UE Notes - Civil Procedure (Riano 2016)

PRE-WEEK REMINDERS IN CIVIL PROCEDURE
[ The WARRIOR Notes ]
Actions/ Cause of Action

1. A cause of action involves a right and a violation of that right. It is not enough that a
party has a cause of action. The complaint must contain a concise statement of the
ultimate or essential facts constituting the plaintiff’s cause of action. Even if a party
actually has a cause of action but the elements of a cause of action are not spelled out
in the complaint, the complaint may be dismissed for failure to state a cause of action.
If the motion to dismiss is based on Rule 16, it is not correct to have the motion to
dismiss anchored on “lack of a cause of action.” The ground should be that “the
pleading asserting the claim “states no cause of action. This means a failure to state a
cause of action. The ground, “lack of a cause of action”, is only proper to support a
demurrer to evidence because it is the equivalent of insufficiency of evidence. It is not
appropriate when the motion is based on Rule 16.
2. A party may join several causes of action which he may have against another party. A
basic rule in joinder is: Do not join an ordinary civil action with a special civil action or
with one subject to special rules. Hence, an action for unlawful detainer, forcible
entry, partition or foreclosure of real estate mortgage cannot be joined with ordinary
civil actions like actions for a sum of money or for damages. Neither can a special
proceeding be joined with an ordinary civil action because the former is governed by a
special rule. When for example, an action for unlawful detainer is joined with
ordinary actions to recover sums of money, there is a misjoinder of causes of action
because an action for unlawful detainer is a special civil action. Reminder: This
misjoinder, however, is not a ground to dismiss the complaint. The remedy is for the
court to order that the misjoined cause of action be separated. This can be done by the
court on its own motion or on motion of a party. If assuming, the court orders the
plaintiff to separate the misjoined cause of action but said plaintiff refuses or fails to
comply with the order, the complaint may be dismissed. The ground for dismissal,
however, is not the misjoinder but the failure to obey the order of the court.
When there is only one plaintiff and one defendant, causes of actions that are not
related to one another or which originate from different transactions may be joined.
Relationship among the transactions is not important when there is only one plaintiff
and only one defendant. As long as the joinder would not include a special civil action
or those which are governed by special rules, the joinder can be made. Example: DD
owes PP the following: P330,000; P300,000, and P375,000. If each debt is evidenced
by a promissory note unrelated to the other notes, each is a subject of a distinct cause
of action. PP may, however, if he wants, join all causes of action in one complaint even
if such causes of action do not originate from the same or related transactions. If the
causes of action are joined, PP must follow the totality rule. PP does this by adding the
amounts of all the causes of action. Hence, the action shall be filed in the RTC. Note,
however, that PP may also sue on each promissory note because there are three (3)
causes of action. This is because joinder of causes of action is not compulsory but
only permissive. If the actions are to be commenced in Metro Manila, each cause of
action is to be filed in the Metropolitan Trial Court by reason of the amount (Not more
than P400,000).
When there is a plurality of parties, as when there is one plaintiff against several
defendants, the joinder would involve an important requirement. This is because,
when the case involves several parties, the rule on joinder of parties under Sec. 6 of
Rule 3 must be complied with before there can be a joinder of causes of action. Under
the said provision, the joinder can only be allowed if the causes of action arise out of
the same transaction or series of transactions and when a common question of law or
fact arises in the action. Hence, unrelated transactions against several defendants
cannot be joined. Examples: X, Y and Z owe A P300,000, P350,000 and P350,000,
respectively. The debts have no relation to each other. A cannot join the causes of
UNIVERSITY OF THE EAST COLLEGE OF LAW

action against all the debtors because, the transactions being unrelated, the parties
cannot be joined. A has to file a separate action against each.
If X, Y and Z promised to pay A or his order, P900,000, under a single promissory

note, A has three causes of action because the obligations of the debtors are presumed
to be joint. In a joint obligation, the credits or debts are presumed to be divided into as
many equal shares as there are creditors or debtors. Such credits or debts are
considered distinct from one another. Since the obligations are distinct from one
another, A may file an action against each maker/debtor under separate complaints.
However, A may, if he desires, file a single complaint against them, thus, joining all
the three (3) causes of action. Here, there is a proper joinder of causes of action.
Reason: The debtors’ obligations arise out of the same transaction having executed a
single promissory note. In the same vein, the injured passenger may join his causes of
action for damages against the negligent driver and the common carrier. The causes of
action against the defendants arise out of the same transaction – the carriage of the
passenger.
An action for a sum of money (P300,000) may be joined with an action for rescission of
a contract. Reason: Both are ordinary civil actions. The complaint shall be filed with
the RTC because the action for rescission is cognizable by the RTC. An accion
reivindicatoria (assessed value of land is P65,000) can be joined with an action for
damages of P300,000. Both are ordinary civil actions even if one is a real action and
the other is personal. Since the former, by reason of the assessed value, is cognizable
by the RTC, the complaint should be filed with the RTC. Reminder: Be familiar with
the enumeration of special civil actions and special proceedings under the Rules for
you to know what cannot be joined.
A single cause of action cannot be split into two or more parts because of the rule
against splitting a single cause of action. A party is not allowed to institute more than
one suit for a single cause of action. For instance, an action for unlawful detainer and
the recovery of the unpaid rentals must be covered only by a single complaint which
prays for both reliefs. A separate case for unlawful detainer and another case for the
recovery of the rentals is “splitting of a single cause of action”. Reason: The demand
for the unpaid rentals is an integral part of the cause of action for unlawful detainer.
In the same vein, a complaint for the recovery of a loan includes a claim for the
payment of damages and/or interest. Also, a complaint for the recovery of unpaid
taxes should include the recovery of the surcharges on the unpaid taxes.
An act constituting forcible entry committed by the defendant deprives the plaintiff of
the use and the possession of the property. This deprivation is the direct source of
damages in forcible entry. The action for forcible entry, hence, must include a prayer
for the payment of damages directly resulting from the forcible entry. Separating the
forcible entry from the recovery of damages constitutes splitting of a single cause of
action. However, where another act is committed aside from the forcible entry, like
destroying property found in the land occupied or harvesting the produce in the same
land, the latter acts constitute separate causes of action and may be the subject of
another action separate and distinct from the forcible entry. Thus, if a separate
complaint is filed for such acts independent of the complaint for forcible entry, there is
no splitting of a single cause of action.
3. When a contract of loan is secured by a real estate mortgage, the creditor has two
remedies to collect on the loan. The first is to foreclose the mortgage and the second, is
to file an action for collection. The creditor cannot do both. To do so is to split a single
cause of action. He can only choose one. Jurisprudence affirms that the mere filing of
either action already bars the other remedy. Even if the action filed is not pursued to
its termination, a choice has already been made. Thus, a creditor cannot file a civil
action against the debtor for the collection of the debt and, then, subsequently file an
action to foreclose the mortgage. This would be splitting a single cause of action. If
both cases are pending, the ground for dismissal of one of them would be “litis
pendencia”. If a judgment has already been rendered on one of them, the ground to be
relied upon, for dismissal of the other action brought, would be “res judicata”.

Jurisdiction
1. The jurisdiction of courts is conferred by law, not by the rules promulgated by the
Supreme Court because jurisdiction over the subject matter is one of substantive law.
It is not conferred by acquiescence of the parties, by waiver or by agreement.
Jurisdiction of a court, however, is determined by the allegations in the complaint.
This means that for the court to know whether or not it has jurisdiction over a
complaint filed with it, the court must read the material allegations in the complaint.
From the allegations therein, the court will determine whether or not it has jurisdiction
over the subject matter of the complaint.
2. Because of the rule that jurisdiction is determined by the allegations in the complaint,
the defenses of the defendant, either in a motion to dismiss or in the answer, do not
determine jurisdiction. Thus, in an action for a sum of money where the complaint
asserts a claim of P500,000 and the defendant asserts that his liability is only
P200,000, the RTC has jurisdiction based on the allegations in the complaint.
3. If an action for damages in the amount of P1 million is filed in the RTC but during the
hearing, the evidence discloses that the defendant is liable only for P250,000, the
court should not dismiss the case for lack of jurisdiction. Reasons: Jurisdiction is
determined by the allegations in the complaint. Another reason would be the doctrine
of adherence of jurisdiction, also called the doctrine of continuity of jurisdiction. Under
this doctrine, once the court acquires jurisdiction over the complaint by virtue of its
material allegations, there it shall remain until the end of the proceedings. Not even a
new law will affect the jurisdiction already acquired unless the law expressly divests
the court of jurisdiction.
4. When there is concurrence of jurisdiction among courts, go to the lowest court first.
Do not file the action in the higher court. Reason: Doctrine of hierarchy of courts.
Example: The RTC has concurrent original jurisdiction with the SC and the CA in
petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus. Since
there is concurrent jurisdiction over these cases, apply the doctrine of hierarchy of
courts. This means that the case should be filed first with the lowest court possible,
unless there are compelling reasons (special and important reasons) to file the same
with a higher court.
Where a matter is best resolved first by an administrative body, a controversy must

first be referred to such body before seeking the aid of the courts. In other words, the
remedy within the administrative machinery must be resorted to first before the
court’s power should be invoked. This is the doctrine of primary jurisdiction.
Under the doctrine of non-interference or the doctrine of judicial stability, a court

cannot interfere or enjoin the acts of a co-equal court. Examples: The MTC of Manila
cannot issue an injunction against an order of the MTC of Quezon City. But there is no
interference by one court with the authority of another court if the injunction is
issued, for example, by “RTC A” against the sheriff of “RTC B” for levying upon the
properties of one who is not a party to the action. Reason: The injunction was not
issued against “RTC B”, but against the sheriff. There is also no interference under the
following facts: “RTC A” dismissed a petition for rehabilitation filed by Corporation
ABC. The court, likewise, lifted the stay order which previously prevented any suit
against the property of the corporation. The lifting of the stay order then opened up
suits involving corporate property. When the stay order was lifted, a creditor of
Corporation ABC filed foreclosure proceedings against the property of the corporation.
A TRO was issued by “RTC B” to restrain the foreclosure. It is argued that the TRO was
an interference against the other court’s dismissal of the petition for rehabilitation and
the lifting of the stay order. The Court ruled that there was no interference.
Rehabilitation is a special proceeding while foreclosure is a special civil action.
5. If the action is real, determine the assessed value of the property: P20,000 and below
for the MTC (outside Metro Manila) and P50,000 and below for the MeTC (within Metro

Manila). If the assessed values exceed the amounts mentioned, the RTC has
jurisdiction.
Examples of real actions: accion publiciana; accion reivindicatoria; action to recover

ownership of real property; action for reconveyance of real property; action for
foreclosure of real estate mortgage; action for partition of real property and similar
actions. In these and similar actions, jurisdiction is determined by the assessed value
of the property and the place where such property is situated. Notice that these real
actions are also incapable of pecuniary estimation. As real actions, they used to be
within the exclusive original jurisdiction of the RTC because of the original provisions
of BP 129 which vested in the RTC jurisdiction over real actions. As actions incapable
of pecuniary estimation, these actions were also within the jurisdiction of the RTC.
Before the amendments introduced by R.A. 7691, whether they be analyzed from the
point of view of their being real actions or as actions incapable of pecuniary
estimation, the end result was the same: The RTC has jurisdiction. Because of the
amendments introduced by R.A. 7691, jurisdiction over real actions is now determined
by the assessed value of the real property even if at the same time they are incapable
of pecuniary estimation.
6. Majority of jurisprudence considers an action for quieting of title (removal of a cloud

on a title) as a real action. Hence, jurisdiction over the same depends upon the
assessed value of the property. Note: Whenever you decide to write in your answer that
an action is real, do not merely state that it is a real action. Always state your reason
as: “The action is a real action because it involves title to, possession of or an interest in
real property.” In other words, whenever you assert something in your answer, state
your reason. The examiner does not appreciate a mere conclusion.
7. When you are in doubt as to whether you should analyze a situation as an action
incapable of pecuniary estimation (RTC) or a real action (determine assessed value),
always first ascertain the primary purpose of the action before you proceed to write
your answer. Examples: (a) An action for annulment of a document and partition of
real property; (b) An action for reconveyance and annulment of documents. These
examples could be confusing. If the facts do not clearly indicate what the primary
purpose of the action is, then qualify your answer. Note, however, that by
jurisprudence, an action to enforce a right of repurchase (under a contract of pacto de
retro or under a provision of law) should be considered an action incapable of
pecuniary estimation even if the end result is the reacquisition of ownership. The
reacquisition of ownership is merely an incident of the enforcement of the right of
repurchase. However, it is suggested that an action for specific performance for the
purpose of acquiring ownership of a real property should be analyzed in accordance
with the assessed value of the property since the examiner has obviously identified the
primary purpose of the action, even if the action was captioned “specific performance”.
8. Reminder: The designation or name given by the plaintiff or by the examiner to the
action, is not always determinative of the nature of the action or jurisdiction. Whether
a court has jurisdiction over the subject matter of a particular action is determined by
the plaintiff’s allegations and the principal relief he seeks. For instance, an action
captioned as for a “sum of money” was considered, in one case, as an action for
unlawful detainer because the primary purpose of the action was to have the lessee
vacate the premises. Here, the demand was “to pay the rentals in arrears and to
vacate”. The payment of the rentals by the defendant did not give him the option to
stay in the premises, even if he pays. Whether he pays or not, the plaintiff wants him
to vacate the premises. It is, hence, an action for unlawful detainer.
9. Not all real actions should be analyzed in accordance with the assessed value of the
real property. The real actions of unlawful detainer and forcible entry fall within the
exclusive original jurisdiction of the MTC, regardless of the assessed value of the
property. In these cases, the assessed value of the property is immaterial.
4

10. In unlawful detainer and forcible entry cases, the MTC may resolve an issue of
ownership raised by the defendant by way of defense in his pleadings, if the issue of
possession cannot be resolved without deciding the issue of ownership. The issue of
ownership shall be resolved only to determine the issue of possession. The
determination of ownership, in this case, is only provisional, not a final adjudication
on the matter of ownership. This does not preclude another appropriate case, such as
accion reivindicatoria or reconveyance of ownership to finally resolve the issue of
ownership.
11. When there is a boundary dispute between adjacent lands, such dispute should not
be resolved in a summary action for ejectment but in an ordinary action called accion
reivindicatoria,. Use the assessed value for determining jurisdiction.
12. The actions for specific performance, injunction, reformation of an instrument, and
annulment of a contract or rescission of a contract shall be filed with the RTC. Such
actions are considered incapable of pecuniary estimation, unless, of course, the
material allegations and the relief prayed for indicate otherwise. Expropriation of real
property under Rule 67 is within the jurisdiction of the RTC.
13. In interpleader, look at the property subject of the interpleader. If it is a

personal/movable property, use the amounts: P300,000 (outside Metro Manila) and
P400,000 (within Metro Manila). Where the value of the property exceeds such
amounts, the RTC has jurisdiction. Under Sec. 33(1) of BP 129, as amended, the
value of the personal property is to be considered in determining jurisdiction. On the
other hand, if the subject matter of the interpleader is any interest in real property,
use the assessed value (P20,000 outside Metro Manila; P50,000 within Metro Manila).
If the assessed value exceeds such amounts, go to the RTC. In cases where the action
involves interest in real property, the assessed value of the property should be
considered. If the subject matter is the performance of a service or an obligation to do,
then consider the action as one incapable of pecuniary estimation. Hence, the RTC
has jurisdiction.
14. For replevin, look at the value of the property (P300,000/P400,000, as the case may
be). If over, go to the RTC. Under Sec. 33(1) of BP 129 as amended, the value of the
personal property is to be considered in determining jurisdiction.
15. For probate cases, determine the gross value of the estate by using the
P300,000/P400,000 formula. If within the said amounts, go to the MTC. If over, go to
the RTC.
16. A petition for a writ of habeas corpus may be filed in the MTC provided that the RTC
judges in the province or city are all absent. This is the special jurisdiction of the MTC
(Sec. 35, BP 129, as amended). Do not file a petition for a writ of amparo or a petition
for a writ of habeas data with the MTC. The lowest court you can go to is the RTC.
These can be filed in the CA, Sandiganbayan or SC or with any of its justices.
17. Cadastral and land registration cases are generally within the jurisdiction of the RTC.
Such cases, however, may be taken cognizance of by the MTC provided there is a
delegation by the Supreme Court. This jurisdiction is called a delegated jurisdiction.
The decision of the MTC here is appealable like a decision of the RTC. Reason: The
MTC here would be acting as an RTC. Hence, the judgment of the MTC should be
appealed to the CA.
Admiralty and maritime cases may be handled by the MTC depending on the amount
of the claim. Use the amounts, P300,000/P400,000. If the claim is over these
amounts, go to the RTC (Sec. 19[3], BP 129, as amended). Thus, jurisdiction over an

action for damages filed by Vessel A against Vessel B as a result of a collision, shall
be determined by the amount of the claim.
18. Where the law does not provide for the court, tribunal, person or body (exercising
judicial or quasi-judicial functions) which should exercise jurisdiction over a
particular action, the RTC has jurisdiction (Sec. 19[6], BP 129, as amended). Reason:
The RTC is a court of general jurisdiction.
19. The RTC has concurrent jurisdiction with the SC in actions affecting ambassadors,
public ministers and consuls. File the case with the RTC because of the doctrine of
hierarchy of courts.
20. As a rule, the Supreme Court is not a trier of facts and is not to review the evidence
on record. It is not the function of the SC to evaluate the evidence in the case or the
truth or falsity of the assertions of the parties. It deals only with questions of law
unless, for instance, the lower courts have conflicting findings of facts, or the lower
courts are manifestly mistaken, or when there is a grave abuse of discretion by the
courts below.
21. An appeal to the Supreme Court shall be taken by way of a petition for review on
certiorari (Also called appeal by certiorari to the Supreme Court) under Rule 45. This
mode of appeal is applicable to both civil and criminal cases.
22. Appeals from the judgments or final orders of the Court of Appeals, Sandiganbayan,
the Court of Tax Appeals (en banc) and the Regional Trial Court (in the exercise of
original jurisdiction where only a question of law is raised) are to be taken by filing a
Rule 45 petition to the Supreme Court. The petition may include an application for a
writ of preliminary injunction or other provisional remedies.
The decision of the Regional Trial Court in the exercise of its original jurisdiction, and
where only questions of law are raised, is brought to the Supreme Court under Rule
45.
As a rule, only questions of law are to be raised in the petition under Rule 45. Raising
questions of fact will result in the dismissal of the petition. Notable exceptions: (a) An
appeal to the SC from a judgment in a petition for writ of kalikasan may raise
questions of fact (Sec. 16, Rule 7, Rules of Procedure for Environmental Cases); (b) An
appeal to the SC from judgments in petitions for writs of amparo (Sec. 19, the Rule on
the Writ of Amparo) and habeas data (Sec. 19, The Rule on the Writ of Habeas Data)
may raise questions of.
Example in jurisprudence: When the findings of fact of the CA conflict with the
findings of the lower court or tribunal, it is necessary for the Court to re-examine the
records and resolve the conflicting rulings. In a situation like this, the Supreme Court
may delve into questions of fact.
23. Basic is the rule that a party cannot be allowed to invoke the jurisdiction of a court to
secure affirmative relief and later on renounce or repudiate the same after it fails to
obtain such relief. After voluntarily submitting a cause and encountering an adverse
decision on the merits, it is too late for the loser to question the jurisdiction or power
of the court. The Court frowns upon the undesirable practice of a party submitting
his case for decision and then accepting the judgment, only if favorable, and attacking
it for lack of jurisdiction, when adverse. In such a situation, a party is estopped from
assailing the jurisdiction of a court.
24. When a court acquires jurisdiction over the subject matter, that jurisdiction shall
remain with the court until the end of the proceedings under the doctrine of
adherence of jurisdiction. Hence, if by the allegations in the complaint, the court
acquires jurisdiction over a claim of P1 million, the court does not lose jurisdiction
6

over the case just because it is shown later that the liability of the defendant is only
P100,000. Also, if during the pendency of an action over which the court has
jurisdiction, a new law is passed changing the jurisdictional amount of courts, the
change in the law does not affect the pending case unless the new law is expressly
applied to pending cases.
Parties
1. A plaintiff or defendant must be a real party in interest. If the plaintiff is not the real
party in interest, the ground for dismissal would be “failure to state a cause of
action”, not “lack of legal capacity to sue”. This is because a complaint filed by one
who is not a real party in interest would “state no cause of action”.
2. A necessary party is not indispensable. The case may go on without him. His non-
inclusion does not prevent the court from proceeding in the action, but without such
party, no complete relief can be had. Thus, a joint debtor may be sued separately
from his co-debtor. A co-debtor is not an indispensable but only a necessary party
because if he is not joined, the entire debt will not be recovered. Only the share of the
defendant debtor can be recovered. Hence, there is no complete relief.
3. The concept of “locus standi” or standing is a constitutional law concept allowing a

suit not necessarily by the person injured but by concerned citizens, voters, or
taxpayers who sue in the public interest.
4. The failure to join an indispensable party will prevent the court from proceeding with
the action. It is useless to go on with the case because without him, there will be no
final determination of the case. His presence is, therefore, mandatory. However, where
an indispensable party is not impleaded in the action by the plaintiff, the court will
not dismiss the case even if there is a failure to state a cause of action (occasioned by
the non-joinder of an indispensable party). Reason: The non-joinder of a party is not a
ground for dismissal. The remedy is to implead said party either by order of the court
on its own initiative or by motion of a party. The court will, therefore, simply order the
amendment of the complaint, in order to implead the party not joined, instead of
granting the motion to dismiss. If, however, the order to implead the indispensable
party, through an amendment is not obeyed, then the court may dismiss the
complaint for failure to comply with the order of the court. The ground for dismissal,
therefore, is disobedience by the plaintiff.
5. A class suit does not only require the involvement of numerous persons. The most
important element is: the subject matter of the controversy is one of common or
general interest to such persons. It is not a common or general interest in the issue or
in the question involved that justifies a class suit but a common or general interest in
the subject matter. There is no class suit in the following examples: (a) The filing of a
class suit against the airline company by numerous relatives of people who died in a
plane crash. There is no class suit because the interest of one plaintiff is limited to his
relative who perished; (b) The filing if a class suit by numerous people to recover
individual lots from the plaintiff. There is no class suit because each plaintiff is only
interested in the particular lot he occupies. Note: If a substantial number of people
sue a newspaper for damages on account of its libelous article against them, a class
suit will not prosper because each plaintiff would be interested only on his own
reputation which he does not share with the others, even if there is a common issue
of whether or not the article is libelous.
A closure of a road to the prejudice of residents of many subdivisions may give rise to
a class suit because of the common inconvenience caused to said residents. An action
to protect the environment filed by persons in their behalf and in behalf of
generations yet unborn gives rise to a class suit because every person has a common
or general interest in the preservation of the natural resources of the country and the
protection of the environment.

6. When a party dies during the pendency of an action, and the claim is not
extinguished, substitution of the deceased shall be ordered by the court. The
appointment of an executor or administrator shall not be required if the heirs of the
deceased could act as substitutes. Note: Actions to recover real or personal property,
or an interest therein from the estate; actions to enforce a lien on such property;
actions to recover damages for an injury to person or property, real or personal, are
not extinguished. Hence, if the plaintiff or defendant dies during the pendency of an
action for damages based on a quasi-delict, unlawful detainer, forcible entry, accion
publiciana or accion reivindicatoria, the action may be continued by or against the
deceased’s personal representative, executor or administrator.
7. Money claims arising from contract, express or implied, are not extinguished by death
of the defendant where the said defendant dies before the entry of judgment in the
court in which the action is pending. It shall be allowed to continue until entry of final
judgment and the court is not supposed to dismiss the suit. If the plaintiff obtains a
favorable judgment, the same shall be enforced following the rules for prosecuting
claims against estate. Hence, it is not proper for the plaintiff to file a motion for
execution of the judgment even if he prevails in the action. Reason: A money
judgment against the decedent is to be filed as a claim against the estate pursuant to
Sec. 5 of Rule 86.
Where the defendant dies after the entry of judgment, argue that the filing of the
judgment as a claim against the estate should not apply. Sec. 20 of Rule 3 should be
applied only to a situation where the death occurs before entry of final judgment. Note
the term, “before” in the rule. In this case, a motion for execution should be allowed.
More so, if the defendant (judgment obligor) dies after a property of the defendant has
been actually levied upon, the property can now be sold to satisfy the judgment.
8. A citizen suit is authorized under Sec. 5, Rule 2 of the Rules for Environmental Cases.
A citizen suit is filed by a Filipino citizen as a form of representative suit. It is filed in
representation of others, including even minors or generations yet unborn. The
purpose of this suit is to enforce rights or obligations under environmental laws. The
Court suggested in one case that instead of filing a suit in representation of marine
mammals, a citizen suit could be used to protect the environment.
Venue
1. Jurisdiction over the subject matter is a matter of substantive law and refers to the
authority of the court to hear, determine and decide a cause. Venue is merely
procedural and refers to the place where the action is to be instituted or filed. Venue
is, as a rule, not a motu propio ground for dismissal while jurisdiction over the subject
matter is.
2. In resolving questions on venue, one has to determine first if the action is real or
personal. If the action is real (actions involving title to, possession of real property or
any interest therein), the venue of the action is the place where the property is
situated. Hence, in real actions (like an action to recover real property, accion
publiciana, accion reivindicatoria, unlawful detainer, forcible entry, foreclosure of real
estate mortgage, or partition of real property), the venue is the place where the
property or any part thereof is situated. In real actions, the residence of the parties
are irrelevant. On the other hand, when the action is personal, one has to consider
the residences of the parties. The plaintiff, in personal actions, has the right to choose
the venue. If the plaintiff is a resident of Manila, and the defendant is a resident of
Quezon City, the venue would be either Manila or Quezon City at the option of the
plaintiff. Note: The residence of a corporation is the place of the principal office of the
corporation.
3. Since venue is merely procedural, it may be the subject of a stipulation between the
parties. A stipulation as to the venue of a complaint may either be restrictive or
permissive. If the written stipulation refers to a place as the only venue, the ordinary
rules on venue, described in the preceding number, will no longer apply. In this case,
8

the stipulation on venue is said to be restrictive. No other venue is to be considered
except the one exclusively stipulated.
4. If the agreed venue is not exclusive, it is merely a permissive stipulation. Said place
becomes only an additional venue aside from those allowed by the rules. Since the
stipulation is deemed permissive, the parties do not waive their right to pursue a
remedy in the courts using he general rule on venue in Section 2 of Rule 4 of the
Rules of Court. Thus, in an action for damages, a stipulation to file the action in
Manila, does not bar the filing of the action in the residence of the plaintiff (Pasay
City) or in the residence of the defendant (Makati City). However, since Manila is the
agreed venue, it may also be filed in Manila, the additional venue. This is because the
stipulation is merely permissive. If the property is located in Manila and the
permissive venue stipulated is Quezon City, an unlawful detainer case may still be
filed in Manila, the location of the property. It may also be filed in Quezon City, the
place deemed to be an additional venue. Reminder: The phrase, “shall be filed in
Manila,” is a permissive stipulation. The phrase, “shall be filed in Manila and in no
other place,” is a restrictive stipulation.
The complementary-contracts-construed rule - This rule presupposes that the principal

contract provides for a stipulated venue different from that agreed upon in the
accessory contract (like a contract of loan and mortgage contract). Under this rule,
the stipulations should be construed together to determine the venue. If the loan
contract provides for a restrictive stipulation in Makati City and the mortgage
contract provides for restrictive stipulations in Makati City/other places in Rizal, and
in places where the creditor has a branch or office (like Dagupan City), the filing of
the suit in Dagupan City is proper. The contracts should be construed together (Case
of Sps. Rigor, G.R. No. 136423, August 20, 2002).
5. Where the plaintiff files an action to declare the nullity of a contract, he is not bound
by the exclusively venue stipulated therein. To require him to respect the restrictive
stipulation in the contract is to make him admit the validity of the contract. The
action thus, may be filed in the court where the plaintiff resides and not in the
restrictive venue stipulated. Also, the venue stipulated may not be recognized by the
court if the venue stipulated is oppressive and causes undue inconvenience to the
other parties.
6. Where after an extrajudicial foreclosure of a real estate mortgage, a deficiency exists

and the loan remains not fully paid, the action to recover such deficiency is a
personal action. The venues applicable are the residences of the parties, at the
election of the plaintiff. If the action is one for reconveyance of real property or the
payment of its value, the action is a real action because it is anchored on a claim of
ownership. Note that even the alternative prayer for the payment of its value is
premised on the claim of ownership by the plaintiff. The venue is the location of the
real property involved.
Pleadings
1. To be a compulsory counterclaim, it must be a claim that has a connection with the
transaction that is the subject matter of the claim or complaint and that the parties
are within the jurisdiction of the court. The connection between the claims is the first
thing to consider. If there is no relationship between the subject matters, the
counterclaim is permissive. However, even if there is a relationship, the counterclaim
is still permissive if the counterclaim is not within the jurisdiction of the court.
Example: A counterclaim of P500,000 in the MTC is not compulsory but permissive.
Reason: The MTC has no jurisdiction over the amount claimed. Important: A
counterclaim of P300,000 in the RTC is still compulsory even if it is outside of its
jurisdiction if invoked as an independent complaint. It is still a compulsory
counterclaim as long as the subject matters of the complaint and the counterclaim are
connected. In short, a counterclaim in the RTC is still compulsory regardless of the
amount.

2. It is important to know whether or not a counterclaim is compulsory. If it is
compulsory, it must be set up in the same action; otherwise, it shall be barred. A
permissive counterclaim is not barred even if not set up. A compulsory counterclaim
interposed by the defendant is not an initiatory pleading. Hence, it need not be
answered by the plaintiff. No certification against forum shopping is also required for a
compulsory counterclaim. Payment of docket fees for a compulsory counterclaim has
been declared as suspended by OCA Circular 96-2009. On the other hand a
permissive counterclaim must be responded to by the plaintiff; otherwise, he may be
defaulted for failure to file an answer to the counterclaim. A permissive counterclaim is
an initiatory pleading. Such counterclaim must also be accompanied by a certification
against forum shopping. A certification against forum shopping must also be attached
to the permissive counterclaim. This is not required in a compulsory counterclaim.
NOTE: A cross-claim not set up shall also be barred. The rules do speak of a
permissive cross-claim.
A claim for damages arising out of the alleged baseless complaint should be set up in
the same action because it is a compulsory counterclaim. A claim for recovery of an
excess payment should also be invoked as a compulsory counterclaim in an action to
recover the alleged deficiency. A reimbursement for necessary expenses should be
invoked as a compulsory counterclaim in an action for ejectment.
VIP Reminder: In Any fact situation which may be given by the examiner, remember
that when the complaint is dismissed for whatever reason and there is already a
counterclaim set up, the dismissal is limited to the complaint. The dismissal does not
carry with it the dismissal of the counterclaim already pleaded. The rule does not
make a distinction between compulsory and permissive counterclaims. It is only the
complaint that is dismissed.
3. A reply to the answer need not be filed by the plaintiff because even if a party does not
file a reply, all the new matters alleged in the answer are deemed controverted or
denied. A reply is advisable if, for instance, the plaintiff desires to deny the
genuineness and due execution of the document which is the basis of the claim of the
defendant. The reply, in this case, must be under oath.
4. The signature of the counsel constitutes a certificate by him that he has read the
pleading; that to the best of his knowledge, information and belief, there are good
grounds to support it; and that it is not interposed for delay. An unsigned pleading
produces no legal effect.
5. As a rule, pleadings need not be under oath or verified except when specifically
required by law or by a rule. A pleading is verified by an affidavit that the affiant has
read the pleading and that the allegations therein are true and correct of his personal
knowledge or based on authentic records.
6. A certification against forum shopping is required in a complaint or other initiatory

pleading asserting a claim or relief. It shall be certified to by the plaintiff or principal
party. It is not the lawyer who executes the certification. This is the general rule.
Exception: If he is authorized by the plaintiff through a special power of attorney. Also,
the rule is that every principal party must sign the certification. The exception is when
they sue under a common cause of action. In this case, even one of them may be
allowed to execute the certification. The rule is that when the plaintiff is a corporation,
the person who must execute the certification against forum shopping should be a
person authorized by the board of directors or trustees because it is the board which
exercises the corporate power to sue. A decision of the Court, however, held that even
without authority from the board, certain officers may execute the certification against
forum shopping like: the president, chairperson of the board, general manager or
acting general manager, personnel officer or labor analyst. Interestingly, the same
decision also held that the better practice is to secure a board authorization.
7. The failure to attach a certification against forum shopping is not curable by a mere
amendment. Instead, it is a cause for dismissal of the case. The dismissal is upon
motion and after hearing. The court cannot, therefore, dismiss the case motu proprio.
10

The dismissal, in this case, as a rule, is one without prejudice. Hence, the dismissed
complaint may be refiled, unless otherwise provided in the order of dismissal.
8. If a false certification is submitted, the party responsible shall be subject to indirect

contempt without prejudice to the corresponding administrative and criminal actions.
However, if the acts of a party constitute willful and deliberate forum shopping, the
same shall be a ground for summary dismissal with prejudice and shall constitute
direct contempt, as well as a cause for administrative sanctions.
9. When an action or defense is founded upon a written instrument, a party who desires
to deny its genuineness and due execution must specifically deny the same and such
denial must be under oath. A specific denial is not enough. There must be an oath
aside from the specific denial. Without the oath, even if there is a specific denial, there
would be an implied admission of the genuineness and due execution of the actionable
document. Thus, the failure to deny the actionable document under oath prevents a
party from arguing that the document is not genuine or that the other party was not
authorized to execute the document. This is the general rule. However, there would be
no implied admission, even if the denial is not under oath, if (a) the pleader does not
appear to be a party to the instrument, or (b) when the other party does not comply
with the order for an inspection of the original document.
Note: Even if there is a failure to deny the actionable document under oath, a party
may still attack the document on certain grounds like the following: The document is
without a consideration, with an illegal consideration, payment of the obligation,
compromise, or prescription. Reason: These defenses have nothing to do with the
implied admission of genuineness and due execution.
Another instance where a denial must be coupled with an oath is when there is an
allegation of usury in a complaint filed to recover usurious interest. An oath is
required to prevent an admission of the allegation of usury.
A mere statement that “I specifically deny all the allegations” in the complaint is not a
specific denial. It still is an admission, it being a mere general denial. A denial is not
specific simply because of the use of the word, “specific”. Important: Follow the denials
in Sec. 10 of Rule 8 if you want to make a specific denial.
10. In cases subject to summary procedure like forcible entry and unlawful detainer, a
permissive counterclaim, reply, third-party complaint and intervention are not
allowed. In small claims cases, a reply, third-party complaint and intervention are not,
likewise, allowed. In environmental cases, a reply and third-party complaint are
prohibited. Intervention, however, is allowed. In fact when a citizen suit is filed, the
court shall issue an order which, among others, shall require all interested parties to
manifest their interest to intervene within 15 days from notice.
Default
1. A declaration of default occurs because of the failure of a defending party to file an
answer within the reglementary period. The failure to appear in the pre-trial or trial is
not a ground for a default order. Neither is the failure to appear in a trial. Instead, the
failure of the defendant to appear shall cause the court to allow the plaintiff to present
his evidence ex parte. This is not called a default.
While the rule is that it is the failure to answer which is the reason for a declaration of
default, this is only the general rule. There could be a default for refusal to comply
with the modes of discovery under Sections 3]c] and 5 of Rule 29.
2. A defendant cannot be declared in default unless such declaration is preceded by a

valid service of summons. Another rule to remember is that the court, on its own
motion, cannot declare the defending party in default. There must be a motion to
declare the defending party in default, with notice and proof of the defendant’s failure
to answer. Note: In environmental cases, the rule is different. Should the defendant fail
11

to answer the complaint, the court shall declare the defendant in default. No motion is
required. The motion is required only from the plaintiff if he wants to present his
evidence ex parte.
Once an answer is filed, even if beyond the fifteen-day period to answer, it is not
proper for the court to declare the defending party in default. If the court receives a
late answer, this simply means that the period to answer was extended by the court.
The period to answer is not strictly fifteen (15) days after service of summons. The
court may fix a different period pursuant to Sec. 1 of Rule 11 of the Rules of Court.
Upon the declaration of default, the court has either of two options: (a) to proceed to
render judgment, or (b) to require the claimant to submit evidence. It is not error for
the court to render judgment without requiring the plaintiff to present his evidence.
The court need not require the claimant to submit evidence if it decides to proceed to
render judgment and grant the claimant such relief as his pleading may warrant.
3. A party declared in default loses his standing in court and cannot, therefore, take part
in the trial. To regain his lost standing, the remedy of the defaulted party is to file
before judgment, a motion, under oath, to set aside the order of default. The motion
must be under oath and must show that the failure to file an answer was due to fraud,
accident, mistake or excusable negligence (FAME). Showing FAME is not sufficient.
The defending party must also allege that he has a meritorious defense. The above
remedy is a remedy before judgment is rendered.
If judgment by default has already been rendered, then the defaulted party may avail
of the ordinary remedies against a judgment from Rules 37 to 45. Before the judgment
becomes final and executory, the aggrieved party may file a motion for reconsideration
or new trial. If he filed a motion for new trial or reconsideration and the same is
denied, he may appeal from the judgment within another ‘fresh’ period, which is the
period for appeal. A judgment by default does not deprive the aggrieved party from
appealing from the judgment by default. After the judgment has become final and
executory and there is no more appeal, he may file, depending upon the grounds
available, a petition for relief from judgment, or even an action to annul the judgment.
Where the judgment is void on its face, he may attack the judgment collaterally.
4. If there is a judgment by default, the court cannot award an amount exceeding that
prayed for (or something different in kind from that prayed for). Hence, if the plaintiff,
in his pleading, seeks the payment of P5 million but was able to prove P7 million when
he was allowed to present his evidence ex parte, he can only receive P5 million. Note:
In an environmental case, the judgment rendered by the court shall be based on the
evidence presented by the plaintiff ex parte. The limitation imposed upon a judgment
by default in the Rules of Court was not reproduced in the Rules of Procedure for
Environmental Cases. The same limitation was not, likewise, reproduced in the rules
on pre-trial which allow a judgment based on the evidence and not limited by the relief
prayed for.
5. There is no declaration of default in an action for annulment of marriage, for

declaration of nullity of marriage or for legal separation. This is true even if there is a
failure to file an answer. Instead, the court shall order the prosecuting attorney to
investigate whether or not a collusion between the parties exists, and if there is no
collusion, to intervene for the state to see to it that the evidence submitted is not
fabricated.
6. A motion to declare the defendant or respondent in default is prohibited in cases

subject to summary procedure, small claims cases, and writs of amparo and habeas
data petitions.
7. If there is a common cause of action against several defendants and one or some of
them fail to answer, the court shall try the case against all of the defendants upon the
answers filed, instead of rendering a judgment by default against the non-answering
defendant. Reminder: This rule applies only if there is a common cause of action
against the defendants (Sec. 3[c], Rule 9, Rules of Court).
12

Amendment of pleadings
1. Amendment of a pleading is a matter of right before a responsive pleading is served or
in the case of a reply, at any time within ten (10) days after it is served. Amendment of
a complaint, for instance, is a matter of right before an answer is served. It is even still
a matter of right despite a pending motion to dismiss because a motion is not a
pleading. Likewise, amendment is still a matter of right even if the court issues an
order of dismissal, pursuant to a motion to dismiss, as long as the dismissal is not yet
final. If the dismissal has not attained finality, the case is still very much alive and
could be the object of an amendment as long as the adverse party has not yet served
his responsive pleading.
2. An amendment of a pleading, to correct or cure a deficiency in the allegations, is

proper only when there is already an existing cause of action when the complaint was
filed. Note: If there is no cause of action when the complaint was filed (as when an
action for collection of a sum of money was filed before the note matures), there can be
no amendment in order to correct any deficiency in the allegations even if the cause of
action arises after the complaint is filed. One cannot amend a complaint which when
filed had actually no cause of action. Such action is prematurely brought.
3. The court can only deal with an issue raised in the pleadings. However, if an issue not
raised in the pleadings is tried with the express or implied consent of the parties (as
when no objection is interposed on an evidence to prove a non-issue), it is as if such
issue had been raised in the pleadings. This results into an implied or constructive
amendment of the pleadings. The parties may opt to have the pleading amended to
conform to the evidence but the failure to so amend does not, however, affect the
result of the trial of the issue. Thus, where the issue of the case, based on the
pleadings of the parties, is a claim for P1 million, evidence in excess of the amount at
issue should be promptly objected to as irrelevant or without basis. If, however, no
objection is interposed on the evidence in excess of P1 million, say P2 million, the
latter amount shall be treated in all respects as if it had been raised in the pleadings of
the parties. If proven, the court may award P2 million.
4. A party may amend his pleading as a matter of right at any time before a responsive
pleading is served. This right can be exercised only once. The amendment may be for
any purpose even to correct an error of jurisdiction and does not need leave of court. If
a responsive pleading has already been served, leave of court is required. If a motion to
dismiss has been filed, instead of an answer, the plaintiff may still amend his pleading
as a matter of right because a motion is not a pleading.
Note: An amendment to correct and error of jurisdiction after a responsive pleading

has been served, cannot be done. This already requires leave of court. If leave is
sought for, then the court has to act on the motion for leave. However, a court cannot
act on a complaint over which it has no jurisdiction. The remedy of the court is to
dismiss the complaint and for the plaintiff to refile the same. An amendment to correct
an error of jurisdiction can only be done where the amendment is still a matter of
right. The amendment made as a matter of right has to be accepted by the court as its
ministerial duty. In so accepting an amendment made as a matter of right, the court
cannot be deemed to have acted without jurisdiction because in this case, the court
does not act by using its discretion.
Even after an answer is filed, the court may still grant substantial amendments as
long as the same is within its jurisdiction, like changing the cause of action. A
substantial change in the cause of action is no longer a ground for the denial of a
motion for leave to amend a pleading. What will preclude the court from allowing the
amendment is if it appears that the motion for leave to amend is done with the intent
to delay. Again, the fact that the amendment is substantial, is not a ground for the
denial of the motion for leave to amend.
13

5. An amended pleading supersedes the pleading that it amends. In other words, when a
pleading is amended, the original pleading is deemed abandoned. The original pleading
ceases to function as a pleading and the case stands for trial on the amended pleading
only. How about the admissions made in the original pleadings? They are still
admissions but they are no longer judicial admissions. They are now to be considered
as extrajudicial admissions. As extrajudicial admissions, they may still be received in
evidence against the pleader but there is now a need to formally offer such admissions
in evidence. They now require proof because they are no longer judicial admissions.
6. A supplemental pleading is not an amended pleading. A supplemental pleading is

designed to set forth transactions, occurrences, or events which have happened since
the date of the pleading sought to be supplemented.
Summons
1. Jurisdiction over the person of the defendant can be acquired not only by proper
service of summons but also by the defendant’s voluntary appearance. This
appearance is actually equivalent to service of summons. The defendant’s voluntary
appearance in the action shall be equivalent to service of summons. Hence, when
there is voluntary appearance, a defective service of summons or an absence thereof,
will not prevent the court from acquiring jurisdiction over the person of the defendant.
As a rule, an appearance in whatever form, without expressly objecting to the

jurisdiction of the court over the person, is a submission to the jurisdiction of the
court. If, for example, a motion to dismiss is filed by the defendant on several grounds,
without including the defense lack of jurisdiction over the person of the defendant,
then there is a case of voluntary appearance. However, where one ground invoked in
the motion to dismiss is lack of jurisdiction over the person of the defendant, the
inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over
the person of the defendant, shall not be deemed a voluntary appearance. Example: A
motion to dismiss is filed invoking lack of jurisdiction over the person of the defendant
and improper venue and prescription. There is no voluntary appearance because lack
of jurisdiction over the defendant is also invoked in the motion.
Examples of voluntary appearance or voluntary submission to the jurisdiction of the

court: The filing of motions seeking affirmative relief, such as a motion to admit
answer; motion for additional time to answer; motion for reconsideration of a default
judgment,; motion to lift the order of default with a motion for reconsideration. A later
case gives the following examples: Filing a motion to admit the answer, filing a motion
to grant additional time to file an answer, or a motion to lift the order of default are
indicative of voluntary appearance. Bottomline: The pleadings or motions filed, to be
deemed a voluntary appearance, must seek for an affirmative relief from the court
without questioning the court’s jurisdiction over the defendant.
2. Jurisdiction over the person of the defendant is mandatory in an action in personam.

In an action in rem or quasi in rem, jurisdiction over the res is sufficient for the court
to have jurisdiction over the action and to conduct proceedings on the same. However,
even if the action is one in rem or quasi in rem, summons shall also be served upon the
parties interested in the action for purposes of due process. Also, if the defendant
appears in the action that is in rem or quasi in rem, such action shall be treated as if it
is an action in personam. Hence, if a non-resident defendant in an action to foreclose a
real estate mortgage (quasi in rem) appears in the suit, the action becomes one in
personam. Hence, the summons applicable to an in personam action also applies to an
in rem and quasi in rem action. If the defendant in the latter action is properly served,
the court acquires jurisdiction, not only over the res but also over the persons of the
defendants.
3. Normally, summons by publication is not sufficient to acquire jurisdiction over a

resident of the Philippines where the action is in personam (as in action for a sum of
money or damages, unlawful detainer, forcible entry). However, summons by
publication may apply when the identity of the defendant is unknown, when the
14

whereabouts of the defendant are unknown or when the resident defendant is
temporarily out of the Philippines.
4. To acquire jurisdiction over the person of a resident or over one who is in the
Philippines, service in person upon the defendant (formerly called personal service) is
the proper mode of service. This is the primary mode of service. If he refuses to sign for
the summons or refuses to receive the same, the summons, together with a copy of the
complaint, shall be tendered to him.
5. Before resorting to substituted service of summons, efforts have to be exerted to serve

the defendant in person and such efforts must be indicated in the sheriff’s return.
These requirements are necessary to show to the court the impossibility of a prompt
service in person. If there is no compliance with this jurisprudential requirement, any
subsequent substituted service will not be valid and will not enable the court to
acquire jurisdiction over the person of the defendant. A mere general statement that
substituted summons was effected after several futile attempts to serve them
personally is not enough. The details of the failed service must also be indicated in the
return. Thus, if the sheriff does not find the defendant in his residence, he cannot
simply serve the summons upon the defendant’s wife. Even if she signs for the
summons, jurisdiction over the defendant has not been technically acquired by the
court because there was an immediate resort to substituted service of summons.
In substituted service, service of summons should be made on the persons mentioned

in Sec. 7 of Rule 14. Service of summons on a mere caretaker who does not even
reside in the place without even attempting to serve the defendant in person is not
valid. Hence, there is no ground to declare the defendant in default. Exception: When
the defendant himself prevents the proper service of summons, service may be made
upon another person. In one case, because the defendant ordered the village guards
not to allow any sheriff to enter the village, the sheriff, after several failed attempts was
allowed to serve the summons upon a security guard.
6. Extraterritorial service of summons applies, as a rule, to non-residents who, at the

same time, are not found in the Philippines and the action is in rem or quasi in rem,
not actions in personam. Do not apply this mode of summons where the action is in
personam as when the action against the non-resident who is not in the Philippines is
an action for damages, action to collect a sum of money, action for injunction, action
for specific performance and other in personam actions. Jurisdiction over the person of
the defendant could not be acquired in these kinds of cases where the defendant is a
non-resident and is not found in the Philippines.
Where the action against the non-resident defendant who is not in the Philippines is
an action in personam (like damages or actions for a sum of money), jurisdiction over
his person cannot be obtained. If the defendant has property within the Philippines,
the property should be attached in order to convert the action to one quasi in rem.
After the property is attached, the summons allowed in extraterritorial service, which
includes summons by publication, the court will now acquire jurisdiction over the res
(property). The action may now proceed against the property even if there is no
jurisdiction over the person of the defendant. Recovery, however, will only be to the
extent of the value of the property as sold in execution. Recovery of the deficiency is by
nature, in personam; hence, any deficiency cannot be recovered on the basis of the
extraterritorial service of summons because no jurisdiction has been acquired over the
person of the defendant.
There are only limited cases in which a defendant who is a non-resident and is not
found in the Philippines may be served with summons by extraterritorial service, to
wit: (a) when the action affects the personal status of the plaintiff; (b) when the action
relates to, or the subject of which is property, in which the defendant claims a lien or
an interest, actual or contingent; (c) when the relief demanded in such action consists,
wholly or in part, in excluding the defendant from any interest in property located in
the Philippines; and (d) when the defendant non-resident’s property has been attached
within the Philippines. The cases mentioned are either in rem or quasi in rem, not in
personam.
15

Important Reminder: By virtue of Sec. 16 of Rule 14, the mode of summons on
extraterritorial service may also apply to residents temporarily out of the Philippines.
Besides, it may apply in any action (personam, in rem or quasi in rem).
Note further that in the case of residents temporarily out of the Philippines,
substituted service may also apply. Thus, if the sheriff, after the complaint is filed,
discovers that the defendant temporarily left the Philippines, summons by substituted
service may be used. Summons through publication or by extraterritorial means is no
longer required. Even attaching his property is not required because substituted
service is sufficient to acquire jurisdiction over his person.
7. When the defendant is a domestic corporation, partnership or association, service of

summons shall be made only upon the persons enumerated in Sec. 11, Rule 14,
namely: president, managing partner, general manager, corporate secretary, treasurer
or in-house counsel. This enumeration is exclusive. Hence, service cannot be made on
any other person.
8. If a foreign private juridical entity is not registered in the Philippines, or has no

resident agent in the Philippines, service of summons may be effected out of the
Philippines, with leave of court, through any of the following means: (a) by personal
service coursed through the appropriate court in the foreign country with the
assistance of the department of foreign affairs; (b) by publication in a newspaper of
general circulation in the country where the defendant may be found and by serving a
copy of the summons and the court order by registered mail at the last known address
by the defendant; (c) by facsimile or any recognized electronic means that could
generate proof of service; or (d) by such other means as the court may, in its
discretion, direct (A.M. No. 11-3-6-SC., March 15, 2011).
9. In a petition for certiorari, jurisdiction over the person of the respondent is acquired by
the service upon him of the order of the court indicating its initial action in the
petition. It is also acquired by the voluntary appearance of the respondent.
Motions and miscellaneous principles

1. A motion to dismiss is an omnibus motion because it is filed to attack a pleading.
When it is filed, all the grounds available must be invoked. Those not invoked are
deemed waived, except lack of jurisdiction over the subject matter, litis pendencia, res
judicata and prescription.
2. The court has the following options when a motion to dismiss is filed: (a) grant the
motion which means dismissal of the action or claim; (b) deny the motion; or (c) order
the amendment of the pleading. But remember that, in every case, the resolution shall
state clearly and distinctly the reasons therefor. It is not enough to state, for instance,
that “the motion is denied for lack of merit.”
3. The requirement that a motion to dismiss should be filed within the time for filing the
answer is not absolute. Even after the answer has been filed, a defendant can still file
a motion to dismiss on the following grounds: (a) lack of jurisdiction over the subject
matter; (b) res judicata; (c) litis pendencia; and (d) prescription. If any of these grounds
appears from the pleadings or the evidence on record, the court shall dismiss the
claim.
When a motion to dismiss is granted and the complaint is dismissed, the plaintiff may
refile the complaint as when the complaint was dismissed for lack of jurisdiction or
improper venue. There are, however, certain grounds for dismissal which preclude the
refiling of the complaint like (a) res judicata (b) prescription (c) payment and other
modes of extinguishing the obligation, and (d) unenforceability under the statute of
frauds. The remedy of the aggrieved party is to appeal from the dismissal, not to file a
petition certiorari.
16

4. A motion for bill of particulars is filed in order to enable the movant to properly
prepare a responsive pleading and not to discover the evidence of the other party. Do
not file this motion to discover the evidence of the other party. In a criminal case, the
purpose is different. It is to enable the accused to plead and prepare for trial.
5. The rule allows a party to file a motion to dismiss his own complaint. The motion,
however, is required only when the defendant has already served a responsive pleading
or after a party has already served a motion for summary judgment. Before such
pleading or motion is filed, a plaintiff may dismiss his complaint by merely filing a
notice of dismissal. No motion to dismiss is required. However, he can only serve a
notice of dismissal twice. The last notice is deemed an adjudication on the merits
under the “two-dismissal“ rule.
The court may dismiss a case because of the fault of the plaintiff as when he (a) fails to
appear on the date of the presentation of his evidence in chief; (b) fails to prosecute his
case for an unreasonable length of time; (c) fails to comply with the Rules; or (d) fails
to comply with any order of the court. The dismissal may be done motu propio by the
court or upon motion. The dismissal shall have the effect of an adjudication upon the
merits. Hence, the case can no longer be refiled.
Note: When the case filed by a co-owner for partition of real party is dismissed because
of his own fault, this dismissal does not bar another co-owner from filing a complaint
for partition. This right is a substantive right under Art. 494 of the Civil code and
cannot be diminished by a rule. The action subsequently filed cannot be barred by res
judicata.
6. Litigated motions (those which require a hearing) shall be set for hearing. The notice
shall be addressed to all parties concerned. There must also be proof of service;
otherwise the court shall not act on the motion. Such motions without notice of
hearing shall be deemed mere pro forma motions which have no legal effect.
Pre-trial and modes of discovery
1. A pre-trial is mandatory in a civil case. It is also mandatory in a criminal case in the

trial courts. Note, however, that while the possibility of an amicable settlement is one
of the purposes of a pre-trial in a civil case, it is not one of the purposes in a criminal
pre-trial. Also, it is not proper for the court to terminate the pre-trial if the parties do
not amicably settle the case because there are other purposes of pre-trial.
The plaintiff and the defendant should appear in the pre-trial. The failure of the
plaintiff to appear when so required shall be cause for the dismissal of the action with
prejudice, unless otherwise ordered by the court. If the defendant fails to appear, the
court has reason to allow the plaintiff to present his evidence ex parte. The court shall
render judgment on the basis of the evidence presented. It is then possible that the
plaintiff may receive more than what is prayed for if warranted by the evidence.
Reason: This is not a default. In a default situation, the plaintiff cannot receive more
than what is prayed for in the complaint.
2. Depositions pending action, depositions pending appeal, interrogatories to parties,

admission by adverse parties, production or inspection of documents or things, and
physical and mental examination of persons are the specific modes of discovery
provided for in the Rules of Court.
3. It is advisable for any party to a civil case to file and serve upon the adverse party
written interrogatories to elicit material and relevant facts. If written interrogatories are
not filed and served, the party failing to do so cannot later on compel the adverse party
to testify in court as an adverse witness or to give a deposition pending appeal unless
otherwise allowed by the court for good cause shown and to prevent a failure of
justice.
4. The party served with written interrogatories has an obligation to answer the same
fully in writing within fifteen (15) days after service thereof. If no answer is served, the
17

court, on motion and notice, may strike out all or any part of the pleading of that
party, or dismiss the action or proceeding or any part thereof, or enter a judgment by
default against that party. He may also be ordered to pay reasonable expenses
incurred by the other, including attorney’s fees.
5. After the issues have been joined, it would be advisable for a party to file and serve
upon the other party a written request for admission. If the request for admission is
not made, the party who fails to serve the request shall not be permitted to present
evidence on facts within the personal knowledge of the adverse party. On the other
hand, if the request is not responded to by the latter within fifteen (15) days from
service, each of the matters requested to be admitted shall be deemed admitted. Note
that the implied admission shall be for the pending action only and not considered as
admissions in any other proceeding.
6. A judgment on the pleadings is availed of when the answer of the adverse party fails to
tender an issue because all the material allegations in the complaint are admitted or
because of the failure to make a specific denial of said allegations. If there is an issue
in the case, even if the issue is merely the amount of damages, a judgment on the
pleadings is not proper. In summary judgment, there is an issue but the issue as to a
material fact is not genuine as when the issue is only the amount of damages.
7. After the plaintiff has completed the presentation of his evidence, the defendant may
move for dismissal on only one ground: that upon the facts and the law, the plaintiff is
not entitled to relief. This motion, called a demurrer to evidence, is actually a motion to
dismiss, but unlike the motion under Rule 16 which is filed before the filing of an
answer to the complaint and may be anchored on several grounds, a demurrer is filed
after the plaintiff has rested his case (after the completion of the presentation of the
plaintiff’s evidence) and may invoke only one ground. The denial of the demurrer does
not deprive the defendant of his right to present his evidence. He still can present his
evidence. If, however, the demurrer is granted, but the order of the trial court is
reversed on appeal, the defendant loses his right to present his evidence.
8. There could be a judgment even without a trial as when the court renders a judgment
on the pleadings, summary judgment or judgment upon a compromise. Dismissals
with prejudice upon a motion to dismiss grounded on res judicata, prescription,
extinguishment of the obligation or unenforceability under the statute of frauds, are
dismissals amounting to a judgment without a trial. A dismissal with prejudice,
because the plaintiff did not appear in the pre-trial, also amounts to a judgment
without a trial.
Remedies after a judgment
1. Before the judgment becomes final and executory, a losing party may avail of any of
the following remedies: (a) motion for reconsideration; (b) motion for new trial; or (c)
appeal. After the lapse of the period for appeal, the judgment now becomes final and
executory but the following equitable remedies may still be availed of: (a) relief from
judgment (petition for relief); or (b) annulment of judgment.
2. A motion for reconsideration of a judgment or final order can only be filed once by the
same party. “No party shall be allowed a second motion for reconsideration of a
judgment or final order.” Grounds for a motion for reconsideration: (a) damages
awarded are excessive; (b) the evidence is insufficient to justify the decision or final
order; and (c) the decision or order is contrary to law.
3. A second motion for reconsideration, as a rule, is not allowed. Exception: When there
are extraordinarily persuasive reasons. A second motion for new trial may be filed
provided the second motion is based on a ground not existing or available when the
first motion was made.
4. If a motion for reconsideration or a motion for new trial is filed and is denied, the
movant may appeal within a fresh period of 15 days from receipt of the notice of the
18

order denying the motion. This is the Neypes rule. This rule also applies to criminal
cases as declared by the Court in the Judith Yu case. The remedy against an order
denying a motion for new trial or reconsideration is not to file a petition for certiorari.
The remedy is to appeal from the judgment itself. The Neypes rule does not apply to
administrative cases.
5. When the order of the court is not appealable, the remedy is the appropriate special
civil action in Rule 65. Rule 65 is not available when an appeal is available. Examples:
(a) When an appeal is disallowed or dismissed, no appeal may be taken from the order
of the court. To annul the order or have the same modified and after the requisite
motion for reconsideration was denied, a petition for certiorari under Rule 65 may be
availed of. To compel the court to give due course to the appeal, mandamus may lie. (b)
Assume that a motion to dismiss on the ground of improper venue was denied despite
the fact that the venue is obviously improperly laid. The order of denial is not
appealable because it is an interlocutory order. A petition for certiorari under Rule 65
is the remedy to annul the order. (c) An order dismissing an action without prejudice is
not appealable. Hence, where a complaint is dismissed for failure to comply with the
rule requiring a certification against forum shopping, appeal is not the remedy against
the order of the court, the dismissal being, as a rule, one without prejudice. Rule 65 is
the appropriate remedy.
If the order of dismissal is with prejudice, the remedy is appeal. Examples in which the
remedy is appeal: Dismissal of an action on the ground of res judicata, prescription,
payment/extinguishment of the obligation, violation of the statute of frauds, failure of
the plaintiff to appear in a pre-trial. Reason: The dismissal in any of these cases is one
with prejudice. Note: Please refer to Sec. 1, Rule 41 for those orders that are not
appealable.
6. A judgment of the MTC is appealable to the RTC by filing a notice of appeal with the
MTC. On appeal, the RTC is not going to conduct a trial de novo (new trial). It is only
the CA that can conduct a trial de novo on appeal. Note: A judgment of the MTC in a
cadastral case or a land registration case is appealable in the same manner as
decisions of the RTC. Hence, the appeal is to the CA by way of notice of appeal in the
MTC, which acts as an RTC in cadastral and land registration cases.
When a complaint is dismissed in the MTC for lack of jurisdiction and on appeal the
RTC finds out that it has jurisdiction, the RTC will not simply affirm the dismissal. It
shall try the case on the merits as if it was originally filed with it. The decision of the
RTC should be deemed one in the exercise of its original, not appellate jurisdiction.
Hence, if a complaint for specific performance was filed in the MTC, chances are the
same will be dismissed for lack of jurisdiction. On appeal to it, the RTC will assume
jurisdiction over the case and will not simply affirm the dismissal.
7. A judgment of the RTC in the exercise of its original jurisdiction is appealable to the
Court of Appeals using an ordinary appeal in Rule 41. The appeal shall be taken
within fifteen (15) days from notice of the judgment or final order appealed from.
Where a record on appeal is required, the period is thirty (30) days. In this appeal,
where the judgment of the RTC is in the exercise of its original jurisdiction, the
appellant is not supposed to raise a pure question of law before the CA. A pure
question of law is not reviewable by the CA in this kind of appeal. An appeal under
Rule 41 to the CA which raises a pure question of law shall be dismissed. If the
appellant wants to raise a pure question of law, the appeal should be to the SC under
Rule 45. Now, if the appellant goes to the SC directly and raises a question of fact, not
a question of law, dismissal will not necessarily follow. The SC may refer the appeal to
the CA.
Even if the trial court has lost jurisdiction over the appealed case, but before the
transmittal of the original record or the record on appeal to the appellate court, the
trial court may issue orders for the protection of the rights of the parties like to permit
appeals of indigent litigants, order execution pending appeal and allow withdrawal of
the appeal. This is called the court’s residual jurisdiction.
19

8. When the judgment rendered by the RTC is one in the exercise of its appellate
jurisdiction (meaning that the case was appealed from the MTC), the appeal is made
by filing a verified petition for review directly with the Court of Appeals under Rule 42.
No notice of appeal is to be filed. The appeal may involve an error of fact or law. The
CA here, may entertain even a question of law because the judgment of the RTC under
Rule 42 is one made in the exercise of its appellate jurisdiction.
NOTE: The CA, whether in the exercise of its original or appellate jurisdiction can
conduct hearings, receive evidence in order to resolve factual issues. It can even
conduct new trials. In other words, it can act like a trial court. On the other hand, the
RTC in the exercise of its appellate jurisdiction cannot act like a trial court. Its
decision in a case on appeal to it will be decided on the basis of the records emanating
from the court of origin or on the memoranda or briefs filed by the parties.
9. When the appellant wants to appeal from the judgment of the RTC in the exercise of its
original jurisdiction and raises only questions of law, he shall do so by filing an appeal
by certiorari (petition for review on certiorari) to the Supreme Court under Rule 45. If
the judgment appealed from is one in the exercise of the appellate jurisdiction of the
RTC, use a petition for review under Rule 42 even if the questions raised are questions
of law. The new rule now specifically reminds appellants that, in a Rule 45 petition,
they may avail of provisional remedies like a writ of preliminary injunction (Sec. 1, Rule
45, Rules of Court).
10. In petitions for a writ of amparo or writ of habeas data, or in a petition for a writ of
kalikasan, questions of fact may also be raised even in a Rule 45 petition. The rule in
these cases differs from the usual principle enunciated in Rule 45 where only
questions of law may be raised.
11. Certiorari under Rule 65 is not a mode of appeal but an independent, original action
considered as a special civil action. It is the certiorari under Rule 45 which is a mode
of appeal. In Rule 65, the issue raised is an error of jurisdiction; In Rule 45, the
question raised is an error of judgment, an error which is one purely of law, not of
facts.
The purpose of certiorari is to annul or modify the order or proceedings of the lower
court or tribunal. The purpose of prohibition is to command the respondent to desist
from further proceedings. The purpose of mandamus is to command the respondent to
perform an act required by law. Contempt is the sanction if the respondent does not
compy with the order. It is directed against ministerial acts and not discretionary acts.
Mandamus will not lie to compel a school to reinstate a cadet and his rights as a
student.
12. Certiorari under Rule 65 is a limited form of review and is restricted to resolving errors
of jurisdiction and grave abuse of jurisdiction, not errors of judgment.
13. If a petition for certiorari is filed against a lower court, the petition does not interrupt
the course of the principal case in the lower court. The lower court is required to
proceed with the principal case within ten (10) days from the filing of the petition for
certiorari with a higher court or tribunal. Failure of the lower court to proceed with the
principal case may be a ground for an administrative charge. In order to interrupt the
course of the principal case and to enjoin the lower court from proceeding with the
principal case, the petitioner should obtain a writ of preliminary injunction or a
temporary restraining order from the higher court.
In determining the propriety of a petition for certiorari, the first matter to consider is
whether or not the respondent exercises a judicial or a quasi-judicial function. If the
respondent does not exercise either function, certiorari will not lie against its acts.
Thus, a petition for certiorari directed against the Anti-Terrorism Council cannot be
given due course because it does not exercise either a judicial or a quasi-judicial
function.. Certiorari does not also lie against an executive order of a city mayor or an
20

executive order of the President of the Philippines because neither official exercises
judicial nor quasi-judicial functions.
However, in certain cases, when the petition for certiorari is based on the constitution,
the respondent need not be one exercising judicial or quasi-judicial functions. The
scope of certiorari and prohibition, when the constitution is invoked, is accordingly,
broader than when certiorari in the Rules of Court is invoked. This is because the
judicial power includes the power to determine whether or not there has been a grave
abuse of discretion amounting to lack of jurisdiction of any branch or instrumentality
of the government. Thus, even of the respondent is exercising executive or legislative
function, certiorari may be availed of in the Supreme Court (Araullo v. Aquino, G.R. No.
209287, July 1, 2014). This rule also applies to a petition for prohibition as per Araullo
v. Aquino.
Sec. 1 of Rule 65 also requires that there be no appeal available to the petitioner. It is
not sufficient that the respondent committed a grave abuse of discretion in the
performance of its acts because it is not the only requirement for the petition.
Certiorari lies only when there is no appeal nor any plain, speedy, or adequate remedy
in the ordinary course of law. If after a judgment is rendered, a party can avail of an
appeal or a motion for reconsideration or any other adequate remedy, certiorari is not
proper. This rule indicates that appeal and certiorari are mutually exclusive. Hence,
when appeal is available, certiorari will not be proper. Accordingly, the remedy to
obtain a reversal of judgment on the merits is by an appeal. This is true even if the
error ascribed to the court is its lack of jurisdiction.
Certiorari will not lie unless a motion for reconsideration is first filed before the
respondent tribunal. The motion is filed in order to allow the respondent an
opportunity to correct its errors. Notable exceptions: (a) where the order of the court is
a patent nullity as when the court had no jurisdiction; (b) where the questions raised
in the certiorari proceeding have been duly raised and passed upon by the lower court,
or are the same as those raised and passed upon by the lower court.
The current rule discourages the indiscriminate filing of a petition for certiorari. The
court may dismiss the petition on any of the following grounds: where the petition is
(a) patently without merit; (b) prosecuted manifestly for delay; or (d) the questions
raised are too unsubstantial to require consideration. In such event, the court may
award in favor of the respondent treble costs solidarily against the petitioner and
counsel, in addition to subjecting counsel to administrative sanctions. The Supreme
Court may even impose motu proprio based on res ipsa loquitor, other disciplinary
sanctions or measures on erring lawyers for dilatory and unmeritorious petitions for
certiorari.
14. An appeal from the judgments of quasi-judicial bodies shall be brought to the Court of
Appeals under Rule 43. The appeal, however, does not stay the award in the judgment
unless directed otherwise by the Court of Appeals. The appeal may involve questions of
fact, of law or mixed questions of fact and law.
15. The decisions of the NLRC are reviewable by the Court of Appeals through a petition
for certiorari under Rule 65. This is not a mode of appeal. Those of the Sandiganbayan
are appealable to the Supreme Court by way of Rule 45.
16. NOTE: Rule 65 petitions are not modes of appeal. They are original, independent
actions. The modes of appeal are in Rules 40, 41, 42, 43 and 45.
17. Rulings of the Ombudsman in administrative disciplinary cases are appealable to the
Court of Appeals. In criminal cases, there is no mode of appeal. Go for review to the
Supreme Court using Rule 65.
18. A party adversely affected by the decision of a division of the Court of Tax Appeals,
after a motion for reconsideration or new trial is denied, may file a petition for review
21

with the Court of Tax Appeals en banc. If he loses in the CTA en banc, he may go to the
Supreme Court using Rule 45.
19. The judgments or final orders of the COMELEC and the COA may be reviewed by
certiorari under Rule 65 to the Supreme Court. This is according to Rule 64. Although
Rule 65 is to be used, the period to file is 30 days, not 60 days as in Rule 65. From
these bodies, go to the Supreme Court raising a jurisdictional issue or a grave abuse of
discretion, not errors of judgment. Note: There is a Rule 65 petition under Rule 64.
This is distinct from the true Rule 65 under Rule 65 itself.
Note: Rule 64 does not cover rulings of the COMELEC in the exercise of its
administrative powers. The rule only relates to those rendered in the exercise of
adjudicatory or quasi-judicial powers. This would limit the coverage of Rule 64 to
decisions, orders, and rulings issued pursuant to its authority to be the sole judge on
controversies relating to the elections, returns and qualifications of elective offices. If
the commission commits a grave abuse of discretion in relation to the exercise of its
administrative powers, a petition based under Rule 64 need not be filed in the
Supreme Court. The petition may b e based on Rule 65 itself and not Rule 65 under
Rule 64.
20. A petition for relief under Rule 38 is availed of only if there is no more period for
appeal. The judgment here is already final and executory and the filing of the petition
will not prevent the execution of the judgment. Remedy: Avail of preliminary injunction
or a temporary restraining order to prevent the execution of the judgment. A petition
for relief is filed with the same court which rendered the judgment. The basis is
FAMEN. This petition is not a mode of appeal.
21. An action to annul a judgment of the MTC shall be filed Reminder: A non-party may
file this petition if he can allege and show that he has been prejudiced by the
judgment. What is essential is that the petitioner is one who can prove his allegation
that the judgment was obtained by the use of fraud and collusion, and that he was
affected thereby.
Although Sec. 2 of Rule 47 provides that a petition for annulment may be based only
on the grounds of extrinsic fraud and lack of jurisdiction, jurisprudence has
recognized denial of due process as an additional ground. The concept of lack of
jurisdiction does not include grave abuse of discretion amounting to lack of
jurisdiction which refers to a Rule 65 petition.
22. If the sheriff levies upon the property of a third person who is not a party to the
action, the third person aggrieved may file a terceria or a third party claim. This
consists of executing an affidavit of his title or right of possession. He serves the
affidavit upon the sheriff making the levy with a copy served upon the judgment
creditor. When this is done, the sheriff shall not be obliged to keep the property. The
judgment creditor may, however, defeat the terceria by posting a bond to indemnify
whatever damage may be suffered by the third-party claimant. To protect his rights,
the third-party claimant may file a suit for injunction or damages or both against the
sheriff in any proper court. The order of the court enjoining the sheriff from levying
upon the property of the third party claimant shall not be deemed to be an interference
with the powers of the court which issued the writ of execution. Reason: the injunction
is not directed against another court of equal jurisdiction but against the sheriff.
A third-party claim is not a third-party complaint. The latter is a pleading filed to bring
into the action someone who is not yet a party.
23. A person who refuses to obey the order of the sheriff to vacate the property subject of
the action cannot be held in contempt of court. The remedy of the sheriff, after there is
a failure to vacate within the 3-working day period granted the judgment debtor, is to
oust the occupant with the assistance of peace officers. However, if after the judgment
debtor is dispossessed of the property but returns to it or induces someone to do so,
indirect contempt may now lie.
22

24. If the sheriff finds no leviable property of the judgment debtor, the judgment creditor
may obtain an order from the court requiring the judgment debtor to appear before the
court or a commissioner appointed by it and be examined as to the whereabouts of his
property. The order may also require the debtors of the judgment debtor to appear.
25. If the real property of the judgment debtor is sold on execution, all rents, earnings and
income derived from the property pending redemption shall belong to the judgment
obligor until the expiration of the period of redemption.
26. Res judicata has two aspects: (a) bar by a prior judgment( the case is barred) ; and (b)
conclusiveness of judgment (issues decided can no longer be relitigated). A dismissal of
the case on the ground of forum shopping does not constitute res judicata. The
dismissal of a case is not based on a judgment on the merits.
27. Execution pending appeal is not the general rule because if the case is on appeal, the
judgment is not yet final and executor. It is also premature to have a judgment
executed before the lapse of the period for appeal. The order of execution may the
object of a petition for certiorari. Exception: The doctrine of discretionary execution.
Here, the court, upon motion, may allow execution of a judgment before its having
become executory if there are good reasons to be stated in its special order. If on
appeal, the executed judgment is reversed, the proper restitution has to be made.
28. A writ of preliminary attachment may be issued ex parte and even before acquiring
jurisdiction over the person of the defendant. However, when the writ is to be
implemented, jurisdiction over his person is required. Hence, the enforcement of the
writ must be preceded by or simultaneously with the service of summons and the writ.
When the action is in rem or quasi in rem, the prior or contemporaneous service over
the person is not required. It is not also required if the defendant could not be served
personally or by substituted service or is outside the Philippines or a non-resident.
To secure a writ of preliminary attachment, an application must be made stating the

grounds relied upon. An attachment bond must be posted by the applicant. The writ
of attachment may also be dissolved or discharged by giving a counter-bond. A third
party claim may also be filed if the sheriff attaches property owned by a third person.
NOTE: Property already in custodia legis may be attached. In this case, a copy of the
writ of attachment shall be filed with the proper court, and notice of the attachment
shall be served upon the custodian of the property.
The cases justifying attachment are those where the defendant has committed some
form of fraud, or deceit against the applicant or when the defendant is disposing of his
property to defraud his creditor. Hence, the mere non-payment of a debt is not a
ground for a preliminary attachment. Neither is the insolvency of the debtor. Fraud or
deceit is not required for preliminary attachment if the purpose of the attachment is to
acquire jurisdiction over the res where the defendant does not reside and is outside of
the Philippines.
A writ of preliminary injunction cannot be issued without a hearing. What may be

issued ex parte is a temporary restraining order if justified by extreme urgency or if its
non-issuance would cause irreparable injury to the applicant. The TRO issued shall
not exceed 20 days from service if issued by the RTC and cannot be extended or
renewed on the same ground for which it was issued. The TRO becomes without effect
automatically after the 20-day period without need for any judicial declaration to that
effect. Within the 20-day period, the court shall determine whether or not a
preliminary injunction is to be issued. If not issued, then the TRO expires. In a multi-
sala court, the TRO, if it is predicated upon extreme urgency, shall be issued by the
executive judge and which shall initially be effective only for 72 hours from issuance.
This period is included in the 20-day lifetime of the TRO.
A TRO issued by the Court of Appeals shall be effective for 60 days from service. A
TRO issued by the Supreme Court shall be effective until further orders.
23

To be entitled to a writ of preliminary injunction, one must show a clear and
unmistakable right to the writ because of a material and substantial invasion of that
right. It must also be shown that there is no other remedy to prevent such invasion
and that there is an urgent need to prevent injury to the applicant.
Preliminary injunction is available in forcible entry and unlawful detainer to restore

the plaintiff in his possession. It is also available when a petition for certiorari under
Rule 65 is filed because the filing of the petition does not interrupt the course of the
proceedings of the court which is the respondent in the petition. A preliminary
injunction or a TRO will interrupt the proceedings of the court below.
Note: No court, except the SC, can issue injunctions to stop or prevent the
implementation of government infrastructure projects. The ‘government’, according to
the SC, refers to the national government.
29. An application for a writ of replevin must show by affidavit that he has a right to the
personal property, its market value indicated, and state that the adverse party is
wrongfully detaining the same. If the property subject of the application is under
custodia legis, distrained, under a tax assessment or a fine pursuant to law, or has
already been attached, the remedy of replevin shall not be available.
30. The bond in an application for replevin is double the value of the property as stated in
the affidavit.
31. Under Rule 70, the issue in unlawful detainer is physical or material possession. This
is also the issue in an action for forcible entry although, in the latter, there must be an
allegation of prior physical possession by the plaintiff.
In an action for unlawful detainer, it is not necessary for the plaintiff to allege that he
was in prior physical possession of the premises subject of the action. This is not
necessary because the plaintiff is not in prior possession. It is the defendant who
initially had lawful possession of the property but whose possession became unlawful
later.
32. In an unlawful detainer case, a demand to vacate is, as a rule, indispensable. The
demand must be made at least five (5) days, in case of buildings or fifteen (15) days in
case of land, before the filing of the action. EXCEPTIONS: (a) When it is stipulated that
a demand is no longer required; or (b) When the ground for the unlawful detainer suit
is expiration of the lease. Thus, where the ground for unlawful detainer is non-
payment of rentals or violation of the terms and conditions of the lease, demand is
required.
The demand to vacate must not be in the following tenor: “to pay or vacate”. It must
be “pay and vacate”. If the ground for ejectment is non-payment of rentals and there is
no demand to vacate, the action is not one for unlawful detainer but one for a
collection of a sum of money. The jurisdiction would then depend upon the amount of
the money sought to be collected. In forcible entry cases, no demand to vacate is, as a
rule, required.
If a judgment is rendered against the defendant in an unlawful detainer or forcible

entry case, execution shall issue immediately upon motion. Hence, such judgment is
immediately executor.
To prevent its immediate execution, an appeal should be perfected and the defendant
should file a sufficient supersedeas bond to pay the rents, damages and costs accruing
down to the time of the judgment appealed from. In addition, the defendant should
deposit, during the pendency of the appeal, the amount of rent due from time to time
or deposit the reasonable value of the use and occupation of the premises in the
absence of a contract. Where the judgment does not include payment of costs,
damages or rent, but only attorney’s fees, the bond is not required.
24

33. The MTC can determine an issue of ownership raised by way of defense. This defense
of ownership cannot deprive the MTC of jurisdiction over the case. This power of the
MTC in unlawful detainer or forcible entry cases to determine questions of ownership
is only for the purpose of determining the character of possession and in a situation
where the question of possession cannot be resolved without deciding the issue of
ownership. The court, in this case, cannot declare with finality who the true and lawful
owner is. The determination is only provisional or initial. It does not bar an action
involving title in another forum.
When the possession of the defendant is by mere tolerance of the owner, possession by
the defendant becomes illegal when demand to vacate is made. There is an implied
promise that he will vacate upon demand. This is a specie of an unlawful detainer
case.
34. A possessor deprived of his possession through forcible entry or unlawful detainer
may, within five (5) days from the filing of the complaint, present a motion in the
action for forcible entry or unlawful detainer for the issuance of a writ of preliminary
mandatory injunction to restore him in his possession. This motion shall be decided
within thirty (30) days from the filing thereof. After the lapse of one year from the
accrual of the cause of action, the party dispossessed may file an accion publiciana,
which is a plenary action to recover the right of possession. This is not a summary
action anymore. Jurisdiction over the action will depend upon the assessed value of
the property involved. If he wants to file an action to recover possession based on
ownership, he may also file an accion reivindicatoria.
May persons who are not parties to the unlawful detainer case be ejected from the
land subject of the case? YES. Although an action for ejectment is an action in
personam wherein the judgment is binding only upon the parties properly impleaded
and given the opportunity to be heard, the judgment becomes binding on anyone who
has not been impleaded if he or she is (a) a trespasser, a squatter or agent of the
defendant occupying the property; (b) a guest or occupant of the premises with the
permission of the defendant; (c) a transferee pendente lite; (d) a sublessee; (e) a co-
lessee, or (f) a member of the family, relative or privy of the defendant.
35. Under Rule 69, an action for partition is comprised of two phases: First, an order of
partition which determines whether a co-ownership and whether partition is proper;
second, a decision confirming the sketch or subdivision submitted by the parties or by
the commissioners appointed by the court, as the case may be. In other words, an
action for partition is at once an action for the declaration of the existence of a co-
ownership and then for the segregation and conveyance of a determinate portion of the
properties involved.
The first may end up with a declaration that a co-ownership does not exist so plaintiff
is not entitled to have a partition or that partition is legally prohibited. It may also end
up with a declaration that a co-ownership exists and so an accounting of rents and
profits received by the defendant is in order.
36. The foreclosure of mortgage in Rule 68 has reference to a judicial foreclosure. An

extrajudicial foreclosure is allowed only when there is a stipulation allowing
extrajudicial foreclosure through a special power of attorney authorizing such kind of
foreclosure. Without this stipulation or authorization, the foreclosure should be done
judicially.
37. Judicial foreclosure has three (3) stages: (a) the determination of the right to foreclose
and the ascertainment of the amount ;(b) the foreclosure sale and confirmation of the
sale; and the (c) recovery of the deficiency, if any. After the court determines the
amount due, it will order the debtor to pay the obligation within a period of not less
than 90 days nor more than 120 days from the entry of judgment. This is what is
commonly termed “equity of redemption”. In case the debtor fails to pay, the court will
order the foreclosure sale of the property. This sale will be confirmed but, prior to
confirmation, the debtor may still pay. This means that the “equity of redemption” is
25

virtually extended even after the sale but before its confirmation. Once confirmed, the
equity or redemption is cut off.
38. Upon the finality of the order of confirmation, the purchaser shall be entitled to the
possession of the property by securing a writ of possession, upon motion, from the
court which ordered the foreclosure.
If upon the sale of any real property, there is a balance due the plaintiff, after applying
the proceeds of the sale, the court, upon motion, shall render a deficiency judgment
for the plaintiff to recover the deficiency.
A deficiency judgment is available not only in judicial foreclosure of real estate

mortgage. It was held that it is also available in extrajudicial foreclosure of mortgage.
“While Act No 3135 as amended does not discuss the mortgagee’s right to recover the
deficiency, neither does it contain any provision expressly or impliedly prohibiting
recovery”.
39. In extrajudicial foreclosure, there is always a right of redemption to be exercised

within one (1) year from the registration of the same. Upon the expiration of the
redemption period, the obligor’s right to redeem is foreclosed (cut off) and the sale
becomes absolute. In judicial foreclosures, there is only an equity of redemption and
not a right of redemption. Exception: there is a right of redemption in judicial
foreclosures when the mortgagee is a bank.
40. A creditor cannot file an action against the debtor for collection of the debt and
subsequently file an action to foreclose the mortgage. This would be splitting a single
cause of action.
41. The notion that the government acquires unrestricted ownership or a fee simple over
the property expropriated is no longer tenable. The taking of a private land is always
conditioned on its continued devotion to its public purpose. Once the purpose is
terminated or peremptorily abandoned, then the former owner, if he so desires, may
seek its reversion subject of course to the return of the just compensation received.
The same rule applies if the government should devote the property to another public
use very much different from the original or deviates from the declared purpose to
benefit another private person.
42. In expropriation proceedings, the just compensation is to be determined as of the date

of the taking of the property or the filing of the complaint, whichever came first.
43. In expropriation proceedings for national government infrastructure projects, upon the
filing of the complaint for expropriation, in order to be entitled to a writ of possession
(right to enter the property subject of the action), the implementing agency shall
immediately pay the owner of the property 100% of the value of the property based on
the BIR zonal value and the value of the improvements and or structures on the
property. This is in contrast with Sec. 2 of Rule 67 which requires the government to
merely make an initial deposit equivalent to the assessed value of the property for
purposes of taxation.
44. The rule on immediate payment of the BIR zonal value of the property applies only
when the national government expropriates property for national infrastructure
projects. If the purpose is other than infrastructure projects, the assessed value
standard and the deposit mode prescribed in Rule 67 continues to apply.
Under Sec. 19 of the Local Government Code, the local government unit may
immediately take possession of the property upon the filing of the expropriation
proceedings and making a deposit with the proper court of at least 15% of the fair
market value of the property based on the current tax declaration of the property to be
expropriated.
45. The defendant in an expropriation proceeding is not allowed to file a motion to

dismiss. He must file an answer and in it raise all his available defenses against the
26

allegations in the complaint for expropriation. A defendant waives all his defenses and
objections not so alleged but failure to file an answer does not produce all the
disastrous consequences of default in ordinary civil actions because whether or not he
answers, he may still present evidence as to the amount of just compensation.
46. The expropriation process has two stages: The first is the determination of the
authority of the plaintiff to expropriate. This will end in an order of expropriation if the
court finds for the plaintiff. The second is the determination of just compensation by
commissioners appointed by the court. The court is not bound by the commissioners’
report which may accept or reject it in part or may set aside the report and appoint
new commissioners.
Each of the stages is appealable. The final order of the court in the first stage is
appealable but an appeal therefrom does not prevent the court from determining just
compensation and proceeding to the second stage. Even the judgment as to just
compensation is appealable because it is a judgment. However, the right of the plaintiff
to enter upon the property of the defendant and appropriate the same for public use
shall not be delayed by an appeal from the judgment.
47.A writ of kalikasan is available not only to a natural person. It may be filed even by
a juridical person, an entity authorized by law, a people’s organization, a non-
governmental organization, or any public interest group accredited by or registered
with any government agency. It may even be filed in behalf of other persons whose
constitutional right to a balanced and healthful ecology is violated, or threatened with
violation by an unlawful act or omission of any person, public official, employee or a
private individual or entity. It is necessary that the petitioner should show an
environmental damage to two or more cities or provinces. The petition shall be filed
with the SC or with any of the stations of the CA. The rule does not mention the RTC.
48.A petition for continuing mandamus is directed against an agency, instrumentality

or officer of the government which or who unlawfully neglects a duty enjoined by law
in connection with the enforcement of environmental laws. The petitioner seeks for a
judgment requiring the respondent to perform not just an act but a series of acts
(continuing acts) until the judgment of the court is fully satisfied. The petition may be
filed with the RTC having jurisdiction over the territory where the act or omission
occurred. It may also be filed with the CA or the SC.
-o0o-
27

REMINDERS IN CRIMINAL PROCEDURE
[Warrior Notes]
Jurisdiction in criminal cases
1. For a court to have jurisdiction over a particular criminal case, it must have (a)
jurisdiction over the subject matter which is the offense charged; (b) jurisdiction over
the person of the accused; and (c) jurisdiction over the territory.
2. Jurisdiction over the person of the accused is acquired either by his arrest or his
voluntary submission to the jurisdiction of the court. Jurisdiction over the territory is
acquired by filing the action in the territorial jurisdiction of the court where the
offense or any of its essential ingredients was committed.
3. Jurisdiction is not determined by the law in force at the time of the commission of the
offense. It is not determined by the law in force at the time of arraignment. It is
determined by the law in force at the time of the institution of the criminal action.
4. What is determinative of the jurisdiction of the court is the imposable penalty and not
the penalty actually imposed after the trial.
5. The MTC has exclusive original jurisdiction over all violations of city or municipal
ordinances committed within their respective territorial jurisdictions. The MTC also
has exclusive original jurisdiction over offenses involving damage to property through
criminal negligence.
6. The MTC has exclusive original jurisdiction over all offenses punishable with
imprisonment not exceeding six (6) years. This jurisdiction considers only the
imposable imprisonment. Do not consider the fine, imposable accessory penalties and
the civil liability arising from the offense. This jurisdiction is qualified by the phrase
“Except in cases falling within the original jurisdiction of Regional Trial Courts and of
the Sandiganbayan”. This means that the MTC shall not, in certain cases, have
jurisdiction over certain offenses even if they carry an imposable penalty of not more
than six (6) years.
Examples: (a) Under Art. 355 of the Revised Penal Code, libel by means of writing or
similar means (written defamation) is punishable only by prision correccional in its
minimum and medium periods, hence, less than six (6) years. However, under Article
360 of the same Code, the criminal action and the civil action for damages, whether
filed simultaneously or separately, are to be filed in the CFI (RTC). (b) Certain forms of
bribery in Arts. 210(2nd par.) and Art. 211 of the Revised Penal Code are punishable
by imprisonment not exceeding six (6) years. Nevertheless, the jurisdiction over such
offenses falls under the jurisdiction of the Sandiganbayan and not of the MTC.
7. The MTC shall also have exclusive original jurisdiction over the following cases
subject to summary procedure: (a) violations of traffic laws, rules and regulations; (b)
violations of the rental law; (c) violations of municipal or city ordinances; (d) violations
of BP 22 (Bouncing Checks Law); (e) all other criminal cases where the penalty
prescribed by law for the offense charged is imprisonment not exceeding six (6)
months or a fine not exceeding one thousand pesos (P1,000.00); and (f) offenses
involving damage to property through criminal negligence where the imposable fine
does not exceed ten thousand pesos (P10,000.00).
8. Where the criminal case is not within the exclusive original jurisdiction of any court,
tribunal or body, the RTC shall exercise exclusive original jurisdiction. The RTC
exercises appellate jurisdiction over all cases decided by the MTC within its respective
jurisdiction.

9. The Sandiganbayan has exclusive original jurisdiction over violations of the Anti-graft
and Corrupt Practices Act (R.A. 3019), R.A. 1379 (The Law for Forfeiture of Unlawfully
Acquired Property), violations of Arts. 210-212 of the Revised Penal Code and other
offenses or felonies committed by public officials and employees in relation to their
office. Also, all cases, whether civil or criminal, filed by the PCGG under Executive
Orders No. 1, 2, 14 and 14-A (1986) shall also be within the exclusive original
jurisdiction of the Sandiganbayan.
An offense committed “in relation to the office” does not require public office as an
element. If the information contains specific factual allegations that would disclose
the close intimacy between the discharge of the official duties of the accused and the
commission of the offense charged, then the offense is deemed committed in relation
to the office. If public office is an element of the offense, such specific allegations need
not be made. Thus, in one case, the offense of acts of lasciviousness was considered
as committed in relation to the office because of averments that the offense could not
have been committed had it not been for the public position held by the accused. It
was also held that while public office is not an element in murder, the averments in
the information that the offense was committed in the course of the discharge of a
public office, sufficiently alleged the close intimacy between the office and the
commission of the crime.
Under R.A. 7975, the Sandiganbayan had jurisdiction over certain offenses “where
one or more of the principal accused” are officials occupying certain position
enumerated in the law. This law reflected the old rule. As the law is now written
under R.A. 8249, one of the accused no longer has to be a principal accused. It is
enough that one or more of the accused is/are official/s occupying the positions so
enumerated. Such accused may be an accomplice or a mere accessory for the case to
fall under the jurisdiction of the Sandiganbayan.
The Sandiganbayan has jurisdiction over offenses committed by private individuals if

he acts in conspiracy with public officers subject to Sandiganbayan jurisdiction. It
was ruled, in a fairly recent case, that the death of the government official, alleged to
have conspired with a private individual, does not affect the jurisdiction of the court
over the private individual because conspiracy is not extinguished by death. The
private person may be charged alone despite the death of the official.
Officials having a salary grade of ‘27” are not the only ones covered by the jurisdiction
of the Sandiganbayan. Sometimes, even persons with a lesser salary grade are
covered. The said salary grade has no reference to certain positions like provincial
governors, vice governors, members of the sangguniang panlalawigan, city mayors,
city vice mayors, members of the sangguniang panglungsod, directors and trustees of
state universities, directors or trustess or managers of government-owned or
controlled corporations, city and provincial prosecutors and their assistants, among
others. Even a student regent of a state university, who receives no salary and does
not fall under any salary grade, is under the jurisdiction of the Sandiganbayan. The
same holds true to a member of the Sangguniang Panglunsod with a salary grade
below “27”.
Miscellaneous principles
1. Generally, mandamus will not lie to compel the prosecutor to prosecute an offense
because the duty involves the exercise of discretion and mandamus is not a remedy to
compel the exercise of discretion. If, however, he refuses to charge one who clearly
and obviously appears to be responsible for a crime, the duty loses its discretionary
character and it becomes mandatory. The prosecutor now is said to be legally
compelled to prosecute, and he will be deemed to be gravely abusing his discretion if
he deliberately refuses to perform a duty enjoined by law. Mandamus will now lie
against the prosecutor.
Injunction, as a rule, will not be available to restrain a criminal prosecution. Reason:

Public interest requires that criminal acts be immediately investigated and
2

prosecuted. This is, however, only a general rule. Some exceptions: (a) where the
prosecution is under an invalid law; (b) when double jeopardy is clearly apparent; (c)
where the court has no jurisdiction over the offense; (d) when clearly, there is no
prima facie or probable cause to charge the accused; (e) where the prosecution is
under an invalid law; (f) when there is a prejudicial question that is sub-judice.
2. The institution of the criminal action shall interrupt the period of prescription of the
offense charged. The interruption applies even when filed with the proper officer for
purposes of preliminary investigation because it is one mode of instituting a criminal
action. Under current jurisprudence, there is no more distinction between offenses
punishable by the RPC and special laws with respect to the interruption of the period
of prescription. Even the filing of the criminal complaint in the Office of the
Ombudsman effectively interrupts the running of the prescriptive period. The period
is interrupted even if initially filed in a court without jurisdiction.
3. The institution of a criminal action depends on whether or not the offense requires a
preliminary investigation. The critical question to be resolved in order to ascertain
how a criminal action is instituted is: Does the offense require a preliminary
investigation? For offenses where a preliminary investigation is required (because the
penalty prescribed for the offense is at least 4 years, 2 months and 1 day), the
criminal action shall be instituted by filing the complaint with the proper officer for
the purpose of conducting the requisite preliminary investigation. The officers referred
to are the various prosecutors in Sec. 2 of Rule 112 and also those officers authorized
by law. MTC judges are no longer allowed to conduct a preliminary investigation as of
October 3, 2005.
4. Where the penalty imposed is less than 4 years, 2 months and 1 day, no preliminary
investigation is required. Hence, the criminal action shall be instituted by filing the
complaint or information with the MTC or by filing the complaint with the office of the
prosecutor. The purpose of the filing is not for preliminary investigation because no
preliminary investigation is required. NOTE: In Manila and other chartered cities, the
complaint shall be filed with the office of the prosecutor, unless otherwise provided in
their charters.
If filed directly with the MTC, the procedure in Sec. 3(a) of Rule 112 shall apply. This
means that the court will consider only the evidence of the complainant and no
preliminary investigation shall be conducted. However, the court is mandated to
personally evaluate the evidence of the complainant within 10 days from the filing of
the complaint or information. If after so doing, the court finds no probable cause,
then the court shall dismiss the same. The court may also, at its option, personally
examine in writing and under oath the complainant and his witnesses in the form of
searching questions and answers. This option is granted to the court because no
preliminary investigation previously took place. If, despite this examination, no
probable cause is found, then the court shall dismiss the complaint or information.
The court may even require additional evidence, and if no probable cause still exists
despite the additional evidence submitted, then a dismissal shall likewise follow.
5. All criminal actions commenced by a complaint or information shall be prosecuted

under the control and direction of the public prosecutor. This is true even if a private
prosecutor participates in the prosecution of the action. He is subject to the control
and direction of the public prosecutor. Exception: If the private prosecutor is properly
authorized in writing by the Chief of the Prosecution Office or Regional State
Prosecutor with the approval of the court.
Since it is the public prosecutor who has control of the prosecution of the criminal
action, no motion may be filed by the private prosecutor or even by the offended party
without the approval of the public prosecutor. It is also he who ultimately decides
which evidence to offer. He also decides who shall testify for the prosecution. Any
evidence offered without the approval of the public prosecutor is not deemed an
evidence of the People. Also, it is the public prosecutor who is legally entitled to
notices to the prosecution and notice to the public prosecutor is deemed notice to the
private prosecutor.
3

6. A private prosecutor may participate in the prosecution of the criminal action where
the civil action for recovery of the civil liability is also instituted in the criminal action.
In other words, for the offended party to intervene in the prosecution of the offense
(through a private prosecutor), the civil aspect must not have been waived, reserved
or filed ahead of the criminal action. In other words, where the civil aspect of the
offense is not present, the offended party is not allowed to intervene in the case.
Note: If the offense is one which gives rise to an independent civil action (like one
involving physical injuries under Art. 33 of the Civil Code), the filing of the
independent civil action for damages does not deprive the offended party of the right
to intervene in the criminal case for physical injuries because still impliedly instituted
with it, is the civil action for the recovery of damages arising from the offense charge.
Hence, there is still a civil action which could be the basis for the intervention of the
offended party. The independent civil action when filed proceeds independently of the
criminal action and does not refer to the civil action to recover the civil liability arising
from the offense charged. The independent civil action proceeds not from the offense
but some other source of obligation.
7. The crimes of adultery and concubinage cannot be prosecuted through an

information but upon a complaint filed by the offended party. One case allowed the
filing of an information when the aggrieved husband died before an information was
filed for adultery. However, attached to the information was the husband’s complaint
affidavit.
A foreigner who divorced his Filipina wife abroad, cannot file an adultery case against
his Filipina wife after finding her living with another man in the Philippines. The
foreigner can no longer be deemed an offended spouse because the divorce decree
terminated his marriage. The rule should not be made to apply if both are Filipinos.
The complaint must include both guilty parties, if both are alive. The criminal action
for adultery and concubinage cannot be instituted if the offended party has consented
to the offense or has pardoned the offenders. Since the rule makes no distinction, the
consent or pardon may be expressed or implied. This is in contrast with the
prosecution of seduction, abduction and acts of lasciviousness which cannot be
brought if the offender has been expressly pardoned by the person entitled to bring
the action.
The crimes of seduction, abduction and acts of lasciviousness shall be prosecuted

only through a complaint, not through an information. The offended party’s minority
does not preclude her from filing the complaint but where the offended party, who is a
minor, fails to file the complaint, her parents (either of them), grandparents or
guardians, in that successive order, can file the complaint. The same rule applies if
the offended party dies or becomes incapacitated before she could file the complaint
(Sec. 5, Rule 110, Rules of Court). In the latter case, the State may even file the
complaint, if the offended party has no known parents, grandparents or guardian.
8. The complaint or information must specify the qualifying and aggravating

circumstances. Even if proven during the trial, such circumstances cannot be
appreciated if not alleged in the information or complaint. Hence, the use of a deadly
weapon cannot be considered by the court in its judgment if such circumstance was
not alleged in the information and even if proved without objection by the accused.
Also, the failure of the information to allege the qualifying circumstance of
relationship precludes a finding of qualified rape against the accused because Sec. 8
of Rule 10 expressly requires that qualifying and aggravating circumstances be
specifically alleged in the information. To consider a circumstance not alleged in the
information is to violate the right of the accused to be informed of the cause and
nature of the accusation against him. Also, an accused cannot be convicted by an
offense higher than that alleged in the information. Note: Any matter not alleged in
the information cannot be used against the accused.
9. A complaint or an information must charge only one offense, except when the law
prescribes a single punishment for various offenses. A complaint or information is
4

duplicitous if it charges two or more different offenses for which the law does not
prescribe a single penalty. When a single punishment is prescribed for two or more
offenses, such offenses may be contained in a single information. Examples: (a) The
complex and compound crimes under Article 48 of the Revised Penal Code; (b) The
special complex crimes in the Revised Penal Code like robbery with homicide or
robbery with rape. When a single act of throwing a hand grenade results in the killing
of three persons, the accused may be charged under a single information pursuant to
Art. 48 of the RPC.
When the accused is charged for violation of two different sections of the same law,
and each violation carries with it a distinct penalty, the two violations cannot be
joined in one information. Three separate rapes by the accused against the same
victim cannot be charged in one information. There must be separate informations.
When murder or homicide is committed with the use of an illegally possessed firearm,
the illegal possession is not a separate offense. The possession is considered an
aggravating circumstance. In rebellion, the illegal possession of firearm is absorbed.
In killing by the use of firearms, the killing of two persons with a single bullet is to be
made the subject of a single information. It is a single act resulting in two grave
felonies. The killing of two persons by separate bullets should be the subject of
separate informations. The killing of five persons with separate bullets by the use of
an automatic weapon that fires rapidly with the single pressing of the trigger, should
also be contained in separate informations.
The accused must object to a duplicitous information or complaint. If he fails to

object before trial, the court may convict him for as many offenses as are charged and
proved, and impose upon him the penalty for each offense. Duplicity of offenses in the
information is a ground for a motion to quash. Failure to invoke the objection is
deemed a waiver. In one case, the accused was convicted of three crimes of
kidnapping alleged in the information and proved at the trial because he failed to
object to the duplicity of the charges.
10. It is not necessary to state in the complaint or information the precise date of the
commission of the offense. An approximation of the date which is as near as possible
to the actual date of its commission is sufficient. Exception: When the date is a
material ingredient of the offense as in infanticide wherein the victim must be less
than three days old.
An information is considered sufficient if it states the approximate time of the

commission of the offense through the words, “on or about the 2nd of January 1996.”
It was held that an allegation that the crime was committed “on or about January 20,
1950” allows evidence to show that the offense was committed on the 5th or 6th of
March of the same year. An allegation that the accused committed rape “between
August 1910 and August 1912” is too indefinite and prejudicial to the accused.
11. When an offense is committed in the course of a trip of a public or private vehicle, the
criminal action shall be instituted and tried in the court of any municipality or
territory where said vehicle passed during its trip. This place includes the place of
departure and arrival.
12. The place of departure and arrival is not included where the crime was committed on
board a vessel in the course of its voyage. Here, the criminal action shall be instituted
and tried in the court of the first port of entry or of the municipality or territory where
the vessel passed during the voyage.
13. Libel or defamation by means of writing may be instituted and tried in the place
where the defamatory article was printed and first published whether the offended
party is a public officer or a private person. If the offended party is a public officer, the
additional venue is the place where he held office at the time of the commission of the
crime. If the offended party is a private person, the additional venue is the place
where he resided at the time of the commission of the offense.

Traditional jurisprudence holds that a BP 22 case shall be filed in either of the
following places: where the check was drawn, issued or delivered OR where it was
dishonored. A case holding that the place of deposit may be considered, is not the
general rule. However, it may be considered if it was also the place of dishonor.
Kidnapping is a continuing offense. It may be tried in any place where the offended
party was brought. Bigamy should be filed where the second wedding took place.
Where a cow was stolen in a town in Pampanga but recovered in a town in Nueva
Ecija, the action should be instituted in Pampanga where the offense was committed.
Where a car was carnapped in Manila but recovered in Quezon City, Manila is the
proper place.
A criminal action for malversation or estafa shall be filed in the place where the
misappropriation was committed or where the accused was supposed to render an
accounting of the funds or property; in falsification of documents, where the
document was falsified; in perjury committed through the making of a false affidavit,
where the perjured affidavit was subscribed and sworn per Union Bank case, 667
SCRA 113, 134, February 28, 2012. Us v. Cañet, 30 Phil. 371 was not followed; in
false testimony, where the testimony under oath was given.
Note: Where the offense was instituted and tried in the wrong place, the error is
jurisdictional. Reason: Venue in a criminal case is jurisdictional. The motion to quash
is based on lack of jurisdiction.
In crimes against property, the property must be described with such particularity, if
the name of the offended party is unknown. This is necessary to identify the offense
charged. Hence, prosecution for a crime against property can be made even if the
offended party is unknown as long as the property is properly described. A property
can only be specific described if it is determinate.
If the subject matter of the offense is generic and not identifiable, such as money
unlawfully taken, it cannot be particularly described. Here, the offended party must
be identified. An error in the designation of the offended party is fatal and would
result in the acquittal of the accused. However, if the subject matter of the offense is
specific and identifiable, an error in the designation of the offended party is
immaterial. In one case, the jewelry subject of the offense had a specific designation.
Hence, the error in the designation of the offended party in the information is
immaterial and did not violate the constitutional right of the accused to be informed
of the nature and cause of accusation.
In robbery with homicide, the name of the person robbed is an essential element of
the offense charged. In defamation cases, the identity of the person alleged to have
been defamed is also a material element.
14. An error in designating the name of the accused does not render the information
invalid as long as his identity is sufficiently established. The accused should raise the
error in his name before entering his plea. He may even file a motion to quash for lack
of jurisdiction over his person. If he fails to do so and participates in the trial under a
wrong name, the judgment of conviction is not void.
15. An amendment of the complaint or information may be made even without leave of
court provided the amendment is made before the accused enters his plea. The
amendment in this case may be in both form and in substance. After the plea and
during the trial, only a formal amendment may be made and this requires leave of
court. A substantial amendment is not allowed.
16. However, in some cases, even before the accused enters his plea, leave of court would
be necessary if the amendment (a) downgrades the nature of the offense (murder to
homicide), or (b) excludes any of the accused from the complaint or information. In
these cases, the amendment can be made only upon motion by the prosecutor with
notice to the offended party. Hence, if the amendment before plea upgrades the
offense or includes an additional accused, there is no need for leave of court.
6

Where the amendment is as to form, there is no need for a preliminary investigation
and no need to retake the plea of the accused.
The famous case of Teehankee v. Madayag, G.R. No. 103102, March 6, 1992, gives us
an idea on what the SC considers as formal or substantial amendment. Here, the
accused pleaded not guilty to frustrated murder. Later, the victim died of the same
injuries. When the court ordered the amendment of the information from frustrated
murder to murder, the accused contended that the same is a substantial amendment
which cannot be done and which requires another preliminary investigation. The
Court ruled that the amendment was merely a formal one. The SC held that
frustrated murder is but a stage in the execution of the crime of murder. Except for
the death of the victim, the essential elements of murder, likewise, constitute the
essential ingredients to convict the accused for frustrated murder. What is involved is
not different offenses but only a change in the stage of execution from frustrated to
consummated murder. This is not a case of substitution but only amendment.
(a) The insertion of the real name of the accused is merely a formal amendment since
it did not deprive the accused of a fair opportunity to present his evidence. (b) The
inclusion of an additional accused with the allegation that the additional accused
acted in conspiracy with the original accused, is only an amendment in form; there
was no change in the prosecution’s theory that the original accused shot the victims.
The additional allegation of conspiracy is only a formal amendment where the
participation of the accused as a principal is not affected by the amendment. (c) Note,
however, the ruling in an early case: Here, the accused was charged with homicide.
After he had entered a not guilty plea, the prosecution filed a motion for leave to
amend the information to murder qualified by treachery and evident premeditation. It
was ruled that to amend the information, so as to change the crime charged from
homicide to the more serious offense of murder after the petitioner had pleaded not
guilty to the former, is indubitably prohibited. A change from homicide to murder is
not a matter of form; it was ruled that that the amendment is one of substance with
very serious consequences. (d) In one case, the accused was arraigned for robbery.
The prosecution sought to amend the information from robbery to robbery in an
uninhabited place. The Court considered the amendment as substantial because it
exposed the accused to a higher penalty.
17. A substitution presupposes a mistake in charging the proper offense and necessarily
involves a substantial change from the original charge. Example: Estafa to robbery.
Also, unlike an amendment may be made with or without leave of court, a
substitution always requires a preliminary investigation and the accused has to plead
anew to the information.
18. When a criminal action is instituted, the civil action for the recovery of the civil
liability arising from the offense charged shall be deemed instituted with the criminal
action. The civil action for the recovery of civil liability that is impliedly instituted
with the criminal action refers only to the civil liability arising from the offense
charged. The rule on implied institution does not apply to civil actions arising from
independent civil actions under Arts. 32, 33, 34 and 2176 of the Civil Code. The
independent civil actions are not deemed impliedly instituted with the criminal action.
Actions based on such provisions proceed independently of the criminal action.
Hence, if a person is charged with homicide through reckless imprudence, impliedly
instituted with the criminal action is the civil action which attaches to the criminal
action. However, there is another civil liability arising from Art. 33 because the
offense actually resulted in physical injuries. An independent civil action for damages
based on Art. 33 may also be filed. It will proceed independently of the criminal action
even if such criminal action already has its own civil aspect. The filing of the
independent civil action need not be reserved. Also, the death of the offended party
will not affect the prosecution of the independent civil action. Even the acquittal of the
accused for whatever reason will not affect the independent civil action. In other
words, it will proceed independently of the criminal case and regardless of what
transpires in the said criminal case. R4ason: An independent civil action does not
draw its existence from the criminal action.
7

19. The criminal action for violation of BP 22 shall be deemed to include the
corresponding civil action. No reservation to file such civil action separately shall be
allowed. There is no independent civil action to recover the value of a bouncing check.
The civil aspect of BP 22 may be separated from the criminal action only when the
civil aspect is filed ahead of the criminal action. If filed ahead, there may be a
consolidation upon application with the court trying the criminal case.
20. After the criminal action has been commenced, the separate civil action arising
therefrom cannot be instituted until final judgment has been entered in the criminal
action. If the criminal action has been filed after the civil action has already been
instituted, such civil action shall be suspended in whatever stage it may be found
before judgment on the merits. The suspension shall last until final judgment in the
criminal action. Exceptions: when there is a prejudicial question or when the civil
action is an independent civil action, the civil action is not to be suspended. It shall
proceed independently of the criminal action.
21. In case there is a prejudicial question, it is the criminal action which shall be
suspended until the prejudicial question is resolved. When there is an independent
civil action filed, the same shall proceed independently of the criminal action.
22. To be a prejudicial question, the actions must be civil and criminal and it is necessary
that the civil action be previously instituted and the criminal action subsequently
instituted. It cannot be the reverse. The issues in both actions must be similar or
intimately related and that the resolution of such issue determines whether or not the
criminal action may proceed.
The accused may still be charged with the crime of bigamy, even if there is a
subsequent declaration of the nullity of the second marriage, so long as the first
marriage was still subsisting when the second marriage was celebrated. The
declaration of nullity is immaterial because prior to such declaration, the crime had
already been consummated. The claim of a prejudicial question in this case is not
proper. Also, a previously instituted civil case will not pose a prejudicial question to a
BP 22 case. Whatever the civil action is, the elements of BP 22 are not the same as
the elements of a civil case. A legal separation case does not pose a prejudicial
question to a concubinage or adultery case. The elements are not identical.
In intra-corporate cases, a civil case questioning the election of the new set of
corporate officers may be give rise to a prejudicial question. Example: The previous
president filed an action questioning the validity of the election of the new members of
the board including the election of the new president. During the pendency of the
case, the new president demanded from the previous president the return of the
company cars issued to him and the corporate funds in his custody. When no return
was made, he was sued for estafa. There is a prejudicial question involved in the
previously filed civil case because estafa of this nature requires a demand. If the new
officer making the demand has not been validly elected, then there was no valid
demand. Hence, there is no estafa. The civil case, therefore, must first be resolved and
the criminal action cannot proceed without resolving the issue of validity of the
election raised in the civil case.
A previously instituted administrative case does not pose a prejudicial question to a

subsequent criminal case. This is because the administrative case is not a civil case.
Remember that the rule requires a previously instituted civil case. Exception: When
the civil case is by its very nature, civil. Example: An action for specific performance
to deliver titles to subdivision lots was filed with the HLURB, an administrative body.
Then immediately after, a criminal case for non-delivery of titles was filed against the
officers of the subdivision developer. The accused officers defended in the HLURB
case that the titles were not delivered because the officer who signed the deed of sale
in behalf of the developer was not an authorized officer. The criminal case may be
suspended on the basis of a prejudicial question. The administrative case for specific
performance is technically a civil case although fiiled before an administrative body
because a regular court has no jurisdiction over the action. If in the HLURB case, it

is found that the failure to deliver the titles was justified, the criminal case cannot be
sustained.
Independent civil actions provided for in Articles 32, 33, 34 and 2176 of the Civil
Code do not raise a prejudicial question to suspend or stop the proceedings in a
criminal case. This is because the result of the independent civil action is irrelevant to
the issue of guilt or innocence of the accused.
When there is a prejudicial question, the preliminary investigation or the criminal

action is suspended upon motion. There is no dismissal. Only suspension.
23. If the accused dies after arraignment and during the pendency of the criminal action,
the criminal action is extinguished. The civil liability of the accused arising from the
crime is also extinguished. What is extinguished is the civil liability arising from the
crime but the civil liability arising from an independent civil action is not extinguished
and which may be enforced against the estate or legal representative after a proper
substitution of the deceased.
If the accused dies before arraignment, the criminal liability is also extinguished.
Hence, the case shall be dismissed. However, any civil action which may be filed
against the estate of the deceased may be pursued. This civil action obviously refers
to a civil liability not arising from the offense charged like an independent civil action.
24. The acquittal of the accused in the criminal action does not necessarily bar the civil
action because the extinction of the criminal liability does not carry with it the
extinction of the civil action. Hence, if the acquittal is based on reasonable doubt, a
civil action is not barred because the civil action shall require only a preponderance of
evidence. The civil action is not also barred where the court itself, in its judgment,
declares that the liability of the accused is only civil even if he is acquitted in the
criminal case. However, where the acquittal is based on a finding that there was no
crime at all or that the accused did not commit the crime, the acquittal will bar the
civil action because in this case it is said that “the act or omission from which the
civil liability may arise did not exist”. In other words, there can be no civil liability
arising from an offense where the court declares that there is no offense or no
offender. Reminder: Always look at the nature of the acquittal. Independent civil
actions are not affected by the acquittal. Even death of the accused does not affect
independent civil actions.
25. A preliminary investigation is a mere inquiry or a proceeding. It is not, therefore, a

trial and so does not involve the examination of witnesses by way of direct or cross-
examinations. Its purpose is not to declare the respondent guilty beyond reasonable
doubt but only to determine first, whether or not a crime has been committed and
second, whether or not the respondent is “probably guilty” of the crime. The question
to be answered in a preliminary investigation is not: “Is the respondent guilty or is he
innocent?” More accurately, the question sought to be answered is: “Is the respondent
probably guilty and therefore, should go to trial?” Note: Absence of a preliminary
investigation (or if there were irregularities in the investigation) does not affect the
jurisdiction of the court. It is not even a ground for a motion to quash. If no
preliminary investigation was conducted, where required, bring the matter up before
entering the plea and ask for an order for a preliminary investigation or
reinvestigation from the court where the criminal action was filed. The posting of a
bail bond does not deprive the accused of the right to question the absence of
preliminary investigation or the irregularities therein.
A preliminary investigation is required where the penalty prescribed by law is at least

4 years, 2 months and 1 day. Exception: If a person is lawfully arrested, the
complaint or information may be filed without a preliminary investigation even if the
imposable penalty for the offense is one which requires a preliminary investigation.
What will be conducted instead is an inquest. However, before the filing of the
complaint or information, the person arrested may ask for a preliminary investigation
but he must sign a waiver of the provisions of Art. 125 of the RPC, with the assistance
of an independent and competent counsel.
9

26. Reminder: Probable cause in a preliminary investigation may be based on hearsay
evidence. Reason: It is not a trial. However, hearsay evidence cannot be the basis of a
conviction.
The inquest presupposes that there is an inquest prosecutor available. In the absence
or unavailability of an inquest prosecutor, the complaint may be filed by the offended
party or a peace officer directly with the proper court on the basis of the affidavit of
the offended party or arresting officer or person.
Note: The inquest should pertain only to the offense for which the accused was
arrested lawfully without a warrant. The inquest cannot extend to another offense
which was not the reason for the warrantless arrest. If the person was arrested and
subject to inquest because of sedition, he cannot be subjected to an inquest for
rebellion or any other crime.
27. Despite the waiver above, the person arrested may apply for bail but the bail shall be
obtained in the court of the province, city or municipality where he is held. Hence, if
the accused is detained in Quezon City, a Marikina court cannot issue the bail.
If the complaint or information has already been filed without a preliminary

investigation, the accused, may, within 5 days from the time he learns of the filing,
ask for a preliminary investigation.
Reminder: A municipal trial court judge can no longer conduct a preliminary

investigation as of October 3, 2005. Under current rules, the preliminary investigation
shall be conducted by the (a) provincial, city prosecutors and their assistants, (b)
national and regional state prosecutors, and (c) other officers as may be authorized by
law (A.M. No. 05-8-26-SC).
28. In a preliminary investigation, the respondent cannot file a motion to dismiss. He

must file his counter-affidavit. If he cannot be subpoenaed, or if subpoenaed, he does
not submit counter-affidavits, the complaint shall be resolved on the basis of the
evidence submitted by the complainant. If the investigating prosecutor finds cause to
hold the respondent for trial, he shall prepare both the resolution and the
information. The information shall contain a certification under oath that the
prosecutor has complied with the requisites for preliminary investigation. It has been
held that the absence of this certification does not affect the validity of the
information, the same not being an essential part of the information.
29. Within 10 days from the filing of the complaint or information, the judge shall
personally evaluate the resolution of the prosecutor and its supporting evidence. The
judge may immediately dismiss the case for failure to establish probable cause. The
court may, if necessary, require additional evidence from the prosecutor but it will not
conduct a personal examination of the complainant and his witnesses. Reason: There
was already a previous preliminary investigation.
If there is probable cause, a warrant of arrest shall be issued or a commitment order

if the accused has already been arrested. The determination of the judge of the
existence of probable cause to determine the propriety for the issuance of a warrant of
arrest is usually called a preliminary examination, not a preliminary investigation. The
latter is the inquiry conducted by the investigating prosecutor. NOTE: The order of
the court, dismissing a case for lack of probable cause, is a “final order since it
disposes of the case, terminates the proceedings, and leaves the court with nothing
further to do with respect to the case” (Cajipe v. People, G.R. No. 203605, April 23,
2014). Since it is a final order, the remedy against the order of dismissal is appeal,
not certiorari.
30. A preliminary investigation is not a preliminary examination. A preliminary

investigation is an executive function and is conducted by the prosecutor to ascertain
whether the alleged offender should be held for trial, to be subjected to the expense,
rigors and embarrassment of trial or if the offender is to be released. A preliminary
10

inquiry or a preliminary examination is conducted by the judge to determine probable
cause for the issuance of a warrant of arrest. This is a judicial function.
An accused may question the absence of or irregularities in the preliminary

investigation only before he enters his plea. After he enters his plea, any objection in
that regard is deemed waived. By entering his plea and actively participating, he is
deemed to have waived his right to preliminary investigation.
31. Once a criminal case is filed in court, any disposition of the same rests on the sound
discretion of the court. In resolving a case or in allowing the withdrawal of an
information, the trial court should not rely solely and merely on the findings or the
mere recommendations of the public prosecutor or the Secretary of Justice. The trial
court must make its own determination of whether or not there was a prima facie
case against the accused and not merely rely on the manifestation of the DOJ
Secretary. This reliance is an abdication of its judicial power and a refusal to perform
a positive duty enjoined by law.
32. For a warrantless arrest in flagrante delicto to be valid, two elements must concur: (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.
Under the flagrante delicto exception, the person making the arrest himself witnesses
the crime. In the hot pursuit exception, the person making the arrest knows for a fact
that a crime has been committed. The hot pursuit exception requires that, at the time
of the arrest, an offense had in fact just been committed and the arresting officer had
personal knowledge of facts indicating that the appellant had committed it.
The act of walking along the street and holding something in one's hand, even if they
appeared to be dubious, coupled with his previous criminal record for the same
offense, are not by themselves sufficient to justify a warrantless arrest. An officer’s
personal knowledge of the criminal record of a person or the fact that he is always in
the company of known criminals are not reasons for a warrantless arrest. Mere
suspicion and reliable information are not grounds for warrantless arrests. Making
unusual movements and eyes darting left and right do not justify a warrantless
arrest. Compare with a search: It was, however, held that a reliable tip/information of
the presence of drugs in a certain place or inside a vehicle could be a sufficient
ground for a warrantless search. If the search yields contraband, the arrest can be
validly made. Note, that mere silence in the presence of armed officers when
permission to search is asked, does not necessarily imply consent to the search. The
silence could be interpreted as a result of fear. Even an express consent given to the
search may not be a real and voluntary consent when given because of veiled threats
or intimidation.
33. When the arrest is lawful, a search conducted on the person of the person arrested is
also lawful because the search is incident to a valid arrest. However, for a warrantless
search to be lawful, the search must be made in the permissible area within the
immediate control of the person arrested. A valid arrest in the living room does not
justify searches in the upper floors or in a different room. A valid arrest in the street
does not justify a search in the house of the person arrested.
A search warrant is not required when such search is incident to a valid arrest.
Consequently, where there is no lawful arrest, the drugs purportedly seized from
appellant are rendered inadmissible in evidence for being the proverbial fruit of the
poisonous tree. Where the confiscated shabu is the very corpus delicti of the crime
charged, appellant must be acquitted and exonerated from all criminal liability.
Any objection to an invalid arrest must be made before the accused enters his plea. If
he enters his plea and afterwards he raises the issue of his invalid arrest, such issue
can no longer be raised because of waiver. However, even if the invalidity of the arrest
has been waived, such waiver does not include a waiver of the right to question the
inadmissibility of the evidence invalidly obtained during the illegal arrest.
11

34. After the arrest, the person arrested shall be delivered to the nearest police station or
jail without unnecessary delay.
35. An arrest may be made on any day and at any time of the day or night Compare: A
search warrant is to be served in the day time, as a rule, unless the warrant directs
that it be served at any time of the day or night. This direction shall be made if the
affidavit supporting the application for a warrant asserts that the property to be
searched and seized is on the person or in the place ordered to be searched.
Reminder: “John Doe” warrants are not allowed because they do not particularly
describe the person to be arrested. Warrants of arrest are not issued in cases subject
to summary procedure. Exception: If the accused fails to appear when required by the
court.
36. The issuance of a search warrant requires the judge to conduct an examination under
oath or affirmation of the complainant and the witnesses he may produce in order to
determine probable cause. The examination is mandatory and an essential requisite
for the validity of a search warrant. This is not a requirement before the issuance of a
warrant of arrest. Instead, the court shall personally evaluate the resolution of the
prosecutor. A personal examination, however, is an option (not mandatory) of an MTC
judge where the complaint or information was directly filed with his court where the
penalty for the offense requires no preliminary investigation. This option is given to
the judge because there was no previous preliminary investigation.
37. Rule 113 does not state the duration of the validity of a warrant of arrest. Compare: A
search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be
void.
38. To prevent exploratory searches, the search warrant must particularly describe the
place to be searched and the things to be seized (Sec. 4, Rule 126, Rules of Court).
Common sense suggests that merely describing the things to be searched as “stolen
goods”, “obscene materials” or “merchandise”, “books of accounts and other papers”
does not satisfy the rule.
39. The law does not require that the property to be seized should be owned by the
person against whom the warrant is directed.
40. Checkpoints - Checkpoints are valid for as long as they are warranted by exigencies of
public order and conducted in the least intrusive way. The individual’s right against
unreasonable searches is not violated for as long as the vehicle is not searched, the
occupants are not subjected to a body search, and the inspection of the vehicle is
limited to a visual search. The occupants of a vehicle should not be required to get off
the same. Consent to any search of the vehicle must be clear and voluntary. Consent
cannot be inferred from mere silence in the presence of armed officers. A vehicle can
be searched only when the officers have probable cause to believe that they would
find evidence of a crime in the vehicle. Without this probable cause, no search of the
vehicle can be made. A reliable information could provide reason for the search but
not for an immediate warrantless arrest. The arrest could be made if the evidence has
been found after the search.
41. Buy-bust operations – A search warrant or warrant of arrest is not needed here
because the accused is deemed caught in flagrante delicto. This is a form of
entrapment and has judicial sanction as long as it is carried out with due respect to
constitutional and statutory safeguards. The "objective test" in determining the
credibility of prosecution witnesses regarding the conduct of buy-bust operation
provides that it is the duty of the prosecution to present a complete picture detailing
the buy-bust operation- from the initial contact between the poseur-buyer and the
pusher, the offer to purchase, the promise or payment of consideration, until the
consummation of the sale by the delivery of the illegal subject of sale.
12

42. Plain view doctrine – Under this doctrine, the officer must discover the evidence
inadvertently and must be in the place legally or has a prior justification for the
intrusion as when he is serving a valid warrant. It is also required that it is
immediately apparent to the officer that the object may be an evidence of a crime or
one subject to seizure.
43. Terry search doctrine – Also known as the “stop” and “frisk”, this search is not a full
scale search and arrest. Hence, it does not require a probable cause because the
“stop” merely requires a reasonable belief or a genuine reason that criminal activity is
about to happen. The “frisk” is not an intrusive one because it is a mere pat down
outside the person’s outer garment. The genuine reason does not justify a warrantless
arrest.
Note: A search warrant is not necessary to search the cell of a person detained. Being
a detention prisoner, his right to privacy inside the jail is necessarily impaired and
outside the ambit of constitutional protection.
44. Bail is not available to a person who is not in custody of the law as when he is a
fugitive or is at large. In other words, bail is not available to a free man. Bail is a
security given only for those in custody of the law. Bail may be given in the form of (a)
corporate surety, (b) property bond, (c) cash deposit, or (d) recognizance.
Bail, however, may be required of a material witness. When the court is satisfied that
a material witness will not testify when required, it may order the witness to post bail.
If the witness refuses to post bail, the court shall commit him to prison until he
complies.
Bail is available in deportation proceedings. Bail may now be granted in extradition

proceedings provided the extraditee is (a) not a flight risk, and (b) there are compelling
and special humanitarian reasons. However, bail is not available in the military for
those detained n violation of military laws.
45. Bail is a matter of right before or after conviction in the MTC. It is also a matter of
right before conviction by the RTC of an offense not punishable by death, reclusion
perpetua or life imprisonment.
46. When the accused has been convicted in the RTC of an offense punishable by
reclusion perpetua, the accused is not entitled to bail because his conviction means
that evidence of guilt is strong.
If the accused is convicted in the RTC of an offense not punishable by reclusion

perpetua or life imprisonment, admission to bail is discretionary. However, if the
penalty exceeds 6 years, the accused shall be denied bail or any bail allowed shall be
cancelled (court loses discretion) upon a showing by the prosecution, with notice to
the accused of the existence of certain circumstances as when the convicted person is
a recidivist, quasi-recidivist or habitual delinquent; he has previously escaped or
evaded sentence; he committed an offense while under probation, parole or
conditional pardon; there is probability of flight if released on bail or there is undue
risk that he may commit another crime.
47. A person charged with a capital offense or an offense punishable by reclusion

perpetua or life imprisonment shall not be admitted to bail if evidence of his guilt is
strong. A hearing to determine evidence of guilt is mandatory. The court cannot grant
bail without a hearing just because the prosecutor does not object to the application
for bail. To rely merely on the recommendation of the prosecutor, and granting bail on
such basis, is procedurally flawed and may be deemed a grave abuse of discretion.
In the Enrile case, the accused was granted bail on the basis of his age and health.
Accordingly, “Bail for the provisional liberty of the accused, regardless of the crime
charged, should be allowed independently of the merits of the charge, provided the
continued incarceration is clearly shown to be injurious to his health or to endanger
his life.” Note: The dissenting opinions in this case hold the view that in cases where
13

the imposable penalty for the offense is reclusion perpetua, like plunder, the matter to
determine is whether the evidence of guilt is strong., not age and health.
Reminder: The grant of bail cannot be conditioned on a prior arraignment. It is error

for the court to require the accused to be arraigned first before he is granted bail. The
condition would place him in a position where he has to choose between filing a
motion to quash and delay his release, or foregoing the motion just to effect his
immediate release.
48. Bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal
of the case, or execution of the judgment by conviction. Bail shall not be allowed after
a judgment of conviction has become final.
49. The right against self-incrimination applies to a testimonial compulsion and does not
apply when a person is asked to submit to a physical examination only. However,
forced re-enactments, uncounselled and coerced confessions come within the ban
against self- incrimination. Where no evidence is available against the accused and
the giving of a sample of his signature would constitute the only evidence against
him, he may invoke the right against self-incrimination. Where the sample of his
signature is not the evidence against him, but merely required for a collateral purpose
like identification of the articles confiscated from him, the right cannot be invoked.
Thus, where a mailman was caught in the act of pilfering the mail, there is direct
evidence against him. The giving of his signature on every mail matter confiscated
does not involve the right against self-incrimination.
A witness can invoke the right only after the alleged incriminating question is given.
The right of a witness against self-incrimination does not include the refusal to testify.
The right of a witness against self-incrimination, on the other hand, involves the right
to refuse to testify.
The right against self-incrimination may be invoked in any proceeding – civil, criminal
or administrative and even in legislative hearings. The right may not be invoked if it
does not result in a possible criminal prosecution of the witness. If only the resulting
liability is civil or administrative, the invocation of the right is improper. A witness
may be required to give an answer even if it will establish a civil liability (other than
criminal) against him. A witness cannot invoke the right if he was granted immunity
from prosecution. Transactional immunity is an absolute immunity from prosecution
for the offense admitted by the witness. A “use or derivative use” immunity merely
prohibits the use of the testimony of the witness to prosecute the said witness. Also,
a witness cannot invoke the right where the offense has already prescribed.
The right to speedy trial is not the right of any person. It is the right only of an
accused in a criminal case. A dismissal of the case on this ground is considered an
acquittal. In other cases what should be invoked is the right to speedy disposition of
cases. Note: In one case, a government official was investigated by the Ombudsman
for graft and corruption in 2001. The official never received notice of the results of the
investigation and was surprised when in 2009, he learned that an information was
filed against him with the Sandiganbayan. The Supreme Court ordered the dismissal
of the case on the ground that the right of the accused to ‘speedy disposition of cases’
was violated. The dismissal was deemed an acquittal.
The accused must be present at the arraignment and must personally enter his plea.
When the accused refuses to plead, or makes a conditional plea, a plea of not guilty
shall be entered for him. When the accused pleads guilty, but presents exculpatory
evidence, the plea shall be deemed withdrawn and a plea of not guilty shall be entered
for him.
When the accused pleads guilty and bargains for a lesser penalty, it is not a plea of
guilty to a lesser offense. It is a conditional plea because he is admitting guilt
provided that a certain penalty be meted unto him. In this case, the trial court should
enter a plea of not guilty for him instead of rendering a judgment of conviction and
imposing upon him the penalty bargained for. The judgment may be assailed and
14

double jeopardy will not set in because there as an invalid plea. A subsequent trial
will not constitute double jeopardy.
When the accused pleads guilty but presents evidence of self-defense, it is not correct
for the court to acquit the accused. In this case, the plea of guilty should be deemed
withdrawn and a plea of not guilty should be entered for him. A trial should be heard.
Any judgment rendered without trial is improper and a revival of the case will not
violate the rule against double jeopardy. Reason: Invalid plea.
50. The accused may plead guilty to a lesser offense. Requisites: (a) Consent of the
offended party (b) consent of the prosecutor, and (c) the lesser offense must be
necessarily included in the offense charged. Thus, pleading guilty to estafa in an
information for robbery is not pleading guilty to a lesser offense because the elements
are not related. However, one can plead guilty to serious physical injuries when
charged with frustrated homicide.
When the accused pleads guilty to a capital offense, the court cannot immediately
render judgment. He is required to conduct a searching inquiry for it to know the
voluntariness and the full comprehension of the consequences of the plea. The court
shall also order the prosecutor to prove the guilt and precise degree of culpability of
the accused. On the other hand, when the accused pleads guilty to a non-capital
offense no searching inquiry is required but the court may receive evidence from the
parties to determine the penalty to be imposed.
51. Arraignment may be suspended when the accused suffers from an unsound mental
condition, there exists a prejudicial question or there is a petition for review of the
resolution of the prosecutor pending in the DOJ or Office of the President. The
suspension in the last instance shall not exceed 60 days from the filing of the petition
with the reviewing office.
52. A motion to quash cannot be filed on the ground of absence of a preliminary

investigation, lack of probable cause or because the offended party has executed an
affidavit of desistance. Matters of defenses, like self-defense, are not likewise grounds
for a motion to quash. These grounds are not found in Sec. 3 of Rule 117 of the Rules
of Court.
53. The failure to file a motion to quash has the effect of waiving the objections or the
grounds for motion to quash. If a motion to quash is filed, those objections or
defenses not invoked in the motion are deemed waived. Objections not waived: (a)
That the facts charged do not constitute an offense. b) That the court trying the case
has no jurisdiction over the offense charged. (c) That the criminal action or liability
has been extinguished; and (d) double jeopardy.
54. If a motion to quash is based on an alleged defect of the complaint or information

which can be cured by amendment, the court shall order an amendment to be made
instead of sustaining the motion to quash. If based on the ground that the facts
charged do not constitute an offense, the court shall give the prosecution the
opportunity to correct the defect by amendment. If the prosecution fails to do so, or if
after the amendment, the same defect exists, the motion to quash shall be granted.
55. When a motion to quash is filed, the court shall consider only the grounds asserted. It
shall consider no other ground other than those stated in the motion. Exception: Lack
of jurisdiction over the offense charged.
56. When a motion to quash is sustained, the order sustaining the motion to quash is not
a bar to another prosecution for the same offense. Reason: The dismissal is with the
consent of the accused who filed the motion to quash. The dismissal which bars the
refiling of the case is one made without the express consent of the accused and a
motion to quash is filed with the consent of the accused. Any dismissal as a result of
the motion is a dismissal with his express consent. Exceptions: The refiling is barred
if the ground for sustaining the motion is any of the following: (a) that the criminal
15

action or liability is extinguished, or (b) that there is double jeopardy, another
prosecution for the same offense is barred.
57. It is not correct to claim double jeopardy in a preliminary investigation if the case
was dismissed by the prosecutor. There is no double jeopardy in a preliminary
investigation. Double jeopardy is not also applicable in administrative cases.
58. Double jeopardy (double danger) requires that the first court had competent
jurisdiction. It also requires the existence of a valid complaint or information and that
the accused was arraigned. Such accused had been previously acquitted or convicted
or the case against him dismissed or terminated without his express consent. If these
elements exist, the person can no longer be prosecuted for the same offense or for any
offense which necessarily includes or is necessarily included in the offense charged in
the former complaint or information.
Examples: (a) If the accused was charged in the RTC and that court has no
jurisdiction, there is no double jeopardy if he is prosecuted in the Sandiganbayan, the
court with the correct jurisdiction, even if he already pleaded not guilty in the RTC.
Reason: There was no danger of conviction in the RTC because it was a court without
a competent jurisdiction. No jeopardy attached in the RTC so the prosecution in the
Sandiganbayan could not constitute a double jeopardy. (b) Where the officer who filed
the information has no authority to do so, there is no jeopardy that attached. One
cannot be in danger of conviction under an invalid information. (c) If an accused
bargained with the court for a light penalty in exchange for a plea of guilty to rape
and was sentenced accordingly, his subsequent prosecution will not put him in
double jeopardy. The court, instead of sentencing him, should have entered a plea of
not guilty and ordered a trial. By sentencing him without a valid plea, the accused
was not put in danger of double jeopardy. If the accused pleaded guilty to homicide
but presented evidence of self-defense, the court erred in acquitting him. The plea of
guilty should have been deemed withdrawn and a plea of not guilty entered for him.
By acquitting him despite the invalid plea, double jeopardy could not be a defense if
he is prosecuted with the same offense. In these examples, there was no valid plea. (d)
If an accused is “conditionally arraigned” before granting him permission to travel,
and the case was dismissed without his knowledge or consent, the dismissal operates
as bar for another prosecution for the same offense.
59. Note that 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; Example: The original charge was for
frustrated murder and the victim died later of the same injuries.
(b) the facts constituting the graver offense became known or were discovered only
after a plea was entered in the former complaint or information. Example: The
original charge was for slight physical injuries but the second charge was for
serious physical injuries when the deformity became apparent.
(c) the plea of guilty to the lesser offense was made without the consent of the
prosecutor and of the offended party (unless the latter failed to appear during the
arraignment or plea bargaining despite notice as provided in Sec. 1[f] of Rule 116).
NOTE: In any of the above, any judgment satisfied or served by the accused shall
be credited in case of conviction for the graver offense.
60. An acquittal cannot be appealed by the prosecution because of the principles of

double jeopardy. It cannot even file a motion for reconsideration or a motion for new
trial. Remedy: Use a petition for certiorari. A judgment rendered with grave abuse of
discretion or without due process of law is void, does not exist in legal contemplation
and, thus, cannot be a source of acquittal. Since the court which acquitted the
accused acted with grave abuse of discretion, the act amounts to a lack of
16

jurisdiction. The element that for double jeopardy to exist, the court must have
competent jurisdiction, is now absent.
61. There is no double jeopardy where there is no identity of offenses. Examples: Oral
defamation and threats; (a) Theft of electricity under the Revised Penal Code and theft
of electricity under PD 401 – The former is malum in se while the latter is malum
prohibita; (b) illegal recruitment and estafa – The former is malum prohibita and no
criminal intent is necessary. The latter is malum in se and requires a criminal intent;
(c) BP 22 and estafa – Issuing a check under BP 22 is punished because of the mere
issuance of a bouncing check (malum prohibita). Estafa requires fraud or deceit
(malum in se). In BP 22, the issuance of a check because of a pre-existing obligation is
immaterial. In estafa, the issuance of a check for a pre-existing obligation negates
criminal liability; (d) Direct bribery under Art. 210 of the Revised Penal Code and
“request or demand for a gift” in Sec. 3[b] of RA 3019 (Anti-Graft and Corrupt Practices
Act) – They have no common elements. The punishable act under RA 3019 is specific
and is connected only with gifts. In the Revised Penal Code, the scope is wider and
more general; (e) Illegal possession of drugs (Sec. 11, R.A. 9165) is an offense separate
from importation of drugs (Sec. 4, R.A. 9165). (f) Illegal fishing is different from illegal
possession of explosives; (g) Conviction for illegal possession of firearms is not a bar
to a prosecution for brigandage; If homicide or murder is committed with a firearm
illegally possessed, the illegal possession of firearm becomes merely an aggravating
circumstance, not a separate offense.
62. Case: The accused was charged for reckless imprudence resulting in slight physical
injuries and reckless imprudence resulting in homicide. The charges arose out of the
same vehicular mishap. He pleaded guilty to the slight physical injuries case. The court
ruled that he can no longer be prosecuted for the homicide case. The two charges arose
from the same facts and prosecuted under the same provision of the Revised Penal
Code. The Court restated the doctrine that reckless imprudence under Art. 365 is a
single-quasi-offense by itself and not merely a means to commit other crimes. Hence,
conviction or acquittal of such quasi-offense bars subsequent prosecution for the
same quasi-offense, regardless of its various resulting acts. Criminal negligence under
Art. 365 lies in the execution of an imprudent or negligent act and the law penalizes
the careless act and not the results thereof. The results or consequences of the
negligent act are only taken into account to determine the penalty. Since the negligent
act is single, whether the injurious results affect one or several persons, the offense
remains one and the same and cannot be split into different crimes or prosecutions.
63. For provisional dismissal to be valid, it must be (a) with the express consent of the
accused; and (b) with notice to the offended party. Under Sec. 8 of Rule 117, the
provisional dismissal of offenses punishable by offenses not exceeding 6 years
imprisonment shall become permanent 1 year after the issuance of the order of
provisional dismissal without the case having been revived. If the offense be
punishable by more than 6 years, the provisional dismissal shall become permanent
2 years after the issuance of the order.
64. Note: Provisional remedies are also available in a criminal action under Rule 127, like
preliminary attachment and support pendente lite. To be availed of, the civil aspect
must be tried together with the criminal aspect. Where the civil aspect was instituted
ahead, waived or reserved, the provisional remedies do not apply to the criminal
action only.
65. All agreements or admissions made or entered during the pre-trial conference shall be
reduced in writing and signed by the accused and counsel. Otherwise, they cannot be
used against the accused.
66. To make an accused a state witness, the prosecution must file a motion to that effect
before resting its case. The court shall conduct a hearing and require the prosecution
to present evidence and the sworn statement of each proposed state witness. When
an accused is discharged as a state witness by order of the court, the order shall
amount to an acquittal unless the accused refuses to testify against his co-accused in
accordance with his sworn statement that constituted the basis for his discharge.
17

There are matters to be considered before one could qualify as a state witness: (a)
there is absolute necessity for his testimony; (b) there is no other direct evidence
available except his testimony; (c) his testimony can be substantially corroborated in
its material points; (d) he does not appear to be the most guilty; and (e) he has not
been convicted of a crime involving moral turpitude.
An accused, in a criminal case, has the right to compel the attendance of witnesses in
his behalf. The rule also provides for the conditional examination of the witnesses for
the accused. Even a witness for the prosecution may be examined for special reasons
as when he is too sick or infirm or has to leave the Philippines. Hence, the viatory
right of a witness does not apply to a criminal case. This right refers to the right of a
witness in a civil case to be exempt from testifying if he resides more than 100
kilometers from his residence to the place where he is to testify or to a detention
prisoner if the permission of the court in which his case is pending has not been
obtained.
Note: A modified or reverse trial allows the accused to present his evidence ahead of
the prosecution at the discretion of the court. A modified trial may be allowed if the
accused admits the charge and interposes a lawful defense. This may be available in a
civil case if, for special reasons, the court so directs. It may also be available in a civil
case when the court directs separate trials for the various claims in the case in
accordance with Sec. 2 of Rule 31.
67. In a criminal case, the court may dismiss the action after the prosecution rests its
case. This is a demurrer to evidence on the court’s own initiative but, before doing so,
the court must give the prosecution the opportunity to be heard. Another way to
demurrer to the evidence is upon a demurrer filed by the accused either (a) with leave
of court, or (b) without leave of court. Ground for demurrer by both the court or upon
motion of the accused: Insufficiency of evidence.
If the demurrer filed by the accused is denied, he may still adduce evidence in his
defense but only if the demurrer was filed with leave of court. If it was filed without
leave of court, the accused waives the right to present his evidence.
If the demurrer is denied, the denial is not reviewable by appeal or certiorari before
judgment. The same applies to a denial of a motion for leave to file a demurrer. The
recent case of former President Arroyo, however, shows a departure from the Rules.
When her demurrer was denied by the Sandiganbayan, a petition for certiorari was
filed in the SC assailing the denial. The SC granted the petition. This is a clear case of
an exercise of the SC power to suspend the Rules.
It has long been settled that the grant of a demurrer is tantamount to an acquittal. An
acquitted defendant is entitled to the right of repose as a direct consequence of the
finality of its acquittal. However, if the order granting the demurrer to evidence was
issued with grave abuse of discretion amounting to lack of jurisdiction, it may be
reviewed by a petition for certiorari under Rule 65.
68. If the judgment is of conviction, the judgment shall state (a) the legal qualification of
the offense; (b) aggravating and mitigating circumstances; (c) participation of the
accused (principal, accomplice or accessory); (d) penalty imposed; and (e) civil liability.
The civil liability shall not be included in the judgment if the civil action has been
reserved, waived or filed separately.
If the judgment is of acquittal, the judgment must state whether (a) there was failure
to absolutely prove the guilt, or (b) there was merely a failure to prove the guilt
beyond reasonable doubt. In either case, the judgment shall determine if the act or
omission from which the civil liability might arise did not exist.
69. Variance between the offense charged and the offense proved – If the offense, as
charged, is included in or necessarily includes the offense proved, the accused shall
be convicted of the offense proved which is included in the offense charged, or of the
offense charged which is included in the offense proved. Examples: (a) Charge is
18

murder. Homicide was proven. The accused shall be convicted of homicide. (b) Charge
is homicide. Murder was proven. The accused shall be convicted only of homicide.
70. The judgment is promulgated by reading it in the presence of the accused and any
judge of the court in which it is rendered. This means that, as a rule, the accused
must be present during the promulgation of the judgment. For this purpose, 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 was tried in absentia because he jumped bail or escaped
from prison, the notice to him shall be served at his last known address.
If the accused fails to appear at the promulgation despite notice, the promulgation
cannot be done by reading it in his presence because he is not around. Hence, the
court will adopt a substitute form of promulgation. This shall be made by recording
the judgment in the criminal docket and serving him a copy of the judgment either at
(a) his last known address or (b) thru counsel.
When the presence of the accused is not required: The presence of the accused in the
promulgation of the judgment is not required, if the conviction is for a light offense,
the judgment may be pronounced in the presence of his counsel or representative.
The absence of the judge does not preclude the promulgation of the judgment because
when the judge is absent or outside the province or city, the judgment may be
promulgated by the clerk of court.
If the convict wants to appeal, the notice of appeal should be filed with the court
promulgating the judgment because it is this court which has authority to accept the
notice of appeal. It is the same court which has the authority to approve the bail bond
pending appeal. However, the court promulgating the judgment is without authority
to approve the bail bond pending appeal if the decision of the trial court convicting
the accused changed the nature of the offense from non-bailable to bailable, in which
case the application for bail can only be filed with and resolved by the appellate court.
71. Effect of unjustified non-appearance in case of conviction: If the judgment is for

conviction and the failure of the accused to appear is without justifiable cause, he (a)
shall lose his remedies against the judgment, and (b) the court shall order his arrest.
This means that he cannot file a motion for reconsideration, motion for new trial or
appeal.
To regain the lost remedies, he should surrender within 15 days from promulgation of
the judgment. If he wants to avail of the remedies, he should file a motion for leave to
avail of such remedies. The court shall decide whether or not his absence is
justifiable. The convict is mandated to state his 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 15 days from notice.
72. A person may file a motion for new trial or a motion for reconsideration of the
judgment of conviction at any time before the judgment becomes final. If it is denied,
he has a fresh period of 15 days from notice of the denial of the motion to file an
appeal. The Neypes rule applies to a criminal proceeding per Judith Yu v. Samson-
Tatad, February 9, 2011.
Grounds for new trial: (a) errors of law; (b) irregularities (prejudicial to the substantial
rights of the accused) committed during the trial; and (c) new and material evidence.
Compare with the grounds in a civil case.
Grounds for reconsideration: (a) errors of law in the judgment; (b) errors of fact in the
judgment. Note: Such errors should not require further proceedings to be corrected.
Compare with the grounds in a civil case.
Effect if new trial is granted if based on errors of law or irregularities during the trial:
All the (a) proceedings and the (b) evidence shall be set aside and taken anew (c)
19

original judgment shall be set aside or vacated and a new judgment rendered
accordingly.
Effect if new trial is granted on the ground of new and material evidence: (a) the
evidence already adduced shall stand; (b) the newly-discovered evidence may be
allowed to be introduced in the interest of justice and even other evidence may be
allowed and shall be considered with the evidence already on record; and (c) original
judgment shall be set aside or vacated and a new judgment rendered accordingly.
Effect if reconsideration is granted: The original judgment shall be set aside or vacated
and a new judgment rendered accordingly.
73. In cases decided by the MTC, the appeal is to the RTC by way of notice of appeal filed
with the court of origin (MTC).
In cases decided by the RTC in the exercise of its original jurisdiction, the appeal is to
the CA by way of notice of appeal filed with the court of origin. If it is in the exercise of
its original jurisdiction and only a question of law is raised, file a Rule 45 petition
with the SC. The mode of appeal is the same in both criminal and civil cases in Rule
45. In cases decided by the RTC in the exercise of its appellate jurisdiction, the appeal
is to the CA by way of petition for review under Rule 42.
Where the penalty imposed by the RTC is reclusion perpetua or life imprisonment, the
appeal is to the CA by way of notice of appeal filed with the RTC, the court which
rendered the judgment.
All appeals to the SC are by way of Rule 45. Exception: Sec. 13[c] of Rule 124, Rules of
Court. Rule: In cases where the CA imposes reclusion perpetua, life imprisonment,
the judgment may be appealed to the SC by notice of appeal filed with the Court of
Appeals, not by way of Rule 45.
-o0o-
20

PREWEEK REMINDERS IN EVIDENCE
[Warrior Notes]
BAR 2016
The Fundamentals
1. The rules of evidence, being part of the Rules of Court, apply only to judicial
proceedings It is a well-settled procedural principle that the Rules of Court shall not
apply to election cases, land registration, cadastral, naturalization and insolvency
proceedings, and other cases, except by analogy or in a suppletory character and
whenever practicable and convenient.
2. The Rules on Electronic Evidence apply to all civil actions and proceedings,
as well as quasi-judicial and administrative cases. The Supreme Court has expanded
the application of the rules to criminal proceedings.
3. Under Sec. 3 of Rule 128, “Evidence is admissible when it is relevant to the

issue and is not excluded by the law or these rules.” Thus, for evidence to be
admissible, two elements must concur, namely: (a) the evidence is relevant, and (b) the
evidence is not excluded by the rules (competent).
4. Character refers to what a man is and depends on the attributes he

possesses. It is not the same as a man’s reputation because the latter is what he is
supposed to be in accordance with what people say he is and depends on how people
perceive him to be.
5. Character evidence is not generally admissible. Character is generally

irrelevant in determining a controversy because the evidence of a person’s character or
trait is not admissible to prove that a person acted in conformity with such character
or trait in a particular occasion. In a criminal case, the prosecution cannot prove the
bad moral character of the accused in its evidence-in-chief. It can only do so in
rebuttal. This means that the prosecution may not offer evidence of the character of
the accused unless the accused himself has offered evidence of his good character.
Where the accused proves his good moral character pertinent to the moral trait
involved in the offense charged, he opens the door to the prosecution to prove that his
character is, in fact, bad. Then and only then may the prosecution prove the bad
moral character of the accused.
6. Character evidence is admissible in the following cases: (a) The good or bad
moral character of the offended party may be proved by the accused if it tends to
establish in any reasonable degree the probability or improbability of the offense
charged. In child sexual abuse cases, however, the accused, under the “sexual abuse
shield rule”, cannot offer evidence of the sexual behavior or sexual predisposition of
the victim. He can only do so if his purpose is to show that he was not the source of
semen, injury or other physical evidence found in the victim’s body. (b) The accused
may prove his good moral character when pertinent to the moral trait involved in the
offense charged. In doing so, an accused may advance more than one character trait
as evidence so long as each trait is germane to some issue in the case. He may not,
however, prove his character by evidence of specific instances of good conduct. (c)
Evidence of the moral character of a party in a civil case is admissible only when
pertinent to the issue of character involved in the case. Thus, evidence of a party’s
intemperance may be admitted when his intemperance is pertinent to the issues
involved. (d) Evidence of the good moral character of a witness is not admissible until
such character has been impeached. It is error for counsel to offer evidence of the good
moral character of his witness who is presented in court for the first time since he
could not have been previously impeached.

7. As a rule, the opinion of a witness is inadmissible. When the opinion is that
of an expert, i.e., the opinion of a witness requiring special knowledge, skill, experience
or training, which he is shown to posses, may be received in evidence. When the
opinion is that of an ordinary witness provided that the proper basis of the opinion is
given and the subject of the opinion is any of the following matters: (a) the identity of a
person about whom the witness has adequate knowledge; (b) the handwriting of a
person of which the witness has sufficient familiarity; (c) the mental sanity of a person
with whom he is sufficiently acquainted; and (d) the impressions of a witness on the
emotion, behavior, condition or appearance of a person.
8. Assume that Mr. X is accused of physical injuries. Is evidence that he

committed similar acts in the past admissible to prove his propensity for committing
such acts? Answer: The evidence is not admissible for the purpose for which it is
offered. Sec. 34 of Rule 130 clearly provides: ”Evidence that one did or did not do a
certain thing at one time is not admissible to prove that he did or did not do the same
or similar thing at another time.” In the same vein, evidence that Jose was cleared of a
previous charge of robbery is not admissible to prove that he could not have committed
the robbery for which he is presently charged. The rule enunciated in Sec. 34 of Rule
130 is founded on common reason. To argue that a person did or did not commit an act
because he did not or did a similar thing in the past is non sequitur (it does not follow).
However, evidence of similar acts is admissible for any of the following purposes: To
prove (a) specific intent, (b) knowledge, (c) identity, (d) plan, (e) system, (f) habit, (g)
custom, (h) usage, and the like. For example, evidence of the other crimes, acts or
wrongs of the accused is admissible to show that the offense for which he is currently
charged and the said previous similar acts show the “signature” or “handiwork” of the
accused, because of identical or similar modus operandi. In other words, the similar
acts may be offered to show that they share distinctive features as the offense for which
the accused is charged.
9. Admissible evidence is not necessarily credible evidence. In fact,

admissibility and credibility must be sharply contrasted. They are entirely two different
matters and present different issues. The term “admissible” means that the evidence is
of such a character that the court, pursuant to the rules of evidence, is bound to receive
it or to allow it to be introduced at the trial. Admissibility, however, does not guarantee
credibility. Admissibility is one thing and credibility is another. The term “credibility”
refers to worthiness of belief, that quality which renders a witness worthy of belief. The
meaning of credibility in law is exactly what it means in ordinary usage: “believability.”
After the competence of a witness is allowed, the consideration of his credibility follows.
10. Evidence signifies a relationship between two facts; namely: (a) the fact or
proposition to be established (factum probandum) ; and (b) the facts or material
evidencing the fact or proposition to be established (factum probans) (John J. Wigmore,
Principles of Judicial Proof, 5). Stated in another way, the factum probandum is the fact
to be proved; the fact which is in issue and to which the evidence is directed. On the
other hand, factum probans is the probative or evidentiary fact tending to prove the fact
in issue. Thus, if P claims to have been injured by the negligence of D who denies
having been negligent, the negligence is the fact to be established. It is the factum
probandum. The evidence offered by P constitutes the material to prove the negligence of
D. The evidence is the factum probans.
11. The rules of evidence may be waived. When an otherwise objectionable

evidence is not objected to, the evidence becomes admissible because of waiver. Thus,
a hearsay evidence, if not objected to, becomes admissible. The benefits of the parol
evidence rule and the best evidence rule and other rules may be waived in the same
manner. Admissibility, however, should not be equated with the credibility or the
probative value of the evidence. Evidence is admissible because it is relevant and

competent. Whether or not the court will give it weight is an entirely different matter.
May the parties stipulate waiving the rules of evidence? The Civil Code of the
Philippines (Art. 6) provides that “rights may be waived, unless the waiver is contrary
to law, public order, public policy, morals, or good customs or prejudicial to a third
person with a right recognized by law.” As long as no law or principles of morality,
good customs and public policy are transgressed or no rights of third persons are
violated, the rules of evidence may be waived by the parties.
12. The burden of proof, or “onus probandi”, is traditionally the obligation of a

party to the litigation to persuade the court that he is entitled to relief. As defined in
the Rules of Court, it “is the duty of a party to present evidence on the facts in issue
necessary to establish his claim or defense by the amount of evidence required by
law”. In civil cases, a party who alleges a fact has the burden of proving it. It is, thus,
inaccurate to say that the burden of proof lies only on the shoulders of the plaintiff.
The burden of proof, under the clear terms of Sec. 1 of Rule 131, is the duty to present
evidence not only to establish a claim but also a defense. Thus, even the defendant
has a burden of proof. Hence, burden of proof is the duty of the plaintiff who has a
claim and the defendant who has a defense. In criminal cases, the burden of proof lies
with the prosecution because of the presumption that the accused is innocent until
the contrary is proven. However, when the accused invokes a lawful defense like self-
defense, the burden of proof rests upon the defense to prove that the killing was
justified.
The burden of evidence is the duty of a party to go forward with the evidence to
overthrow the prima facie evidence against him. The burden of going forward with the
evidence may shift from one side to the other as the exigencies of the trial require and
shifts with alternating frequency.
The term, “preponderance of evidence” applies only to civil cases. It means the
“greater or superior weight of evidence”. It is the evidence that is more convincing and
more credible than the one offered by the adverse party. It means that the evidence,
as a whole, adduced by one side is superior to or has greater weight than that of the
other.
13. Equipoise or equiponderance doctrine - The doctrine refers to a situation

where the evidence of the parties are evenly balanced or there is doubt on which side
the evidence preponderates. In this case, the decision should be against the party with
the burden of proof. Hence, where the burden of proof is on the plaintiff and the
evidence does not suggest that the scale of justice should weigh in his favor, the court
should render a verdict for the defendant.
14. In a criminal case, conviction requires a proof beyond reasonable doubt.

Proof beyond reasonable doubt is that degree of proof which produces conviction in an
unprejudiced mind. This kind of proof does not mean such a degree of proof that
excludes all possibility of error. Only moral certainty is required. Proof beyond
reasonable doubt is required in order to overcome the cardinal rule that the accused
must always be presumed innocent until the contrary is proven. This presumption
applies regardless of the enormity of the crime for which he is charged and remains
until a verdict is finally rendered.
15. Substantial evidence is the degree of proof which applies to cases filed before
administrative or quasi-judicial bodies and which requires that in order to establish a
fact, the evidence should constitute that amount of relevant evidence which a
reasonable mind might accept as adequate to support a conclusion.
16. Evidentiary weight of electronic evidence - In assessing the evidentiary

weight of electronic document, certain factors may be considered, like:

(a) The reliability of the manner in which it was generated, stored or
communicated;
(b) The reliability of the manner in which its originator was identified;
(c) The integrity of the information and communication system;
(d) The familiarity of the witness or the person who made the entry with the
communication and information system;
(e) The nature and quality of the information; and
(f) Other factors which the court may consider.).
All matters relating to the admissibility and evidentiary weight of an electronic

document may be established by an affidavit stating facts of direct personal knowledge
of the affiant or based on authentic records. The affidavit must affirmatively show the
competence of the affiant to testify on the matters contained.. The affiant shall be
made to affirm the contents of the affidavit in open court and may be cross-examined
as a matter of right by the adverse party..
18. There are matters in a litigation which must be admitted without need for
evidence. All these matters which the court may take cognizance of without evidence
are called matters of “judicial notice”. The function of judicial notice is to abbreviate
litigation by the admission of matters that need no evidence because judicial notice is
a substitute for formal proof of a matter by evidence. Judicial notice takes the place of
proof and is of equal force. It displaces evidence and fulfills the purpose for which the
evidence is designed to fulfill.
Judicial notice may either be mandatory or discretionary. When the matter is

subject to a mandatory judicial notice, no motion or hearing is necessary for the court
to take judicial notice of a fact. This is a matter which a court must take judicial
notice of. When the matter is subject to discretionary judicial notice, a hearing is
necessary before judicial notice is taken of a certain matter. This is a matter which the
court may or may not take judicial notice of.
19. A judicial admission is another matter which no longer requires proof. A

judicial admission is an admission, verbal or written, made by a party in the course of
the proceedings in the same case. To be a judicial admission, the same must be made
by a party to the case. It must be emphasized that the admission must be made in the
course of the proceedings in the same case. Thus, an admission made in another
judicial proceeding will not be deemed a judicial admission under Sec. 4 of Rule 129.
It will be considered an extrajudicial admission for purposes of the proceeding where
such admission is offered. An extrajudicial admission needs to be formally offered in
evidence unlike a judicial admission which is automatically evidence. The form of the
admission is immaterial. Sec. 4 of Rule 129 recognizes either a verbal or a written
admission.
20. It has been held that the admissions in a superseded pleading are to be
considered as extrajudicial admissions which must be proven. Pleadings that have
been amended disappear from the record, lose their status as pleadings and cease to
be judicial admissions, and to be utilized as extrajudicial admissions, they must, in
order to have such effect, be formally offered in evidence.
21. Admissions by a counsel are generally conclusive upon a client. Even the
negligence of counsel binds the client. This rule is not, however, without exception. In
cases where reckless or gross negligence of counsel deprives the client of due process
of law, or when its application results in outright deprivation of the client’s liberty or
property or when the interest of justice so require, relief is accorded the client who
suffered by reason of the lawyer’s gross or palpable mistake or negligence.

22. The following are the conclusive presumptions under the Rules of Court:
(a) Whenever a party has, by his own declaration, act, or omission,

intentionally and deliberately led another to believe a particular thing to be true, and
to act upon such belief, he cannot, in any litigation arising out of such declaration, act
or omission, be permitted to falsify it.
(b) The tenant is not permitted to deny the title of his landlord at the time of
the commencement of the relation of landlord and tenant between them.
The conclusive presumptions under the Rules of Court are based on the doctrine
of estoppel. Under this doctrine, the person making the representation cannot claim
benefit from the wrong he himself committed. Example: Persons who assume to be a
corporation without legal authority to act as such shall be considered a corporation by
estoppel and shall be liable as general partners..
23. An admission is an act, declaration or omission of a party as to a

relevant fact. It is a voluntary acknowledgment made by a party of the existence of the
truth of certain facts which are inconsistent with his claims in an action. A confession
is the declaration of an accused acknowledging his guilt of the offense charged, or of
any offense necessarily included therein. The word, confession is associated with a
criminal case.
An admission, in a general sense, includes confessions, the former being a

broader term because, accordingly, a confession is also an “admission by the accused
of the fact charged against him or of some fact essential to the charge”. A confession is
a specific type of admission which refers only to an acknowledgment of guilt. As used,
the term admission refers to acknowledgment of facts which, although may be
incriminating, falls short of an admission of guilt. An admission may be implied like
an admission by silence; a confession cannot be implied. It should be a direct and
positive acknowledgment of guilt. An admission by a party may be given in evidence
against him. His admission is not admissible in his favor because it would be self-
serving evidence. Declarations of a party favorable to himself are not admissible as
proof of the facts asserted.
24. While a judicial confession may sustain a conviction, an extrajudicial

confession is not sufficient for conviction. The rule requires that the confession be
corroborated by evidence of corpus delicti. Corpus delicti is the ‘body of the crime’ or
the offense. Strictly speaking, it means the actual commission of the crime and
someone criminally responsible therefor. Corpus delicti and all the elements thereof
may be proved by circumstantial evidence but such proof must be convincing and
compatible with the nature of the case. While an extrajudicial confession will not be
sufficient for conviction unless corroborated by evidence of corpus delicti, a judicial
confession will support conviction without proof of corpus delicti independent of
judicial confession.
25. Admission by silence has been traditionally received, even in common law,
as admissible evidence. The usual pattern for its admissibility involves a statement by
a person in the presence of a party to the action, criminal or civil. The statement
contains assertions against the party which, if untrue, would be sufficient cause for
the party to deny. His failure to speak against the statement is admissible as an
admission. Admission by silence, as expressed in the Rules of Court, provides: “An act
or declaration made in the presence and within the hearing or observation of a party
who does or says nothing when the act or declaration is such as naturally to call for
action or comment if not true, and when proper and possible for him to do so, may be
given in evidence against him”. The rule on admission by silence applies to both
criminal and civil cases. The silence of a person under investigation for the

commission of an offense should not be construed as an admission by silence because
of constitutional reasons.
26. Res inter alios acta rule. The expression, if fully expressed, reads: res inter
alios acta alteri nocere non debet which literally means that “things done to strangers
ought not to injure those who are not parties to them”. The res inter alios acta rule has
two branches, namely: (a) The rule that the rights of a party cannot be prejudiced by
an act, declaration, or omission of another. (b) The rule that evidence of previous
conduct or similar acts at one time is not admissible to prove that one did or did not
do the same act at another time. The first branch is a very simple and logical rule
which holds that whatever one says or does or omits to do should only affect him but
should not affect or prejudice others. In other words, both common reason and
fairness demand that a man’s actions and declarations should affect him alone and
should not affect others. Thus, if X makes a statement before the media admitting his
participation in a previous murder, his statement is admissible against him under Sec.
26 of Rule 130. The rest of his statement pointing to Y and Z as co-participants in the
murder are not admissible against Y and Z under the first branch of the res inter alios
acta rule in Sec. 28 of Rule 130. Under this rule, the statement of X should not affect
or prejudice Y and Z. The rule has reference only to extrajudicial declarations or acts.
Hence, statements made in open court by a witness implicating persons, aside from his
own, are admissible as declarations from one who has personal knowledge of the facts
testified to.
27. Exceptions to the res inter alios acta rule - The first branch of the rule admits
of certain exceptions, to wit:
(a) admission by a co-partner or agent; (b) admission by a co-conspirator;

and (c) admission by privies (Sec. 31, Rule 130).
The basis for admitting the above admissions is that the person making the
statements is under the same circumstances as the person against whom it is offered.
Such circumstances give him substantially the same interest and the same motive to
make a statement about certain matters.
Admission by a co-conspirator - A conspiracy exists when two or more persons

come to an agreement concerning the commission of a felony and decide to commit it
Once the conspiracy is proven, the act of one is the act of all. The statement, therefore,
of one, may be admitted against the other co-conspirators as an exception to the rule
of res inter alios acta. Assume that two months after a successful bank robbery, A was
arrested as a direct participant in the crime. During a television interview, he admitted
his participation in the robbery. He also implicated B and C as his other companions
in the planning and execution of the robbery. Is his statement admissible? The
statement is admissible as to him but not as to B and C (Sec. 28, Rule 130). While A
was a co-conspirator, his statement will be admissible against B and C only when the
following concur:
(a) The declaration or act be made or done during the existence of the
conspiracy;
(b) The declaration or act must relate to the conspiracy; and
(c) The conspiracy must be shown by evidence other than the declaration or
act.
Note that the declaration of A was made long after the conspiracy was over. Even
assuming that the conspiracy can be proven by independent evidence and even if his
statement was related to the conspiracy, the declaration is not admissible as an

exception to the rule of res inter alios acta. Incriminating declarations of co-
conspirators made in the absence of or without the knowledge of the others after the
conspiracy has come to an end is inadmissible. The arrest of the declarant is often
found to terminate the defendant’s participation in the conspiracy so that the
declarant’s post arrest statements do not qualify as admissible co-conspirator
statements.
NOTE: The rule requiring the concurrence of the above elements does not apply
when the co-accused takes the witness stand and repeats his extrajudicial confession
as a witness. The declarations referred to under the res inter alios acta rule are
extrajudicial statements or declarations. To be admitted as an exception, the
extrajudicial statements of the co-conspirator must be proven by evidence other than
the admission. This requisite only applies when the admission is extrajudicial. Where
the statement of the co-conspirator is made as witness in court, there is no need for
the conspiracy to be shown by independent evidence.
28. In civil cases, an offer of compromise is not an admission of any liability,

and is not an admission against the offeror. However, an offer of compromise by the
accused may be received in evidence as an implied admission of guilt. There is no
implied admission of guilt if the offer of compromise is in relation to (a) quasi-offenses
(criminal negligence), or (b) in those cases allowed by law to be compromised.
29. A plea of guilty later withdrawn is not admissible in evidence against the
accused who made the admission. An unaccepted plea of guilty to a lesser offense is
not admissible in evidence against the accused who made the plea or offer. An offer to
pay or the payment of medical, hospital or other expenses occasioned by an injury is
not admissible in evidence as proof of civil or criminal liability.
30. Object evidence, also called ‘real evidence’, is one of the major categories of
evidence in the Rules of Court aside from documentary and testimonial evidences.
Objects as evidence refer to those which are addressed to the senses of the court.
When relevant, it may be exhibited to, or examined or viewed by the court. An object
may be considered a documentary evidence and a document may sometimes be an
object evidence depending on the purpose for which it is offered.
A documentary evidence need not necessarily be a writing. Under Sec. 2 of Rule

130, documents as evidence may consist of writings or any material (not only
writings) containing letters, words, numbers, figures, symbols or other modes of
written expression provided they are offered to prove their contents. If an object,
therefore, has modes of written expressions and the object is offered to prove the
contents of such written expressions, the object is offered as a documentary evidence
even if, by nature, it is an object. On the other hand, if a writing is offered not to prove
its contents but matters like its existence or its execution or any other matter other
than its contents, the writing is not a documentary but an object evidence. Thus, if a
pen, which is an object, is offered to prove what is written on its stem, the pen is
offered as a documentary evidence. If a writing like a deed of sale is offered to prove
that a deed exists, the deed of sale, even if a document, is offered as an object
evidence.
It is important to know whether an evidence is documentary or object evidence.

Where a document is offered as an object evidence, evidentiary rules like the best
evidence rule and the parol evidence rule will not come into operation. The hearsay
rule will not likewise apply to an object evidence.
31. The ‘best evidence rule’ does not apply to an object evidence. It applies only
to documentary evidence. When an issue arises whether or not the best evidence rule
applies, the examinee must ask himself two questions: (a) Is there a document

involved? and (b) Is the subject of inquiry the contents of the document? If both are
answered in the affirmative, then the best evidence rule applies. Hence, if there is a
document involved in the case but the subject of inquiry is the existence or the due
execution of the document or the paper on which the document is written, the rule
does not apply.
When the best evidence rule comes into operation, it is presumed that the subject
of inquiry is the contents of the document. If this is so, then the party offering the
document must present the original thereof and not its copy or other secondary
evidence.
The presentation of the original is not an absolute rule. Secondary evidence may
be admissible provided the offeror satisfies the requirements for laying the basis for
the presentation of secondary evidence. Laying the basis involves explaining to the
satisfaction of the court the reason for the inability to offer the original of the
document. For instance, where the original is lost or destroyed or cannot be produced
in court, laying the basis for the offering of secondary evidence involves showing the
following:
(a) That an original exists; (b) That the original was duly executed; (c) That the
cause of its unavailability like loss, destruction, etc. is explained; and (d) That its
unavailability was without bad faith on the part of the offeror.
If the original cannot be produced because it is in the custody of the adverse

party, laying the basis for the offering of secondary evidence consists in showing the
following:
(a) That an original exists; (b) That the original has been duly executed; (c) That
the adverse party has been given reasonable notice to produce the original; and (d)
That the adverse party fails to produce the original despite such reasonable notice.
If the offeror has successfully laid the basis for the presentation of the secondary
evidence, then the original need not be presented. However, one must observe the
order in which secondary evidence is to be offered. This is because not every
secondary evidence can be offered. The following order must, therefore, be observed:
(a) a copy of the original; (b) if there is no copy, then a recital of its contents in some
authentic document; (c) in default of the above, by testimony of witnesses.
There could be several originals of a document. When a document is in two or

more copies executed at or about the same time, with identical contents, all such
copies are equally regarded as originals. Also, when an entry is repeated in the regular
course of business, one being copied from another at or near the time of the
transaction, all the entries are likewise equally regarded as originals.
32. The term ‘parol’ refers to an evidence that is outside a writing. Sometimes, it
is referred to as ‘extrinsic’ evidence or evidence aliunde. The concept of the rule is
intimately related to the law on contracts. Under the Civil Code of the Philippines, a
contract is perfected or born by the mere meeting of the minds. Contracts are,
therefore, as a rule, consensual. The moment the parties agree on the terms of the
agreement, a contract arises. A contract of sale, for instance, may exist in any form. It
may be oral. It may be in writing; it may be partly in writing or partly oral. It may even
be inferred from the conduct of the parties. As long as the essential elements of a
contract are present, a contract exists.
The parol evidence rule does not apply to oral contracts. It will only be applied
the moment the oral agreement is set forth in writing. The moment the parties reduce
their agreement into writing, such writing now is presumed to contain all the terms of

the agreement. If the writing contains all the terms of the agreement, no other
evidence can be introduced to modify, change, contradict, explain or add to the
writing. In short, the evidence of the terms of the agreement is only the written
agreement. Any evidence other than the writing or outside the writing is parol; hence,
inadmissible if properly objected to. Hence, if the deed of sale provides for a price of P1
million, a testimony showing that the true agreement is P2 million is parol and must
be objected to. The evidence of P2 million is ‘extrinsic’ to the writing and is parol
evidence prohibited by the rule.
The rule that parol evidence is inadmissible is not absolute. Parol evidence may
be introduced without violating the rule. If a party wants to introduce parol evidence,
he must put in issue in his pleading the fact that the terms of the agreement of the
parties is not what the written agreement provides because of any of the following
reasons: (a) there is an intrinsic ambiguity, mistake or imperfection in the writing; (b)
the written agreement failed to express the true intent of the parties; (c) the written
agreement is not valid; (d) the parties have another agreement after the execution of
the written agreement. The key is to put any of the above matters IN ISSUE in the
pleadings. Without raising the same in issue in the pleadings, parol evidence will be
inadmissible. Thus, if PP sues DD for collection of a loan of P100,000, DD, as a rule,
cannot present evidence that the actual loan is P50,000 because the latter evidence is
an evidence which modifies the contract. It is inadmissible parol evidence. If DD
wants the evidence to be admitted, he must put in issue in his answer to the
complaint the fact that the note does not contain the true agreement of the parties and
that the actual obligation is only P50,000. He does this by specifically denying the
allegations in the complaint. By doing so, he has put the matter of the amount of the
debt and the character of the note in issue.
The parol evidence rule applies only to writings that are, in themselves,
agreements. In short, they apply only to contractual writings. Note, however, that for
the purpose of the parol evidence rule, a will is considered an agreement. On the other
hand, the best evidence rule applies to all writings, contractual or not. Note also that
in the best evidence rule, the issue is whether the writing is an original or a mere
secondary evidence. In the parol evidence, the issue is whether or not a matter is the
true agreement of the parties.
33. For the purpose of their presentation in evidence, documents are either
public or private. Public documents are:
a. The written official acts, or records of the official acts of the sovereign
authority, official bodies and tribunals, and public officers, whether of the
Philippines, or of a foreign country;
b. Documents acknowledged before a notary public except last wills and

testaments; and
c. Public records, kept in the Philippines, of private documents required by law

to be entered therein.
All other writings are private (Sec. 19, Rule 132, Rules of Court).
Before any private document offered as authentic is received in evidence, its due
execution and authenticity must be proved either:
a. By anyone who saw the document executed or written; or
b. By evidence of the genuineness of the signature or handwriting of the

maker.

NOTE: Authentication is not required where a document is not offered as
authentic. If not offered as authentic, the private document only needs identification.
Where a private document is more than thirty years old, is produced from a
custody in which it would naturally be found if genuine, and is unblemished by any
alterations or circumstances of suspicion, no other evidence of its authenticity need be
given.
The handwriting of a person may be proved by any witness who believes it to be

the handwriting of such person because he has seen the person write, or has seen
writing purporting to be his upon which the witness has acted or been charged, and
has thus acquired knowledge of the handwriting of such person. Evidence respecting
the handwriting may also be given by a comparison, made by the witness or the court,
with writings admitted or treated as genuine by the party against whom the evidence
is offered, or proved to be genuine to the satisfaction of the judge.
Every instrument duly acknowledged or proved and certified as provided by law,

may be presented in evidence without further proof, the certificate of acknowledgment
being prima facie evidence of the execution of the instrument or document involved .
34. When a witness is competent, that means that he has the qualifications and
none of the disqualifications as a witness. A witness may be competent to testify but
he may not be credible. Thus, there is a distinction between competence of a witness
and his credibility. The latter term refers to the believability of the witness or the
probative value of his testimony. The religion, political belief and the interest of the
witness in the case do not affect the competence of a witness but may affect his
credibility. As a rule, all persons who can perceive, and in perceiving can make known
their perception to others, may be witnesses.
A witness must answer questions, although his answer may tend to establish a
claim against him. Following this rule, he may be required by the court to answer a
particular question even if it would result into his admission of a liability adverse to
him. This provision, however, obviously refers to a civil claim or a claim not penal in
nature because if the answer will tend to subject the witness to a penalty for an
offense, he has the right not to give an answer because he is protected by the
Constitution through his right against self-incrimination.
On cross-examination, the witness may not only be cross-examined as to matters

testified to by the witness in the direct examination. He may be asked questions on
matters connected with his testimony in the direct examination although not directly
testified to by him as long as the connection may be established. The cross-examiner
is in fact given sufficient fullness and freedom to ask questions that would test the
accuracy and truthfulness of the witness and his freedom from interest or bias and to
elicit important facts bearing upon the issues. A witness cannot be compelled to
answer a question which tends to degrade his reputation, except if his reputation is
the very fact in issue in the case or from which the fact in issue would be presumed.
With regards to a previous final conviction of the witness, a witness must answer a
question as to the fact of such conviction for an offense. If it is a conviction that is not
yet final, a witness may not be compelled to answer.
A witness should not be asked leading questions in a direct examination.. This is

the general rule. Asking leading questions is, however, the norm in a cross-
examination. In a cross-examination, what is prohibited is asking a misleading
question. Even in a direct examination, there are instances when a leading question
is allowed. Preliminary questions, for instance, could involve leading questions. Also,
when there is difficulty in obtaining intelligible answers from a witness who is
ignorant, or from a child of tender years, or from one who is feeble-minded, leading

questions could be allowed. The same holds true when a witness is unwilling or hostile
or is an adverse party or when the witness is one who represents an adverse party
which is a juridical person.
35. Impeachment of a witness is the process by which credibility is attacked or

assailed. The rule recognizes three (3) modes of impeaching a witness. They are:
(a) By contradictory evidence; (b) by evidence that his general reputation for
truth, honesty or integrity is bad; or (c) by evidence that he has made at other times
statements inconsistent with his present testimony.
A witness cannot be impeached by presenting evidence of his particular wrongful

acts as when evidence of a series of misconduct by the witness is offered. There is one
evidence of a wrongful allowed to be offered and that is his previous conviction of an
offense..
Note that, under Sec. 11 of Rule 132, a witness cannot be impeached by evidence
of his bad character although he can be impeached by evidence of his general bad
reputation. The rule emphasizes ‘reputation’, not ‘character’. Reputation is how a
person is perceived by his community. While character is what a person is. The
reputation of a witness for purposes of impeachment is, however, confined to three
matters, namely: (a) truth, (b) honesty, and (c) integrity. Hence, you cannot impeach a
witness because of his reputation for being troublesome.
When a witness testifies in court, for instance, that it was the plaintiff who ran
the red light in an intersection but tells a police officer immediately after the incident
that it was the defendant who ran the red light and not the plaintiff, we have a clear
case where the witness made a statement inconsistent with his in-court testimony.
Is it correct to immediately call the police officer to testify on the inconsistent

statement of the witness? It would not be procedurally correct. The rule requires the
adverse party to lay the predicate before the impeaching witness (the police officer) is
called to the stand. Laying the predicate means that the inconsistent testimony must
first be related to the witness, with the circumstances of the times and places and the
persons present, and then he must be asked whether he made such statement, and if
so, be allowed to explain the making of the inconsistent statement. If the inconsistent
statement be in writing, it must be shown to the witness before any question is put to
him.
36. The disqualification of a witness by reason of marriage is commonly known

as the ‘marital disqualification rule’. The tenor of this rule obviously applies only to
spouses who have been validly married or whose marriage has not been annulled or
declared void. The rule does not include common law relationships. However, the
Court applied the rule to spouses who have been separated de facto even if there was
no formal annulment of the marriage or legal separation.
The rule prohibits either of the spouses to testify for or against the other without
the consent of the affected spouse. Note that the testimony which requires consent is
not only a testimony against the spouse because even a favorable testimony (note the
term, for) requires consent under Sec. 22 of Rule 130. The prohibition, however, no
longer exists when the marriage has already been dissolved. The prohibition applies
only “during the marriage”.
Do not confuse Sec. 22 with the marital privileged communication rule under
Sec. 24(a) of Rule 130. The marital privileged communication rule under Sec. 24(a) will
be used only when the facts of the case show that there is a confidential information
transmitted from one spouse to the other. This information, if meant to be between the

spouses alone, is privileged and cannot be disclosed without the consent of the
affected spouse. The other spouse cannot be examined without the consent of the
other as to the privileged communication. If there is a privileged communication, the
duration of the prohibition applies not only during the existence of the marriage. The
prohibition exists even after the marriage.
Rule: If there is no confidential information, use Sec. 22. If there is, use Sec.
24(a). Note that both rules have common exceptions. In a civil case, the prohibition to
testify or to be examined will not apply when the case is between the spouses, i.e., by
one against the other. In a criminal case, the prohibition will not apply where one
spouse is prosecuted for a crime committed against the other spouse, or against the
latter’s ascendants or descendants in the direct line. Thus, the prohibition still applies
where the crime is committed against collateral relatives.
37. The prohibition on an attorney to disclose communications from his client

refers to communications made by the client in the course of, or with a view to the
lawyer’s professional employment. Even the advice of the attorney cannot be disclosed
without the consent of the client. The prohibition does not cover only the attorney. It
also prohibits a disclosure by the attorney’s secretary, stenographer or clerk. Like the
attorney, they cannot be examined as to the communication made by the client
without the latter’s consent.
38. The prohibition on a doctor-patient relationship, refers to persons authorized

to practice medicine, surgery or obstetrics. Note the express reference only to a civil
case.
38-A. Filial privilege rule - A restatement of this rule discloses that a person may
testify against his parents, other direct ascendants, children or other direct
descendants. He should not, however, be compelled to make the testimony. Whether or
not he will testify against such person is a matter subject to said person’s discretion. A
compelled testimony is what the rule obviously prohibits.
39. Generally, hearsay evidence is inadmissible because the person who testifies
does so based on matters not of his personal knowledge but based on the knowledge of
another who is not in court and cannot, therefore, be cross-examined. The one who is
in court is the person who merely repeats matters witnessed personally by another.
This type of evidence is inadmissible because of its inherent unreliability. The tenor of
Sec. 36, Rule 130 requires that “A witness can testify only to those facts which he
knows of his personal knowledge; that is, which are derived from his own perception,
except as otherwise provided in these rules”
A hearsay evidence may be in writing. For instance, an affidavit is hearsay unless

the affiant affirms the same in court and is subject to cross-examination. A hearsay
testimony involves an outside-declarant and an in-court witness. It is the outside
declarant who says something based on what he has perceived. His statement is heard
by someone who is the one who testifies in court (in-court witness) as to what he
heard. If the witness offers the statement of the outside declarant in court to prove the
truth of such statement (the one which he heard), the testimony of the witness is
hearsay. If it is offered merely to prove that he heard the statement without reference
to its truth or falsity, his testimony is not hearsay. Illustration: Wilfredo testifies: “I
heard Pablo say that it was Jose who shot the victim”! Is this hearsay? It depends
upon the purpose. If the statement of Pablo is offered to prove that it was really Jose
who shot the victim, the testimony is hearsay. Wilfredo has no personal knowledge of
the incident. It is Pablo who witnessed the shooting. It is Pablo who should be in court
to testify so he could be examined effectively. Wilfredo cannot be subjected to a true

cross-examination because he has no personal knowledge to testify to and, hence,
cannot be cross-examined to ferret out the truth.
If the testimony is offered merely to prove what he heard Pablo say, the testimony
is not hearsay. If what he heard is relevant to an issue in the case, it will fall under the
category of independently relevant statements which means statements which are
relevant as to their tenor or to the fact that they were uttered and not as to whether
they are true or false.
There are exceptions to the general rule that hearsay evidence is inadmissible.
Hearsay evidence may, in some instances, be admissible. It is not correct to say that
the exceptions to the hearsay rule are not hearsay. They are indeed hearsay. But they
are admissible because they are considered reliable by common experience. Thus, it
would be more appropriate to call these exceptions as admissible hearsay.
40. Dying declarations - This is the most significant exception to the hearsay
evidence rule. If before X died, he told a police officer that it was Y who shot him, it
would be the officer who would be testifying in court. The officer has no personal
knowledge of the event. If the dying declaration of X is offered to prove the guilt of Y,
the testimony of the officer in court is definitely hearsay. The dying declaration of X is,
however, an exception to the inadmissibility of hearsay evidence. There has been a
traditional acceptance of dying declarations because of the presumption that a dying
person will tell the truth before he meets his Creator. While there is no guarantee that
a person in the throes of death will tell the truth, this assumption has been
traditionally accepted for almost two hundred years, an assumption which has
trickled down to modern times.
The most significant element, therefore, of a dying declaration is that the

declarant must have been conscious of his impending death. It is this consciousness
which is assumed to be the compelling motive to tell the truth.
To be admissible as a dying declaration, the declaration must relate to the cause

and circumstances of the death of the declarant. Any statement he makes not related
to the circumstances of his death is inadmissible as a dying declaration.
The dying declaration is admissible in any case provided the subject of inquiry in
that case is the death of the declarant. The old rule that it is admissible only in a
criminal case no longer holds true because of the phraseology of Sec. 37 of Rule 130.
It is required that the declarant should die. If he lives, there is no need for the
dying declaration because the declarant may testify personally based on his own
personal knowledge. Suppose, by chance, he survives but is unable to testify due to
severe physical and emotional infirmity, may his declaration be admitted in evidence?
Yes, but not as a dying declaration. It could be admitted as a statement made by a
person immediately subsequent to a startling occurrence. The shooting of the
declarant is the startling occurrence. The statement made as to the circumstances of
the shooting, while not a dying declaration because he survived, could be considered
as part of the res gestae under Sec. 42 of Rule 130.
41. This exception presupposes that there is a startling occurrence, an event

which causes excitement to the perceiver. A statement made by the declarant about
the occurrence or event, while the event is taking place or immediately prior or
subsequent thereto, is admissible as part of the res gestae. Note that the one who
made the statement is not the one testifying in court. Under normal circumstances, he
should be the one in court as the actual perceiver of the event. But if he is not
available, the person who heard his utterances may testify. The in-court witness is the
person who did not perceive the occurrence. His testimony is actually hearsay for lack

of personal knowledge. But he is allowed to testify as to what he heard under the
presumption that the statement he heard is reliable because when one describes an
event as it is taking place or immediately prior or subsequent thereto, there is no room
for fabrication.
Another part of the res gestae refers to the so-called verbal acts. These are
statements made which accompany an equivocal act material to the issue, and gives
the act legal significance. An equivocal act is an act which may be subject to various
interpretations. Thus, if X testifies that W, a customs broker, handed a thick wad of
bills to a customs employee, one cannot presume automatically that the money was
handed as a bribe. It may have been given in payment of a debt or the receiver was
merely asked to give the money to someone else. However, when the handing of the
money was coupled with the statement, “Here is the money you asked for. Can I
expect you now to sign for the release of the goods today?” The statement has given
the act of giving money a legal significance. The person who heard such words uttered
may testify on the statement he heard to prove bribery..
42. It is important to make an offer of evidence. Identifying the evidence during

the trial and having marked it as an exhibit is not enough. After the presentation of
the testimonial evidences of the party, an offer of evidence of the documentary and
object evidences must be made. Evidence not formally offered shall not be considered
by the court. This offer is also called an ‘offer of evidence’ or the so-called formal offer
of exhibits. If the evidence is testimonial, the offer of the testimony must be made at
the time the witness is called to testify. Note: There were times when the Court held
that a formal offer may be excused if the evidence has been the subject of a testimony
duly recorded and forms part of the record of the case.
The offer is done orally unless allowed by the court to be done in writing.
Objections to evidence offered orally must be made immediately after the offer is made.
The time to object to a documentary evidence is not when it is marked as an exhibit
but when formally offered. If the objection is to a question asked, the objection should
be made as soon as the grounds therefor become reasonably apparent. When the offer
is in writing, it shall be objected to within three (3) days after the notice of the offer
unless a different period is allowed by the court.
The ruling of the court must be given immediately after the objection is made,
unless the court desires to take a reasonable time to inform itself on the question
presented. The ruling, however, shall always be made during the trial and at such
time as will give the party against whom it is made an opportunity to meet the
situation presented by the ruling. If a witness answers the question before the
adverse party had the opportunity to voice fully its objection and the objection is found
to be meritorious, the court shall sustain the objection and order that the answer
given be stricken off the record. On proper motion, the court may also order the
striking out of answers which are incompetent, irrelevant, or otherwise improper.
Tender of excluded evidence - This is the procedure by which excluded evidence

may still be inserted as part of the records of the case. Assume that evidence was
offered by a party. Upon proper objection, the evidence was held inadmissible by the
court. Because of this, the evidence will not be considered as part of the record and
will not be considered by the court. For the evidence to be on record, the party affected
must make a tender of excluded evidence. Traditional jurisprudence called this tender
also as an ‘offer of proof’. The term should not be confused with ‘offer of evidence’
which is the formal offer of evidence or exhibits discussed in par. 1 of this topic.
Miscellaneous Principles

1. In criminal prosecutions involving illegal drugs, the drugs constitute the
corpus delicti. Hence, it must be proven that the drugs presented in court are the very
same items that were confiscated from the accused. This is done by following the
chain of custody under the law. If the chain of custody in Sec. 21 of R.A. 9165 is not
followed, the defense cannot argue that the noncompliance resulted in the
inadmissibility of the evidence or in an illegal arrest. It may, however, affect the weight
of the evidence. To retain the probative value of the evidence, the officers must explain
the reason for their non-compliance with the law. After such explanation is given, they
must also prove that, despite the non-compliance, the evidentiary value and the
integrity of the evidence were not impaired or affected.
2. A chemistry report prepared by a government official or employee is a public

document. The chemist need not testify in court and the report is admissible. Also, the
picture seat plan prepared by officials of the Civil Service commission is a public
document and is admissible in evidence without need of proof of its authenticity and
due execution.
3. Church registries of births, marriages and deaths are no longer considered as

public documents.
4. Entries in police records made in the performance of duty are prima facie
evidence of the facts stated therein. The entries are not, however, conclusive proof of
the truth of such entries.
5. Text messages are electronic evidence and can be given probative value.
6. Police officers are presumed to have acted in the regular performance of their
official duties, unless the contrary is proven.
7. Filing judicial affidavits are mandatory except in small claims cases.
8. An affidavit is merely hearsay where its affiant did not testify.
9. The opinion of handwriting experts are not necessarily binding on the court.
10. A child is now presumed to be a qualified witness.
11. The conviction of an accused must be based on the strength of the

prosecution and not on the weakness of the defense.
12. Where a foreign law is not proven, it is presumed, under the doctrine of
processual presumption, that said law is the same as Philippine law.
13. Objection to evidence cannot be raised for the first time on appeal.
14. Circumstantial evidence is sufficient for conviction if (a) there is more than
one circumstance; (b) the facts from which the inferences are derived are proved; and
(c) the combination of such circumstances is such as to produce conviction beyond
reasonable doubt.
15. There could be a post conviction DNA examination. This does not need
leave of court and may be done at the instance of the convict or the prosecution.
Requisites: A biological samples must exist; such sample is relevant to the case; it may
result in a reversal or change in the judgment. Remedy if DNA examination is
favorable: File a petition for writ of habeas corpus in the court of origin.
-oOo-

UE Notes - Civil Procedure (Riano 2016)

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

UE Notes - Civil Procedure (Riano 2016)

Uploaded by

Copyright:

Available Formats

PRE-WEEK REMINDERS IN CIVIL PROCEDURE

[ The WARRIOR Notes ]

Actions/ Cause of Action

UNIVERSITY OF THE EAST COLLEGE OF LAW

If X, Y and Z promised to pay A or his order, P900,000, under a single promissory

UNIVERSITY OF THE EAST COLLEGE OF LAW

Where a matter is best resolved first by an administrative body, a controversy must

Under the doctrine of non-interference or the doctrine of judicial stability, a court

UNIVERSITY OF THE EAST COLLEGE OF LAW

Examples of real actions: accion publiciana; accion reivindicatoria; action to recover

6. Majority of jurisprudence considers an action for quieting of title (removal of a cloud

UNIVERSITY OF THE EAST COLLEGE OF LAW

13. In interpleader, look at the property subject of the interpleader. If it is a

UNIVERSITY OF THE EAST COLLEGE OF LAW

UNIVERSITY OF THE EAST COLLEGE OF LAW

3. The concept of “locus standi” or standing is a constitutional law concept allowing a

UNIVERSITY OF THE EAST COLLEGE OF LAW

UNIVERSITY OF THE EAST COLLEGE OF LAW

The complementary-contracts-construed rule - This rule presupposes that the principal

6. Where after an extrajudicial foreclosure of a real estate mortgage, a deficiency exists

UNIVERSITY OF THE EAST COLLEGE OF LAW

6. A certification against forum shopping is required in a complaint or other initiatory

UNIVERSITY OF THE EAST COLLEGE OF LAW

8. If a false certification is submitted, the party responsible shall be subject to indirect

2. A defendant cannot be declared in default unless such declaration is preceded by a

UNIVERSITY OF THE EAST COLLEGE OF LAW

5. There is no declaration of default in an action for annulment of marriage, for

6. A motion to declare the defendant or respondent in default is prohibited in cases

UNIVERSITY OF THE EAST COLLEGE OF LAW

2. An amendment of a pleading, to correct or cure a deficiency in the allegations, is

Note: An amendment to correct and error of jurisdiction after a responsive pleading

UNIVERSITY OF THE EAST COLLEGE OF LAW

6. A supplemental pleading is not an amended pleading. A supplemental pleading is

As a rule, an appearance in whatever form, without expressly objecting to the

Examples of voluntary appearance or voluntary submission to the jurisdiction of the

2. Jurisdiction over the person of the defendant is mandatory in an action in personam.

3. Normally, summons by publication is not sufficient to acquire jurisdiction over a

UNIVERSITY OF THE EAST COLLEGE OF LAW

5. Before resorting to substituted service of summons, efforts have to be exerted to serve

In substituted service, service of summons should be made on the persons mentioned

6. Extraterritorial service of summons applies, as a rule, to non-residents who, at the

UNIVERSITY OF THE EAST COLLEGE OF LAW

7. When the defendant is a domestic corporation, partnership or association, service of

8. If a foreign private juridical entity is not registered in the Philippines, or has no

Motions and miscellaneous principles

UNIVERSITY OF THE EAST COLLEGE OF LAW

Pre-trial and modes of discovery

1. A pre-trial is mandatory in a civil case. It is also mandatory in a criminal case in the

2. Depositions pending action, depositions pending appeal, interrogatories to parties,

UNIVERSITY OF THE EAST COLLEGE OF LAW

Remedies after a judgment

UNIVERSITY OF THE EAST COLLEGE OF LAW

UNIVERSITY OF THE EAST COLLEGE OF LAW

UNIVERSITY OF THE EAST COLLEGE OF LAW

UNIVERSITY OF THE EAST COLLEGE OF LAW

UNIVERSITY OF THE EAST COLLEGE OF LAW

To secure a writ of preliminary attachment, an application must be made stating the

A writ of preliminary injunction cannot be issued without a hearing. What may be

UNIVERSITY OF THE EAST COLLEGE OF LAW

Preliminary injunction is available in forcible entry and unlawful detainer to restore

If a judgment is rendered against the defendant in an unlawful detainer or forcible

UNIVERSITY OF THE EAST COLLEGE OF LAW

36. The foreclosure of mortgage in Rule 68 has reference to a judicial foreclosure. An

UNIVERSITY OF THE EAST COLLEGE OF LAW