal obligation However: he is entitled to the notice of confirmation of sale

Foreclosure of REM: The order of confirmation is appealable.

It is the remedy used for the satisfaction of any monetary obligation, which a person
owes to another, by proceeding against the property used to secure said obligation.
Jurisdiction: RTC of the province where the land or any part thereof is located
Contents of a complaint for foreclosure of REM:
1. date and due execution of the mortgage;
2. the names and residences of the mortgagor and the mortgagee;
3. a description of the mortgaged property;
Effect of order of confirmation: it shall operate to divest the rights in the
property of all the parties to the action and to vest their rights in the purchaser,
subject to such rights of redemption as may be allowed by law
 title retroacts to the date of the sale
Remedy if the mortgagor refuses to vacate: ask for a writ of possession
Disposition of the proceeds of the sale done:
1. The proceeds of the sale of the mortgaged property shall, after deducting
the costs of the sale, be paid to the person foreclosing the mortgage

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 2. When there shall be any balance or residue after paying off the mortgage 1. Judicial Foreclosure
debt due, the same shall be paid to junior encumbrances in the order of 2. Extra Judicial Foreclosure
their priority.
3. If there be any further balance after paying them or if there be no junior Judicial Foreclosure Extrajudicial Foreclosure
encumbrances, the same shall be paid to the mortgagor or any person Governed by Rule 68 Governed by Act 3135
entitled thereto There is only an equity of Right of redemption exists
redemption except when the
Delinquency Judgement: mortgagee is a bank
Requires court intervention No court intervention necessary
It is the judgment rendered by the court holding the defendant liable for any unpaid Mortgagee need not be given Mortgagee is given a special power
balance due to the mortgagee if the proceeds from the foreclosure sale do not satisfy a special power of attorney. of attorney in the mortgage
the entire debt. contract to foreclose the mortgaged
property in case of default.
Instances when the court cannot render deficiency judgment:
1. Where the debtor-mortgagor is a non-resident and who at the time of the A mortgagee may bring a personal action for the amount due, instead of a
filing of the action for foreclosure and during the pendency of the foreclosure suit, in which case, he will be deemed to have waived his right to
proceedings was outside the Philippines, unless there is attachment proceed against the property in a foreclosure proceeding. (Movido v. RFC, G.R.
2. Mortgagor dies, mortgagee may file his claim with the probate court No. L-11990, May 29, 1959)
3. Mortgagee is a third person but not solidarily liable with the debtor
4. Case is covered by the Recto Law Equity of Redemption Right of Redemption
Right of the defendant Right of the debtor, his successor in
Q: Arlene borrowed P1 million from GAP Bank (GAP) secured by mortgagor to extinguish interest or any judicial creditor or
the titled land of her friend Gretchen who, however, did not the mortgage and retain judgment creditor of said debtor or
assume personal liability for the loan. Arlene defaulted and GAP ownership of the property any person having a lien on the
filed an action for judicial foreclosure of the real estate mortgage by paying the debt within property subsequent to the mortgage
impleading Arlene and Gretchen as defendants. The court 90-120 days after the entry of or deed of trust under which the
rendered judgment directing Arlene to pay the outstanding property is sold to redeem the
judgment or even after the
account of P1.5 million (principal plus interest) to GAP. No property within 1 year from the
foreclosure sale but prior to
appeal was taken by Arlene. Arlene failed to pay the judgment
confirmation registration of the Sheriff’s certificate of
debt within the period specified in the decision. At the
foreclosure sale
foreclosure sale, the land was sold to GAP for P1.2 million. The
Governed by Rule 68 Governed by Secs. 29-31, Rule 39
sale was confirmed by the court, and the confirmation of the sale
was registered with the Registy of Deeds on January 5, 2002. On
There is no right of redemption in judicial foreclosure sale after the confirmation of
January 10, 2003, GAP filed an ex-parte motion with the court for
sale except those granted by banks or banking institutions in favor of non-judicial
the issuance of a writ of possession to oust Gretchen from the
persons as provided by the General Banking Act (Government Insurance System v.
land. It also filed a deficiency claim for P800,000 against Arlene
CFI of Iloilo, G.R. No. 45322, July 5, 1989).
and Gretchen. The deficiency claim was opposed by Arlene and
Gretchen.
In extrajudicial foreclosure, the mortgagor has the right to redeem the property
1. Resolve the motion for the issuance of a writ of possession.
within one year from the registration of the deed of sale. However, Sec. 47 of the
2. Resolve the deficiency claim of the bank.
General Banking Act provides that in case of extrajudicial foreclosure, juridical
persons shall have the right to redeem the property until, but not after, the
A:
registration of the certificate of foreclosure sale which in no case shall be more
1. In judicial foreclosure by banks such as GAP, the mortgagor or
than 3 months after foreclosure, whichever is earlier
debtor whose real property has been sold on foreclosure has the
right to redeem the property within 1 year after the sale (or
registration of the sale). However, under Sec. 47 of the General Partition / ActioCommuniDividendo
Banking Law of 2000, the purchaser at the auction sale has the
right to obtain a writ of possession after the finality of the order It is a process of dividing and assigning property owned in common among the
confirming sale. The motion for writ of possession, however, various co-owners thereof in proportion to their respective interests in said
cannot be filed ex parte. There must be a notice of hearing. property.

2. The deficiency claim of the bank may be enforced against the It presupposes the existence of a co-ownership over a property between two or
mortgage debtor Arlene, but it cannot be enforced against more persons.
Gretchen, the owner of the mortgaged property, who did not
assume personal liability of the loan. (2003 Bar Question) How initiated: through complaint

Modes of Foreclosure: Requisites:

1. Right to compel the partition;

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 2. Complaint must state the nature and extent of plaintiff's title and a
description of the real estate of which partition is demanded; and
3. All other persons interested in the property must be joined as defendants
Instances when a co-owner may not demand partition:
1. There is an agreement among the co-owners to keep the property
undivided for a certain period of time but not exceeding 10 years
2. When the partition is prohibited by the donor or testator for a period not
exceeding 20 years
3. When partition is prohibited by law
4. When property is not subject to physical division and to do so would
render it unserviceable for the use for which it is intended
5. When the condition imposed upon voluntary heirs before they can
demand partition has not yet been fulfilled
Who file: The plaintiff is a person who is supposed to be a co-owner of the
property or estate sought to be partitioned.
Who should be the defendant: The defendants are all the co-owners.
Effect of non-inclusion of a co-owner in an action for partition:
1. Before judgment – not a ground for a motion to dismiss.
 The remedy is to file a motion to include the party.
2. After judgment – makes the judgment therein void because co-owners
are indispensable parties.
Who may intervene:
Creditors or assignees of co-owners may intervene and object to a partition affected
without their concurrence.
 But they cannot impugn a partition already executed unless there has
been fraud or in case it was made notwithstanding a formal opposition
presented to prevent it.
Jurisdictional Facts:
1. the nature and extent of his title
2. an adequate description of the real estate of which partition is demanded
3. shall join as defendants all other persons interested in the property
4. He must also include a demand for the accounting of the rents, profits
and other income from the property which he may be entitled to.
Note: These cannot be demanded in another action because they are parts of the
cause of action for partition.
When allegations of the complaint allege that the plaintiff asserts exclusive
ownership: the nature of the action is not one for partition
 It is an action for recovery of property
TWO STAGES
First Stage: proprietary of the partition
 Whether co-ownership exists
Second Stage: Partition proper
 How to actually partition of the property and accounting
Modes of partition:
1. By agreement of the parties
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The parties may make the partition among themselves by proper instruments of
conveyance, if they agree among themselves.
 the court shall then confirm the partition so agreed upon by all of the
parties,
 such partition, together with the order of the court confirming the same,
shall be recorded in the registry of deeds of the place in which the
property is situated
2. By judicial proceedings under Rule 69
Order of Partition: it is an order to directs the parties or co-owners to partition
the property
When court can issue the order of partition: the court shall determine whether
or not the plaintiff is truly a co-owner and there is co-ownership and that partition
is not legally proscribed, the court will issue an order of partition.
PARTITION BY COMMISSIONERS;
Nature of appointment: The appointment of commissioners is mandatory unless
there is an extrajudicial partition between the parties
Appointment of Commissioners: the court shall appoint not more than 3
commissioners of competent and disinterested persons to make partition.
Duties of the Commissioners:
a. They shall make full and accurate report to the court of all their
proceedings as to the partition.
b. The assignment of real estate to one of the parties
c. The sale of the same
Assignment or sale of real estate by commissioners:
When it is made to appear to the commissioners that the real state, or a portion
thereof, cannot be divided without prejudice to the interests of the parties: the court
may order it assigned to one of the parties willing to take the same
 provided he pays to the other parties such amount as the commissioners
deem equitable
Unless one of the interested parties asks that the property be sold instead of being
so assigned
 in which case the court shall order the commissioners to sell the real
estate at public sale under such conditions and within such time as the
court may determine
Commissioner’s Report:
They shall make full and accurate report to the court of all their proceedings as to
the partition.
 Upon the filing of such report, copies of which shall be served to the
clerk of court upon all interested parties with notice that they are
allowed 10 days within which to file objections to the findings of the
report, if they so desire.
Action to the report: The court may upon hearing:
 Accept the report and render judgment in accordance with the same
 may recommit to the commissioners for further proceedings, or
93
  reject the report and render judgment that shall effectuate a fair and just How initiated: by a verified complaint
partition
Requisites of a valid unlawful detainer
Judgment: 1. Possession of any land or building is unlawfully withheld from a lessor,
vendor, vendee, or other person after the expiration or termination of
1. if actual partition of property is made, the judgment shall state definitely the right to hold possession by virtue of any contract express or implied;
a. the metes and bounds and adequate description and 2. Action is brought within 1 year after such unlawful deprivation or
b. the particular portion of the real estate assigned to each party withholding of possession; and
2. if the whole property is assigned to one of the parties upon his paying to 3. Demand to pay or comply with the conditions of the lease and to vacate
the others the sum or sums ordered by the court, the judgment shall state is made upon the lessee.
the fact of such payment, and of the assignment of the real estate to the
party making the payments NOTE: formal contract is not a prerequisite
3. and if the property is sold and the sale confirmed by the court, the  Implied contracts are covered by ejectment proceedings
judgement shall estate  Possession by tolerance creates an implied promise to vacate the
a. the name of the purchaser premises upon the demand of the owner
b. a definite description of the parcels of real estate sold to each
purchaser Forcible Entry (Detentacion) Unlawful Detainer
(Desahucio)
Stages of the partition that are subject to appeal: Possession of the land by the Possession is inceptively lawful
1. order determining the proprietary of the partition defendant is unlawful from the but it becomes illegal by reason
2. judgment as to the fruits and income of the property beginning as he acquires of the termination of his right to
3. judgment of partition possession by FISTS the possession of the property
under his contract with the
Mode of appeal: record on appeal plaintiff.
No previous demand for the Demand is jurisdictional if the
PRECRIPTION OF ACTION defendant to vacate the premises is ground is non-payment of
necessary. rentals or failure to comply
General Rule: action does not prescribed with the lease contract.
The plaintiff must prove that he The plaintiff must prove that he
Exception: where there exist a clear repudiation of the co-ownership and the co- was in prior physical possession of was in prior physical possession
owners are apprised of the claim of adverse and exclusive ownership the premises until he was deprived of the premises until he was
thereof by the defendant. deprived thereof by the
defendant.
Forcible Entry and Unlawful Detainer The 1 year period is generally Period is counted from the date
counted from the date of actual of last demand or last letter of
FORCIBLE ENTRY entry on the land. demand.

It is entry effected by force, intimidation, threat, strategy, or stealth; the action is to Exception: when entry is by stealth,
recover possession founded upon illegal possession from the beginning. the period must be counted from
the demand to vacate upon
How initiated: by a verified complaint learning of the stealth

Requisites: ACTIONS AVAILABLE TO RECOVER POSSESSION OF REAL PROPERTY

1. A person is deprived of possession of any land or building
2. by force, intimidation, threat, strategy, or stealth (FISTS) 1. Accioninterdictal
3. Action is brought within 1 year from the unlawful deprivation. 2. AccionPubliciana
3. AccionReinvidicatoria
Questions to be resolved
1. Who has actual possession over the real property; Accion Accion Accion
2. Was the possessor ousted therefrom within one year from the filing of Interdictal Publiciana Reinvindicatoria
the complaint by force, intimidation, strategy, threat or stealth; and Summary action for A plenary action for An action for the
3. Does the plaintiff ask for the restoration of his possession the recovery of physical the recovery of the real recovery of
possession where the right of possession ownership, which
UNLAWFUL DETAINER dispossession has not when the necessarily
lasted for more than 1 dispossession has includes the
It is unlawful detention by a person who has acquired possession rightfully, but year. lasted for more than 1 recovery of
who detains the property after the right to keep possession has ended. year. possession.

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All cases of forcible RTC has jurisdiction Same with  It has been ruled, however, that the demand upon a tenant may be oral
entry and unlawful if the value of the publiciana (Jakihaca vs. Aquino, 181 SCRA 67).
detainer irrespective property exceeds  Sufficient evidence must be adduced to show that there was indeed a
of the amount of P20,000 or P50,000 demand like testimonies from disinterested and unbiased witnesses.
damages or unpaid in MM.
rentals sought to be Effect non-compliance with the demand:
recovered should be MTC - value of the  After 15 days in case of land or 5 days in the case of building
brought to the MTC. property does not  The lessor may now proceed against the lessee
exceed the above
amounts. When prior demand in unlawful detainer is not required:
1. Where the purpose of the action is to terminate the lease by reason of
Ejectment cases: are summary proceedings expiry of its term
2. Where the purpose of the suit is not for ejectment but for the
Note: the amount of rents and damages claimed does not affect jurisdiction of the reinforcement of the terms of the contract
MTCs because the same are only incidental or accessory to the main action 3. When the defendant is not a tenant but a mere intruder
4. When there is stipulation dispensing with a demand
Effect of the pendency of an action involving ownership on an action for FEUD:
TACITA RECONDUCCION
It does not bar the filing of ejectment suit, nor suspend the proceedings. If at the end of the contract the lessee should continue enjoying the thing leased for
fifteen days with the acquiescence of the lessor, and unless a notice to the contrary
Who may institute the action: by either party has previously been given, it is understood that there is an implied
1. a person deprived of the possession of any land or building by FISTS, or new lease
2. a lessor, vendor, vendee, or other person against whom the possession of
any land or building is unlawfully withheld after the expiration or  When there is tacitareconduccion, the lessee cannot be deemed as
termination of the right to hold possession, by virtue of any contract, unlawfully withholding the property
express or implied, or
3. the legal representatives or assigns of any such lessor, vendor, vendee, or Can the court grant injunction while the case is pending? YES. To prevent the
other person defendant from committing further acts of dispossession against the plaintiff

Pleadings allowed: When to file: within 5 Days from the filing of the complain
 complaint  The court shall decide the motion within thirty (30) days from the filing
 compulsory counterclaim thereof
 cross claim
 and the answers thereto Instances may the court resolve issue of ownership:

Note: all pleadings must be verified
Action on the Complaint:the court may:
 dismiss the case outright on any grounds for dismissal of a civil action
 if no ground for dismissal is found, issue summons
When is demand necessary:
The requirement for a demand implies that the mere failure of the occupant to pay
rentals or his failure to comply with the conditions of the lease does not ipso facto
render his possession of the premises unlawful.
 It is the failure to comply with the demand that vests upon the lessor a
cause of action.
(1) When the issue of possession cannot be resolved without resolving the issue
of ownership; and
(2) The issue of ownership shall be resolved only to determine the issue of
possession
Note: the only issue involved in ejectment cases is as to who is entitled to the
physical and material possession of the premises – possession de facto and not de
jure
Judgment: conclusive only as to the possession of the property. Does not bind the
title or affect the ownership of the land or building
Binding of Judgment:

What constitute demand: General Rule: binding only upon the parties properly impleaded and given
1. To pay and to vacate – based on defendant’s failure to pay rentals opportunity to be heard
2. To comply and to vacate – defendant’s noncompliance with the terms
and conditions Exceptions:
1. A sublessee is bound by the judgment against the lessee – right to the
Form of demand: premises is merely subsidiary
 Written notice served upon the person found in the premises. 2. A guest or successor in interest, the members of the family of the lessee
 By posting a written notice on the premises if no person can be found or his servants or employees
thereon 3. Trespassers, squatters or agents of the defendant
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 4. Transferees pendente lite nad other privies of the defendant 2. Civil or Criminal, depending on the nature and effect of the
contemptuous act.
Amount of Monetary award:
 It is immaterial to the court’s jurisdiction Direct Contempt Indirect Contempt
Committed in the presence Not committed in the presence of
Damages caused by his loss of the use and possession of the premises – entitled to of or so near a court. the court.
damages. Summary in nature Punished after being charged and
heard
Damages caused on the land or building - claim it in an ordinary civil action. If committed against: IF COMMITTED AGAINST:
1. RTC – fine not exceeding 1. RTC – FINE NOT EXCEEDING
Stay of the execution of Judgement: P2,000 or imprisonment not P30,000 OR IMPRISONMENT
1. Perfect an appeal; exceeding 10 days or both. NOT EXCEEDING 6 MONTHS
2. File a supersedeas bond to pay for the rents, damages and costs accruing 2. MTC – fine not exceeding OR BOTH
down to the time of the judgment appealed from; When not required P200 or imprisonment not 2. MTC – fine not exceeding P5,000
a. Monetary award in the judgment of the inferior court has been exceeding 1 day, or both. or imprisonment not exceeding 1
deposited with the court month or both
b. Judgment if the lower court did not make findings with
respect to any amount in arrears, damages or cost against the Remedy:Certiorarior Remedy: Appeal (by notice of appeal)
defandant prohibition
3. Deposit periodically with the RTC, during the pendency of the appeal, Constructive contempt
Contempt in facie curiae
the adjudged amount of rent due under the contract or if there be no
contract, the reasonable value of the use and occupation of the premises
DIRECT CONTEMPT

Prohibited pleadings and motion under Rule 70:

Grounds:
1. Motion to dismiss the complaint except on the ground of lack of
1. A person guilty of misbehavior in the presence of or so near a court as to
jurisdiction over the subject matter, or failure to comply with section 12;
obstruct or interrupt the proceedings before the same:
2. Motion for a bill of particulars;
2. disrespect toward the court
3. Motion for new trial, or for reconsideration of a judgment, or for
3. offensive personalities toward others,
reopening of trial;
4. refusal to be sworn or to answer as a witness, or to subscribe an affidavit
4. Petition for relief from judgment;
or deposition when lawfully required to do so,
5. Motion for extension of time to file pleadings, affidavits or any other
paper;
INDIRECT CONTEMPT
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any
Grounds:
interlocutory order issued by the court;
a. Misbehavior of an officer of a court in the performance of his official duties or
8. Motion to declare the defendant in default;
in his official transactions;
9. Dilatory motions for postponement;
10. Reply;
b. Disobedience of or resistance to a lawful writ, process, order, or judgment of a
11. Third-party complaints;
court, including the act of a person who, after being dispossessed or ejected
12. Interventions
from any real property by the judgment or process of any court of competent
jurisdiction, enters or attempts or induces another to enter into or upon such
Contempt real property, for the purpose of executing acts of ownership or possession, or
in any manner disturbs the possession given to the person adjudged to be
It is a defiance of the authority, justice or dignity of the court; such conduct as tends entitled thereto;
to bring the authority and administration of the law into disrespect or to interfere
with, or prejudice litigant or their witnesses during litigation c. Any abuse of or any unlawful interference with the processes or proceedings
of a court not constituting direct contempt
Nature of contempt power: The power to punish for contempt is inherent in all
courts d. Any improper conduct tending, directly or indirectly, to impede, obstruct, or
degrade the administration of justice;
Dual Aspects:
1. Primarily, the proper punishment of the guilty party for his disrespect to e. Assuming to be an attorney or an officer of a court, and acting as such
the courts; and without authority;
2. Secondarily, his compulsory performance of some act or duty required of
him by the court and which he refuses to perform. f. Failure to obey a subpoena duly served;

Kinds of Contempt:
1. Direct or indirect, according to the manner of commission.

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g. The rescue, or attempted rescue, of a person or property in the custody of an
officer by virtue of an order or process of a court held by him. Amount:fixed by the court from which the appeal is taken
 conditioned that if the appeal be decided against him he will abide by
Note: Failure by counsel to inform the court of the death of his client constitutes and perform the judgment or final order.
indirect contempt
Q: Lawyer Mendoza, counsel for the accused in a criminal case, was
How initiated: cited for direct contempt by Judge Tagle and was sentenced to 10
 motupropio by the court against which the contempt was days imprisonment. Lawyer Mendoza was placed in prison
o requiring the respondent to show cause why he should not be immediately. Lawyer Mendoza manifested his readiness to post a
punished for contempt. bond and to appeal the order by certiorari to stay its execution but
 Verified petition with supporting particulars Judge Tagle said that the order is immediately executory. Is Judge
Tagle correct?
Procedural requisites:
1. A charge in writing to be filed; A: No. An order of direct contempt is not immediately executory or
2. An opportunity for the person charged to appear and explain his enforceable. The contemner must be afforded a reasonable remedy
conduct; and to extricate or purge himself of the contempt. Under Sec. 2, Rule 71,
3. To be heard by himself or counsel. of the Rules of Court, a person adjudged in direct contempt by any
court may not appeal therefrom, but may avail himself of the
Where charge to be filed: remedies of certiorari or prohibition. The execution of the judgment
 Against a RTC or a court of equivalent or higher rank, or against an shall be suspended pending resolution of such petition, provided
officer appointed by it such person files a bond fixed by the court which rendered the
o The charge may be filed with such court. judgment and conditioned that he will abide by and perform the
 against a lower court judgment should the petition be decided against him
o with the RTC of the place in which the lower court is sitting;
o but the proceedings may also be instituted in such lower court Q: May a non-party be held for contempt?
subject to appeal to the RTC of such place
A: No, unless he is guilty of conspiracy with any one of the parties
Penalties: in violating the court’s orders
If the contempt consists in the violation of a writ of injunction, temporary
restraining order or status quo order, he may also be ordered to make complete Criminal Contempt vs. Civil Contempt:
restitution to the party injured by such violation of the property involved or such
amount as may be alleged and proved. Criminal Contempt Civil Contempt
Punitive in nature Remedial in nature
Imprisonment until order obeyed — When the contempt consists in the refusal Purpose is to preserve the Purpose is to provide a remedy for
or omission to do an act which is yet in the power of the respondent to perform, he court’s authority and to an injured suitor and to coerce
may be imprisoned by order of the court concerned until he performs it. punish disobedience of its compliance with an order for the
orders preservation of the rights of
Indefinite incarceration may be resorted to where the attendant circumstances are private persons
such that the non-compliance with the court order is an utter disregard of the
Intent is necessary Intent is not necessary
authority of the court which has then no other recourse but to use its coercive
State is the real prosecutor Instituted by the aggrieved party
power.
or his successor or someone who
has pecuniary interest in the right
Proceeding when party released on bail fails to answer — When a respondent
to be protected
released on bail fails to appear on the day fixed for the hearing, the court may:
Proof required is proof Proof required is more than mere
 issue another order of arrest or
beyond reasonable doubt. preponderance of evidence
 may order the bond for his appearance to be forfeited and confiscated, or
If accused is acquitted, there If judgment is for respondent,
both;
can be no appeal. there can be an appeal

Measure of damages shall be the extent of the loss or injury sustained by the
Q: Ray, through Atty. Velasco, filed a complaint for quieting of title
aggrieved party by reason of the misconduct for which the contempt charge was
against Chiz. Chiz, however, interposed the defense that the
prosecuted, with the costs of the proceedings, and such recovery shall be for the
documents relied upon by Ray and Atty. Velasco were forged and
benefit of the party injured.
falsified. Finding that the said documents were indeed forged and
falsified, Judge Victoria cited Ray and Atty. Velasco for direct
Court may release respondent —when it appears that public interest will not be
contempt and ordered them to serve 10 days of detention at the
prejudiced by his release.
Municipal Jail. Ray and Atty. Velasco filed a motion for bail and a
motion to lift the order of arrest. But they were denied outright by
Suspension of the execution of the judgment: filing a bond is filed by the person
Judge Victoria. Is Judge Victoria correct?
adjudged in contempt

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A: No. Direct contempt is a contumacious act done facie curiae and
may be punished summarily without hearing. Indirect or
constructive contempt, in turn, is one perpetrated outside of the
sitting of the court.

Here the use of falsified and forged documents is a contumacious

act. However, it constitutes indirect contempt not direct contempt.
The imputed use of a falsified document, more so where the falsity
of the document is not apparent on its face, merely constitutes
indirect contempt, and as such is subject to such defenses as the
accused may raise in the proper proceedings.

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 8. Habeas corpus;
Special Proceedings 9. Change of name;
10. Voluntary dissolution of corporations;
General provisions 11. Judicial approval of voluntary recognition of minor natural children;
12. Constitution of family home;
Special proceedings: it is an application to establish the status or right of a party or 13. Declaration of absence and death;
a particular fact or any remedy other than an ordinary suit in a country of Justice 14. Cancellation of correction of entries in the civil registry.

Civil action vs. special proceedings The list of subject matters under section 1 of Rule 72 is not exclusive.
Special Proceedings Civil action - any petition which has for its Main purpose the establishment of a
Seeks to establish a status, a one by which a party sues status, right or a particular fact may be included as special proceedings
right or a particular fact another for the enforcement or
protection of a right, or the Example: petition for declaration of nullity of marriage
prevention or redress of a wrong
Generally commenced by Commence by a complaint Note: change of first name is not a special proceeding
application, petition or special
form of pleading Is liquidation proceeding an ordinary action or a special proceedings: A
petition for liquidation of an insolvent corporation should be classified as a special
It does not pray for affirmative proceeding and not an ordinary action. Such petition does not seek the enforce
relief for injury arising from a lemon or protection of a right nor the prevention or redress of a wrong against a
party's wrongful act or omission party.
nor state a cause of action that
can be enforced against any Note: A proceeding before the Shari'a district court for the settlement of the estate
person is deemed a special proceeding
It has no definite adverse party It has a definite adverse party
Are the rules in civil actions applicable in special proceedings?
- yes, in the absence of special provisions, the rules provided for in
Rule 72 - Subject Matter and Applicability of General Rules
ordinary actions shall be, as far as practicable, applicable in special
proceedings
Subject matter of special proceedings
1. Settlement of estate of deceased persons;
Provisions of the Rules of Court requiring a certification of non-forum shopping
2. Escheat;
for complaints and initiatory pleadings, a written explanation for non-personal
3. Guardianship and custody of children;
service and filing, and the payment of filing fees for money claims against an estate
4. Trustees;
would not in any way obstruct probate proceedings, thus, they are applicable to
5. Adoption;
special proceedings.
6. Rescission and revocation of adoption;
7. Hospitalization of insane persons;

SUMMARY:
Special Proceedings Jurisdiction Venue
Settlement of estate  In Metro Manila: Where the decease last resided at the time of death
o MTC: if the value of the estate does not
exceed Php 400,000 Nonresident - province in which he has estate
o RTC: if the value of the estate exceed
Php 400,000
 Outside metro Manila:
o MTC: if the value of the estate does not
exceed Php 300,000
o RTC: if the value of the estate exceed
Php 300,000
Escheat RTC Ordinary Escheat Proceeding: RTC

Resident: where the deceased last resided

Nonresident: where he had estate

Reversion of land to the State for violation of the

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 constitution: RTC where the land lie in whole or in part

Unclaimed deposits for 10 years – RTC of the province or

city where the bank is located
Guardianship
Rule in guardianship of Family court – in case of minors Family court or RTC of province or city where the minor
minors or incompetent actually resides

Guardianship over RTC of the province or city where incompetent

If the minor or incompetent resides in foreign country: in the
incompetent persons person last resided
family court or RTC of the province or city where his
who are not minors
property or any part thereof is situated
If resides in foreign country - in the family court of the
province or city where his property or any part
thereof is situated.
The rules of adoption
Under domestic adoption Family court of province or city where prospective
adoptive parents reside

If the petition is for rescission of adoption of the adoptee -

family court of the city or province where the
adoptee resides
Inter country adoption Family court having jurisdiction over. Place where
act the child resides or may be found

It may be filed directly with the intercountry

adoption board
Habeas corpus
For illegal confinement RTC RTC - where the person is detained (enforceable only
or detention within its territorial jurisdiction)
SC, CA, RTC have concurrent jurisdiction

MTC in case no RTC judge in the city or province

SB – in aid only of its appellate jurisdiction

Custody of minors Family courts have exclusive jurisdiction Where the petitioner resides or where the minor may be
found
A.M. 03-04-04-SC the petition may be filed with SC,
CA, or any of its members, and if so granted, the writ
shall be enforceable anywhere in the Philippines

Amparo SC, CA and Sandiganbayan, RTC If with RTC - the place where the threat, act or omission
was committed or any of its elements occurred

Habeas data SC, CA, and Sandiganbayan when the action If with the RTC
concerns public data or files of government offices 1. Where the petitioner resides
2. Where the respondent resides
3. That which has jurisdiction over the place
where data or information is gathered, collected
or stored, at the option of the petitioner

Change of name RTC of the province where the petitioner resides

Absentees RTC of place where absentee resided before his
disappearance
Cancellation or RTC of the provinces where the corresponding Local
correction of entries Civil Registrar of Place is located

© Gironella – Macadatar 2017 | Rule 72 - Subject Matter and Applicability of General Rules 100
Clerical error 1. Local civil registry office of the city or
municipality where the record being sought to
be corrected or changed is kept
2. Local civil registrar of the place where the
interested party is presently residing or
domiciled
3. Philippine consulate
Settlement of Estate of Deceased Persons
Rule 73 - Venue and Process
Special proceeding relative to the settlement of the estate of deceased person may
either be testate or intestate.
If the proceeding is testate - probate of a will is mandatory
When to file claims against the deceased person: should be filed during the
settlement proceedings of their estate.
Jurisdiction over probate proceeding: depends on the gross value of the estate of
the decedent
 In Metro Manila:
o MTC: if the value of the estate does not exceed Php 400,000
o RTC: if the value of the estate exceed Php 400,000
 Outside metro Manila:
o MTC: if the value of the estate does not exceed Php 300,000
o RTC: if the value of the estate exceed Php 300,000
Resides: the personal, actual or physical habitation of a person, actual residence of
place of abode
- it signifies physical presence in a place and actual stay thereat
Venue of settlement of estate proceeding: the resident of the decedent at the time
of his death
- if the decedent is a nonresident of the Philippines - in any province in
which he had estate
Wrong venue is a waivable procedural defect, and such waiver may occur by laches
where a party had been served notice of the filing of the probate petition for a year
and allowed the proceedings to continue for such time before filing a motion to
dismiss
Principle of preferential jurisdiction
General rule: the probate court first taking cognizance of the settlement of the estate
of the decedent shall exercise jurisdiction to the exclusion of all other courts
It cannot be divested of such jurisdiction by the subsequent acts of the parties as by
entering into extrajudicial partition of the estate or by filing another petition for
settlement in a proper court of concurrent jurisdiction
Note: the rule does not include foreign courts
- the rules applies to both testate and intestate proceedings
© Gironella – Macadatar 2017 | Rule 73 - Venue and Process
4.
Exceptions: estoppel by laches
When two proceedings were filed
1. The probate of will is mandatory. It will be anomalous if the estate of
person who died testate should be settled in intestate proceedings. The
intestate case should be CONSOLIDATED with testate proceedings
(Roberts vs. Leonidas)
2. Testate proceeding takes precedence over intestate proceeding. If in The
course of intestate proceeding, it is found that the decedent left a will,
proceeding for probable of the will should REPLACE intestate
proceeding (Uriarte vs. CFI)
3. First court, upon learning that petition for probate has been presented
in another court, may DECLINE TO TAKE COGNIZANCE of and
HOLD IN ABEYANCE petition before it, and instead DEFER to second
court.if the will is admitted to probate, it will definitely DECLINE to
take cognizance (Cuenco vs. CA)
Note: the difference between Uriarte and Cuenco is that in Uriarte, there was a
showing that petitioner the probate proceeding knew before filing of petition in
the second court that there was already an intestate proceeding in the first court.
Extent of jurisdiction of probate court: the court, in the exercise of its probate
jurisdiction, may issue warrants and processes to compel e attendance of witnesses
or to carry into effect their orders and judgments and all other powers granted
them by law.
Issuance is writ of execution
General rule: the probate court cannot issue a writ of execution because it's orders
usually refer to the adjudication of claims against the estate which the executor or
administrator may satisfy without the necessity of resorting to a writ of executions
Exceptions
1. To satisfy the distributive shares of the devisees, legatees and heirs
when the latter had entry prior possession over the estate
2. To enforce payment of expenses of partition
3. To satisfy the costs when a person cited for examination in probate
proceedings
Declaration of heirship
1. if the special proceedings are pending, or if there are no special
proceedings filed but there is, under the circumstances of the case, a
need to file one, then the determination of, among other issues, heirship
should be raised and settled in said special proceedings.
2. Where special proceedings had been instituted but had been finally
closed and terminated, however, or if a putative heir has lost the right to
101
 have himself declared in the special proceedings as co-heir and he can no
longer ask for its re-opening, then an ordinary civil action can be filed for
his declaration as heir in order to bring about the annulment of the
partition or distribution or adjudication of a property or properties
belonging to the estate of the deceased.
Issues of ownership
General rule: the probate court cannot determine issues of ownership in a proceeding
for the settlement of estate of decedent because probate courts are courts of limited
jurisdiction
Exceptions
1. Provisionally, for the sole purpose of including the property in the
inventory, without prejudice to tie final determination in a separate
action
2. When all the parties agreed to submit the issue of ownership to the
probate court, provided no rights of third person is prejudiced
3. If the question is one of collation or advancement
Settlement of estate if the marriage is dissolved by death of either spouse or
both
g. Whether property in the inventory is conjugal or exclusive
property of deceased spouse
h. Matters incidental or collateral to the settlement and
distribution of the estate
Rule 74 - Summary Settlement of Estate
Modes of settlement of estate
1. Extra judicial settlement - where the decedent left no will and no debts
and heirs are all of age, or the minors are represented by their
representatives duly authorized for the purpose, court proceedings are
no longer necessary, but the formal requisites must be complied with
2. Judicial settlement - where the proceedings in court is necessary, and
includes the following:
Summary settlement of estate of small value - whenever the gross value of the
estate of a deceased person p, whether he dies testate of intestate, does not exceed
Php 10,000, the court may proceed summarily, without an appointment of
executor or administrator
Testate proceedings - where the decedent left a last will and testament

The community property shall be inventoried, administered and liquidated, and the Instate proceedings - when the decedent died without a will, or died with a will
debts thereof paid, in the testate or intestate proceedings of the deceased spouse. but found invalid or disallowed

If both spouses have died, the conjugal partnership shall be liquidated in the testate Partition - when there is no will and the parties entitled to the estate would agree
or intestate proceedings of either. on the project of partition

If separate proceedings have been instituted for each estate, both proceedings may Substantial requisites for Extrajudicial settlement by agreement between the
be consolidated if they were filed in the same court. heirs
1. The decedent left no will
General power and duties of the probate court 2. The decedent left no debts - no creditors files a petition for letters of
1. Orders the probate of the will of the decedent administration within two years after the death of the decedent
2. Grants letters of administration 3. The heirs are all of age
3. Supervises and controls all acts of administration 4. The minor are represented by their judicial or legal representatives duly
4. Hears and approves claims against the estate of the deceased authorized for the purpose
5. Orders payment of lawful debts
6. Authorizes sale, mortgage or any encumbrance of real estate Procedural requisites for making an extrajudicial settlement of Estate
7. Orders the payment of taxes and other charges 1. Settlement is made in a public instrument (not constitutive of the
8. Directs the delivery of the estate to those entitled thereto validity of extra judicial settlement but is merely evidentiary in nature)
or by affidavit of adjudication in the case of sole heir
Specific powers and duties of a probate court 2. Filed with the register of deeds
1. To pass upon the issue regarding the validity of the will 3. Fact of settlement must be published in a newspaper of general
2. Distribute shares circulation once a week for 3 consecutive weeks
3. Determine who are the legal heirs 4. Bond filed with the register of deeds equivalent to the value of personal
4. Issue rants and processes to secure attendance of witnesses property
5. Determine and rule upon issue relating to settlement of the estate, such
administration, liquidation, and distribution of estate Real properties - no bond is required
6. Determine the following
- it will be subjected to a lien in favor of creditors, heirs or other persons
a. Heirs of the decedent
for a period of 2 years from distribution
b. Recognition of illegitimate child
c. Validity of disinheritance effected by the testator - Such lien cannot be substituted by a bond
d. Status of a person who claims to be the lawful spouse of the
decedent Effect of an extrajudicial partition executed without the knowledge and
e. Validity of waiver of heredity heirs consent of the other co heirs: it shall not prejudice the co heirs
f. Status of each heir - He shall have the right to vindicate his inheritance

© Gironella – Macadatar 2017 | Rule 74 - Summary Settlement of Estate 102

 - Such heir or such other person deprived of his lawful participation
payable in money may compel the settlement of the estate inc outs for the Value of the gross estate involved: when it does not exceed Php 10,000,
purpose of satisfying such lawful participation irrespective whether there is a will or none.
- such amount is jurisdictional
Note: it applies to compulsory heirs
Extrajudicial settlement vs. summary settlement of estate of small value
Purpose of publication: to notify and bind the whole world of the extrajudicial
settlement and give the concerned parties a chance to come forward and challenged Extra judicial settlement Summary settlement of estate
the same No court intervention. Requires summary adjudication filed
with the MTC
Note: publication alone does not suffice to bind the excluded heirs tit he There is compliance by the
extrajudicial settlement unless he participated in the proceedings filing of the public
instrument with the Registry
The procedure outlined in Section 1 of Rule 74 is an ex parte proceeding. The rule of Deeds
plainly states, however, that persons who do not participate or had no notice of an
The value of the estate is Gross value of the estate must not
extrajudicial settlement will not be bound thereby
immaterial exceed Php 10,000
Allowed only in intestate Allowed in both testate and intestate
The publication of the settlement does not constitute constructive notice to the
succession succession
heirs who had no knowledge or did not take part in it because the same was notice
The must be no outstanding Available even if there are debts.
after the fact of execution.
debts of the estate at the time
of settlement It is the court which will make
Effect if the provisions on notice and participation have been strictly complied
provision for the payment
with: it bars the distributees or heirs from objecting to an extra judicial partition
after the expiration of two years from such extra judicial partition Resorted at the instance and May be instituted by any interested
by agreement of all heirs party even a creditor of the estate
without the consent of all the heirs
Two year prescriptive period
Amount of bond is equal to Amount of bond is to be determined
General rule:distributees or heirs from objecting to an extra judicial partition after the value of personal by the court irrespective of whether
property. the estate consist of real or personal
the expiration of two years from such extra judicial partition
property
If it is a real property, it is
The rule applies only
subject to lien for a period of
1. To person who have participated or taken part of had notice of the
two years
extrajudicial partition
2. When all the persons or heirs of the decedent have taken part in the Publication of notice of the Publication of notice once a week for
extrajudicial settlement or are represented by themselves or through the fact of extrajudicial three consecutive weeks
their guardians settlement once a week for
three consecutive weeks in a Court may likewise order that notice
newspaper of General be given to person as the court may
Exception: if on the date of the expiration of the period of 2 years prescribed, the
circulation direct
person authorized to file a claim is a minor or mentally incapacitated, or is in prison
or outside the Philippines, he may present his claim within 1 year after such
There is also a hearing to be held not
disability is removed
less than one month more than three
months from the date of last
Affidavit of Sole Adjudication by Sole Heir: an affidavit required to be executed
publication of notice
by the sole heir of a deceased person in adjudication to himself the entire estate by
the decedent.

Summary settlement of Estate of Small Value: It is a judicial proceeding, without
appointment of executor or administrator, and without delay, wherein the
competent court summarily proceeds to estimate the value of the estate of the
decedent; allow his will if any; declare his heirs, devisees and legatees; distribute his
net estate among them, who shall thereupon be entitled to receive and enter into
the possession of the parts of the estate so awarded to the,, respectively.
Rule 75 - Production of Will. Allowance of Will Necessary
Probate (also known as allowance of will): it is the act of proving before a
competent court the die execution and validity of a will by a person possesses of
testamentary capacity, as well as the approval thereof by said court.

Hearing: The date of hearing shall be set by the court not less than one month, nor Probate is necessary to settle all questions concerning the capacity of the testator
more than 3 months from the date of publication of last notice and the order of and the proper execution of his will, irrespective of whether its provisions are valid
hearing shall be published once a week for three consecutive weeks in a newspaper and enforceable
of general circulation.

© Gironella – Macadatar 2017 | Rule 75 - Production of Will. Allowance of Will Necessary 103
Nature of probate proceeding
1. In rem - binding upon the whole world Note: But no defect in the petition shall render void the allowance of the will or
2. Mandatory - no will shall pass either real or personal property unless it the issuance of letters testamentary or of administration with the will annexed.
is proved and allowed in the proper court
3. Imprescriptible - public policy to obey the will of the testator Effects of the allowance of a will: The judgment or decree of the court allowing
4. Doctrine of estoppel does not apply - it involves public interest the will is:
5. Res judicata - once allowed by the court, it can no longer be questioned, 1. Conclusive as to its extrinsic validity;
irrespective of any erroneous judgment because it served as the law of the 2. Not subject to collateral attack and it stands as final, if not modified, set
case aside, or revoked by a direct proceeding, or reversed on appeal by a
higher court; and
Scope of examination of a will 1. Conclusive on the whole world.

General rule: the jurisdiction of the probate court is limited to the examination and Proving a will
resolution of the extrinsic validity of a will
See previous note if notarial or holographic , contested or not
- whether the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law
Instances when the court may admit the testimony of witnesses other than
the subscribing witnesses
Exceptions: principle of practical considerations wherein the court may pass up in
1. The subscribing witnesses are dead or insane; or
the intrinsic validity of the will
2. None of them resides in the Philippines.
1. If the case where to be remanded for probate of the will, it will result to a
waste of time, effort, expense, plus added anxiety; as in the case of
Matters that shall be testified on by the other witnesses
absolute preterition without any provision in favor of any devises or
1. The sanity of the testator;
legatee
2. Due execution of the will.
2. Where the entire or all testamentary disposition are void and where the
defect is apparent on its face
Q: What proof is necessary if the testator himself files the petition for probate of
his holographic will and no contest is filed?
Parties who may file petition for probate
1. Executor
A: The fact that he affirms that the holographic will and the signature are in his
2. Devisee or legatee named in the will
own handwriting shall be sufficient evidence of the genuineness and due execution
3. Person interested in the estate - one who would be benefited by the
thereof. (Sec. 12, Rule 76)
estate
4. Testator himself during his lifetime
Rule on proof of lost or destroyed will
5. Any creditor

Notarial will - it shall not be proved as a lost or destroyed will unless the execution
Parties entitled to notice in a probate hearing
and validity of the same be established, and the will is proved to have been in
1. Designated or known compulsory heir a, legatees and devisees of the
existence at the time of death of the testator, or is shown to have been fraudulently
testator resident in the Philippines at their places of residence, at least 20
or accidentally destroyed in the lifetime of the testator without his knowledge, nor
days before the hearing, if such places of residence be known
unless it's provision are clearly and directly proved by at least two credible
2. Person named executor, if he is not the petitioner
witnesses
3. To any person named as co-executor not petitioning, if their places of
residences be known
4. If the testator asks for the allowance of his own will, notice shall be sent Holographic will - a photostatic copy or exerox copy of the lost will would not
only to his compulsory heirs suffice. But if there are no other copies available then a photostatic or xerox copy
would suffice to serve as a comparison to the standard writings of the testator. No
testimonies of witnesses is allowed because the will was made entirely by the
Rule 76 - Allowance or Disallowance of Will
testator himself.

Contents of the petition

Requisites for allowance of a lost or destroyed will: No will shall be proved as a
1. Jurisdictional facts:
lost or destroyed will unless:
a. death of the testator and
1. Its execution and validity of the same must be established;
b. his residence at the time of his death
2. It must have been in existence at the time of the death of the testator, or
c. if non- resident, the province where the estate was left
is shown to have been fraudulently or accidentally destroyed during the
2. The names, ages and residences of the heirs, legatees and devisees of the
lifetime of the testator without his knowledge; and 3. Its provisions
testator or decedent.
must be clearly and distinctly proved by at least 2 credible witnesses
3. The probable value and character of the property of the estate.
4. The name of the persons for whom letters are prayed.
Grounds for disallowance
5. The name of the person having custody of the will if it has not been
1. If not executed and attested as required by law;
delivered to the court.

© Gironella – Macadatar 2017 | Rule 76 - Allowance or Disallowance of Will 104

 2. If the testator was insane, or otherwise mentally incapable to make a
will, at the time of its execution;
3. If it was executed under duress, influence of fear, or threats;
4. If it was procured by undue and improper pressure or influence, on the
part of the beneficiary, or of some other person for his benefit; or
5. If the signature of the testator was procured by fraud or trick, and he did
not intend that the instrument should be his will at the time of fixing his
signature thereto.
Substantial Compliance Rule: If the will has been executed in substantial
compliance with the formalities of the law, and the possibility of bad faith and farud
is obviated, said will should be admitted to probate (Art. 809, New Civil Code).
Rule 77 - Allowance of Will Proved Outside of Philippines
and Administration of Estate Thereunder
Reprobate: It is a special proceeding to establish the validity of a will proved in a
foreign country.
- that which is granted in the jurisdiction of the decedent's domiciled is
termed the principal administration
- While any other administration is termed ancillary administration
Rule 78 - Letters Testamentary and of Administration,
When and to Whom Issued
People who can administer the estate
1. Executor – named by the testator in his will for the administration of his
property after his death;
2. Administrator – appointed by the court in accordance with the Rules or
governing statutes to administer and settle the intestate testate; or
3. Administrator with a will annexed – appointed by the court in cases
when, although there is a will, the will does not appoint any executor, or
if appointed, said person is either incapacitated or unwilling to serve as
such.
Note: any competent person may serve as executor or administrator

Requisites for the allowance of a will in a foreign country Executor vs. Administrator
1. The testator was domiciled in a foreign country; Executor Administrator
2. The will has been admitted to probate in such country;
Nominated by the testator and Appointed by the court in case
3. The foreign court is, under the laws of said foreign country, a probate
appointed by the court the testator did not appoint an
court with jurisdiction over the proceedings;
executor or the executor
4. Proof of compliance with the law on probate procedure in said foreign
refused appointment or the will
country;
was disallowed or the person
5. The legal requirements in said foreign country for the valid execution of
did not make a will
the will have been complied with;
Must present will to the court No such duty
6. Filing a petition in the Philippines with copy of the will and of its decree
within 20 days after he knows
of allowance; and
of the death of the testator or
7. Notice and hearing.
after he knew that he was
appointed as executor unless
Note: Under the doctrine of processual presumption, there must be evidence to
the will has reached the court in
prove the existence of foreign law, otherwise the court should presume that the law
any manner
of the foreign country is the same as Philippine laws.
Testator may provide that he Bond is always required unless
may serve without a bond exempted by law
Effects of reprobate:
1. The will shall have the same effect as if originally proved and allowed in
BUT court may direct him to
the Philippines
give a bind conditioned only to
2. Letters testamentary or administration with a will annexed shall extend
pay debts
to all estates of the testator in the Philippines
Compensation may be provided Compensation is governed by
3. Such estate, after the payment of just debts and expenses of
for by the testator in the will section 7 rule 85
administration, shall be disposed of according to the will, so far as such
will, may operate upon it, and the residue, if any, shall be disposed of as
provided by law in cases of estates in the Philippines belonging to Incompetent people to serve as executor or administrator
persons who are inhabitants of another country 1. Minors,
2. Non-resident of the Philippines;
Note: as General rule, administration extends only to the assets of the decedent 3. Those who, in the opinion of the court, are unfit to execute the duties of
found within the state or country where it was granted, so that an administrator the trust by reason of drunkenness, improvidence, want of
appointed in one state or county has no power over property in another state or understanding or integrity, or conviction of an offense involving moral
country turpitude (Sec. 1, Rule 78).
4. Executor of an executor over the estate of the first testator
Ancillary administration: when a person dies intestate owning property in the
country of his domicile as well as in foreign country administration shall be had in Note: courts may refuse to appoint a person as executor or administrator on
both countries. ground of UNSUITABLENESS - adverse interest or hostile to those immediately
interested in the estate

© Gironella – Macadatar 2017 | Rule 77 - Allowance of Will Proved Outside of Philippines and Administration of 105
Estate Thereunder
Authority issued to the person who administer the estate
1. Letters testamentary – authority issued to an executor named in the will
to administer the estate;
2. Letters of administration – authority issued by the court to a competent
person to administer the estate of the deceased who died intestate; or
3. Letters of administration with a will annexed – authority issued by the
court to a competent person to administer the estate of the deceased if
the executor named in the will refused to accept the office, or is
incompetent.
Order of preference: If no executor is named in the will, or the executors are
incompetent, refuse the trust, or fail to give the bond, or a person dies intestate,
administration shall be granted to:
1. The surviving spouse or next of kin, or both, in the discretion of the
court, or to such person as such surviving spouse or next of kin, requests
to have appointed, if competent and willing to serve
Next of kin: the heirs entitled to receive a just share in accordance with the rule in
distribution of the estate
2. The principal creditors, if competent and willing to serve, if the surviving
spouse or next of kin, or the person selected by them be incompetent or
unwilling or if the surviving spouse or next of kin neglects for 30 days
after the death of the person to apply for administration or to request
that administration be granted to some other person
3. Such other person as the court may select if there is no such creditor
competent and willing to serve.
Note: Order of preference may be disregarded for a valid cause.
- the rule above does not apply to the selection is special administrator
Instances when a co administrator may be appointed
1. To have the benefit of their judgment and perhaps at all times to have
different interests represented;
2. Where justice and equity demand that opposing parties or factions be
represented in the management of the estate of the deceased;
3. Where the estate is large or, from any cause, an intricate and perplexing
one to settle;
4. To have all interested persons satisfied and the representatives to work
in harmony for the best interest of the estate; or
5. When a person entitled to the administration of an estate desires to have
another competent person associated with him in the office.
Purpose: to have the benefit of their judgment and perhaps at all times to have
different interest represented, especially considering that in to proceeding that's
will respectively represent the legitimate and illegitimate group of heirs to the
estate
Rule 79 - Opposing Issuance Of Letters Testamentary.
Petition And Contest For Letters Of Administration
Who may oppose: Any person interested in the will may file a written opposition.
Note: the person must have a material and direct interest, not indirect or
contingent
© Gironella – Macadatar 2017 | Rule 79 - Opposing Issuance Of Letters Testamentary. Petition And Contest For
Letters Of Administration
Interested person: one who would be benefited by the estate, such as an heir, or
one who has a claim against the estate, such as creditor
Where the right of the person filing of a petition for the issuance of letters of
administration is dependent on a fact which has not been established or worsen
can no liner be established, such contingent interest does not make her an
interested party
Grounds for opposing petition for administration
1. Incompetency of the person for whom letters are prayed therein; or
2. Contestant's own right to the administration
Note: Letters of administration may be granted to any qualified applicant, though
it appears that there are other competent persons having better right to the
administration, if such persons fail to appear when notified and claim the issuance
of letters to themselves
Notice: when no notice has been given to persons believed to have an interest in
the estate of the deceased person, the proceeding for the settlement of the estate is
void and should be annulled
Purpose: no person shall be deprived of his rights to property without due process
of law
Rule 80 - Special Administrator
Appointment of special administrator: when
1. When there is delay in granting letters testamentary or of
administration by any cause including an appeal from the allowance or
disallowance of a will
2. When the executor or administrator is a claimant against the estate he
represents
Note: Only one special administrator at a time may be appointed, since the
appointment is merely temporary.
Powers of special administrator: same as that of a general administrator
Purpose: The principal object is to preserve the estate until it can pass into the
hands of persons fully authorized to administer it for the benefit of the creditors
and heirs
Qualifications of a special administrator: it is within the sound discretion of the
court
- The fundamental and legal principles governing the choice of a regular
administrator should also be taken into account in the appointment of a
special administrator
Note: the order of preference in the appointment of regular administrator should
also be taken into account in the appointment of special administrator
Publication: notice through publication is still necessary for the appointment of a
special administrator
Powers and duties of a special administrator
106
 1. Possess and take charge of the goods, chattels, rights, credits and estate 2. Sale, mortgage, or encumbrance of the property of the estate
of the deceased; conditioned that such administrator it executor will account for the
2. Preserve the same; process of the sale or encumbrance
3. Commence and maintain suit for the estate;
Rule 82 - Revocation of Administration, Death,
Note, however, that the special administrator cannot be sued by the creditor for the
Resignation, and Removal of Executors or Administrators
payment of the debts of the deceased.
- such suit must wait until appointment of regular administrator
Grounds for removal of Administrator
1. Neglect to render an account and settle the estate according to law;
4. Sell only:
2. Neglect to perform an order or judgment of the court, or a duty
a. Perishable property; and
expressly provided by the Rules;
b. Other property ordered sold by the court;
3. Absconds;
5. Pay debts only as may be ordered by the court.
4. Becomes insane; or
6. Submit an inventory and render an accounting of his administration as
5. Becomes incapable or unsuitable to discharge the trust
required by the terms of his bond

Note: These grounds are not exclusive. False misrepresentation by an

Note: the order appointing a special administrator is NOT appealable since it is an
administrator in securing his appointment is a ground for his removal
interlocutory order

Other grounds for removal of an executor or administrator

Extinguishment of powers of special administrator: After the questions causing
1. Death;
the delay are resolved and letters testamentary or administration are granted to
2. Resignation;
executor or regular administrator.
3. An administrator who disbursed funds of the estate without judicial
approval.
Regular vs. Special Administrator
4. False representation by an administrator in securing his appointment
5. An administrator who holds an interest adverse to that of the estate or
See ust table
by his conduct showing his unfitness to discharge the trust
6. An administrator who has the physical inability and consequent
Rule 81 - Bond of Executors and Administrators unsuitability to manage the estate

Filing of a bond Remedy of creditors against administrator (concerning his general

competence): to seek the removal of the administrator
General rule: before an executor or administrator enters join the execution of his
trust Effect of revocation of letters testamentary or of administration: to terminate
the authority of the administrator or executor, nu the acts of the executor or
As long as the probate court retains jurisdiction of the estate, the bond administrator, done in good faith prior to the revocation of the letters will be
contemplates a continuing liability protected, and similar protection will be extended to rights acquired under a
previous grant of administration
Exceptions: the executor may serve without a bind if the testator so directs, or with
only his individual bond, conditioned only to pay the debts of the testator Duties of administrator upon revocation of the letters
1. Surrender the letters to the court
Note: in case of joint executor or administrators, the court may take separate bonds 2. Render his account within such time as the court may direct
from each or a joint bond from all
Powers of the new executor or administrator after the first one resigns or is
Conditions of the bond removed
1. Make within 3 months a true and complete inventory if the property of 1. To collect and settle the estate not administered
the deceased which came to his knowledge and possession 2. To prosecute or defend actions commenced by or against the former
2. Administer the estate and pay and discharge all debts, legacies and executor or administrator
charges, including dividends declared by the court form the proceeds 3. To recover execution on judgments in the name of the former executor
3. Render a true and just account within 1 years and when required by the or administrator
court
4. Perform all orders of the court An authority granted by the court to the former executor or administrator for the
sale or mortgage of real estate may be renewed in favor of such person without
Requirement of further bond, when further notice or hearing.
1. Change in circumstances of the executor or administrator or for other
sufficient cause Rule 83 - Inventory and Appraisal. Provision for Support of
Family

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 Rule 84 - General Powers and Duties of Executors and Liability for damages; when
1. He neglects or unreasonably delays to raise money, by collecting the
Administrators
debts or selling the real or personal estate of the deceased
2. He neglects to pay over the money he has in his hands
General Powers of an administrator or executor
3. The value of the estate is lessened
1. In case of a deceased partner
4. Unnecessary cost or interest accrues
a. To have access to, and examine and take copies of books and
5. The persons interested suffer loss
papers relating to the partnership in case of a deceased partner
b. To examine and make invoices of the property belonging to the
Expenses of administration: refers to those necessary for the management of the
partnership in case of a deceased partner
property, for protecting it against destruction or deterioration, and possibly for the
2. To maintain in tenantable repairs, houses and other structures and fences
production of fruits
and to deliver the same in such repair to the heirs or devisees when
directed so to do by the court
Expenses not considered necessary
3. To make improvements on the properties under administration with the
1. Expenses on the anniversary of the death of the deceased
necessary court approval except for necessary repairs
2. Expenses incurred by a presumptive heir for her appearance and that if
4. To possess and manage the estate when necessary:
her witnesses at the trial to opposed the probate of an alleged will
a. For the payment of debts; and
3. Expenses for the settlement of the question as who are entitled to the
b. For the payment of expenses of administration
estate left by the deceased
4. Expenses incurred by the executor or administrator to procure a bond
Note: for an executor or administrator to freely exercise his rights and duties, he
5. Personal expenses of the occupant of the heir of the family residences
shall submit a written application to the court having jurisdiction of the estate
6. Expenses for stenographic notes, unexplained representation expense

Restrictions on the powers of administrator or executor

Bases of compensation of the executor or administrator
1. He cannot acquire by purchase, even at public or judicial action, either in
person or mediation of another, the property under administration;
General rule: that provided by the will, in case of an executor
2. He cannot borrow money without authority from the court;
3. He cannot speculate with funds under administration;
Exception: there is written instrument filed in court which he renounces all claim to
4. He cannot lease the property under administration for more than 1 year;
the compensation provided by law
Note: The administrator has the power to enter into lease contracts involving the
If there are two or more executors or administrators, the compensation shall be
properties of the estate even without prior judicial authority and approval.
apportioned among them by the court according to the services actually rendered
(Mananquil v. Villegas, A.M. No. 2430, Aug. 30, 1990)
by them respectively
5. He cannot continue the business of the deceased unless authorized by
Note: an administrator cannot recover attorney's fees from the estate because his
the court;
compensation is fixed by the rule and such compensation is in he nature of
6. He cannot profit by the increase or decrease in the value of the property
executor's or administrator's commissions and never as attorney's fee
under administration;
7. He cannot exercise the right of legal redemption over a portion of the
Remedies of a lawyer who was hired by executor or administrator in
property owned in common sold by one of the other co-owners.
collecting attorney's fees
8. He may only deliver properties of the estate to the heirs after payment of
1. Request the administrator to make payment and file an action against
the debts, funeral charges and other expenses against the estate, except
him in his personal capacity and not as administrator should he fail to
when authorized by the court
pay
2. Petition in the testate or intestate proceeding asking the court, after
Rule 85 - Accountability and Compensation of notice to all persons interested, to allow his claim and direct the
Executors and Administrators administrator to pay it as an expense of administration

Accountability Rule 86 - Claims Against Estate

General rule: the executor or administrator is accountable for the whole estate of the
deceased
Exception: not accountable for properties which never came to his possession
Exception to the exception: when through untruthfulness to the trust or his own fault or
lack of necessary action, the executor or administrator failed to recover part of the
estate which came to his knowledge
Claims against the estate: they are money claims of pecuniary nature which could
have been enforced against the deceased in his lifetime and could have been
reduced to simple money judgment
When judgment in a civil case has become final and executory, execution is not the
proper remedy to enforce payment, claimant should present claim before probate
court

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RULES: be filed for a period not exceeding 1 month from the order allowing the
filing of the belated claims
If the defendant dies during the pendency of the action against him, the rule on 2. Where the estate filed a claim against the creditor or claimant who
substitution of parties will be followed and any adverse decision against him may failed to present his claim against the estate within the period fixed by
be filed by the plaintiff as a claim against the estate the probate court for the settlement of such claims, the critic will be
allowed to set up the same as a counterclaim to the action filed by the
If the defendant dies after an adverse decision was rendered against him without estate against him.
having levied any property, then the plaintiff may file his claim against the estate
Statute of non-claims: It is a period fixed by the courts for the filing of claims
If the defendant dies after an adverse decision was rendered against him, and after a against the estate for examination and allowance.
vey was made, then execution shall proceed, without the need of filing a claim
against the estate Note: Statute of non-claims supersedes the Statute of Limitations insofar as the
debts of deceased persons are concerned because if a creditor fails to file his claim
Claims that must be presented in the settlement court in the intestate or within the time fixed by the court in the notice, then the claim is barred forever.
testate proceedings However, both statute of non-claims and statute of limitations must concur in
1. All claims for money against the decedent, arising from contract, express order for a creditor to collect.
or implied, whether the same be due, not due or contingent
2. All claims for funeral expenses See ust procedure in filing claims
3. Expenses for the last sickness of the decedent
4. Judgment for money against the decedent Rule 87 - Actions By and Against Executors and
Administrators
Note: taxes due and assessed after the death of the decedent should not be
presented in the form of a claim
The executor or administrator, if he has a claim against the estate, shall give notice
to the court in writing and the court shall thereafter appoint a special
Claims extinguished by death vs. claims which survive
administrator
Claims extinguished by Claims which survive
death
Actions that may be brought by the executor or administrator: Recovery or
Personal to either of the Those claims which can be filed protection of the property or rights of the deceased, action for causes which
parties either against the estate or survive. (Sec. 2, Rule 87)
executor
The claim can no longer be Claim is not extinguished by Note: When an executor or administrator is appointed and assumes the trust, no
prosecuted by reason of the death but shall be prosecuted as a action to recover the title or possession of lands or for damages done shall be
death of the party money claim against the estate of maintained against him by an heir or devisee until there is an order of the court
the deceased or against the assigning the lands to such heir or devisee or until the time allowed for paying
executor or administrator debts has expired. (Sec. 3, Rule 87)

Absolute claim: It is one which, if contested between living persons, would be the
proper subject of immediate legal action and would supply a basis of judgment for a
sum certain.
Contingent claim: It is a conditional claim, which is subject to the happening of a
future uncertain event.
Notice to file claims against the estate: it is the duty of the court after granting
letters testamentary or of administration to issue a notice requiring all persons
having money claims to file them in the office of the clerk of court
Period to file claims against the estate
General rule: It should not be less than six (6) months nor more than twelve (12)
months from the day of the first publication of the notice thereof. Such period when
fixed by the probate court becomes mandatory.
Exceptions
1. On the application of the creditor who has failed to file his claim within
the time previously previously limited, at any time before an order of
distribution is entered, the court may, for just causes, allow such claim to
Actions that may be brought against the executor: Any action affecting the
property rights of a deceased which may be brought by or against him if he were
alive, may be instituted and prosecuted by or against the administrator, unless by
its very nature, it cannot survive, because death extinguishes such right
Claims which can proceed independently of the settlement proceeding
1. Actions to recover real or personal property, or an interest therein, from
the estate;
2. Enforcement of a lien;
3. Actions to recover damages for an injury to person or property, real or
personal.
Right of the heirs to sue for the recovery of property of the estate during the
pendency of administration proceedings
General rule: the heirs have no legal standing to sue for the recovery of property of
the estate
Exceptions
1. If the executor or administrator is unwilling or refuses to bring suit

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 2. When the administrator is alleged to have participated in the act 3. Sale of personal property may injure the business or other interests of
complained of and he is a made party defendant those interested of the estate (Sec. 2, Rule 89);
4. The testator has not made sufficient provision for payment of such
Requisites before creditor may bring an action for recovery of property debts, expenses or legacies
fraudulently convened by the deceased 5. The decedent was, in his lifetime, under contract, binding in law, to
1. Application of the creditors; deed real property to beneficiary (Sec. 8, Rule 89);
2. Payment of cost and expenses; and 6. The decedent during his lifetime held real property in trust for another
3. Give security therefore to the executor or administrator. person

Requisites before a creditor may bring an action for recovery of property Use of proceeds from sale of personal property
fraudulently conveyed 1. To pay the debts and expenses of administration;
1. There is a deficiency of assets in the hands of an executor or 2. To pay legacies; and
administrator for the payment of debts and expenses of administration; 3. To cover expenses for the preservation of the estate.
2. In his lifetime, the deceased had made or attempted to make a
fraudulent conveyance of his property or had so conveyed such Payment of contingent claims: If the court is satisfied that a contingent claim
property that by law, the conveyance would be void as against his duly filed is valid, it may order the executor or administrator to retain in his hands
creditors; sufficient estate to pay such contingent claim when the same becomes absolute, or
3. The subject of the attempted conveyance would be liable to if the estate is insolvent, sufficient estate to pay a portion equal to the dividend of
attachment in his lifetime; the other creditors.
4. The executor or administrator has shown no desire to file the action
or failed to institute the same within a reasonable time; Requisites before the court allows a contingent claim
5. Leave is granted by the court to the creditor to file the action; 1. Duly filed within the 2 year period allowed for the creditors to present
6. A bond is filed by the creditor; and claims;
7. The action by the creditor is in the name of the executor or 2. The claim is valid; and
administrator 3. The claim became absolute.

The last 3 requisites are unnecessary where the grantee is the executor or Order of payment if estate is insolvent or assets are insufficient: the executor or
administrator himself, in which event, the actions should be in the name of all the administrator shall pay the debts according to the concurrence and preference of
creditors credit

Note: the creditor cannot directly file the action in court Q: What is the consequence if the contingent claim is not presented
- It is only after the executor or administrator failed to file the action that within the 2 year period after it becomes absolute?
the creditor is authorized to file the action, but it must be still be in the
name of the executor or administrator A: The assets retained in the hands of the executor or administrator,
not exhausted in the payment of claims, shall be distributed by the
Rule 88 - Payment of the Debts of the Estate order of the court to the persons entitled to the same (Sec. 4, Rule
88). However, the assets so distributed may still be applied to the
payment of the claim when established, and the creditor may
Payment of debts
maintain an action against the distributees to recover the debt, and
such distributees and their estates shall be liable for the debt in
General rule: The payment of the debts of the estate must be taken from the following
proportion to the estate they have respectively received from the
order:
property of the deceased.
1. Portion or property designated in the will –
2. Personal property;
Disposition of estate in the Philippines of an insolvent nonresident: It shall be
3. Real property.
disposed of that his creditors in and outside the Philippines may receive an equal
share, in proportion to their respective credits
Note: If there is still a deficiency, it shall be met by contributions of devisees,
legatees, or heirs who have entered into possession of portions of the estate before
Claims proven outside the Philippines where the executor had knowledge and
the debts and expenses have been settled and paid
opportunity to contest its allowance may be added to the list of claims proved
against the decedent in the Philippines and the estate will be distributed equally
Exceptions: On application by executor or administrator, with written notice to
among those creditors
persons interested, and after hearing, real properties can be charged first even
though the personal properties are not exhausted when:
Note: The benefits in the above provision shall not be extended to the creditors in
1. The personal property is not sufficient to pay the debts, expenses of
another country if the property of such deceased person there found is not equally
administration and legacies (Sec. 3, Rule 88);
apportioned to the creditors residing in the Philippines and the other creditors,
2. The sale of such personal property would be detrimental to the
according to their respective claims.
participants of the estate (Sec. 3, Rule 88);

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 Rule 89 -Sales, Mortgages, and Other Encumbrances of Remedy of an heir entitled to residue but not given his share

Property of Decedent
MOTION TO SET ASIDE THE DISTRIBUTION- If an heir appears after the
court approved the project of partition, the heir must file a Motion to set aside the
Q: When should the court authorize sale, mortgage or other encumbrance of estate
distribution with the court so that the court will not proceed with the distribution
to pay debts and legacies in other countries?
of the residue. The probate court shall determine whether such heir has a right to
participate in the distribution of the residue. If it is proven that the heir has a right,
A: When it appears from records and proceedings of a probate court of another
the court may order the revision of the project of partition for its adjustment.
country that the estate of the deceased in foreign country is not sufficient to pay
debts and expenses, the court here may authorize the executor or administrator to
MOTION FOR THE RE- OPENING OF THE SETTLEMENT
sell, mortgage or encumber the property in the same manner as for the payment of
PROCEEDINGS-If the distribution has already been made, a motion for closure
debts and legacies in the Philippines (Sec. 5, Rule 89).
has already been granted, the heir must file a Motion for the re-opening of the
settlement proceedings within the 30 day reglementary period, provided the order
Rule 90 -Distribution and Partition of the Estate of closure has not yet become final and executory.

Liquidation: is the determination of all assets of the estate and payment of all debts Although closed and terminated, the preterited heir who was excluded from the
and expenses. settlement proceedings can still file a petition to reopen within a period of 10 years

The probate court loses jurisdiction over the settlement proceedings only upon ACCION REINVIDICATORIA- If the order of closure has already become final
payment of all debts and expenses of the obligor and delivery of the entire estate to and executory, the remedy is to file an independent suit against the parties and all
all the heirs the other heirs for his or her share

Order of distribution MOTION TO DELIVER SHARE - of the heir was not excluded in the
proceedings but was not able to receive his share
General rule: Order of distribution shall be made after payments of all debts, funeral
expenses, expenses for administration, allowance of widow and inheritance tax. Rule 91 -Escheats

Exception: If the distributees or any of them gives a bond conditioned for the
payment of said obligation, the order of distribution may be made even before the
Rule 92 - Venue
payment of all debts, etc

Note: the order that determines the distributive share is appealable

Project of partition: It is a document prepared by the executor or administrator

setting forth the manner in which the estate of the deceased is to be distributed
among the heirs.

Nature: not mandatory

The finality of the approval of the project of partition by itself alone does not
terminate the probate proceeding. As long as the order of the distribution of he
estate has not been complied with, the probate proceedings cannot be deemed
closed and terminated

Right of the heir over the property of the decedent: During the pendency of the
estate proceeding without the prior approval of the probate court, An heir has the
right to sell his undivided or ideal share of the estate, he being the co-owner with
other heirs of the estate. Court approval is necessary only if specific property of the
estate is sold.

Partial distribution: Partial distribution of the estate should not have been
allowed.

Jurisdiction of the probate court: Once an action for the settlement of estate is
filed with the court, the properties included therein are under the control of the
estate court. And not even the administrator may take possession of any property
that is part of the estate without the prior authority of the court

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 must have been brought to its
Criminal Procedure forum for trial, forcibly by warrant
of arrest or upon his voluntary
submission to the court
Basic Concepts Derived from the law. It can May be acquired by consent of the
never be acquired solely by accused (by voluntary appearance)
Criminal procedure regulates the steps by which one committed a crime is to be consent of the accused. or by waiver of objections.
punished.
Objection that the court has no If he fails to make his objection on
- Lays down the processes by which an offender is made to answer for the jurisdiction over the subject time, he will be deemed to have
violation of the criminal laws matter may be made at any waived it.
stage of the proceeding, and the
Nature: though substantive but criminal in nature right to make such objection is
- Thus intended in favor of the accused never waived.
- And can be applied retroactively

Criminal Law Criminal Procedure

Substantive Remedial Jurisdiction over the Subject Matter / Nature of the Offense /
It declares what acts are It provides how the act is to be
punishable punished
offense charged
It defines crimes, treats of It provides for the method by which
The power to hear and determine cases of general class to which the proceedings
their nature and provides a person accused of a crime is
in question belongs
for their punishment arrested, tried or punished.
How conferred:Conferred by law and not the rules
System of procedure:
- The conferment must be clear, it cannot be presumed
- It cannot be fixed by the will of the parties
Accusatorial or adversarial
- It is not conferred by mere administrative policy of any trial court
- It contemplates two contending parties before the court which hears
them impartially and renders judgment only after trial
How determined:Determined by the allegations in the complaint or information
- Two sided structure:
- Not by the results of proof or by the trial court’s appreciation of the
 Prosecution and
evidence presented
 Defense
 Where each side tries to convince the court that its Statute applicable to a criminal action / what law determines the jurisdiction
position is the correct version of the truth of the court
Vs. Inquisitorial System The statute in force at the time of the institution of the action determines the
- Where the court plays a very active role and is not limited to the evidence jurisdiction of the court over the subject matter and not at the time of its
presented before it commission even if the penalty that may be imposed at the time of its commission
is less and does not fall under the court’s jurisdiction
Interpretation of the rules:Shall be liberally construed in order to promote their
objective of securing a just, speedy and inexpensive disposition of every action and Use of the imposable penalty:In determining whether or not the court has
proceeding jurisdiction over an offense, we consider the penalty which may be imposed upon
the accused and not the actual penalty imposed after the trial
Due Process:Mandatory and indispensable and cannot be met without the - Consider the higher imposable penalty
proverbial ―law which hears before it condemns and proceeds upon inquiry and
renders judgment only after trial‖ Principle of adherence to jurisdiction or continuing jurisdiction:Once the court
has acquired jurisdiction, that jurisdiction continuous until the court has done all
that it can do in the exercise of that jurisdiction
Requirements of due process: - The jurisdiction once vested, cannot be withdrawn or defeated by
a) That the court or tribunal trying the case is properly clothed with subsequent valid amendment of the information and by a new law
judicial power to hear and determine the matter before it amending the rules of jurisdiction
b) That jurisdiction is lawfully acquired by it over the person of the accused
c) That the accused is given opportunity to be heard, and Dismissal on jurisdictional ground: May be raised or considered motuproprio by
d) That judgment is rendered only upon lawful hearing the court at any stage of the proceedings or on appeal

Jurisdiction Exception: Estoppel

Power and authority to hear and determine the issues of facts and of law, the power
to inquire into the facts, to apply the law and to pronounce the judgment
Q: In complex crimes, how is the jurisdiction of a court determined?
Requisites:
a) Jurisdiction over the subject matter / Nature of the Offense A: It is lodged with the trial court having jurisdiction to impose the
b) Jurisdiction over the territory / Venue maximum and most serious penalty imposable of an offense forming
c) Jurisdiction over the person of the accused part of the complex crime. It must be prosecuted integrally and
must not be divided into component offenses which may be made
Over the Subject Matter Over the person of the accused subject of multiple information brought in different courts (Cuyos
Authority of the court to hear Authority of the court, not over v. Garcia, G.R. No. L-46934, Apr. 15, 1988).
and determine a particular the subject matter of the criminal
criminal case litigation, but over the person Jurisdiction over the territory / Venue
charged.
Nature: it is jurisdictional thus it cannot be waived
Requires that the person charged

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General rule: In all criminal prosecutions, the action shall be instituted and tried in
the court of the municipality or territory wherein the offense was committed or
where anyone of the essential ingredients took place
Exception:
a) Circumstances under Article 2, RPC
 Cognizable by the court where the criminal action is first filed
b) Where the SC, pursuant to its constitutional powers orders a change of
venue or place of trial to avoid a miscarriage of justice
c) When an offense is committed in a train, aircraft, or other public or
private vehicle in the course of its trip
 It may be instituted and tried in the court of any municipality
or territory where said train, aircraft, or vehicle passed during
its trip
d) Where an offense is committed on board a vessel in the course of its
voyage
 The court of first port of entry or
 Of the municipality or territory where the vessel passed during
its voyage
e) Where the case is cognizable by the Sandiganbayan
 Where the court actually sits – Quezon City
f) In case of written defamation
 Where the alleged libelous article was printed and first
published
 Where the offended part held office, in case of public officer
 Place of residence
Jurisdiction over the Person of the accused
How acquired:
- Upon his arrest or apprehension, with or without a warrant, or his
voluntary appearance or submission to the jurisdiction of the court (and
not to any person)
- Voluntary submission:
 By filing a motion to quash
 Except when filed precisely on the ground of lack of
jurisdiction over his person
 Appearing for arraignment
 Participating in the trial
 By giving of bond
Special Appearance: A special appearance before the court to challenge the
jurisdiction of the court over the person is not tantamount to estoppel or waiver of
the objection and is not voluntary submission to the jurisdiction of the court
Injunction to Restrain Criminal Prosecution
General rule:The court will not issue writs of prohibition or injunction preliminary
or final, to enjoin or restrain, criminal prosecution
Exception:
a) Necessary to afford adequate protection to the constitutional rights of
the accused
b) Necessary for the orderly administration of justice or to avoid oppression
or multiplicity of actions
c) When there is prejudicial question which is subjudice
d) When the acts of the officer is without or in excess of authority
e) Where the prosecution is under an invalid law, ordinance or regulation
f) When double jeopardy is clearly apparent
g) Where the court has no jurisdiction over the offense
h) Where it is a case of persecution rather than prosecution
i) Where the charges are manifestly false and motivated by the lust for
vengeance
j) When there is clearly no prima facie case against the accused and a
motion to quash on that ground has been denied
Criminal Jurisdiction of Courts
MTC, MCTC, and MeTC
© Gironella – Macadatar 2017 | Criminal Jurisdiction of Courts
Except in cases falling within the exclusive jurisdiction of the RTC and of the
Sandiganbayan, the MTC shall exercise the following criminal jurisdiction:
(1) Exclusive original jurisdiction over all violations of city or municipal
ordinances committed within their respective territorial jurisdiction
 Except:
i. Libel - RTC
ii. Some forms of direct bribery – Sandiganbayan
iii. Indirect bribery - Sandiganbayan
(2) Exclusive original jurisdiction over all offenses punishable with
imprisonment not exceeding 6 years irrespective of the amount of fine,
and regardless of other imposable or accessory penalties, including the
civil liability arising from such offenses irrespective of kind, nature,
value or amount
(3) When Punishable by fine only: MTC’s jurisdiction: A fine of not more
than 4,000
(4) Exclusive original jurisdiction over offenses involving damage to
property through criminal negligence
(5) Violation of BP 22
(6) Summary Procedure in the following cases:
 Violation of traffic laws, rules and regulations, violations of
the rental law, and violations of municipal or city ordinances
 All other criminal cases where the penalty prescribed by law
is imprisonment not exceeding 6 months or a fine not
exceeding 1,000 or both, irrespective of other imposable
penalties, accessory or otherwise, or of civil liability arising
therefrom
 Offenses involving damage to property through criminal
negligence where the imposable fine does not exceed 10,000
(7) Special jurisdiction to decide on application for bail in criminal cases in
the absence of all RTC judges in a province or city
Regional Trial Court
(1) Exclusive original jurisdiction in all criminal cases not within the
exclusive jurisdiction of any court, tribunal or body, except:
 Those now falling under the exclusive and concurrent
jurisdiction of the Sandiganbayan
(2) Appellate jurisdiction over all cases decided by the MTC within its
territorial jurisdiction
(3) Special jurisdiction to handle exclusively criminal cases as designated by
the SC
(4) Jurisdiction over criminal cases under specific laws
 Written defamation
 Jurisdiction of designated courts over cases in violation of the
Comprehensive Dangerous Drugs Act of 2002
 Violation of intellectual property rights
 Money laundering cases
(5) Cases falling under the family court
(6) Election offenses
Sandiganbayan
The Sandiganbayan shall exercise original jurisdiction in all cases involving:
1. Violation of RA 3019 or the Anti-Graft and corrupt practices act, RA 1379
(Act declaring forfeiture in favor of the State any property found to have
been unlawfully acquired by any public officer or employee), and Chapter
II, Section 2, title VII, Book II of the RPC (law on bribery in all its form
including corruption of public officers), where one or more of the accused
are officials occupying the following positions in the government, whether
in permanent, acting or interim capacity, at the time of the commission of
the offense
2. Officials of the executive branch occupying the positions of regional
director or higher, otherwise classified as ―Grade 27‖ and higher of the
compensation and position classification act of 1989, including:
a. Provincial governors, vice-governors, members of the
sangguniangpanlalawigan, and provincial treasurers,
assessors, engineers, and other provincial department heads
113
 b. City mayors, vice-mayors, members of the
sangguniangpanlungsod, city treasurer, assessors, engineers
and other department heads
c. Officials of the diplomatic service occupying the position of
consul and higher
d. Philippine army and air force colonels, naval captains, and all
officers of higher rank
e. Officers of PNP while occupying the position of provincial
director and those holding the rank of senior superintendent
or higher
f. City and provincial prosecutors and their assistants, and
officials and prosecutors in the Office of the Ombudsman and
special prosecutor
g. Presidents, directors or trustees, or managers of GOCCs, state
universities or educational institutions or foundations
h. Members of the Congress and officials thereof classified as
Grade 27 and up
i. Members of the judiciary without prejudice to the provisions
of the constitution
j. Chairmen and members of Constitutional Commissions
k. All other national or local officials classified as Grade 27 and
higher
3. Other offenses or felonies whether simple or complex with other crimes
committed by the public officials and employees mentioned in subsection
(1) in relation to their office
4. Civil and criminal cases filed pursuant to and in connection with EO Nos. 1,
2, 14 and 14-A – refers to orders on sequestration cases
Offenses committed in relation to the office: The relation has to be such that, in
the legal sense, the offense cannot exist without the office
 If the offense is intimately connected with the office of the offender and
perpetrated while he was in the performance of his official functions even
if public office is not an element of the offense charged
Jurisdiction:SAndiganbayan – even if not salary grade 27
Republic Act No. 10660: April 16, 2015
 There must be an allegation of damage to the Republic or there is
allegation of bribery in the amount of Php 1 million
 Without / such allegation the Sandiganbayan will not acquire
jurisdiction
 It will be the RTC or MTC as the case may be (consider imposable
penalty)
Rule 110 – Prosecution of Offenses
Criminal action: It is one by which the State prosecutes a person for an act or
omission punishable by law.
Institution of Criminal Action
Purpose:To determine the penal liability of the accused for having outraged the
state with his crime and, if he be found guilt, to punish him for it
Parties to the action:
- People of the Philippines
- Accused
Note: The offended party is regarded merely as a witness for the state
Institution vs. Commencement:
 Commencement: is the filing of complaint or information in court
 Institution: see discussion below
How criminal actions are INSTITUTED:Depends upon whether or not the
offense is one which requires a preliminary investigation
When required:A criminal action is instituted by filing the complaint with the proper
investigating officer for the purpose of conducting the requisite preliminary
investigation
© Gironella – Macadatar 2017 | Rule 110 – Prosecution of Offenses
When not required:Two ways:
1. By filing the complaint or information directly to the MTC
2. By filing the complaint with the office of the prosecutor
Rule in Manila and other chartered Cities:The complaint shall be filed with the
office of the prosecutor unless otherwise provided in their charter
- There is no direct filing in the RTC and MeTC
Significance or Effect of institution on the prescriptive period:Shall interrupt
the period of prescription of the offense charged unless otherwise provided by
special laws.
E.g. the filing of the complaint directly or to the proper officer
Sir Gayya: even if filed before an improper officer – it will toll the running of the
prescriptive period
Q: May the offended party go directly to court to file a criminal action?
GR: No. Before a complaint is filed in court, there should have been a
confrontation between the parties before the Lupon chairman. The Lupon
secretary must certify that no conciliation or settlement was reached, attested to
by the Lupon chairman. The complaint may also be filed if the settlement is
repudiated by the parties.
XPNs:
1) Where the accused is under detention
2) Where a person has otherwise been deprived of personal liberty calling
for habeas corpus proceedings
3) Where actions are coupled with provisional remedies
4) Where the action may be barred by the statute of limitations
Prosecution of the Criminal Action
Who prosecute the criminal action:Under the discretion and control of the
public prosecutor. Even if there is a private prosecutor
- Founded on the theory that a crime is a breach of the security and peace
of the people at large, an outraged against the very sovereign of the State
Appearance of a private prosecutor:
- Appointment is done by the offended party
- A mode to intervene in the prosecution of the offense
Not allowed when:
1. The offended party waives the civil action
2. Reserves the right to institute it separately
3. Institutes the civil action prior to the criminal action
Effect of filing an independent civil action:Does not deprive the offended party
of the right to intervene in the civil action through a private prosecutor
Since: the civil liability of the accused arising from the offense charges is deemed
impliedly instituted in a criminal action, unless:
- the offended party waives, reserve or instituted it prior to the criminal
action
- those not arising from the offense charged like independent civil actions
referred to in Article 32,33,34 and 2176 of the Civil Code are not deemed
instituted in the criminal action
- these actions shall proceed independently with the criminal action
Public Prosecutor’s functions:
1. determine whether a prima facie case exists
2. decide which of the conflicting testimonies should be believed free
from the interference or control of the offended party
3. subject only to the right against self-incrimination, determine which
witnesses to present in court
Note: the executive department of the government is accountable for the
prosecution of crimes
 the non-presentation of a witness cannot be construed as suppression of
evidence where the testimony is merely corroborative
114
  the Supreme Court cannot order the prosecution of a person - It must be instituted against both guilty parties, unless one of them is no
o exception: there is unmistakable showing of grave abuse of longer alive
discretion on the part of the prosecutor
Cannot be instituted when:
The matters within the control and supervision of the prosecutor: 1. The offended party has consented to the offense
1. What case to file 2. Has pardoned the offenders
2. Whom to prosecute
3. Manner of prosecution  The consent or pardon may be either express or implied
4. Right to withdraw information before arraignment even without notice
and hearing Q: Can the father file a complaint on behalf of his daughter for
concubinage?
Matters within the control of the Court after the case is filed:
1. Suspension of arraignment A: No. The rule allowing the parents, grandparents, and guardians
2. Reinvestigation to file a complaint on behalf of the minor applies only to the
3. Prosecution by the fiscal offenses of seduction, abduction, and acts of lasciviousness. A
4. Dismissal of the case complaint for adultery or concubinage may be filed only by the
5. Downgrading of offense or dropping of accused even before plea offended spouse.

Limitations of control by the Court: Prosecution of seduction, abduction and acts of lasciviousness:Shall not be
1. Prosecution is entitled to notice of hearing prosecuted except upon a complaint by the:
2. Court must await for petition for review  Offended party
3. Prosecution’s stand to maintain prosecution should be respected by the
 Her parents
court
4. The court must make its own independent assessment of evidence in  Grandparents
granting or dismissing motion to dismiss. Otherwise, the judgment is  Guardian
void.  State

Prosecution of a criminal action in the MTC or MCTC: Cannot be instituted when: When the offender has been EXPRESSLY pardoned by any
- when the prosecutor assigned is not available the following may of them
prosecute:
 the offended party Q: If the offended party in abduction, seduction, and acts of
 any peace officer lasciviousness is of age, can her parents file the complaint for her?
 public officer charged with the enforcement of the law
A: No. If the offended party is already of age, she has the exclusive
right to file the complaint unless she becomes incapacitated. The
Intervention of the offended party in the prosecution of the parents, grandparents, and guardian only have exclusive, successive
criminal action authority to file the case if the offended party is still a minor.

Civil Aspect of a crime:Article 100, RPC: ―every person criminally liable for a felony RA 7610 (Special Protection for Children Against Child abuse, Exploitation
is also civilly liable‖ and discrimination Act):
Filed by the following:
Includes: 1. Offended party
a) Restitution 2. Parents or guardian
b) Reparation of damage caused 3. Ascendant or collateral relative within the third degree of consanguinity
c) Indemnification of consequential damages 4. Officer, social worker or representative of a licensed child-caring
institution
Intervention of the offended party:It is the existence of the civil liability involved 5. Officer or social worker of the DSWD
in a crime that the offended party is allowed to intervene 6. Barangay Chairman
7. At least three concerned, responsible citizens where the violation
When a private prosecutor may prosecute a case even on the absence of the occurred
public prosecutor:
1. If he is authorized to do so Prosecution of defamation:The defamation consists in the imputation of the
2. In writing offenses of adultery, cuncubinage, seduction, abduction and acts of lasciviousness
3. Given by the chief of the prosecution office or the regional State - Brought at the instance of and upon the complaint filed by the offended
Prosecutor party
4. And approved by the court
Pardon vs. Consent:
Given in the following reasons: Pardon Consent
1. The public prosecutor has a heavy workload Refers to past acts Refers to future acts
2. There is a lack of public prosecutor In order to absolve the In order to absolve the accused
accused from liability, it must from liability, it is sufficient even if
Extent of authority: be extended to both granted only to the offending
- Up to the end of the trial unless the authority is revoked or otherwise offenders spouse
withdrawn
Parties who can give pardon:
Prosecution of private crimes
Crimes Parties who can give pardon
It cannot be prosecuted without the consent of the offended party. – EXCLUSIVE Concubinage and only the offended spouse, not otherwise
AND SUCCESSIVE RULE incapacitated.
adultery
Seduction, abduction a. The offended minor, if with sufficient
Prosecution of adultery and concubinage:Shall not be prosecuted except upon a
and acts of discretion, can validly pardon the
complaint filed by the offended party
accused by herself if she has no parents
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lasciviousness: or where the accused is her own father
and her mother is dead; Infirmity of signature in the information:A valid information signed by a
b. The parents, grandparents or guardian competent officer confers jurisdiction on the court over the person of the accused
of the offended minor, in that order, - Lack of authority of the officer signing it, cannot be cured by silence,
extend a valid pardon in said crimes acquiescence or even by express consent
without the conformity of the offended
party, even if the latter is a minor; SUFFICIENCY of the complaint or information:
c. If the offended woman is of age and not
otherwise incapacitated, only she can CONTENTS:
extend a valid pardon. 1. The name of the accused; if the offense is committed by more than one
person, all of them shall be included in the complaint or information
Subsequent Marriage of the Accused and the Offended Party:
Rules in designating the name of the accused:
General Rule: The subsequent marriage between the party and the accused, even after a) Must state the name and surname of the accused or any appellation or
the filing of the complaint, extinguishes the criminal liability of the latter, together nickname by which he has been or is known
with that of the co-principals, accomplices and accessories. b) If his name cannot be ascertained, he must be described under a
fictitious name
Exceptions:  Must be accompanied by a statement that his true name is
1. Where the marriage was invalid or contracted in bad faith in order to unknown
escape criminal liability; c) If later his true name is disclosed by him or becomes known is some
2. In ―private libel‖ or the libelous imputation of the commission of the other manner, his true name shall be inserted in the complaint or
crimes of concubinage, adultery, seduction, abduction, rape or acts of information and in the record of the case – formal amendment
lasciviousness and in slander by deed; and
3. In multiple rape, in so far as the other accused in the other acts of rape Note: Mistake in the name of the accused is not equivalent and does not
committed by them are concerned. necessarily amount to, a mistake in the identity of the accused especially when
sufficient evidence is adduced to show that the accused is pointed to as one of the
Effect of death by the offended party to the criminal action: perpetrators of the crime

If prior to the filing of a case in court, a complaint was already filed by the offended
party with the prosecutor, the death of the complainant will not be sufficient
justification for the dismissal of the information.
During the pendency of the case, will not extinguish the criminal liability of the
accused whether total or partial.
Juridical person: cannot be an accused but the officers therein can be held liable
- You cannot imprison the juridical person
2. The designation of the offense given by the statute
Allegation in the complaint determine the nature of the offense

The Complaint and Information The following rules must be observed:

COMPLAINT:A sworn written statement charging a person with an offense,
subscribed by the offended party, any peace officer, or other public officer, charged
with the enforcement of the law violated
 Not a mere statement
In whose name and against whom filed: Filed in the name of the People of the
Philippines
- And filed against all persons who appear to be responsible for the offense
involved
- Private offended parties are only witnesses for the prosecution
 Thus, he cannot appeal the dismissal of the criminal case or the
acquittal of an accused
 It can only be appeal by the Office of the Solicitor
General (OSG)
 However, he may appeal the civil aspect of the case
INFORMATION: Is an accusation in writing charging a person with an offense
subscribed by the prosecutor and filed with the court
- It is not required to be sworn since it is prepared by the prosecutor
- Like a complaint, an information is filed in the name of the People of the
Philippines
a) The designation of the offense requires, as a rule, that the name given to
the offense by statute must be stated in the complaint or information
 If no designation, a reference must be instead be made to the
section or subsection punishing it
b) To be included in the complete designation of the offense is an averment
of the acts or omission constituting the offense
c) The complaint or information must specify the qualifying and
aggravating circumstances of the offense
Effect of failure to designate the offense by the statute or failure to mention
the provision violated
- There is no law which requires that in order that an accused may be
convicted, the specific provision which penalizes the act charged be
mentioned in the information
Effect of failure to specify the correct crimes:Will not bar conviction of the
accused
- The crime committed is determined by the recital of the ultimate facts
and circumstances in the complaint or information
Q: May the accused be convicted of a crime more serious than
that named in the title of the information?

Distinction between a complaint and Information:
Complaint
Must be sworn, hence under
oath
Subscribed by:
1. The offended party
2. Any peace officer
3. Other public officer
charged with the
enforcement of the
law violated
A: The accused may be convicted of a crime more serious than that
named in the title or preliminary part if such crime is covered by the
Information facts alleged in the body of the information and its commission is
established by evidence (Buhat vs. Court of Appeals, 265 SCRA
Requires no oath
701).
Subscribed by the prosecutor
3. The acts of omission complained of as constituting the offense
Nature and character of the Crime: Not to be determine by the caption and
preamble of the informationnor by the specification of the provision of the law
alleged to have been violated
- BUT: the recital of the ultimate facts and circumstances in the
information
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 - it must be understand by person of common understanding
4. The name of the offended party
Same rule name of the accused
- If it is a juridical person, it is sufficient to state its name or any name or
designation by which it is known or by which it may be identified
 Without need of averring that it is a juridical person or it is
organized in accordance with law
In offenses against property:If the name of the offended party is unknown, the
property must be described in such particularity as to properly identified the
offense charged
5. The approximate date of the commission of the offense
General Rule: It is not necessary to state the precise date the offense was committed
 The offense may thus be alleged to have been committed on a date as near
as possible to the actual date of its commission
Exception: when the date of commission is a material element of the offense
e.g. Physical injuries, infanticide
6. The place where the offense was committed
How to state the place of the commission of the offense:
- Sufficient if it can be understood from the allegations of the complaint or
information that the offense was committed or some of its essential
elements occurred at some place within the jurisdiction of the court
Test of sufficiency: Whether the crime is described in intelligible terms with such
particularity as to apprise the accused, with reasonable certainty, of the offense
charged
Questioning the sufficiency: The right to question is not absolute
- Deemed to have waived the right if he fails to object upon his
 arraignment or
 during trial
- The evidence presented during the trial can cure the defect in the
information
Objections as to form:cannot be made for the first time on appeal
- Should have moved the same before arraignment either for:
 A bill of particulars or
 For the quashal of the information
Statement of the qualifying and aggravating circumstances:The accused will not
be convicted of the offense proved during the trial if it was not properly alleged in
the information
- It is not the use of the words ―qualifying‖ or ―qualified by‖ that raises a
crime to a higher category, but the specific allegations of an attendant
circumstance which adds the essential element raising the crime to a
higher category
Cause of Accusation:The allegations of facts constituting the offense charged are
substantial matters and an accused’s right to question his conviction based on facts
not alleged in the information cannot be waived
- It is not necessary to employ the words used in statute alleged to have
been violated
- Sufficient to enable a person of common understanding to know the
following:
 The offense being charged
 The acts or omissions complained of as constituting the
offense
 The qualifying and aggravating circumstances
Q: What must be alleged if the crime is ―committed in relation to
his office?‖
A: Mere allegation in the information that the offense was
© Gironella – Macadatar 2017 | Rule 110 – Prosecution of Offenses
committed by the accused public officer in relation to his office is
not sufficient. The phrase is merely ―a conclusion of law‖, not a
factual averment that would show close intimacy between the
offense charged and the discharge of the accused’s official duties.
What is controlling is the specific actual allegations in the
information (Lacson v. Executive Secretary, G.R. No. 128006, Jan.
20, 1999).
Duplicity of the offense:
General Rule: a complaint or information must charge only one offense
Exception:
1. More than one offense may, however, be charged when the law
prescribes a single punishment for various offenses (Complex crimes)
2. Failure of the accused to interpose an objection constitutes waiver
 Objection must be made before trial
Venue of Criminal Action
As a rule, the criminal action shall be instituted and tried in the court of the
municipality or territory
a. Where the offense was committed
b. Where any of its essential ingredients occurred
In case of written defamation:
Venue: RTC of the province or city where the libelous article is printed and first
published
Plus: if the offended party is a private individual: RTC of the province where he
actually resided at the time of the commission of the offense
Plus: if the offended party is a public officer: RTC of the province or city where he
held office at the time of the commission of the offense
Rule where the offense is committed in a train, aircraft or vehicle:In the court
of any municipality or territory where such train, aircraft or other vehicle passed
during its trip
- Including the place of its departure and arrival
Rule where offense is committed on board a vessel‖
a. The court of first port of entry or
b. Of the municipality or territory where the vessel passed during its
voyage
Rule when the offense is covered by Article 2 of the RPC:The court where the
criminal action is first filed
Continuous or transitory crimes – such offenses may be tried by the court of any
jurisdiction wherever the offender may be found, but the complainant should
allege that the offense was committed within the jurisdiction of the court
(Herrera, Vol. IV, p. 184, 2007 ed.).
Piracy – the venue of piracy, unlike all other crimes, has no territorial limits. It is
triable anywhere
B.P. 22 cases – the criminal action shall be filed at the place where the check was
dishonored or issued. In case of crossed check, the place of the depositary or the
collecting bank.
Q: where is the proper venue for the filing of information in the
following cases?
1. Theft of a car in Pasig City which was bought to
Obando.,Bulacan, where it was cannibalized.
2. The theft by Carl, a bill collector of ABC Company, with main
offices in Makati City, of his collections from customers in
Tagaytay City. In the contract of employment, Carl is detailed
to the Calamba Branch Office, Laguna, where he was to turn
117
 his collection.
3. the malversation of public funds by a Philippine Consul
detailed in the Philippine Embassy in London
A:
1. The proper venue is Pasig City where the theft of the car was
committed, not in Obando where it was cannibalized. Theft is
not a continuing offense.
2. If the crime charged is theft, the venue is in calamba where he
did not turn in his collections. if the crim of carl is estafa, the
essential ingredients of the offense took place in Tagaygay city
where he received his collections, in Calamba where he should
have turn his collection, and Makati where ABC company was
based.
3. TheSandiganbayan, where it is located. (Consider the new
law, RA 10660)
1. New allegations which merely relate to the range of the penalty that the
court might impose in the event of conviction
2. An amendment which does not charge another offense different or
distinct from that charged in the original one
3. Additional allegations which do not alter the prosecution’s theory of the
case so as to cause surprise to the accused and affect the form of defense
he has or will assume
4. An amendment which does not adversely affect any substantial right of
the accused
5. An amendment that merely adds specifications to eliminate vagueness
in the information and not to introduce new and material facts, and
merely states with additional precision something which is already
contained in the original information and adds nothing essential for
conviction for the crime charged
SUBSTITUTION

Amendment and Substitution of the Complaint or Information What: a mistake has been made in charging the proper offense

AMENDMENT When: if it appears any time before judgment

Q: What may be amended?
A: Only valid information may be amended. An information filed
before the effectivity of the law punishing the offense may not be
amended after the law had come into effect (Herrera, Vol. IV, p. 162,
2007 ed.).
The court will dismiss the original complaint or information once new one
charging the proper offense is filed
 Provided the accused will not place in double jeopardy
Who move for substitution: It is usually seen by the trial court – they move for
substitution

Amendment before plea:May be amended in form or substance, without the need Distinction between substitution and amendment:
for leave of court
Amendment Substitution
Except: Nature May involve either formal or Involves a substantial
Leave of court is required when: of the substantial changes change from the original
a. The amendment downgrades the nature of the offense charged offense charge
b. The amendment excludes any accused from the complaint or information Amendment before plea has Has to be with leave of
With or
been entered can be effected court as the original
without
Note: Aside from leave of court, require a motion by the prosecutor, with notice to leave without leave of court information has to be
the offended party dismissed
Where the amendment is only Another preliminary
Prelimin as to form, there is no need for investigation is entailed
Amendment after plea:Any formal amendment may only be made under two ary
conditions: investig another preliminary and the accused has to
1. Leave of court must be secured ation investigation and the retaking plead anew to the new
2. The amendment does not cause prejudice to the rights of the of the plea of the accused information
accused Nature Refers to the same offense Presupposes that the
of the charge in the original new information involves
Note: Amendment in substance, as a rule, clearly not allowed in this stage offense information a different offense

Formal amendment: Where: Q: Arthur was accused of homicide for the killing of Bebang. During
1. it neither affects nor alters the nature of the offense charged; or the trial, the public prosecutor received a copy of the marriage
2. the charge does not deprive the accused of a fair opportunity to present certificate of Arthur and Bebang. Can the public prosecutor move for
his defense; or the amendment of the information to charge Arthur with the crime of
3. It does not involve a change in the basic theory of the prosecution. Parricide?

Effect of Formal amendment: there is no need for another preliminary
investigation and the retaking of the plea of the accused if such were already
conducted
Q: When is there an amendment in substance?
A: There is an amendment in substance where it covers matters involving the recital
of facts constituting the offense charged and determinative of the jurisdiction of the
court. (Almeda v. Villaluz, GR No. L- 31665, August 6, 1975)
When an amendment is formal or substantial
a) Whether a defense under the information as it originally stood would be
available after the amendment is made
b) Whether any evidence defendant might have would be equally applicable
to the information in the one form as in the other
Note: Substitution of the private complainant is not a substantial amendment
A: NO. The information cannot be amended to change the offense
charged from homicide to parricide. Firstly, the marriage is not a
supervening fact arising from the act constituting the charge of
homicide. Secondly, after plea, amendments may be done only as to
form. The amendment is substantial as to change the nature of the
offense.
Q: suppose instead of moving for the amendment of the information,
the public prosecutor presented in evidence the marriage certificate
without objection on the part of the defense, could Arthur be
convicted of parricide?
A: NO. Arthur can be convicted only with Homicide not of parricide
which is graver offense. The accused has the constitutional rights of
due process and to be informed of the nature and the cause of
accusation against him.

The following have been held to be mere formal amendment:

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 Rule 111 – Prosecution of Civil Action RESERVATION:

GENERAL RULE: When a criminal action is instituted, the civil action for the When Made: The reservation shall be made before the prosecution starts presenting
recovery of civil liability arising from the offense shall be deemed instituted with its evidence but always under such circumstances that afford the offended party a
the criminal action. reasonable opportunity to make such reservation

Two aspects of criminal case: What is the reason for the inclusion of the phrase ―under such circumstances
1. Civil that afford the offended party a reasonable opportunity to make such
2. Criminal reservation‖?

- The civil liability arising from the offense charged shall be deemed This rule is added to address a situation where the accused pleads guilty to a non-
instituted with the criminal action capital offense in order to escape civil liability. In such instance, no trial shall be
- The criminal predominate the civil in the proceedings made and the prosecution cannot present its evidence. Nonetheless, a reasonable
opportunity shall be given for the offended party to make the reservation of his
Rationale: to avoid multiplicity of suits right to file a separate action. (In other words, pleading guilty to a non-capital
offense in order to escape civil liability arising from the offense is not allowed.)
Purposes of the criminal and civil aspects:
Case: A makes a valid plea of guilty for the crime of Homicide. The
Criminal action:To punish the offender in order to deter him and others from prosecution no longer presents evidence to prove A’s guilt. B, the offended
committing the same or similar offense party, chooses to reserve the right to institute a separate civil action. A
- To isolate him from the society objected on the ground that he may not do so because there will be no
- Reform and rehabilitate him presentation of evidence by the prosecution. Will A’s contention prosper?
- In general, to maintain social order (Menses v. Luat 12 SCRA 454: Reyes v. Simpio 141 SCRA 208)

Civil action: Answer: No, A is incorrect. B must be afforded reasonable opportunity to

reserve his right to institute a separate civil action.
- Resolution
- Reparation
What if the accused pleads guilty to a capital offense?
- Indemnification for the damage or injury he sustained
Answer: The prosecution still needs to prove the guilt of the accused along
Note: Judgment of conviction includes a judgment on the civil liability with his civil liability. There is no rule requiring automatic conviction for a
capital offense upon a valid guilty plea.
Double Recovery vis a- vis Double Jeopardy:While the law and rules prohibit
double recovery, there is no violation of the right of an accused against double
Cases where the offended party cannot reserve his right to institute a separate
jeopardy if the offended party files an appeal to seek an increase in the award of an
civil action:
accused’s civil liability. The right against double jeopardy applies only to criminal
1. violation of BP 22 - the liability is essentially civil
cases.
2. Those that fall within the jurisdiction of the Sandiganbayan - the
offended party is the State.
Real parties in interest in the civil aspect:The offended party and the accused
3. Tax cases
- Either of them may appeal the civil aspect of the judgment despite of the
acquittal of thee accused
In criminal actions for violation of BP 22, may the offended party still waive the civil
- The acquittal ends the prosecutor’s work
liability arising from the offense or institute a prior civil action to recover it?
Rule applicable: (with regards to the civil aspect): The rules of criminal
procedure, not the rules of civil procedure Yes. Only reservation of the right to file a separate civil action is prohibited
by the rules.
What if the accused is acquitted, what will happen to his civil
liability? Case: A killed her spouse, B. A was subsequently charged with parricide for which
she was found guilty. A and B had common children who are still minors. Prior to
the presentation of evidence by the prosecution, B’s heirs never made any
Reasonable Ground There is civil liability reservation to file a separate civil action to enforce the civil liability arising from
On the ground that he did not No civil liability the offense. Considering that the children are still minor, the judge ordered a
commit the crime reservation of their right to institute a separate action until a guardian for them
Under justifying circumstances No civil liability has been appointed. Nonetheless, despite its prior order, the trial court awarded
Under exempting circumstances There is civil liability damages in favor of A and B’s common children. A assailed the award on the
ground that the right to institute a separate civil action has been reserved. Is A
EXCEPTION TO THE GENERAL RULE: correct? (People v. Samson, 7 SCRA 478)
(1) When the offended party waives the civil action
(2) When the offended party reserves the right to institute the civil action Answer: No, A is incorrect. The reservation to institute a separate action is
separately personal. It may only be done by the offended party. Not even the court can make
(3) When the offended party institute the civil action prior to the criminal such reservation on behalf of the offended party.
action
Q: in an action for violation of BP 22, the court granted the
WAIVER: accused’s demurrer to evidence filed without leave of court.
However, the accused was required to pay private complainant the
What is needed to make a valid waiver? face value of the check. The accused filed a motion for
A waiver of the civil liability arising from the offense charged needs a reconsideration regarding the order to pay the face value of the
positive action and must also be personal. check on the ground that the demurrer to evidence applied only to
the criminal aspect of the case. Resolve the motion for
Form: the Rules of Court is silent – it can be in writing or orally, expressly or reconsideration.
impliedly
A: the motion should be denied. The ground that the demurrer to
evidence applied only to the criminal aspect of the case was not

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correct. Under Rule 111, the criminal action for BP 22 shall be
deemed to include the corresponding civil action. No reservation to
file such civil action separately shall be allowed.
PRIOR CIVIL ACTION
GENERAL RULE: When separate civil action is suspended: After the criminal
action is commenced, the separate civil action arising therefrom cannot be
instituted until final judgment has been entered in the criminal action
- Preference is given to the resolution of the criminal action
If the civil action was commenced before the institution of the criminal action, the
civil action shall be suspended in whatever stage it may be found before judgment
on the merits, once the criminal action is filed
 The suspension shall last until final judgment is rendered in the criminal
action
 The rule does not apply to independent civil action
If a civil action has been instituted prior to the criminal action, what happens
now to the civil aspect of the criminal action?The criminal action no longer has a
civil aspect. It is a purely criminal case.
EXCEPTION:
1. Independent civil actions
2. Civil Actions that involve prejudicial questions
3. Consolidation of the prior instituted civil action with the criminal action
4. Civil Actions that do not enforce liability arising from the offense
charged
Independent civil actions and civil actions that do not enforce liability arising from
the offense charged shall proceed unaffected by the criminal action.
Consolidation of the civil action with the criminal action:The offended party
may move for the consolidation of the civil action with the criminal action
When to file:To be filed before judgment on the merits is rendered in the civil action
- Tried and decided jointly
With regards to the evidence adduced:If evidence had already been adduced in the civil
action even before the institution of the criminal action, the evidence so adduced
shall be deemed automatically reproduced in the criminal action
- Without prejudice to the right to cross examine the witnesses presented
by the offended party in the criminal case
- It will not also prejudice the right of the party to present additional
evidence
Where to file motion for consolidation – in the civil court
Nature of Consolidation: it is not mandatory.
 It is not a ministerial duty of the court trying the criminal action to grant
application for consolidation of an earlier instituted civil action
Is the earlier instituted civil action deemed abandoned for
failure to consolidate it with the criminal action?
Answer: Yes if the civil action is one to recover civil liability arising
from a criminal action committed by government officials in
relation to their office. For all other cases, there is no abandonment
of the civil action by reason of failure to consolidate it with the
criminal action.
Note: Effect of failure to consolidate an earlier instituted civil action for crimes
committed by public officials in relation to their office = Abandonment of the Civil
Action
Q: can an employer be held civilly liable for quasi delict in a criminal
action filed against his employee?
A: NO since quasi delict is not deemed instituted with the criminal
action. If at all the only civil liability of the employer would be his
subsidiary liability under the RPC.
© Gironella – Macadatar 2017 | Rule 111 – Prosecution of Civil Action
Independent Civil Actions:
When civil action may proceed independently:
1. Civil actions arising from Art. 32 of the Civil Code - Violation of
Political and Civil Liberties.
2. Civil actions arising from Art. 33 of the Civil Code - Defamation, Fraud
(including estafa as fraud is used in its generic sense) and Physical
Injuries (still in generic sense- includes all offenses resulting to physical
injuries)
3. Civil actions arising from Art. 34 of the Civil Code – Failure to render
aid by a Peace Officer, Mayor, municipality
4. Civil Actions arising from Art. 2176 of the Civil Code – Quasi-delicts
Consequences of the independent character of the action:
1. The right to bring the civil action shall proceed independently of the
criminal action and regardless of the result of the latter
2. The quantum of evidence required is preponderance of evidence
3. The right need not be reserved since they are not deemed included
therein.
a. The institution or the waiver of the right to file a separate
civil action arising from the crime charged does not
extinguish the right to bring an independent civil action
b. Even if a civil action is filed separately, the ex delicto civil
liability in the criminal prosecution remains
Prejudicial Question
A prejudicial question is an issue involved in a civil case which is similar or
intimately related to the issue raised in the criminal action, the resolution of which
determines whether or not the criminal action may proceed.
Requisites:
(1) The previously instituted civil action involves an issue similar or
intimately related to the issue raised in the subsequent criminal action
 It is critical to show that the issue in the civil case is
determinative of the issue in the criminal case
(2) The resolution of such issue determines whether or not the criminal
action may proceed
(3) Jurisdiction to try said question must be lodged in another tribunal
Reason for the principle:To avoid two conflicting decision
It may not be invoked in the following situations:
a) Both cases are criminal
b) Both civil
c) Both cases are administrative
d) One case is administrative and the other civil
e) One case is administrative and the other is criminal
Effect of the existence of a prejudicial question:
- A petition for suspension of the criminal action based upon the
pendency of a prejudicial question in a civil action may be filed
- Precludes the motuproprio suspension of the criminal action
- Prejudicial question accords a civil case a preferential treatment
Note: Suspension does not include dismissal
When to file: The accused must file a motion to suspend before preliminary
investigation and if the criminal action is on trial, the motion to suspend must be
filed any time before the prosecution rests.
Where to file the petition for suspension:
- Does not require that the criminal case be already filed in court
- It is sufficient that the case be in the stage of preliminary investigation
 Thus it will be filed to the office of the prosecutor conducting
the PI
- The suspension is not to be filed in the civil case but in the criminal case
Illustration:
First case: criminal case for frustrated parricide
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Second case: action for the declaration of the nullity of their marriage
Ruling:
Not a prejudicial question:
a) In criminal case for frustrated parricide, the issue is whether the offender
commenced the commission of the crime of parricide directly by overt
acts and did not perform all the acts of execution by reason of some cause
or accident other than his spontaneous desistance.
On the other hand the issue in the civil action is whether petitioner is
psychologically incapacitated to comply with the essential marital obligation
b) Even if the marriage would be declared void, it would be immaterial to
the criminal case because prior to the declaration of nullity, the alleged
acts constituting the crime had been committed and all that is required
for the charge of frustrated parricide is that at the time of the commission
of the crime, the marriage is still subsisting
c) That the criminal case was filed ahead of the civil case
Case: A and B are husband and wife, respectively. B filed a case for
concubinage against A. Thereafter, A filed a petition to declare his marriage
with B as void ab initio. B now files a motion to suspend the proceedings of
the criminal action on the grounds of the existence of a prejudicial question.
Is there a prejudicial question in this case?
Answer: No. There is no prejudicial question. Foremost, for prejudicial
question to exist, there must be a prior instituted civil action and a criminal
case filed thereafter. In this case, it is the reverse. The civil case is filed after
the commencement of the criminal action.
Question: What if in the above case, the petition for declaration of nullity
of marriage was filed earlier prior to the institution of the criminal action
for concubinage. Will there be a prejudicial question?
Answer: There is still no prejudicial question even if the civil case has been
filed earlier. The outcome of a civil case for annulment of marriage or
declaration of a marriage as void ab initio does not determine the guilt of
the accused in concubinage.
Question: Suppose the petition for declaration of nullity was filed prior to
the institution of a criminal case for bigamy. Will there be a prejudicial
question?
Answer: There is still no prejudicial question. As a rule, the validity of
either the first and second marriage is not a prejudicial question in the case
of bigamy. But if the validity of the second marriage is in question due to
vitiation of or absence of consent, such as when the accused was made to
contract the second marriage against his will by force, threat, or duress, it
now becomes a prejudicial question. (Merced v. Diez GR No. L-15315,
August 26, 1960; Zapanta v. Mendoza GR No. L-14534, February 28, 1962)
Suspension of the period of prescription:The prescriptive period of the civil
action shall be tolled during the pendency of the criminal action
Counterclaim, cross-claim, third party claim in a criminal action:A court cannot
entertain those complaints in the criminal action
- Not the proper proceedings to determine the private complainant’s civil
liability
- Criminal case is limited to determining the guilt of the accused, and if
proper, to determine his civil liability
- any cause of action which could have been the subject thereof may be
litigated in a separate civil action
Rules on filing fees:Filing fees apply when damages are being claimed by the
offended party
- No filing fees for actual damages unless required by the rules
- Other damages: Paid upon the filing of the criminal action
Q: Ana, for failure to remit to Bong the money collected and instead
deposited the same to the latter’s personal account, was charged
© Gironella – Macadatar 2017 | Rule 111 – Prosecution of Civil Action
with estafa. Ana filed a motion to suspend the proceedings pending
resolution of a civil case earlier filed for accounting and damages
regarding the same subject matter. How the prosecutor should
oppose the motion?
A: the civil case filed by Bong against Ana for accounting and
damages does not involve an issue similar to or intimately related to
the issue of estafa raised in the criminal action. The resolution of the
issue in the civil case for accounting and damages will not
determine whether the criminal cation for estafa may proceed.
Q: Andrew allegedly sold to Brian a parcel of land which Andrew
later sold to Xavier. Brian brought civil action for nullification of the
second sale and asked that the sale made by Andrew in his favor be
declared valid. Andrew claims that he never sold the property to
Brian and his purported signatures appearing in the first deed of
sake were forgeries. Thereafter, an information for estafa was filed
against Andrew based on the same double sale that was the subject
to the civil action. Andrew filed a motion for suspension of action in
the criminal case, contending that the resolution of the issues in the
civil case would necessarily be determinative of his guilt or
innocence. Is the suspension of the criminal action in order?
A: YES. The suspension of the criminal action is in order because
the defense of Andrew in the civil action, that he never sold the
property to Brian and that his purported signatures in the first deed
of sale were forgeries, is a prejudicial question the resolution of
which is determinative of his guilt or innocence. If the first sale is
null and void, there would be no double sale and Andrew would be
innocent of the offense estafa.
Effect of Acquittal on Civil Liability
General Rule. Dismissal of the criminal action does not bar the civil action
 The extinction of the criminal action does not carry with it the
extinction of the civil action unless (exception clause) the civil action is
based on the delict and there is a finding in the criminal action that the
act or omission from which the civil liability may arise did not exist.
 Such finding may not be exactly worded as such but it could be
impliedly stated.
Dismissal of the criminal action is still not a bar to the Civil Action in the
following cases.
1. Acquittal is based on reasonable doubt.
2. Finding by the court that the accused’s liability is civil
3. If the civil liability is not based on the crime that is the subject matter of
the criminal action.
Effect of death of the accused on the Civil Action
Dies after arraignment and during the pendency of the criminal action: the
civil liability of the accused arising from the crime is extinguished but the
independent civil actions may be continued
- The heirs may be substituted for the deceased without requiring the
appointment of an executor or administrator and the court may appoint
a guardian ad litem for the minor heirs
- Must be substituted within a period of thirty days from notice
Dies before arraignment: the case shall be dismissed but the offended party may
file the proper civil action against the estate of the deceased.
After Conviction but During the Pendency of an Appeal: The criminal liability
is extinguished. The civil action based on the delict is also extinguished but if it is
not based on delict, it is not extinguished.
Novation:Not one of the ground prescribed by RPC for the extinguishment of
criminal liability
Effect of acquittal or the extinction of the penal action on the civil action or
liability:The extinction of the penal action does not carry with it the extinction of
the civil action
121
 - However, the civil action based on delict may be deemed extinguished if
there is a finding in a final judgment in the criminal action that the act or
omission from which the civil liability may arise did not exist
The extinction of the penal action does not carry with it the extinction of the
civil action where:
1. The acquittal is based on reasonable doubt as only preponderance of
evidence is only required
2. The court declares that the liability of the accused is only civil
3. The civil liability of the accused does not arise from or is not based upon
the crime of which the accused is acquitted
Effect of payment of the civil liability:Does not extinguish criminal liability
- Such compromise shall not extinguish the public action for the
imposition of the legal penalty
Effect of judgment in the civil case absolving the defendant:Is not a bar to a
criminal action against the defendant for the same act or omission subject of the
civil action
Subsidiary liability of the employer:Are deemed written into the judgments in
cases to which they apply
- The trial court need not expressly pronounce the subsidiary liability of
the employer
- Before the employer’s subsidiary liability is enforced, adequate evidence
must exist establishing that
 They are indeed the employers of the convicted employees
 They are engaged in some kind of industry
 The crime was committed by the employees in the discharge of
their duties
 The execution against the latter has not been satisfied due to
insolvency
 These conditions may be determined in the same
criminal action
Q: Allan and Boyet were charged with murder committed in
conspiracy. After trial, Allan and Boyet were convicted as charged.
While the case was pending in the CA, Allan died. Should the
appeal still continue despite the death of Allan?
A: YES. Notwithstanding the death during the pendency of the
criminal action of one of two accused charged with and convicted
for murder committed in conspiracy, the appeal should continue to
determine criminal and civil liability. Here, the death of Allan
extinguished his criminal and civil liability arising from the offense,
but Boyet may still be found criminally and civilly liable.
Rule 112 – Preliminary Investigation
Is an inquiry or a proceeding the purpose of which is to determine whether there is
sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof, and should be held for
trial
Nature: It is a mere inquiry, thus it is not a trial(Judicial inquiry); Merely
inquisitorial
Purpose:Its purpose is not to declare the respondent guilty beyond reasonable
doubt but only to determine:
- Whether or not a crime has been committed
- Whether or not the respondent is ―probably guilty‖ of the crime
 If there is probable cause, the prosecutor file the
corresponding information
Probable cause:Implies probability of guilt and requires more than mere suspicion
but less than evidence to justify conviction
Nature of the right to a preliminary investigation: The holding of PI is not
required by the Constitution
- Not a fundamental right and is not among those rights guaranteed in the
Bill of Rights
© Gironella – Macadatar 2017 | Rule 112 – Preliminary Investigation
- The right is of statutory character
 But a component of due process in criminal justice
- It is a substantive right and not a mere formal or technical right
Waiver of right; when is there or no waiver: It being a personal right, it can be
waived expressly (must be clear and unequivocal manner) or by implication –
 The right to a PI may be waived for failure to invoke the right prior to or
at the time of the plea
 It cannot be raised for the first time on appeal
Preliminary investigation vs. preliminary examination:
Preliminary
Preliminary Investigation
Examination /Inquiry
Conducted by the prosecutor Conducted by the judge
To ascertain whether the alleged offender To determine probable
should be held for trial, to be subjected to cause for the issuance of
the expense, rigors and embarrassment of a warrant of arrest
trial or if the offender is to be release
Executive in nature Judicial function
Note: the court cannot interfere with the conduct of preliminary investigations,
leaving the investigatory officers sufficient discretion to determine probable cause
Probable cause in Preliminary Investigation:
Definition: existence of such facts and circumstances that would lead a person of
ordinary caution and prudence to entertain an honest and strong suspicion that
the person charged is guilty of the crime subject of the investigation
- Based merely on opinion and reasonable belief, it does not import
absolute certainty
- Determination of its existence lies within the discretion of the
prosecuting officers after conducting a PI upon complaint of the
offended party
- It is not a pronouncement of guilt
- The complainant need not be present at this stage
- It does not require a full and exhaustive presentation of parties’ evidence
Kinds of determination of probable cause:
 Executive – one made during preliminary investigation. Function
pertains to the public prosecutor. Has the quasi-judicial authority to
determine whether or not a criminal case must be filed.
 Judicial – one made by the judge to ascertain whether a warrant of
arrest should be issued against the accused.
 The judge must satisfy himself that based on the evidence
submitted there is necessity in issuing the warrant
Cases that requires Preliminary Investigation:
 For an offense where the law prescribes a penalty of at least 4 years, 2
months and 1 day without regard to the fine
Exceptions:
1. Those with lower penalty;
2. Cases falling under the rules on summary procedure
3. Special laws provide otherwise;
4. Cities whose charter require PI;
5. Person arrested lawfully without warrant.
 Inquest or a summary investigation is conducted to determine
whether he should remain under custody and then be charged
in court if there is probable cause.
 The person arrested may ask for PI, but he has to sign a
waiver of Art. 125 of RPC.
 This, however, does not preclude him from applying for bail.
If prosecutors says that arrest was not lawful:
1. Recommend release;
2. Note down the disposition;
122
 3. Prepare brief memorandum of the reasons for the action taken; and
4. Forward to city or prov’l pros. for action.
If recommendation for release is approved but the evidence warrants conduct of PI,
release order shall be served by officer having custody and shall direct the officer to
serve upon detainee the subpoena or notice of PI.
Procedure for cases not requiring a preliminary Investigation:Two ways of
initiating the criminal action:
a) First, by filing the complaint directly with the prosecutor
The complaint shall comply with the following:
a) The address of the respondent must be indicated in the complaint
b) To establish probable cause, the complaint shall be accompanied by:
i. The affidavit of the complainant
ii. The affidavits of the complainant’s witnesses
iii. Other supporting documents
c) The appropriate number of copies of the above as there are respondents,
plus two copies for the official file must be submitted
d) The affidavits must be subscribed and sworn to before:
i. any prosecutor or
ii. government official authorized to administer oaths or
iii. before a notary public
Note: the prosecutor shall act on the complaint based on the affidavits and other
supporting documents within 10 days from its filing
The three is obligated to conduct personal examination of the affiants and corollary,
to certify that he personally examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits
b) Second, by filing the complaint or information with the MTC: In the
same way as when the complaint is filed directly with the prosecutor
The judge shall personally evaluate the evidence or personally examine in writing
and under oath the complainant and his witnesses in the form of searching
questions and answer
 If within 10 days from filing , the judge finds no probable cause, he shall
dismiss the same
 If the judge finds probable cause, he shall issue a warrant of arrest
 If the accused has already been arrested, the court shall instead
issue a commitment order
 The court may issue summons instead of warrant of arrest if there is no
necessity in placing the accused under custody
When preliminary investigation is not required even if the offense is one which
normally requires a preliminary investigation:
 If a person arrested lawfully without a warrant involving an offense
which requires a PI, an information or complaint may be filed against him
without need of PI
 E.g arrested in flagrante delicto
 If he has been arrested in a place where an inquest prosecutor is available,
an inquest will be conducted instead of PI
 In the absence of the inquest prosecutor, the complaint may be
filed directly with the proper court on the basis of the affidavit
of the offended party or arresting officer
Exception: such person may, nevertheless, ask for a PI before the complaint or
information is filed but must sign a waiver of the provision of article 125 of the RPC,
as amended, in the presence of his counsel
 The PI must be terminated within 15 days from inception
Article 125: imposes a penalty upon a public officer or an employee who, although
having detained a person for some legal ground, fails to deliver the person arrested
to the proper judicial authorities within the periods of 12, 18, or 36 hours as the case
may be.
Remedy: Habeas corpus or bail
© Gironella – Macadatar 2017 | Rule 112 – Preliminary Investigation
Exception to the exception: if an information or complaint has already been filed,
the person arrested who is now an accused, may still ask for PI within 5 days from
the time he learns of its filing
 Address it to the court – a motion to conduct a preliminary
investigation
Bail for a person lawfully arrested during the PI:He may apply for ail
notwithstanding the waiver of the provisions of Article 125 of the RPC
 And even if no information has yet been filed against him
Who issue: applied for and issued by the court in the province, city, or
municipality where the person arrested is held.
Questioning the absence of PI:
 must do so before he enters his plea
 failure: waiver
 the court shall resolve the matter as early as practicable but not later
than the start of the trial
 a motion to quash is not the proper remedy
 the court should not dismiss the information
 it should remand the case to the prosecutor so that the
investigation may be conducted
Absence of Pi; Effect on jurisdiction of the court: it does not affect the court’s
jurisdiction over the case nor does it impair the validity of the information or
otherwise, render it defective
Inquest Proceedings
It is conducted when a person is lawfully arrested without a warrant involving
even also an offense which requires a PI
Nature: it is not a preliminary investigation
 it is a summary investigation
 it is informal
Purpose:to determine whether or not the person detained should remain under
custody and then charged with court
Whose duty:public prosecutor who is assigned inquest duties as an Inquest
Officer
Where to discharge duties:unless otherwise directed, only at the police
station/headquarters of the PNP
Commencement:from the time the inquest officer receives the complaint and
referral documents from the law enforcement authorities
Referral Document:
1. affidavit of arrest
2. investigation report
3. statement of the complainant and the witnesses
4. other supporting documents gathered
Note: the detained person should be present during the inquest proceeding
 if necessary, require the presence of the complaining witnesses and
o subject them to informal and summary investigation or
examination for purpose of determining the existence of
probable cause
Instances when production of detained person before the inquest officer is
dispensed with:
1. if he is confined in a hospital
2. if he is detained in a place under maximum security
3. if production of the detained person will involve security risk
4. if the presence of the detained person is not feasible by reason of age,
health, sex and other similar factors
Possible option of the inquest prosecutor:
 initial duty: determine if the detained person has been arrested lawfully
123
  the IO may summarily examine the arresting officers on the
circumstances surrounding the arrest or apprehension of the Complaint
detained person
 if not lawful: recommend the release of the detainee
 when the recommendation is approved, the order of release 10 Days within
shall be served on the officer having custody of said detainee which to decide
Dismissal
Note:The inquest must pertain to the offense for which the arrest was made
Issuance of Can’t be
Subpoena subpoenaed
Who may conduct PI and determine Existence of probable cause:
1. Provincial or city prosecutors and their assistance
2. National or Regional State Prosecutors
3. Other officers as may be authorized by law

Note: Judges of the 1st level courts are no longer allowed to conduct PI (Sibulo v. NO Counter Counter 10 Days
Toledo-Mupas, A.M. No. MTJ-07-1686, June 12, 2008) Affidavit Affidavit from
receipt of
 The authority of the above shall include all crimes cognizable by the the
proper court in their respective territorial jurisdiction Subpoena

The following may also conduct PI: Reply

1. Under the omnibus Election Code – the COMELEC through its duly
authorized legal officers; of election offenses
2. The office of the Ombudsman has the authority to investigate and
prosecute on its own or on complaint by any person, any act or omission Rejoinder
of any public officer or employee, office or agency, when such act or
omission appears to be illegal, unjust, improper or inefficient
3. The PCGG with the assistance of the OSG and other government 10 Days
agencies from
Clarificatory Submission
Hearing of the CA or
expiration
of the period
to File CA

Prosecute /
Resolve

PROCEDURE OF PRELIMINARY INVESTIGATION

10 Days
from
TRIAL NO TRIAL Termination
of
investigatio
n
Resolution
/Information Forwarding Dismissal
of Record

City / Provincial prosecutor /

Ombudsman Prosecutor

Approve Disapprove

Information Move for dismissal

Within 15 days
Motion for reconsideration
from receipt of Rule 43
resolution
Petition for review CA
DOJ
1. Filing of complaint with prosecutor;

Hierarchy before whom affidavits may be subscribed:

Prosecutor
Government official
Notary public

© Gironella – Macadatar 2017 | Rule 112 – Preliminary Investigation 124

 2. Dismissal or issuance of subpoena
 Dismiss if no ground to conduct investigation
 Issue subpoena if there is ground
3. Filing of counter-affidavit
4. Not in the rules but REPLY and REJOINDER may be filed;
5. If no counter-affidavit, prosecute to resolve
6. Clarificatory hearing, if necessary; no right of cross-examination (NOT
INDISPENSABLE). Questions should be coursed through the prosecutor.
7. Determination by prosecutor-within 10 days from termination of
investigation-whether there is ground to hold respondent for trial.
8. Resolution:
9. Forwarding of records for action/approval before filing or dismissal
Note: the complaint filed for the purpose of PI differs from the complaint filed for
the purpose of instituting a criminal prosecution
Dismissal of the complaint; Issuance of Subpoena:
From the filing of the complaint, the investigating officer has 10 days within which
to decide which of the following option to take:
a) To dismiss the complaint if he finds no ground to conduct the
investigation
b) To issue a subpoena to the respondent in case he finds the need to
continue with the investigation
 The subpoena is accompanied with the copy of the complaint
and its supporting affidavits and documents
 The respondent have the right to examine the evidence
submitted by the complainant
Filing of Counter-Affidavits by the respondent:
 Respondent is not allowed to file a motion to dismiss in lieu of counter
affidavit
 Instead, within 10 days from receipt of the subpoena, he is required to
submit counter affidavit
Reply Affidavit:Reply to the counter-Affidavit
Rejoinder Affidavit:Rebuttal of the reply affidavit
If no Counter Affidavit:The investigating officer shall resolve the complaint based
on the evidence presented by the complainant
Effect: ex parte investigation
Remedy of the respondent:Through a proper motion, to have the proceeding
reopened to allow him to submit his counter-affidavits
 The motion should be done before the prosecutor has issued a resolution
in the case
 Such motion shall contain explanation for the failure to timely file the
counter-affidavit
Clarificatory hearing if necessary:
When: within 10 days from submission of the counter-affidavit or within 10 days
from the expiration of the period of their submission
What: a hearing may be set by the hearing officer
Condition: if there are facts and issues to be clarified either from a party or the
witnesses
Note: The parties can be present at the hearingBut do not have the right to examine
or cross-examine each other or the witnesses
 If they have questions to ask, they shall submit their questions to the
investigating officer who shall ask the questions to the party or witness
concerned
Termination: within 5 days
Determination by the investigating officer:
 Within 10 days from the termination of the investigation
© Gironella – Macadatar 2017 | Rule 112 – Preliminary Investigation
 The investigating prosecutor shall determine whether or not there is
sufficient ground to hold the respondent for trial
 Discretionary, thus, mandamus will not lie to compel the filing of an
information or complaint
Resolution of the investigating prosecutor:
 If there is cause to hold respondent for trial, he shall prepare both the
resolution and information
 If not, recommend the dismissal of the complaint
The information shall contain a certification by the investigating officer under oath
in which he shall certify to the following:
a) That he, or as shown by the record, an authorized officer, has personally
examined the complainant and his witnesses
b) That there is reasonable ground to believe that a crime has been
committed
c) That the accused is probably guilty thereof
d) That the accused was inform of the complaint and of the evidence
submitted against him
e) That he was given opportunity to submit controverting evidence
Absence:The information is nonetheless considered valid for the reason that such
certification is not an essential part of the information itself
Forwarding of the records of the case for action:
When:within 5 days from his resolution
What:he shall forwardthe record of the case to the provincial or city prosecutor or
chief state prosecutor, or to the ombudsman or his deputy in cases of offense
cognizable by the Sandiganbayan in the exercise of its original jurisdiction
What:they shall act on the resolution within 10 days from receipt thereof and shall
immediately inform the parties of such action
Reason: no complaint or information may be filed or dismissed without the prior
written authority or approval of the provincial or city prosecutor or chief state
prosecutor or the ombudsman or his deputy
 Thus, the resolution of the investigating prosecutor may be reversed or
affirmed
Q:Are the findings or resolution of the investigating prosecutor final?
A: No, the resolution of the investigating prosecutor is merely
recommendatory. No complaint or information may be filed or
dismissed by an investigating prosecutor without the prior written
authority or approval of the provincial or city prosecutor or chief
state prosecutor or the Ombudsman or his deputy (Sec. 4).
Q:What is the rule when the recommendation for dismissal by the investigating
prosecutor is disapproved?
A: If the recommendation of the investigating prosecutor is
disapproved by the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy on the ground that a
probable cause exists, the latter, may by himself, file the
information against the respondent, or direct another assistant
prosecutor or state prosecutor to do so without conducting another
preliminary investigation (Sec. 4)
Q:What is the rule when the resolution is reversed or modified by the Secretary
of Justice?
A: If upon petition by a proper party or motuproprio, the Secretary
of Justice reverses or modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall direct the prosecutor
concerned either to file the corresponding information without
conducting another preliminary investigation, or to dismiss or move
for dismissal of the complaint or information with notice to the
parties (Sec. 4)
125
 Preliminary examination: is the proceeding for the determination of the existence
Motion for Reconsideration: The aggrieved party is not precluded of probable cause for the purpose of issuing a warrant of arrest.
from filing a MR within 15 days from receipt of the assailed
resolution Warrant of arrest: is a legal process issued by a competent authority directing the
arrest of a person or persons upon the grounds stated therein
Motion denied: remedy: Appeal to the DOJ within 15 days from the
denial of the MR Requisites for the issuance of a warrant of arrest:
1. Issued upon finding of probable cause
Q:What is the effect of the filing of a petition for review before the DOJ if the 2. personally determined by the judge
information was already filed in court? 3. after examination under oath or affirmation of the complainant and the
witnesses that he/she may produce, and
A: Should the information be already filed in court but the accused 4. particularly describing the person to be seized
filed a petition for review of the findings of the prosecutors with the 5. it must be in connection with one specific offense
DOJ, the court is bound to suspend the arraignment of the accused
for a period not exceeding 60 days (Sec. 11, Rule 116). Question: In the issuance of a warrant of arrest, is a judge required
to personally examine the complainant and witnesses he may
produce?
Review
Answer: No. He only has to personally evaluate the resolution
Q: What is the remedy of the aggrieved party from the resolution of the investigating prosecutor as
(from the prosecutor) and the supporting evidence.
approved by his superior?
Probable cause in connection with the issuance of a warrant of arrest:Assumes the existence
A: A verified petition for review within 15 days from the resolution or denial of the
of facts that would lead a reasonably discreet and prudent man to believe that a
motion for reconsideration. The Secretary of Justice may reverse or modify the
crime has been committed and that it was likely committed by the person sought
resolution.
to be arrested
The Secretary of Justice may also motuproprio reverse or modify the resolution.
PROCEDURE: Issuance of Warrant of Arrest
Note: The Secretary of justice may review resolutions of his subordinates in
RTC:
criminal cases despite the information being filed in court (Community Rural Bank
1. Within 10 days from the filing of the complaint or information, the judge
of Guimba v. Talavera, A.M. No. RTJ-05-1909, Apr. 6, 2005).
shall personally evaluate the resolution of the prosecutor and its
supporting evidence.
Q:What is the remedy of an aggrieved party against the resolution of the Secretary of Justice? 2. He may immediately dismiss the case if the evidence fails to establish
probable cause.
A: Such resolution may be nullified in a petition for certiorari under Rule 65 on 3. If he finds probable cause, he shall issue a warrant of arrest or a
grounds of grave abuse of discretion resulting to lack or excess of jurisdiction commitment order if the accused has already been arrested by virtue of a
(Ching v. Sec. Of Justice, G.R. No. 164317, Feb. 6, 2006). warrant issued by the MTC judge who conducted the preliminary
investigation or if he was arrested by virtue of a lawful arrest without
Alternative Answer: warrant.
The resolution of the DOJ is appealable administratively before the Office of the 4. In case of doubt on the existence of probable cause, the judge may order
President, and the decision of the latter may be appealed before the CA pursuant to the prosecutor to present additional evidence within 5 days from notice
Rule 43 (De Ocampo v. Sec. Of Justice, G.R. No. 147392, Jan. 25, 2006). and the issue must be resolved within 30 days from the filing of the
complaint or information.
Q: What is the remedy against the resolution of the Ombudsman?
MTC:
A: The resolution of the Ombudsman may be subject of petition for review via Rule 1. If the preliminary investigation was conducted by a prosecutor, same
43 before the CA or a special civil action for certiorari via Rule 65 before the SC. procedure as above
2. If the preliminary investigation was conducted by the MTC judge and
The resolution of the Ombudsman, if the latter acted without or in excess of his findings are affirmed by the prosecutor, and the corresponding
jurisdiction, may be nullified by a writ of certiorari (Ramiscal v. Sandiganbayan, information is filed, he shall issue a warrant of arrest.
G.R. Nos. 109727-28, Aug. 18, 2006) 3. However, without waiting for the conclusion of the investigation, he
may issue a warrant of arrest if he finds after:
Note: In the absence of grave abuse of discretion, the court will not interfere or pass a. an examination in writing and under oath of the complainant
upon the findings of the Ombudsman to avoid its being hampered by innumerable and his witnesses
petitions assailing the dismissal of the investigatory proceedings conducted by the b. in the form of searching questions and answers that probable
latter (Tejano v. Ombudsman, G.R. No. 159190, June 30, 2005). cause exists AND that there is a necessity of placing the
accused under immediate custody in order not to frustrate
Q: Does the SC and CA have the power to review preliminary investigation? the ends of justice.
A: Yes, they have the power to review the findings of prosecutors in preliminary
investigations (Social Security System v. DOJ, G.R. No. 158131, Aug. 8, 2007). Rule 113 – Arrest
It is the taking of a person into custody in order that he may be bound to answer
for commission of an offense
Warrant of Arrest
Whose duty:
1. Law enforcement officers – PNP, NBI, PDEA
CONSTITUTIONAL BASIS: No warrant of arrest should issue except upon
2. Citizen’s arrest – but they cannot implement warrant of arrest unless
probable cause to be determined personally by the judge after examination under
they knows that there is standing warrant of arrest
oath or affirmation of the complainant and the witnesses he may produce (Section
2, Article VI, 1987 Constitution)
General Rule: only police officers can effect implementation of warrant of arrest

© Gironella – Macadatar 2017 | Rule 113 – Arrest 126

Exception: the Bureau of Immigration – they can issue an arrest order pursuant to a
final order or decree against the alien
How is arrest made? (Rule 113, Sec. 2)
 An arrest is made by an actual restraint of a person to be arrested, or
 By his submission to the custody of the person making the arrest.
 No violence or unnecessary force shall be used in making an arrest
o The person arrested shall not be subject to a greater restraint
than is necessary for his detention
Method of arrest with a warrant:
 The head of the office to whom the warrant of arrest was delivered shall
cause the warrant to be executed within 10 days from its receipt
 Within 10 days after the expiration of the period, the officer to whom it
was assigned for execution shall make a report to the judge who issued
the warrant
 In case of failure, he shall state the reasons for its non-
execution
 The case will be archived – not dismiss but it will not proceed
 If found – apply – BENCH WARRANT OF
ARREST
 There is no need to immediately present the warrant of arrest to the
arrested person – but must show to it as soon as practicable
Question: What is the lifetime of a warrant of arrest?
Answer: There is no definite lifetime of a warrant of arrest. It
remains valid and effective until it has been executed or otherwise
recalled by the court issuing it.
Question: What is the lifetime of a search warrant?
Answer: A search warrant has a definite 10-day lifetime from its
date of issue.
Duties of an Arresting Officer:
1. Duty to execute warrant of arrest within 10 days from receipt.
2. Duty to make a report to the judge within 10 days from the expiry of the
10 day period to execute the warrant.
3. In case of:
a. Arrest by virtue of a warrant – duty by the arresting officer to
inform the accused of his authority and the fact that a warrant
has been issued for his arrest.
b. Warrantless arrest - duty by the arresting officer to inform the
accused of his authority and the cause for the arrest.
4. Duty to apprise the accused of his Constitutional Rights.
5. Duty to deliver the accused to the nearest police station or jail without
necessary delay.
The information need not be made when the person to be arrested:
a) Flees
b) Forcibly resists
c) The giving of the information will imperil the arrest
Note: The officer need not have the warrant in his possession at the time of the
arrest. However, after the arrest, the warrant shall be shown to him as soon as
practicable, if the person arrested so requires
Question: What is the remedy of a peace office if the warrant of
arrest was lost?
Answer: An arresting officer shall apply for an alias warrant if the
warrant of arrest is lost.
Objects subject to confiscation from the person arrested:
1. Objects subject of the offense or used or intended to be used in the
commission of a crime
2. Objects which are fruits of the crime
3. Those which might be used by the arrested person to commit violence or
to escape
4. Dangerous weapons and those which may be used as evidence in the case
What must an arresting officer inform the accused upon his
arrest? (People v Mahinay, 1999)
Under the Mahinay doctrine, an arresting officer must inform the
accused of his expanded Miranda rights as follows.
1. The person arrested, detained, invited or under custodial
investigation must be informed in a language known to
and understood by him of the reason for the arrest and he
must be shown the warrant of arrest, if any; Every other
warnings, information or communication must be in a
language known to and understood by said person;
2. He must be warned that he has a right to remain silent
and that any statement he makes may be used as evidence
against him;
3. He must be informed that he has the right to be assisted
at all times and have the presence of an independent and
competent lawyer, preferably of his own choice;
4. He must be informed that if he has no lawyer or cannot
afford the services of a lawyer, one will be provided for
him; and that a lawyer may also be engaged by any person
in his behalf, or may be appointed by the court upon
petition of the person arrested or one acting in his behalf;
5. That whether or not the person arrested has a lawyer, he
must be informed that no custodial investigation in any
form shall be conducted except in the presence of his
counsel or after a valid waiver has been made;
6. The person arrested must be informed that, at any time,
he has the right to communicate or confer by the most
expedient means – telephone, radio, letter or messenger –
with his lawyer (either retained or appointed), any
member of his immediate family, or any medical doctor,
priest or minister chosen by him or by any one from his
immediate family or by his counsel, or be visited
by/confer with duly accredited national or international
non-government organization. It shall be the
responsibility of the officer to ensure that this is
accomplished;
7. He must be informed that he has the right to waive any of
said rights provided it is made voluntarily, knowingly
and intelligently and ensure that he understood the same;
8. In addition, if the person arrested waives his right to a
lawyer, he must be informed that it must be done in
writing AND in the presence of counsel, otherwise, he
must be warned that the waiver is void even if he insist
on his waiver and chooses to speak;
9. That the person arrested must be informed that he may
indicate in any manner at any time or stage of the process
that he does not wish to be questioned with warning that
once he makes such indication, the police may not
interrogate him if the same had not yet commenced, or
the interrogation must ceased if it has already begun;
10. The person arrested must be informed that his initial
waiver of his right to remain silent, the right to counsel or
any of his rights does not bar him from invoking it at any
time during the process, regardless of whether he may
have answered some questions or volunteered some
statements;
11. He must also be informed that any statement or evidence,
as the case may be, obtained in violation of any of the
foregoing, whether inculpatory or exculpatory, in whole
or in part, shall be inadmissible in evidence.
Q:Jose, Alberto and Romeo were charged with murder. Upon filing of the
information, the RTC judge issued the warrants of arrest. Learning of the
issuance of the warrants, the 3 accused jointly filed a motion for reinvestigation
and for the recall of the warrants of arrest. On the date set for hearing of their
motion, none of the accused showed up in the court for fear of being arrested. The
RTC judge denied their motion. Did the RTC rule correctly?
A: The RTC ruled correctly in denying the motion for
reinvestigation and recall of the warrants of arrest because the
© Gironella – Macadatar 2017 | Rule 113 – Arrest 127
accused have not surrendered their persons to the court.
Jurisdiction over the person of the accused can only be obtained
through arrest or voluntary surrender (Dimatulac v. Villon, G.R. No.
127107, Oct. 12, 1998).
RIGHTS OF THE ARRESTING OFFICER:
1. Summon assistance in effecting arrest.
2. Right to break into a building or enclosure.
3. Right to break out from a building or enclosure.
Authority to Summon Assistance:The authority to effect an arrest carries with it
an authority to orally summon as many persons as he deems necessary to assist him
in effecting the arrest
Note:The duty of the person summoned does not arise when rendering assistance
would cause harm to himself
When person to be arrested is inside a building:The rules authorize the officer, in
order to make an arrest, to break into any building or enclosure in case he is refuse
admittance after announcing his authority and purpose
 After entering, he may break out from said place if necessary to liberate
himself from the same place
When a warrantless arrest is lawful:
General rule: warrant is needed
Exceptions:
 Valid warrantless arrest
(1) in flagrante exception
When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense
(2) hot pursuit exception
When an offense has just been committed, and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be
arrested has committed it
(3) escapee exception
When the person to be arrested is a prisoner who has escaped from a penal
establishment where he is serving final judgment or is temporarily confined while
his case is pending or has escaped while being transferred from one confinement to
another
Violation condition of bail: Bondsman: A bondsman may arrest an accused for the
purpose of surrendering him to the court
Note: An accused released on bail may be re-arrested without a warrant if he
attempts to depart from the Philippines without permission of the court where the
case is pending
Who may make warrantless arrest:
 Peace officer
 Private person – Citizen’s arrest
In Flagrante Delicto
Means caught in the act of committing a crime
The basis of in flagrante delicto exception:
 Mere suspicion and reliable information are not justifications for a
warrantless arrest
 The rules requires that the accused perform some overt act that would
indicate that he has committed, is actually committing, or is attempting
to commit an offense
 The basis is provided for in Section 5 (a), Rule 113
Two Requisites:
a) The person to be arrested must execute an overt act indicating that he
has just committed, is actually committing or is attempting to commit a
crime, and
b) Such overt act is done in the presence or within the view of the arresting
officer
Example: arrest made after an entrapment
An officer noticed the butt of a pistol bulge from one’s waist within the view of the officer does not
conclusively constitute an overt act of the crime of illegal possession of firearm which would justify
immediate arrest. When the apprehension was made, the officer had no awareness that a crime is
being committed in his presence since he had no prior knowledge that the person carrying the same
had no license for the firearm, a knowledge that came to him only after the arrest.
 Thus, the gun is a fruit of a poisonous tree
 Remedy of the officer: invoke plain view doctrine
Hot Pursuit
Two requirements:
a) An offense has just been committed, and
b) The person making the arrest has personal knowledge of facts
indicating that the person to be arrested has committed it
Note: It does not require that the arresting officers to personally witness the
commission of the offense with their own eyes
Personal knowledge of facts must be based on probable cause, which means an
actual belief or reasonable grounds of suspicion
 Coupled with good faith on the part of the peace officers making the
arrest
Example: the petitioner’s act of trying to get away, coupled with the incident
report which they investigated, is enough to raise a reasonable suspicion on the
part of the police authorities to the existence of a probable cause
Q:The officers went to the scene of the crime where they found a piece of wood
and a concrete hollow block used by the killers in bludgeoning the victim to
death. A neighbor of the accused who witnessed the killing, pointed to Roberto as
one of the assailants. Roberto was arrested three hours after the killing. Is the
arrest a valid warrantless arrest?
A: Yes. Under the abovementioned circumstances, since the
policemen had personal knowledge of the violent death of the
victim and of facts indicating that Roberto and two others had
killed him, they could lawfully arrest Roberto without a warrant. If
they had postponed his arrest until they could obtain a warrant, he
would have fled the law as his two companions did. (People v.
Gerente, 219 SCRA 756)
Method of arrest without a warrant
a) Arrest by an officer – the officer shall inform the person to be arrested of
his:
1. Authority
2. The cause of his arrest
Exception: when information need not be given
(1) If the person to be arrested is engaged in the commission of the crime
(2) Is in the process of being pursued immediately after its commission
(3) Escapes or flees
(4) Forcibly resists before the officer has the opportunity to so inform him
(5) When the giving of such information will imperil the arrest
b) Arrest by a private person – he shall inform the person to be arrested not his
authority to arrest, but his:
1. intention to arrest him and
2. the cause of his arrest
© Gironella – Macadatar 2017 | Rule 113 – Arrest 128
Note: the right to break into a building or an enclosure specifically refers to an
officer and not to private person
Time of arrest:may be made on any day and at any time of the day or night
Rights of a person arrested (RA 7438):
1. the right to be assisted by counsel at all times
2. the right to remain silent
3. the right to be inform of the above rights
4. the right to be visited by the immediate members of his family, by his
counsel, or by any non-government organization, national or
international
When must the accused assail the validity of his arrest? Any objection involving
the arrest or the procedure in the court’s acquisition of jurisdiction over the person
of an accused must be made before he enters his plea. Otherwise, the objection is
deemed waived.
How to question: through motion to quash
Effect of an illegal arrest on jurisdiction of the court:affects only the jurisdiction
of the court over the person of the accused
 a waiver of an illegal warrantless arrest does not also mean a waiver of
the inadmissibility of evidence seized during an illegal warrantless arrest
Effect of admission to bail on objection to an illegal arrest:
 the application for or admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the warrant issued,
 provided that he raises the objection before he enters his plea
Resolution:the objection shall be resolved by the court as early as practicable as but
not later than the start of the trial of the case
Waiver of the legality of the arrest:a warrantless arrest is not a jurisdictional
defect
 if the appellants are questioning their arrest for the first time on appeal,
they are therefore deemed to have waived their right to the constitutional
protection against illegal arrest and searches
In all these cases, the accused must claim that the arrest and detention is illegal.
Q: can the issue of unlawful arrest be raised during the trial?
A: yes. Not to dismiss the case but as a defense
Rule 126 – Searches and Seizure
Constitutional Basis: Article III, Section 2: The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized.
Definition of search warrant: A search warrant is an order in writing issued in
the name of the People of the Philippines, signed by a judge and directed to a peace
officer, commanding him to search for personal property described therein and
bring it before the court
Nature of search warrant:not a criminal action nor does it represent a
commencement of a criminal prosecution
 it is not a proceeding against a person but is solely for the discovery and
to get possession of personal property
 it is special and peculiar remedy, drastic in nature, and made necessary
because of public necessity
 is a police weapon issued under the police power
 it has no relation to a civil process
Who issues?Exclusively vested with the trial judges in the exercise of their
functions
Arrest vs. Search and Seizure:
Arrest Search and Seizure:
It concerned with the It covers wider spectrum of
seizure of a person matters on the search of
Subject

When the illegality of the arrest is cured:deemed cured when he voluntarily submits to the both persons and places
jurisdiction of the trial court It involves the taking and the seizure of things
of person in custody found therein
Persons not subject to arrest:
 a senator or member of the House of representatives A search may follow an arrest but the search must be incidental to a
 all offenses punishable by not more than 6 years lawful arrest
imprisonment, be privileged from arrest while the Congress is Determin the judge must have requires facts to show that
in session ation of sufficient facts in his particular things connected
 sovereigns and other chiefs of state, ambassadors, ministers probable hands that would tend with a crime are found in a
plenipotentiary, ministers resident, and charge d’affaires cause to show that a crime specific location
 immune from the criminal jurisdiction of the country of their has been committed
assignment and that a particular
person committed it
Remedies / Summary The probable cause to arrest does not necessarily involve a probable
cause to search and vice versa.
If no case has been filed To file a petition for habeas Examinat The judge is not The judge must personally
against the arrested person corpus on the ground that his ion by necessarily required to examine the complainant
and he remains detained arrest and detention is illegal. the Judge make a personal and the witnesses he may
examination produce in determining
Bail may also be posted. probable cause
If a case has been filed against to file a motion to quash the Time of May be made on any Generally served in the day
the arrested person complaint or information on the executio day and at any time of time, unless there be a
ground that the court has no n or the day and night direction in the warrant
jurisdiction over his person service of that it may be served at any
If a person has not yet been file a motion to quash the the time of the day and night
arrested or detained, but there warrant of arrest on the ground warrant
is a standing warrant for his that it was improperly issued Life Span Valid until served 10 calendar days from
arrest receipt
If a person has already been File a motion to quash the Particula Described the person No need to name the person
arrested by virtue of a warrant complaint or information on the rity to be arrested where the search shall be
of arrest yet he claims that the ground that the court has not conducted
warrant was improperly acquired jurisdiction over his
issued person.

© Gironella – Macadatar 2017 | Rule 126 – Searches and Seizure 129

Search vs. seizure:
Search: is an examination of a man's house or other buildings or premises or his
person for the discovery of contraband or illicit or stolen property or some evidence
of guilt to be used in the prosecution of criminal action for some offense with which
he is charged
Seizure: it is the physical taking of a thing into custody
Application for Search Warrant:
Who applies for search warrant: only law enforcement agency charged with the
law violated
Where to file:
General Rule:Filed before any court within whose territorial jurisdiction a crime was
committed
Exception:
(1) The application may be made before any court within the judicial region
where the crime was committed if the place of the commission of the
crime is known
(2) The application may also be filed before any court within the judicial
region where the warrant shall be enforced
Note: (1) and (2), filing in such courts require compelling reasons stated in the
application
(3) The application shall be made only in the court where the criminal action
is pending, if the criminal action has already been filed
Q: Barney filed a complaint with the NBI against Ted alleging that
the latter was engaged in the reproduction and distributions of
counterfeit products originally produce by Barney. Said products,
allegedly, was produced in Cavite but sold in Manila. Thus, NBI
applied with the RTC of Manila for warrants to search Ted's
premises in Cavite. The NBI served the search warrants on Ted's
premises and seized the said counterfeit products. Thereafter, Ted
filed a motion to quash the search warrant questioning the
propriety of the venue where the warrant was enforced. Should the
motion to quash be granted?
A: No. As a general rule, search warrants issued by courts may be
effectuated only within their territorial jurisdiction. Thus, the RTC
of Manila does not have the authority to issue a search warrant for
offenses committed in Cavite. Nonetheless, this case involves a
transitory or continuing offense of unfair competition.
Being a transitory and continuing offense, Barney may apply for a
search warrant in any court where any element of the alleged
offense was committed, including any of the court's within the
NCR
Ex Parte Application:It is neither a trial nor a part of a trial
 The application must be expedited for time is the essence
Search warrants involving heinous crimes and other:The following are
authorized to act on all applications for search warrants involving heinous crimes,
illegal gambling, dangerous drugs and illegal possessions of firearms:
 The Executive Judge and the vice executive judge of RTC of manila and
QC filed by PNP, NBI, PAOC-TF (Presidential Anti-Organized Crime
Task Force) and REACT-TF (Reaction Against Crime Task Force)- AM
No. 99-20-09 SC
 Includes PDEA (2012)
Note: Search and Arrest warrants issued pursuant to AM No. 99-20-09 SC may be
served outside the territorial jurisdiction of the RTC of Manila or Quezon City.
Question: Is it necessary that the heads of the offices mentioned
under AM No. 99-20-09 SC be the ones to personally endorse the
© Gironella – Macadatar 2017 | Rule 126 – Searches and Seizure
application for search warrants?
Answer: No, nothing in AM No. 99-10-09-SC prohibits the head of
NBI and of other law enforcement agencies mentioned from
delegating their ministerial duty of endorsing the application to
their assistant heads. Besides, under Section 31, Chapter 6, Book IV
of the Administrative Code of 1987, an assistant head or other
subordinate in every bureau may perform such duties as may be
specified by their superior or head, as long as it is not inconsistent
with law. (Sps. Marimla v People GR No. 158467, October 16, 2009)
Question: Does an application for a search warrant partake a
criminal action or at least in the nature of a criminal action?
Answer: No. A search warrant is not a criminal action nor does it
represent a commencement of a criminal prosecution even if it is
entitled like a criminal action. It is not a proceeding against a
person but is solely for the discovery and to get possession of
personal property. It is a special and peculiar remedy, drastic in
nature, and made necessary because of public necessity. It
resembles in some respects with what is commonly known as John
Doe proceedings. (United Laboratories, Inc. V. Isip, 461 SCRA 574)
*Therefore, the proceedings for the application for a search warrant need not be
initiated by the state prosecutor, and the court may not quash the application for a
search warrant or the search warrant itself due to the fact that it does not bear the
conformity of the public prosecutor. (Worldwide Web Corporation et al. v. People
of the Philippines et al., G.R. No. 161106, Jan. 13, 2014)
Case: The applicant for a search warrant filed his application before the court. His
application does not bear the approval or any conformity of the state prosecutor.
As a consequence, his application was quashed by the court. To justify its ruling, it
cited Rule 110, Sec. 5 providing that ―All criminal actions commenced by a
complaint or information shall be prosecuted under the direction and control of
the prosecutor.‖ Is the court correct?
Answer: No, the court is not correct. Sec. 5, Rule 110 does not apply because an
application for search warrant, although it is a criminal process, is not a criminal
action. Therefore, the conformity of the public prosecutor is not necessary to give
the applicant a personality to question an order quashing the search warrant.
(Worldwide Web Corporation et al. v. People of the Philippines et al., G.R. No.
161106, supra)
Is it necessary to furnish a notice or copy of the application for a search
warrant to the party against whom properties will be seized?
No. An application for a search warrant is heard ex-parte. It is neither a trial nor a
part of the trial. Action on these applications must be expedited for time is of the
essence. Great reliance has to be accorded by the judge to the testimonies under
oath of the complainant and the witnesses. (Chemise Lacoste, S.A. v Fernandez,
214 Phil. 332; Santos v Pryce Gases, Inc., GR No. 165122, November 23, 2007)
(Just imagine the consequences if prior notice must be given to the person against
whom, personal property will be seized – i.e. drug dealer, suspected killer, thief,
robber, carnapper, etc. All the weapons, drug paraphernalia, or any other item that
may be confiscated will easily be concealed and the application will definitely be
opposed)
Question: Does an application for a search warrant need to have a
certification of non-forum shopping?
Answer: No, there is no rule requiring that it bears a certification of
non-forum shopping.
Property Subject of a Search Warrant: Personal property, not real property
A search warrant may be issued not only for the search but also for the seizure of
the following:
1. Personal property subject of the offense
2. Personal property stolen or embezzled and other proceeds, or fruits of
the offense, or
3. Personal property used or intended to be used as a means of committing
an offense
130

Note: Only the personal properties described in the search warrant may be seized
by the authorities
Requisites for the issuance of a search warrant:
1. There must be probable cause in connection with one specific offense
2. The presence of probable cause is to be determined by the judge
personally
3. The determination by the judge must be made after an examination
under oath or affirmation of the complainant and the witnesses he may
produce
4. The warrant must specifically describe the place to be searched and the
things to be seized which may be anywhere in the Philippines
Note: Inherent in the court’s power to issue search warrants is the power to quash
warrants already issued
 Adherence to the above requisites is necessary to prevent a fishing
expedition.
 Roving or scattershot warrants are void. They are issued for more than
one offense.
Probable cause in search warrants:Such facts and circumstances that would lead a
reasonably discreet and prudent man to believe that an offense has been committed
and the objects sought in connection with the offense are in place to be searched
 The facts and circumstances being referred thereto pertain to facts, data
or information personally known to the applicant and the witnesses he
may produce
 Does not mean actual and positive cause, nor does it import absolute
certainty
Does the absence of probable cause on a particular article
invalidate the entire search warrant?
NO. Such particular article may be severed from the rest of the
search warrant, provide that the remaining parts meet the
requirement of probable cause and particularity.
How the examination shall be conducted by the judge:
(1) The examination must be personally conducted by the judge
(2) The examination must be in the form of searching questions and answers
(3) The complainant and the witnesses shall be examined on those facts
personally known to them
(4) The statements must be in writing and under oath
(5) The sworn statements of the complainant and the witnesses, together
with the affidavits shall be attached to the record
Particular description of place or person:
Place:Sufficient if the officer with a warrant can, with reasonable effort, ascertain
and identify the place intended and distinguish it from other places in the
community
- The executing officer’s prior knowledge as to the place intended in the
warrant is relevant
Person:Determine whether the person has been sufficiently described with
particularity sufficient to identify him with reasonable certainty
- Even if his name is unknown or erroneously written, the description of
the person with certainty to identify him and set him apart from others
is enough to lend validity to the warrant
- Not necessary that it is technically accurate in every detail
Particular Description of the Items to be seized: It is designed to prevent general
searches and avoid the seizure of a thing not described in the warrant and also so
nothing is to e left to the discretion of the officer executing the warrant
- The requirement of particularity is said to be satisfied if the warrant
imposes a meaningful restriction upon the objects to be seized
 A meaningful restriction is one that leaves nothing to the
discretion of the officer who conducts the search
- The use of a generic term or a general description in a warrant is allowed
only when a more specific description of the things to be seized is not
available
© Gironella – Macadatar 2017 | Rule 126 – Searches and Seizure
General Warrants: Warrants which do not described the things to be seized with
the required particularity
Ownership of the property seized:The law does not require that the property to
be seized should be owned by the person against whom the search warrant is
directed
- It is sufficient that the person against whom the warrant is directed
has control and possession of the property sought to be seized
Extent of the search:The reasonableness of both the seizure and the search does
not exclusively refer to the manner by which the warrant was procured
- It refers also to the reasonableness of the manner the warrant was
executed including the time and place of its execution
Issuance and form of the search warrant:The warrant shall be issued when the
judge is satisfied of the existence of:
- Facts upon which the application is based or
- That there is probable cause to believe that they exist
 The form of the search warrant must be substantially in the
form prescribed by the rules
Duration of the validity of the search warrant:Valid for 10 days from its date
- Thereafter, it shall be void
Time of making the search:Served in the daytime and such fact must be so
directed by the warrant
- However, if the affidavit asserts that the property is on the person or in
the place ordered to be searched, the warrant may insert a direction
that it may be served at any time of day or night
May the implementation of the search warrant be done on
different days?
A: YES. It could be served at any time within its 10 day lifetime, and
if its object or purpose cannot be accomplished in one day, the same
may not be used for different purpose on each day. After the articles
for which the warrant was issued have been seized, the same
warrant cannot be utilized as authority to make another search
Manner of making search:The search must be made in the presence of the lawful
occupant of the house, room or any other premises, or any member of the lawful
occupant’s family.
- In the absence of the latter, the search shall be made in the presence of
two witnesses of sufficient age and discretion residing in the same
locality
- The officer seizing the property must give detail receipt for the same to
the lawful occupant of the premises in whose presence the search and
seizure were made or his absence the two witnesses
Immediate Control Test: in connection with plain view
- Difference: in plain view but not in immediate control
- In an arm’s length
A search incidental to a lawful warrantless arrest may extend beyond the person
where the exigencies of the situation justify a warrantless search for dangerous
weapons and to prevent the arrestee from destroying evidence of the crime within
reach
Knock and Announce rule:The officer may break open any outer or inner door or
window of a house or any part of a house or anything therein provided the
following requisites are complied with:
1. The officer gives notice of his purpose and authority
2. He is refused admittance to the place of directed search despite the
notice
3. The purpose of breaking is to execute the warrant or to liberate himself
or any person lawfully aiding him when unlawfully detained therein
Duties of the officer after the search and seizure:
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 1. The officer must forthwith deliver the property seized to the judge who
issued the warrant
2. The officer must, together with the delivery of the property also deliver a
true inventory of the property seized. Such inventory must be duly
verified under oath
Note: A violation of the above rules shall constitute contempt of court
Duty of the judge:
1. Shall ascertain if the return has been made, he shall do so 10 days after
issuance of the warrant
2. If no return has been made, the judge shall summon the person to whom
the warrant was issued and require him to explain why no return was
made
3. If the return has been made, the judge shall ascertain whether the giving
of a receipt for the property seized was complied with and shall require
that the property seized be delivered to him
Objection to issuance or service of a warrant:Must be made before he enters his
plea, otherwise, the objection is deemed waived
What is the issue in a motion to quash a search warrant?
In a motion to quash a search warrant, what is assailed is the
validity of the issuance of the warrant. The manner of serving the
warrant and of effecting the search are not an issue to be resolved in
said motion. (People v CFI of Rizal, 101 SCRA 86, [1980])
Where to file motion to quash a search warrant or to suppress evidence: Filed
and acted upon only by the court where the action has been instituted
- If no criminal action has been instituted, the motion may be filed in and
resolved by the court that issued the search warrant
 If such court failed to resolve the motion and a criminal case
is subsequently filed in another court, the motion shall be
resolved by the latter court
Who may assail the issuance of a search warrant:Only by the party whose rights
have been impaired thereby
- Purely personal and cannot be availed of by a third person
Note: The manager of an establishment is a real party-in-interest to seek the
quashal of the search warrant, for the obvious reasons that the search warrant, if he
is named as the respondent and the place or premises to be searched is the
establishment he is managing. A corporation, being the owner of the items seized is
also a real party-in-interest who may question the search warrant. (Santos v. Pryce
Gases, supra)
What is the remedy available as against the items seized by
virtue of an illegal or void warrant?
The following are the remedies available in relation to the
items that were seized by virtue of an illegal or void search warrant.
1) Motion to suppress illegally obtained or seized
evidence.
2) Replevin
3) Petition for Certiorari
Note: Motion to suppress illegally obtained or seized evidence will
prevent the presentation of these pieces of evidence before the
court.
Replevin is a remedy to regain or take possession over personal
properties.
Petition for Certiorari under Rule 65 is available only in the
instance of grave abuse of discretion amounting to lack or excess of
jurisdiction. Again, what is assailed is the validity of the search
warrant, and nothing else.
Petition for certiorari for unwarranted quashal of a search warrant:Proper
remedy
- An unwarranted reversal of an earlier finding of a probable cause
constitute grave abuse of discretion
© Gironella – Macadatar 2017 | Rule 126 – Searches and Seizure
Case: A search warrant was obtained leading to search and
seizure of some items under X’s custody. X filed a motion to
quash the search warrant, which was subsequently denied. May
X still file a motion to suppress illegally obtained evidence?
No, X may no longer file a motion to suppress illegally obtained
evidence. It will simply be a rehash of the issues in the earlier filed
motion to quash the warrant. In order to resolve X’s motion to
suppress, the court will dwell once more on the issue of legality of
the search, which has already been duly tackled in denying the
motion to quash.
What then is the remedy of an accused whose motion to quash
the search warrant has been denied?
It depends. It is either a petition for certiorari under Rule 65 or an
ordinary appeal. A petition for certiorari is the remedy when the
application for a search warrant is filed incidental to a criminal
action, or in anticipation of a criminal action. In this case, the denial
of the motion to quash the search warrant is merely an
interlocutory order, which cannot be appealed. Appeal is the
remedy when the application for a search warrant is filed
independently from/of a criminal action. In such instance, the denial
of the motion to quash is a final order, which is the proper subject of
an appeal. (Worldwide Web Corporation et al. v. People of the Philippines et
al., G.R. No. 161106, Jan. 13, 2014)
When is an application for a search warrant filed incidental to a
criminal action? When is it filed independently from/of a
criminal action?
An application for search warrant may be filed as an incident in a
main criminal case already filed in court. Or, such an application
may be filed in court in anticipation of one yet to be filed (here, the
application for search warrant is instituted as a principal
proceeding prior to the filing of the criminal action). (Wordlwide Web
Corporation et al. v. People. Supra)
If the application is filed not within the circumstances mentioned
above, it is said to be independent from/of a criminal action. The
application is independent from/of a criminal action, if it is not
incidental thereto. (by analogy. Hehe)
*from Atty. Mangallay’s Note
Exception to the search warrant requirement:
1. Warrantless search incidental to a lawful arrest
A person lawfully arrested may be searched for:
- dangerous weapons or
- anything which may have been used or
- constitute proof in the commission of an offense without a search
warrant
Note: it is only the person lawfully arrested who is to be search and it does not
include the premises
2. Seizure of evidence in plain view
Elements:
a. A prior valid intrusion based on a valid warrantless arrest in which the
police are legally present in the pursuit of their official duties
b. The evidence was advertently discovered by the police who have the
right to be where they are
c. The evidence must be immediately apparent
d. ―plain view‖ justified mere seizure of evidence without further search
3. Search of a moving vehicle
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Highly regulated by the government, the vehicle’s inherent mobility reduces
expectation of privacy especially when its transit in public thoroughfares furnishes
a highly reasonable suspicion amounting to probable cause that the occupant
committed criminal activity
- It depends upon the circumstances
- The vehicle not literally mean moving
 Terry search is not a full arrest
 Does not require a probable cause and the person is not under a full
scale arrest but under a mere brief, investigative ―stop‖ followed by a
surface, non-intrusive pat down one’s outer garment to determine the
presence of a weapon

Purpose: possibility of the accused of moving out of the jurisdiction of the court 7. Exigent and emergency circumstances

 Checkpoints: valid for as long as they are warranted by exigencies of It is a Case to case basis.
public order and are conducted in a way least intrusive to motorists
o Limited only to visual search
8. Search of vessels and aircraft
4. Consented warrantless search
9. Inspection of buildings and other premises for the enforcement of fire, sanitary and
- The consent must be voluntary building regulations
- It must be unequivocal, specific and intelligently given
- It must be shown by clear and convincing evidence Buy Bust Operations: It is a form of entrapment legally employed by peace officers
as an effective way of apprehending drug dealers in the act of committing an
To constitute a waiver, it must appear that: offense
a) The right exists - A search warrant or warrant of arrest is not needed since the accused is
b) The person involved had knowledge, either actual or constructive, of the caught in flagrante delicto
existence of such right
c) The said person had an actual intention to relinquish such right Entrapment and Instigation:

5. Customs search Entrapment: the employment of such ways and means for the purpose of trapping or
capturing a lawbreaker
Purpose: to determine products or goods imported whether they are detrimental to e.g. buy bust operation
the State’s security
Instigation: means by which the accused is lured into the commission of the offense
Q: The search warrant authorized the seizure of "undertermined charged in order to prosecute him
quantity of shabu". During the service of the search warrant, the
raiding team also recovered a kilo of dried marijuana leaves Applicable tests in a buy bust operation:There is no rigid or textbook method in
wrapped in newsprint. The accused moved to suppress the conducting a buy bust operation
marijuana leaves since they were not covered by the search warrant.
The state justified the seizure of the marijuana leaves under the In determining the occurrence of entrapment, two tests have been developed:
"plain view" doctrine. There were no indications of whether the
marijuana leaves were discovered and seized before or after the Subjective test – the focus is on the intent or predisposition of the accused to
seizure of the shabu. If you are the judge, how would you rule the commit a crime
motion to suppress?
Objective test – the primary focus is on the particular conduct of the law
A: it should be granted. The search warrant violates the enforcement officials or their agents and the accused’s predisposition becomes
constitutional and statutory requirement that. Should particularly irrelevant
describe the person or things to be seized. The plain view doctrine - Philippine courts adopted this test in upholding the validity of a buy
cannot be invoked because the marijuana leaves were wrapped in bust operation
newsprint. Besides the marijuana leaves are not the subject of the
search warrant. There was no evidence as to whether the marijuana Effect of absence of prior surveillance before a buy bust operation:Absence
leaves were discovered and seized before or after the seizure of the does not affect the legality of the operation
shabu. If they were discovered after the seizure of the shabu, then
they could not have been seized in plain view. The confiscation of Effect of absence of record in police blotter:The non-recording of the buy bust
the marijuana leaves must not be upheld, hence rendering the same money in the police blotter will not affect the validity of the operations
inadmissible in evidence against the accused.
Bond to ensure the return of the seized item:An order requiring the owner of
6. Stop and frisk or Terry searches seized property to file a bond to ensure the return of the seized items should the
DOJ find probable cause against it has no basis in law
Two parts: the ―stop‖ and the ―frisk‖
Effect of an illegal search and seizure:
- A valid ―stop‖ by an officer requires that he has a reasonable and  May be quashed through proper motion
articulable belief that criminal activity has happened or about to happen  Motion to quash the search warrant
- The ―frisk‖ must be done because of reasonable belief that the person  When evidence is illegally obtained
stopped is in possession of a weapon that will pose a danger to the
 Motion to suppress the evidence
officer and others
 Exclusionary rule – prevents the admission of evidence illegally
 The frisk must be a mere pat down outside the person’s outer
obtained
garment and not unreasonably intrusive
 Exclusion of the evidence obtained – fruit of the poisonous tree
The operation is the act of a police officer to stop a citizen on the street, interrogate him, and pat
Note: the remedies are alternative
him for weapons or contraband.
- The apprehending police officer must have a genuine reason, in
accordance with the police officer’s experience and the surrounding Civil Damages: By separate civil action
conditions, to warrant the belief that the person to be held has weapons  For the wrong inflicted on them by an improperly obtained or enforced
concealed about him search warrant

© Gironella – Macadatar 2017 | Rule 126 – Searches and Seizure 133


2014 Bar Essay Type Question in Remedial Law. - A search
warrant was issued for the purpose of looking for unlicensed
firearms in the house of Ass-asin, a notorious gun for hire.
When the police served the warrant, they also sought the
assistance of the barangay tanods who were assigned to look at
other portions of the premises around the house. In an Nipa hut,
thirty (30) meters away from the house of Ass-asin, a
baranggaytanod came upon a kilo of marijuana that was
wrapped in news print. Ass-asin objected to the introduction of
such evidence claiming that it was illegally seized. Is the
objection valid? (This is originally an essay type question but
suppose it is converted into an MCQ with the following choices,
how would you answer it?)
a. No, the search was done in plain view.
b. No, the search was done pursuant to a validly issued
warrant.
c. No, the search warrant authorizes the search for weapons.
This includes the authority to search to open closets,
drawers, chests and containers in which the weapons might
be found. The structures annexed to the place described to
be searched may also be validly searched.
d. Yes, the search warrant was for the house, and not the nipa
hut.
The correct answer is letter D. Where the warrant is unambiguous
and limited only to a particular place like a store described in the
warrant, the search does not extend to the apartment units located
at the back of the store even if the sketch submitted to the judge
include the apartments. It is neither fair nor licit to allow the
officers to search a place not described in the warrant because the
place not described is what the officers had in mind.
*In other words, the place described in the warrant is controlling.
Letter A is not applicable. A search in plain view needs a lawful
warrantless arrest.
Letter B is irrelevant.
Letter C is incorrect. It is true that a search warrant for weapons
authorizes the searching party to open closets, drawers, chests and
containers that may harbor weapons. It is only when the place
described in the warrant is a land that the structures annexed to it
may be validly searched. At any rate, letter c may not be the answer
since the warrant is only for the house, and not the nipa hut.
*Under the facts of the case, there may also be another reason why
Ass-asin’s objection may be sustained. While the problem dwelt on
the issue of the place described in the warrant, it never mentioned
anything about compliance with the two witness rule.
So if I were to answer the above question in an essay form, I will
do it this way.
Yes, Ass-asin’s objection is valid. Foremost, the search warrant is for
the house, and not the nipa hut. The place described in the warrant
is controlling, and the search party does not have any authority to
search for places not included in it. Further, under the facts of the
case, there was no compliance with the two-witness rule.
Rule 114 – Bail
Definition:Security given for the release of a person in custody of the law, furnished
by him or a bondsman, to guarantee his appearance before any court as required
under certain specific conditions
Bondsman: one who furnishes the security given for the provisional release of the
person in custody of the law
Purposes:
1. To guarantee the appearance of a person before any court when so
required
2. To relieve an accused from the rigors of imprisonment until his
conviction and yet secure his appearance at the trial
3. To honor the presumption of innocence until his guilt is province
beyond reasonable doubt;
4. To enable him to prepare his defense without being subjected to
punishment prior to conviction
Note: it is available only to persons under the custody of the law
Q: Andrew was charged with the crime of estafa in the RTC Manila.
A warrant of arrest was issued by Judge Matias. Before the warrant
of arrest could be served, Judge Matias issued a recall order of the
warrant of arrest issued against Andrew in view of the approval of
his bail bond by executive judge of the RTC of Manila. Was the
application for bail of Andrew validly approved?
A: NO. The right to bail can only be availed of by a person who is in
custody of the law or otherwise deprived of his liberty and it would
be premature to file a petition for bail for someone whose freedom
has not yet to be curtailed. Here, the bail application of Andrew was
approved before the warrant for his arrest could be served.
Nature:It is a constitutional right
 It is personal in nature and is therefore, waivable
 Not intended to cover the civil liability of the accused in the same
criminal case
Note: The money deposited as bail may, however, be considered not only as bail. It
may also be applied to the payment of fines and costs while the excess if any shall
be returned to the accused or to whoever made the deposit
The constitution lays down the following principle:
a) All persons shall, before conviction, be bailable
Exception:
 those who are charged with offenses punishable by reclusion
perpetua when the evidence of guilt is strong
 capital offense
 life imprisonment
b) The suspension of the privilege of the writ of habeas corpus does not
impair the right to bail
c) Excessive bail is not to be required
Proof evident / evident proof: Clear and strong evidence which leads a well-
guarded dispassionate judgment to the conclusion that the offense has been
committed as charged, that the accused is guilty agent, and that he will be
punished capitally if the law is administered
Presumption great: Exists when the circumstances testified to are such that the
inference of guilt naturally to be drawn therefrom is strong, clear, and convincing
to an unbiased judgment and excludes all reasonable probability of any other
conclusion
Note: Even though there is a reasonable doubt as to the guilt of the accused, if on
an examination of the entire record the presumption is great that the accused is
guilty of a capital offense, bail should be refused
Test:The test is not whether the evidence establishes guilt beyond reasonable
doubt but rather whether it shows evident guilt or great presumption of guilt
Bail in the military: Traditionally not been recognized and is not available in the
military
 The right to a speedy trial is given more emphasis in the military
Bail in extradition proceedings:
 The right is available
 The right of the prospective extraditee to apply for bail must be viewed
in the light of the various treaty obligations of the Philippines
concerning respect for the promotion and protection of human rights
© Gironella – Macadatar 2017 | Rule 114 – Bail 134
  Presumption lies in favor of human liberty
Bail in deportation proceedings:Aliens have no inherent right to bail
 Person arrested or detained cannot be released on bail, unless that the
right is granted expressly by law
 The commissioner of Immigration has the power and discretion to grant
bail
 The grant is merely permissive and not mandatory or
obligatory
Application for Bail and Determination of Strength of Evidence
of Guilt
Procedure:
1. Accused applies for bail. Copy-furnish to other party.
2. The court notifies the prosecution.
3. Bail hearing - The prosecution presents evidence in
opposition to bail.
4. The court makes a resolution whether the evidence of
guilt is strong or not. If the evidence of guilt is strong, the
application is denied. Otherwise, the application is
granted.
Who furnishes the bail:
1. By the bail applicant himself or
2. By a bondsman
Obligation and right of the bondsman:
 Surrender the accused to the court for execution of the final judgment
 Thus, he may arrest him or, upon written authority endorsed
on a certified copy of the undertaking, cause him to be arrested
by a police officer or any other person of suitable age and
discretion
 An accused released on bail may be re-arrested without the necessity of a
warrant if he attempts to depart from the Philippines without
permission of the court where the case is pending
In custody of the law or otherwise deprived of his liberty
 Required before the court can act on an application for bail, but is not
required for the adjudication of other reliefs sought by the defendant
How: when he has been arrested or has surrendered himself to the jurisdiction of the
court
Bail for those not yet charged:Any person in custody who is not yet charged in
court may apply for bail with any court in the province, city, or municipality where
he is held
 A person deprived of his liberty may apply for bail as soon as he is
deprived of his liberty, even before a complaint or information is filed
against him
What are the Conditions of Bail?
1. The undertaking shall be effective upon approval, and
unless cancelled, shall remain in force at all stages of the
case until promulgation of the judgment of the RTC,
irrespective whether the case was originally filed in or
appealed to it.
2. That the accused shall appear in court whenever required
by court or the rules of court. (Important)
3. Failure to appear in court notwithstanding any waiver
shall constitute trial in absentia.
4. That accused shall surrender himself to court for
execution.
When is appearance by the accused required by the Rules of
Court?
1. Arraignment and Entry of Plea – Accused must
personally enter his plea. Without a valid plea, any
subsequent proceedings are void. Nonetheless, an invalid
plea will bar the application of Double Jeopardy.
2. Promulgation – Some authors insist that the presence of
the accused is important in promulgation. The absence of
the accused during promulgation will not invalidate the
proceedings. However, it will cause him to lose his
remedies against a judgment of conviction such as
reconsideration, appeal, and new trial.
When is appearance by the accused required by the Court?
Appearance by the accused is required by the court in the following.
a) In-court Identification – In a criminal action, the
identity of the accused just like the crime itself must
be proven beyond reasonable doubt.
b) Trial in absencia – trial in absencia may proceed
provided the accused was given due notice for the
date of trial.
*Therefore, if a question is asked calling for the instances when the
accused’s presence is essential, enumerate arraignment and entry of
plea, in-court identification, trial in absencia. (promulgation may be
included)
Court cannot require arraignment before the grant of bail:The grant of bail
should not be conditioned upon prior arraignment of the accused
Forms of bail:
a) Corporate surety – furnished by a corporation, through an officer duly
authorized by the board of directors
b) Property bond – undertaking constituted as lien on the real property
given as security for the amount of the bail
The sureties in a property bond must have the following qualifications:
i. Each must be a resident owner of real estate within the Philippines
ii. Where there is only one surety, his real estate must be worth at least the
amount of the undertaking
iii. If there are two or more sureties, each may justify in an amount less than
that expressed in the undertaking but the aggregate of the justified sums
must be equivalent to the whole amount of the bail demanded

c) Cash deposit – deposit with the nearest collector of internal revenue or
provincial, city or municipal treasurer or the clerk of court
d) Recognizance – It is an undertaking of a disinterested person with high
credibility wherein he will execute an affidavit of recognizance to the
effect that when the presence of the accused is required in court, the
custodian will bring him to that court.
When recognizance is allowed:
1. When the offense charged is for violation of an ordinance, a light felony,
or a criminal offense, the imposable penalty of which does not exceed 6
months imprisonment and/or 2000 fine, under the circumstances
provided for in RA 6036
2. Where a person has been in custody for a period equal to or more than
the minimum of the imposable principal penalty
3. Where the accused has applied for probation, pending finality of the
judgment but no bail was filed or the accused is incapable of filing one
4. In case of youthful offender held for physical or mental examination,
trial or appeal, if he is unable to furnish bail and under the
circumstances envisaged in PD 603
5. In summary procedure, when the accused has been arrested for failure to
appear when required
Liability of the surety or bondsman: it is inherently civil in nature. The liability
arises not from the violation of, or an obligation to comply with, a penal provision
of law. It emerges instead from a contract, the bond subscribed jointly by the
accused and the surety or bondsmen.
The obligation of the accused on the bond is different from the surety in that the
former can be made to suffer a criminal penalty for failure to comply with the
obligations on the bail bond. However, the surety is not under a similar path of
punishment, as its liability on the bail bond would merely be civil in character.
© Gironella – Macadatar 2017 | Rule 114 – Bail 135
May the court insist that bail shall only be cash bond? No. The
court can never insist that only one type or form of bail shall be
posted. Doing so violates the right of the accused to bail.
Guidelines in fixing the amount of bail:High enough to assure the presence of the
accused when such presence is required but no higher than is reasonably calculated
to fulfill this purpose
Consider primarily, but not limited to, the following:
a) Financial ability
b) Nature and circumstances of the offense
c) Penalty for the offense charged
d) Character and reputation of the accused
e) Age and health
f) Weight of evidence
g) Probability of the accused appearing at the trial
h) Forfeiture of other bail
i) The fact that the accused was a fugitive from justice when arrested
j) Pendency of other cases where the accused is on bail
Fixing of the amount of bail: pending the raffle of the case to a regular branch of
the court, the accused may move for the fixing of the amount of bail, in which event,
the Executive Judge shall cause the immediate raffle of the case for assignment and
the hearing of the motion
Duration of the bail:Effected upon approval, and unless cancelled, shall remain in
force at all stages of the case until promulgation of judgment of the RTC,
irrespective of whether the case was originally filed in or appealed to it
No release or transfer of person in custody:
No person under detention by legal process shall be preleased or transferred except:
a) Upon order of the court
b) When he is admitted to bail
When bail is not required:
1. When the law or the Rules so provide
2. Where a person has been in custody for a period equal to or more than
the maximum imprisonment prescribed for the offense charged, he shall
be released immediately
3. Also, if the maximum penalty to which the accused may be sentence is
distierro, he shall be release after 30 days of preventive imprisonment
When bail is not allowed:Bail is Neither a Matter of Right nor Discretion
1. A person charged with a capital offense, or an offense punishable by
reclusion perpetua or life imprisonment, shall not be admitted to bail
when evidence of guilt is strong regardless of the stage of the criminal
prosecution
2. After a judgment of conviction has become final
3. After the accused has commenced to serve sentence
4. After judgment of conviction by the RTC and the penalty imposed is
more than 6 years but less than death, reclusion perpetua, or life
imprisonment and the following bail negating circumstances are present:
a. The accused is a recidivist or a quasi-recidivist, a habitual
delinquent or has committed the crime aggravated by the
circumstance of reiteration
b. The accused has previously escaped from legal confinement,
evaded sentence, or violated the conditions of his bail without
valid justification
c. The accused committed the offense while under probation,
parole or conditional pardon
d. That the circumstances of his case indicate the probability of
flight if released on bail
e. That there is undue risk that he may commit another crime
during the pendency of the appeal
Is the absence of any bail negating circumstance an assurance for
the grant of bail?
No. A finding that none of the said circumstances is present will not
automatically result in the grant of bail. Such finding will simply
authorize the court to use the less stringent sound discretion
approach.
When bail is a matter of right:
1. Before conviction by the MTC
2. After conviction by the MTC
3. Before conviction by the RTC of an offense not punishable by death, reclusion
perpetua, or life imprisonment
Remedy when bail is denied:File a petition for certiorari if the trial court
committed a grave abuse of discretion amounting to excess or lack of jurisdiction
in issuing the said order
When bail is a matter of discretion:
1. When the accused has been convicted in the RTC of an offense not
punishable by death, reclusion perpetua, or life imprisonment
2. When the evidence of guilt is not strong
Discretion: Where the application to be filed:
 The application for bail may be filed and acted upon by the trial court
 Even if a notice of appeal has already been filed
 Provided that the trial court has not yet transmitted the
original record to the appellate court
 If the original record has already been transmitted to the appellate
court, then the application shall be filed with the said appellate court
 If the decision of the RTC convicting the accused changed the nature of
the offense from non-bailable to bailable, the application for bail can
only be filed with and resolved by the appellate court
When application for bail after conviction by the RTC shall be denied:If
penalty imposed is death, reclusion perpetua, or life imprisonment, bail should be
denied since the conviction indicates strong evidence of guilt based on proof
beyond reasonable doubt
 The court is not authorized to deny or cancel the bail ex parte. The rule
requires ―notice to the accused‖
 The resolution of the RTC denying or cancelling the bail may be
reviewed by the appellate court motuproprio or on motion of any party
after notice to the adverse party in either case
Hearing:A hearing of the application for ail is to be conducted when a person is in
custody for the commission of an offense punishable by death, reclusion perpetua,
or life imprisonment
 The prosecution has the burden of showing that the evidence of guilt is
strong
Evidence in bail hearing:The evidence presented during the bail hearing shall be
considered automatically reproduced at the trial
 Any witness during the bail hearing may, upon motion of either party,
be recalled by the court for additional examination except if such
witness is:
 Dead
 Outside the Philippines
 Otherwise unable to testify
Capital offenses: Is an offense which, under the law existing at the time of its
commission and of the application for admission to bail, may be punished with
death
 If Death penalty is prohibited, in lieu, the following shall be imposed:
 Reclusion perpetua
 Life imprisonment
 Determined by the penalty prescribed by law and not the penalty to be
imposed
Where application or petition for bail may be filed:
General rule: where the case is pending
If the judge is absent: may be filed with any RTC, MeTC, MTC or MCTC in the
province, city or municipality
Exception:
© Gironella – Macadatar 2017 | Rule 114 – Bail 136
  Where the accused is arrested in a province, city or municipality other
than where the case is pending
 May be filed with the RTC of the said place
 When the person is in custody but not yet charged
 Any court in the province, city or municipality where he is
held
 When bail is filed with the court other than where the case is pending,
the judge who accepted the bail shall forward it, together with the order
of release and other supporting papers, to the court where the case is
pending, which may, for good reasons, require a different one to be filed
Q: If an information was filed in the RTC Manila charging Mike
with homicide and he was arrested in Quezon City, in what court
or courts may he apply for bail? Explain.
A: Mike may apply for bail in RTC Manila where the information
was filed or in the RTC Quezon City where he was arrested, or if no
judge thereof is available, with any MTC judge or MCTC judge
therein.
Increase or reduction of bail:Even after the accused is admitted to bail, the amount
of bail may either be increased or reduced by the court upon good cause
 When increased, the accused may be committed to custody if he does not
give bail in the increases amount within a reasonable period
Bail for accused originally released without bail:He may later be required to give
bail in the amount fixed by the court whenever at any subsequent stage of the
proceedings a strong showing of guilt appears to the court
 If he does not give bail he may be committed into custody
Forfeiture of Bail:
 One of the conditions of the bail is for the accused to appear before the
proper court whenever required
 Failure: his bail shall be declared forfeited
 Thus, the bondsmen must, within the period of 30 days:
 Produce the body of their principal or give the reason for his
non-production, and
 Explain why the accused did not appear before the court when
first required to do so
 Failing in these two requirements, a judgment shall
be rendered against the bondsmen, jointly and
severally, for the amount of the bail
 If the bondsmen move for the mitigation of their liability, the court is
required not to reduce or otherwise mitigate the liability unless the
accused has been surrendered or is acquitted
Cancellation of the bail:
1. Cancellation by application of the bondsmen – with due notice to the
prosecutor:
a. Upon surrender of the accused, or
b. Proof of his death
2. Automatic cancellation
a. Acquittal of the accused
b. Dismissal of the case
c. Execution of the judgment of conviction
Order of forfeiture vs. Order of cancellation
Order of Forfeiture Order of cancellation
Conditional and interlocutory Not independent of the order of
forfeiture. It is a judgement
ultimately determining the
liability of the surety thereunder
and therefor final.
It is not appealable Appealable
Is bail a bar to objections on illegal arrest or lack of or irregular of preliminary
investigation? (Rule 114, Sec. 26)
No, bail is not a bar to objections on the validity of an arrest, warrant of arrest, or
lack of or irregular preliminary investigation. This is a deviation from the old rule
where posting bail cures all defects in the arrest, warrant of arrest, and preliminary
investigation. However, all of those must be assailed before the accused enters his
plea, otherwise their defects are deemed waived.
Q: Ana is the lone eyewitness to the brutal murder of Bruno
allegedly committed by accused Carlo. She deliberately refuses to
appear on the scheduled dates for the taking of her testimony for
fear of reprisal from Carlo’s die hard followers.
1. May the court motuproprio order her to post bail?
2. How shall Ana be proceeded against if she refuses to give bail?
3. What protection may Ana avail if in case she decides to testify at
the trial?
A: 1.NO. the rules require that the order to post bail is upon motion
of either party
2. if Ana refuses to post bail, the court shall commit her to prison
until she complies or is legally discharged after her testimony has
been taken
3. Ana may avail of the benefits under the witness protection act
2014 UPDATES IN CRIMINAL PROCEDURE - BAIL
APPLICATION and MODES OF SERVICE OF SUBPOENA
What are the requirements for motion for bail in offenses
punishable by death, reclusion perpetua, or life imprisonment?
(Section 6, A.M. No. 12-11-2-SC, March 14, 2014)
As provided for in Section 6, A.M. No. 12-11-2-SC, March 14, 2014,
but took effect May 1, 2014 (Guidelines for Decongesting Holding
Jails by Enforcing the Rights of Accused Persons to Bail and to
Speedy Trial), the requirements are:
a) the hearing of the motion for bail shall be summary;
b) the prosecution has the burden of showing that the
evidence of guilt is strong;
c) if the accused wants the court to consider his
evidence, he may submit the affidavits of his
witnesses attesting to his innocence;
d) at the hearing of the motion for bail, the prosecution
shall present its witnesses with the option of
examining them on direct or adopting the affidavits
they executed during the preliminary investigation as
their direct testimonies;
e) the court shall examine the witnesses on their direct
testimonies or affidavits to ascertain if the evidence
of guilt is strong;
f) the court shall then allow counsel from both sides to
examine the witnesses as well;
g) afterwards, the court shall hear the oral arguments of
the parties on whether the evidence of guilt is strong;
h) within 48 hours after hearing, the court shall issue an
order containing a brief summary of the evidence
adduced before it, followed by its conclusion of
whether the evidence of guilt is strong.
What are the modes of service of subpoena?
Under Section 6, Rule 21 of the 1997 Rules of Civil Procedure, service
of subpoena shall be made in the same manner as personal or
substituted service of summons.
However, in criminal cases, the following are the additional modes of
service of subpoena as provided for in Section 11, A.M. No. 12-11-2-
SC, March 14, 2014:
a) electronic mail (e-mail);
b) mobile phone, either through phone calls or through short
messaging service.
How may service of subpoena be proved?
When served by electronic mail or mobile phone, service of subpoena
may be proved by:
© Gironella – Macadatar 2017 | Rule 114 – Bail 137
 a) printouts of sent email and the acknowledgment of
the recipient;
b) printouts of electronic messages transmitted
through the court’s equipment or device and the
acknowledgment of the recipient; or
c) Reports of phone calls made by the court.
Hold Departure Order and Bureau of Immigration Watchlist
Hold Departure Order or HDO: order issued by the Secretary of Justice or the
proper RTC commanding the Commissioner of the Bureau of Immigration to
prevent the departure for abroad of Filipinos and/ or aliens named therein by
including them in the Bureau’s Hold Departure List.
Who may issue a Hold Departure Order
1. The Regional Trial Court pursuant to SC Circular 39-97;
2. By the RTC sitting as a Family Court pursuant to A.M. No. 02-11-12-SC,
3. By the Department of Justice pursuant to Department Order No. 41.
When issued: only in criminal cases within the exclusive jurisdiction of the
Regional Trial Courts (SC Circular 39-97); upon proper motion of the party.
Effect of the acquittal of the accused or dismissal of the case to the hold
departure order issued by the RTC: the judgment of acquittal or the order of
dismissal shall include therein the cancellation of the Hold-Departure Order issued.
The Court concerned shall furnish the Department of Foreign Affairs and the
Bureau of Immigration with a copy each of the judgment of acquittal promulgated
or the order of dismissal issued within twenty-four [24] hours from the time of
promulgation/issuance and likewise through the fastest available means of
transmittal.
Instances when DOJ may issue an HDO:
1. Against an accused irrespective of nationality, in criminal case falling
within the jurisdiction of courts below the RTCs;
2. Against an alien whose presence is required either as a defendant,
respondent or a witness in a civil or labor case pending litigation, or any
case before an administrative agency;
3. Against any person motuproprio, or upon the request of the Head of a
Department of the Government, head of a constitutional body or
commission; the Chief Justice of the Supreme Court for the Judiciary; the
Senate President or the House Speaker for the legislature; when the
adverse party is the Government or any of its agencies or
instrumentalities, or in the interest of national security, public safety or
public health.
Validity of HDO: An HDO issued by the DOJ shall be valid for 5 years from the
date of its issuance unless sooner terminated.
Grounds for the cancellation of an HDO issued by the DOJ:
1. When the validity of the HDO has already expired;
2. When the accused subject of the HDO has been allowed to leave the
country during the pendency of the case, or has been acquitted of the
charge, or the case in which the warrant/ order of arrest has been
recalled;
3. When the civil or labor case or case before an administrative agency of
the government wherein the presence of the alien subject of the HDO/
WLO has been dismissed by the court or by appropriate government
agency, or the alien has been discharged as a witness therein, or the alien
has been allowed to leave the country. (Section 5, DOJ Department Order
No. 41).
4. When the HDO/WLO was issued by the SOJ either motuproprio or upon
request of government functionaries or agencies, when the adverse party
is the government or any of its agencies or instrumentalities, or in the
interest of national security, public safety or public health, may be lifted
or recalled anytime if the application is favorably indorsed by the
government functionaries or offices who requested the issuance of the
HDO/WLO
When may a Watch List Order (WLO) be issued?
© Gironella – Macadatar 2017 | Rule 115 – Rights of the Accused
1. Against the accused, irrespective of nationality in criminal cases
pending trial before the RTC or before courts below the RTCs;
2. Against the respondent, irrespective of nationality in criminal cases
pending Preliminary Investigation, Petition for Review or Motion for
Reconsideration BEFORE the DOJ or any of its provincial or city
prosecution offices;
3. The Secretary of Justice may likewise issue a WLO against any person,
either motuproprioor upon request of any government agencies,
including commissions, task forces or similar entities created by the
Office of the President, pursuant to the ―Anti- Trafficking of Persons Act
of 2003‖ (RA 9208) and/ or in connection with any investigation being
conducted by it, or in the interest of national security, public safety or
public health. (Section 2, DOJ Department Order 41)
Validity of a WLO: valid for sixty (60) days unless sooner terminated or
extended, for a non-extendible period of not more than sixty (60) days.
Permission to leave country: Permission to leave the country should be filed in
the same court where the case is pending because they are in the best position to
judge the propriety and implication of the same
Remedy against HDO/WLO: A WLO may be attacked by filing a motion for
cancellation or by getting an Allow Departure Order from the DOJ or by filing a
Motion to Lift Hold Departure Order.
Allow Departure Order: is a directive that allows the traveler to leave the
territorial jurisdiction of the Philippines. This is issued upon application to the
Commissioner of Immigration and the appropriate government agency.
Any person subject of an HDO/ WLO pursuant to Department Order No. 41, who
intends, for some exceptional reasons, to leave the country may, upon application
under oath with the Secretary of Justice, be issued an ADO upon submission of the
following requirements:
1. Affidavit stating clearly the purpose, inclusive period of the intended
travel, and undertaking to immediately report to the DOJ upon return;
and
2. Authority to travel or travel clearance from the court or appropriate
government office where the case upon which the issued HDO/ WLO
was based is pending or from the investigating prosecutor in charge of
the subject case.
Remedy of a person who is not the same person whose name appears in the
HDO/ WLO:
Any person who is prevented from leaving the country because his/ her name
appears to be the same as the one that appears in the HDO/ WLO may upon
application under oath obtain a Certification to the effect that said person is not
the same person whose name appears in the issued HDO/ WLO upon submission
of the following requirements:
1. Affidavit of Denial;
2. Photocopy of the page of the passport bearing the personal details;
3. Latest clearance from the National Bureau of Investigation; and
4. Clearance from the court or appropriate government agency when
applicable.
Rule 115 – Rights of the Accused
At the trial:
In all criminal prosecutions, the accused shall be entitled to the following rights:
1) Presumption of innocence
2) To be inform of the nature and cause of accusation against him
3) To be present and defend in person and by counsel
4) To testify as a witness in his own behalf
5) To be exempt from being compelled to be a witness against himself
6) To confront and cross-examine the witnesses against him at the trial.
7) To have compulsory process
8) To have a speedy, impartial, and public trial
9) To appeal in all cases allowed and in the manner prescribed by law
Reverse order of trial:There can only be a reverse order of trial once the accused
claims any of the justifying, exempting, or any extenuating circumstances. All of
these are in the nature of confession and avoidance.
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Presumption of Innocence:
 This presumption prevails over the presumption of regularity in the
performance of official duty
 The presumption continues and until a promulgation of final conviction
is made
 The presumption last until a contrary proof of his guilt beyond
reasonable doubt
 accusation is not synonymous with guilt
Prima Facie presumption of guilt:
May the rules or the law provide for a presumption of guilt?
 Yes, the legislature has the power to provide that proof of certain facts
can constitute prima facie evidence of the guilt of the accused provided
there is rational connection between the facts proved and the ultimate
fact presumed
 The presumption must be based on facts and these facts must
be part of the crime when committed
 Statutory presumption is merely prima facie
 It cannot operate to preclude the accused from presenting his
defense to rebut the main fact presumed
Reasonable doubt: the doubt engendered by an investigation of the whole proof
and an inability, after such investigation, to rest the mind rest easy upon the
certainty of guilt.
Proof beyond reasonable doubt:Does not mean such a degree of proof as,
excluding possibility of error, produces absolute certainty.
 Moral certainty only is required, or that degree of proof which produces
conviction in an unprejudiced mind
 The burden lies on the prosecution to overcome the presumption
 The prosecution must rest on the strength of its own evidence
and must not rely on the weakness of the defense
Effect of failure to identify the perpetrator:The accused is entitled to acquittal
regardless of the weakness of his defense of denial and uncorroborated alibi
 It is better to acquit a guilty man than unjustly keep in prison one whose
guilt has not been proven beyond the required quantum of evidence
Effect of failure to comply with post-seizure procedures set by law:Raises doubt
as to the origin of the corpus delicti
 Example: drug cases
The equipoise rule:Triggered by a situation where the court is faced with
conflicting versions of the prosecution and the defense and where the evidence,
facts and circumstances are capable of two or more explanations, one of which is
consistent with the innocence of the accused and the other consistent with his guilt
 The constitutional presumption of innocence tilts the scale in favor of the
accused
Right to be informed of the nature and cause of accusation:
It is necessary for the complaint or information to contain those matters required by
the statute or by the rules, to wit:
a) To state the name and surname of the accused or any appellation or
nickname by which he has been or is known and if his name cannot be
ascertain, to described him under a fictitious name
b) To state the name and surname of the offended party or any appellation
or nickname by which he has been or is known and if there is no other
way of identifying him described him under a fictitious name; if the
offended party is a juridical person, it is sufficient to state its name, or
any name or designation by which it is known or by which it may be
identified
c) To state with sufficient clarity and in ordinary and concise language, the
acts or omissions constituting the offense
 To state the designation of the offense given by stature unless
there is no such designation in which case it is sufficient to
make reference to the section or subsection of the statute
punishing the offense
© Gironella – Macadatar 2017 | Rule 115 – Rights of the Accused
d) To state also in ordinary and concise language, the qualifying and
aggravating circumstances attending the acts imputed to the accused
e) To sufficiently alleged that the crime was committed or its essential
ingredients occurred at some place within the jurisdiction of the court
f) To allege the date of the commission of the acts or omissions
constituting the offense, which date may one as near as possible to the
actual date of the commission of the offense, except when the precise
date is a material ingredient of the offense
g) In offense against property, if the name of the offended party is
unknown, the property must be described with such particularity to
properly identify the offense charged
Waiver of right to be informed: the right to be informed may not be waived
- it is a basic constitutional right of the accused to be informed of the
nature and cause of accusation against them
Q:Noque was convicted for the crime of selling and possessing
methamphetamine hydrochloride. On appeal, Noque claimed that
his conviction violated his right to be informed of the nature and
cause of the accusation against him since the charges in the
information are for selling and possessing methamphetamine
hydrochloride but what was established and proven was the sale
and possession of ephedrine. Is there any violation of his right?
A: None. The information filed was for the illegal sale and illegal
possession of regulated drugs. Ephedrine has been classified as
regulated drugs - raw material of the shabu. Under the rules of
court, an offense charged is necessarily included in the offense
proves when the essential ingredients of the former constitute or
form part of those constituting the latter. At any rate a minor
variance between the information and the evidence does not alter
the nature of the offense, nor does it determine or qualify the crime
or penalty, so that even if discrepancy exists, this cannot be pleaded
as a ground for acquittal.
Right to counsel:
Any person arrested, detained, or under custodial investigation shall at all times be
assisted by counsel
Right to counsel during trial vs. right to counsel during custodial investigation
During trial:means the right of the accused to an effective counsel. Counsel is not to
prevent the accused from confessing but to defend the accused
During custodial investigation: requires the presence of competent and independent
counsel who si preferably the choice of the accused
Nature of the Right to choose counsel:
 Not plenary
 If the chosen counsel deliberately makes himself scarce, the
court is not precluded from appointing a de officio counsel
 It can be waived
 The waiver must be in writing and in the presence of a
counsel of the accused
Competent and Independent counsel:That he is willing to fully safeguard the
constitutional rights of the accused, as distinguish from one who would be merely
giving a routine, peremptory and meaningless recital of the individual’s
constitutional rights
Right to counsel in administrative cases:There is no law, jurisprudence or rule
which mandates that an employee should be assisted by counsel in administrative
cases
Jurisprudence: assistance is not indispensable in admin proceedings
Custodial Investigation
Custodial Investigation: Where the police investigation is no longer a general
inquiry into an unsolved crime but has begun to focus on a particular suspect
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taken into custody by the police who carry out the process of interrogation that
lends itself to elicit incriminating statements
Extended meaning:Include the practice of issuing an invitation to a person who is
investigated in connection with an offense he is suspected to have committed,
without prejudice to the liability of the inviting officer for any violation of law
Period of the attachment of the rights of the accuses in custodial investigation
The right begin to operate at once as soon as the investigation ceases to be a general
inquiry into an unsolved crime and direction is aimed upon a particular suspect
who has been taken into custody and to whom the police would direct
interrogatory question which tend to elicit incriminating statements
Right so the accused under custodial investigation - see mahinay doctrine
Right to counsel in custodial investigation: in the absence of any lawyer, no
custodial investigation shall be conducted and the suspected person can only be
detained by the investigating officer
Q: An affidavit was made by the accused without the presence of
the counsel during the preliminary investigation admitting the
commission of a crime, when presented during trial as evidenced,
the accused objected claiming that there was violation of his right
to a competency and independent counsel. Is the accused correct?
A: NO. The constitutional right to a competent and independent
counsel exists only in custodial interrogations, or in custody
interrogation of the accused person. (Consider the purpose of PI). A
person undergoing PI before the public prosecutor cannot be
considered as being under custodial investigation.
(2004) Two suspects during police investigation orally waived
their right to remain silent and to counsel. They freely answered
under oath the questions asked by the police desk officer. They later
signed their sworn statements before the police captain who is also
a lawyer. They both admitted their guilt. In due course, proper
charges were filed by the City Prosecutor against both arrestees
before the RTC. Amy the written statements sighed and sworn by
them admitted by the trial court as evidence for the prosecutions?
A: NO. It will not be admitted in evidence because they were not
assisted by counsel, even if the police captain before whom they
signed the statements was a lawyer, he cannot be considered as an
independent counsel. Waiver of the right must be done in writing
and in the presence of an independent and competent counsel
Right to speedy trial:
As one free from vexatious, capricious and oppressive delays, its purpose being to
assure that an innocent person may be free from the anxiety and expense of a court
litigation or, if otherwise, of having his guilt determined within the shortest
possible time compatible with the presentation and consideration of whatsoever
legitimate defense he may interpose
 The right does not preclude justifiable postponements and delay when
warranted by the situation
Remedy for violation of the right to speedy trial:The trial court may dismiss a
criminal case on motion nolleprosequi if the accused is not brought to trial within
the prescribed time
 Dismissal is equivalent to acquittal and double jeopardy may attached
even if the dismissal is with the consent of the accused
Balancing test:
In determining whether or not the right to the speedy disposition of cases has been
violated, the court has laid down the following guidelines:
a) The length of the delay
b) The reasons for such delay
c) The assertion or failure to assert such right by the accused
d) The prejudice caused by the delay
Note: there is no violation of the right where the delay is imputable to the accused
© Gironella – Macadatar 2017 | Rule 115 – Rights of the Accused
Approaches to speedy trial:
a) Fixed time period – which holds the view that the Constitution requires
a criminal defendant to be offered a trial within a specified time period
b) Demand waiver rule – defendant waives any consideration of his right to
speedy trial for any period prior to which he has not demanded trial
The privilege against self-incrimination:
Intended to prevent the State, with all its coercive powers, from extracting from
the suspect testimony that may convict him and to avoid a person subject to such
compulsion to perjure himself for his own protection
 The privilege applies only to natural person
 Protects only from testimonial compulsion or a compelled testimony of
a communicative nature
Force re-enactments:All evidence based on such re-enactment are to be deemed
in violation of the constitution and hence, incompetent evidence
 Communicative in nature
Compulsion:
 Does not necessarily connote the use of violence
 It may be the product of unintentional statements
 Pressure which operates to overbear his will, disable him from making
free and rational choice, or impair his capacity for rational judgment
would be sufficient
Waiver of the privilege:The accused may refuse to testify
 If he testifies in his own behalf, he may be cross examine on matters
covered by the direct examination
 it can be waived by the failure of the accused to invoke the privilege
after the incriminating question is asked and before his answer
Note: the right against self-incrimination is available not only in criminal case but
also in government proceedings, civil, and administrative proceedings where there
is a penal sanction involved
Purpose of the right against self-incrimination: the privilege is intended to
prevent the state, with all its coercive powers, from extracting from the suspect
testimony that may convict him and to avoid a person subject to such compulsion
to perjure himself for his own protection.
Q: does the right against self-incrimination include the furnishing
of a signature specimen?
A: YES. Writing is not a purely mechanical act for it involves the
application of intelligence and attention. If such person is asked
whether the writing in a document is his or not, and he says it is
not, he is deemed to waived his right. On the other hand, if the
accused simply refused to answer the question inquiring about the
handwriting, no waiver of the right took place.
The right to testify as a witness:
To testify as a witness in his own behalf but subject to cross-examination on
matters covered by direct examination.
 His silence shall not in any manner prejudice him.
Exceptions:
1. when the prosecution has already established a prima facie case, the
accused must present proof to overturn the evidence
2. If the defense of the accused is alibi and he does not testify, the inference
is that the alibi is not believable
The right to defend himself: right to be heard:
 Either in person or by counsel
 He has the right to be present at every stage of the proceedings, from
arraignment to promulgation of the judgment.
140
  Upon motion, the accused may be allowed to defend himself in person
when it sufficiently appears to the court that he can properly protect his
right without the assistance of counsel.
 The accused may, however, waive his presence at the trial pursuant to
the stipulations set forth in his bail, unless his presence is specifically
ordered by the court for purposes of identification.
 The absence of the accused without justifiable cause at the trial of which
he had notice shall be considered a waiver of his right to be present
thereat.
 When an accused under custody escapes, he shall be deemed to have
waived his right to be present on all subsequent trial dates until custody
over him is regained.
Waiver of right to be present during the trial
1. A waiver pursuant to the stipulation set forth in this bail
2. Absence of the accused without justifiable cause at the trial of which he
had notice shall be considered a waiver of right to be present thereat
3. If the accused jumps bail, such shall be automatic waiver of the right to
be present on all subsequent trial dated until custody over him is
regained
Effects of waiver of the right to appear by the accused
1. It is also a waiver to present evidence
2. Prosecution can present evidence despite the absence of the accused
3. The court can excited even without the accused's evidence
The Right to Confront and cross-examine the witnesses against him:
 The right is personal and thus it can be waived, expressly or impliedly by
conduct amounting to a renunciation of the right to cross examine
 Absence, the testimony becomes hearsay
Right to use testimony of a deceased witness:Either party may utilize as part of
its evidence the testimony of a witness who is deceased, out of or cannot with due
diligence be found in the Philippines, unavailable or otherwise unable to testify,
given in another case or proceeding, judicial or administrative, involving the same
parties and subject matter, the adverse party having the opportunity to cross-
examine him.
Confrontation: the act of setting the witness face to face with the accused so that
the latter may make any objection he has to the witness which must take place in
the court having jurisdiction to permit the privilege of cross examination.
Primary purpose: to secure the opportunity to cross examine
Secondary purpose: to enable the judge to observe the demeanor of the witness.
Rule regarding the testimony of a witness who dies or becomes unavailable:
If the other party had opportunity to cross examine the witness before he dies or
become unavailable, the testimony may be used as evidence. However, if the other
party did not have the opportunity to cross examine before the death or
unavailability of the witness, the testimony will have no probative value.
Right to compulsory processes:
Invoked to secure the attendance of witnesses and the production of witnesses in
his behalf
 May also move for the issuance of a subpoena ad testificandum or
subpoena ducestecum
 Unjustified failure of the witness to comply, the court may
issue warrant of his arrest
A.M. No. 12-11-2-SC, Section 11: Subpoena and notices may be served by the court
to parties and witnesses through electronic mails or through mobile phone either
through phone calls or through short messaging service.
Right to Public Trial
Q: is the rule that the trial should be public absolutes?
© Gironella – Macadatar 2017 | Rule 116 – Arraignment and Plea
A: NO. The court may bar the public in certain cases, such as
1. When the evidence to be presented may be offensive to decency or
public morals
2. In rape cases, where the purpose of some persons in attending is merely
to ogle at the parties
Trial by publicity: the right of he accused to a fair trial is not incompatible with
free press. Pervasive publicity is not per se prejudicial to the right to a fair trial. To
warrant the finding of prejudicial publicity, there must be allegations and proof
that judges have been unduly influence, not simply that they might be due to the
barrage of publicity
Right to Appeal:
An appeal in a criminal case opens the entire case for review and the appellate
court may correct even unassigned error
Judgment of Acquittal Attained through Errors of Law Will Attain Finality:
What if the judgement of acquittal is erroneous? Double Jeopardy sets in. Errors
or irregularities, which do not render the proceedings a nullity, will not defeat the
judgement of acquittal. These are errors of law and not errors of jurisdiction.
Case: (People vs Judge Hernando, 108 SCRA 121) The accused were charged and
convicted of frustrated murder. When a new evidence and witness was allegedly
found out which would prove the accuseds’ innocence, a new trial was held. The
prosecution then contended that the facts sought to be established by the
proposed testimonies of new witnesses were not newly discovered evidence,
having been known to the accused even during the trial, and that they would not
in any way alter the judgment of conviction. Under the facts of the case, the Court
should have sustained the prosecutor’s argument and never had a new trial. The
court proceeded to acquit the accused. On the SC level, the SC dismissed the
judge but the judgement of acquittal, though erroneous, was deemed valid.
Rule 116 – Arraignment and Plea
Rationale for Arraignment: To comply with the Constitutional Right of the
Accused to be informed of the nature and cause of accusations against him. This
right may not be waived. Arraignment is the stage where the accused is formally
informed of the charges against him. Due to this, strict compliance with the rules
on arraignment is needed.
- Indispensable requirement of due process
Note: Always remember that a valid arraignment and plea will cure defects in the
complaint or information, preliminary investigation, and illegality of arrest. These
issues must be raised before the accused is arraigned and enters his plea.
What are the two parts of arraignment? / How is arraignment
done? (Rule 116 Sec. 1)
The two parts of arraignment are the following: / Arraignment is
done in the following manner:
1. The complaint or information furnished and read to the
accused in an open court in a language or dialect known
by him.
*This may not be waived. Any defect may be a ground to impugn
the validity of arraignment.
2. The accused personally enters his plea.
*The presence of the accused during arraignment is required by the
Rules of Court.
Case: The accused was charged with 20 counts of estafa. Upon his
arraignment, the first information was read in its entirety, and the
accused was asked whether he pleads guilty or not to the charge.
The accused pleaded not guilty. To save time, as the other
informations were all substantially the same, the accused was
simply asked whether he pleads guilty or not to the charge of
estafa while referring to the 19 other criminal case docket
numbers. The contents of the subsequent 19 criminal
informations were never read to the accused. In all of the
charges, the accused pleaded not guilty. Is the arraignment and
plea valid?
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Suggested Answer which is in conformity with the rules: (There is
no Supreme Court Decision on this matter yet, but this is a
prevailing practice to save the time of Courts.) The arraignment
and plea as to the first charge is valid while that of the
succeeding 19 charges for estafa are void.Arraignment shall be
made by furnishing the accused with a copy of the complaint or
information, reading the samethe language and dialect known to
him, and asking whether he pleads guilty or not. Strict
compliance with the Rules on Arraignment is needed since this
is the stage where the accused is formally informed of the nature
and cause of accusations against him.
Strict Compliance with the Rules on Arraignment and Plea is
Needed
Note: *Any defect in the arraignment and plea will make the
subsequent proceedings void. But even so, without a valid plea and
arraignment, the right against double jeopardy may not set in.
Note: *In order to have a valid trial in absencia, the accused must
have been validly arraigned and his plea validly entered.
But an Accused’s Constitutional Right to Due Process and Right
to be Informed of the Nature and Cause of Accusation Against
Him May be Satisfied even without Strict Compliance to the
Rules of Arraignment and Plea.
Note: *While as a rule, strict compliance with the rules of
arraignment and plea is required, there are exceptional instances
when the Supreme Court ruled that compliance with the
Constitutional Right of the Accused to be informed of the nature
and cause of accusation against him and to due process has been
sufficient despite errors in the arraignment and plea.
Case: The accused is arraigned after trial when the prosecution has
rested its case and the defense presented is evidence. In this case,
the defense counsel actively participated in the trial and the
Supreme Court ruled that by such act, the accused was aware of the
nature and charges against him and he was given his day in Court.
(People v Pangilinan, 518 SCRA 358)
This is a very exceptional case so caution must be taken in
answering questions presenting situations where one is required to
look into the validity of the arraignment and plea. Wait for the
circumstances justifying the exceptions to arise before ruling that
the arraignment is valid.
Duty of the court before arraignment:
The court shall:
1. Inform the accused of his right to counsel
2. Ask him if he desires to have one
3. Must assign a counsel de officio to defend him unless the accused:
a. Is allowed to defend himself in person
b. Has employed a counsel of his choice
Note:The counsel de officio shall be given reasonable time to consult with the
accused as to his plea before proceeding with the arraignment
Persons allowed to be appointed counsel de officio
1. Members of the Bar with good standing
2. Has the ability, experience, and competence to defend the accused, and
3. In localities where such members of the Bar are not available, the court
may appoint any person who is resident of such province with good
refute for probity and ability, to defend the accused
Options of the accused before arraignment and plea:
1. Bill of Particulars – to enable him to properly plead and prepare for trial.
The motion shall:
a. specify the alleged defects of the complaint or information, and
shall
b. specify the details desired
© Gironella – Macadatar 2017 | Rule 116 – Arraignment and Plea
What is the purpose of a Bill of Particular in a Criminal Case?
A bill of particular in a criminal case enables the accused
to properly plead and prepare for trial. In civil case, its purpose is to
enable a party to properly prepare his responsive pleading.
Is a bill of particular a mode of discovery?
No, a bill of particular is not mode of discovery.
2. Suspension of arraignment – in the following cases:
a. the accused appears to be suffering from an unsound mental
condition
 the court shall order his mental examination and, if
necessary, his confinement for such purposes
b. there exists a prejudicial question
c. there is petition for review of the resolution of the prosecutor
which is pending either in the DOJ or Office of the President
Note: the period of suspension shall not exceed 60 days counted from the filing of
the petition with the reviewing office
3. Motion to quash - At any time before entering his plea, the accused
may move to quash the complaint or information on any of the grounds
under Section 3, Rule 117 in relation to Section 1 of the same rule;
4. Challenge the validity of the arrest or the legality of the warrant
issued or assail the regularity or absence of a Preliminary
investigation
Plea made before a court with no jurisdiction:Does not give rise to double
jeopardy
Arraignment under Amended or Substituted information:
 An arraignment on the amended information is mandatory
 Since, he has the right to be informed of the accusation
against him
 If the amendment is only as to form
 No need for another preliminary investigation and the
retaking of the plea
 Substitution:
 Another PI and the accused has to plead anew to the new
information
Where arraignment is to be made:Before the court where the complaint or
information was filed or assigned for trial
How arraignment is made:
 Made in open court
 by the judge or clerk
 by furnishing the accused with a copy of the complaint or information,
 reading the same in the language or dialect known to him, and
 asking him whether he pleads guilty or not guilty
When arraignment is to be made:
 within 30 days from the date the court acquires jurisdiction over the
person of the accused
 unless a shorter period is provided by a special law or SC
circular
In computing the period the following shall be excluded:
1. the time of the pendency of a motion to quash
2. the time of the pendency of a bill of particulars
3. other causes justifying suspension of the arraignment
Exceptions:
a. When the accused is under preventive detention, his case shall be raffled
and its records transmitted to the judge to whom the case was raffled
within three (3) days from the filing of the information or complaint.
o The accused shall be arraigned within ten (10) days from the
date of the raffle. The pre-trial conference of his case shall be
held within ten (10) days after arraignment.
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 b. Where the complainant is about to depart from the Philippines with no
definite date of return, the accused should be arraigned without delay.
c. Cases under RA 7610 (Child Abuse Act), the trial shall be commenced
within 3 days from arraignment.
d. Cases under the Dangerous Drugs Act.
e. Cases under SC AO 104-96 ie., heinous crimes, violations of the
Intellectual Property Rights law, these cases must be tried continuously
until terminated within 60 days from commencement of the trial and to
be decided within 30 days from the submission of the case.
Arraignment which was made after the prosecution rested its case was
considered a non-prejudicial error under the following:
1. Counsel of the accused failed to object lack of arraignment during trial
2. Counsel of the accused had full opportunity to cross examine witnesses
Record of arraignment:The arraignment and plea shall be made of record, but
failure to do so shall not affect the validity of the proceedings
Presence of the accused:The accused must be present at the arraignment and
 Must personally enter his plea
Effect of Accused’s Nonappearance During Arraignment on his
Bail Bond.
Question: May his bond be forfeited if the accused does not appear
during trial?
Answer: Not necessarily. The accused may waive the right to be
present at court so that failure to appear in court does not
automatically lead to forfeiture of bail.
Question: May his bond be forfeited if the accused does not appear
during arraignment?
Answer: Yes. The presence of the accused is required by the Rules
during Arraignment. As such, he may not waive his right to be
present at all stages of the proceedings.
*Refer to earlier discussions on when is the accused’s presence
required by Court or by the Rules of Court.
Presence of the offended party:The private offended party shall be required to
appear at the arraignment for the following purposes:
1. Plea bargaining
2. Determination of civil liability
3. Other matters requiring his presence
In case the offended party fails to appear despite due notice
 The court may allow the accused to enter a plea of guilty to a lesser
offense which is necessarily included in the offense charged with
conformity of the trial prosecutor alone
When a plea of ―not guilty‖ shall be entered:
1. Actual plea of not guilty
2. Refuses to plead
Such as in cases where the accused wants to quash the information or hold in
abeyance the proceedings to conduct preliminary investigation.
3. He makes a conditional plea
Eg.of a conditional plea - I admit raping the victim but she seduced me.
- I killed the victim but it was in self-defense.
- Pleading guilty to an offense charged but asking for a lesser penalty to be
imposed.
4. When he pleads guilty but presents exculpatory evidence
 In which case the guilty plea shall be deemed withdrawn
Eg. The accused admits the killing but the defense asks that the court allow them to
prove the circumstance of incomplete self-defense.
© Gironella – Macadatar 2017 | Rule 116 – Arraignment and Plea
Case:Accused was charged with homicide wherein he pleaded
guilty with condition to prove incomplete self-defense. The judge
found evidence for complete self-defense and thus acquitted the
accused. In the present case, it is true,the accused had first
entered a plea of guilty. Subsequently, however, he testified, in
the course of being allowed to prove mitigating circumstances
that he acted in complete self-defense.Said testimony, therefore
— as the court a quo recognized in its decision — had the effect
of vacating his plea of guilty and the court a quo should have
required him to plead anew on the charge, or at least direct that
a new plea of not guilty be entered for him. Acquittal in such
manner deprives the prosecution of due process. If a subsequent
case is filed, it may proceed.There will be no double jeopardy as
he was not validly arraigned. (People v Balisacan, 17 SCRA 1119)
Plea of guilty:
 Is a judicial confession of guilt
 An admission of all the material facts alleged in the information,
including the aggravating circumstances alleged
 Conclusions of law are not admitted by a plea of guilty
Effect of Entering Plea
*Entering a plea of not guilty constitutes joinder of issues in the
criminal case.
*Entering a plea of guilty is a judicial confession of guilt. All the
material facts alleged in the information, including aggravating
circumstances are admitted. However, conclusions of law are not
admitted. (Note: This is the same effect as that of filing a demurrer
to evidence.)
Exception to the admission of the aggravating circumstances:If such
circumstances are disproved by the evidence, it should be disallowed in the
judgment
Voluntary Plea and Involuntary Plea
Voluntary Plea: A voluntary plea will always cure defects in the
complaint or information, preliminary investigation, or illegality of
arrest.
Involuntary Plea: The plea was not made by the accused but by the
Court.
The accused, who claims that he was illegally arrested, refused
to enter a plea when arraigned; whereupon, the court entered a
plea of not guilty for him. May he still question the validity of
his arrest? (Dean Agra’s lectures and 2014 Q and A)
Yes. The principle that the accused is precluded from questioning
the legality of his arrest after arraignment is true only if he
voluntarily enters his plea and participates during the trial, without
previously invoking his objections thereto. (Borlongan Jr. v. Pena,
et al. G.R. No. 143591, Nov. 23, 2007). Thus, the accused may still
question the legality of his arrest, etc. where, at the arraignment, it
is the court that entered the plea of not guilty for him.
Plea of guilty to a capital offense: It is not proper for the court to immediately
render judgment on the basis of the guilty plea
The court is mandated to perform the following acts:
(1) To conduct a searching inquiry
a. To ascertain the voluntariness of the plea
b. To ascertain whether or not the accused has full
comprehension of the consequences of his plea
(2) To require the prosecution to prove the following
a. The guilt of the accused
b. The precise degree of his culpability
(3) To ask the accused if he wishes to present evidence and allow the
accused to present evidence in his behalf when he so desires
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 Motion to Quash Demurrer to Evidence
Plea of guilty to a non-capital offense: the court may receive evidence from the Filed before the accused enters a Filed after the prosecution rests its
parties to determine the penalty to be imposed plea case. Presupposes that the accused
has already entered his plea
Improvident plea of guilty: Does not require a prior leave of Either with leave or without leave
court of court
Withdrawal:at any time before the judgment of conviction becomes final, the court Grounds are not grounds for Ground: insufficiency of evidence
may permit an improvident plea of guilty to be withdrawn and be substituted by a demurrer, vice versa
plea of not guilty The ground may be based on the Predicted upon matters outside of
 where the trial court failed in its duty to conduct the prescribed matters found on the face of the the complaint such as the evidence
searching inquiry the plea of guilty is deemed made improvident and complaint or information or lack of it
rendered inefficacious When the motion is granted, Grant: deemed an acquittal
 convictions based on an improvident plea of guilty are set aside only if dismissal of the case will follow
such plea is the sole basis of the judgment Preclude the filing of another
The court may require the filing of a information
Mode of Discovery in Criminal Case: Production or Inspection of Material new complaint or information
Evidence in Possession of the Prosecution. Denial – remedy: certiorari or Not reviewable by appeal or by
prohibition certiorari before judgment
Upon motion of the accused showing good cause and with notice to the parties, the
court, in order to prevent surprise, suppression or alteration, may order the The court shall consider no ground other than those stated in the motion
prosecution to produce and permit the inspection and copying or photographing of
any written statement given by the complainant and other witnesses in any Except: for lack of jurisdiction over the offense charged
investigation of the offense conducted by the prosecution or other investigating
officers as well as any designated documents, papers, books, accounts, letters, Grounds for Motion to Quash:
photographs, objects or other tangible things, not otherwise privileged, which The list is exclusive:
constitute or contain evidence material to any matter involved in the case and (a) That the facts charged do not constitute an offense;
which are under the possession or control of the prosecution, police, or other law (b) That the court trying the case has no jurisdiction over the offense
investigating agencies. charged;
(c) That the court trying the case has no jurisdiction over the person of the
accused;
Is it necessary that the accused allege that he intends to use as evidence the (d) That the officer who filed the information had no authority to do so;
material evidence in possession of the prosecution, police, or other law (e) That it does not conform substantially to the prescribed form;
investigating agencies? (f) That more than one offense is charged except when a single punishment
for various offenses is prescribed by law;
No. There is no rule requiring that the accused must aver and intend to use the (g) That the criminal action or liability has been extinguished;
pieces of evidence he intends to be produced by the prosecution. In fact, he may not (h) That it contains averments which, if true, would constitute a legal
even use or copy any of the material evidence that he moves to be produced by the excuse or justification; and
prosecution. (i) That the accused has been previously convicted or acquitted of the
offense charged, or the case against him was dismissed or otherwise
Are there evidence that the prosecution, police, or other law investigating terminated without his express consent.
agencies may not produce despite motion by the accused and order of the
court? Not a ground:
1. Execution of an affidavit of desistance / recantation / pardon
Yes. These are documents, papers, books, accounts, letters, photographs, objects, or 2. Absence of probable cause
tangible things which are privileged. The prosecution, police, or other law  But a ground for the dismissal of the case
investigating agency though must show the nature of such evidence as 3. Matters of defense
privileged.  Such as self-defense – must be proved during trial
4. Absence of preliminary investigation or inability to participate in the
Note: The other modes of discovery available in a civil case may be availed of in a preliminary investigation
criminal case  Ground for petition for reinvestigation

Rule 117 – Motion to Quash
Nature of a motion to quash: A motion to quash is a class by itself/sue generis. It is
filed only upon the grounds mentioned in Rule 117, Sec. 3. There can never be any
other grounds for a motion to quash criminal informations except those provided
under Rule 117, Sec. 3.
FIRST GROUND: TEST OF SUFFICIENCY OF THE COMPLAINT OR
INFORMATION
By way of Jurisprudence: An information is sufficient if its averments, if
hypothetically admitted, whether the facts alleged would establish the essential
elements of the offense as defined by law without considering matters aliunde.

Time for filing: Any time before the accused enters his plea Note: This is very similar to the test to determine the sufficiency of a petition or
complaint in a civil action.
Forms and contents:
1. In writing Only the ultimate, and not evidentiary facts are considered. Ultimate facts are
2. Signed by the accused or his counsel those that allege the cause of action or elements of a crime. Evidentiary facts are
3. Distinctly specify the factual and legal grounds of the motion those that support the allegations of the ultimate facts.

Quash: to mean ―to annul, vacate or overthrow,‖ implying that quashing
information does not necessarily mean its dismissal
Motion to quash vs. Demurrer to evidence:
Eg. In a petition for declaration of nullity of marriage forabsence of essential
requisites, the following will be the ultimate facts:
a) The parties were married.
b) At the time the parties were married, either or both of them do not possess all
the essential elements for marriage – ie consent, contracting capacity such as
legal age, former marriage that has not been nullified or annulled, etc.

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 7. Marriage of the offended woman, as provided in article 344 RPC
If applicable, the following are added:
c) Allegations as to having children and their custody; EIGHT GROUND:THAT IT CONTAINS AVERMENTS, WHICH IF TRUE,
d) Allegations as to acquisition of property; WOULD CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION

Only exempting circumstances constitute a legal excuse or justification. Justifying

The evidentiary facts will be the following:
a) How the parties met;
b) Making allegations as to psychological incapacity;
c) Describing their life and feelings before and after the marriage;
Sufficiency of Criminal Information: Criminal information is complete, if by just
looking at it, a judgment of conviction may be had. / It can sustain a judgment of
conviction.
Sufficiency of a Complaint/Petition in a Civil Action/ Special Proceeding: A
complaint is sufficient, if just by itself, judgment may be rendered in favor of the
plaintiff and granting the prayers therein.
SECOND GROUND:JURISDICTION OVER THE OFFENSE CHARGED
If the trial court has no jurisdiction, but the case was tried and decided upon upon
the theory that it had jurisdiction, the parties are not barred, on appeal, from
assailing such jurisdiction, for the same must exist as a matter of law, and may not
be conferred by consent of the parties or by estoppel.
THIRD GROUND:JURISDICTION OVER THE PERSON OF THE ACCUSED
It is acquired by voluntary appearance of a party in court and his submission to its
authority, or by the coercive power of legal process exerted over the person through
an arrest.
It can be waived, either expressly or by implication
FOURTH GROUND:LACK OF AUTHORITY TO FILE INFORMATION
Instances where there are is an unauthorized filing of information
1. Officer filing is irregularly appointed, it does not necessarily invalidate
the information if such officer may be considered de facto
2. Officer is disqualified from appointment to such position. The
information is invalid and the court does not acquire jurisdiction to try
the accused thereon
3. The officer filed the information without the approval by the head / Chief
prosecutor
4. Information is filed without the complainant in cases involving private
crimes
circumstances such as self defense must be proven
NINTH GROUND:DOUBLE JEOPARDY
No person shall be twice put in jeopardy of punishment for the same offense
Condition: When an accused has been:
1. convicted or acquitted, or
2. the case against him dismissed or
3. otherwise terminated without his express consent
By who: by a court of competent jurisdiction,
By virtue of: upon a valid complaint or information or other formal charge sufficient
in form and substance to sustain a conviction and
When: after the accused had pleaded to the charge,
Effect: the conviction or acquittal of the accused or the dismissal of the case shall be
a bar to another prosecution for the offense charged, or for any attempt to commit
the same or frustration thereof, or for any offense which necessarily includes or is
necessarily included in the offense charged in the former complaint or information.
Requisites:
1. a first jeopardy must have attached prior to the second
a. the accused has been convicted or acquitted, or the case
against him was dismissed or terminated without his express
consent
b. that the conviction, acquittal, or dismissal was made by a
court of competent jurisdiction
c. there is a valid complaint or information or other formal
charge sufficient in form and substance to sustain a
conviction
d. the accused has pleaded to the charged
e. the subsequent prosecution is for an offense which is the
same as the former
2. the first jeopardy must have been validly terminated
3. second jeopardy must be for the same offense or the second offense
includes or is necessarily included in the offense charged in the first
information, or is an attempt to commit the same or a frustration thereof

Q: What is the identity rule?

FIFTH GROUND:COMPLAINT OR INFORMATION DOES NOT A: There is identity between two offenses not only when the second
CONFORM TO THE PRESCRIBED FORM offense is exactly the same as the first, but also when the second
offense includes oris necessarily included in the first offense or an
Lack of substantial compliance with the requirements for a good complaint or attempt or frustration thereof.
information required under Sections 3 to 13, Rule 110 renders the accusatory
pleading quashable Exceptions: (not double jeopardy)

But mere defects in matters of for, may be cured by amendment 1. The graver offense developed due to supervening facts
arising out of the same act or omission constituting the
SIXTH GROUND:MULTIPLICITY OF OFFENSE CHARGED former charge.
2. The facts constituting the graver offense became known
A complaint or information must charge but one offense except only in those cases or were discovered only after a plea was entered in the
in which the existing laws prescribed a single punishment for various offenses former complaint or information.
3. The plea of guilty to a lesser offense was made without
SEVENTH GROUND:EXTINCTION OF CRIMINAL ACTION OR LIABILITY the consent of the prosecutor and the offended party
(Sec. 7)
Grounds 4. The second offense was not in existence at the time of the
1. Death of the convict as to personal penalties first prosecution for the simple reason that in such case,
2. Service of sentence there is no possibility for the accused, during the first
3. Amnesty prosecution, to be convicted for an offense that was then
4. Absolute pardon inexistent
5. Prescription of the crime Effect of Double Jeopardy on the civil aspect of the case:The offended party and
6. Prescription of the penalty the accused may appeal the civil aspect of the case because the concept of double

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jeopardy evidently has reference only to the criminal case and has no effect on the
civil liability of the accused
Q: What are the rules regarding the application of double jeopardy on State
witnesses?
A: An order discharging an accused as a State witness amounts to an acquittal,
hence double jeopardy will apply. However, if he fails or refuses to testify against
his co-accused in accordance with his sworn statement, he may be prosecuted
again.
--------------------------------------------------------------
Failure to assert any ground:
 Waiver of any objection. This failure to assert a ground may either be
because:
 The accused did not file a motion to quash
 The accused filed a motion to quash but failed to allege the
ground in said motion
Non waivable grounds:
1. That the facts charged do not constitute an offense
2. The court trying the case has no jurisdiction over the offense charged
3. That the criminal action or liability has been extinguished
4. Double jeopardy
DENIAL OF MOTION TO QUASH
 The remedy is not a petition for certiorari, but for petitioners to go to
trial, without prejudice to reiterating the special defenses invoked in
their motion to quash
Exceptions:
1. if the court acts without or in excess of jurisdiction or with grave abuse
of discretion, then certiorari or prohibition lies
2. the act has ceased to be an offense
3. when intervention by the higher court is required for the orderly
administration of justice
4. when the circumstances warrant that technicalities of procedure should
be set aside
5. it is unfair and unjust to make the accused go to trial
By simply alleging and invoking the grounds and requisites for a
Rule 65 petition, is the Court mandated to entertain such
petition?
No. Claiming that the court acted with grave abuse of discretion
amounting to lack or excess of jurisdiction, lack or excess of
jurisdiction, or invoking substantial justice, liberal application or
rules are never magic words that will automatically warrant the
Courts to review its findings.
GRANT OF MOTION TO QUASH
Remedies available to the prosecution:
1) Amend the complaint or information if such cures the defect.
2) Refile the complaint or information.
3) Appeal from the order granting the motion to quash.
#3: This is applicable only if the motion to quash is sustained on the grounds of
extinction of criminal liability and double jeopardy. Sustaining a motion to quash
over the said grounds constitutes a final order or an adjudication over the merits of
the case, which is the proper subject of an appeal. Appeal is available only for a final
order or an adjudication by merits, and not for interlocutory orders.
Void and Defective Information: Void information may be assailed anytime while
defective information may only be assailed before arraignment. Void information
does not confer any jurisdiction to the courts over the offense while the defects in
defective information may be waived and the courts may still acquire jurisdiction
over the offense.
When court shall order the amendment of the information or complaint:
© Gironella – Macadatar 2017 | Rule 117 – Motion to Quash
 If the motion to quash is based on the alleged defect of the complaint or
information, and the defect can be cured, the court shall order that an
amendment be made
 If the motion is based on the ground that the facts charged do not
constitute an offense, the court shall give the prosecution an
opportunity to correct the defect by amendment
 However, if despite such opportunity, the prosecution
 Fails to make the amendment
 If despite the amendment, the complaint or information still
suffers from the same defect
 The court shall grant the motion to quash
Order sustaining a motion to quash:The court may order that another complaint
or information be filed unless the ground relied upon is either:
1. Extinction of the criminal liability
2. On the ground of double jeopardy
 An order sustaining a motion to quash is not a bar to another
prosecution for the same offense
 If the order is made, the accused, if in custody, shall not be discharged
unless admitted to bail.
 If no order is made or if having been made, no new information is filed
within the time specified in the order or within such further time as the
court may allow for good cause, the accused, if in custody, shall be
discharged unless he is also in custody for another charge.
Rule on Supervening Facts (Rule 117 Sec. 7) otherwise known as the
Supervening Fact Doctrine
The conviction of the accused shall not be a bar to another prosecution for an
offense which necessarily includes the offense charged in the former complaint or
information under any of the following instances.
a) The graver offense developed due to supervening facts arising from the
same act or omission constituting the former charge.
b) The facts constituting the graver charge become known or were
discovered only after a plea was entered in the former complaint of
information; or
c) The plea of guilty to a lesser offense was made without the consent of
the prosecution of the offended party
Note: that this is an exception to the general rule on Double Jeopardy.
Note: Where after the first prosecution, a new fact supervenes for which the
defendant is responsible, which changes the character of the
offense and, together with the facts existing at the time, constitutes a new and
distinct offense, the accused cannot be said to be in second jeopardy if indicted for
the second offense.
Curing an erroneous acquittal:
General rule: an acquittal rendered by a court of competent jurisdiction after trial
on the merits is immediately final and cannot be appealed on the ground of double
jeopardy
Exception:when the trial court acted with grave abuse of discretion amounting to
lack or excess of jurisdiction
Res Judicata:doctrine of civil law and thus no bearing in criminal proceedings
 even if double jeopardy has been described as ―res judicata in prison
grey‖
Administrative cases:the principle of double jeopardy finds no application in
administrative cases
Provisional Dismissal
Provisional Dismissal: dismissal of the criminal action is not permanent and can
be revived within the period set by the Rules
Requisites:
1. there must be express consent of the accused
146
 2. there must be notice to the offended party
Why is the express consent of the accused needed? (People v
Lacson GR No. 149453, April 1, 2003)
The raison d’ etrefor the requirement of the express consent of the
accused to a provisional dismissal of a criminal case is to bar him
from subsequently asserting that the revival of the criminal case will
place him in double jeopardy for the same offense or for an offense
necessary included therein.
B) The accused should prepare for trial or resort to a petition for
Certiorari under Rule 65 of the Revised Rules of Court. The
remedy of appeal is not available in an order denying a motion
to quash a warrant of arrest. Without appeal, or any other
plain, adequate, and speedy remedy available, a petition under
Rule 65 is appropriate but only upon the grounds of grave
abuse of discretion resulting to lack or excess of jurisdiction, or
lack or excess of jurisdiction.
Q: What is nolleprosequi?

Express consent: mere silence or inaction of the accused or his failure to object to a
provisional dismissal of the case does not amount to express consent
May the Offended Party oppose the granting of a Provisional Dismissal?
No. In fact, provisional dismissal is favorable to the offended party especially for
purposes of locating witnesses for the prosecution. Provisional Dismissal is
designed to counter the possibility of an accused invoking his Constitutional Right
to Speedy Trial.
A: It is a Latin term for ―we shall no longer prosecute.‖ It is a
dismissal of the criminal case by the government before the accused
is placed on trial and before he is called to plead, with the approval
of the court in the exercise of its judicial discretion. It partakes of a
non-user or discontinuance in a civil suit and leaves the matter in
the same condition in which it was before the commencement of
the prosecution. It is not anacquittal; it is not a final disposition of
the case; and it does not bar a subsequent prosecution for the same
offense. Thus, it can be refiled

Time Bar Rule:when provisional dismissal become permanent Q: Is nolleprosequi the same as quashal?

Penalty of the Offense Charged Number of Years A: No,although both have the same result – the dismissal of the
Imprisonment of not more than 6 1 year case. A nolleprosequi is initiated by the prosecutor while a quashal
years is upon motion to quash filed by the accused.
Fine only 1 year
Imprisonment of more than 6 years 2 years Rule 118 – Pre - Trial
Motion to quash vs. Provisional Dismissal Nature of a pre-trial: A pre-trial, whether in a criminal or civil case is always
Motion to Quash Provisional Dismissal mandatory. It may never be dispensed with.
Form Should be in writing May be in any form
Filed by the Accused Either filed by the
Who Files accused, prosecution, Courts in which pre-trial are mandatory:
or both. 1. Sandiganbayan
When to Before Entering Plea Anytime 2. RTC
File 3. MeTC, MCTC, MTC in Cities, MTC
Grounds for Exclusive- only those Any ground will do
Filing found in Rule 117, Sec. 3 Matters to be considered during the pre-trial:
Bars Continuation of Shortens the period of 1. Plea bargaining
Effect 2. Stipulations of facts
Proceedings Prescription
3. Marking for identification of evidence of the parties
2014 Bar Question: A was charged before the Sandiganbayan with a 4. Waiver of objections to admissibility of evidence
crime of plunder, a non-bailable offense, where the court had already 5. Modification of the order of trial if the accused admits the charge but
issued a warrant for his arrest. Without A being arrested, his lawyer interpose a lawful defense
filed a Motion to Quash Arrest Warrant and to Fix Bail, arguing that 6. Such matters as will promote a fair and expeditious trial of the criminal
the allegations in the information did not charge the crime of plunder and civil aspects of the case
but a crime of malversation, a bailable offense. The court denied the
motion on the ground that it had not yet acquired jurisdiction over Note:Facts stipulated upon are among those that need not be proved during trial.
the person of the accused and that the accused should be under the  Evidence that were not presented and marked during the pre-trial, and
custody of the court since the crime charged is non-bailable. The subsequently are not included in the pre-trial order, may be objected to
accused’s lawyer counter-argued that the court can rule on the when presented and offered during trial.
matter even if the accused was at large because it had jurisdiction  Waiving objections over the admissibility of the opposing party’s
over the case. According to the said lawyer, there was no need for the evidence is probably the most useless purpose of pre-trial. Neither the
accused to be under the custody of the court because what was filed prosecutor nor defense, in his right mind would waive his objections
was a Motion to Quash Warrant of Arrest and to Fix Bail, not a over the opposing party’s evidence.
Petition for Bail.
A) If you are the Sandiganbayan, how will you rule on the When pre-trial shall be held:Held after arraignment and within 30 days from the
motion? date the court acquires jurisdiction over the person of the accused
B) If the Sandiganbayan denies the motion, what judicial  Unless a shorter period is provided for in special laws or circulars of the
remedy should the accused undertake? SC

Answers: Note: A pre-trial needs a Notice of Pre-trial.

A) As the Sandiganbayan, I will entertain the motion, denying or
granting it as the case maybe depending on whether the ground
sought for is meritorious. I may not deny it solely on the basis
the court has yet to acquire jurisdiction over the person of the
accused. There is no rule requiring that the accused must
surrender, be arrested, or be placed under the custody of law
before his motion to quash may be acted upon.
© Gironella – Macadatar 2017 | Rule 118 – Pre - Trial
Contents of the order for pretrial conference
1. Requiring the private offended party to appear thereat for purposes of
plea bargaining and for other matters requiring his presence
2. Referring the case to the branch clerk of court, if warranted, for
preliminary conference to be set at least 3 days prior to the pretrial to
mark the documents or exhibits to be presented by the parties and
copies thereof to be attached to the records after comparison and to
consider other matters as may aid in its prompt disposition
147
 3. Informing the parties that no evidence shall be allowed to be presented  The judge shall issue pretrial order setting forth:
and offered during the pre-trial other than those identified and marked  the actions taken during the pre-trial conference
during the pre-trial except when allowed by the court for good cause  the facts stipulated
shown.  the admissions made
4. In mediatable cases, the judge shall deer the parties and their counsel to
 the evidence marked
the PMC unit for purposes of mediation if available.
 the number of witnesses to be presented and the schedule of
ALLEGATIONS: the trial

Pre-trial in a civil case vs. Pre-trial in a criminal case:

General Rule: Allegations must be proven.
Civil Case Criminal Case
Exception/ (What need not be proven): How The Court moto The court moto proprio
1) Judicial admission entered at the pre-trial signed by the accused and counsel. initiated proprio or upon an ex-
2) Matters that can be taken judicial notice of. parte motion by the
plaintiff
Doctrine of Processual Presumption/ Presumed Identity When held: After all pleadings After arraignment and
Approach have been served and within thirty (30) days from
filed. the date the court acquires
May courts take judicial notice of foreign laws? No. Foreign laws jurisdiction over the person
are never the subject of judicial notice. They must be properly of the accused.
alleged in a pleading and duly proved. In case a foreign law is not Purpose: Possibility of Plea bargaining, stipulation
alleged or it is not duly proven, it is presumed to be identical with Amicable Settlement of facts, marking of
the local law. or submission to the evidence, waiver of
alternative modes of objections to admissibility
How are foreign laws proven? (Rule 132 Sec. 24) Foreign laws dispute resolution of evidence, modification of
may be evidenced by an official publication thereof or by a copy the order of trial, other
attested by the officer having the legal custody of the record, or by matters that will promote a
his deputy, and accompanied, if the record is not kept in the fair and expeditious trial
Philippines, with a certificate that such officer has the custody. If Imposition The nonappearance If the counsel for the
the office in which the record is kept is in a foreign country, the of of the plaintiff accused or the prosecutor
certificate may be made by a secretary of the embassy or legation, Sanctions warrants the does not appear during pre-
consul-general, consul, vice-consul, or consular agent or by any for Failure dismissal of his trial conference and does
officer in the foreign service of the Philippines stationed in the to Appear action. The not offer an acceptable
foreign country in which the record is kept, and authenticated by during Pre- nonappearance by excuse for his lack of
the seal of his office. trial: the defendant cooperation, the court may
warrants the impose proper sanctions or
Non – Appearance in the pre-trial conference:Counsel or prosecutor does not presentation of penalties. (It is the
appear; absent does not offer acceptable excuse evidence by the accused’s counsel or
 The court may impose proper sanctions or penalties in the form of plaintiff, ex-parte. prosecutor who is
reprimand, fines or imprisonment (It is the party who is sanctioned)
sanctioned)
Rationale of the exclusion of the accused in the mandatory Necessity The parties are Pre-trial briefs are not
appearance during pre-trial: the principal reason why the accused of Pre-trial required to file and mandated by the rules. The
is not included in the mandatory appearance during pretrial is the Brief serve their respective rules are silent as to its
fear that to include him is to violate his constitutional right to pre-trial briefs. necessity.
remain silent Record There is no such rule There is strict requirement
During Pre- requiring that that all agreements and
trial. admissions or admissions made by the
Duty of the Branch Clerk of Court: agreements be in accused be in writing and
1. Assists the parties in reaching a settlement of the civil aspect of the case writing and signed signed by him and his
2. Mark the documents to be presented as exhibits and copies thereof by the parties counsel, otherwise, they
attached to the records after comparison otherwise they cannot be used against him.
3. Ascertain from the parties the undisputed facts and admissions on the cannot be used
genuineness and due execution of documents marked as exhibits against them.
4. Consider such other matters as may aid in the prompt disposition of the
case Effect of the pre-trial order:
1. bind the parties
Asking questions during the pre-trial:The judge shall be the one to ask questions 2. limit the trial to matters not disposed of
on issues raised therein and all questions must be directed to him to avoid 3. control the course of the action during the trial, unless modified by the
hostilities between the parties court to prevent manifest injustice

Pre-trial agreements:All agreements and admissions made or entered during the Plea Bargaining:
pre-trial shall be
a) Reduced in writing, and It is a process whereby the accused and the prosecution work a satisfactory
b) Signed by the accused and counsel disposition of the case subject to court approval
c) Must be approved by the court if the agreement covers the matters under  Usually involves the defendant’s pleading guilty to a lesser offense or to
Sec. 1 of Rule 118 only one or some of the counts of multi—count indictment in return for
 Otherwise, such admission cannot be used against the accused a lighter sentence than that for the graver charge
 No need to amend the information or complaint
Pre-trial Order:
 Within 10 days after the termination of the pre-trial Conditions:

© Gironella – Macadatar 2017 | Rule 118 – Pre - Trial 148

  The lesser offense is necessarily included in the offense charged
 When some of the essential elements or ingredients of the
former as alleged in the complaint or information constitute
the latter and vice versa
 The plea must be with the consent of both the offended party and the
prosecutor
 The consent of the offended party will not be required if said
party, despite due notice, fails to appear during the
arraignment
What are the requisites of a valid plea bargain? (Sec. 2, Rule 116)
a. Consent of the offended party.
b. Consent of the prosecutor.
c. Approval of the court.
When is plea bargaining allowed?
1. During arraignment, and
2. After arraignment but before trial
May plea bargain be allowed even after the trial has begun?
(Daan v. Sandiganbayan GR No. 163972-77, March 28, 2008
citing People v. Villarama, GR No. 99287, June 23, 1992, 210
SCRA 4266)
Yes, plea bargaining is valid even after the prosecution rested its
case provided that the prosecution does not have sufficient evidence
to convict the accused of the crime charged. This is an exception to
the rule that plea bargaining is only allowed during arraignment or
after arraignment but before trial.
Is there Double Jeopardy in Plea Bargaining? None.
When plea of guilty to a lesser offense is not mitigating: A plea of guilty made
after arraignment and after trial had begun does not entitle the accused to have such
plea considered as mitigating
Instance when plea bargaining not allowed: in violation of the dangerous drugs
act regardless of the imposable penalty
What the court should do when prosecution and offended party agree to the
plea offered by the accused
1. Issue an order which contains the plea bargaining arrived at
2. Proceed to receive evidence on the civil aspect of the case
3. Render and promulgate judgment of conviction, including the civil
liability or damages duly established by the evidence
Alternative Dispute Resolution (ADR)
The following are the modes of alternative dispute resolution.
a) Mediation
b) Conciliation
c) Mini trial
d) Early Neutral Evaluation
e) Arbitration
f) Proceedings before the Philippine Mediation Center
g) Any combination of the foregoing
When Held: Before pre-trial and trial, criminal cases that may be the subject of
mediation are brought before the PMC for CAM.
Purpose: The purpose of CAM is settlement.
Duration: It lasts for a 30-day period which may be extended for another 30-day
period. If no settlement will be arrived at, the case is brought back to the Courts for
Judicial Dispute Resolution.
Stages in the judicial proceedings with Judicial Dispute Resolution:Judicial
proceedings shall be divided into two stages:
(1) from the filing of a complaint, to the conduct of CAM (Court-Annexed
Mediation) and JDR during the pre-trial stage; and
(2) pre-trial proper to trial and judgment
 the judge to whom the case has been originally raffled shall preside over
the first stage – called the JDR judge
 the mediation process is designed to be confidential
o JDR judge shall not pass any information to the trial judge
o However, he may confer in confidence with the mediator who
previously mediated the case, merely for the purpose of
determining unresolved issues
 JDR conferences shall be conducted in private
Timeliness for mediation:
 60 days for the second level courts
 30 days for the first level courts
Cases subject to mediation for JDR:
(1) Criminal cases like violation of traffic rules and regulations and
violation of municipal or city ordinances although included in the list of
cases under summary procedure should not be mediated because they
cannot be compromised and might be a source of corruption if
mediation pushed through
(2) Civil aspect of BP 22
(3) Civil aspect of quasi offenses under title 14 of the RPC
(4) Civil aspect of estafa and libel
(5) Civil aspect of theft
(6) Malicious Mischief
(7) Slander or Libel
Discovery procedures in criminal cases:There is no rule which precludes the use
of relevant modes of discovery in a criminal case
 Directed to the sound discretion of the trial judge
Rule 119 – Trial
Trial: the examination before a competent tribunal according to the laws of the
land, or facts put in issue in a case for the purpose of determining such issue.
Hearing: is not confined to trial, but embraces several stages of litigation including
the pretrial stage.
- a hearing does not necessarily imply the presentation of oral Or
documentary evidence in open court but that the parties are afforded an
opportunity to be heard
When trial shall commence:
 Within 30 days from receipt of the pre-trial order
 If the accused is to be tried again pursuant to an order for a new trial,
the trial shall commence within 30 days from notice of the order
granting a new trial
Extension:This period may be extended to one not exceeding 180 days from notice of
the order if the period becomes impractical due to unavailability of witnesses and
other factors
Time limit following an order for new trial
General rule: if the accused is to be tried again pursuant to an order
for a new trial, the trial shall commence within 30 days from the
notice of order
Exception: of the 30 day period becomes impractical due to
unavailability of the witnesses and other factors, it may be extended
by the court but in no case should it exceed 180 days from notice of
said order for new trial
Remedies of the accused when a prosecuting officer without
just cause secures postponements of the trial against his protest
beyond a reasonable period of time
1. Mandamus to compel a dismissal of the information or
2. If he is retrained of his Liberty, by Habeas corpus to
obtain his freedom
© Gironella – Macadatar 2017 | Rule 119 – Trial 149
Time to prepare for trial:After a plea of not guilty is entered, the accused shall have administratively, or may be fined, suspended or removed unless his failure to
at least 15 days to prepare for trial comply with the speedy trial act is for reasons not attributable to him

Effect of not bringing the accused to trial within the prescribed period: Cases where the time limitation is not applicable
 The information may be dismissed upon motion of the accused 1. When the offended party is about to depart with no definite date of
 Ground for dismissal: denial of his right to speedy trial return
 The motion must be made prior to trial 2. Child abuse cases
 Otherwise, deemed a waiver of the right 3. Violation of dangerous Drugs Law
4. Kidnapping, robbery by a band, robbery against banking or financial
Delays to be excluded from computing the period for commencement of the institution, violation of carnapping act and other heinous crimes
trial:
Include but are not limited to the following: Duties of the presiding judge under the continuous trial system
(1) Delay resulting from an examination of the physical and mental condition 1. Adhere faithfully to the session hours prescribed by laws
of the accused 2. Maintain full control of the proceedings
(2) Resulting from proceedings with respect to other criminal charges 3. Effectively allocate and use time and court resources to avoid court
against the accused delays
(3) Resulting from extraordinary remedies against interlocutory orders 4. Continuous trial on a weekly or other short term trial calendar at
(4) Resulting from pre-trial proceedings earliest possible time
 Provided that the delay does not exceed 30 days
(5) Resulting from orders of inhibition, or proceedings relating to change of Factors for granting continuance
venue of cases or transfer from other courts The following factors, among others, shall be considered by a court in determining
(6) Resulting from a finding of the existence of a prejudicial question whether to grant a continuance
(7) Delay reasonably attributable to any period, not to exceed 30 days, (a) Whether or not the failure to grant a continuance in the proceeding would
during which any proceedings concerning the accused is actually under likely make a continuation of such proceeding impossible or result in a
advisement miscarriage of justice; and
(8) Resulting from the absence or unavailability of an essential witness (b) Whether or not the case taken as a whole is so novel, unusual and
 Whereabouts are unknown or cannot be determined by due complex, due to the number of accused or the nature of the prosecution, or
diligence that it is unreasonable to expect adequate preparation within the periods
 Or whereabouts are known but his presence for trial cannot be of time established therein.
obtained by due diligence
(9) Resulting from mental incompetence or physical inability of the accused Prohibited grounds for a continuance:
to stand trial 1. congestion of the court's calendar or lack of diligent preparation or
(10) Resulting from a continuance granted by any court motuproprio, or on 2. failure to obtain available witnesses on the part of the prosecutor.
motion of either the accused or his counsel or the prosecution
(11) A reasonable period of delay when the accused is joined for trial with a Conditional Examination of witnesses even before trial:
co-accused over whom the court has not acquired jurisdiction, or, as to
whom the time for trial has not run and no motion for separate trial has  For the Accused / defense
been granted.
Grounds:
Mari vs Gonzales (2011): The time involved in the proceedings in a a. may either be sick or infirm
petition for transfer of venue can only be excluded from said time b. the witness may also be residing more than 100 kilometer from the place
limit if it was the accused who instituted the same. Hence, in this of trial and has no means to attend the trial
case, the time during which the petition for transfer of venue filed c. other similar circumstances exist that would make him unavailable or
by the private complainant is pending, cannot be excluded from the prevent him from attending trial
time limit of thirty (30) days from receipt of the pre-trial order
imposed in Section 1, Rule 119 of the Rules of Court. Further, the How:file a motion that the witness be conditionally examined
petition for transfer of venue cannot interrupt proceedings unless a
TRO or a writ of preliminary injunction has been issued. Contents of the Motion:
1. the name and residence of the witness
Continuous Trial 2. the substance of his testimony, and
3. the reason or reasons for his inability to attend the trial
Once commenced, the trial shall continue from day to day as far as practicable until  the court shall issue order to that effect and a copy of said
terminated order shall be served on the prosecutor at least 3 days before
the scheduled examination
 But it may be postponed for a reasonable period of time for good cause
 if the prosecutor does not appear despite notice, the
 To ensure speedy trial, the court shall set the case for continuous trial on examination shall proceed notwithstanding his absence
a weekly or other short term trial calendar at the earliest possible time
 The court shall do so after consultation with the prosecutor and defense Where the examination shall be taken:The examination shall be taken before a judge, or
counsel if not practicable, before a member of the bar in good standing so designated by the
judge in the order
Time limit for the trial of criminal cases
 It may also be taken before an inferior court if the order is made by a
court of superior jurisdiction
General rule: trial shall not exceed 180 days from the first day of trial
Note: there is no right to cross examine
Exceptions
1. Those governed by the rules on summary procedure  For the Prosecution
2. Those where the penalty prescribed by law does not exceed 6 months
imprisonment or a fine of Php 1,000 or both 1. witness is too sick
3. Those authorized by the Chief Justice of the SC 2. infirm to appear at the trial
3. has to leave the Philippines with no definite date of returning
Effect of court's failure to comply with the mandates of the speedy trial act to
terminate the case within the 180 day period:The judge may be charged

© Gironella – Macadatar 2017 | Rule 119 – Trial 150

The conditional examination shall be made before the court where the case is
pending and shall be conducted in the same manner as an examination at the trial
 It shall be made in the presence of the accused (right to cross examine)
 Failure or refusal: considered as waiver and the statement
taken therein may be admitted in behalf of or against the
accused
How to secure appearance of a material witness:Either party may, upon motion,
secure an order from the court for a material witness to post bail for such sum as
may deemed proper, if the court is satisfied upon either Proof, or Oath That a
material witness will not testify when required
Trial of several accused: When two or more accused are jointly charged with any
offense, they shall be tried jointly
 unless the court, in its discretion and upon motion of the prosecutor or
any accused, orders separate trial for one or more accused
Discharge of accused to be state witness
State witness: he is one of two or more peso s jointly charged with the commission
of a crime but who is discharged with his consent as such accused so that he may be
a witness for the state.
Q: There are several accused jointly tried for an offense arising
from a single complaint or information. The prosecution cannot
locate witnesses and cannot obtain pieces of evidence to secure
a conviction. What remedy may the prosecution resort to if it
wants to come up with evidence to secure conviction?
The prosecution may move/file a motion for the discharge of one or
more accused as state witness or witnesses.
Procedure for the Discharge of an Accused as a State Witness:
1) Two or more persons are jointly charged with the same offense in the
complaint or information.
2) Before the prosecution rests its case, it must file a motion for the
discharge of one or more accused to be a state witness or witnesses.
3) The motion for discharge must be with the consent of the accused.
4) There must be a hearing on the motion. It is in this hearing that the
prosecution must prove the requisites for one to be a state witness. At
the said hearing, the prosecution must present evidence along with the
sworn statement of the accused whose discharge as a state witness is
sought. The sworn statement of the accused must show how the crime
was committed and his and his co-accused’s participation.
5) The court is satisfied that:(REQUISITES)
a. There is absolute necessity for the testimony of the accused whose
discharge is requested.
His testimony must not simply corroborate or otherwise strengthen the evidence in the hands of the
prosecutor
b. There is no other direct evidence available for the proper
prosecution of the offense committed, except the testimony of the
said accused.
c. The testimony of the said accused can be substantially corroborated
in its material points.
d. Said accused has not at anytime been convicted of any offense
involving moral turpitude.
e. The said accused does not appear to be the most guilty
The discharged defendant need not be the least guilty.
After the court is satisfied of the above requisites, it issues an order granting the
motion for discharge of the accused to be a state witness.
Q: Who may file the motion for the discharge of an accused to
be a state witness?
It is the prosecution who files the motion.
Q: What is the nature of a court order granting the motion of an
accused asking for his discharge to be a state witness?
A court order granting the motion of an accused asking for his
discharge to be a state witness is void.
People vs. Chaves (2003): It is not necessary that the court
discharges him first as state witness. There is nothing in the rules
that says so.
While it is true that an accused cannot be made a hostile witness
for the prosecution, for to do so would compel him to be a witness
against himself, he may however, testify against a codefendant
where he has agreed to do so, with full knowledge of his right and
the consequences of his acts.
There is a difference between testifying as state witness and
testifying as a co-accused. In the first, the proposed state witness
has to qualify as a witness for the state, after which he is discharged
as an accused and exempted from prosecution. In the second, the
witness remains an accused and can be made liable should he be
found guilty of the criminal offense.
Evidence adduce during the discharge hearing:Evidence adduced in support of
the discharge shall automatically form part of the trial.
 If the court denies the motion for discharge of the accused as state
witness, his sworn statement shall be inadmissible in evidence.
Effect of the discharge:
1. shall amount to an acquittal of the discharged accused and
2. shall be a bar to future prosecution for the same offense,
 unless the accused fails or refuses to testify against his co-
accused in accordance with his sworn statement constituting
the basis for the discharge
When mistake has been made in charging the proper offense
 When it becomes manifest at any time before judgment that a mistake
has been made in charging the proper offense and
 the accused cannot be convicted of the offense charged or any other
offense necessarily included therein,
 the accused shall not be discharged if there appears good cause to detain
him.
 In such case, the court shall commit the accused to answer for the
proper offense and dismiss the original case upon the filing of the proper
information.
Q: The court issued an order granting the prosecutor’s motion for
the discharge of one of the accused, A, to be a state witness. The
prosecution though no longer presented A, as it felt that it may
secure a conviction even without his testimony. Even if A was
available to testify, he was never called to do it. The prosecution
then moved to reinclude A’s name among those currently
prosecuted. May A be prosecuted?
A: Suggested Answer Not anymore. The accused will not be
reincluded in the same complaint or information since it was not his
fault that he could not testify.
Being a State Witness is a form of immunity statute. Some other forms of immunity statues are the
following.
a) Republic Act No. 6700 or the Ombudsman Law – Authority is granted
to the Ombudsman to grant immunity in cases involving Government
Officials and employees
b) Republic Act No. 9165 or the Dangerous Drugs Act – Authority is given
to the DOJ to grant immunity in drug cases
c) Executive Order No. 14 – Authority is given to the PCGG to grant
immunity in cases involving ill-gotten wealth
d) Presidential Decree 749 – Immunity may be given to informants for
certain crimes punished by the RPC, NIRC (tax code), and Tariff and
Customs Code.
e) Republic Act No. 6981 or the Witness Protection Program.
© Gironella – Macadatar 2017 | Rule 119 – Trial 151
Effect of Admission into the Witness Protection Program: Admission into the In the normal order of trial, the prosecution needs to prove that:
Program shall entitle such witness to immunity from criminal prosecution for the 1) B was killed.
offense or offenses in which his testimony will be given or used and all the rights 2) It was A, who killed B.
and benefits provided. 3) The killing was unlawful.
Witness Protection Program under RA 6981 distinguished from Rule 119 Sec. 17
Now, if A admits the killing, but interposes a lawful defense, the prosecution does not need to prove
Discharge of an
Witness Protection the list above. It will now be A who needs to prove that the killing is not unlawful.
Accused to be State
Program (WPP)
Witness
The offense charged must Applies to all Trial in Absentia:
Offense be a grave felony offenses whether
Charged: punishable by the RPC or light, less grave, or General Rule:The accused need not always present
special laws. grave.  But he cannot be tried in his absence
Necessity of Any witness, whether a The witness is one or
the Witness plain witness or the more accused He can only be tried in absentia when the following requisites occur:
being an accused himself may be testifying against his  The accused has already been arraigned
Accused: qualified under the WPP. co-accused.  The accused has been duly notified of the trial or hearings, and
Necessity of The witness need not be The witness is  The absence of the accused or his failure to appear is unjustified
being charged charged in court in order necessarily charged
in court: to qualify in WPP. in court. Instances when the presence of the accused is required:
The witness and his No such requirement a) At arraignment and plea, whether of innocence or of guilt
relatives by affinity or exists. b) During trial, whenever necessary for identification purposes, and
Necessity of consanguinity within the c) At the promulgation of sentence, unless:
the witness second degree is being  It is for a light offense, in which case the accused may appear
receiving threatened with bodily by counsel or representative
threats: harm, in order for the
witness to qualify under Corpus delicti in criminal cases:
WPP.  The body, foundation, or substance of a crime
Authority The immunity is granted The immunity is  Two elements:
granting the by the DOJ. granted by the  That a certain result has been established – example: that a
immunity: courts. man has died
In order to qualify under No such requirement  That some person is criminally responsible for it
Witness being the WPP, the witness exists.
 Prosecution is burdened to prove corpus delicti beyond reasonable
a law enforcer: must not be a member of a
doubt either by:
law enforcement agency.
The witness receives The accused who has  Direct evidence or
Benefits certain benefits such as been discharged as a  By circumstantial or
Received: relocation and change of state witness receives  Presumptive evidence
identity. no such benefits.
Lack of formal offer of evidence during the trial:Documents which may have
Order of trial: been identified and marked as exhibits during pre-trial or trial but which were not
formally offered in evidence cannot in any manner be treated as evidence
The trial shall proceed in the following order:
1. The prosecution shall present evidence to prove: Effects of trial in absentia: the accused waives the right to present evidence and
a. the charge and, cross examine the witnesses against him
b. in the proper case, the civil liability.
2. The accused may present evidence to prove: Demurrer to Evidence
a. his defense, and
b. damages, if any, arising from the issuance of a provisional Demurrer to evidence: it is an objection by one of the parties in an action to the
remedy in the case. effect that the evidence which is adversary produced is insufficient in point of law,
3. The prosecution and the defense may, in that order, present rebuttal and whether true or not, to make out a case or sustain the issue.
sur-rebuttal evidence
 unless the court, in furtherance of justice, permits Nature:It is actually a motion to dismiss that is filed by the accused after the
them to present additional evidence bearing upon prosecution has rested its case
the main issue.
4. Upon admission of the evidence of the parties, the case shall be deemed Ground: insufficiency of evidence
submitted for decision unless:
a. the court directs them to argue orally or How:
b. to submit written memoranda. 1. The court on its own initiative dismiss the action without waiting for a
5. When the accused admits the act or omission charged in the complaint demurrer from the accused
or information but interposes a lawful defense, the order of trial may be  But the court shall do so only after giving the prosecution the
modified.(REVERSED ORDER OF TRIAL) opportunity to be heard
2. By the accused, with leave of court
In such case, (In a strict sense) the burden of evidence (not the burden of proof) 3. By the accused, without leave of court
will switch to the accused.
With leave of court:
*The distinctions between burden of proof and burden of evidence are better taken  The power to grant is address to the sound discretion of the trial court
in evidence.  The motion shall specifically state its grounds and

Eg.A killed B. When to file:Shall be filed within a non-extendible period of 5 days after the
prosecution rest its case

© Gironella – Macadatar 2017 | Rule 119 – Trial 152


Opposition:The prosecution may oppose the motion within a non-extendible period
of 5 days from its receipt
If the court grants the leave: the accused shall file the demurrer to evidence within a
non-extendible period of 10 days from notice
Opposition to the demurrer:The prosecution may oppose the demurrer within 10 days
from its receipt
When the leave is denied: it shall not be reviewable by appeal or certiorari before
judgment
If the courts grant the demurrer: the case is dismissed and the accused is as good as
acquitted – DOCTRINE OF FINALITY OF ACQUITTAL
What is the prosecution’s remedy against an order granting a
demurrer to evidence?
The remedy is not appeal, but a petition for certiorari under Rule 65
on the ground of grave abuse of discretion amounting to lack or
excess of jurisdiction or a denial of due process and upon showing
that there is no appeal, or any other plain, adequate, and speedy
remedy in the ordinary course of law.
If the court denies the demurrer: the accused may adduce evidence in his defense
Note:The order denying the motion for leave or the demurrer to evidence itself is
not reviewable by appeal or certiorari before judgment.
What is the significance of obtaining prior leave of court in
filing a demurer to evidence?
If the court denies the demurrer to evidence filed with leave of
court, the accused may adduce evidence in his defense. When the
demurrer to evidence is filed without leave of court, the accused
waives the right to present evidence and submits the case for
judgment on the basis of the evidence for the prosecution.
Demurrer to evidence without leave of court:
1. When the demurrer to evidence is filed without leave of court, the
accused waives the right to present evidence and submits the case for
judgment on the basis of the evidence for the prosecution.
Q: Does denial of a demurrer to evidence without prior leave of
court equivalent to conviction?
A: No. The denial of a demurrer to evidence filed without prior leave
of court is not equivalent to conviction. It does not even warrant an
automatic conviction. The court will still determine whether the
evidence presented by the prosecution can sustain a conviction
beyond reasonable doubt. If it does not, then the case will be
dismissed.
2. The accused filed a demurrer to evidence notwithstanding that his earlier
filed motion for leave of court has been denied. (the motion for leave has
been denied but the accused still filed a demurrer to evidence)
In order to determine whether the motion filed is a demurrer to evidence or just a
motion to dismiss, the following must be considered:
a) The allegations in it must be made in good faith
b) The stage of the proceeding at which it is filed
c) The primary objective of the party filing it
Case: After the prosecution has rested its case, the accused files
a demurrer to evidence. In resolving the demurrer to evidence,
should the trial court likewise decide the civil aspect of the case
and determine the civil liability of the accused?
The answer should be qualified as follows:
a) If the demurrer to evidence is filed without leave of court:
If the demurrer to evidence is filed without leave of court, the whole
case is submitted for judgment on the basis of the evidence for the
prosecution as the accused is deemed to have waived his right to
present evidence. In this situation, the court is called upon to
decide the case including its civil aspect, unless the offended party
has waived the civil action, or has reserved his right to institute it
separately, or has instituted the civil action prior to the criminal
action.
In case of conviction, the trial court should state in its judgment the
civil liability or damages to be recovered by the offended party from
the accused.
In case of acquittal, the accused may still be adjudged civilly liable
where: (a) the acquittal is based on reasonable doubt; (b) the court
declares that the liability of the accused is only civil; or (c) the civil
liability of the accused does not arise from or is not based upon the
crime of which the accused is acquitted.
But if the accused is acquitted and there is a finding in the final
judgment in the criminal action that the act or omission from which
the civil liability may arise did not exist, then the civil action based
on the delict is deemed extinguished.
b) If the demurrer to evidence is filed with leave of court:
If the court denies the demurrer to evidence because the evidence
presented by the prosecution is sufficient, the accused may present
evidence regarding both the criminal and civil aspect of the case.
If the court grants the demurrer to evidence because the evidence so
far presented by the prosecution is insufficient as proof beyond
reasonable doubt, it does not follow that the same evidence is
insufficient to establish a preponderance of evidence. Thus, if the
court grants the demurrer, proceedings on the civil aspect of the
case shall proceed, except if the trial court finds that the act or
omission from which the civil liability may arise did not exist. (Hun
Hyung Park v. Eung Won Choi, G.R. No. 165496, Feb. 12, 2007)
Scenario: A filed a demurrer to evidence with leave of court. The
court granted it. How will the court proceed as to the civil
aspect of the case?
As to the civil aspect of the case, the court may require the
prosecution to prove the accused’s civil liability by preponderance
of evidence.
What if in granting the demurrer to evidence, the court failed to
resolve the civil aspect of the case?
In such instance, the remedy by the offended party is to appeal the
civil aspect of the case.
Demurrer to evidence in a civil case vs. in a criminal case:
Civil Case Criminal Case
Anchored upon the failure of the Predicated upon insufficiency of
plaintiff to show that upon the facts evidence
and the law, he is entitled to relief
Requires no prior leave of court May be filed with or without leave
of court
When denied: the defendant does The accused may adduce his
not lose his right to present his evidence in his defense only when
evidence the demurrer that was denied was
filed with leave of court
If the demurrer is granted: the No appeal is allowed, when granted
plaintiff may appeal and if the – deemed acquittal, to allow the
dismissal is reversed, the defendant appeal would be to put the accused
is deemed to have waived his right in double jeopardy
to present his evidence
© Gironella – Macadatar 2017 | Rule 119 – Trial 153
 Rule 120 – Judgment
It is the adjudication by the court that the accused is guilty or not guilty of the
offense charged and the imposition on him of the proper penal and civil liability, if
any
Judgment vs. Ratio Decidendi
 Judgment: pronounces the disposition of the case
 Ratio decidendi provides the basic reason for such determination
Final order vs. Interlocutory order
Final order: it disposes of the whole subject matter or terminates a particular issue
leaving nothing to be done but to enforce by execution what has been determined
Interlocutory order: it is issued by the court when the proceeding is not yet
terminated because not all matters of the proceedings have been finished.
Requisites:
a) It must be written in the official language
b) It must be personally and directly prepared and signed by the judge
c) It must contain clearly and distinctly a
a. Statement of the facts
b. The law upon which it is based
d) It must be signed by the judge preparing it and filed with the Clerk of
Court.
Why must the judgment state clearly and distinctly the facts
and law upon which it is based?
The parties to a litigation should be informed of how it was
decided, with an explanation of the factual and legal reasons that
led to the conclusions of the trial court. The losing party is entitled
to know why he lost, so he may appeal to the higher court, if
permitted, should he believe that the decision should be reversed. A
decision that does not clearly and distinctly state the facts and law
upon which it is based is precisely prejudicial to the losing party,
who is unable to pinpoint to possible errors of the court for review
by a higher tribunal. (Lumanog, et. al. v. People, GR No. 182555,
September 7, 2010)
Note: A judgment that fails to state clearly and distinctly the facts
upon which it is based, is called a sin perjuicio judgment. It is void.
MEMORANDUM DECISION: A memorandum decision is a decision which
adopts by reference the findings of fact and conclusions of law contained in the
decision of an inferior tribunal. (Oil and Natural Gas Commission v. CA GR No.
114323, July 23, 1998)
It is allowed and is not violative of the Constitutional provision that a decision shall
contain the facts and the law upon which it is based. By its very nature, a
memorandum decision may be rendered only by an appellate tribunal.
MINUTE RESOLUTION: a minute resolution is a resolution denying petitions for
review, appeal, etc., in the shortest possible way.
Eg. ―Please take notice that the Court issued a resolution in this case, dated ______
and reads as follows: The petition is denied for lack of merit.‖ No further
explanation is added. It is a one page resolution that has nothing attached to
explain why the said judgment was arrived at.
Is a minute resolution valid? Its validity must be qualified. It is valid for dismissing
a petition for review. It is adjudication by merit which becomes final.
The Court has repeatedly said that minute resolutions dismissing
the actions filed before it constitute actual adjudications on the
merits. They are the result of thorough deliberation among the
members of the Court. When the Court does not find any reversible
error in the decision of the CA and denies the petition, there is no
need for the Court to fully explain its denial, since it already means
that it agrees with and adopts the findings and conclusions of the
© Gironella – Macadatar 2017 | Rule 120 – Judgment
CA. The decision sought to be reviewed and set aside is correct.
Jose B. Del Rosario Jr. V People of the Phil., GR No. 143419, June 22, 2006.
Facts: At first, the Ombudsman did not find probable cause to indict A for
violation of the graft and corrupt practices act. It held this view on review. On the
motion for reconsideration, it again reiterated its finding that no probable cause
exists for A’s indictment. Another motion for supplemental reconsideration was
filed, and this time, the Ombudsman found probable cause to indict A. In other
words, the Ombudsman had a change of mind, after three resolutions finding no
probable cause for A’s indictment. The information was filed in the
Sandiganbayan. A filed a motion to quash but the same was denied. A filed a
petition for certiorari to question the validity of the information. When he was
required to comment, A did not comply. With nothing to support his argument,
and for his failure to file a comment, the Supreme Court denied his petition in a
minute resolution and ruled that the criminal information was valid.
The case prospered. During the pre-trial, A again questioned the validity of the
information. The Sandiganbayan ruled that it was valid as per the minute
resolution by the Supreme Court. A once again went to the Supreme Court
alleging that the Sandiganbayan acted with grave abuse of discretion. A argued
that the validity of the information filed against him could not be ruled upon by
the courts in a minute resolution. The dismissal of his previous petition was due to
his failure to file a comment, and not some other grounds.
The Supreme Court simply resolved otherwise. It held that the dismissal of the
previous petition, and their ruling that the information is valid is an adjudication
by merits. It attained finality and res judicata may set in, barring a relitigation on
the same issue.
CONTENTS OF THE JUDGMENT:
Conviction:
1. The legal qualification of the offense constituted by the acts committed
by the accused
2. The aggravating and mitigating circumstances which attended the
commission of the offense
3. The participation of the accused in the offense
4. The penalty imposed upon the accused
5. The civil liability or damages caused by his wrongful act or omission to
be recovered from the accused by the offended party, if there is any,
unless the enforcement of the civil liability has been reserved or waived
Q: Can the court impose penalties in the alternatives?
A: NO. It is true that under many provisions of the penal law, the
court has the discretion or alternative of imposing one or another of
different penalties; but certainly it cannot be argued that, because
the judge has the discretion of fixing one or another penalty, he can
impose both in the alternative. He must fix positively and with
certainty the particular penalty.
Remedy when the judgment fails to awards civil liability
1. Appeal
2. Certiorari
3. Mandamus
Acquittal:
1. State whether or not the evidence of the prosecution
a. Absolutely failed to prove the guilt of the accused, or
b. Merely failed to prove his guilt beyond reasonable doubt
2. Determine if the act or omission from which the civil liability might
arise did not exist
Note: A verdict of acquittal is immediately final
Award of indemnity to offended party despite of acquittal: In case of acquittal,
unless there is a clear showing that the act from which the civil liability might
arise did not exists, the judgment must make a finding on the civil liability of the
accused in favor of the offended party.
154
 Effect of the judgment of conviction upon a minor
General rule: the courts shall promulgate the sentence and ascertain
any civil liability which the accused may have incurred.
 the sentence, however, shall be suspended without need
of application pursuant to PD 603 or the child and Youth
Welfare Act
 In which case the child shall have been committed under
the care of the DSWD or any other accredited
government institution until he reaches the age of 21 or
until the court so determines
Exceptions: when such minor offender
1. Has enjoyed previous suspension of sentence
2. Is convicted of a crime punishable by death or life
imprisonment
3. Is convicted by a military tribunal
4. Is already of age at the time of sentencing even if he was
minor at the time of the commission of the crime
#4: the time he spent during the period of his confinement shall be
credited to his actual service of sentence
 he shall be entitled to the privileged mitigating
circumstance of minority
Rule when there are two or more offenses in a single information or complaint:
 The accused must file a motion to quash, if he fails to object before trial:
 The accused is deemed to have waived the defect and the court
may convict him for as many offenses, setting out separately
the findings of fact and law in each offense
Judgment rendered by judge who did not hear case:The fact that the trial judge
who rendered judgment was not the one who had the occasion to observe the
demeanor of the witnesses during trial, but merely relied on the records of the case
does render the judgment erroneous
 Especially where the evidence on record is sufficient to support its
conclusion
Variance Doctrine:It is situation where:
1. The offense proved is different from the offense as charged in the
complaint or information, and
2. The offense as charged is either included in the offense proved or
necessarily includes the offense proved
Note: The accused shall be convicted of the offense proved which is included in the
offense charged
 He may also be convicted of the offense charged which is included in the
offense proved
When an offense includes or is included in another:An offense charged
necessarily includes the offense proved when some of the essential elements or
ingredients of the former, as alleged in the complaint or information, constitute the
latter
- And an offense charged is necessarily included in the offense proved,
when the essential ingredients of the former constitute or form a part of
those constituting the latter.
Note: A variance in the mode of commission of the offense is binding upon the
accused if he fails to object to evidence showing that the crime was committed in a
different manner than what was alleged
Examples:
 Robbery necessarily includes theft.
 Murder or paricide necessarily includes homicide and physical injuries.
 Rape necessarily includes Acts of Lasciviousness, Seduction.
 Robbery with Force Upon things is different from and does not include
or is necessarily included in Robbery with Violence, or Intimidation
against Persons.
Attempted Rape Necessarily Includes Light Coercion or Unjust
© Gironella – Macadatar 2017 | Rule 120 – Judgment
Vexation (Renato Baleros Jr. V. People, GR No. 138033, January
30, 2007)
Facts: A, a lady is sleeping at her dormitory room located at the
third floor. B, a man, climbed up to her window, stealthily opened
it, and was about to place a handkerchief laden with knockout gas
on A’s face. Fortunately, before A could inhale any of the fumes, she
noticed B’s presence. B hastily went on top of A and tried his best to
make A inhale the fumes. B failed. A was later charged for attempted
rape. The information alleged that B committed preparatory acts for
rape. The trial court arrived at a judgment of conviction. When the
case reached the Supreme Court though, the judgment of conviction
for attempted rape was overturned. Instead, the Supreme Court
held that B is liable for unjust vexation, an offense necessarily
included in the charge of attempted rape. The Court ruled that
there is doubt as to the true intention of B. Although a reasonable
man would presume that B intended nothing else but to rape A just
by looking at the facts of the case, the Court ruled that B could have
had other things in his mind aside from raping A. With his intent
unkown, B could not be held liable for attempted rape or other
crimes. Still, it is a fact that A was severely annoyed by B’s acts,
which is unlawful. The proper thing to do then is to hold B liable for
unjust vexation.
From this Supreme Court decision, it may be inferred that other
crimes that bring about unjustified insults necessary include unjust
vexation as well. – Eg. Murder, etc.
Promulgation of judgment:
Promulgation: it is the official proclamation or announcement of the judgment
Mittimus: it is the process issued by the court after conviction to carry out the
final judgment, such as commanding a prison warden to hold the accused in
accordance with the terms of judgment
How promulgated: The judgment is promulgated by reading it in the presence of
the accused and any judge of the court in which it was rendered.
- However, if the conviction is for a light offense, the judgment may be
pronounced in the presence of his counsel or representative.
- The court promulgating the judgment shall have authority to accept the
notice of appeal and to approve the bail bond pending appeal;
Note:that if the decision of the trial court convicting the accused changed the
nature of the offense from non-bailable to bailable, the application for bail can only
be filed and resolved by the appellate court.
Authority to promulgate the judgment
General rule: the judge of the court who renders judgment
Exceptions
1. When the judge is absent or outside the province or city - the judgment
may be promulgated by the clerk of court
2. Accused is confined or detained in another city - by the executive judge
of the RTC having jurisdiction over the place of confinement or
detention
Instances when judgement may be promulgated even if the accused is not
present
1. A judgment of acquittal
2. Judgment is for a light offense
3. Accused fails to attend the promulgation despite due notice or if he
jumped bail or escape from prison
Case: Judge X prepared and signed a judgment which was dated on
June 1, 2011. The accused received the notice of promulgation on
July 1, 2011. In the said notice, the promulgation was set on July 16,
2011. Before the promulgation, Judge X died on July 10, 2011.
Nonetheless, the promulgation proceeded as the Clerk of Court
relied on the provision of the rules stating that ―when the judge is
absent or outside the province or city, the judgment may be
155
promulgated by the Clerk of Court‖. Is the judgment valid?
A: No, the judgment is void. The said judgment may never be
promulgated. Promulgation must be made during the incumbency
of the judge who penned the decision. The absence referred to in the
said rule refers to temporary absence. In case of a judge’s death,
dismissal, resignation, or promotion, the absence is permanent and
the judge ceases to be the judge of the court.
Note: Always remember, an earlier penned decision may not be
promulgated after the judge who prepared and signed it becomes
permanently absent – dismissed, dead, resigned, or promoted.
What then will happen in such instances?
The court and the accused has no choice but to wait for the next
judge to review the records of the case, prepare and sign the
decision, set the promulgation, and promulgate it.
Is a judgment void due to the reason that the judge who
prepared, signed, and promulgated it, is not the one who heard
the case?
No. The fact that the trial judge who rendered judgment was not
the one who had the occasion to observe the demeanor of the
witnesses, during trial, but merely relied on the records of the case,
does not render the judgment erroneous, especially where the
evidence on records is sufficient to support its conclusion. (People
v. Alfredo, GR No. 188560, December 15, 2010)
How accused is to be notified of the promulgation:
- The proper clerk of court shall give notice to the accused:
 personally or
 through his bondsman or warden and counsel,
 requiring him to be present at the promulgation of
the decision.
- If the accused tried in absentia because he jumped bail or escaped from
prison, the notice to him shall be served at his last known address.
Rule if the accused fails to appear in the promulgation of judgment:In case the
accused fails to appear at the scheduled date of promulgation of judgment despite
notice,
- the promulgation shall be made by recording the judgment in the
criminal docket and serving him a copy thereof at his last known address
or thru his counsel.
In case absence is without just cause: If the judgment is for conviction and the
failure of the accused to appear was without justifiable cause,
- he shall lose the remedies available in these rules against the judgment
and the court shall order his arrest.
Remedy:Within fifteen (15) days from promulgation of judgment, however, the
accused may surrender and file a motion for leave of court to avail of these remedies.
- He shall state the reasons for his absence at the scheduled promulgation
and if he proves that his absence was for a justifiable cause, he shall be
allowed to avail of said remedies within fifteen (15) days from notice.
A motion for Repromulgation or Petition for Certiorari under
Rule 65 are not the proper remedies (Almuete v. People GR No.
179611, March 12, 2013)
This is another peculiar case. This case explains how promulgation
of judgment is done by the Supreme Court or other appellate courts.
Facts: A, B, C, and D were convicted of violation of PD 705. They
were absent during the promulgation of the judgment. Their lawyer
claimed that A, B, and C were ill while D was not notified of the
promulgation. All the accused filed a motion for reconsideration
questioning the legality of the promulgation. The trial court denied
their motion. All the accused filed a petition for certiorari before the
CA asking for a repromulgation. The CA granted their petition. The
State through the Solicitor General appealed the CA’s decision to
© Gironella – Macadatar 2017 | Rule 120 – Judgment
the SC. The SC ruled in favor of the State and reinstated the trial
court’s judgment. The judgment has become final and has been
entered into the entry of judgments. All of the accused still filed a
2nd and 3rd motion for reconsideration which were still denied by
the Supreme Court. All of the accused now filed a motion for
clarification before the SC asking whether they may still appeal the
trial court’s judgment of conviction. Without any resolution on
their motion, all accused filed a motion for repromulgation before
the trial court that convicted them. It was denied. On appeal, they
argued that the trial court ought to have repromulgated the
judgment of conviction by the Supreme Court in order for them
not to lose their right to appeal.By this reason their right to
appeal still exists.
Issue: A) May the accused still appeal?
B) Is there a need to promulgate a decision by the appellate
court in the trial court before the said decision becomes valid?
Ruling:
A) No, the accused’s right to appeal has already prescribed. The
judgment has long become final. In fact, there has already been an
entry of judgment.
B) No, a repromulgation of either the affirmed or modified judgment
of conviction by the trial court is not necessary. Under
Administrative Circular No. 16-93, issued on September 9, 1993, The
procedure for the promulgation of judgments in the trial courts in
criminal cases, differs from that prescribed for the Supreme Court
and the Court of Appeals where promulgation is effected by filing
the signed copy of the judgment with the Clerk of Court who
causes true copies thereof to be served upon the parties. The
procedural consequence of this distinction was reiterated in Jesus
Alvarado, etc. Vs. The Director of Prisons, to wit: By sections 8 and
9 of Rule 53 (now Sections 10 and 11 of Rule 51) in relation to
section 17 of Rule 120 (now Section 17 of Rule 124), a judgment is
entered 15 days after its promulgation, and 10 days thereafter, the
records are remanded to the court below including a certified copy
of the judgment for execution. In the case of People vs. Sumilang
(44 Off. Gaz., 881, 883; 77 Phil. 764), it was explained that ―the
certified copy of the judgment is sent by the clerk of the appellate
court to the lower court under section 9 of rule 53, not for the
promulgation or reading thereof to the defendant, but for the
execution of the judgment against him,‖ it ―not being necessary to
promulgate or read it to the defendant, because it is to be presumed
that accused or his attorney had already been notified thereof in
accordance with sections 7 and 8, as amended, of the same Rules 53
(now sections 9 and 10 of Rule 51),‖ and that the duty of the court of
first instance in respect to such judgment is merely to see that it is
duly executed when in their nature the intervention of the court of
first instance is necessary to that end.
The practice of requiring the convict to appear before the trial court
for ―promulgation‖ of the judgment of the appellate court should,
therefore, be immediately discontinued.
Modification of judgment:A judgment of conviction may be modified or set aside
upon motion of the accused
- Before the judgment becomes final or before appeal is perfected
When judgment becomes final:
1. After the lapsed of the period for perfecting an appeal
2. When the sentence has been partially or totally satisfied or served
3. When the accused has waived in writing his right to appeal
4. Has applied for probation
Instances when the trial court loses jurisdiction even before the lapsed of the
15 day period to appeal
1. The defendant voluntarily submits to the execution of the judgment
2. When the defendant perfects an appeal
3. Defendant withdraws his appeal
4. Accused expressly waived in writing his right to appeal
156
 5. Accused files for probation
Entry of judgment
The recording of the judgment or order in the book of entries of judgment shall
constitute its entry. The record shall contain the dispositive part of the judgment
order and shall be signed by the clerk, with the certificate that such judgment or
order has become final and executory.
Probation
The court may, after it shall have convicted and sentenced a defendant within the
period for perfecting an appeal, suspend the execution of the sentence and place the
defendant on probation for such period and conditions it may deemed best.
Limitation: no application for probation shall be entertained or granted if the
defendant has perfected an appeal from the judgment of conviction.
Offenders who are disqualified from probation
1. Those sentenced to serve a maximum term of imprisonment of more than
6 years
2. Those charged with subversion or any crime against national security or
public order
3. Those previously convicted by final judgment of an offense punished by
imprisonment not less than one month and one day and / or a fine not
less than 200 pesos
4. Those who have been once on pardon
5. Those who are already serving sentence at the time the Probation Law of
1976 became applicable
Post-Conviction Remedies
After promulgation but before finality of the conviction:
1) Motion for Reconsideration.
2) Appeal
3) Motion for New Trial
4) Motion to Reopen Trial
Note: In the above list, the remedies of Habeas Corpus and reliance upon DNA
Testing may also be added.
Are there instances when the accused does not appear during the promulgation
yet he does not lose his right to appeal or to avail of his post-conviction
remedies?
Yes. If the conviction is for a light offense, the judgment may be
pronounced in the presence of the accused’s counsel or his representative. In such
instance, even if the accused was absent, he does not lose his right to avail of the
post-conviction remedies.
Ludong, Balatong, and Labong were charged with murder. After
trial, the court announced that the case was considered submitted
for decision. Subsequently, the Court issued the notices of
promulgation of judgment which were duly received. On
promulgation day, Ludong and his lawyer appeared. The lawyers of
Balatong and Labong appeared but without their clients and failed
to satisfactorily explain their absence when queried by the court.
Thus, the judge ordered the Clerk of Court to proceed with the
reading of the judgment convicting all the accused. With respect to
Balatong and Labong, the judge ordered that the judgment be
entered in the criminal docket and copies be furnished to their
lawyers. The lawyers of Ludong, Balatong, and Labong, filed within
the reglementary period a Joint Motion for Reconsideration. The
court favorably granted the motion of Ludong downgrading his
conviction from murder to homicide but denied the motion as
regards Balatong and Labong.
a) Was the court correct in taking cognizance on the Joint
Motion for Reconsideration?
b) Can Balatong and Labong appeal their conviction in case
Ludong accepts his conviction for homicide?
© Gironella – Macadatar 2017 | Post-Conviction Remedies
Answer:
a) Yes, the court was correct in taking cognizance on the Joint
Motion for Reconsideration, but only as to Ludong. The court
should treat the motion as if it has been filed only by Ludong. Any
resolution made by the court on the motion will only affect Ludong.
Balatong and Labong have already lost their right to avail of post
conviction remedies. (People v. Delgado, 2009)
b) No, Balatong and Labong can no longer appeal their judgment of
conviction. They are deemed to have waived their right to appeal
and other post conviction remedies. The judgment simply lapses
into finality.
Suppose, in the situation above, this question was asked. Will
the judgment downgrading the offense committed by Ludong
benefit Balatong and Labong?
No, such judgment in Ludong’sfavor will not benefit Balatong and
Labong. Although the rules provide that a favorable judgment for an
accused who appealed, will benefit his other other co-accused if the
judgment is favorable and applicable to them, this is not the case for
a motion for reconsideration. The rules do not provide for a similar
effect of rendering a favorable judgment.
Habeas Corpus as a Post-conviction Remedy
The writ of habeas corpus may be resorted to as post-conviction remedy in any of
the following exceptional circumstances:
a) there has been a deprivation of a constitutional right resulting in the
restraint of a person;
b) the court had no jurisdiction to impose the sentence;
c) The imposed penalty is excessive, thus voiding the sentence as to such
excess.
Under the Rule on DNA Evidence, habeas corpus may also be resorted to as post-
conviction remedy where the result of the DNA examination is favorable to the
accused.
Note: But habeas corpus is not available as post-conviction remedy where the
appeal is still pending. (People v. Maquilan, G.R. No. 126170, Aug. 27, 1998).
Reopening of the proceedings:
When: At any time before finality of the judgment of conviction,
What: the judge may, motuproprio or upon motion reopen the proceedings
Condition: with hearing in either case
Purpose: to avoid a miscarrage of justice.
Period: The proceedings shall be terminated within 30 days from the order grating
it.
Rule 121 – New Trial or Reconsideration
At any time before a judgment of conviction becomes final
- The court may, on motion of the accused or at its own instance but with
the consent of the accused, grant a new trial or reconsideration.
Grounds for a new trial:
1. The errors of law or irregularities prejudicial to the substantial rights of
the accused have been committed during the trial;
Examples:
 The accused calls for a witness but the court disallowed it.
 The court forces a witness to testify against himself.
157
  The judge/court is the one conducting the preliminary investigation, conducts trial - if based on a newly discovered evidence, the motion must be supported
without notice to parties, and capriciously denies demurrer to evidence (Gacayan v by:
Pamintuan)  affidavits of witnesses by whom such evidence is expected to
be given or
2. Newly discovered evidence  by duly authenticated copies of documents which are
proposed to be introduced in evidence
Other grounds which the court may exercise of its jurisdiction
(UST GN) Notice of the motion:shall be given to the prosecutor
1. Negligence or incompetence of counsel or mistake which
is so gross amounting to deprivation of the substantial When hearing of the motion is required:
rights of the accused - when the motion for new trial calls for a resolution of a question of fact
2. Recantation of a witness where there is no evidence - the court may hear evidence on the motion by affidavits or otherwise
sustaining the judgement of conviction other than the
testimony of such witness Effect of granting a new trial or reconsideration:
3. Improvident plea of guilty which may be withdrawn a) When a new trial is granted on the ground of errors of law or
4. Disqualification of attorney dude officio to represent irregularities committed during the trial,
accused in trial  all proceedings and evidence affected thereby shall be set
5. Interest of justice aside and taken anew.
 The court may, in the interest of justice, allow the
Note: The rules speak of newly discovered evidence and not forgotten evidence. introduction of additional evidence.
b) When a new trial is granted on the ground of newly-discovered
Requisites for newly discovered evidence: evidence,
(1) the evidence must have been discovered after the trial  the evidence already adduced shall stand and
(2) it could not have been previously discovered and produced at the trial  The newly-discovered and such other evidence as the court
even with the exercise of reasonable diligence may, in the interest of justice, allow to be introduced shall be
(3) it is a new and material evidence taken and considered together with the evidence already in
(4) if introduced and admitted, it would probably change the judgment the record.
c) In all cases, when the court grants new trial or reconsideration, the
How about a witness retracting his testimony? Is it a newly original judgment shall be set aside or vacated and a new judgment
discovered evidence? rendered accordingly.
No. Recantation of testimonies is not allowed. A recantation is the Period to File MNT or MR:It should be filed with the trial court within 15 days
renunciation in a formal or public withdrawal of a prior statement from the promulgation of the judgment
of a witness. This is frowned upon by the courts. The original
testimony should be given more credence. If an appeal has already been perfected, a motion for new trial on the ground of
newly discovered evidence may be filed in the appellate court.
Recantation: the public and formal withdrawal by a witness of his prior statement
Neypes Rule:Fresh period rule
Recantation vs. desistance - The court deems it practical to allow a fresh period of 15 days within
which to file the notice of appeal counted from receipt of the order
Recantation: a witness who previously gave a testimony subsequently declares that dismissing a motion for a new trial or reconsideration
his statements are untrue publicly

General rule: it is not a ground for granting a new trial and are hardly given weight
Rule 122 - Appeal
Appeal: it is a proceeding for review by which the whole case is transferred to the
Exception: when there is no evidence sustaining the judgment of conviction other
higher court for a final determination. It is not an inherent right of a convicted
than the testimony of the recanting witness
person.
Affidavit of desistance: The complainant states that he did not really intend to Nature: Not a natural right nor a part of due processBut merely a statutory
institute the case and he is no longer interested in testifying or prosecuting
privilege and may be exercised only in the manner and in accordance with the
- It is not be itself a ground for dismissal of the action provisions of law
- It is merely an additional ground to buttress the defense and not a sole
consideration for acquittal Who may appeal:
a) The State – Any appeal made by the State must yield to Double Jeopardy.
New Trial distinguished from Reopening of Trial b) The Accused.
New Trial Reopening of Trial c) The Private Offended Party with respect to the civil aspect of the case.
When Any time before Any time before finality of
Filed: judgment of conviction judgment of conviction. Note: The state may assail a judgment of acquittal only upon the ground that it
becomes final. was deprived of due process. The mode of appeal is a petition for certiorari under
Limited only to those To avoid miscarriage of Rule 65 on the ground of grave abuse of discretion amounting to lack or excess of
mentioned in Rule 121, justice. jurisdiction or denial of due process, or lack or excess of jurisdiction. It must
Groun
Sec. 2 clearly be shown that the State was deprived of due process.
ds:
Note: This is a very broad
ground. Exceptional case of Galman v. Sandiganbayan. 228 Phil, 42 1986

Ground for reconsideration:errors of law or fact in the judgment This case has something to do with the Aquino-Galman double
 which requires no further proceedings. murder case. Just to appease the public’s hunger for speedy
disposition of the case, the case was fast tracked. In the process,
Form of the motion: everything seemed to be framed, scripted, and the trial was later
- shall be in writing and ruled out to be a sham or mock trial. The court acquitted all the
- shall state the grounds on which it is based accused. The prosecutors though were never given a decent chance

© Gironella – Macadatar 2017 | Rule 122 - Appeal 158

to present its evidence and witnesses. The judgment of acquittal
was appealed. Upon review, the SC ruled that the judgment of
acquittal came about as a result of grave abuse of discretion by the
courts leading to a denial or deprivation of the State’s due process.
Subject matter for review on appeal:An appeal throws the case wide open for
review and the reviewing tribunal can correct errors or even reverse the trial court’s
decision on grounds other than those that the parties raised as errors
Change of theory on appeal:Rule: a party cannot change his theory on appeal nor
raise in the appellate court any question of law or fact that was not raised in the
court below or which was not within the issue raised by the parties in their
pleadings
Where to appeal: The appeal may be taken as follows:
a) To the Regional Trial Court, in cases decided by the:
 Metropolitan Trial Court, Municipal Trial Court in Cities,
Municipal Trial Court, or Municipal Circuit Trial Court;
b) To the Court of Appeals or to the Supreme Court in the proper cases
provided by law, in cases decided by:
 the Regional Trial Court; and
c) To the Supreme Court, in cases decided by the:
 Court of Appeals.
How appeal taken
1. The appeal to the Regional Trial Court, or to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its original jurisdiction,
 shall be taken by filing a notice of appeal with the court which
rendered the judgment or final order appealed from and by serving a
copy thereof upon the adverse party.
2. The appeal to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its appellate jurisdiction shall be:
 by petition for review under Rule 42.
3. The appeal to the Supreme Court in cases where the penalty imposed by the
Regional Trial Court is death, reclusion perpetua, or life imprisonment, or
where a lesser penalty is imposed but for offenses committed on the same
occasion or which arose out of the same occurrence that gave rise to the more
serious offense for which the penalty of death, reclusion perpetua, or life
imprisonment is imposed,
 shall be by filing a notice of appeal in accordance with paragraph (1) of
this section.
4. No notice of appeal is necessary in cases where the death penalty is imposed
by the Regional Trial Court.
 The same shall be automatically reviewed by the Supreme Court as
provided in section 10 of this Rule.
5. All other appeals to the Supreme Court shall be by petition for review on
certiorari under Rules 45.
When appeal to be taken: An appeal must be taken within fifteen (15) days from:
- promulgation of the judgment or
- From notice of the final order appealed from.
- The private offended party has 15 days from actual or constructive notice
of the judgment to perfect his appeal.
Suspension of the Period:This period for perfecting an appeal shall be suspended from
the time a motion for new trial or reconsideration is filed until notice of the order
overruling the motion shall have been served upon the accused or his counsel
Effect of perfection of appeal with regard to the jurisdiction of the court: Once
appeal in a case, whether civil or criminal, has been perfected, the court a quo loses
jurisdiction over the case both over the record and over the subject of the case
Service of notice of appeal:Should be served upon the adverse party or his counsel
by personal service
- If this type cannot be made, service may be done by registered mail or
substituted service
Waiver of notice: The appellee may waive his right to a notice that an appeal has
been taken.
- The appellate court may, in its discretion, entertain an appeal
notwithstanding failure to give such notice if the interests of justice so
require.
Appeal to the Regional Trial Courts (From MTC):
(a) Within five (5) days from perfection of the appeal, the clerk of court
shall transmit the original record to the appropriate Regional Trial
Court.
(b) Upon receipt of the complete record of the case, transcripts and
exhibits, the clerk of court of the Regional Trial Court shall notify the
parties of such fact.
(c) Within fifteen (15) days from receipt of the said notice, the parties may
submit memoranda or briefs, or may be required by the Regional Trial
Court to do so. After the submission of such memoranda or briefs, or
upon the expiration of the period to file the same, the Regional Trial
Court shall decide the case on the basis of the entire record of the case
and of such memoranda or briefs as may have been filed.
Withdrawal of appeal: Notwithstanding the perfection of the appeal, the
Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities,
Municipal Trial Court, or Municipal Circuit Trial Court, as the case may be, may
allow the appellant to withdraw his appeal
Before the record has been forwarded by the clerk of court to the proper appellate court:in which
case the judgment shall become final.
The Regional Trial Court may also, in its discretion, allow the appellant from the
judgment of a Metropolitan Trial Court, Municipal Trial Court in Cities,
Municipal Trial Court, or Municipal Circuit Trial Court to withdraw his appeal,
- provided a motion to that effect is filed before rendition of the judgment
in the case on appeal,
 in which case the judgment of the court of origin shall
become final and
 The case shall be remanded to the latter court for execution of
the judgment.
May the prosecution appeal a judgment of acquittal?
General rule: NO. The accused would be subjected to double jeopardy
Exceptions
1. If the dismissal is made upon motion or with the express
consent of the accused
Exception to the exception:
a) Insufficiency of the prosecution evidence
b) Violation of the accused's right to speedy trial
2. If the dismissal is not an acquittal or based upon
consideration of the evidence on the merits
3. If the question is purely legal so that should the dismissal
be found incorrect, the case shall be remanded for further
proceedings to determine the guilt or innocence of the
accused
4. 4. If there is a showing of grave abuse of discretion
amounting to lack or excess of jurisdiction, certiorari
under Rule 65 may be available
Effect of appeal by any of several accused
(a) An appeal taken by one or more of several accused shall not affect those who
did not appeal, except insofar as the judgment of the appellate court is
favorable and applicable to the latter;
(b) The appeal of the offended party from the civil aspect shall not affect the
criminal aspect of the judgment or order appealed from.
(c) Upon perfection of the appeal, the execution of the judgment or final order
appealed from shall be stayed as to the appealing party.
© Gironella – Macadatar 2017 | Rule 122 - Appeal 159
Case: A and B are charged with murder. During the trial, B claimed
insanity. A raised another defense. The trial court found both of
them guilty beyond reasonable doubt. B appealed, and the CA
appreciated his defense of insanity, thus he obtained a judgment of
acquittal. Will the judgment rendered by the CA applied to A?
Ruling: No. While the judgment is favorable to A, it is not applicable
to him. The defense of B, which is insanity, is a personal one. It is
not applicable to A.
Note: Personal circumstances – imbecility, insanity, minority, etc.
cannot be appreciated in favor of the other co-accused.
In case of Death of one of the accused who appealed:
Rule:Death extinguishes a criminal obligation. As a rule, death of the accused
pending appeal will result to the dismissal of his appeal. In certain instances
though, if two or more co-accused appealed separately, death of one will not
necessarily result in the dismissal of his appeal.
Problem: C and L, who were charged as co-conspirators, were
convicted of violation of R.A. No. 3019 (Anti-Graft and Corrupt
Practices Act) in a judgment rendered by the Sandiganbayan,
imposing upon each of them the penalty of imprisonment from six
years and one month to twelve years and one month. They filed
separate appeals to the Supreme Court by filing their respective
petitions for review on certiorari. L’s appeal was dismissed on
technicality. During the pendency of the appeal, C died.
a) Should C’s appeal be dismissed on the ground that his death has rendered his
appeal moot and academic as his death has already extinguished his criminal
liability?
Answer: No. C’s appeal should not be dismissed. The two
petitions are so intertwined that the absolution of C is ultimately
determinative of the absolution of L. The exoneration of C will
necessarily signify the injustice of carrying out the penalty imposed
on L. Thus, the SC, in this instance, has to ascertain the merits of
C’s appeal to prevent a developing miscarriage of justice against L.
Courts must still decide cases, otherwise moot and academic, in the
following instances: (1) there is a grave violation of the
Constitution; (2) the exceptional character of the situation and the
paramount public interest is involved; (3) when constitutional issue
raised requires formulation of controlling principles to guide the
bench, the bar, and the public; (4) the case is capable of repetition
yet evading review.
In the problem presented, the exceptional character of the appeal of
C and L in relation to each other, as well as the higher interest of
justice, requires that the Court determine the merits of C’s petition
and not dismiss it outright on the ground of mootness.
b) Does the reversal of the decision of the Sandiganbayan as against C benefit L
whose appeal was dismissed on technicality?
Answer: Section 11(a), Rule 122 of the Revised Rules of Criminal
Procedure provides: ―An appeal taken by one or more of several
accused shall not affect those who did not appeal, except insofar as
the judgment of the appellate court is favorable and applicable to
the latter.‖ The phrase ―did not appeal‖ applies also to a co-accused
who withdrew his appeal, failed to file an appellant’s brief, or filed a
notice of appeal with the trial court but eventually withdrew the
same. The Supreme Court has at various times applied the
foregoing provision without regard to the filing or non-filing of an
appeal by a co-accused, so long as the judgment was favorable to
him. Thus, the foregoing provision should be applied to L whose
appeal was dismissed on technicality. (Constantino v. Sandiganbayan, et
al., G.R. No. 140656, Sept. 13, 2007; Lindong v. People, et al., G.R. No. 154482,
Sept. 13, 2007.)
Period to apply for probation:Within the period for perfecting an appeal –
within 15 days from promulgation of the judgment or from notice of the final order
appealed from
Employer’s Right to Appeal:
Case: ABC is a bus company. D is one of its employees. D in one
occasion rammed the bus he was driving resulting to loss of lives
and damage to properties. D was charged with Reckless
Imprudence resulting to multiple homicide, for which he was
convicted. On the date of promulgation, D was present. D was
ordered to pay a substantial amount to the victims. He was
nowhere to be located during the 15-day period to perfect his
appeal. It is now ABC Bus Company, who perfected an appeal. It
contended that as an employer, it has an interest over the case.
With D missing, it will be the bus company which is likely to
shoulder and pay the award. May the appeal prosper? (Philippine
Rabbit Bus Lines v. Heirs of Eduardo Mangawang and the People of
the Philippines, GR No. 160355, May 16, 2005)
Ruling: No. ABC Bus Company is not a party to the criminal action.
The employer’s participation is limited to providing its employees
with adequate legal defense. And if because of his indifference or
inaction the employee is convicted and damages are awarded
against him, he cannot later be heard to complain, if brought to
court for the enforcement of his subsidiary liability, that he was not
given his day in court.
Note: The subsidiary liability of the employer may be enforced in
the same action by way of a motion.
MODES OF APPEAL (Flowcharts)
To Better understand this topic see discussions under Civil
Procedure
 MTC/ RTC / CA
Appealing decision of the MTC / Appellate Jurisdiction of the RTC
(This presupposes that the imposable penalty is not death, reclusion perpetua, or
life imprisonment)
Supreme Court
Rule 45
Court of Appeals
Rule 42
RTC
Rule 40: Notice of
Appeal is filed with
MTC the MTC
RTC in its original jurisdiction imposes a penalty less than death, reclusion
perpetua, or life imprisonment
© Gironella – Macadatar 2017 | Rule 122 - Appeal 160
 Supreme Court Supreme Court
Rule 45 Rule 45

Court of Appeals Sandiganbayan

Rule 41: Notice of Rule 42

Appeal is filed
RTC with the RTC RTC RTC
Rule 40: Notice of
Appeal is filed with
MTC the MTC

Sandiganbayan in the exercise of its original jurisdiction imposes the penalty

of either reclusion perpetua or life imprisonment
RTC in its original jurisdiction imposes the penalty of either reclusion perpetua
or life imprisonment
Supreme Court
Ordinary Appeal:
Supreme Court Notice of Appeal
Notice of Appeal filed with the SB
filed with the CA
Sandiganbayan
Court of Appeals
Sandiganbayan in the exercise of its original jurisdiction imposes the death
Rule 41: Notice penalty
of Appeal is filed
RTC with the RTC Supreme Court
Automatic Review
RTC in its original jurisdiction imposes the death penalty
Sandiganbayan
Supreme Court
GROUNDS for the DISMISSAL OF AN APPEAL:
Final Automatic 1. Failure of the record on appeal to show on its face that the appeal was
Review taken within the period fixed by these rules
2. Failure to file the notice of appeal or the record on appeal within the
Court of Appeals period prescribed by these rules
3. Failure of the appellant to pay the docket and other lawful fees
Intermediate 4. Unauthorized alterations, omission or additions in the approved record
Automatic Review on appeal
5. Failure of the appellant to serve and file the required number of copies of
RTC his brief or memorandum within the time provided
6. Absence of specific assignment of errors in the appellant’s brief. Or of
page references to the record
Note: The CA renders judgment but refrains from entering said judgment into its 7. Failure of the appellant to take the necessary steps for the correction or
entry of judgment, as its elevates the records of the case to the Supreme Court for completion of the record within the time limited by the court in its
review order
 SANDIGANBAYAN
Rule 123 – Procedure in the Municipal Trial Court
Sandiganbayan imposes (SB exercising original jurisdiction) or affirms (SB
exercising appellate jurisdiction) a penalty lesser than death, reclusion Uniform Procedure: The procedure to be observed in the Metropolitan Trial
perpetua, or life imprisonment. Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall be the
same as in the Regional Trial Courts, except where a particular provision applies
only to either of said courts and in criminal cases governed by the Revised Rule on
Summary Procedure.

Rule 124 – Procedure in the Court of Appeals

When brief for appellant to be filed

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When: Within 30 days from receipt by the appellant or his counsel of the notice from
the clerk of court of the Court of Appeals that the evidence, oral and documentary,
is already attached to the record,
What: the appellant shall file 7 copies of his brief with the clerk of court which shall
be accompanied by proof of service of 2 copies thereof upon the appellee.
When brief for appellee to be filed; reply brief of the appellant
- Within 30 days from the receipt of the brief of the appellant, the appellee
shall file 7 copies of the brief of the appellee with the clerk of court
- accompanied by proof of service of 2 copies thereof upon the appellant.
- Within 20 days from receipt of the brief of the appellee, the appellant
may file a reply brief traversing matters raised in the former but not
covered in the brief of the appellant.
Extension of time for filing briefs
- Extension of time for the filing of briefs will not be allowed except:
 for good and sufficient cause and
 only if the motion for extension is filed before the expiration of
the time sought to be extended.
Form of briefs: Briefs shall either be:
 printed,
 encoded or
 typewritten
 in double space
 on the legal size good quality unglazed paper,
 330 mm. in length by 216 mm. in width.
Contents of brief: The briefs in criminal cases shall have the same contents as
provided in sections 13 and 14 of Rule 44.
- A certified true copy of the decision or final order appealed from shall be
appended to the brief of appellant.
Dismissal of appeal for abandonment or failure to prosecute
- dismiss the appeal if the appellant fails to file his brief within the time
prescribed
- except where the appellant is represented by a counsel de oficio.
- The Court of Appeals may also dismiss the appeal if the appellant:
 escapes from prison or confinement,
 jumps bail or
 flees to a foreign country during the pendency of the appeal.
 The accused need not be present in court during the hearing of the
appeal.
Judgment not to be reversed or modified except for substantial error: No
judgment shall be reversed or modified unless the Court of Appeals, after an
examination of the record and of the evidence adduced by the parties, is of the
opinion that error was committed which injuriously affected the substantial rights
of the appellant.
Scope of judgment
- The Court of Appeals may:
 reverse, affirm, or modify the judgment and
 increase or reduce the penalty imposed by the trial court,
 remand the case to the Regional Trial Court for new trial or
 retrial, or
 dismiss the case.
Motion for new trial
When: At any time after the appeal from the lower court has been perfected and
before the judgment of the Court of Appeals convicting the appellant becomes final
What: the latter may move for a new trial on the ground of newly-discovered
evidence material to his defense.
Where new trial conducted: When a new trial is granted, the Court of Appeals
may conduct the hearing and receive evidence or refer the trial to the court of origin.
© Gironella – Macadatar 2017 | Rule 125 – Procedure in the Supreme Court
Reconsideration
When: A motion for reconsideration shall be filed within fifteen (15) days after from
notice of the decision or final order of the Court of Appeals,
 with copies served upon the adverse party, setting forth the
grounds in support thereof.
- The mittimus shall be stayed during the pendency of the motion for
reconsideration.
- No party shall be allowed a second motion for reconsideration of a
judgment or final order.
Rule 125 – Procedure in the Supreme Court
Uniform procedure: Unless otherwise provided by the Constitution or by law
- The procedure in the Supreme Court in original and in appealed cases
shall be the same as in the Court of Appeals.
Review of decisions of the Court of Appeals: The procedure for the review by
the Supreme Court of decisions in criminal cases rendered by the Court of Appeals
shall be the same as in civil cases.
Decision if opinion is equally divided
When the Supreme Court en banc is:
a) equally divided in opinion or
b) the necessary majority cannot be had on whether to acquit the
appellant,
 the case shall again be deliberated upon and
 if no decision is reached after re-deliberation,
 the judgment of conviction of the lower court
shall be reversed and the accused acquitted.
Rule 127 – Provisional Remedies in Criminal Cases
Availability of provisional remedies: The provisional remedies in civil actions,
insofar as they are applicable, may be availed of in connection with the civil action
deemed instituted with the criminal action.
Attachment: When the civil action is properly instituted in the criminal action,
the offended party may have the property of the accused attached as security for
the satisfaction of any judgment that may be recovered from the accused in the
following cases:
(a) When the accused is about to abscond from the Philippines;
(b) When the criminal action is based on:
o a claim for money or property embezzled or
o fraudulently misapplied or converted to the use of the
accused who is a public officer, officer of a corporation,
attorney, factor, broker, agent, or clerk, in the course of his
employment as such, or by any other person in a fiduciary
capacity, or for a willful violation of duty;
(c) When the accused has concealed, removed, or disposed of his property,
or is about to do so; and
(d) When the accused resides outside the Philippines.
162
© Gironella – Macadatar 2017 | Rule 127 – Provisional Remedies in Criminal Cases 163
 A

Commission KatarungangP
of a Crime ambarangay

B
No Preliminary
Investigation
Inquest
C
Preliminary
Investigation

Dismiss

urisdiction Complaint /
Information
E
Warrant of
Arrest /
ommitment Arraignment H
Order

PMC
I
J
JDR Pre-Trial

K
Trial
N

Motion for
reconsideratio L
Judgment
n

Motion for
New Trial M
Appeal

Conviction Acquittal

© Gironella – Macadatar 2017 | Rule 127 – Provisional Remedies in Criminal Cases 164
 1. Civil cases
Revised Rules on Summary a. All cases of forcible entry and unlawful detainer, irrespective of
Procedure amount of damages or unpaid rentals sought to be recovered provided
when attorney's fees are awarded, the same shall not exceed Php
20,000.00
b. All other civil cases, except probate proceedings, where the total
CIVIL amount of the plaintiff's claim does not exceed Php 100,000 or Php
Complaint Summons
CASES 200,000 in Metropolitan Manila, exclusive of interest and costs

2. Criminal cases

Answer with a. Violations of traffic laws, rules and regulations

Answer No b. Violations of rental law
Counterclaim or
crossclaim Answer c. Violations of municipal or city ordinances
10 days
d. All other criminal cases where the penalty prescribed by law for the
from offense charged is imprisonment not exceeding 6 months or a fine not
service exceeding Php 1,000, or both, irrespective of other imposable penalties,
30 daysoffrom
Summons
the last accessory or otherwise, or of the civil liability arising therefrom.
answer is filed
Answer to the Provided however, that in offenses involving damage to property through criminal
Counterclaim negligence, this rule shall govern where the imposable fine does not exceed Php
10,000.00
10 days from
Preliminary service of e. Violation of BP 22
Conference answer

Defendant entitle Civil Cases

judgment on his
counterclaim
Plaintiff Plaintiff Defendant How to commence: by Complaint
Crossclaim - dismiss
Appeared failed to failed to
appear appear Pleadings allowed in civil cases:
1. Complaints
2. Compulsory counterclaims
3. Cross claims and
4. The answers thereto
Dismiss
What should the court do upon the filing of a complaint in the inferior court?
The court shall issue an order declaring whether the case is governed by the Rules
Order from Submission of on Summary Procedure
the court Affidavits and Prohibited pleadings and motion in both civil and criminal cases
(Pre Trial other evidence 1. Motion to dismiss the complaint or to quash the complaint or
Order) plus position information except on the ground of lack of jurisdiction over the subject
paper matter, or failure to refer the case to the LuponTagapamayapa in cases
covered by the KatarungangPambarangay Law
Within 5 days after 2. Motion for a bill of particulars
termination of PC Within 10 days 3. Motion for new trial, or for reconsideration of a judgment, or for
hin 30 days after receipt of opening of trial
m issuance order 4. Petition for relief from judgment
the order 5. Motion for extension of time to file pleadings, affidavits or any other
Submission of paper
Affidavits and Order of 6. Memoranda
Plus: affidavits of Must comply Failure: 7. Petition for certiorari, mandamus or prohibition against any
other evidence Clarification
within 5 days
the complainant DISMISSAL interlocutory order issued by the court
and his witnesses 8. Motion to declare the defendant in default
Within 1o days Within 30 days 9. Dilatory motions for postponement
10. Replay
from receipt of /
Complaint Counter Criminal
order 11. Third party complaints
Information Affidavit CASES 12. Interventions
Judgment
An ejectment suit was filed before the MTC. The defendant
moved to hold in abeyance the preliminary conference until the
Within 10 days case for specific performance has been terminated, the MTC
Within 30 daysReply
Preliminary after receipt offrom
the receipt of
proper affidavits and position papers granted the motion. Appeal was made to the RTC where a
Conference the CA motion to dismiss appeal was filed on the ground that the order
/ within 15 days after receipt of the
last clarificatory affidavits was interlocutory. The RTC denied the motion, but the CA
allowed the appeal from the interlocutory order. Was the CA's
Cases covered: action proper? Why?
Trial Judgment

© Gironella – Macadatar 2017 | Revised Rules on Summary Procedure 165

YES? There was a procedural void in the summary proceedings
before the MTC. Clearly, there can be no appeal from the order
being interlocutory. But neither can a petition for certiorari be filed
because the ejectment suit is governed by the Rules on Summary
procedure and such petition is prohibited pleading. Hence, the
party was caught in a procedural void, thus under the extraordinary
circumstances, there must be a remedy consistent with the
objective of speedy disposition of cases.
Thus, in a situation wherein a summary proceeding is suspended
indefinitely, a petition for certiorari alleging grave abuse of
discretion may be allowed. Due to the extraordinary circumstances,
a petition for certiorari would give spirit and life to the Rules on
Summary Procedure. A contrary ruling would unduly delay the
disposition of the case and negate the rationale behind of the Rules.
Under what circumstances a Motion to Dismiss may be filed?
Why? (ALBANO)
After an answer has been filed, a motion to dismiss can be allowed.
This is so because there would be longer be delay.
The defendant were not properly served with summons as the
return merely showed that it was signed by one "Gary Acob (a
relative)" and the other return showed that it was duly served
but refused to sign without specifying to whom it was served. A
petition for relief from judgment was filed by the defendant's
with the RTC. Is the petition proper? Explain.
As a rule, no. The remedy of petitioner's in such a situation is to file
a petition for certiorari with the RTC under Rule 65 of the Rules of
court on the ground of lack of jurisdiction of the MTC over the
person of the petitioner's in view of the absence of summons to
petitioners.
Motion for reconsideration: what is prohibited is a motion for reconsideration
after trial or one that is addressed against a final judgment, but not one which is a
mere interlocutory one.
When to file an answer: within 10 days from service of summons
- it must be served on the plaintiff
- An answer to a counter claim or cross claim shall be filed within 10 days
from service of answer
Effect of failure to answer: the court shall render judgment as may be warranted
by the facts alleged in the complaint and limited to what is prayed for
How: motuproprio or on motion of the plaintiff
Waiver of defenses: affirmative and negative defenses are deemed waived if not
pleaded in the answer, except lack of jurisdiction over the subject matter
- however, the courts are enjoined from conducting a preliminary hearing
on such affirmative defenses to prevent unnecessary delay in disposing
the case on its merit
Cross claims and compulsory counterclaims: deemed barred if not pleaded
Nature of preliminary conference in civil cases: it is mandatory
When preliminary conference should be held: It shall be held not later than 30
days after the last answer is filed
Rules Applicable: The rules on pretrial in ordinary cases shall be applicable to the
preliminary conference unless inconsistent with the provisions of the revised rules
on summary procedure
Necessity of trial: there is no trial involved only the submission of the affidavits of
witnesses of the parties and other evidence on the factual issues defined in the
order, together with their position papers setting forth the law and the facts relied
upon by them which shall be submitted within 10 days from receipt of the order
issued by the court after the preliminary conference
© Gironella – Macadatar 2017 | Revised Rules on Summary Procedure
Duty of the court after conducting the preliminary conference: within 5 days after
the termination of the preliminary conference, the court shall issue an order stating the matters
taken up therein, including but not limited to:
1. Whether the parties have arrived at an amicable settlement, and if so,
the terms thereof
2. The stipulations or admission entered into by the parties
3. Whether, on the basis of the pleadings and stipulations or admissions
made by the parties, judgment may be rendered without need of further
proceedings, in which event the judgment shall be rendered within 30
days from issuance of the order
4. A clear specification of material facts which remain controverted
5. Such other matters intended to expedite the disposition of the case
Plaintiff's failure to appear in the preliminary conference: it shall be cause for
the dismissal of his complaint
- The defendant who appears in the absence of the plaintiff shall be
entitled to judgment on his counterclaim as may be warranted and
limited to what is prayed for therein.
- All cross claims shall be dismissed
Defendant's failure to appear during the preliminary conference: plaintiff shall
be entitled to judgment
- the rule is not applicable where one of two or more defendants sued
under a common cause of action who had pleaded a common defense
shall appear at the preliminary conference
When rules on summary procedure is not applicable: it shall not apply to Civil
cases where the plaintiff's cause of action is pleaded in the same complaint with
another cause of action to the ordinary procedure nor to a criminal case where the
offense charged is necessarily related to another criminal case subject to the
ordinary procedure.
Criminal Cases
How to commence: by complaint or information
Exception: in Metropolitan Manila and chartered cities, such cases shall be
commenced only by information, except when the offense cannot be prosecuted de
officio.
Note: the complaint or information shall be accompanied by the affidavits of the
complainant and his witnesses
- failure to comply with the requirements within 5 days from date of filing
, the case may be dismissed
Prohibited Pleadings: see discussions under Civil Cases
Court’s duty upon filing of criminal case governed by the Rules on Summary
procedure
1. The case can be dismissed outright if patently without basis or merit
and the court may order release of the accused if in custody
2. If not dismissed outright, the court shall issue an order requiring the
accused to submit his counter affidavit.
Note:The prosecution may file a reply within 10 days after receipt
Nature of preliminary conference in criminal cases: it is mandatory
When: before conducting the trial
Matters to be discuss:
1. stipulations of fact may be entered into, or
2. the propriety of allowing the accused to enter a plea of guilty to a lesser
offense may be considered, or
3. such other matters as may be taken up to clarify the issues and to ensure
a speedy disposition of the case
Note: a refusal or failure to stipulate shall not prejudice the accused
166
Admissions made by the accused during the preliminary conference;
admissibility
 it is admissible against him if the admission of the accused is put to
writing and signed by the accused and his counsel
Necessity of trial:trial is necessary
X submitted an affidavit. He was not presented on direct
examination, but the court allowed the other party to cross
examine him. Was the action of the court correct?
Yes, because at the trial, affidavits submitted constitute direct
testimonies. Witnesses may be subjected to cross examination, re-
direct and re-cross
Effect if a witness who submitted an affidavit fails to appear: it shall cause his
affidavit to be considered as not competent evidence. The adverse party may utilize
the same for any admissible purpose
- no witness can testify unless he submitted an affidavit, except upon
rebuttal or sur rebuttal
Additional affidavit: can be presented provided that it is manifested during the
preliminary conference. If allowed, the same must be submitted not later than 3
days after the termination of the preliminary conference
Arrest: there can be no arrest in cases governed by the Rules on Summary
Procedure, except for non-appearance whenever required
Other Considerations
Basic requirement with respect to pleadings under the Rules on summary
procedure: all pleadings shall be verified.
Effect of failure to verified: nothing, because the same can be cured, the
requirement being a mere formal one and not jurisdictional
A case is governed by the Rules on Summary Procedure, if there is no referral to
the Lupon before its filing, what should the court do?
The court should dismiss the case without prejudice, but it can be revived after
compliance with the requirement.
- the rule is inapplicable if the accused has been arrested
Note: the court should dismiss it, not to REFER the case
Failure to object to erroneous adoption of the Rules on Summary Procedure operates as a waiver of
the procedure taken by the inferior court.
Decision / Judgment
Period when should the court decide;
 within 30 days after receipt of the proper affidavits and position papers
 In case the court would like to be clarified on certain matter before
judgment, it can issue an order within 30 day period and require the
parties to submit affidavits and other evidence on said matters within 10
days from receipt of said order
o Judgment shall be rendered within 15 days after receipt of the
last clarificatory affidavits
After judgment was rendered by the MTC, the defendant
appealed to the RTC. Are the rules on Summary Procedure still
applicable? Why?
No more. Summary rules do not apply anymore when the case is on
appeal, hence, a motion for reconsideration of the decision of the
RTC is available.
Execution: there must be a filing of motion for execution before judgment can be
executed
© Gironella – Macadatar 2017 | Judicial Affidavit Rule
Judicial Affidavit Rule
Purpose: Judicial Affidavits take the place of direct testimonies of the parties to a
case and their witnesses. Instead of a party or a witness going to court and being
asked questions by the counsel for his testimony, their direct testimonies are now
being taken outside of the court through their judicial affidavits.
When applicable: The rule shall apply to all action, proceedings, and incidents
requiring reception of evidence before
1. MeTC, MTCC, MTC, MCTC and he Shari'a Circuit Courts but shall not
apply to small claims cases under A.M 08-8-7- SC
2. The RTC and Shari'a District Courts
3. The Sandiganbayan, the CTA, the CA and the Shari'a Appellate courts
4. The investigating officers and bodies authorized by the SC to receive
evidence, including IBP
5. The special courts and quasi-judicial bodies, whose rules of procedure
are subject to disapproval of the SC, in so far as their existing rules of
procedure contravene the provisions of this rule
Note: it is not applicable to small claim cases
CONTENTS OF THE JA: A judicial affidavit shall be prepared in the language
known to the witness and, if not in English or Filipino, accompanied by a
translation in English or Filipino, and shall contain the following:
(a) The name, age, residence or business address, and occupation of the witness;
(b) The name and address of the lawyer who conducts or supervises the
examination of the witness and the place where the examination is being
held;
(c) A statement that the witness is answering the questions asked of him, fully
conscious that he does so under oath, and that he may face criminal liability
for false testimony or perjury;
(d) Questions asked of the witness and his corresponding answers,
consecutively numbered, that:
(1) Show the circumstances under which the witness acquired the facts
upon which he testifies;
(2) Elicit from him those facts which are relevant to the issues that the
case presents; and
(3) Identify the attached documentary and object evidence and
establish their authenticity in accordance with the Rules Of Court;
(e) The signature of the witness over his printed name; and
(f) A jurat with the signature of the notary public who administers the oath or
an officer who is authorized by law to administer the same.
Other contents: shall contain a sworn attestation at the end, executed by the
lawyer who conducted or supervised the examination of the witness, to the effect
that:
1. He faithfully recorded or caused to be recorded the questions he asked
and the corresponding answers that the witness gave
2. Neither he nor any other person then present or assisting him coached
the witness regarding the latter's answers
Effect of false testimony by a lawyer: shall subject the lawyer to disciplinary
action, including disbarment
Remedy when a government official who is not a witness in a case refuses to
execute a judicial affidavit or make available books for copying: the requesting
party may avail himself of the issuance of a subpoena ad testificandum or
ducesTecum
What should a party presenting a judicial affidavit do? The party presenting the
JA of his witness in place of direct testimony shall state the purpose of such
testimony at the start of the presentation of the witness.
Remedy of the adverse party: he may move to disqualify the witness or to strike
out his affidavit or any of the answers found in it on the ground of inadmissibility
Court's duty: shall promptly rule on the motion and, if granted, shall cause the
marking of any excluded answer by placing it in brackets under the initials of an
authorized court personnel, without prejudice to a tender of excluded evidence
under Section 40 of Rule 132 of the rules of court.
167
Rights of the adverse party:
 the right to cross examine the witness on his judicial affidavit and on the
exhibits attached to the same
 The party who presents the witness may also examine him in a re-direct

May the court examine the parties and witnesses in their judicial affidavit?
YES. In every case, the court shall take active part in examining the witness to
determine his credibility as well as the truth of his testimony and to elicit the
answers that it needs for resolving the issues.

Rules:
1. Upon termination of the testimony of his last witness, a party shall
immediately make an oral offer of evidence of his documentary or object
exhibits, piece by piece, in their chronological order, stating the purpose
or purposes for which he offers the particular exhibit
2. After each piece of exhibit is offered, the adverse party shall state the
legal ground for his objection, if any, to its admission and the court shall
immediately make its ruling respecting that exhibit
3. Since the documentary or object exhibits form part of the JA that
describe and authenticate them, it is sufficient that such exhibits are
simply cited by their markings during the offers, the objections, and the
rulings, dispensing with the description of each exhibit

JA in criminal cases: the rule shall apply to all criminal actions

1. Where the maximum of the imposable penalty does not exceed 6 years
2. Where the accused agrees to the use of JA, irrespective of the penalty
involved
3. With respect to the civil aspect of the actions, whatever the penalties
involved are

Time of submission by the prosecution of the JA of its witnesses: not later than
5 days before the pre-trial, serving copies of the same upon the accused

Time of submission by the accused of his JA: the accused have the option to
submit his JA as well as those of his witnesses to the court within 10 days from
receipt of such affidavits and serve a copy of each on the public and private
prosecutor, including his documentary and object evidence previously marked

Effect failure or delay in the submission of JA:

 shall be deemed to have waived their submission
 The court may, however, allow only once the late submission of the same

Condition: if the delay is for a valid reason, would not unduly prejudice the opposing
party, and the defaulting party pays a fine of not less than 1000 nor more than 5000
pesos, at the discretion of the court

Effect when the witness failed to appear: the court shall not consider the affidavit
of any witness who failed to appear at the scheduled hearing of the case as required.

Effect if a counsel fails to appear without a valid reason: it shall be deemed to

have waived his client's right to confront by cross examination the witnesses there
present

Effect if a JA does not conform to the requirements of the rule: it will not be
admitted

Remedy: submission of the compliant replacement affidavits before the hearing or

trial
- allowed only once

© Gironella – Macadatar 2017 | Judicial Affidavit Rule 168

 Rules of Procedure for
Environmental Law Cases
Citizens suit: a suit by any Filipino citizen in representation of others including
minors or generation yet unborn, filed in order to enforce rights and obligations
under environment laws

Writ of Kalikasan: a remedy available to natural or juridical person, entity

authorize pd by law, people's organization, non-governmental organization, or any
public interest group accredited by or registered with any government agency on
behalf of persons whose constitutional right to a balanced healthful ecology is
violated or threatened with violation by an unlawful act or omission of a public
official or employee, private individual or entity, involving environmental damages
of such magnitude as to prejudice the life, health and property of inhabitants in two
or more cities or provinces.

Effect of filing of the criminal action: the civil action for recovery of civil liability
arising from the offense shall be deemed instituted with the criminal action

Where to file: with the SC or CA

Reason:the jurisdiction of both tribunals are national in scope which corresponds

with the magnitude of the environmental damage contemplated by the Rules

Extent of the environmental damage required: the life or inhabitants in two or

more cities or provinces or that which transcends political and territorial
boundaries; the health of inhabitants in two or more cities or provinces or that
which transcends political or territorial boundaries, and the property of the
inhabitants in two or more cities or provinces or that which transcends political or
territorial boundaries

Writ of continuing mandamus: a suit that is filed when any agency or

instrumentally if the government or officer unlawfully neglects the performance
which the law specifically enjoins as a duty resulting from an office, trust or station
in connection with the enforcement or violation of eye environmental law, rule or
regulation or a right therein, or unlawfully excludes another from the use and
enjoyment of such right and there is no other plain, speedy or adequate remedy in
the course of law, praying that judgment be rendered commanding the respondent
to do an act or series of acts until the judgment is fully satisfied.

© Gironella – Macadatar 2017 | Rules of Procedure for Environmental Law Cases 169
 Rules of Procedure for Small
Claims
Requirements to qualify as a case of small claim:
1. Civil aspect of criminal actions either filed before the institution of
criminal action or reserved upon the filing of criminal action in court
2. A civil claim solely for the payment or reimbursement of sum of money

Amount of the claim: must not be more than 200,000 excluding interest and costs

Where to file:MeTC. MTCC, MTC, MCTC

Sources of the claims

 For money owned under any of the following

1. Contract of lease
2. Contract of loan
3. Contract of services
4. Contract of sale
5. Contract of mortgage

 For demand arising from any of the following

1. Fault or negligence
2. Quasi contract
3. Contract

 The enforcement of a Barangay amicable settlement or any arbitration award

involving a money claim covered by the Rule pursuant to Section 417 of RA 7160

Period to respond the summons: within 15 days from service of summons

Effect Failure to file a respond or failure to appear on the date set for hearing:
the court may render judgment on the same day as may be warranted by the facts

Effect failure to file a respond but appears at the date set for hearing: the court
shall ascertain what defense he has to offer and proceed to mediate, hear or
adjudicate the case on the same as if a response has been filed

Effect of nonappearance of the plaintiff

1. Dismissal of the complaint without prejudice
2. Defendant shall be entitled to judgment on the permissive counterclaim

Effect both parties failed to appear

1. Dismiss the claim with prejudice
2. Dismiss the counterclaim with prejudice

What will be done if efforts for settlement fail under the Small Claims Rule: the
hearing shall proceed in an informal and expeditious manner and terminated within
one day and either party may move in writing to have another judge hear and decide
the case.

If the case is re assigned, period within which the new judge shall hear and
decide the case: the judge shall hear and decide it within 5 days from the date of re-
assignment

© Gironella – Macadatar 2017 | Rules of Procedure for Small Claims 170


Revised
KatarungangPambarangay Law
Purpose: It provides for the settlement of disputes between residents of the same
city or municipality, thru mediation, arbitration, or conciliation, before the
KatarungangPambarangay
 A Lupon is not a court.
 It has no power to hear and decide cases.
 It has not power to impose penalty of imprisonment or fine even if
offender admits guilt.
 It is created primarily to promote the speedy administration of justice by
providing an informal, simpler and less costly alternative to court
proceedings.
Applicability
General rule: all disputes are subject to barangay conciliation, and prior recourse
thereto is a precondition for filing a complaint in court or any government office
Exceptions
1. Where one party is the government, or any subdivision or
instrumentality thereof
2. Where one party is a public officer or employee, and the dispute relates
to the performance of his official functions
3. Where the dispute involves real properties located in different cities and
municipalities, unless the parties thereto agree to submit their difference
to amicable settlement by an appropriate Lupon
4. Any complaint by or against corporations, partnerships, or juridical
entities, since only individuals shall be parties to barangay conciliation
proceedings either as complainants or respondents
5. Disputes involving parties who actually reside in barangays of different
cities or municipalities, except where such barangay units adjoin each
other and the parties thereto agree to submit their differences to
amicable settlement by an appropriate Lupon
6. Offenses for which the law prescribes a maximum penalty of
imprisonment exceeding one year or a fine over P5,000
7. Offenses where there is no private offended party
8. Disputes where urgent legal action is necessary to prevent injustice from
being committed or further continued, specifically the following
a. Criminal cases where accused is under police custody or
detention
b. Petitions for Habeas corpus by person illegally deprived of his
rightful custody over another person or a person illegally
deprived of his liberty or one acting in his behalf
c. Actions coupled with provisional remedies
d. Actions which may be barred by statute of limitations
9. Any class of dispute which the President may determine in the interest of
justice or upon the recommendation of the SOJ
10. Disputes arising from the comprehensive agrarian reform law
11. Labor disputes or controversies arising from employer - employee
relations
12. Actions to annul judgment upon a compromise which may be filed
directly in court
Note: in conciliation among members of indigenous cultural communities, their
customs and traditions shall be applied in setting disputes between members of the
cultural communities
Q: Spouses Frank and Rona begot a child named James aged 7 years
old. Due to irreconcilable differences, the wife Rona filed a petition
for dissolution of conjugal partnership and partition of conjugal
partnership properties in the CFI of Makati. Frank filed a motion to
dismiss the petition on jurisdictional grounds, claiming that it
should have been filed first in the Lupontagapamayapa, because
Both are residents of the same municipality of Makati. The judge
denied the motion to dismiss. Hence, Frank filed a petition for
certiorari on the grounds that the judge exceeded its authority in
© Gironella – Macadatar 2017 | Revised KatarungangPambarangay Law
assuming jurisdiction over the case without prior referral to the
Lupon and also in declaring that support pendente lite and delivery
of personal property belonging to the conjugal partnership of the
parties are essentially involved in the petition, and hence, the
parties could go directly to the court without passing through the
Lupon. Decide.
A: the issue of support pendente lite and delivery of personal
property belonging to the conjugal partnership, although not
coupled in the strict sense of the word with the instant petition, are
essentially involved in the petition because of the minority of the
daughter and because the resolution or decision of the court on the
pending petition would be incomplete without a clear cut
disposition of the partition of the personal and real properties of the
conjugal partnership. Hence, the dispute can proceed directly to the
courts even without compliance with PD 1508.
Q: Without first referring the dispute to the barangay Lupon, X, as
administrator, filed a complaint, on behalf of the intestate estate of
Y, against Z. Z moved to dismiss the complaint in the ground that a
condition precedent for filing the claim has not been complied with
because of lack of prior referral of the dispute to the Lupon. Rule on
the motion to dismiss
A: motion to dismiss, denied. X, who is suing on behalf of the
intestate estate of Y, is merely a nominal party. The real party in
interest is the intestate estate of Y which is a juridical person.
Hence, X may file the complaint directly in court without the
dispute being first referred to the Lupon.
Q: AB filed a complaint for damages against CD for alleged
disrespect of dignity and peace of mind under Article 26 of the Civil
Code. Although the parties are residents of the same city, AB did
not comply with the requirement of prior referral of the dispute to
the appropriate Lupon. CD moved for the dismissal of the
complaint. Before filing an opposition to the motion to dismiss, AB
filed an application for the issuance of a writ of preliminary
attachment. The trial court denied the motion to dismiss on the
ground that under Rule 57 an application for the issuance of a writ
of preliminary attachment may be made at the commencement of
the action or at any time before entry of judgment. Is the trial court
correct in denying the motion to dismiss?
A: NO. It is clear that the application for the issuance of a writ of
preliminary attachment was merely an afterthought and was
resorted to as a means to evade the application of the
KATARUNGANG PAMBARANGAY law
RULES ON VENUE:
1. Disputes between persons actually residing in the same barangay shall
be brought for amicable settlement before the Lupon of said barangay
2. Disputes involving actual residents of different barangays within the
same city or municipality shall be brought in the barangay where the
respondent or any of the respondents actually resides, at the election of
the complainant
3. All disputes involving real property or any interest therein shall be
brought in the barangay where the real property or larger portion
thereof is situated
4. Disputes arising at the workplace where the contending parties are
employed or at the institution where such parties are enrolled for study
shall be brought in the barangay where such workplace or institution is
located.
Period within which to raise the question of improper venue: in the mediation
proceedings before the Punong barangay; otherwise, the same shall be deemed
waived
Composition of lupongtagapamayapa
 Chairman - Punong Barangay
 Secretary - Barangay Secretary
 Members - 10 to 20
171
Parties to the proceeding: only individuals may be parties to the proceedings  Provided that such interruption shall not exceed 60 days from filing of
either as complainants or respondents the complaint with the Punong barangay

Prohibitions against appearance of lawyers as counsel or representative: the
parties must appear in person without the assistance of counsel or representatives
Exception; for minors and incompetents who may be assisted by their next of kin
who are not lawyers
Nature of the proceeding
General rule: it shall be public and informal
Exception: motuproprio or upon request of a party, exclude the public from the
proceedings in the interest of privacy, decency or public morals
PROCEDURE
1. Complainants complaints orally or in writing to the Lupon chairman of
the barangay
2. Within the next working day from receipt of the complaint, Lupon
chairman summons the respondent, with notice to the complainant, for
them and their witnesses to appear before him for mediation
3. If Lupon chairman fails in his mediation efforts within 15 days from the
first meeting of the parties, he shall set the date for the constitution of
the pangkat
4. Pangkat convenes not later than 3 days from its constitution to hear both
parties and their witnesses, simplify issues, and explore all possibilities
for amicable settlement
5. Pangkat shall arrive at settlement or resolution of the dispute within 15
days, extendible for another 15 days, from the day it convenes
Constitution of the Pangkat
1. Three members chosen by parties from list of Lupon members
2. If the parties fail to agree, Lupon Chairman shall draw lots.
3. Members (among the three) shall choose chairman and secretary
4. In case of Vacancy, it shall be filled up through same procedure
Q: Francisco was dismissed on charges of payroll padding, selling
cane points without the knowledge and consent of the management
and misappropriating the proceeds thereof, and renting out Bacolod
- Talisay Realty and Development Corporation (BTRB) tractor for
use in another farm and misappropriating the proceeds thereof.
Francisco admitted his wrongdoings and asked for forgiveness; and
while a confrontation about the matter was held before the
barangay council, no settlement was reached. Hence, a complaint
for illegal dismissal was against BTRD. The labor arbiter, affirmed
by the NLRC, ruled in favor of the BTRB. CA reversed the NLRC
ruling that the dismissal of the Francisco was without due process.
Does the confrontation before the barangay constitute first notice in
compliance with the twin notice rule?
A: the confrontation before the barangay council did not constitute
the first notice - to give the employee ample opportunity to be heard
with assistance of counsel, if he so desires. Hearings before the
barangay council do not afford the employee ample opportunity to
be represented by counsel if he so desires because Section 415 of the
LGC mandates that in all KatarungangPambarangay proceedings,
the parties must appear in person without the assistance of a
counsel or his representatives, except for minors and incompetents
who may be assisted by their next of kin who are not lawyers
Arbitration
Arbitration: it is the process of resolving a dispute or a grievance outside of the
court system by presenting it to a third party or penal for decision.
a) May be agreed upon by the parties at any stage of the proceedings
b) Agreement to arbitrate must be in writing: it is the agreement to
arbitrateNot agreement to settle
c) Agreement to arbitrate may be repudiated within 5 days

Repudiate - make it ineffective, withdraw or cancel it

Complaint
Enforcement - in writing
Summons Within the next - Sworn before Lupon chairman
working day
- Consent is vitiated by (only grounds) fraud, violence or intimidation
- Change of mind is not a ground
Mediation Resolution
d) Arbitration award to be made after period for repudiation lapses and
within 10 days thereafter
Constitution Amicable Note:The arbitration award cannot be repudiated
of Pangkat Settlement
Within the 15 Compliance with the arbitration award: the parties may, at any stage of the
days from the arbitration proceedings, agree in writing that they shall abide by the arbitration
Resolution award of the Lupon chairman or the pangkat chairman
first meeting

Within 15 days Enforcement of the arbitration award or amicable settlement

Pangkat from the day it  may be enforced by execution by the Lupon within 6 months from the
Convenes convenes
date of settlement
Certificate to  After the lapsed of such time, the settlement may be enforced by action
Within the 3 in the appropriate city or municipal court
days from file action
constitution Effect of amicable settlement and arbitration award
Filing in court
General Rule: it shall have the force and effect of a final judgment of a court upon the
expiration of 10 days from the date thereof
Tolling of the prescriptive period for offenses: While the dispute is under
mediation, conciliation, or arbitration, the prescriptive periods for offenses and
Unless: repudiation of the settlement has been made or a petition to nullify the
cause of action under existing laws shall be interrupted upon filing of the compliant
award has been filed before the proper city or municipal court
to the Punong barangay
 The prescriptive periods shall resume upon receipt of the complainant of Repudiation of settlement:
the certificate of repudiation or of the certificate to file action issued by
the Lupon or pangkat secretary
When to repudiate: within 10 days from the date of settlement

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How: by filing with the theLupon chairman a statement to that effect sworn to
before him

Ground: consent is vitiated by fraud, violence or intimidation

X filed a complaint against Y with the barangay captain of Angin.

The barangay captain, who is himself the Lupon chairman, set the
case for hearing, but Y failed to appear. When the case was set again
for hearing, the parties appeared but they failed to reach an
amicable settlement. Whereupon, the barangay captain issued a
certification to file an action. X then filed his complaint against Y
before the MTC of Naguilian. Y moved to dismiss the complaint
onthe ground that no Pangkat was convened to settle the dispute.
Rule on Y's motion.

A: motion denied for lack of merit. Although no pangkat was

convened, there was substantial compliance with the law. Under
the LGC, the confrontation before the Lupon chairman is sufficient
compliance with the precondition for filing the case in court.

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 E.g. Presumption of negligence against common carriers where there is death or
Evidence injuries to passengers
- Constitutional presumption of innocence
Rule 128: General Provisions
Applicability of the Rules on Electronic Evidence
 the rules on Electronic Evidence does not apply to criminal actions
Evidence: any matter of fact, the effect, tendency or design of which is to produce in
 They apply only to civil actions, quasi-judicial proceedings, and
the mind a persuasive affirmative or disaffirmative of the existence of some other
administrative proceedings
matter of fact
 it is the means, sanctioned by law, of ascertaining in a judicial
Evidence in civil cases vs. evidence in criminal cases
proceeding, the truth respecting a question of fact
Civil Criminal
Not every fact having a conceivable connection to the issue of a case or that which
provides a reasonable inference as to the truth or falsity of a matter alleged is The party having the burden of The guilt of the accused has to
considered evidence. proof must prove his claim by be proven beyond reasonable
preponderance of evidence doubt
Consider "evidence" not as an end in itself but merely as a "means" of ascertaining An offer of compromise is not an An offer of compromise by the
the truths if a matter of fact. admission of any liability and is accused may be received in
not an admission in evidence evidence as an implied
The truth must have to be determined by the rules for admissibility and proof. against the offeror admission of guilt

Evidence is required because of the presumption that the court is not aware of the Exceptions
veracity of the facts involved in the case. 1. Involving quasi offenses
2. Those allowed by law to be
Truth: not necessarily the actual truth but one aptly referred to as the judicial or compromise
legal truth. The concept of presumption of The accused enjoys the
 Actual truth may not always be achieved in judicial proceedings because innocence does not apply constitutional presumption of
the findings of the court would depend on the evidence presented before innocence
it based on the accepted rules for admissibility.
Proof vs. evidence
Scope and applicability of the rules of evidence
 the rules are guided by the principle of uniformity Proof: not the evidence itself
 The rules on evidence shall be the same in all courts and in all trials and  there is proof only because of evidence
hearings  It is merely the probative effect of evidence
 It apply only to judicial proceedings  It is the effect or result of evidence

Administrative agencies: As a rule, administrative agencies are not bound by the technical
rules of evidence
E.g. the rule on formal offer of evidence is not applicable to a case involving petition
for naturalization unless applied by analogy or in a suppletory character and
whenever practicable and convenient
- In labor case, it is not necessary for affiant to appear and testify, and be
cross examined by counsel for the adverse party on his affidavit
Note: Even if not bound by the technical rules of procedure, the finding of facts of
administrative bodies are, however, respected as long as they are supported by
substantial evidence, even if such evidence is not overwhelming or preponderant
Evidence: it is the medium of proof
Factum probans vs. Factum probandum
Factum probandum: the fact or proposition to be established
 the fact to be proved
 The fact which is in issue and to which the evidence is directed
Factum probans: the facts or material evidencing the fact or proposition to be
established
 probative or evidentiary fact tending to prove the fact in issue
 The totality of the evidence to prove the liability

When evidence is required, when not required:
1. Where no factual issue exists in a case
There is no need to present evidence because where the case presents a question of
law, such question is resolved by the mere application of the relevant statutes or
rules of this jurisdiction to which no evidence is required.
 there is mandatory judicial notice of the official acts of the legislature and
these acts covers statute
Liberal construction of the Rules on evidence
- it must be liberally construed
- Rules of procedure are mere tools intended to facilitate rather than
frustrate the attainment of Justice
Absence of vested rights in the rules on evidence: there is no vested right in the
rules in evidence because said rules are subject to change by the Supreme Court
pursuant to its powers to promulgate rules concerning pleading, practice and
procedure.

2. When the pleadings in a civil case do not tender an issue of fact, a trial Waiver of the rules in evidence
need not be conducted since there is no more reason to present evidence.  the rules on evidence may be waived
 When an otherwise objectionable evidence is not object to, the evidence
3. Presentation of evidence may likewise be dispensed with by agreement becomes admissible because of waiver.
of the parties  As long as no law or principles of morality, good customs and public
policy are transgressed or no rights of third person are violated, the rules
4. Evidence is not also required on matters of judicial notice and on matters on evidence may be waived by the parties
judicially admitted
ADMISSIBILITY OF EVIDENCE
5. Evidence is not also required when a law or rule presumes the truth of a
fact Requisites for the admissibility of evidence
1. The evidence is relevant - that none but facts having rational probative
value are admissible

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 2. The evidence is not excluded by the rules (competent) - that all facts
having rational probative value are admissible unless some specific rule
forbids them
Relevant evidence: to be relevant it must have such a relation to the fact in issue as
to induce belief in its existence or non-existence
 it deals with the rational relationship between the evidence and the fact
to be proved
 Requires the existence of a fact in issue - must be a disputed fact
Test in determining the relevancy of evidence
 the determination of relevance is a matter of inference and not of law
 The test, is therefore, one of logic, common sense, and experience
 It is a matter of reasoning
 And it is addressed to the discretion of the court
Collateral matter: it is collateral when it is on a "parallel or diverging line," merely
"additional" or "auxiliary"
- this connotes an absence of a direct connection between the evidence
and the matter in dispute
A particular item of evidence may be admissible but its evidentiary weight
depends in judicial evaluation with the guidelines provided by the rules of
evidence
Note: to admit evidence and no to believe it are not incompatible with each other
Multiple admissibility:
 there are times when a proffered evidence is admissible for two or more
purposes
 Sometimes, it is inadmissible for one purpose but admissible for another
or vice versa
 Evidence may ask I be admissible against one party but not against
another
It must be remembered that the purpose for which the evidence is offered must be
specified because such evidence may be admissible for several purposes under the
doctrine of multiple admissibility, or may be admissible for one purpose but not for
another. Otherwise, the adverse party cannot interpose proper objection.

Example: the motive of a person and in some instances, his reputation are matters
that may be considered collateral to the subject of a controversy

When collateral matters are allowed:

Rule: it is not allowed because it does not have a direct relevance to the issue of the
case

Exception: a collateral matter may be admitted if it tends in any reasonable degree to

establish the probability or improbability if the fact in issue.
- when it has the effect of corroborating or supplementing facts previously
established by direct evidence

Relevance of evidence on the credibility of the witness

 Evidence on the credibility of the witness, or lack of it, is always relevant.
 It has the inherent tendency to prove or disprove the truthfulness of his
assertion and consequently, the probative value if the proffered evidence
 Every type of evidence sought to be admitted, whether it be an object or
document, requires the testimony of a witness who shall identifying
testifying and affirm or deny the authenticity of the evidence
 For the evidence to be believed, it must not only proceed from the mount
of a credible with witness, but must be credible in itself such as the
common experience of mankind can approve as probable under the
circumstances

Cross examination: it is a process used to test the credibility of the witness

Competent evidence: one that is not excluded by law or rules in a particular case
- refers to the eligibility of an evidence to be received as such
- When applied to a witness, the term competent referee to the
qualifications of the witness - the eligibility to take the stand and testify

Test: the law or rules.

 if the law or rule excludes the evidence, it is incompetent otherwise it is
competent

Competence of electronic evidence: it is competent and is admissible if it

complies with the rules in admissibility prescribed by the Rules of Court and
related laws, and is authenticated in the manner prescribed by the Rules on
Electronic evidence

Admissibility and weight (probative value) of the evidence

Admissibility: refers to the question of whether or not the evidence is to be

considered at all
- depends on its relevance and competence

Probative value: refers to the question of whether or not it proves an issue

- pertains to its tendency to convince and persuade

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