Remedial PDF

GENERAL PRINCIPLES
I. GENERAL PRINCIPLES 7. Court decisions (Herrera, Vol. I, p. 2, 2007

ed.)
A. CONCEPT OF REMEDIAL LAW
Q: What is procedural rule?
Q: What is the concept of remedial law?
A: Procedural rule is the judicial process for
A: It is a branch of public law, which prescribes the enforcing rights and duties recognized by
procedural rules to be observed in litigations, substantive law and for justly administering remedy
whether civil, criminal, or administrative, and in and redress for their disregard or infraction.
special proceedings, as well as the remedies or
reliefs available in each case. (2006 Bar Question) Note: If the rule takes away a vested right, it is not
procedural. If the rule creates a right such as the right
Q: What is the importance of remedial law? to appeal, it may be classified as substantive matter;
but if it operates as a means of implementing an
A: It plays a vital role in the administration of existing right, then the rule deals merely with
justice. It lies at the very core of procedural due procedure (Fabian v. Desierto, G.R. No. 129742, Sept.
process, which means a law which hears before it 16, 1998).
condemns, which proceeds upon inquiry and
renders judgment only after trial, and contemplates Q: How are remedial laws implemented in our
an opportunity to be heard before judgment is system of government?
rendered (Herrera, Vol. I, p. 1, 2007 ed.)
A: They are implemented through the judicial
B. SUBSTANTIVE LAW AS DISTINGUISHED FROM system, including the prosecutory service of courts
REMEDIAL LAW and quasi-judicial agencies. (2006 Bar Question)
Q: Distinguish substantive and remedial law C. RULE-MAKING POWER OF THE SUPREME COURT
A: 1. LIMITATIONS ON THE RULE-MAKING POWER OF

Substantive Law Remedial Law THE SUPREME COURT
Part of the law which Refers to the legislation
creates, defines or providing means or Q: What are the limitations on the rule-making
regulates rights concerning methods whereby causes power of the Supreme Court?
life, liberty or property or of action may be
the powers of agencies or effectuated, wrongs A:
instrumentalities for the redressed and relief 1. It shall provide a simplified and
administration of public obtained (also known as inexpensive procedure for the speedy
affairs. Adjective Law). disposition of cases.
Does not create vested 2. The rules must be uniform for all the
Creates vested rights.
rights courts of the same grade.
Retroactive in 3. The rules must not diminish, increase or
Prospective in application.
application modify substantive rights (Cruz, Philippine
The Supreme Court is Political Law, p. 281, 2002 ed.)
expressly empowered to
Cannot be enacted by the
promulgate procedural 2. POWER OF THE SUPREME COURT TO AMEND
Supreme Court.
rules. (2006 Bar AND SUSPEND PROCEDURAL RULES
Question)
Q: May the Supreme Court suspend the
Q: What are the principal sources of remedial law? application of the Rules of Court and exempt a
case from its operation?
A:
1. Constitution A: Yes. In the interest of just and expeditious
2. Different laws creating the judiciary, proceedings, the Supreme Court may do so because
defining and allocating jurisdiction to the Rules were precisely adopted with the primary
courts of different levels objective of enhancing fair trial and expeditious
3. Procedural laws and rules promulgated by justice. (Republic v. CA, G.R. No. L-31303, May 31,
the Supreme Court 1978)
4. Circulars
5. Administrative orders
6. Internal rules
1
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA UNIVERSITY OF SANTO TOMAS
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011
D. NATURE OF PHILIPPINE COURTS 5. COURTS OF GENERAL AND SPECIAL

1. MEANING OF A COURT JURISDICTION
Q: What is a court? Q: Distinguish Courts of general jurisdiction from

special jurisdiction.
A: It is an organ of the government, belonging to
the judicial department, whose function is the A:
application of laws to controversies brought before Courts of General Courts of Special
it and the public administration of justice. (Black’s jurisdiction jurisdiction
Law Dictionary) Takes cognizance of all Takes cognizance of
cases , civil or criminal, special jurisdiction for a
2. COURT AS DISTINGUISHED FROM A JUDGE of a particular nature, or particular purpose, or are
courts whose judgment clothed with special
Q: Distinguish court from a judge is conclusive until powers for the
modified or reversed on performance of specified
direct attack, and who duties, beyond which
Court Judge
are competent to decide they have no authority of
Entire body in which the Only an officer or
on their own jurisdiction any kind
judicial power is vested member of the court
May exist without a There may be a judge
present judge without a court 6. CONSTITUTIONAL AND STATUTORY COURTS
Disqualification of a
judge does not affect May be disqualified Q: Distinguish constitutional court from statutory
the court court.
3. CLASSIFICATION OF PHILIPPINE COURTS A:

Constitutional Court Statutory Court
Q: What are the classifications of Philippine Created by the constitution Created by law
courts? e.g. SC e.g. CTA
May be abolished by
A: Cannot be abolished by Congress by just simply
Congress without amending repealing the law
1. Regular courts (Supreme Court, Court of
the Constitution which created those
Appeals, Regional Trial Courts,
courts
Metropolitan Trial Courts, Municipal Trial
Courts in Cities, Municipal Trial Courts ,
7. COURTS OF LAW AND EQUITY
Municipal Circuit Trial Courts)
2. Special courts (Sandiganbayan, Court of
Q: Distinguish Courts of law from equity.
Tax Appels, Shari'a District Courts, Shari'a
Circuit Courts)
A:
3. Quasi-courts or Quasi-judicial agencies
Courts of Law Courts of Equity
(e.g Civil Service Commission)
Any tribunal duly Any tribunal administering
administering the justice outside the law, being
4. COURTS OF ORIGINAL AND APPELLATE laws of the land ethical rather than jural and
JURISDICTION belonging to the sphere of
morals rather than of law. It is
Q: Distinguish Courts of original jurisdiction from grounded on the precepts of
Courts of appellate jurisdiction. conscience and not on any
sanction of positive law, for
A: equity finds no room for
Courts of Original Courts of Appellate application where there is law.
jurisdiction jurisdiction (Herrera, Vol. I, p. 18, 2007 ed.)
Courts exercising Superior Courts reviewing Decides a case Adjudicates a controversy
jurisdiction in the first and deciding cases according to what according to the common
instance previously decided by a the promulgated precepts of what is right and
lower court law is just without inquiring into the
terms of the statutes
2 REMEDIAL LAW TEAM:

ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAÑA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
GENERAL PRINCIPLES
Q: What are courts of record?
A: These are courts whose proceedings are enrolled

and which are bound to keep written records of all
trials and proceedings handled by them. R.A. No.
6031 mandates all Municipal Trial Courts to be
courts of record.
8. PRINCIPLE OF JUDICIAL HIERARCHY
Q: What is the policy of Judicial Hierarchy or

hierarchy of courts?
A: A higher court will not entertain direct resort to

it unless the redress desired cannot be obtained in
the appropriate courts. The Supreme Court is a
court of last resort and must so remain if it is to
satisfactorily perform assigned to it. (1996 Bar
Question)
9. DOCTRINE OF NON-INTERFERENCE OR
DOCTRINE OF JUDICIAL STABILITY
Q: What is Doctrine of Non-Interference or Judicial

Stability?
A: Courts of equal and coordinate jurisdiction

cannot interfere with each other’s orders. Thus, the
RTC has no power to nullify or enjoin the
enforcement of a writ of possession issued by
another RTC. The principle also bars a court from
reviewing or interfering with the judgment of a co-
equal court over which it has no appellate
jurisdiction or power of review.
Note: GR: No court has the authority to interfere by

injunction with the judgment of another court of
coordinate jurisdiction or to pass upon or scrutinize
and much less declare as unjust a judgment of another
court.
XPN: The doctrine does not apply where a third party

claimant is involved (Santos v. Bayhon, G.R. No. 88643,
July 23, 1991).
3
II. JURISDICTION Q: Distinguish jurisdiction over the subject matter

from jurisdiction over the person.
Q: What is jurisdiction?
A:
A: It is the power and authority of a court to try, Jurisdiction Over the Subject Jurisdiction Over the
hear, and decide a case and to carry its judgments Matter Person
into effect (Latin: “juris” and “dico,” which literally Determined by the allegations Acquired by the filing
means “I speak of the law”). of the complaint (Riano, Civil of the petition in case
Procedure: A Restatement for of the plaintiff or by
Q: Is the statement that “Jurisdiction is conferred the Bar, p. 144, 2009 ed.) arrest (Rule 113), by
by substantive law“ accurate? valid service of
XPN: Where the real issues summons or voluntary
are evident from the record submission to the
A: No, because only jurisdiction over the subject
of the case, jurisdiction over court’s authority in
matter is conferred by substantive law. Jurisdiction
the subject matter cannot be case of the defendant
over the parties, issues and res is governed by
made to depend on how the (Ibid. p. 158)
procedural laws. parties word or phrase their
pleadings (Herrera, Vol. I, p. 2,
A. JURISDICTION OVER THE PARTIES 2007 ed.) e.g. in ejectment
cases in which the defendant
1. HOW JURISDICTION OVER THE PLAINTIFF IS averred the defense of the
ACQUIRED existence of tenancy
relationship between the
Q: How is jurisdiction over the plaintiff acquired? parties (Ibid p.148)
A: It is acquired from the moment of filing the Note: Tenancy relationship is

complaint, petition or initiatory pleading. not presumed and it is not
enough that it is alleged. There
must be evidence to prove that
2. HOW JURISDICTION OVER THE DEFENDANT IS it exists and that all its
ACQUIRED elements are established
(Salmorin v. Zaldivar, G.R. No.
Q: How is jurisdiction over the defendant 169691, July 23, 2008).
acquired? It is sometimes made
Conferred by law which may
to depend, indirectly
be either the Constitution or
A: It is acquired either: at least, on the party’s
a statute (Ibid. p. 143)
a. By his voluntary appearance in court and volition
his submission to its authority Cannot be conferred by the GR: The appearance of
b. By service of summons agreement of the parties, by the defendant in
c. Other coercive process upon him contract or by parties’ silence whatever form is
or acquiescence Ibid. p. 144) submission to the
Note: Jurisdiction over the defendant is not essential jurisdiction of the
in actions in rem or quasi in rem as long as the court court
has jurisdiction over the res (Herrera, Vol. I, p. 114,
2007 ed.) XPN: If the
appearance is to
object or question the
B. JURISDICTION OVER THE SUBJECT MATTER
court’s jurisdiction
(Ibid. p. 161)
1. MEANING OF JURISDICTION OVER THE SUBJECT
MATTER Note: In criminal cases,
jurisdiction over the
Q: What is jurisdiction over the subject matter? accused is always
required
A: It is the power to deal with the general subject
involved in the action, and means not simply
jurisdiction of the particular case then occupying
the attention of the court but jurisdiction of the
class of cases to which the particular case belongs.
It is the power or authority to hear and determine
cases to which the proceeding in question belongs.

JURISDICTION
2. JURISDICTION VERSUS THE EXERCISE OF

JURISDICTION 5. DOCTRINE OF PRIMARY JURISDICTION
Q: Distinguish jurisdiction from exercise of Q: What is Doctrine of Primary Jurisdiction?

jurisdiction.
A: Courts will not resolve a controversy involving a
A: Jurisdiction is the authority to hear and decide question which is within the jurisdiction of an
cases. On the other hand, exercise of jurisdiction is administrative tribunal, especially where the
any act of the court pursuant to such authority, question demands the exercise of sound
which includes making decisions. administrative discretion requiring the special
knowledge and experience of said tribunal in
3. ERROR OF JURISDICTION AS DISTINGUISHED determining technical and intricate matters of fact
FROM ERROR OF JUDGMENT (Villaflor v. CA, G.R. No. 95694, Oct. 9, 1997).
Q: Distinguish error of jurisdiction from error of Q: What is Doctrine of Ancillary Jurisdiction?

judgment.
A: It involves the inherent or implied powers of the
A: court to determine issues incidental to the exercise
Error of Jurisdiction Error of Judgment of its primary jurisdiction.
One where the court, One that the court may
officer or quasi-judicial commit in the exercise of Note: Under its ancillary jurisdiction, a court may
body acts without or in jurisdiction; it includes determine all questions relative to the matters
excess of jurisdiction, or errors of procedure or brought before it, regulate the manner in which a trial
with grave abuse of mistakes in the court’s shall be conducted, determine the hours at which the
discretion findings witnesses and lawyers may be heard, and grant an
Renders a judgment void Does not make the court’s injunction, attachment or garnishment.
or at least voidable decision void
Correctible by certiorari Correctible by appeal 6. DOCTRINE OF ADHERENCE TO JURISDICTION
The court acted with
jurisdiction but Q: What is Doctrine of Adherence to Jurisdiction or
There is an exercise of
committed procedural Continuity of Jurisdiction?
jurisdiction in the
errors in the appreciation
absence of jurisdiction
of the facts or the law A:
(1989 Bar Question)
GR: Jurisdiction, once attached, cannot be
ousted by subsequent happenings or events
4. HOW JURISDICTION IS CONFERRED AND although of a character which would have
DETERMINED prevented jurisdiction from attaching in the first
instance, and the court retains jurisdiction until
Note: discussion on how jurisdiction is conferred is on
it finally disposes of the case.
page 4.
XPNs:
Q: What are the instances in which jurisdiction
1. Where a subsequent statute expressly
cannot be conferred?
prohibits the continued exercise of
jurisdiction;
A:
2. Where the law penalizing an act which is
1. By the administrative policy of any court;
punishable is repealed by a subsequent
2. A court’s unilateral assumption of
law;
jurisdiction;
3. When accused is deprived of his
3. An erroneous belief by the court that it
constitutional right such as where the
has jurisdiction;
court fails to provide counsel for the
4. By the parties through a stipulation e.g.
accused who is unable to obtain one and
contract;
does not intelligently waive his
5. The agreement of the parties acquired
constitutional right;
through, or waived, enlarged or
4. Where the statute expressly provides, or
diminished by, any act or omission of the
is construed to the effect that it is
parties;
intended to operate as to actions pending
6. Parties silence, acquiescence or consent
before its enactment;
(Riano, Civil Procedure: A Restatement for
the Bar, p. 143, 11th ed.).
5
5. When the proceedings in the court because it cannot be tolerated by reason

acquiring jurisdiction is terminated, of public policy (Filipinas Shell Petroleum
abandoned or declared void; Corp. v. Dumlao, G.R. No. L-44888, Feb. 7,
6. Once appeal has been perfected; 1992).
7. Curative statutes (Herrera, Vol. I, p. 106,
2007 ed.). 3. A party who invokes the jurisdiction of
the court to secure affirmative relief
Q: Does retroactivity of a law affect jurisdiction? against his opponents cannot repudiate
or question the same after failing to
A: No. Jurisdiction being a matter of substantive obtain such relief (Tajonera v. Lamaroza,
law, the established rule is that statute in force at G.R. No. L-48907, 49035, Jan. 19, 1982).
the time of the commencement of the action
determines jurisdiction. (Herrera, Vol. I, p. 105, Note: Under the Omnibus Motion Rule, a motion
2007 ed.) attacking a pleading like a motion to dismiss shall
include all grounds then available and all objections
7. OBJECTIONS TO JURISDICTION OVER THE not so included shall be deemed waived. The defense
SUBJECT MATTER of lack of jurisdiction over the subject matter is
however, a defense not barred by the failure to invoke
Q: What is the effect of lack of jurisdiction over the same in a motion to dismiss already filed. Even if a
motion to dismiss was filed and the issue of
the subject matter?
jurisdiction was not raised therein, a party may, when
he files an answer, raise the lack of jurisdiction as an
A: When it appears from the pleadings or evidence affirmative defense because this defense is not barred
on record that the court has no jurisdiction over the under the omnibus motion rule.
subject matter, the court shall dismiss the same.
(Sec. 1, Rule 9). The court may on its own initiative Q: Will the failure to exhaust administrative
object to an erroneous jurisdiction and may ex remedies affect the jurisdiction of the court?
mero motu take cognizance of lack of jurisdiction at
any point in the case and has a clearly recognized A:
right to determine its own jurisdiction (Riano, Civil GR: No. It is not jurisdictional but the case will
Procedure: A Restatement for the Bar, p. 154, 2009 be dismissed on the ground of lack of cause of
ed.). action. It only renders the action premature.
(Carale v. Abarintos, G.R. No. 120704, March 3,
Q: May jurisdiction of the court be raised or 1997; Pestanas v. Dyogi, 81 SCRA 574)
questioned at any time?
XPN:
A: Before a party may be allowed to invoke the
GR: Yes. The prevailing rule is that jurisdiction jurisdiction of the courts, he is expected to have
over the subject matter may be raised at any exhausted all means of administrative redress
stage of the proceedings (Riano, Civil Procedure: (Herrera, Vol. I, p. 267, 2007 ed.).
A Restatement for the Bar, p. 154, 2009 ed.).
XPNS TO THE XPN:
Note: Jurisdiction can be questioned even for the first 1. Question raised is purely legal;
time on appeal (Herrera, Vol. I, p. 91, 2007 ed.) 2. When the administrative body is in
estoppels;
XPNs: 3. When the act complained of is patently
1. Estoppel by laches. SC barred a belated illegal;
objection to jurisdiction that was raised 4. When there is need for judicial
only after an adverse decision was intervention;
rendered by the court against the party 5. When the respondent acted in disregard
raising the issue of jurisdiction and after of due process;
seeking affirmative relief from the court 6. When the respondent is the alter-ego of
and after participating in all stages of the the President, bear the implied or
proceedings(Tijam v. Sibonghanoy, G.R. assumed approval of the latter;
No. L-21450, Apr. 15, 1968). 7. When irreparable damage will be
suffered;
2. Public policy – One cannot question the 8. When there is no other plain, speedy and
jurisdiction which he invoked, not adequate remedy;
because the decision is valid and
conclusive as an adjudication, but

JURISDICTION
9. When strong public interest is involved; involving the status of the parties or suits
and involving the property in the Philippines
10. In quo warranto proceedings (Herrera, of non-resident defendants.
Vol. I, p. 268, 2007 ed.)
E. JURISDICTION OF COURTS
Note: The rule on exhaustion of administrative
remedies and doctrine of primary jurisdiction applies Q: Which court has jurisdiction over the following?
only when the administrative agency exercises quasi-
judicial or adjudicatory function (Associate A:
Communications and Wireless Services v. Dumalao, 1. Boundary dispute between municipalities
G.R. 136762, Nov. 21, 2002). RTCs are courts of general jurisdiction. Since
there is no legal provision specifically
governing jurisdiction over boundary disputes
8. EFFECT OF ESTOPPEL ON OBJECTIONS TO
between a municipality and an independent
JURISDICTION
component city of the same province, it
follows that RTCs have the power and
Q: What is the effect of estoppel by failure to
authority to hear and determine such
object lack of jurisdiction?
controversy (Municipality of Kananga v.
Madrona, G.R. No. 141375, Apr. 30, 2003).
A: The active participation of a party in a case is
tantamount to recognition of that court’s
2. Expropriation
jurisdiction and will bar a party from impugning the
It is within the jurisdiction of the RTC because
court’s jurisdiction. This only applies to exceptional
it is incapable of pecuniary estimation. It does
circumstances. (Francel Realty Corp. v. Sycip, 469
not involve the recovery of sum of money.
SCRA 424; Concepcion v. Regalado, GR 167988, Feb.
Rather, it deals with the exercise by the
6, 2007).
government of its authority and right to take
property for public use.
C. JURISDICTION OVER THE ISSUES
3. Labor dispute
Q: What is jurisdiction over the issues?
An action for damages for abuse of right as an
incident to dismissal is within the exclusive
A: It is the power of the court to try and decide
jurisdiction of the labor arbiter. But the labor
issues raised in the pleadings of the parties or by
arbiter has no jurisdiction for claims of
their agreement in a pre-trial order or those tried
damages based on quasi-delict which has no
by the implied consent of the parties. It may also be
reasonable connection with the employer-
conferred by waiver or failure to object to the
employee relations claims under the Labor
presentation of evidence on a matter not raised in
Code (Ocheda v. CA, G.R. No. 85517, Oct. 16,
the pleadings
1992).
D. JURISDICTION OVER THE RES OR PROPERTY IN
Note: Where no employer-employee relationship
LITIGATION exists between the parties and no issue involved
may be resolved by reference to the Labor Code,
Q: How is jurisdiction over the res acquired? other labor statutes or any collective bargaining
agreement, it is the regular courts that has
A: It is acquired either by: jurisdiction (Jaguar Security Investigation Agency
1. The seizure of the property under legal v. Sales, G.R. No. 162420, Apr. 22, 2008).
process.
2. As a result of the institution of legal 4. Forcible entry and unlawful detainer
proceedings, in which the power of the The MTC has exclusive original jurisdiction. In
court is recognized and made effective. such cases, when the defendant raises the
(Banco Español Filipino vs. Palanca, 37 question of ownership in his pleadings and the
Phil. 291). question of possession cannot be resolved
3. The court by placing the property of thing without deciding the question of ownership,
under its custody (custodia legis). the issue of ownership shall be resolved only to
Example: attachment of property. determine the issue of possession. All
4. The court through statutory authority ejectment cases are covered by the Rule on
conferring upon it the power to deal with Summary Procedure and are within the
the property or thing within the court’s jurisdiction of the inferior courts regardless of
territorial jurisdiction. Example: suits whether they involve questions of ownership.
7
The courts in ejectment cases may determine for reconsideration in accordance with Rule 45
questions of ownership whenever necessary to of the Rules of Court (Sec. 27, R.A. 6770).
decide the question of possession (Gayoso v.
Twenty-Two Realty Development Corp., G.R. 7. Public school teachers
No. 147874, July 17, 2006; Santiago v. Pilar Generally, the Ombudsman must yield to the
Development Corp., G.R. No. 153628, July 20, Division School Superintendent in the
2006). investigation of administrative charges against
public school teachers (Ombudsman v. Galicia,
5. Authority to conduct administrative G.R. No. 167711, Oct. 10, 2008).
investigations over local elective officials
and to impose preventive suspension 8. Enforcement of a money claim against a
over elective provincial or city officials local government unit
It is entrusted to the Secretary of Local Commission on Audit (COA) has the primary
Government and concurrent with the jurisdiction to pass upon the money claim. It is
Ombudsman upon enactment of R.A. 6770. within the COA's domain to pass upon money
There is nothing in the Local Government Code claims against the government or any subdivision
of 1991 to indicate that it has repealed, thereof as provided for under Section 26 of the
whether expressly or impliedly, the pertinent Government Auditing Code of the Philippines.
provisions of the Ombudsman Act (Hagad v. Courts may raise the issue of primary jurisdiction
Dadole, G.R. No. 108072, Dec. 12, 1995). sua sponte (on its own will or motion; means to
act spontaneously without prompting from
6. Appeals involving orders arising from another party) and its invocation cannot be
administrative disciplinary cases originating waived by the failure of the parties to argue it as
from the Office of the Ombudsman the doctrine exists for the proper distribution of
It may be appealed to the Supreme Court by power between judicial and administrative
filing a petition for certiorari within 10 days bodies and not for the convenience of the parties
from receipt of the written notice of the order, (Euro-Med Laboratories, Phil., Inc. v. Province of
directive or decision or denial of the motion Batangas, G.R. No. 148106, July 17, 2006).
1. SUPREME COURT
Civil Cases Criminal Cases

Exclusive Original
Petitions for issuance of writs of certiorari, prohibition and Petitions for issuance of writs of certiorari,
mandamus against the following: prohibition and mandamus against the following:
1. Court of Appeals 1. Court of Appeals
2. Commission on Elections En Banc 2. Sandiganbayan
3. Commission on Audit
4. Sandiganbayan
Appellate
1. Appeal by petition for review on certiorari: 1. In all criminal cases involving offenses from
a. Appeals from the CA; which the penalty is reclusion perpetua or life
b. Appeals from the CTA; imprisonment and those involving other
c. Appeals from RTC exercising original jurisdiction in offenses, which although not so punished
the following cases: arose out of the same occurrence or which
i. If no question of fact is involved and the case may have been committed by the accused on
involves: the same occasion
a) Constitutionality or validity of treaty,
Note: In criminal cases, when the penalty imposed
international or executive agreement, law,
is life imprisonment or reclusion perpetua, appeal
presidential decree, proclamation, order,
is automatic to the CA. (A.M. No. 04-9-05-SC;
instruction, ordinance or regulation
People v. Mateo y Garcia, G.R. No. 147678-87, July
b) Legality of tax, impost, assessments, or toll, 7, 2004)
or penalty in relation thereto
c) Cases in which jurisdiction of lower court is 2. Criminal cases in which the death penalty is
in issue imposed by the Sandiganbayan
ii. All cases in which only errors or questions of 3. Appeals from the CA;
law are involved. 4. Appeals from the Sandiganbayan;
2. Special civil action of certiorari – filed within 30 days against 5. Appeals from RTC in which only errors or
the COMELEC / COA questions of law are involved.

JURISDICTION
Concurrent
With CA
1. Petitions for issuance of writs of certiorari, prohibition and Petitions for issuance of writs of certiorari,
mandamus against the following: prohibition and mandamus against the RTC and
a. NLRC under the Labor Code. lower courts.
Note: The petitions must first be filed with the CA, otherwise,
they shall be dismissed. (St. Martin Funeral Home v. CA, G.R.
No. 130866, Sept. 16, 1998).
b. Civil Service Commission

c. Quasi-judicial agencies (file with the CA first)
d. RTC and lower courts;
2. Petitions for issuance of writ of kalikasan (Sec. 3, Rule 7,

A.M. No. 09-6-8-SC).
With CA and RTC
1. Petitions for habeas corpus and quo warranto; and Petitions for issuance of writs of certiorari,
2. Petitions for issuance of writs of certiorari, prohibition and prohibition and mandamus against the lower courts
mandamus against the lower courts or other bodies or bodies.
With CA, SB and RTC
1. Petitions for the issuance of writ of amparo
Petitions for the issuance of writ of amparo and writ
2. Petition for writ of habeas data, where the action involves
of habeas data
public data or government office
With RTC With Sandiganbayan
Actions affecting ambassadors and other public ministers and Petitions for mandamus, prohibition, certiorari,
consuls injunctions and ancillary writs in aid of its appellate
jurisdiction including quo warranto arising or that
may arise in in cases filed under EO Nos. 1, 2, 14 and
14-A
Note: g. P.D. No. 1433 - Plant Quarantine Law

1. The following cases must be decided by the of 1978;
SC en banc: h. P.D. No. 1586 - Establishing an
a. All cases involving the constitutionality Environmental Impact Statement
of a treaty, international or executive System Including Other Environmental
agreement, or law; Management Related Measures and
b. Cases involving the constitutionality, for Other Purposes;
application or operation of presidential i. R.A. 3571 - Prohibition Against the
decrees, proclamations, orders, Cutting, Destroying or Injuring of
instructions, ordinances and other Planted or Growing Trees, Flowering
regulations; Plants and Shrubs or Plants of Scenic
c. A case where the required number of Value along Public Roads, in Plazas,
vote in a division is not obtained; Parks, School Premises or in any Other
d. A doctrine or principle laid down in a Public Ground;
decision rendered en banc or by j. R.A. 4850 - Laguna Lake Development
division is modified, or reversed; Authority Act;
e. All other cases required to be heard en k. R.A. 6969 - Toxic Substances and
banc under the Rules of Court (Sec. 5, Hazardous Waste Act;
Art. VIII, 1987 Constitution). l. R.A. 7076 - People’s Small-Scale Mining
2. Environmental laws and regulations covered Act;
by the writ of kalikasan includes but not m. R.A. 7586 - National Integrated
limited to the following: Protected Areas System Act including
a. Act No. 3572 - Prohibition Against all laws, decrees, orders, proclamations
Cutting of Tindalo,Akli, and Molave and issuances establishing protected
Trees; areas;
b. P.D. No. 705 - Revised Forestry Code; n. R.A. 7611 - Strategic Environmental
c. P.D. No. 856 - Sanitation Code; Plan for Palawan Act;
d. P.D. No. 979 - Marine Pollution Decree; o. R.A. 7942 - Philippine Mining Act;
e. P.D. No. 1067 - Water Code; p. R.A. 8371 - Indigenous Peoples Rights
f. P.D. No. 1151 - Philippine Act;
Environmental Policy of 1977; q. R.A. 8550 - Philippine Fisheries Code;
9
r. R.A. 8749 - Clean Air Act; of directors, business associates, its

s. R.A. 9003 - Ecological Solid Waste officers or partnership, amounting
Management Act; fraud or misrepresentation which may
t. R.A. 9072 - National Caves and Cave be detrimental to the interest of the
Resource Management Act; public and/or the stockholders,
u. R.A. 9147 - Wildlife Conservation and partners, members of the associations
Protection Act; or organizations registered with the
v. R.A. 9175 - Chainsaw Act; Security and Exchange Commission;
w. R.A. 9275 - Clean Water Act; b. Controversies arising out of intra-
x. R.A. 9483 - Oil Spill Compensation Act corporate or partnership relations,
of 2007; between and among stockholders,
y. Provisions in CA No. 141, The Public members or associates, respectively;
Land Act; R.A. 6657, Comprehensive and between such corporation,
Agrarian Reform Law of 1988; R.A. partnership or association and the
7160, Local Government Code of 1991; state in so far as it concerns their
R.A. 7161, Tax Laws Incorporated in the individual franchise or right to exist as
Revised Forestry Code and Other such entity;
Environmental Laws (Amending the c. Controversies in the election or
NIRC); R.A. 7308, Seed Industry appointments of directors, trustees,
Development Act of 1992; R.A. 7900, officers or managers of such
High-Value Crops Development Act; corporation, partnerships or
R.A. 8048, Coconut Preservation Act; associations; and
R.A. 8435, Agriculture and Fisheries d. Petitions of corporations, partnerships
Modernization Act of 1997; R.A. 9522, or associations to be declared in the
The Philippine Archipelagic Baselines state of suspension of payments in
Law; R.A. 9593, Renewable Energy Act cases where the corporation,
of 2008; R.A. 9637, Philippine Biofuels partnership or association posses
Act; and sufficient property to cover all its debts
z. Other existing laws that relate to the but foresees the impossibility of
conservation, development, meeting them when they respectively
preservation, protection and utilization fall due or in cases where the
of the environment and natural corporation, partnership or association
resources (Sec. 2, Rule 1, A.M. No. 09- has no sufficient assets to cover its
6-8-SC). liabilities but is under the management
3. The following are intra-corporate of a Rehabilitation Receiver or
controversies within the jurisdiction of the Management Committee (Sec. 5.2,
RTC: SRC).
a. Cases involving devises or schemes
employed by or any acts, of the board
2. COURT OF APPEALS

Exclusive Original
Actions for annulment of judgments of RTC based upon 1. Actions for annulment of judgments of RTC (Sec. 9
extrinsic fraud or lack of jurisdiction (Sec. 9 B.P. 129). B.P. 129).
2. Crimes of Terrorism under the Human Security Act
of 2007 or R.A. 9372
Appellate
1. Final judgments, decisions, resolutions, orders, Judgments or decisions of RTC (except those appealable
awards of: to the SC or SB):
a. RTC a. exercising its original jurisdiction;
i. In the exercise of its original jurisdiction; b. exercising its appellate jurisdiction; and
ii. In the exercise of its appellate jurisdiction; c. where the imposable penalty is:
b. Family Courts; i. life imprisonment or reclusion perpetua;
c. RTC on the questions of constitutionality, ii. a lesser penalty for offenses committed on
validity of tax, jurisdiction involving questions of the same occasion or which arose from the
fact, which should be appealed first to the CA; same occurrence that gave rise to the offense
d. Appeals from RTC in cases appealed from MTCs punishable reclusion perpetua or life
which are not a matter of right. imprisonment (Sec. 3, Rule 122).
2. Appeal from MTC in the exercise of its delegated iii. Death (Sec. 10, Rule 122).

JURISDICTION
jurisdiction (R.A. 7691).

3. Appeals from Civil Service Commission;
4. Appeals from quasi-judicial agencies under Rule 43;
5. Appeals from the National Commission on
Indigenous Peoples (NCIP); and
6. Appeals from the Office of the Ombudsman in
administrative disciplinary cases (Mendoza-Arce v.
Office of the Ombudsman, G.R. No. 149148, Apr. 5,
2002).
Concurrent
With SC
1. Petitions for issuance of writs of Petitions for issuance of writs of certiorari, prohibition
certiorari, prohibition and mandamus against and mandamus against the RTCs and lower courts.
the following:
a. NLRC under the Labor Code.
b. Civil Service Commission
c. Quasi-judicial agencies
d. RTCs and other lower courts.
2. Petitions for issuance of writ of
kalikasan (Sec. 3, Rule 7, A.M. No. 09-6-8-SC).
With SC and RTC
1. Petitions for habeas corpus and quo warranto; and Petitions for issuance of writs of certiorari, prohibition
2. Petitions for the issuance of writs of certiorari, and mandamus against the lower courts or bodies.
prohibition and mandamus against the lower courts
With SC, SB and RTC
1. Petitions for the issuance of writ of amparo Petitions for the issuance of writ of amparo and writ of
2. Petition for writ of habeas data, where the action habeas data
involves public data or government office
3. COURT OF TAX APPEALS
Tax Cases Criminal Cases

Exclusive Original
In tax collection cases involving final and executory All criminal cases arising from violation of the NIRC of the
assessments for taxes, fees, charges and penalties where TCC and other laws, part of laws, or special laws
the principal amount of taxes and fees, exclusive of administered by the BIR or the BOC where the principal
charges and penalties claimed is less than P1M tried by the amount of taxes and fees, exclusive of charges and
proper MTC, MeTC and RTC. penalties claimed is less that P1M or where there is no
specified amount claimed (the offenses or penalties shall
be tried by the regular courts and the jurisdiction of the
CTA shall be appellate)
Appellate
In tax collection cases involving final and executory 1. Over appeals from the judgment, resolutions or
assessments for taxes, fees, charges and penalties where orders of the RTC in tax cases originally decided by
the principal amount of taxes and fees, exclusive of them, in their respective territorial jurisdiction,
charges and penalties claimed is less than P1M tried by the 2. Over petitions for review of the judgments,
proper MTC, MeTC and RTC. resolutions or orders of the RTC in the exercise of
their appellate jurisdiction over tax cases originally
decided by the MeTCs, MTCs, and MCTCs in their
respective jurisdiction
Concurrent
With CIR
1. Decisions in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges,
penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR;
2. Inaction by CIR in cases involving disputed assessments, refunds of IR taxes, fees or other charges, penalties in
relation thereto, or other matters arising under the NIRC or other laws administered by BIR, where the NIRC or
other applicable law provides a specific period of action, in which case the inaction shall be deemed an implied
denial;
With RTC
Decisions, orders or resolutions of the in local taxes originally decided or resolved by them in the exercise of their
original or appellate jurisdiction;
11
With Commissioner of Customs

1. Decisions in cases involving liability for customs duties, fees or other charges, seizure, detention or release of
property affected, fines, forfeitures or other penalties in relation thereto, or
2. Other matters arising under the Customs law or other laws, part of laws or special laws administered by BOC;
With Central Board of Assessment Appeals
Decisions in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property
originally decided by the provincial or city board of assessment appeals;
With Secretary of Finance
Decision on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs
which are adverse to the government under Sec. 2315 of the Tariff and Customs Code;
With Secretary of Trade and Industry and the Secretary of Agriculture
Decisions of Secretary of Trade and Industry in the case of non-agricultural product, commodity or article, and the
Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping duties and
counterveiling duties under Secs. 301 and 302, respectively, of the Tariff and Customs Code, and safeguard measures
under RA 8800, where either party may appeal the decision to impose or not to impose said duties.
4. SANDIGANBAYAN

Exclusive Original
Cases involving violations of: 1. Violation of R.A. 3019 (Anti-Graft and Corrupt Practices
a. EO No. 1 (Creating the PCGG); Act) where one or more of the accused are officials
b. EO No. 2 (Illegal Acquisition and occupying the following positions in the government,
Misappropriations of Ferdinand Marcos, Imelda whether in permanent. Acting or interim capacity, at the
Marcos their close relatives, subordinates, time of the commission of the offense:
business associates, dummies, agents or a. Officials occupying a position classified as Grade 27
nominees); or higher of the Compensation and Position
c. EO No. 14 [Cases involving the ill-gotten wealth Classification Act of 1989 (R.A. 6758) in the:
of the immediately mentioned persons (Marcos i. Executive branch including those occupying
and dummies)]; and the position of regional director; and
d. EO No. 14-A (amendments to EO No. 14) (Sec. 2, ii. All other national or local officials.
R.A. 7975 as amended by R.A. 8294). b. Members of Congress
c. Members of the judiciary without prejudice to the
Constitution; and
d. Chairmen and members of the Constitutional
Commissions without prejudice to the Constitution.
2. Felonies or offenses, whether simple or complexed with
other crimes committed by the public officials and
employees above mentioned in relation to their office;
and
3. Cases filed pursuant to EO Nos. 1, 2, 14 and 14-A (Sec. 2,
R.A. 7975 as amended by R.A. 8249).
Appellate
Appeals from final judgments, resolutions or orders of the
RTC, whether in the exercise of their original or appellate
jurisdiction, in cases involving public officials or employees
not otherwise mentioned in the preceding enumeration.
Concurrent
With SC
Petitions for certiorari, prohibition, mandamus, Petitions for certiorari, prohibition, mandamus, habeas
habeas corpus, injunction and other ancillary writs in corpus, injunction and other ancillary writs in aid of its
aid of its appellate jurisdiction, including quo appellate jurisdiction, including quo warranto arising in cases
warranto arising in cases falling under Executive Order falling under Executive Order Nos. 1, 2, 14 and 14-A.
Nos. 1, 2, 14 and 14-A.
With SC, CA and RTC
Petitions for the issuance of writ of amparo and writ Petitions for the issuance of writ of amparo and writ of
of habeas data. habeas data.
Q: Governor Charles of Tarlac was charged with accepting a car in exchange for the award of a
indirect bribery before the Sandiganbayan for series of contracts for medical supplies. The

JURISDICTION
Sandiganbayan, after going over the information,

found the same to be valid and ordered the A: Yes. Charles’ suspension is mandatory, although
suspension of Charles. The latter contested the not automatic. It is mandatory after the
suspension claiming that under the law (Sec. 13, determination of the validity of the information in a
R.A. 3019), his suspension is not automatic upon pre-suspension hearing. The purpose of the
the filing of the information and his suspension suspension is to prevent the accused public officer
under Sec. 13, R.A. 3019 is in conflict with Sec. 5 of from frustrating or hampering his prosecution by
the Decentralization Act of 1967 (R.A. 5185). The intimidating or influencing witnesses or tampering
Sandiganbayan overruled Charles’ contention with evidence or from committing further acts of
stating that the suspension under the malfeasance while in office. (2001 Bar Question)
circumstances is mandatory. Is the court's ruling
correct?
5. REGIONAL TRIAL COURTS

Exclusive Original
1. Criminal cases not within exclusive jurisdiction of
1. Actions in which the subject of litigation is incapable
any court, tribunal or body (Sec. 20, BP 129).
of pecuniary estimation;
a. Includes criminal cases where the penalty
2. Actions involving title to or possession of real
provided by law exceeds 6 years imprisonment
property or any interest therein where the assessed
irrespective of the fine (R.A. 7691).
value exceeds P20,000 or P50,000 in Metro Manila,
b. Includes criminal cases not falling within the
except forcible entry and unlawful detainer;
exclusive original jurisdiction of the
3. Actions in admiralty and maritime jurisdiction where
Sandiganbayan where the imposable penalty is
demand or claim exceeds P300,000 or P400,000 in
imprisonment more than 6 years and none of
Metro Manila;
the accused is occupying positions classified as
4. Matters of probate, testate or intestate, where gross
“Grade 27” and higher (Sec. 4, P.D. 1606 as
value of estate exceeds P300,000 or P400,000 in
amended by R.A. 8249).
Metro Manila;
2. Cases where the only penalty provided by law is a
5. Cases not within the exclusive jurisdiction of any
fine exceeding P4,000;
court, tribunal, person or body exercising judicial or
3. Other laws which specifically lodge jurisdiction in
quasi-judicial function;
the RTC:
6. Civil actions and special proceedings falling within
a. Law on written defamation or libel;
exclusive original jurisdiction of Juvenile and
b. Decree on Intellectual Property;
Domestic Relations Court and Court of Agrarian
c. Violations of Dangerous Drugs Act regardless
Reforms;
of the imposable penalty except when the
7. Other cases where the demand, exclusive of interest,
offender is under 16 and there are Juvenile and
damages, attorney’s fees, litigation expenses and
Domestic Relations Court in the province.
costs, or value of property in controversy exceeds
4. Cases falling under the Family Courts in areas where
P300,000 or P400,000 in Metro Manila (Sec. 19, BP
there are no Family Courts (Sec.24, B.P. 129).
129 as amended by R.A. 7691); and
5. Election offenses (Omnibus election code) even if
8. Intra-corporate controversies under Sec. 5.2 of the
committed by an official with salary grade of 27 or
Securities and Regulation Code.
higher
Concurrent
With SC, SB and CA
1. Writ of amparo Petitions for the issuance of writ of amparo and writ of
2. Writ of habeas data habeas data
With SC
Actions affecting ambassadors and other public ministers
and consuls [Sec. 21 (2) of BP 129]
With SC and CA
1. Certiorari, prohibition and mandamus against lower
courts and bodies;
2. Habeas corpus and quo warranto;
With MTC
Cases involving enforcement or violations of
environmental and other related laws, rules and
regulations (Sec. 2, Rule 1, A.M. No. 09-6-8-SC).
Special
13
SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and domestic relations cases,
agrarian cases, urban land reform cases not falling within the jurisdiction of any quasi-judicial body and other special
cases in the interest of justice (Sec. 23, BP 129).
Appellate
GR: All cases decided by lower courts (MTC etc.) in their respective territorial jurisdictions.
XPN: Decisions of lower courts in the exercise of delegated jurisdiction.
Q: What is the test to determine whether an However, where the basic issue is something other
action is capable of pecuniary estimation? than the right to recover a sum of money, where
the money claim is purely incidental to, or a
A: The criterion is the nature of the principal action consequence of, the principal relief sought like
or the remedy sought. If it is primarily for the specific performance suits and in actions for
recovery of a sum of money, the claim is considered support, or for annulment of a judgment or
capable of pecuniary estimation, and whether foreclosure of mortgage, such actions are incapable
jurisdiction is in the MTCs or in the RTCs would of pecuniary estimation, and are cognizable
depend on the amount of the claim. exclusively by the RTCs (Barangay Piapi v. Talip,
G.R. No. 138248, Sept. 7, 2005).
6. FAMILY COURTS

Exclusive Original
1. Where one or more of the accused is/are below 18
1. Petitions for guardianship, custody of children, habeas
years of age but not less than 9 years of age;
corpus in relation to minor;
2. When one or more of the victims is a minor at the time
2. Petitions for adoption of children and its revocation;
of the commission of the offense (R.A. 8369, Act
3. Complaints for annulment and declaration of nullity of
establishing the family courts);
marriage and those relating to marital status and
3. Cases against minors cognizable under the Dangerous
property relations of spouses or those living together
Drugs Act, as amended; and
under different status and agreements; and petitions
4. Violations of R.A. 7610 or the Special Protection of
for dissolution of conjugal partnership of gains;
Children Against Child Abuse, Exploitation and
4. Petitions for support and/or acknowledgment;
Discrimination Act, as amended by R.A. 7658; and
5. Summary judicial proceedings under the Family Code
5. Cases of domestic violence against:
of the Philippines;
a. Women – involving acts of gender-based violence
6. Petitions for declaration of status of children as
that result, or likely to result in physical, sexual or
abandoned, dependent or neglected children,
psychological harm or suffering to women; and
petitions for voluntary or involuntary commitment of
other forms of physical abuse such as battering or
children, the suspension, termination, or restoration of
threats and coercion which violate a woman’s
parental authority and other cases cognizable under
personhood, integrity and freedom of movement;
PD 603, EO 56 (Series of 1986) and other related laws;
b. Children – which include the commission of all
and
forms of abuse, neglect, cruelty, exploitation,
7. Petitions for the constitution of the family home
violence and discrimination and all other
8. (rendered unnecessary by Art. 153, Family Code) (Sec.
conditions prejudicial to their development (Sec.
5, R.A. 8369).
5, R.A. 8369)
7. METROPOLITAN TRIAL COURTS/MUNICIPAL TRIAL COURTS

Exclusive Original
1. Actions involving personal property where the value of the 1. All offenses punishable with imprisonment not
property does not exceed P300,000 or, in Metro Manila exceeding 6 years irrespective of the amount of
P400,000; fine and regardless of other imposable
2. Actions for claim of money where the demand does not accessory or other penalties;
exceed P300,000 or, in Metro Manila P400,000; 2. In offenses involving damage to property
3. Probate proceedings, testate or intestate, where the value through criminal negligence where the
of the estate does not exceed P300,000 or, in Metro Manila imposable fine does not exceed P10,000 (Sec.
P400,000; 32, BP 129 as amended by R.A. 7691);
3. Where the only penalty provided by law is a
Note: In the foregoing, claim must be exclusive of interest, fine not exceeding P4,000 (Admin. Circular No.
damages, attorney’s fees, litigation expense, and costs (Sec. 33, 09-94, June 14, 1994); and
BP 129 as amended by R.A. 7691). 4. Those covered by the Rules on Summary
Procedure, i.e.

JURISDICTION
4. Actions involving title to or possession of real property or a.Violations of traffic laws, rules and
any interest therein where the value or amount does not regulations;
exceed P20,000 or, in Metro Manila P50,000 exclusive of b. Violations of the rental law;
interest damages, attorney’s fees, litigation expense, and c. Violations of municipal or city ordinances;
costs; (2008 Bar Question) d. Violations of BP 22 (A.M. No. 00-11-01-SC);
5. Maritime claims where the demand or claim does not e. All other criminal cases where the penalty
exceed P300,000 or, in Metro Manila P400,000 (Sec. 33, BP is imprisonment not exceeding 6 months
129 as amended by R.A. 7691); and/or a fine of P 1,000 irrespective of
6. Inclusion or exclusion of voters (Sec. 138, BP 881); other penalties or civil liabilities arising
7. Those covered by the Rules on Summary Procedure: therefrom.
a. Forcible entry and unlawful detainer; 5. All offenses committed by public officers and
b. Other civil cases except probate where the total amount of employees in relation to their office, including
the plaintiff’s claims does not exceed P100,000 or, in Metro government-owned or –controlled
Manila P200,000 exclusive interest and costs (as amended corporations, and by private individuals
by A.M. No. 02-11-09-SC). charged as co-principals, accomplices or
8. Those covered by the Rules on Small Claims, i.e. actions for accessories, punishable with imprisonment not
payment of money where the claim does not exceed more than 6 years or where none of the
P100,000 exclusive of interest and costs. accused holds a position classified as “Grade
27” and higher (Sec. 4, P.D. 1606 as amended
by R.A. 8249).
Delegated
Cadastral or land registration cases covering lots where:
a. There is no controversy or opposition;
b. Contested but the value does not exceed P100,000 (Sec.
34, BP 129 as amended by R.A. 7691).
Note: The value shall be ascertained by the affidavit of the

claimant or agreement of the respective claimants (Sec. 34, BP 129
as amended by R.A. 7691).
Special
Petition for habeas corpus in the absence of all RTC judges in Application for bail in the absence of all RTC judges in
the province or city (Sec. 35, BP 129). the province or city.
Concurrent
With RTC
Cases involving enforcement or violations of environmental
and other related laws, rules and regulations (Sec. 2, Rule 1,
A.M. No. 09-6-8-SC).
8. SHARIAH COURTS
Exclusive Original
1. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim
Personal Laws;
2. All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills,
issuance of letters of administration or appointment of administrators or executors regardless of the nature or
aggregate value of the property;
3. Petitions for the declaration of absence and death for the cancellation or correction of entries in the Muslim
Registries mentioned in Title VI, Book Two of the Code of Muslim Personal Laws;
4. All actions arising from the customary contracts in which the parties are Muslims, if they have not specified which
law shall govern their relations; and
5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and
processes in aid of its appellate jurisdiction.
Concurrent
With all civil courts
1. Petitions by Muslim for the constitution of a family home, change of name and commitment of an insane person to an
asylum;
2. All other personal and legal actions not mentioned in paragraph 1 (d) wherein the parties involved are Muslims except
those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the Municipal Circuit
Court; and
3. All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved
belongs exclusively to Muslims.
15
F. JURISDICTION OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND
BARANGAY CONCILIATION
Katarungang Pambarangay Law Rule on Small Claims Cases Rules on Summary Procedure
Purpose / Object
To effect an amicable settlement of To provide a simpler and more To achieve an expeditious and
disputes among family and barangay inexpensive and expeditious means inexpensive determination of the
members at the barangay level without of settling disputes involving purely cases defined to be governed by
judicial recourse and consequently help money claims than the regular civil the Rules on Summary Procedure
relieve the courts of docket congestion. process
(Preamble of P.D. 1508) (1999 Bar
Qestion)
Where to file
1. For disputes between residents of 1. Metropolitan Trial Courts 1. Metropolitan Trial Courts
the same barangay: the dispute must 2. Municipal Trial Courts in Cities 2. Municipal Trial Courts in Cities
be brought for settlement in the said 3. Municipal Trial Courts 3. Municipal Trial Courts
barangay. 4. Municipal Circuit Trial Courts 4. Municipal Circuit Trial Courts
2. For disputes between residents of
different but adjoining barangays
and the parties agree to submit their
differences to amicable settlement:
within the same city or municipality
where any of the respondents reside
at the election of the complainant.
3. For disputes involving real property
or any interest when the parties
thereto agree to submit their
differences to amicable settlement
by an appropriate lupon therein shall
be brought in the barangay where
the real property or larger portion
thereof is situated.
4. For disputes arising at the workplace
where the contending parties are
employed or at the institution where
such parties are enrolled for study
shall be brought in the barangay
where such workplace or institution
is located.
Cases Covered
Civil Cases
All disputes involving parties who Small claims cases – civil claims 1. All cases of forcible entry and
actually reside in the same city or which are exclusively for the unlawful detainer irrespective of
municipality may be the subject of the payment or reimbursement of a the amount of damages or unpaid
proceedings for amicable settlement in sum of money not exceeding rentals sought to be recovered.
the barangay. P100,000 exclusive of interest and Where attorney’s fees are
costs, either awarded, the same shall not
1. Purely civil in nature where exceed P20,000; and
the claim or relief prayed for 2. All other civil cases, except
by the plaintiff is solely for probate proceedings, where the
payment or reimbursement of total amount of plaintiff’s claim
sum of money, or does not exceed P100,000 or
2. The civil aspect of criminal does not exceed P200,000 in
actions, either filed before the Metro Manila, exclusive of
institution of the criminal interests and costs (A.M. No. 02-
action, or reserved upon the 11-09-SC, Nov. 25, 2005).
filing of the criminal action in
court, pursuant to Rule 111 of
the Revised Rules of Criminal
Procedure.

JURISDICTION
These claims or demands may be:

1. For money owed under any of
the following:
a. Contract of Lease
b. Contract of Loan
c. Contract of Services
d. Contract of Sale
e. Contract of Mortgage
2. For damages arising from any
of the following:
a. Fault or negligence
b. Quasi-contract
c. Contract
3. The enforcement of a
barangay amicable settlement
or an arbitration award
involving a money claim
covered by this Rule pursuant
to Sec. 417
Criminal Cases
When punishable by imprisonment of 1. Violations of traffic laws, rules
not more than 1 year or fine of not more and regulations;
than 5,000. (Sec. 408, LGC) 2. Violations of the rental law;
3. Violations of municipal or city
ordinances;
4. Violations of B.P. 22 or the
Bouncing Checks Law (A.M. No.
00-11-01-SC, Apr. 15, 2003);
5. All other criminal cases where
the penalty is imprisonment not
exceeding 6 months and/or a
fine of P 1,000 irrespective of
other penalties or civil liabilities
arising therefrom; and
6. Offenses involving damage to
property through criminal
negligence where the imposable
fine is not exceeding P10,000.
Cases excluded
1. Where one party is the government 1. Criminal actions are excluded This Rule shall not apply to a civil
or any subdivision or pursuant to certain case where the plaintiff's cause of
instrumentality thereof; Constitutional limitations action is pleaded in the same
2. Where one party is a public officer granting the accused in all complaint with another cause of
or employee, and the dispute criminal prosecutions “the action subject to the ordinary
relates to the performance of his right to be heard by himself procedure; nor to a criminal case
official functions; and counsel” (Sec. 14[2], Bill where the offense charged is
3. Offenses punishable by of Rights). An example is a necessarily related to another
imprisonment exceeding 1 year or a case for libel or slander. criminal case subject to the
fine exceeding P5,000.00; However, the civil aspect of a ordinary procedure.
4. Offenses where there is no private criminal action which seeks
offended party; recovery of money as
5. Where the dispute involves real damages may be heard as a
properties located in different cities small claim if reserved or
or municipalities unless the parties instituted separately prior to
thereto agree to submit their the filing of the criminal case.
differences to amicable settlement 2. Some civil cases regardless of
by an appropriate lupon; how little the amount
6. Disputes involving parties who involved cannot be filed as
actually reside in barangays of small claims. Examples are a
different cities or municipalities, suit to force a person to fix a
except where such barangay units damaged good or a demand
adjoin each other and the parties for the fulfillment of an
17
thereto agree to submit their obligation which is not purely

differences to amicable settlement for money.
by an appropriate lupon;
7. Such other classes of disputes
which the President of the
Philippines may determine in the
interest of justice; and
8. Violations of R.A. 9262, VAWC Act.
G. TOTALITY RULE
Q: What is the Aggregate or Totality Rule?
A: Where there are several claims or causes of

actions between the same or different parties
embodied in one complaint, the amount of the
demand shall be the totality of the claims in all
causes of action irrespective of whether the causes
of action arose out of the same or different
transaction (Rule 2, Sec.5 [d]).

CIVIL PROCEDURE
III. CIVIL PROCEDURE

Court
A. ACTIONS Heard by courts of Heard by courts of limited
general jurisdiction jurisdiction
1. MEANING OF ORDINARY CIVIL ACTIONS Procedure
Initiated by a pleading Initiated by a petition and
Q: What is an ordinary civil action? and parties respond parties respond through an
through an answer opposition
A: It is a formal demand of one’s legal rights in a
court of justice in the manner prescribed by the 5. REAL ACTIONS AND PERSONAL ACTIONS
court or by law. It is governed by ordinary rules.
Q: Distinguish real actions from personal actions.
2. MEANING OF SPECIAL CIVIL ACTIONS
A:
Q: What is a special civil action? Real Action Personal Action
Scope
A: It has special features not found in ordinary civil When it affects title to or Personal property is
actions. It is governed by ordinary rules but subject possession of a real sought to be recovered
to specific rules prescribed Rules 62-71. property, or an interest or where damages for
therein (Sec. 1, rule 4) breach of contract are
sought
3. MEANING OF CRIMINAL ACTIONS
Basis
When it is founded upon the Founded on privity of
Q: What is a criminal action?
privity of a real estate. That contract such as
means that realty or interest damages, claims of
A: It is one by which the state prosecutes a person therein is the subject matter money, etc.
for an act or omission punishable by law (Sec.3 (b), of the action.
Rule1).
Note: It is important that the
4. CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS matter in litigation must also
involve any of the following
Q: Distinguish action from special proceeding. issue:
1. Title to
2. Ownership
A:
3. Possession
Action Special Proceeding 4. Partition
Purpose 5. Foreclosure of mortgage
Civil action: To establish a status, a right 6. Any interest in real
1. To protect a right or a particular fact (Sec. 3 property.
2. Prevent or redress a Rule 1). Specific kinds of Venue
wrong. special proceedings are Venue of action shall be Venue of action is the
found in rule 72 – rule 109 commenced and tried in the place where the
Criminal action: E.g. settlement of estate, proper court which has plaintiff or any of the
Prosecute a person for escheat, guardianship, etc. jurisdiction over the area principal plaintiffs
an act or omission (Riano, Civil Procedure: A wherein the real property resides or any of the
punishable by law (Sec. Restatement for the Bar, p. involved, or a portion defendants resides, at
3, Rule 1) 121, 2009 ed.) thereof is situated. (Rule 4, the election of the
Application sec 1) plaintiff (Rule 2 sec 2)
Where a party litigant Where his purpose is to Example
seeks to recover seek the appointment of a An action to recover Action for a sum of
property from another, guardian for an insane possession of real property money
his remedy is to file an person, his remedy is a plus damages
action. special proceeding to
establish the fact or status Note: An action to annul or
of insanity calling for an rescind a sale of real property
appointment of has as its fundamental and
guardianship. (Herrera, Vol. prime objective the recovery
I, p. 370, 2007 ed.) of real property (Emergency
Governing Law Loan Pawnshop, Inc. vs. Court
Ordinary rules Special rules supplemented of appeals, 353 SCRA 89;
supplemented by special by ordinary rules Riano, p. 122, 2009 ed.)
rules
19
6. LOCAL AND TRANSITORY ACTIONS

Privity of contract
Q: Distinguish local action from transitory actions. No privity of contract and Founded on privity of
the action is founded on contract between the
A: privity of estate only parties whether debt or
Local Action Transitory Action covenant (Paper Industries
Venue Corporation of the
Must be brought in a Dependent on the place Philippines v. Samson, G.R.
particular plac where the where the party resides No. L-30175, Nov. 28,
subject property is regardless of where the 1975).
located, unless there is cause of action arose. Example
an agreement to the Subject to Sec. 4, Rule 4 Action to recover real Action to recover sum of
contrary. property money
7. ACTIONS IN REM, IN PERSONAM AND QUASI IN REM
Q: Distinguish actions in rem, in personam and quasi in rem
A:
Action In Rem Action In Personam Action Quasi In Rem
Nature
A proceeding to subject the property A proceeding to enforce A proceeding to subject the property of
of such persons to the discharge of personal rights and obligations the named defendant or his interests
the claims assailed. brought against the person therein to the obligation or lien
burdening the property.
Purpose
A proceeding to determine the state An action to impose a Deals with the stauts, ownership or
or condition of a thing responsibility or liability upon liability of a particular property but
a person directly which are intended to operate on these
questions only as between the particular
parties to the proceedings and not to
ascertain or cut-off the rights or
interests of all possible claimants.
(Domagas vs. Jensen, 448 SCRA 663)
Scope
Directed against the thing itself Directed against particular
Directed against particular persons
Directed against the whole world persons
Required jurisdiction
Jurisdiction over the person of the Jurisdiction over the person of Jurisdiction over the person of the
defendant is not required. the defendant is required defendant is not required as long as
Jusrisdiction over the RES is required jurisdiction over the res is acquired
through publication in a newspaper
of general circulation.
Effect of judgment
Judgment is binding upon the whole Judgment is binding only upon Judgment will be binding only upon the
world. parties impleaded or their litigants, privies, successor in interest
successors-in-interest but the judgment shall be executed
against a particular property. The RES
involve will answer the judgment.
Example
1. Probate proceeding 1. Action for specific 1. Action for partition
2. Cadastral proceeding performance 2. Action to foreclose real estate
3. Land registration proceeding 2. Action for breach of mortgage attachment
contract
3. Action for ejectment
4. Action for a sum of money;
for damages (Riano, Civil
Procedure: A Restatement
for the Bar,p.130, 2009 ed.)

CIVIL PROCEDURE
B. CAUSE OF ACTION 3. FAILURE TO STATE A CAUSE OF ACTION
1. MEANING OF CAUSE OF ACTION Q: Distinguish failure to state cause of action from

absence or lack of cause of action
Q: What is a cause of action?
A:
A: It is the act or omission by which a party violates
a rights of another (Sec. 2, Rule 2). Failure to state cause of
Lack of cause of action
action
2. CAUSE OF ACTION VERSUS RIGHT OF ACTION Insufficiency in the Failure to prove or
allegations of the establish by evidence
complaint one’s stated cause of
Q: Distinguish cause of action from right of action
action
As a ground for dismissal
A:
Raised in a motion to Raised in a demurrer to
Cause of Action Right of Action dismiss under Rule 16 evidence under Rule 33
It is the act or omission Remedial right or right to before a responsive after the plaintiff has
by which a party relief granted by law to a pleading is filed rested his case
violates the rights of party to institute an action Determination
another ( Sec. 2, Rule 2) against a person who has Determined only from Resolved only on the basis
committed a delict or the allegations of the of the evidence he has
wrong against him pleading and not from presented in support of his
Requisites evidentiary matters claim
1. The existence of a 1. There must be a good
legal right of the cause (existence of a 4. TEST OF THE SUFFICIENCY OF A CAUSE OF
plaintiff cause of action) ACTION
2. A correlative duty of 2. A compliance with all
the defendant to the conditions precedent Q: What is the test of sufficiency of the statement
respect one’s right to the bringing of the of a cause of action?
3. An act or omission of action
the defendant in 3. The action must be A:
violation of the instituted by the proper 1. Whether or not admitting the facts
plaintiff’s right. party. alleged, the court could render a valid
Nature verdict in accordance with the prayer of
It is actually predicated It is procedural in the complaint (Misamis Occidental II
on substantive law or character is the Coop., Inc. vs. David, 468 SCRA 63; Riano,
on quasi delicts under consequence of the p. 92, 2009 ed.)
NCC. violation of the right of the
plaintiff (Riano, Civil
2. The sufficiency of the statement of cause
Procedure: A Restatement
for the Bar , p. 4, 2009 ed.)
of action must appear on the face of the
Basis
complaint and its existence is only
Based on the allegations Basis is the plaintiff’s cause determined by the allegations of the
of the plaintiff in the of action complaint (Viewmaster Construction Corp.
complaint vs. Roxas, 335 SCRA 540; Riano, Civil
Effect of Affirmative defense Procedure: A Restatement for the Bar, p.
Not affected by Affected by affirmative 93, 2009 ed)
affirmative defenses defenses
(fraud, prescription, Note: The truth or falsity of the allegations is beside
estoppel, etc.) the point because the allegations in the complaint are
hypothetically admitted. Thus a motion to dismiss on
the ground of failure to state a cause of action,
Note: The rule is “There is no right of action where
hypothetically admits the matters alleged in the
there is no cause of action”. (Ibid p.4)
complaint (Riano, Civil Procedure: A Restatement for
the Bar, p92, 2009 ed.)
21
5. SPLITTING A SINGLE CAUSE OF ACTION AND ITS Note: When the causes of action accrue in favor of the
EFFECTS same plaintiff and against the same defendant, it is not
necessary to ask whether or not the causes of action
Q: What is splitting a cause of action? arose out of the same transaction or series of
transactions. Also a joinder of causes of action is only
A: It is the act of instituting two or more suits on permissive not compulsory, hence a party may desire
the basis of the same cause of action (Sec. 4, Rule to file a single suit for each of his claims.
2). It is the act of dividing a single or indivisible
cause of action into several parts or claims and Q: Is misjoinder of causes of action a ground for
bringing several actions thereon. It is a ground for dismissal?
the dismissal of others. The rule against splitting of A: No. A misjoined cause of action may, on motion
a cause of action aims to avoid multiplicity of suits, of a party or on initiative of the court, be severed
conflicting decisions and unnecessary vexation and and proceeded with separately (Sec. 6 Rule 2).
harassment of defendants. It applies not only to
complaints but also to counterclaims and cross- Q: The complaint filed before the RTC states two
claims. (1999 Bar Question) causes of actions, one for rescission of contract
and other for the recovery of 100, 000.00 both of
Note: An action for forcible entry should include not which arose out of the same transaction. Is the
only the plea for restoration of possession but also joinder of the two causes of action proper?
claims for damages arising out of the forcible entry
(Progressive Development Corporation, Inc. vs. CA, 301 A: Yes. Both are ordinary civil actions and thus,
SCRA 637; Riano, Civil Procedure: A Restatement for neither requires special rules. Since the action for
the Bar, p. 108, 2009 ed.) rescission falls under the jurisdiction of the RTC, the
joinder may be made in said court provided the
Q: What are the rules on splitting a single cause of venue lies therein (Sec. 5, Rule 2; 1996 Bar
action? Question; Riano, Civil Procedure: A Restatement for
the Bar, p.120, 2009 ed.)
A:
1. Prohibited by the Rules of Court. “A party C. PARTIES TO CIVIL ACTIONS
may not institute more than one suit for a
single cause of action.” (Sec.3, Rule 2) 1. REAL PARTIES IN INTEREST; INDISPENSABLE
2. The rule against splitting a single cause of PARTIES; REPRESENTATIVES AS PARTIES;
action applies not only to complaints but NECESSARY PARTIES; INDIGENT PARTIES;
also to counterclaims and cross-claims. ALTERNATIVE DEFENDANTS
(Mariscal vs. Court of Appeals, 311 SCRA 51)
Q: What are the kinds of parties in a civil action?
6. JOINDER AND MISJOINDER OF CAUSES OF
ACTION A:
1. Real parties in interest
Q: What is a joinder of causes of action? 2. Indispensable parties
3. Representatives as parties
A: It is the assertion of as many causes of action a 4. Necessary parties
party may have against another in one pleading 5. Indigent parties
alone (Sec. 5, Rule 2). 6. Pro-forma parties
Note: Joinder of causes of action must be subject to Q: Who is a real party in interest?
the following conditions:
1. The party shall comply with the rules on joinder A: He is the party who stands to be benefited or
of parties; injured by the judgment in the suit, or the party
2. The joinder shall not include special civil actions entitled to the avails of the suit (Sec. 2 Rule 3).
governed by special rules;
3. Where causes of action pertain to different Q: Distinguish an indispensable party from a
venues, the joinder may be allowed in the RTC necessary party.
provided one of the causes of action falls within
the jurisdiction of said court and venue lies
A:
therein
Indispensable Parties Necessary Parties
4. Where claims in all causes of action are for
Parties in interest A necessary party is one
recovery of money, the aggregate amount
without whom no final who is not indispensable but
claimed shall be the test for jurisdiction. (Sec 5,
determination can be who ought to be joined as a
Rule 2)

CIVIL PROCEDURE
had of an action shall party if complete relief is to right to relief against one may be inconsistent with
be joined either as be accorded as to those a right to relief against the other (Sec. 13, Rule 3).
plaintiffs or already parties, or for a
defendants. (Sec.7, complete determination or Q: May an action be prosecuted in the name of
Rule 3) settlement of the claim other party other than the real party in interest?
subject of the action. (Sec.8,
Must be joined under Rule 3) A: No. Every action must be prosecuted and
any and all conditions
defended in the name of the real party-in-interest
because the court Note: Should be joined
whenever possible, the action (Sec. 2, Rule 3). Even where the action is allowed to
cannot proceed
can proceed even in their be prosecuted or defended by a representative
without him (Riano,
Civil Procedure: A absence because his interest party or someone acting in a fiduciary capacity, the
Restatement for the is separable from that of beneficiary shall be included in the title of the case
indispensable party (Ibid and shall be deemed to be a real party-in-interest
Bar, p. 224, 2009 ed.)
p.224) (Sec.3 Rule 3; Riano, p. 219, 2009 ed.)
No valid judgment if The case may be
they are not joined determined in court but the Note: An agent acting in his own name and for the
judgment therein will not benefit of an undisclosed principal may sue or be sued
Note: In the absence of resolve the entire without joining the principal except when the contract
an indispensable party controversy if a necessary involves things belonging to the principal.
renders all subsequent party is not joined
actions of the court null
and void for want of
Q: Who is an indigent party?
Note: Whenever in any
authority to act, not pleading in which a claim is
only as to the absent asserted a necessary party is
A: He is one who has no money or property
parties but even as to not joined, the pleader shall sufficient and available for food, shelter and basic
those present (Riano, set forth his name, if known, necessities for himself and his family. (Sec. 21 Rule
Civil Procedure: A and shall state why he is 3)
Restatement for the omitted. Should the court find
Bar, p. 221, 2009 ed.) the reason for the omission Note: Indigent litigants (a) whose gross income and that
unmeritorious, it may order of their immediate family do not exceed an amount
the inclusion of the omitted double the monthly minimum wage of an employee and
necessary party if jurisdiction (b) who do not own real property with a fair market value
over his person may be as stated in the current tax declaration of more than three
obtained. The failure to hundred thousand (P300,000.00) pesos shall be exempt
comply with the order for his from payment of legal fees. (Sec. 19, Rule 141).
inclusion, without justifiable
cause, shall be deemed a Q: What is the rule on indigent litigants?
waiver of the claim against
such party.
A: If the applicant for exemption meets the salary
The non-joinder of an indispensable or a necessary and property requirements under Sec. 19, Rule 141,
party is not by itself ipso facto a ground for the then the grant of the application is mandatory. On
dismissal of the action. The court should order the the other hand, when the application does not
joinder of such party and non-compliance with the satisfy one or both requirements, then the
said order would be a ground for the dismissal of the application should not be denied outright; instead,
action (Feria, Civil Procedure Annotated, Vol. I, p. 239, the court should apply the “indigency test” under
2001 ed.) Sec. 21, Rule 3 and use its sound discretion in
determining the merits of the prayer for exemption
Note: Parties may be dropped or added by order of the (Algura v. LGU of Naga, G.R. No. 150135, Oct. 30,
court on motion of any party or on its own initiative at 2006).
any stage of the action and on such terms as are just. Any
claim against a misjoined party may be severed and
Note: While the authority to litigate as an indigent
proceeded with separately. (Sec. 11, Rule 3)
party may be granted upon an ex parte application and
hearing, it may be contested by the adverse party at
any time before judgment is rendered (Sec. 21, Rule
Q: May a party sue the defendants in the 3).
alternative?
Q: What does the authority include, if one is
A: Yes. Where the plaintiff is uncertain against who authorized as an indigent party?
of several persons he is entitled to relief, he may
join any or all of them in the alternative, although a A: An exemption from the payment of:
1. Docket fees and other lawful fees
23
2. Transcript of stenographic notes. (Sec. 21, and allows the amendment of the complaint at any
Rule 3) stage of the proceedings, through motion or on
order of the court on its own initiative (Sec. 11, Rule
Note: The amount of the docket and other lawful fees 3; Republic v. Sandiganbayan, G.R. No. 152154, July
which the indigent was exempted from paying shall be 15, 2003). However, when the order of the court to
a lien on any judgment rendered in the case favorable implead an indispendable party goes unheeded, the
to the indigent, unless otherwise provided (Sec. 21, court may order the dismissal of the case. The court
Rule 3). is fully clothed with the authority to dismiss a
complaint due to the fault of the plaintiff as when,
The basis for the exemption from legal and filing fees is among others, he does not comply with the order
the free access clause embodied in Sec. 11, Art. III,
of the court (Sec. 3, Rule 17; Plasabas vs. CA, GR No.
1987 Constitution. (Re: Query of Mr. Roger C.
166519; Riano, Civil Procedure: A Restatement for
Prioreschi re exemption from legal and filing fees of
The Good Shepherd Foundation, Inc., A.M. No. 09-6-9-
the Bar p. 223, 2009 ed.)
SC, Aug. 19, 2009)
4. CLASS SUIT
Q: Who is a pro forma party?
Q: What is a class suit?
A: One who is joined as a plaintiff or defendant, not
because such party has any real interest in the A: It is an action where one or some of the parties
subject matter or because any relief is demanded, may sue for the benefit of all if the requisites for
but merely because the technical rules of pleadings said action are complied with. (Riano, Civil
require the presence of such party on the record. Procedure: A Restatement for the Bar, p. 236, 2009
(Samaniego vs. Agulia, G.R. No. 125567, June 27, ed.)
2000)
Q: What are its requisites?
2. COMPULSORY AND PERMISSIVE JOINDER OF
PARTIES A:
1. Subject matter of the controversy is one
Q: When is there a compulsory joinder of parties? of common or general interest to many
persons;
A: The joinder of parties becomes compulsory when 2. Parties affected are so numerous that it is
the one involved is an indispensable party. Clearly, impracticable to bring them all before the
the rule directs a compulsory joinder of court;
indispensable parties, (Riano, Civil Procedure: A 3. Parties bringing the class suit are
Restatement for the Bar, p. 222, 2009 ed.) sufficiently numerous or representative of
the class and can fully protect the
Q: What are the requisites of permissive joinder of interests of all concerned (Sec. 12 Rule 3);
parties? and
4. Representatives sue or defend for the
A: benefit of all (Sec.12, Rule 3)
1. Right to relief arises out of the same
transaction or series of transactions 5. SUITS AGAINST ENTITIES WITHOUT JURIDICAL
(connected with the same subject matter PERSONALITY
of the suit);
2. There is a question of law or fact common Q: What is the rule on suits against entities
to all the plaintiffs or defendants; and without juridical personality?
3. Joinder is not otherwise provided by the
provisions of the Rules on jurisdiction and A: When two or more persons not organized as an
venue (Sec. 6, Rule 3). entity with juridical personality enter into a
transaction, they may be sued under the name by
3. MISJOINDER AND NON-JOINDER OF PARTIES which they are generally or commonly known. In
the answer of such defendant, the names and
Q: Is the misjoinder or non-joinder of an addresses of the persons composing said entity
indispensable party a ground for the dismissal of must all be revealed (Sec. 15, Rule 3).
the action or annulment of judgment?
Note: Persons associated in an entity without juridical
personality may be sued under the name by which they
A: No. The Rules prohibit the dismissal of a suit on are generally or commonly known, but they cannot sue
the ground of non-joinder or misjoinder of parties under such name.

CIVIL PROCEDURE
Question)
6. EFFECT OF DEATH OF PARTY LITIGANT
Establishes a relation Establishes a relation
Q: What is the effect of the death of a party upon between plaintiff and between the court and
a pending action? defendant, or petitioner the subject matter.
and respondent.
A: GR: Not a ground for a It is a ground for a motu
1. Purely personal – the death of either of motu proprio dismissal proprio dismissal. (Riano,
the parties extinguishes the claim and the Civil Procedure: A
action is dismissed. XPN: In cases subject to Restatement for the Bar,
summary procedure. p. 210, 2009 ed.)
2. Not purely personal – claim is not
extinguished and the party should be Q: Can a complaint be dismissed by the court motu
substituted by his heirs, executor or proprio based on improper venue?
administrator. In case of minor heirs, the
court may appoint a guardian ad litem for A: No. Improper venue is not one of the grounds
them. wherein the court may dismiss an action motu
3. Action for recovery of money arising from proprio. (Universal Corp. vs. Lim, G.R. No. 154338,
contract and the defendant dies before Oct. 5, 2007). Unless and until the defendant
entry of final judgment – it shall not be objects to the venue in a motion to dismiss, the
dismissed but instead shall be allowed to venue cannot be truly said to be improperly laid,
continue until entry of judgment. A because the venue although technically wrong may
favorable judgment obtained by the be acceptable to the parties for whose convenience
plaintiff shall be enforced in the manner the rules on venue have been devised. (Dacuycuy
provided in the rules for prosecuting vs. Intermediate Appellate Court, 195 SCRA 641)
claims against the estate of a deceased
person. (Sec. 20, Rule 3, 1999 Bar 2. VENUE OF REAL ACTIONS
Question)
Q: What is the venue of real actions?
Note: The substitute defendant need not be
summoned. The order of substitution shall be served A: The venue is local, hence the venue is the place
upon the parties substituted for the court to acquire where the real property involved or, any portion
jurisdiction over the substitute party. (Riano, Civil thereof, is situated (Sec. 1, Rule 4).
Procedure: A Restatement for the Bar, p. 232, 2009 ed.)
If there is notice of death, the court should await 3. VENUE OF PERSONAL ACTIONS
appointment of legal representative; otherwise,
subsequent proceedings are void. Q: What is the venue of personal actions?
D. VENUE A: The venue is transitory, hence the venue is the

residence of the plaintiff or defendant at the option
1. VENUE VERSUS JURISDICTION of the plaintiff. (Sec. 3, Rule 4).
Q: Distinguish venue from jurisdiction. 4. VENUE OF ACTIONS AGAINST NON-RESIDENTS
A: Q: Where should the action be commenced and

Venue Jurisdiction tried if the defendant is a non-resident?
The place, or Power of the court to
geographical area where hear and decide a case A:
an action is to be filed 1. Defendant does not reside and is found in
and tried. the Philippines:
May be waived by: Cannot be waived a. Personal actions – shall be
1. Failure to object commenced and tried in the court of
through a motion to the place where the plaintiff resides
dismiss or through an
b. Real actions – shall be commenced
affirmative defense.
and tried in the court of the place
2. Stipulation of the
where the property is located.
parties.
Procedural Substantive
May be changed by the Cannot be the subject of
2. Defendant does not reside and is not
written agreement of the the agreement of the found in the Philippines:
parties parties. (2006 Bar
25
a. If the action affects the personal 2. Solely

status of the plaintiff – the action 3. Exclusively in this court
may be commenced and tried in the 4. In no other court save –
court of the place where the plaintiff 5. Particularly
resides. 6. Nowhere else but/except
b. If it involves any property of the non-
resident defendant – the action may Q: When is stipulation on venue void?
be commenced and tried where the
property or any portion thereof is A: It is void and unenforceable when it is contrary
situated (Sec. 3, Rule 4). to public policy (Sweet Lines v. Teves, G.R. No.
28324, Nov. 19, 1978)
5. WHEN THE RULES ON VENUE DO NOT APPLY
Note: When the action is no longer based on the
Q: In what instances does the rule on venue of agreement but on the tortuous act of sending
action inapplicable? collection telegrams despite the fact that the
obligation had already been paid, venue is no longer
A: based on the written stipulation but at the election of
1. In cases where a specific rule or law the plaintiff as fixed by law. (Zoleta v. Ramillo, G.R. No.
provides otherwise (e.g. an action for L-58080, Feb. 15, 1982)
damages arising from libel).
2. Where the parties have validly agreed in E. PLEADINGS
writing before the filing of the action on
the exclusive venue (Sec. 4, Rule 4). Q: What are pleadings?
6. EFFECTS OF STIPULATIONS ON VENUE A: Pleadings are the written statements of the

respective claims and defenses of the parties
Q: What is rule on the stipulations on venue? submitted to the court for appropriate judgment.
(Sec.1, Rule 6)
A: The parties may agree on a specific venue which
Note: Pleadings cannot be oral because they are
could be in a place where neither of them resides
clearly described as “written” statements. (Riano, Civil
(Universal Robina Corp. vs. Lim, 535 SCRA 95). The
Procedure: A Restatement for the Bar, p. 51, 2009 ed.)
parties may stipulate on the venue as long as the
agreement is in writing, made before the filing of
1. KINDS OF PLEADINGS
the action, and exclusive. (Sec.4[b], Rule 4)
Q: What are the kinds of pleadings?
Q: What makes a stipulation on venue exclusive?
A:
A: Venue is exclusive when the stipulation clearly
1. Complaint
indicates, through qualifying and restrictive words
2. Counterclaim
that the parties deliberately exclude causes or
3. Cross-claim
actions from the operation of the ordinary
4. Third party claim
permissive rules on venue and that they intended
5. Reply
contractually to designate a specific venue to the
6. Answer
exclusion of any other court also com petent and
accessible to the parties under the ordinary rules on
a. COMPLAINT
venue of actions (Philippine Banking Corp. v.
Tensuan, G.R. No. 106920, Dec. 10, 1993)
Q: What is a complaint?
Note: A stipulation that the parties agree to sue and
A: It is a concise statement of the ultimate facts
be sued in the courts of Manila is not restrictive or
exclusive to prevent the filing of the suit in the places
constituting the plaintiff’s cause or causes of action,
provided for by the rules (Riano, Civil Procedure: A with a specification of the relief sought, but it may
Restatement for the Bar, p. 205, 2009 ed.) add a general prayer for such further relief as may
be deemed just or equitable.
Q: What are examples of words with restrictive
meanings? Note: A pleading alleging the plaintiff’s cause or causes
of action. The names and residences of the plaintiff
A: and defendant must be stated. (Sec. 3, Rule 6)
1. Only

CIVIL PROCEDURE
b. ANSWER A denial in a form of negative pregnant is an

ambiguous pleading, since it cannot be ascertained
Q: What is an answer? whether it is the fact or only the qualification that is
intended to be denied (Galofa v. Nee Bon Sing, G.R.
A: It is the pleading where the defendant sets forth No. L-22018, Jan. 17, 1968).
his affirmative or negative defenses (Sec. 4 Rule 6).
It may likewise be the response to a counterclaim c. COUNTERCLAIMS
or a cross-claim.
Q: What is counterclaim?
Note: An answer Is a compulsory pleading. This
pleading may be an answer to the complaint, an A: It is any claim which a defending party may have
answer to counter claim or an answer to a cross-claim against an opposing party (Sec. 6, Rule 6). It
(Riano, Civil Procedure: A Restatement for the Bar, p. partakes of a complaint by the defendant against
323, 2009 ed.) the plaintiff (Pro-Line Sports Inc., v. CA, G.R. No.
118192, Oct. 23, 1997)
(1) NEGATIVE DEFENSES
(2) NEGATIVE PREGNANT Note: The filing of counterclaim gives rise to
(3) AFFIRMATIVE DEFENSES complaints, namely, the one filed by plaintiff by way of
original complaint and the one filed by defendant by
Q: What are the two kinds of defenses that may be way of a counterclaim (Riano, Civil Procedure: A
set forth in the answer? Restatement for the Bar, p.330, 2009 ed.) A
counterclaim may be asserted against an original
A: counter-claimant and a cross-claim may also be filed
against an original cross-claimant. (Sec.9, Rule 6)
1. Affirmative defenses – allegation of a
new matter which while hypothetically
(1) COMPULSORY COUNTERCLAIM
admitting the material allegations in the
(2) PERMISSIVE COUNTERCLAIM
pleading would nevertheless prevent or
bar recovery by the claiming party. It is in
Q: Distinguish the two kinds of counterclaim.
the nature of confession and avoidance
2. Negative defenses – specific denial of the
A:
material facts or facts alleged in the
Compulsory Permissive Counterclaim
pleading essential to establish the
Counterclaim
plaintiff’s cause of action (Sec. 5, Rule 6).
One which arises out of It does not arise out of nor
or is necessarily is it necessarily connected
Q: What are insufficient denials or denials
connected with the with the subject matter of
amounting to an admission? transaction or the opposing party’s claim
occurrence that is the
A: subject matter of the
1. General denial opposing party’s claim
2. Denial in the form of a negative pregnant (Sec.7, Rule 6)
It does not require for It may require for its
Q: What is negative pregnant? its adjudication the adjudication the presence
presence of third parties of third parties over
A: A denial which does not qualify as a specific of whom the court whom the court cannot
denial. It is conceded to be actually an admission cannot acquire acquire jurisdiction
(Riano, Civil Procedure: A Restatement for the Bar, jurisdiction
p. 327, 2009 ed.). It is a form of denial which, at the Barred if not set up in Not barred even if not set
same time, involves an affirmative implication the action (Sec. 2, Rule up in the action
favorable to the opposing party. It is in effect an 9)
admission of the averment to which it is directed. It Need not be answered; Must be answered,:
is said to be a denial pregnant with an admission of No default Otherwise, default
the substantial facts in the pleading responded to. Not an initiatory Initiatory pleading. (Riano,
(Regalado, Remedial Law Compendium, Vol. I, p. pleading. Civil Procedure: A
Restatement for the Bar,
177, 2005 ed.)
p. 336, 2009 ed.)
Need not be Must be accompanied by
Note: Where a fact is alleged with some qualification
accompanied by a a certification against
or modifying language and the denial is conjunctive, a
certification against forum shopping and
negative pregnant exists, and only the qualification or
forum shopping and whenever required by
modification is denied, while the fact itself is admitted.
certificate to file action law, also a certificate to
27
by the Lupong file action by the Lupong the right of the defendant to prosecute
Tagapamayapa. Tagapamayapa (Santo his counterclaim in the same or separate
Tomas University v. Surla, action (Sec. 3, Rule 17; Riano, Civil
G.R. No. 129718, Aug. 17, Procedure: A Restatement for the Bar, p.
1998) (2007 Bar 340, 2009 ed.)
Question).
The court has Must be within the Q: Fe filed a suit for collection of P387,000 against
jurisdiction to entertain jurisdiction of the court Ramon in the RTC of Davao City. Aside from
both as to the amount where the case is pending
alleging payment as a defense, Ramon in his
and nature (Sec. 7, Rule and cognizable by regular
answer set up counterclaims for P100,000 as
6; Ibid p.331) courts of justice
damages and P30,000 as attorney's fees as a result
otherwise, defendant will
have to file it in separate of the baseless filing of the complaint, as well as
proceeding which requires for P250,000 as the balance of the purchase price
payment of docket fee of the 30 units of air conditioners he sold to Fe.
Suppose that instead of alleging payment as a
Note: A plaintiff who fails or who chooses not to defense in his answer, Ramon filed a motion to
answer a compulsory counterclaim may not be dismiss on that ground, at the same time setting
declared in default, principally because the issues up his counterclaims, and the court grants his
raised in the counterclaim are deemed automatically motion. What will happen to his counterclaims?
joined by the allegations of the complaint (Gojo v.
Goyala, G.R. No. 26768, Oct. 30, 1970). A: Since Ramon filed only a motion to dismiss, not
an answer, the dismissal of the complaint would
In an original action before the RTC, the counterclaim also bring about the dismissal of his counterclaims
may be considered compulsory regardless of the but he can file a separate action for his permissive
amount (Sec. 7, Rule 6). counterclaims. The compulsory counterclaims are
deemed waived when he filed a motion to dismiss
(3) EFFECT ON THE COUNTERCLAIM WHEN THE the complaint instead of answering the same
COMPLAINT IS DISMISSED (Financial Building Corp. v. Forbes Park Association,
Inc., G.R. No. 133119, Aug. 17, 2000). (2008 Bar
Q: What is the effect of the dismissal of a Question)
complaint on the counterclaim?
d. CROSS-CLAIMS
A:
1. If no motion to dismiss has been filed, any Q: What are the requirements for a cross-claim?
of the grounds for dismissal under rule 16
may be pleaded as an affirmative defense A:
in the answer, and in the discretion of the 1. A claim by one party against a co-party;
court, a preliminary hearing may be had 2. It must arise out of the subject matter of
thereon as if a motion to dismiss has been the complaint or of the counterclaim; and
filed (Sec. 6, Rule 16). After hearing, when 3. The cross-claimant is prejudiced by the
the complaint is dismissed, the claim against him by the opposing party.
counterclaim, compulsory or permissive is (Sec. 8, Rule 6)
not dismissed.
2. When the plaintiff himself files a motion Q: What is the effect if a cross-claim was not set
to dismiss his complaint after the up?
defendant has pleaded his answer with a
counterclaim. If the court grants the A:
motion, the dismissal shall be limited to GR: Barred if not set up. (Sec.2, Rule 9)
the complaint. It shall be without
prejudice to the right of the defendant to XPN: If it is not asserted through oversight,
prosecute his counterclaim in a separate inadvertence, or excusable negligence, it may still
action unless within 15 days from notice be set up with leave of court by amendment of the
of the motion, manifests his preference to pleadings. (Sec.10, Rule 11)
have his counterclaim resolved in the
same action (Sec. 2, Rule 17).
3. When the complaint is dismissed through
the fault of the plaintiff and at a time
when a counterclaim has already been set
up, the dismissal is without prejudice to

CIVIL PROCEDURE
e. THIRD (FOURTH, ETC.) PARTY COMPLAINTS Surety & Insurance Co., G.R. No. L-27802, Oct. 26,
1968).
Q: What is a third (fourth, etc.) party complaint?
A third party complaint is not proper in an action for
A: A third (fourth, etc.) party complaint is a claim declaratory relief. (Commissioner of Customs v.
that a defending party may, with leave of court, file Cloribel, G.R. No. L-21036, June 30, 1977).
against a person not a party to the action, called
the third (fourth, etc.) party defendant, for Note: The court is vested with the discretion to allow
or disallow a party to an action to implead an
contribution, indemnity, subrogation or any other
additional party. Thus, a defendant has no vested right
relief, in respect of his opponent's claim. (Sec.11,
to file a third party complaint (China Banking
Rule 6) Corporation vs. Padilla, G.R no. 143490, Feb. 2, 2007;
Riano, p. 342, 2009 ed.).
Q: Distinguish a third-party complaint from the
rules on bringing in new parties. Q: Abby obtained a favorable judgment against
UNICAP for a sum of money. For failure to get full
A: A third-party complaint is proper when not one payment, Abby went after UNICAP’s debtor Ben.
of the third-party defendants therein is a party to Ben is a policy holder of Insular. The court’s sheriff
the main action. Whereas in bringing in new then served a notice of garnishment to Insular
parties, if one or more of the defendants in a over several account receivables due to Ben.
counterclaim or cross-claim is already a party to the Insular refused to comply with the order alleging
action, then the other necessary parties may be adverse claims over the garnished amounts. The
brought in under the rules on bringing in new trial court ordered Insular to release to Abby the
parties said account receivables of Ben under the policies.
Insular then filed a petition for certiorari with the
Q: Why is leave of court necessary in third (fourth, CA alleging that the trial judge gravely abused his
etc.) -party complaint? discretion when he issued the garnishment order
despite its adverse claim on the garnished
A: To obviate delay in the resolution of the amounts. The CA gave due course to the petition
complaint such as when the third-party defendant and annulled the order of the trial court. Is the
cannot be located; or unnecessary issues may be Court of Appeals correct?
introduced; or the introduction of a new and
separate controversy. (Herrera, Vol. I, p. 705, 2007 A: No. Neither an appeal nor a petition for certiorari
ed.) is the proper remedy from the denial of a third-
party claim. Since the third-party claimant is not
Q: What are the tests to determine whether the one of the parties to the action, he could not,
third-party complaint is in respect of plaintiff’s strictly speaking, appeal from the order denying its
claim? claim, but should file a separate reinvindicatory
action against the execution creditor or a complaint
A: for damages against the bond filed by the judgment
1. Whether it arises out of the same creditor in favor of the sheriff. The rights of a third-
transaction on which the plaintiff’s claim party claimant should be decided in a separate
is based, or, although arising out of action to be instituted by the third person (Solidum
another or different transaction, is v. CA, G.R. No. 161647, June 22, 2006).
connected with the plaintiff’s claim;
2. Whether the third-party defendant would f. COMPLAINT-IN-INTERVENTION
be liable to the plaintiff or to the
defendant for all or part of the plaintiff’s Q: What is a complaint-in-intervention?
claim against the original defendant; and
3. Whether the third-party defendant may A: An intervention pleading filed for the purpose of
assert any defenses which the third-party asserting a claim against either or all of the original
plaintiff has or may have to the plaintiff’s parties.
claim.
g. REPLY
Note: Where the trial court has jurisdiction over the
main case, it also has jurisdiction over the third party
Q: Is the filing of a reply necessary?
complaint, regardless of the amount involved as a
third-party complaint is merely auxiliary to and is a
continuation of the main action (Republic v. Central
A:
GR: No.
29
Note: If a party does not file such reply. All the 3. PARTS OF A PLEADING
new matters that were alleged in the answer are
deemed controverted (Sec. 10, Rule 6) a. CAPTION
XPNs: Q: What should the caption contain?

1. Where the answer alleges the defense of
usury in which case a reply under oath A: The caption sets forth the name of the court, the
should be made. Otherwise, the title of the action, and the docket number if
allegation of usurious interest shall be assigned. (Sec. 1, Rule 7)
deemed admitted.
2. Where the defense in the answer is based Q: What should the title of the caption indicate?
on an actionable document, a reply under
oath pursuant to Sec. 8 of Rule 8 must be A: It should indicate the names of the parties. They
made. Otherwise, the genuineness and shall all be named in the original complaint or
due execution of the document shall be petition but in subsequent pleadings, it shall be
deemed admitted. sufficient if the name of the first party on each side
be stated with an appropriate indication when
2. PLEADINGS ALLOWED IN SMALL CLAIM CASES there are other parties. (Sec. 1, Rule 7)
AND CASES COVERED BY THE RULES ON
SUMMARY PROCEDURE b. SIGNATURE AND ADDRESS
Q: What are the pleadings allowed in a summary Q: What is the rule regarding the signature and
procedure? address?
A: A: The complaint must be signed by the plaintiff or

1. Complaint counsel representing him indicating his address.
2. Compulsory counterclaim This address should not be a post office box. An
3. Cross-claims pleaded in the answer unsigned pleading produces no legal effect.
4. Answer to these pleadings (Sec. 3, Rules However, the court may, in its discretion, allow
on Summary Procedure; Riano, p. 177, such deficiency to be remedied if it shall appear
2009 ed.) that the same was due to mere inadvertence and
not intended for delay. Counsel who deliberately
Q: What are the prohibited pleadings, motions and files an unsigned pleading, or signs a pleading in
petitions in small claims? violation of this Rule, or alleges scandalous or
indecent matter therein, or fails to promptly report
A: to the court a change of his address, shall be
1. Motion to dismiss the complaint except subject to appropriate disciplinary action (Sec. 3,
on the ground of lack of jurisdiction. Rule 7)
2. Motion for a bill of particulars.
3. Motion for new trial, or for c. VERIFICATION AND CERTIFICATION AGAINST
reconsideration of a judgment, or for FORUM SHOPPING
reopening of trial.
4. Petition for relief from judgment. Q: How are pleadings verified?
5. Motion for extension of time to file
pleadings, affidavits, or any other paper. A: It is verified by an affidavit. This affidavit declares
6. Memoranda. that the:
7. Petition for certiorari, mandamus, or 1. Affiant has read the pleading; and
prohibition against any interlocutory 2. Allegations therein are true and correct of
order issued by the court. his personal knowledge or based on
8. Motion to declare the defendant in authentic records (Sec. 4, Rule 7)
default.
9. Dilatory motions for postponement. Q: Is verification necessary in pleadings?
10. Reply.
11. Third-party complaints. A: No, except when otherwise specifically required
12. Interventions. (Sec.14 of A.M. No. 08-8-7- by law or rule, pleadings need not be under oath,
SC) verified or accompanied by affidavit. (Sec. 4, Rule 7)

CIVIL PROCEDURE
Q: What is the significance of verification? 2. It does not necessarily render the

pleading defective. It is only a formal and
A: it is intended to secure an assurance that the not a jurisdictional requirement. The
allegations in a pleading are true and correct and requirement is a condition affecting only
not the product of the imagination or a matter of the form of the pleading (Benguet Corp. v.
speculation, and that the pleading is filed in good Cordillera Caraballo Mission, Inc., G.R. No.
faith. The absence of a proper verification is cause 155343, Sept. 2, 2005) and non-
to treat the pleading as unsigned and dismissible compliance therewith does not
(Chua vs. Torres, 468 SCRA 358; Riano, Civil necessarily render it fatally defective
Procedure: A Restatement for the Bar, p. 60, 2009 (Sarmiento v. Zaranta, G.R. No. 167471,
ed.) Feb. 5, 2007)
3. The absence of verification may be
Q: What are the pleadings that should be verified? corrected by requiring an oath. The rule is
in keeping with the principle that rules of
A: The following should be verified: procedure are established to secure
1. Petition for relief from judgment substantial justice and that technical
2. Petition for review from the RTCs to the requirements may be dispensed with in
CA meritorious cases (Pampanga Sugar
3. Petition for review from the CTA and Development Co., Inc. v. NLRC, G.R. No.
quasi-judicial agencies to the CA 112650, May 29, 1997)
4. Appeal by certiorari from the CA to the SC
5. Petition for annulment of judgments or Q: What is the nature of the certification against
final orders and resolutions non-forum shopping?
6. Complaint for injunction
7. Application for appointment of receiver A: It is a mandatory requirement in filing a
8. Application for support pendente lite complaint and other initiatory pleadings asserting a
9. Petition for certiorari against the claim or relief (Sec. 5, Rule 7). This rules applies as
judgments, final orders or resolutions of well to special civil actions since a since rules for
constitutional commissions ordinary civil action are suppletory (Riano, Civil
10. Petition for certiorari, prohibition, Procedure: A Restatement for the Bar, p. 63, 2009
mandamus, quo warranto ed.).
11. Complaint for expropriation
12. Complaint for forcible entry or unlawful Q: Who executes certification against forum-
detainer shopping?
13. Petition for indirect contempt
14. Petition for appointment of general A: It is the plaintiff or principal party who executes
guardian the certification under oath (Sec. 5, Rule 7). It must
15. Petition for leave to sell or encumber be signed by the party himself and cannot be signed
property of an estate by a guardian by his counsels. (Digital Microwave Corp. v. CA, G.R.
16. Petition for the declaration of No. 128550, Mar. 16, 2000). It is the plaintiff who is
competency of a ward in the best position to know whether he or it
17. Petition for habeas corpus actually filed or caused the filing of a petition. (Far
18. Petition for change of name Eastern Shipping Co. v. CA, G.R. No. 130068, Oct. 1,
19. Petition for voluntary judicial dissolution 1998)
of a corporation;
20. Petition for correction or cancellation of Q: What are the undertakings of a party under the
entries in Civil Registry. (1996 Bar certification against forum shopping?
Question)
A:
Q: What are the effects of lack of verification? 1. That the party has not commenced or
filed any claim involving the same issues
A: in any court, tribunal, or quasi-judicial
1. A pleading required to be verified but agency and, to the best of his knowledge,
lacks the proper verification shall be no such other action or claim is pending
treated as an unsigned pleading (Sec. 4 as
amended by A.M. 00-2-10, May 1, 2000). 2. That if there is such other pending action
Hence, it produces no legal effect (Sec. 3, or claim, a complete statement of the
Rule 7) present status thereof
31
3. That if he should therefore learn that the filing of the certification 14 days before the
same or similar action or claim has been dismissal of the petition. In Uy v. LandBank,
filed or is pending, he shall report that supra, the Court had dismissed Uy’s petition for
fact within five days therefrom to the lack of verification and certification against non-
court wherein his aforesaid complaint or forum shopping. However, it subsequently
initiatory pleading has been filed (Sec. 5, reinstated the petition after Uy submitted a
Rule 7) motion to admit certification and non-
forum shopping certification. In all these cases,
Q: What is the effect of non-compliance with the there were special circumstances or compelling
rule on certification against forum shopping? reasons that justified the relaxation of the rule
requiring verification and certification on non-
A: It is not curable by mere amendment and shall forum shopping.
be a cause for the dismissal of action (Sec.5, Rule 7).
Q: Is substantial compliance allowed by the
Note: When the case is dismissed due to non- courts?
compliance with the certification, filing fees cannot be
recovered. A:
GR: No. The rule is that the certificate of non-
Q: What is the effect of non-compliance with the forum shopping must be signed by all the
undertakings? petitioners or plaintiffs in a case and the signing
by only one of them is insufficient.
A: It has the same effect as the submission of false
certification. Hence, such failure shall constitute XPN: However, the Court has also stressed that
indirect contempt of court without prejudice to the the rules on forum shopping, which were
corresponding administrative and criminal designed to promote and facilitate the orderly
sanctions. (Sec. 5 Rule 7). administration of justice, should not be
interpreted with such absolute literalness as to
Q: What is the effect of submission of a false subvert its own ultimate and legitimate
certification? objective. The rule of substantial compliance
may be availed of with respect to the contents
A: It shall constitute indirect contempt of court, of the certification. This is because the
without prejudice to the corresponding requirement of strict compliance with the
administrative and criminal actions (Sec. 5, Rule 7) provisions regarding the certification of non-
forum shopping merely underscores its
Q: What is the effect of willful and deliberate mandatory nature in that the certification
forum shopping of the party or his counsel? cannot be altogether dispensed with or its
requirements completely disregarded. It does
A: It shall be a ground for summary dismissal. This not thereby interdict substantial compliance
dismissal is with prejudice and shall constitute with its provisions under justifiable
direct contempt as well as cause for administrative circumstances. (Cavile v. Heirs of Clarita Cavile,
sanctions (Sec. 5, Rule 7). 448 Phil 302, 2003)
Q: Is belated filing allowed by the courts? Q: When should the rule on forum shopping be
invoked?
A:
GR: No. The lack of certification against A:
forum shopping is generally not curable by the GR: It should be raised at the earliest
submission thereof after the filing of the opportunity in a motion to dismiss or a similar
petition. pleading.
XPN: In certain exceptional circumstances, Note: Invoking it in the later stages of the
however, the Court has allowed the belated proceedings or on appeal may result in the
filing of the certification. In Loyola v. Court of dismissal of the action which invokes forum
Appeals, et al. (245 SCRA 477 [1995]), the Court shopping.
considered the filing of the certification one day
after the filing of an election protest XPNs: It may be invoked in the later stages only
as substantial compliance with the requirement. if the violation arises from or will result in:
In Roadway Express, Inc. v. Court of Appeals, et 1. The loss of jurisdiction over the subject
al. (264 SCRA 696 [1996]), the Court allowed the matter

CIVIL PROCEDURE
2. The pendency of another action between

the same parties for the same cause A: No. When the petitioner in a case is a
3. Barring of the action by a prior judgment corporation, the certification against forum
4. The Statute of Limitations has been shopping should be signed by its duly authorized
crossed (Young v. Keng Seng, G.R. director or representative. The authorized director
No.143464, Mar. 5, 2003). or representative of the corporation should be
vested with authority by a valid board resolution. A
Q: Mayor Miguel, Mayor of City Koronadal, filed proof of said authority must be attached with the
an action against RD Corporation for the certification (PAL v. FASAP, G.R. No. 143088, Jan.
annulment of the deed of absolute sale over 24, 2006).
several real properties of City of Koronadal
alleging irregularities thereto with the RTC. The d. EFFECT OF THE SIGNATURE OF COUNSEL IN A
said deed of absolute sale was authorized by PLEADING
Mayor Miguel’s predecessor, Mayor de Jesus. The
RTC dismissed the petition because the Q: What is the effect of lawyer’s signature?
certification against forum shopping was signed by
the City Legal Officer of City of Koronadal and not A: The signature of counsel constitutes:
by Mayor Miguel. Is the RTC correct? 1. A certificate by him that he has read the
pleadings;
A: Yes. It is the mayor, not the City Legal Officer, 2. That to the best of his knowledge,
who has the authority to file suits for the recovery information and belief there is good
of funds and property on behalf of the city even ground to support it; and
without the prior authorization from the 3. That it is not interposed for delay. (Sec. 3,
Sanggunian. Here, Mayor Miguel had the authority Rule 7)
to institute the action against RD Corporation.
However, being the proper party to file such suits, 4. ALLEGATIONS IN A PLEADING
Mayor Miguel must necessarily be the one to sign
the certification against forum-shopping, and not a. MANNER OF MAKING ALLEGATIONS
the City Legal Officer, who, despite being an official
of the City, was merely its counsel and not a party Q: What is the rule when making a pleading?
to the case (City of Caloocan v. CA, G.R. No. 145004,
May 3, 2006). A: Every pleading shall contain in a methodical and
logical form a plain, concise and direct statement of
(1) REQUIREMENTS OF A CORPORATION the ultimate facts, omitting the statement of mere
EXECUTING THE VERIFICATION/CERTIFICATION OF evidentiary facts. (Sec. 1, Rule 6)
NON-FORUM SHOPPING
Q: What are Ultimate facts?
Q: What is the rule when the plaintiff is a juridical
person? A: They refer to the essential facts of the claim. A
fact is essential if it cannot be stricken out without
A: The certification against forum shopping where leaving the statement of the cause of action
the plaintiff is a juridical entity like a corporation, insufficient. (Ceroferr Realty Corporation vs. Court
may be executed by properly authorized person. of Appeals, 376 SCRA 144)
This person may be a lawyer of a corporation. As
long as he is duly authorized by the corporation and (1) CONDITION PRECEDENT
has personal knowledge of the facts required to be
disclosed in the certification, such may be signed by Q: What is condition precedent?
the authorized lawyer (National Steel Corporation
vs. CA, 388 SCRA 85; Riano, Civil Procedure: A A: It refers to matters which must be complied with
Restatement for the Bar, p. 70, 2009 ed.) before a cause of action arises. (Riano, Civil
Procedure: A Restatement for the Bar, p. 97, 2009
Q: Corporation XYZ is the petitioner in a civil case. ed.)
Alexander, president of corporation XYZ, signed
the certification against forum shopping in behalf Q: What is the rule on conditions precedent?
of said corporation without presenting any proof
of authority from the corporation. Is the A: When a claim is subject to a condition precedent,
certification against forum shopping valid? If not, the compliance of the same must be alleged in the
how may it be cured? pleading. Otherwise it will be a ground for dismissal
33
for failure to state a cause of action. Such as tender Q: How are actionable documents pleaded?
of payment before consignation, prior resort to
barangay conciliation when necessary, and etc A: By setting forth:
(Riano, Civil Procedure: A Restatement for the Bar, 1. The substance of such document in the
p. 97, 2009 ed.). pleading and attaching said document
thereto as an exhibit
(2) FRAUD, MISTAKE, MALICE, INTENT, 2. Said document verbatim in the pleading
KNOWLEDGE AND OTHER CONDITION OF THE (Sec. 7, Rule 8).
MIND, JUDGMENTS, OFFICIAL DOCUMENTS OR
ACTS Note: A variance in the substance of the document set
forth in the pleading and the document annexed
Q: What is the rule in making averments of fraud thereto does not warrant the dismissal of the action
or mistake? (Convets, Inc. v. National Development Co., G.R. No. L-
10232, Feb. 28, 1958). However, the contents of the
A: The circumstances constituting such fraud or document annexed are controlling.
mistake must be stated with particularity (Sec. 5,
Rule 8). The complaint must state with particularity c. SPECIFIC DENIALS
the fraudulent acts of the adverse party. These
particulars would necessarily include the time, Q: What are the kinds of specific denial?
place, and specific acts of fraud committed against
him (Riano, Civil Procedure: A Restatement for the A:
Bar, p. 98, 2009 ed.). 1. Absolute denial – defendant specifies
each material allegation of fact the truth
Q: What is the rule in making averments of malice, of which he does not admit and,
intent, knowledge or other conditions of the mind whenever practicable, shall set forth the
of a person? substance of the matters upon which he
relies to support his denial.
A: The circumstances constituting such may be 2. Partial denial – defendant denies only a
averred generally (Sec.5, Rule 8). part of an averment. In this kind he shall
specify so much of it as is true and
Q: What is the rule in pleading an official material and shall deny only the
document or act? remainder.
3. Disavowal of knowledge – defendant
A: It is sufficient to aver that the document was alleges that he is without knowledge or
issued in compliance with law. With respect to an information sufficient to form a belief as
act, it is likewise sufficient to allege that the act was to the truth of a material averment made
done also in compliance with law (Sec.9, Rule 8; in the complaint.
Riano, Civil Procedure: A Restatement for the Bar, p.
98, 2009 ed.). (1) EFFECT OF FAILURE TO MAKE SPECIFIC DENIALS
b. PLEADING AN ACTIONABLE DOCUMENT Q: What is the effect of failure to make specific

denial?
Q: What is an actionable document?
A: Material averments except as to the amount of
A: Referred to as the document relied upon by unliquidated damages, not specifically denied are
either the plaintiff and the defendant. (Araneta, Inc. deemed admitted. If the allegations are deemed
vs. Lyric Factor Exchange, Inc. 58 Phil 736) E.g. A admitted, there is no more triable issue between
promissory note in an action for collection of a sum the parties and if the admissions appear in the
of money. (Riano, Civil Procedure: A Restatement answer of the defendant, the plaintiff may file a
for the Bar, p. 101, 2009 ed.) motion for judgment on the pleadings under Rule
34 (Riano, Civil Procedure: A Restatement for the
Note: This manner of pleading a document applies Bar, p. 324, 2009 ed.)
only to an actionable document, i.e., one which is the
basis of an action or a defense. Hence, if a document
does not have the character of an actionable
document, it need not be pleaded strictly in the
manner prescribed by the rules (Ibid p.102)

CIVIL PROCEDURE
(2) WHEN A SPECIFIC DENIAL REQUIRES AN OATH 6. DEFAULT
Q: When is a specific denial must be coupled with a. DECLARATION OF DEFAULT

an oath?
Q: When is a declaration of default proper?
A:
1. A denial of an actionable document (Sec. A: If the defending party fails to answer within the
8, Rule 8) time allowed therefor, the court shall upon motion
2. A denial of allegations of usury in a of the claiming party with notice to the defending
complaint to recover usurious interest (Sec. 11, party, and proof of such failure, declare the
Rule 8) defending party in default (Sec. 3, Rule 9, Rules of
Court). (Riano, p. 507, 2005 ed.)
5. EFFECT OF FAILURE TO PLEAD
Q: In what situations where declaration of default
a. FAILURE TO PLEAD DEFENSES AND OBJECTIONS is proper?
Q: May defenses not pleaded in a motion to A: It is proper in 3 situations:

dismiss or in the answer still be raised? 1. Defendant did not file any answer or
responsive pleading despite valid service
A: of summons;
GR: No, they are deemed waived. 2. Defendant filed an answer or responsive
pleading but beyond the reglementary
XPNs: These defenses may be raised at any period; and
stage of the proceedings even for the first time 3. Defendant filed an answer to the court
on appeal (Tijam v. Sibonghanoy, G.R. No. L- but failed to serve the plaintiff a copy as
21450, Apr. 15, 1968): required by the Rules.
1. Lack of jurisdiction over the subject
matter; b. EFFECT OF AN ORDER OF DEFAULT
Note: It may however, be barred by laches.
Q: What are the effects of an order of default?
2. Litis pendentia;
3. Res judicata; and A:
4. Statute of limitations (Sec. 1, Rule 9) 1. The party declared in default loses his
standing in court. The loss of such
b. FAILURE TO PLEAD A COMPULSORY standing prevents him from taking part in
COUNTERCLAIM AND CROSS-CLAIM the trial [Sec. 3(a), Rule 9];
2. While the defendant can no longer take
Q: May a compulsory counterclaim or cross-claim part in the trial, he is nevertheless
not set up in the answer still be raised entitled to notices of subsequent
subsequently? proceedings [Sec. 3 (a), Rule 9]. It is
submitted that he may participate in the
A: trial, not as a party but as a witness; and
GR: A compulsory counterclaim or cross-claim 3. A declaration of default is not an
not set up in the answer is deemed barred (Sec. admission of the truth or the validity of
2, Rule 9). the plaintiff’s claims (Monarch Insurance
v. CA, G.R. No. 92735, June 8, 2000).
XPN: If the compulsory counterclaim or cross-
claim is an after-acquired counterclaim, that is, c. RELIEF FROM AN ORDER OF DEFAULT
such claim matured after filing of the answer, it
may be pleaded by filing an amended answer or Q: What are the reliefs from an order of default?
a supplemental answer or pleading (Sec. 9, Rule
11). A:
1. After notice of order and before judgment
Note: Counterclaims or cross-claims omitted through – The defendant must file a verified
oversight, inadvertence, or excusable neglect or when motion to set aside the order of default
justice requires may be set up by amendment before upon proper showing that:
judgment. Leave of court is necessary (Sec. 10, Rule
11).
35
a. His failure to answer was due to f. ACTIONS WHERE DEFAULT ARE NOT ALLOWED
fraud, accident, mistake or excusable
negligence; and Q: When is default not allowed?
b. That he has a meritorious defense.
[Sec. 3(b), Rule 9] (2000 & 1999 Bar A:
Question) 1. Actions for annulment;
2. Declaration of nullity of marriage and
2. After judgment and before judgment legal separation [Sec. 3(e), Rule 9]; and
becomes final and executory – He may file 3. In special civil actions of certiorari,
a motion for new trial under Rule 37. He prohibition and mandamus where
may also appeal from the judgment as comment instead of an answer is
being contrary to the evidence or the law required to be filed.
(Talsan Enterprises, Inc. v. Baliwag
Transit, Inc., G.R. No. 169919, Sept. 11, 7. FILING AND SERVICE OF PLEADINGS
2009)
Q: What papers are required to be filed and
3. After the judgment becomes final and served?
executory – he may file a petition for
relief from judgment under Rule 38 A: Every judgment, resolution, order, pleading
(Balangcad v. Justices of the CA, G.R. No. subsequent to the complaint, written motion,
83888, Feb. 12, 1992) (2006, 1998 Bar notice, appearance, demand, offer of judgment or
Question) similar papers shall be filed with the court, and
served upon the parties affected. (Sec.4, Rule 13)
4. Where the defendant has however, been
wrongly or improvidently declared in a. PAYMENT OF DOCKET FEES
default, the court can be considered to
have acted with grave abuse of discretion Q: What is the significance of paying the docket
amounting to lack or excess of jurisdiction fees?
and when the lack of jurisdiction is patent
in the face of the judgment or from the A: A complaint is not considered filed unless the
judicial records, he may avail of the proper amount of the docket fee is paid. Thus, if the
special civil action of certiorari under Rule proper docket fee is not paid, the period of
65 (Balangcad v. Justices of the CA, G.R. prescription continues to run.
No. 83888, Feb. 12, 1992)
b. FILING VERSUS SERVICE OF PLEADINGS
d. EFFECT OF A PARTIAL DEFAULT
Q: What is filing?
Q: What is the effect of partial default?
A: It is the act of presenting the pleading or other
A: paper to the clerk of court. (Sec. 2, Rule 13)
GR: The court will try the case against all
defendants upon the answer of some. Q: What is service?
XPN: Where the defense is personal to the one A: It is the act of providing a party with a copy of
who answered, in which case, it will not the pleading or paper concerned. If any party has
benefit those who did not answer e.g. forgery. appeared by counsel, service upon him shall be
(1995 Bar Question) made upon his counsel or one of them, unless
service upon the party himself is ordered by the
e. EXTENT OF RELIEF court. (Sec. 2, Rule 13)
Q: What is the extent of relief? c. PERIODS OF FILING OF PLEADINGS
A: The judgment shall not exceed the amount or be Q. When should a responsive pleading be filed?
different in kind from that prayed for nor award
unliquidated damages [Sec. 3(d), Rule 9]. However, A:
if the court orders submission of evidence, Periods for Filing an
unliquidated damages may be awarded based on Answer
such. Answer to an original Within 15 days after
complaint service of summons,

CIVIL PROCEDURE
unless a different period is d. MANNER OF FILING

fixed by the court (Sec. 1,
Rule 11). Q: What are the modes of filing?
Defendant is a foreign Within 15 days after
private juridical entity service of summons (Sec.6, A:
and has a resident in relation to Sec.5[a], Rule 1. By presenting the original copies thereof,
agent 2, A.M. NO. 00-8-10-SC plainly indicated as such, personally to
2000-11-21) the clerk of court; or
Defendant is a foreign Within 15 days after 2. By sending them through registered mail
private juridical entity service of summons to
(Sec. 3, Rule 13)
and has no resident said agent or officer (Sec.6,
agent but has an agent in relation to Sec.5[b], Rule
Note: Filing by mail should be through the registry
/ officer in the 2, A.M. NO. 00-8-10-SC
service which is made by deposit of the pleading in the
Philippines 2000-11-21)
post office, and not through other means of
Defendant is a foreign Within 30 days after
transmission.
private juridical entity receipt of summons by the
and has no resident home office of the foreign
e. MODES OF SERVICE
agent nor agent/ private entity
officer.
(Summons to be served Q: What are the modes of service?
to SEC which will then
send a copy by
registered mail within A:
10 days to the home 1. Personal service (Sec. 6, Rule 13);
office of the foreign 2. Service by registered mail (Sec. 7, Rule
private corporation) 13); or
Service of summons by Within the time specified 3. Substituted service (Sec. 8, Rule 13).
publication in the order which shall
not be less than 60 days (1) PERSONAL SERVICE
after notice (Sec. 15, Rule
14) Q: How is personal service done?
Non-resident defendant Not be less than 60 days
to whom after notice (Sec. 15, Rule A: By:
extraterritorial service 14) 1. Delivering personally a copy to the party
of summons is made
or his counsel;
Answer to amended Within 15 days from
2. Leaving a copy in counsel’s office with his
complaint (Matter of service of amended
clerk or with a person having charge
right)* complaint (Sec. 3. Rule 11)
thereof; or
Answer to amended Within 10 days counted
complaint (Not a from notice of the court 3. Leaving the copy between 8 a.m. and 6
matter of right)* order admitting the same p.m. at the party’s or counsel’s residence,
(Sec. 3, Rule 11) if known, with a person of sufficient age
Counterclaim or cross- Within 10 days from and discretion residing therein if no
claim service (Sec. 4, Rule 11) person found in his office, or if his office is
Third (fourth, etc.) Like an original defendant unknown, or if he has no office (Sec. 6,
party complaint – 15, 30, 60 days as the Rule 13).
case may be (Sec. 5;
Regalado, Vol. I, p. 212, (2) SERVICE BY MAIL
2005 ed.)
Supplemental Within 10 days from Q: How is service by mail done?
complaint notice of order admitting
the same unless a different A:
period is fixed by the court 1. By depositing the copy in the post office
(Sec. 7, Rule 11) in a sealed envelope, plainly addressed to
the party or his counsel at his office, if
Note: Upon motion and on such terms as may be just, known, otherwise at his residence, if
the court may extend the time to plead provided in known, with postage fully prepaid, and
these Rules. The court may also, upon like terms, allow
with instructions to the postmaster to
an answer or other pleading to be filed after the time
return the mail to the sender after 10
fixed by these Rules. (Sec.11, Rule 11)
days if undelivered; or
37
2. If no registry service is available in the 2. Service by ordinary mail – upon expiration

locality of either the sender or the of 10 days after mailing, unless the court
addressee, service may be done by otherwise provides.
ordinary mail (Sec. 7, Rule 13). 3. Service by registered mail – upon actual
receipt by the addressee, or 5 days from
(3) SUBSTITUTED SERVICE the date he received the first notice of the
postmaster, whichever date is earlier
Q: How and when is substituted service made? (Sec. 10, Rule 13).
4. Substituted service – at the time of such
A: If service of pleadings, motions, notices, delivery (Sec. 8, Rule 13).
resolutions, orders and other papers cannot be
made under the two preceding sections, the office (7) PROOF OF FILING AND SERVICE
and place of residence of the party or his counsel
being unknown, service may be made by delivering Q: What are the proofs of filing?
the copy to the clerk of court, with proof of failure
of both personal service and service by mail (Sec. 8, A:
Rule 13). GR: Filing is proven by its existence in the
record of the case.
(4) SERVICE OF JUDGMENTS, FINAL ORDERS OR
RESOLUTIONS XPN: If it is not in the record, and:
1. If filed personally – proved by the written
Q: How is service of judgment of final orders or or stamped acknowledgement of its filing
resolutions done? by the clerk of court on a copy of the
same; or
A: By: 2. If filed by registered mail – proved by the
1. Personal service; registry receipt and the affidavit of the
2. Registered mail; or person who did the mailing with a full
3. Publication, if party is summoned by statement of:
publication and has failed to appear in the a. The date and place of depositing the
action (Sec. 9, Rule 13) mail in the post office in a sealed
envelope addressed to the court;
Note: No substituted service. b. With postage fully paid; and
c. With instructions to the postmaster
(5) PRIORITIES IN MODES OF SERVICE AND FILING to return the mail to the sender after
10 days if undelivered. (Sec. 12, Rule
Q: What are the priorities in modes of service and 13)
filing?
Q: What are the proofs of service?
A:
GR: Whenever practicable, the service and filing A:
shall be done personally. 1. Proof of personal service:
a. Written Admission of the party
XPN: With respect to papers emanating from served; or
the court, a resort to other modes must be b. Official return of the server or
accompanied by a written explanation why the c. Affidavit of the party serving,
service or filing was not done personally (Sec. containing the date, place and
11, Rule 13) manner of service.
2. Proof of service by ordinary mail:
Note: A violation of this rule may be cause to consider a. Affidavit of mailer showing
the paper as not filed (Sec. 11, Rule 13). compliance of Sec. 7, Rule 13; and
b. Registry receipt issued by the mailing
(6) WHEN SERVICE IS DEEMED COMPLETE officer (Sec. 13, Rule 13)
3. Registered mail:
Q: When is service deemed complete? a. Affidavit; and
b. Registry receipt issued by the mailing
A: office.
1. Personal service – upon actual delivery.
Note: The registry return card shall be filed
immediately upon its receipt by the sender, or in lieu

CIVIL PROCEDURE
thereof the unclaimed letter together with the Note: Plaintiff may amend his complaint even if the
certified or sworn copy of the notice given by the same was dismissed on motion of the defendant
postmaster to the addressee. (Sec. 13, Rule 13) provided that the dismissal order is not yet final.
(Arranz vs. Manila Surety and Fidelity Co., Inc., L-
Q: What is a notice of lis pendens? 128441, June 30, 1960)
A: In an action affecting the title or the right of c. FORMAL AMENDMENT

possession of real property, the plaintiff and the
defendant, when affirmative relief is claimed in his Q: What is the rule on formal amendments?
answer, may record in the office of the registry of
deeds of the province in which the property is A: A defect in the designation of the parties and
situated a notice of the pendency of the action. other clearly clerical or typographical errors may be
summarily corrected by the court at any stage of
Note: Only from the time of filing such notice for the action, at its initiative or on motion, provided
record shall a purchaser, or encumbrancer of the no prejudice is caused thereby to the adverse party
property affected thereby, be deemed to have (Sec. 4, Rule 10).
constructive notice of the pendency of the action, and
only of its pendency against the parties designated by d. AMENDMENTS TO CONFORM TO OR
their real names. (Sec.14, Rule 13) AUTHORIZE PRESENTATION OF EVIDENCE
8. AMENDMENT Q: When may amendment be made to conform to

or authorize presentation of evidence?
Q: How are pleadings amended?
A:
A: By: 1. When issues not raised by the pleadings
1. Adding or striking out an allegation or the are tried with the express or implied
name of any party; or consent of the parties.
2. Correcting a mistake in the name of a Note: Failure to amend does not affect the
party or a mistaken or inadequate result of the trial of said issue.
allegation or description in any other
respect (Sec. 1, Rule 10) 2. Amendment may also be made to
authorize presentation of evidence if
a. AMENDMENT AS A MATTER OF RIGHT evidence is objected to at the trial on the
ground that it is not within the issues
Q: When is amendment considered as a matter of made by the pleadings, if the
right? presentation of the merits of the action
and the ends of substantial justice will be
A: It is considered as a matter of right at any time subserved thereby (Sec. 5, Rule 10).
before a responsive pleading is served or, in the
case of a reply, at any time within ten (10) days e. DIFFERENT FROM SUPPLEMENTAL PLEADINGS
after it is served (Sec. 2, Rule 10).
Q: Distinguish an amended pleading from a
Note: A motion to dismiss is not a responsive pleading supplemental pleading.
and its filing does not preclude the exercise of the
plaintiff’s right to amend his complaint. (Riano, p. 246, A:
2009 ed.
Amended Pleading Supplemental Pleading
Refer to the facts existing Refers to facts occurring
b. AMENDMENTS BY LEAVE OF COURT
at the time of filing of after the filing of the
original pleading original pleading.
Q: When is leave of court required?
Supersedes the original Merely supplements the
original pleading.
A: May be amended without Always with leave of
1. If the amendment is substantial (Sec. 3, leave of court before a court
Rule 10); and responsive pleading is
2. A responsive pleading had already been filed.
served (Siasoco v. CA, G.R. No. Amendment must be There is no such
132753. Feb. 15, 1999) (1994 Bar appropriately marked. requirement in
Question) supplemental pleadings
(Herrera, Vol. I, p. 854,
39
2007 ed.) Note: Voluntary appearance cures the defect in

the service of summons.
f. EFFECT OF AMENDED PLEADING XPN: Special appearance in court to challenge

its jurisdiction over the person of the defendant
Q: What is the effect of an amended pleading? and the inclusion in a motion to dismiss of other
grounds shall not be deemed a voluntary
A: An amended pleading supersedes the pleading it appearance (Sec. 20, Rule 15; La Naval Drug
amends. However, admissions in the superseded Corp. v. CA, G.R. No. 103200, Aug. 31, 1994).
pleading can still be received in evidence against
the pleader. Claims or defenses alleged therein but 3. PERSONAL SERVICE
not incorporated or reiterated in the amended
pleading are deemed waived (Sec. 8, Rule 10). Q: When is personal service of summons proper?
F. SUMMONS A: Only if the suit is one strictly in personam. The

service of summons must be made by service in
1. NATURE AND PURPOSE OF SUMMONS IN person on the defendant. This is effected by
RELATION TO ACTIONS IN PERSONAM, IN REM handing a copy of the summons to the defendant in
AND QUASI IN REM person, or if he refuses to receive it, by tendering
the copy of the summons to him (Sec. 6, Rule 14).
Q: What is the nature of summons? (Riano, p. 423 , 2005 ed.)
A: It is the writ by which the defendant is notified of 4. SUBSTITUTED SERVICE

the action brought against him (Gomez vs. Court of Q: When is substituted service of summons
Appeals, G.R. No. 127692, March 10, 2004). An proper?
important part of that notice is a direction to the
defendant that he must answer the complaint A: In our jurisdiction, for substituted service of
within a specified period, and that unless he so summons to be valid, it is necessary to establish the
answers, plaintiff will take judgment by default and following:
may be granted the relief applied for (Sec. 2, Rule 1. The impossibility of service of summons in
14). (Riano, p. 411 , 2005 ed.) person within a reasonable time;
2. The efforts exerted to locate the person to
Q: What are the purposes of summons? be served; and
3. Service upon a person of sufficient age and
A: discretion in the same place as the
1. Actions in personam defendant or some competent person in
a. To acquire jurisdiction over the charge of his office or regular place of
person of the defendant; and business (Sabio, Jr., 339 SCRA 243 [2000];
b. To give notice to the defendant that Hamilton vs. Levy, G.R. No. 139283,
an action has been commenced November 15, 2000). (Riano, p. 427 , 2005
against him (Umandap v. Sabio, Jr., ed.)
G.R. No. 140244, Aug. 29, 2000)
2. Actions in rem and quasi in rem – not to 5. CONSTRUCTIVE SERVICE (BY PUBLICATION)
acquire jurisdiction over the defendant
but mainly to satisfy the constitutional Q: Is leave of court required in constructive service
requirement of due process (Gomez v. CA, of summons?
G.R. No. 127692, Mar. 10, 2004).
A: This service always requires permission of the
2. VOLUNTARY APPEARANCE court.
Q: What is the effect of voluntary appearance

before the court? Explain.
A:
GR: The defendant’s voluntary appearance shall
be equivalent to service of summons and the
consequent submission of one’s person to the
jurisdiction of the court (Sec. 20, Rule 14).

CIVIL PROCEDURE
a. SERVICE UPON A DEFENDANT WHERE HIS by any other manner the court may deem
IDENTITY IS UNKNOWN OR WHERE HIS sufficient. (Riano, p. 439-440, 2005 ed.)
WHEREABOUTS ARE UNKNOWN
b. SERVICE UPON RESIDENTS TEMPORARILY 7. SERVICE UPON PRISONERS AND MINORS
OUTSIDE THE PHILIPPINES
Q: How is service of summons upon prisoner
Q: When is constructive service of summons made?
proper?
A: Service shall be effected upon him by the officer
A: having the management of such jail or institution
1. Service upon a defendant where his who is deemed deputized as a special sheriff for
identity is unknown or where his said purpose. (Sec. 9, Rule 14)
whereabouts are unknown. When the
defendant is designated as an unknown Q: How is service of summons upon minors made?
and cannot be ascertained by diligent
inquiry, Sec. 14, Rule 14 allows service of A: Service shall be made upon him personally and
summons by publication in a newspaper on his legal guardian if he has one, or if none, upon
of general circulation and in such places his guardian ad litem whose appointment shall be
and for such time as the court may applied for by the plaintiff. In the case of a minor,
order. (Riano, p. 432 , 2005 ed.) service may also be made on his father or mother.
(Sec. 10, Rule 14)
2. Service upon residents temporarily
outside the Philippines. When any action 8. PROOF OF SERVICE
is commenced against a defendant who
ordinarily resides within the Philippines, Q: How is proof of service done?
but who is temporarily out of it, service
may, by leave of court, be also effected A: It shall be made in writing by the server and shall
out of the Philippines (Sec. 16, Rule 14). set forth the manner, place, and date of service;
shall specify any papers which have been served
6. EXTRA-TERRITORIAL SERVICE, WHEN ALLOWED with the same; and shall be sworn to when made by
a person other than a sheriff or his deputy (Sec 18,
Q: When is extra-territorial service of summons Rule 14).
allowed?
Q: How is proof of service by publication done?
A: The defendant must be a non-resident defendant
who is at the same time not found in the Philippines A: It is done through the following:
at the time summons is to be served. In addition, 1. Affidavit of the printer, his foreman or
the action commenced against him must be any of principal clerk, business or advertising
the following: manager, to which affidavit a copy of the
publication shall be attached; and
1. An action that affects the personal status 2. Affidavit showing the deposit of a copy of
of the plaintiff; the summons and order for publication in
2. An action that relates to, or the subject of the post office (Sec. 19, Rule 14).
which is the property within the
Philippines in which the defendant has or G. MOTIONS
claims a lien or interest, actual or
contingent; 1. MOTIONS IN GENERAL
3. An action in which the relief demanded
consists, wholly or in part, in excluding a. DEFINITION OF A MOTION
the defendant from any interest therein;
4. An action where the property of the Q: What is a motion?
defendant has been attached in the
Philippines. A: It is an application for relief other than by a
pleading. (Sec. 1, Rule 15)
Note: In any of the above instances,
extraterritorial service is permissible with
leave of court and may be effected by
personal service, summons by publication or
41
b. MOTIONS VERSUS PLEADINGS

Q: What is the rule on hearing of motions?
Q: Distinguish a motion from a pleading.
A:
A: A pleading is a written statement of the GR: Every written motion shall be set for
respective claims and defenses of the parties hearing by the applicant.
submitted to the court for appropriate XPN: Motions which the court may act upon
judgment (Sec. 1, Rule 6). It may be in the form of a without prejudicing the rights of the adverse
complaint, counterclaim, cross-claim, third-party party (Sec. 4, Rule 15).
complaint, or complaint-in-intervention, answer or
reply (Sec. 2, Rule 6). e. OMNIBUS MOTION RULE
A motion on the other hand is an application for Q: What is the Omnibus Motion Rule?
relief other than a pleading(Sec. 1, Rule 15).
A:
c. CONTENTS AND FORMS OF MOTIONS GR: All available grounds for objection in
attacking a pleading, order, judgment, or
Q: Should a motion be in writing? proceeding should be invoked at one time;
otherwise, they shall be deemed waived (Sec. 8,
A: Rule 15).
GR: Yes.
XPN: The court may dismiss the case motu
XPN: Those made in open court or in the course proprio based on:
of hearing or trial (Sec. 2, Rule 15). 1. Lack of jurisdiction over the subject
matter;
Q: What are the contents of a motion? 2. Litis pendentia;
3. Res judicata; and
A: The contents of a motion are: 4. Barred by statute of limitations (Sec. 1,
1. the relief sought to be obtained; Rule 9)
2. the ground upon which it is based; and
3. if required by the Rules or necessary to f. LITIGATED AND EX-PARTE MOTIONS
prove facts alleged therein, shall be
accompanied by supporting affidavits and Q: What is a litigated motion?
other papers. (Sec. 3, Rule 15)
A: It is a motion which affects the substantial rights
Q: May a motion pray for judgment? of the parties. A hearing is required.
A:
GR: No. Q: What is an ex-parte motion?
XPN: Motion for: A: It is taken or granted at the instance and for the
1. judgment on the pleadings; benefit of one party, and without notice to or
2. summary judgment; or contestation by any party adversely affected
3. Judgment on demurrer to evidence. (Regalado, Remedial Law Compendium, p. 264,
2009 ed.)
d. NOTICE OF HEARING AND HEARING OF
MOTIONS g. PRO-FORMA MOTIONS
Q: What shall the notice of hearing specify? Q: What is a pro-forma motion?
A: It shall specify the time and date of the hearing A: It is that which does not comply with the rules on
which shall not be later than ten (10) days after the motion and is considered as one filed merely to
filing of the motion and it shall be addressed to the delay the proceedings (Marikina Development
parties concerned (Sec. 5, Rule 15). Corp., v. Flojo, G.R. No. 110801, Dec. 8, 1995).
Note: Failure to comply with the mandatory

requirements of the rule regarding notice of hearing is
pro forma and presents no question which merits the
attention of the court (Bacelonia v. CA, G.R. No.
143440, Feb. 11, 2003).

CIVIL PROCEDURE
2. MOTIONS FOR BILL OF PARTICULARS 2. If plaintiff, his compliant will be stricken

off and dismissed (Sec. 3, Rule 17)
a. PURPOSE AND WHEN APPLIED FOR 3. If defendant, his answer will be stricken
off and his counterclaim dismissed, and
Q: What is a bill of particulars and when can it be he will be declared in default upon
availed of? motion of the plaintiff (Sec. 4, Rule 17;
Sec. 3, Rule 9).
A: Before responding to a pleading, a party may
move for a definite statement or for a bill of Note: If the plaintiff failed to comply with the period,
particulars of any matter which is not averred with the court upon motion of the defendant may strike out
sufficient definiteness or particularity to enable him the paragraph where ambiguity lies. If the entire
properly to prepare his responsive pleading. If the complaint is ambiguous, such is striken out and there
pleading is a reply, the motion must be filed within is no more case.
10 days from service thereof (Sec. 1, Rule12). (2003
Bar Question) d. EFFECT ON THE PERIOD TO FILE A RESPONSIVE
PLEADING
Note: Its purpose is to aid in the preparation of a
responsive pleading. An action cannot be dismissed on Q: What is the effect of a motion for bill of
the ground that the complaint is vague or definite. particulars on the period to file a responsive
(Galeon v. Galeon, G.R. No. L-30380, Feb. 28, 1973). pleading?
b. ACTIONS OF THE COURT A: After service of the bill of particulars or of a more

definite pleading, or after notice of denial of his
Q: What are the actions taken by the court motion, the moving party may file his responsive
regarding the motion for bill of particulars? pleading within the period to which he was entitled
at the time of filing his motion, which shall not be
A: The court may either: less than five (5) days in any event (Sec. 5, Rule12).
1. Deny it;
2. Grant it outright; or Q: Within the period for filing a responsive
3. Allow the parties the opportunity to be heard pleading, the defendant filed a motion for bill of
(Sec. 2, Rule 12). particulars that he set for hearing on a certain
date. However, the defendant was surprised to
c. COMPLIANCE WITH THE ORDER AND EFFECT OF find on the date set for hearing that the trial court
NON-COMPLIANCE had already denied the motion on the day of its
filing, stating that the allegations of the complaint
Q: When must be the compliance be effected? were sufficiently made.
1. Did the judge gravely abuse his
A: If the motion is granted, either in whole or in discretion in acting on the motion
part, it must be effected within ten (10) days from without waiting for the hearing set for
notice of the order, unless a different period is fixed the motion?
by the court (Sec. 3, Rule 12). 2. If the judge grants the motion and orders
the plaintiff to file and serve the bill of
Note: Bill of particulars may be filed either on a particulars, can the trial judge dismiss
separate or in an amended pleading, serving a copy the case if the plaintiff does not comply
thereof on the adverse party. with the order?
Q: What is the effect of non-compliance with the A:

order of a bill of particulars? 1. No. Sec. 2, Rule 12 authorizes the court to
either deny or grant said motion outright
A: or allow the parties an opportunity to be
1. If the order is not obeyed or in case of heard. The court is not mandated to
insufficient compliance therewith, the conduct a hearing.
court: 2. Yes. Sec. 4, Rule 12 authorizes the court
a. May order the striking out of the to order the striking out of the pleading
pleading or the portion thereof to affected, hence the dismissal of the
which the order is directed; or complaint. To the same end is the
b. Make such order as it may deem just provision of Sec. 3, Rule 17 when the
(Sec. 4, Rule 12) plaintiff fails to comply for no justifiable
43
cause with any order of the court or with 8. That the claim or demand set forth in the
the Rules. (2008 Bar Question) plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;
3. MOTION TO DISMISS
9. That the claim on which the action is
a. GROUNDS founded is unenforceable under the
provisions of the statute of frauds;
Q: What are the grounds for a motion to dismiss
under Rule 16? 10. That a condition precedent for filing the
claim has not been complied with.(Sec. 1,
A: Rule 16)
1. That the court has no jurisdiction over the Note: Not jurisdictional in nature, hence,
person of the defending party; deemed waived if not raised.
b. RESOLUTION OF MOTION
2. That the court has no jurisdiction over the
subject matter of the claim;
Q: What are the three courses of action which the
trial court may take in resolving a motion to
3. That venue is improperly laid;
dismiss?
4. That the plaintiff has no legal capacity to
A:
sue;
1. Dismiss the action or claims;
Note: The issue of the plaintiff’s lack of legal
2. Deny the motion; or
capacity to sue cannot be raised for the first
time on appeal where the defendant dealt
3. Order the amendment of the pleading
with the former as a party in the (Sec. 3, Rule 16).
proceeding.
Note: The court shall not defer the resolution of the
5. That there is another action pending motion for the reason that the ground relied upon is
between the same parties for the same not indubitable. In every case, the resolution shall
state clearly and distinctly the reasons therefor (Sec. 3,
cause;
Rule16).
Note: Litis pendentia requires concurrence
of the following requisites:
c. REMEDIES OF PLAINTIFF WHEN THE COMPLAINT
a. Identity of the parties IS DISMISSED
b. Identity of rights asserted and reliefs
prayed for, being founded on the same Q: What are the remedies of the plaintiff when the
facts complaint is dismissed?
c. Identity with respect to the two
preceding particulars, such that any A: If the dismissal is without prejudice, the plaintiff
judgment that may be rendered in the may re-file the complaint. If the dismissal is with
pending case would amount to red prejudice, the plaintiff may file an appeal. (Riano,
adjudicate in the other case. (Lim vs. Civil Procedure: A Restatement for the Bar, p. 319-320,
Vianzon, G.R. No. 137187, Aug.3, 2006) 2009 ed.)
6. That the cause of action is barred by a d. REMEDIES OF THE DEFENDANT WHEN THE
prior judgment or by the statute of MOTION IS DENIED
limitations;
Note: The requisites of res judicata include: Q: What are the remedies of the defendant when
The former judgment must be final the motion is denied?
a. The court which rendered it has
jurisdiction over the subject matter A: File an answer and proceed with the trial. If
and the parties decision is adverse, appeal therefrom and raise as
b. Judgment must be on the merits error the denial of the motion to dismiss. If there is
c. There must be identity of parties,
grave abuse of discretion amounting to lack or
subject matter and causes of action
excess of jurisdiction, certiorari or prohibition may
lie under Rule 65. If there is unlawful neglect of the
7. That the pleading asserting the claim
performance of an act which the law specifically
states no cause of action;
enjoins, mandamus is the proper remedy. (Riano,
Note: Curable by amendment
Civil Procedure: A Restatement for the Bar, p. 319,
2009 ed.)

CIVIL PROCEDURE
e. EFFECT OF DISMISSAL OF COMPLAINT ON g. BAR BY DISMISSAL

CERTAIN GROUNDS
Q: What are the grounds for dismissal that may
Q: What is the effect of dismissal on the following bar the refiling of the same action or claim?
grounds:
1. Cause of action is barred by prior judgment or A:
by the statute of limitations; 1. Res judicata;
2. Claim or demand has been paid, waived, 2. Prescription;
abandoned, or otherwise extinguished; and 3. Extinguishment of the claim or demand;
3. Claim is unenforceable under the statute of and
frauds? 4. Unenforceability under the State of
Frauds. (Sec. 5, Rule 16)
A: Dismissal is with prejudice and constitutes res
judicata. The language of the rule, particularly on h. DISTINGUISH FROM DEMURRER TO EVIDENCE
the relation of the words “abandoned” and UNDER RULE 33
“otherwise extinguished” to the phrase claim or
demand deemed set forth in the plaintiff’s Q: Distinguish motion to dismiss under Rule 16
pleading” is broad enough to include within its from motion to dismiss under Rule 33.
ambit the defense of bar by laches. However, the
trial court must set a hearing on the motion where A:
the parties shall submit not only their arguments on Rule 16 (Motion to Rule 33 (Demurrer to
the questions of law but also their evidence on the Dismiss) Evidence)
questions of fact involved (Pineda v. Heirs of Eliseo Grounded on Based on insufficiency of
Guevarra, G.R. No. 168557, Feb. 19, 2007). preliminary objections evidence
May be filed by any May be filed only by the
f. WHEN THE GROUNDS PLEADED AS AFFIRMATIVE defending party defendant against the
DEFENSES against whom a claim complaint of the plaintiff
is asserted in the
Q: When can the grounds for motion to dismiss be action
pleaded as affirmative defense? Should be filed within May be filed only after the
the time for but prior plaintiff has completed the
to the filing of the presentation of his evidence
A: If no motion to dismiss has been filed, any of the
answer (Regalado, Remedial Law,
grounds for dismissal provided for in the Rules may
Compendium Vol. I, p. 267,
be pleaded as an affirmative defense in the answer 2005 ed.)
and, in the discretion of the court, a preliminary If denied, defendant If denied, defendant may
hearing may be had thereon as if a motion to answers, or else he present evidence.
dismiss had been filed. may be declared in If granted, but on appeal
default. the order of dismissal is
The dismissal of the complaint shall be without reversed, the defendant
prejudice to the prosecution in the same or If granted, plaintiff loses his right to present
separate action of a counterclaim pleaded in the may appeal or if evidence (Riano, Civil
answer. (Sec. 6, Rule 16) subsequent case is not Procedure: A Restatement
barred, he may re-file for the Bar, p. 399, 2009 ed.)
the case
45
H. DISMISSAL OF ACTIONS
1. DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-DISMISSAL RULE

2. DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON EXISTING COUNTERCLAIM
3. DISMISSAL DUE TO THE FAULT OF PLAINTIFF
Q: Distinguish the different types of dismissal under Rule 17.
A:
Dismissal upon notice by plaintiff (Sec. 1, Dismissal upon motion of plaintiff Dismissal due to fault of
Rule 17) (Sec. 2, Rule 17) plaintiff (Sec. 3, Rule 17)
A complaint may be dismissed by the After service of the answer or a motion 1. If, for no justifiable cause,
plaintiff by filing a notice of dismissal at for summary judgment by the adverse the plaintiff fails to appear
any time before service of the answer or party. on the date of the presen-
of a motion for summary judgment. tation of his evidence in
Upon such notice being filed, the court chief on the complaint.
shall issue an order confirming the 2. If the plaintiff fails to
dismissal. Unless otherwise stated in the prosecute his action for an
notice, the dismissal is without prejudice, unreason-nable length of
except that a notice operates as time (nolle prosequi).
adjudication upon the merits when filed 3. If the plaintiff fails to
by a plaintiff who has once dismissed in a comply with the Rules or
competent court an action based on or any order of the court.
including the same claim.
It is a matter of right. Matter of discretion upon the court. A Matter of evidence.
complaint shall not be dismissed at the
GR: A dismissal without prejudice i.e. the plaintiff's instance save upon approval GR: Dismissal is with prejudice
complaint can be re-filed of the court and upon such terms and because it has an effect of an
conditions as the court deems proper adjudication on the merits.
XPNs: (Sec. 2, Rule 17).
1. The notice of dismissal by the XPN: Unless otherwise declared
plaintiff provides that the dismissal is GR: It is a dismissal without prejudice, by the court (Sec. 3, Rule 17)
with prejudice; or
2. The plaintiff has once dismissed in a XPN: If the order of dismissal specifies
competent court an action based on that it is with prejudice (Sec. 2, Rule 17)
or including the same claim (Two-
dismissal rule) (Sec. 1, Rule 17) Note: A class suit shall not be dismissed
3. Even where the notice of dismissal or compromised without the approval of
does not provide that it is with the court.
prejudice but it is premised on the If a counterclaim has been pleaded by a
fact of payment by the defendant of defendant prior to the service upon him
the claim involved (Serrano v. of the plaintiff's motion for dismissal, the
dismissal shall be limited to the
Cabrera, G.R. No. L-5189, Sept. 21,
complaint.
1953)
Since there is no answer yet filed by the GR: It is also without prejudice to the Dismissal upon motion of the
adverse party, no counterclaim right of defendant to prosecute his defendant or upon the court's
recoverable counterclaim in a separate action. own motion is without
prejudice to the right of the
XPN: Unless within 15 days from notice defendant to prosecute his
of the motion he manifests his counterclaim on the same or
preference to have his counterclaim separate action
resolved in the same action (Sec. 2,
Rule 17).
Note: The plaintiff’s failure to appear at the trial after he has presented his evidence and rested his case does not
warrant the dismissal of the case on the ground of failure to prosecute. It is merely a waiver of his right to cross-examine
and to object to the admissibility of evidence (Jalover v. Ytoriaga, G.R. No. L-35989, Oct. 28, 1977). The provision of this
rule shall also apply to the dismissal of any counterclaim, cross-claim, or third-party complaint (Sec. 4, Rule17).

CIVIL PROCEDURE
Q: When does the two-dismissal rule apply? I. PRE-TRIAL
A: It applies when the plaintiff has: 1. CONCEPT OF PRE-TRIAL

1. Twice dismissed the actions;
2. Based on or including the same claim; and Q: What is pre-trial?
3. In a court of competent jurisdiction
(Riano, Civil Procedure: A Restatement for A: It is a procedural device by which the court is
the Bar, p. 265, 2009 ed.) called upon, after the filing of the last pleading, to
compel the parties and their lawyers to appear
Note: The second notice of dismissal will bar the re- before it, and negotiate an amicable settlement or
filing of the action because it will operate as an otherwise make a formal statement and embody in
adjudication of the claim upon the merits. In other a single document the issues of fact and law
words, the claim may only be filed twice, the first involved in the action, and such other matters as
being the claim embodied in the original complaint. may aid in the prompt disposition of the action
(Riano, Civil Procedure: A Restatement for the Bar, p. (Herrera, Vol. I, p. 1074, 2007 ed.).
265, 2009 ed.)
Q: When is pre-trial conducted?
4. DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM
OR THIRD-PARTY COMPLAINT A: After the last pleading has been served and filed,
it shall be the duty of the plaintiff to promptly move
Q: What is the effect of dismissal upon a ex parte that the case be set for pre-trial. (Sec.1,
counterclaim, which was already pleaded? Rule 18)
A: 2. NATURE AND PURPOSE
1. If a counterclaim has already been
pleaded by the defendant prior to the Q: What is the nature of pre-trial?
service upon him of the plaintiff’s motion
to dismiss, and the court grants the said A: It is mandatory (Sec. 2, Rule 18).
motion to dismiss, the dismissal shall be
limited to the complaint. Q: What are the purposes of pre-trial?
2. The defendant if he so desires may
prosecute his counterclaim either in a A: The court shall consider the following purposes:
separate action or in the same action. 1. Possibility of an amicable settlement or of
Should he choose to have his a submission to alternative modes of
counterclaim resolved in the same action, dispute resolution;
he must notify the court of his preference 2. Simplification of the issues;
within fifteen (15) days from notice of the 3. Necessity or desirability of amendments
plaintiff’s motion to dismiss. to the pleadings;
3. The dismissal of the complaint does not 4. Possibility of obtaining stipulations or
carry with it the dismissal of the admissions of facts and of documents to
counterclaim. (Riano, Civil Procedure: A avoid unnecessary proof;
Restatement for the Bar, pp. 266-267, 5. Limitation of the number of witnesses;
2009 ed.) 6. Advisability of a preliminary reference of
issues to a commissioner;
Q: What rule governs the dismissal of 7. Propriety of rendering judgment on the
counterclaim, cross-claim, or third-party pleadings, or summary judgment, or of
complaint? dismissing the action should a valid
ground therefore be found to exist;
A: The rule on the dismissal of a complaint applies 8. Advisability or necessity of suspending
to the dismissal of any counterclaim, cross-claim, or the proceedings; and
third-party claim. A voluntary dismissal by the 9. Such other matters as may aid in the
claimant alone by notice pursuant to Sec. 1, Rule 17 prompt disposition of the action. (Sec. 2,
shall be made before a responsive pleading or a Rule 18)
motion for summary judgment is served or, if there
is none, before the introduction of evidence at the
trial or hearing (Sec. 4, Rule 17).
47
3. NOTICE OF PRE-TRIAL 5. A manifestation of their having availed or

their intention to avail themselves of
Q: To whom shall notice of pre-trial be served? discovery procedures or referral to
commissioners; and
A: It shall be served on counsel, or on the party who 6. The number and names of the witnesses,
has no counsel. The counsel served with such notice and the substance of their respective
is charged with the duty of notifying the party testimonies and the approximate number
represented by him (Sec. 3, Rule 18). of hours that will be required by the
parties for the presentation of their
4. APPEARANCE OF PARTIES; EFFECT OF FAILURE respective witnesses (Sec. 6, Rule 18).
TO APPEAR
Q: What is the effect of failure to file a pre-trial
Q: Who has the duty to appear at the pre-trial? brief?
A: The parties and their counsel. A: It shall have the same effect as failure to appear
at the pre-trial (A.M. No. 03-1-09-SC, July 13, 2004).
Q: What is the effect of a party’s failure to appear
during the pre-trial? 6. DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE
AND PRE-TRIAL IN CRIMINAL CASE
A: Plaintiff’s failure to appear during the pre-trial
shall be a cause for dismissal of the action, with Q: Distinguish pre-trial in civil cases from pre-trial
prejudice, unless otherwise ordered by the in criminal cases.
court. Defendant’s non-attendance during the pre-
trial shall be a cause to allow the plaintiff to present A:
evidence ex parte and the court to render judgment Pre-trial in civil case Pre-trial in criminal case
on the basis thereof (Sec. 5, Rule 18). (1992 Bar It is set when the plaintiff It is ordered by the court
Question) moves ex parte to set the and no motion to set the
case for pre-trial (Sec. 1, case for pre-trial is
Note: The non-appearance of a party may be excused Rule 18) required from either the
only if a valid cause is shown therefore or if a prosecution or the
representative shall appear in his behalf fully defense
authorized in writing to enter into an amicable The motion to set the The pre-trial is ordered by
settlement, to submit to alternative modes of dispute case for pre-trial is made the court after
resolution, and to enter into stipulations or admissions after the last pleading arraignment and within
of facts and of documents. (Sec.4, Rule 18) has been served and filed thirty (30) days from the
(Sec. 1, Rule 18) date the court acquires
5. PRE-TRIAL BRIEF, EFFECT OF FAILURE TO FILE jurisdiction over the
person of the accused.
Q: When should the parties file with the court and It considers the It does not include the
serve on the adverse party their pre-trial briefs? possibility of an amicable possibility of amicable
settlement as an settlement of criminal
A: They shall file their respective pre-trial briefs in important objective. liability as one of its
such a manner as shall ensure their receipt thereof purposes (Sec. 1, Rule
118).
at least three (3) days before the date of the pre-
Requires the proceeding All agreements or
trial (Sec. 6, Rule 18).
during the preliminary admissions made or
conference to be entered during the pre-
Q: What should a pre-trial brief contain? recorded in the “minutes trial conference shall be
of preliminary reduced in writing and
A: conference” to be signed signed by both the
1. A statement of their willingness to enter by both parties and/or accused and counsel,
into amicable settlement or alternative counsel. The rule allows otherwise, they cannot be
modes of dispute resolution, indicating either the party or his used against the accused
the desired terms thereof; counsel to sign the (Sec. 2, Rule 18)
2. A summary of admitted facts and minutes (A.M. No. 03-1-
proposed stipulation of facts; 09-SC).
3. The issues to be tried or resolved; Sanctions for non- The sanctions in a
4. The documents or exhibits to be appearance in a pre-trial criminal case are imposed
presented, stating the purpose thereof; are imposed upon the upon the counsel for the
plaintiff and the accused or the prosecutor

CIVIL PROCEDURE
defendant in a civil case (Sec. 3, Rule 18) ii.

Construction Disputes
(Sec. 4, Rule 18). iii.
International Commercial
Arbitration
Specifically required to Not specifically required b. Mediation
be submitted in a civil in a criminal case. c. Conciliation
case (Sec. 6, Rule 18) d. Early Neutral Evaluation
e. Mini-trial
7. ALTERNATIVE DISPUTE RESOLUTION (ADR) 2. Court-Annexed Mediation
3. Appellate Court Mediation
Q: What are the other modes of solving disputes? 4. Judicial Dispute Resolution
5. Katarungang Pambarangay Law
A: 6. Small Claims Cases
1. Alternative Dispute Resolution (ADR) 7. Rules on Summary Procedure
a. Arbitration
i. Domestic Arbitration
Q: Distinguish the other modes of solving disputes.
A:
ADR Court-Annexed Mediation/Judicial Dispute Appellate Court Mediation
Resolution (A.M. No, 11-1-6-SC-PHILJA)
Purpose / Object
1. To actively promote party The purposes of CAM and JDR is “to put an 1. After mediation has failed in
autonomy in the resolution end to pending litigation through the lower courts, Appellate
of disputes or the freedom compromise agreement of the parties and Court Mediation provides an
of the parties to make their thereby help solve the ever-pressing added option to put an end to
own arrangements to problem of court docket congestion”. It is costly and long-drawn
resolve their disputes. also intended “to empower the parties to litigation.
2. To achieve speedy and resolve their own disputes and give 2. It facilitates the interest-based
impartial justice and unclog practical effect to the State Policy expressly settlement of the dispute
court dockets. stated in the ADR Act of 2004 (R.A. No. through proposals coming from
9285)” the parties or suggested by the
mediator and accepted by the
parties.
Where to File
Subject to the terms of the Court acquiring jurisdiction of the case Court of Appeals
contract or the submission since mediation is part of the mandatory
agreement, the arbitrators pre-trial
selected must, within 5 days
from notice of appointment, if Note: Court-annexed mediation should be
the parties to the controversy distinguished from court-referred mediation.
reside within the same city or The former is conducted under the court’s
province, or within 15 days after auspices after such court has acquired
appointment if the parties reside jurisdiction of the dispute while the latter is
in different provinces, set a time mediation ordered by the court to be
conducted in accordance with the parties’
and place for the hearing of the
agreement when an action is prematurely
matters submitted to them. (Sec.
commenced in violation of such agreement.
12, R.A. 876)
The first stage is the CAM “where the judge
refers the parties to the Philippine Mediation
Center (PMC) for the mediation of their
dispute by trained and accredited mediators”.
Upon failing to secure a settlement of the
dispute during the first stage, “a second
attempt is made at the JDR stage”, where the
JDR judge becomes a “mediator-conciliator-
early neutral evaluator in a continuing effort
to secure a settlement”
49
Cases Covered
Any dispute or controversy 1. All civil cases and the civil liability of 1. Civil cases brought on ordinary
which may thereafter arise criminal cases covered by the Rule on appeal or petition for review.
between parties to a contract Summary Procedure, including the civil Appeals from final orders,
pursuant to an arbitration clause liability for violation of B.P. 22, except awards, judgments, resolutions
or any controversy or dispute those which by law may not be of the Court of Tax Appeals and
wherein the parties agree to compromised; quasi-judicial agencies in the
submit to an alternative dispute 2. Special proceedings for the exercise of their quasi-judicial
resolution system settlement of estates; functions through petition for
3. All civil and criminal cases filed with a review or certiorari that
certificate to file action issued by questions a decision for having
the Punong Barangay or the Pangkat ng been rendered in grave abuse
Tagapagkasundo under the of discretion amounting to lack
Revised Katarungang Pambarangay Law of jurisdiction.
4. The civil aspect of Quasi-Offenses 2. Special civil actions for
under Title 14 of the Revised Penal Code; certiorari, except those
5. The civil aspect of less grave felonies involving pure questions of
punishable by correctional penalties not law.
exceeding 6 years imprisonment, where 3. Habeas corpus (court order
the offended party is a private person; directing law enforcement
6. The civil aspect of estafa, theft and officials or custodians of
libel; detained persons to produce
7. All civil cases and probate that person in court) cases
proceedings, testate and intestate, involving custody of minors,
brought on appeal from the exclusive and with the consent of the parties,
original jurisdiction granted to the first provided that the minor is not
level courts under Section 33, par. (1) of detained for commission of a
the Judiciary Reorganization Act of 1980; criminal offense.
8. All cases of forcible entry and 4. Criminal cases cognizable by
unlawful detainer brought on appeal the Katarungang Pambarangay
from the exclusive and original (Barangay Justice System)
jurisdiction granted to the first level under R.A. 7160 or offenses
courts under Section 33, par. (2) of the punishable by imprisonment
Judiciary Reorganization Act of 1980; not exceeding one year or a
9. All civil cases involving title to or fine not exceeding P5,000 or
possession of real property or an interest both such fine and
therein brought on appeal from the imprisonment.
exclusive and original jurisdiction granted
to the first level courts under Section 33,
par.(3) of the Judiciary Reorganization Act
of 1980; 13 and
10. All habeas corpus cases decided by
the first level courts in the absence of the
Regional Trial Court judge, that are
brought up on appeal from the special
jurisdiction granted to the first level
courts under Section 35 of the Judiciary
Reorganization Act of 1980.”
Cases Excluded
1. Labor disputes under the 1. Civil cases which by law cannot be 1. Civil cases, which by law cannot
Labor Code compromised (Article 2035, New Civil be compromised.
2. Civil status of persons Code);
3. Validity of a marriage 2. Criminal cases except those
4. Any ground for legal 2. Other criminal cases not covered under which involve habeas corpus of
separation paragraphs 3 to 6 above; minors not detained for a
5. Jurisdiction of courts criminal offense.
6. Future legitime 3. Habeas Corpus petitions;
7. Criminal liability 3. Habeas corpus petitions
8. Those which by law 4. All cases under Republic Act No. 9262 involving custody of minors
cannot be compromised (Violence against Women and Children); when the subject is detained
9. Dispute resolution and for commission of a criminal
services provided by offense.

CIVIL PROCEDURE
government agencies 5. Cases with pending application for

where mediators or Restraining Orders/Preliminary Injunctions. 4. Cases with pending application
arbitrators are selected by for restraining
government agencies: orders/preliminary injunctions,
a. Mining Act; unless both parties request for
b. Consumer Act; or mediation
c. HLURB Resolution
No. R-586
Note: The table for Katarungang Pambarangay Law, Small Claims Cases and Rules on Summary Procedure are found on
p.17
Q: Distinguish the different kinds of the ADR system.
A:
Arbitration Mediation Conciliation Early Neutral Mini-Trial
Evaluation
Definition
It is a voluntary It is a voluntary A process whereby It is a process It is a structured
dispute resolution process in which an the parties request a wherein parties and dispute resolution
process in which one impartial and neutral third person or their lawyers are method in which the
or more arbitrators, third party persons to assist brought together merits of a case are
appointed in (mediator), selected them in their attempt early in a pre-trial argued before a
accordance with the by the disputing to reach an amicable phase to present panel comprising of
agreement of the parties, facilitates settlement of their summaries of their senior decision
parties, or rules communication and dispute arising out of cases and receive a makers with or
promulgated negotiation, and or relating to a non-binding without the presence
pursuant to R.A. assists the parties in contractual or other assessment by an of a neutral third
9285, resolve a reaching a voluntary legal relationship (Art. experienced, person after which
dispute by rendering agreement regarding 1 [3], UNCITRAL neutral person, the parties seek a
an award. It results a dispute. Model Law on with expertise in negotiated
in the adjudication of Conciliation) the subject or the settlement.
a dispute. substance of the
dispute.
Functions
Arbitrator acts as Mediator does not A conciliator Early neutral Panel renders a
out-of-court judge render an award but participates only in Evaluator assesses decision based on
and settles the only arranges the the preliminary steps or reviews the the merits of the
dispute facts to be of facilitating issues submitted by arguments of the
extrajudicially. negotiated so that discussion between the parties and parties.
parties can come to the parties and helps tenders its
He makes a a compromise them frame the evaluation which is
determination of the agreement. issues for discussion. non-binding.
facts and applies the He assists the parties
law to those facts to in reaching a
resolve a dispute mutually agreeable
independently of the settlement of their
actual result desired dispute through
by the parties. direct negotiations.
He actively
participates in
resolving the
dispute, and then
gives an opinion.
Effect of decision
The award may be The decision or He does not render a The assessment is It need not be
final and binding if so opinion is not decision. The dispute not binding upon confirmed by the
agreed by the binding on the is left to be settled by the parties. courts.
parties. To be parties. It is the parties
executory, it must recommendatory in themselves.
first be confirmed by nature. The mediator
51
the RTC. merely suggests a

solution to the
dispute.
Q: What is the State policy in alternative dispute functions in any ADR system. An ADR practitioner
resolution? refers to individuals acting as mediator, conciliator,
arbitrator or neutral evaluator. (Sec.3[b] of R.A. No.
A: The state policy in ADR is to actively promote 9285)
party autonomy in the resolution of disputes or the
freedom of the parties to make their own J. INTERVENTION
arrangements in resolving their disputes.
Q: What is intervention?
Q: What is the Constitutional basis of alternative
dispute resolution? A: It is a legal proceeding by which a third person is
permitted by the court to become a party by
A: The State shall promote the principle of shared intervening in a pending action after meeting the
responsibility between workers and employers and conditions and requirement set by the Rules of
the preferential use of voluntary modes in settling Court. This person who intervenes is one who is not
disputes, including conciliation, and shall enforce originally impleaded in the action (First Philippine
their mutual compliance therewith to foster Holdings Corp. v. Sandiganbayan, G.R. No. 88345,
industrial peace. (Par. 2, Sec. 3, Art. XIII, 1987 Feb. 1, 1996)
Constitution)
Note: Right to intervene is not an absolute right as it
Q: What is the legal basis of alternative dispute can be secured only in accordance with the terms of
resolution? the applicable statute or rule. Riano, Civil Procedure: A
Restatement for the Bar, p. 345, 2009 ed.)
A: The legal basis would be, “the contracting parties
may establish such stipulations, clauses, terms and 1. REQUISITES FOR INTERVENTION
conditions as they may deem convenient, provided
they are not contrary to law, morals, good customs, Q: What are the requisites for intervention?
public order, or public policy.” (Art. 1306, NCC)
A:
Q: What is an alternative dispute resolution 1. There must be a motion for intervention
system? filed before rendition of judgment by the
trial court (Sec. 1, Rule 19);
A: It means any process or procedure used to Note: A motion is necessary because leave
resolve a dispute or controversy, other than by of court is required before a person may be
allowed to intervene.
adjudication of a presiding judge of a court or an
officer of a government agency in which a neutral
2. The movant must show in his motion that
third party participates to assist in the resolution of
he has:
issues, which includes arbitration, mediation,
a. Legal interest in the matter in
conciliation, early neutral evaluation, mini-trial, or
controversy;
any combination thereof. (Sec.3[a] of R.A. No. 9285)
b. Legal interest in the success of either
of the parties;
Note: Its purposes are to:
1. Actively promote party autonomy in the
c. Legal interest against both parties; or
resolution of disputes or the freedom of the d. So situated as to be adversely
parties to make their own arrangements to affected by a distribution or other
resolve their disputes; disposition of the property in the
2. Achieve speedy and impartial justice; and custody of the court or of an officer
3. Unclog court dockets. thereof (Sec. 1, Rule 19);
3. Intervention will not unduly delay or
Q: Distinguish alternative dispute resolution prejudice the adjudication of the rights of
provider from an alternative dispute resolution original parties; and
practitioner. 4. Intervenor’s rights may not be fully
protected in a separate proceeding
A: An ADR provider means institutions or persons (Mabayo Farms, Inc. vs. CA, GR 140058,
accredited as mediator, conciliator, arbitrator, Aug. 1, 2002).
neutral evaluator, or any person exercising similar

CIVIL PROCEDURE
Q: Is intervention an independent proceeding? Q: May intervention be allowed after judgment

has been rendered by the court?
A:
GR: No. It is not an independent proceeding A:
but is ancillary and supplemental to an existing GR: After rendition of judgment, a motion to
litigation. Hence, the final dismissal of the intervene is barred, even if the judgment itself
principal action results into the dismissal of said recognizes the right of the movant. The motion
ancillary action. to intervene must be filed at any time before
rendition of judgment by the trial court (Sec. 2,
XPN: When intervention has been allowed and Rule 19).
the complaint-in-intervention has already been
filed before plaintiff’s action had been expressly XPNs:
dismissed (Metrobank v. RTC-Manila, G.R. No. 1. With respect to indispensable parties,
89909, Sept. 21, 1990). (2000 Bar Question) intervention may be allowed even on
appeal (Falcasantos v. Falcasantos, G.R.
Q: What does legal interest mean? No. L-4627, May 13, 1952);
2. When the intervenor is the Republic (Lim
A: It must be one that is actual and material, direct v. Pacquing, G.R. No. 115044, Jan. 27,
and of an immediate character, not merely 1995);
contingent or expectant so that the intervenor will 3. Where necessary to protect some interest
either gain or lose by the direct legal operation of which cannot otherwise be protected,
the judgment. (Riano, Civil Procedure: A and for the purpose of preserving the
Restatement for the Bar, p. 346, 2009 ed.) intervenor’s right to appeal (Pinlac v. CA,
G.R. No. 91486, Sept. 10, 2003); or
2. TIME TO INTERVENE 4. May be allowed during the pendency of
the appeal, where the interest of justice
Q: When is the time to intervene? so required (Tahanan Dev. Corp. v. CA,
G.R. No. L-55771, Nov. 15, 1982).
A: The motion to intervene may be filed any time
before rendition of judgment by the trial court. A Q: When shall the intervenor file a pleading-in-
copy of the pleading-in-intervention shall be intervention?
attached to the motion and served on the original
parties. (Sec. 2, Rule 19) A:
1. He shall file a complaint-in-intervention if
Q: What is the procedure for intervention? he asserts a claim against either or all of
the original parties; or
A: 2. An answer-in-intervention if he unites
1. The intervenor shall file a motion for with the defending party in resisting a
intervention attaching thereto his pleading-in- claim against the latter. (Sec. 3, Rule 19)
intervention.
1. If the purpose is to assert a claim Q: When should an answer to complaint-in-
against either or all of the original intervention be filed?
parties – the pleading shall be called
a complaint-in-intervention. A: It shall be filed within fifteen (15) days from
2. If the pleading seek to unite with the notice of the order admitting the same, unless a
defending party in resisting a claim different period is fixed by the court (Sec. 4, Rule
against the latter – file an answer-in- 19).
intervention. (Sec 3, Rule 19)
2. The motion and the pleading shall be 3. REMEDY FOR THE DENIAL OF MOTION TO
served upon the original parties. INTERVENE
3. The answer to the complaint-in-
intervention shall be filed within fifteen Q: What is the remedy for the denial of motion to
(15) days from notice of the order intervention?
admitting the same, unless a different
period is fixed by the courts. (Sec.4, Rule A: The remedy of the aggrieved party is appeal.
19) Mandamus will not lie except in case of grave abuse
of discretion.
53
K. SUBPOENA Q: What is the rule when application for subpoena

to a prisoner is made?
Q: What is a subpoena?
A: The judge or officer shall examine and study
A: It is a process directed to a person requiring him carefully such application to determine whether the
to attend and to testify at the hearing or the trial of same is made for a valid purpose and no prisoner
an action, or at any investigation conducted under sentenced to death, reclusion perpetua or life
the laws of the Philippines, or for taking of his imprisonment and is confined in prison shall be
deposition (Sec. 1, Rule 21). brought outside the said penal institution for
appearance or attendance in any court unless
1. SUBPOENA DUCES TECUM authorized by the SC (Sec. 2, Rule 21).
Q: What is subpoena duces tecum? Q: What are the contents of subpoena?
A: A process directed to a person requiring him to A: It shall state the name of the court and the title
bring with him any books, documents, or things of the action or investigation, shall be directed to
under his control (Sec. 1, Rule 21). the person whose attendance is required, and in
the case of a subpoena duces tecum, it shall also
2. SUBPOENA AD TESTIFICANDUM contain a reasonable description of the books,
documents or things demanded which must appear
Q: What is subpoena ad testificandum? to the court prima facie relevant (Sec. 3).
A: A process directed to a person requiring him to Q: What is the rule on subpoena for depositions?
attend and to testify at the hearing or trial of an
action or at any investigation conducted by A: Proof of service of a notice to take a deposition,
competent authority or for the taking of his as provided in Secs. 15 and 25, Rule 23, shall
deposition (Sec. 1, Rule 21). constitute sufficient authorization for the issuance
of subpoenas for the persons named in said notice
Q: Distinguish subpoena from summons. by the clerk of the court of the place in which the
deposition is to be taken. The clerk shall not,
A: however, issue a subpoena duces tecum to any such
Subpoena Summons person without an order of the court (Sec. 5, Rule
An order to appear and Order to answer 21).
testify or to produce books complaint
and documents Q: How is service of subpoena made?
May be served to a non- Served on the
party defendant A: It shall be made in the same manner as personal
Needs tender of Does not need tender or substituted service of summons (Sec. 6, Rule 21).
kilometrage, attendance fee of kilometrage and
and reasonable cost of other fees Note: Service of a subpoena shall be made by the
production fee sheriff, by his deputy, or by any other person specially
authorized, who is not a party and is not less than
3. SERVICE OF SUBPOENA eighteen (18) years of age (Sec. 6, Rule 21).
Q: Who issues subpoena? Q: What should be delivered and tendered to the

person whom subpoena is served?
A:
1. The court before whom the witness is A: The original shall be exhibited and a copy thereof
required to attend; delivered to the person on whom it is served,
2. The court of the place where the tendering to him the fees for one day’s attendance
deposition is to be taken; and the kilometrage allowed by the Rules. If the
3. The officer or body authorized by law to subpoena is duces tecum, the reasonable cost of
do so in connection with investigations producing the books, documents or things
conducted by said officer or body; or demanded shall also be tendered (Sec. 6, Rule 21).
4. Any Justice of the SC or of the CA in any
case or investigation pending within the Note: When a subpoena is issued by or on behalf of
Philippines. (Sec. 2, Rule 21) the Republic of the Philippines or an officer or agency
thereof, the tender need not be made (Sec. 6, Rule 21).

CIVIL PROCEDURE
Q: Why must service of subpoena be made? when the subpoena was served (Sec. 4,
Rule 21).
A: The service must be made so as to allow the
witness a reasonable time for preparation and L. MODES OF DISCOVERY
travel to the place of attendance (Sec. 6, Rule 21).
Q: What are the different modes of discovery?
4. COMPELLING ATTENDANCE OF WITNESSES;

CONTEMPT A:
1. Depositions pending action (Rule 23)
Q: What is the effect of failure to comply with 2. Depositions before action or pending
subpoena? appeal (Rule 24)
3. Interrogatories to parties (Rule 25)
A: 4. Admission by adverse party (Rule 26)
GR: The court or judge which issued the 5. Production or inspection of documents
subpoena may issue a warrant for the arrest of and things (Rule 27)
the witness and make him pay the cost of such 6. Physical and mental examination of
warrant and seizure, if the court should persons (Rule 28)
determine that his disobedience was willful and Note: The modes of discovery are cumulative. They are
without just cause. The refusal to obey a not alternative nor mutually exclusive.
subpoena without adequate cause shall be
deemed contempt of the court issuing it (Secs. 8 Q: What are the basic purposes of the rules of
and 9, Rule 21). discovery?
XPNs: A:
1. Where the witness resides more than 100 1. To enable a party to obtain knowledge of
km. from his residence to the place where material facts within the knowledge of
he is to testify by the ordinary course of the adverse party or of third parties
travel, generally, by overland through depositions;
transportation (viatory right); or 2. To obtain knowledge of material facts or
2. When the permission of the court in admissions from the adverse party
which the detention prisoner’s case is through written interrogatories;
pending was not obtained (Sec. 10, Rule 3. To obtain admissions from the adverse
21). party regarding the genuineness of
relevant documents or relevant matters
5. QUASHING OF SUBPOENA of fact through requests for admissions;
4. To inspect relevant documents or objects,
Q: How to quash a subpoena? and lands or other property in the
possession and control of the adverse
A: party; and
Subpoena duces tecum: Upon motion promptly 5. To determine the physical or mental
made and, in any event, at or before the time condition of a party when such is in
specified therein: controversy (Koh vs. IAC, 144 SCRA 259).
1. If it is unreasonable and oppressive, or
2. The relevancy of the books, documents or 1. DEPOSITIONS PENDING ACTION; DEPOSITIONS
things does not appear, or BEFORE ACTION OR PENDING APPEAL
3. If the person is whose behalf the
subpoena is issued fails to advance the a. MEANING OF DEPOSITION
reasonable cost of the production thereof
(Sec. 4, Rule 21). Q: What is deposition?
4. That the witness fees and kilometrage
allowed by the Rules were not tendered A: A deposition is the taking of the testimony of
when the subpoena was served any person, whether he be a party or not, but at the
Subpoena ad testificandum: instance of a party to the action. This testimony is
1. That the witness is not bound thereby. taken out of court. Deposition may be:
2. That the witness fees and kilometrage a. An oral examination
allowed by the Rules were not tendered b. Written interrogatories (Sec 1, Rule 23)
55
Q: When can depositions may be availed of? XPN: If the deposition or any part thereof is
offered in evidence for any purpose (Sec. 8, Rule
A: 23).
a. During a pending action (Rule 23) –
deposition de benne esse XPN to the XPN: Introduction of deposition
b. Before action or Pending appeal (Rule 24) does not make the deponent his witness:
– deposition in perpetuam rei memoriam 1. If the deposition is used for impeaching or
contradicting the deponent (Sec. 8, Rule
Q: When may plaintiff be permitted to take 23); or
depositions? 2. If the adverse party uses the deposition of
the other party (Sec. 4[b], Rule 23)
A:
GR: Before answer is served because plaintiff Q: May a party rebut a deposition?
must await joinder of issues.
A: Yes. At the trial or hearing, any party may rebut
XPN: In cases of special circumstances. There any relevant evidence contained in a deposition
must be some “necessity” or “good reason” for whether introduced by him or by any other party
taking the testimony immediately or that it (Sec.9, Rule 23).
would be prejudicial to the party seeking the
order to be compelled to await joinder of issue. Q: Before whom may depositions be taken?
E.g.: witness is aged or infirm, or about to leave
the court’s jurisdiction. (Herrera, Vol. II, pp. 12- A:
13, 2007 ed.) 1. If within the Philippines
a. Judge;
Q: When is leave of court necessary when taking b. Notary public; or
depositions? When is it not necessary? c. Any person authorized to administer
oaths, as stipulated by the parties in
A: writing (Sec. 10, Rule 23).
1. It is necessary
a. Before service of an answer but after the 2. If outside the Philippines
jurisdiction has been acquired over the a. On notice, before a secretary of
defendant or over the property subject of embassy or legation, consul-general,
the action consul, vice-consul, or consular agent
b. If the deposition to be taken is that of a of the Philippines;
prisoner. (sec 1, Rule 23) b. Before such person or officer as may
be appointed by commission or
2. It is not necessary when an answer has already letters rogatory; or
been served and the deponent is not confined in c. Any person authorized to administer
prison. (sec. 1, Rule 23) oaths, as stipulated by the parties in
writing (Sec. 11, Rule 23).
Q: What is the effect of substitution of parties?
Q: When shall letters rogatory or commission be
A: It does not affect the right to use depositions issued?
previously taken; and when an action has been
dismissed and another action involving the same A: They shall be issued only when necessary or
subject is afterward brought between the same convenient, on application and notice, and on such
parties or their representatives or successors-in- terms and with such direction as are just and
interest, all depositions lawfully taken and duly filed appropriate (Sec. 12, Rule 23).
in the former action may be used in the latter as if
originally taken therefor (Sec. 5, Rule 23). Q: Distinguish commission from letters rogatory.
Q: Should the deponent be deemed a witness of A:

the party taking his deposition? Commission Letters Rogatory
Instrument issued by a Instrument sent in the name
A: court of justice, or and by authority of a judge or
GR: No (Sec. 7, Rule 23). other competent court to another, requesting
tribunal, to authorize the latter to cause to be
a person to take examined, upon interrogatories
depositions or do any filed in a case pending before

CIVIL PROCEDURE
other act by authority the former, a witness who is not known, a general description sufficient to
of such court or within the jurisdiction of the identify him or the particular class or group to
tribunal. judge or court to whom such which he belongs (Sec. 15, Rule 23).
letters are addressed.
Issued to the appropriate Note: On motion of any party upon whom the notice is
Issued to a non- judicial officer of the foreign served, the court may for cause shown enlarge or
judicial foreign officer country who will direct shorten the time (Sec. 15, Rule 23)
who will directly take somebody in said foreign
the testimony. country to take down Q: When may the court make orders for the
testimony. protection of parties and deponents?
Applicable rules of
Applicable rules of procedure
procedure are those A: After notice is served for taking a deposition by
are those of the foreign court
of the requesting
requested to act. oral examination, upon motion seasonably made by
court.
any party or by the person to be examined and for
Resorted to if the execution of
good cause shown, the court in which the action is
Resorted to if the commission is refused in
pending may make orders for the protection of
permission of the the foreign country. (There
foreign country is must be a showing that the parties and deponents (Sec. 16, Rule 23).
given. commission is inadequate or
ineffective) Q: What are the orders that the court may make
Leave of court is not for the protection of parties and deponents?
Leave of court is necessary.
necessary.
A:
Q: Who are disqualified to be a deposition officer? 1. That the deposition shall not be taken;
2. That it may be taken only at some
A: designated place other than that stated in
1. One who is related to the deponent the notice;
within the 6th degree of consanguinity or 3. That it may be taken only on written
affinity; interrogatories;
2. An employee or attorney of one of the 4. That certain matters shall not be inquired
parties; into;
3. One who is related to the attorney of the 5. That the scope of the examination shall
deponent within the same degree or be held with no one present except the
employee of such attorney; and parties to the action and their officers or
4. One who is financially interested in the counsel;
action (Sec. 13, Rule 23). 6. That after being sealed, the deposition
shall be opened only by order of the
Q: May the parties stipulate in writing for the court, or that secret processes,
taking of depositions? developments, research need not be
closed;
A: Yes. They may do so before any person 7. That the parties shall simultaneously file
authorized to administer oaths, at any time, or specified documents or information
place, in accordance with the Rules, and when so enclosed in sealed envelopes to be
taken may be used like other depositions (Sec. 14, opened as directed by the court; or
Rule 23). 8. The court may make any other order
which justice requires to protect the party
Q: What is the requirement in taking deposition or witness from annoyance,
upon oral examination? embarrassment, or oppression (Sec. 16,
Rule 23).
A: A party desiring to take the deposition of any
person upon oral examination shall give reasonable Q: What are the duties of the officer before whom
notice in writing to every other party to the action the deposition is to be taken?
(Sec. 15, Rule 23).
A: He shall put the witness on oath and shall
Q: What shall the notice state? personally, or by someone acting under his
discretion and in his presence, record the testimony
A: It shall state the time and place for taking the of the witness (Sec. 17, Rule 23).
deposition and the name and address of each
person to be examined, if known, and if the name is Note: The testimony shall be taken stenographically
unless the parties agree otherwise (Sec. 17, Rule 23)
57
4. Wtness refuses to sign (Sec. 19, Rule 23)

Q: What objections shall be noted by the officer
upon the deposition? Q: What is the effect if the witness does not sign
the deposition?
A: All objections made at the time of the
examination to the: A: The officer shall sign it and state on the record
1. Qualifications of the officer taking the the fact of the waiver or of the illness or absence of
deposition; the witness or the fact of refusal to sign together
2. Manner of taking the deposition; with the reason given therefor, if any, and the
3. Evidence presented; deposition may then be used as fully as though
4. Conduct of any party; or signed, unless on a motion to suppress under Sec.
5. Any other objection to the proceedings 29 (f), Rule 23, the court holds that the reasons
(Sec. 17, Rule 23). given for the refusal to sign require rejection of the
deposition in whole or in part (Sec. 19, Rule 23).
Note: A deposition officer has no authority to rule on
the objection (Herrera, Vol. II, p. 34, 2007 ed.) Q: What are the duties of the officer after the
taking of the deposition?
Q: What may the parties do if they cannot
participate in the oral examination? A: He shall:
1. Certify on the deposition that the witness
A: The parties may transmit written interrogatories was duly sworn to by him and that the
to the officers, who shall propound them to the deposition is a true record of the
witness and record the answers verbatim (Sec. 17, testimony given by the witness;
Rule 23). 2. Then securely seal the deposition in an
envelope indorsed with the title of the
Q: What is the consequence if a party or the action and marked "Deposition of (here
witness refuses to be sworn or refuses to answer insert the name of witness)";
any question after being directed to do so by the 3. Promptly file it with the court in which
court of the place in which the deposition is being the action is pending or send it by
taken? registered mail to the clerk thereof for
filing (Sec. 20, Rule 23); and
A: The refusal may be considered contempt of that 4. Give prompt notice of its filing to all the
court (Sec. 2, Rule 129). parties (Sec. 21, Rule 23).
Q: When shall the deposition be submitted to the Note: Failure to comply with this requirement is a
witness for examination? mere defect in form which cannot affect the
admissibility of the deposition. (Herrera, Vol. II, p. 38,
A: It shall be submitted when the deposition is fully 2007 ed.)
transcribed and shall be read to or by him, unless
such examination and reading are waived by the Q: When shall the officer furnish a copy of the
witness and by the parties (Sec. 19, Rule 23). deposition to any party or to the deponent?
Q: What shall be done with the changes which the A: He shall furnish a copy upon payment of
witness desire to make? reasonable charges therefor (Sec. 22, Rule 23).
A: Any changes in form or substance shall be Q: What is the consequence of failure to attend of
entered upon the deposition by the officer with a the party giving notice?
statement of the reasons given by the witness for
making them (Sec. 19, Rule 23). A: The court may order the party giving the notice
to pay such other party the amount of the
Q: Is the signing of deposition necessary? reasonable expenses incurred by him and his
counsel in so attending, including reasonable
A: attorney’s fees (Sec. 23, Rule 23).
GR: Yes, it shall be signed by the witness.
Q: What is the consequence of failure of party
XPN: giving notice to serve subpoena?
1. Parties by stipulation waive the signing;
2. Witness is ill; A: If because of such failure, the witness does not
3. Witness cannot be found; or attend, and if another party attends in person or by

CIVIL PROCEDURE
counsel because he expects the deposition of that occurring at the oral examination in the
witness to be taken, the court may order the party manner of taking the deposition in the
giving the notice to pay to such other party the form of the questions or answers, in the
amount of the reasonable expenses incurred by him oath or affirmation, or in the conduct of
and his counsel in so attending, including the parties and errors of any kind which
reasonable attorney’s fees (Sec. 24, Rule 23). might be obviated, removed, or cured if
promptly prosecuted, are waived unless
Q: How is deposition upon written interrogatories reasonable objection thereto is made at
done? the taking of the deposition.
5. As to form of written interrogatories –
A: A party desiring to take the deposition of any Objections to the form of written
person upon written interrogatories shall serve interrogatories submitted under Secs. 25
them upon every other party with a notice stating and 26 are waived unless served in
the name and address of the person who is to writing upon the party propounding them
answer them and the name or descriptive title and within the time allowed for serving
address of the officer before whom the deposition succeeding cross or other interrogatories
is to be taken. Within ten (10) days thereafter, a and within 3 days after service of the last
party so served may serve cross-interrogatories interrogatories authorized.
upon the party proposing to take the deposition. 6. As to manner of preparation – Errors and
Within five (5) days thereafter, the latter may serve irregularities in the manner in which the
re-direct interrogatories upon a party who has testimony is transcribed or the deposition
served cross-interrogatories. Within three (3) days is prepared, signed, certified, sealed,
after being served with re-direct interrogatories, a indorsed, transmitted, filed, or otherwise
party may serve recross-interrogatories upon the dealt with by the officer under Secs. 17,
party proposing to take the deposition (Sec. 25, 19, 20 and 26 are waived unless a motion
Rule 23). to suppress the deposition or some part
thereof is made with reasonable
Note: The duties of the officer under Secs. 17, 19, 20, promptness after such defect is, or with
21 & 22 of Rule 23 shall also be followed on deposition due diligence might have been,
upon written interrogatories (Secs. 26 & 27, Rule 23). ascertained (Sec. 29, Rule 23)
Q: What is the effect of errors and irregularities in Q: Who may file a petition for deposition before
depositions? action?
A: A: Any person who wants to perpetuate his own

1. As to notice – All errors and irregularities testimony or that of another person regarding any
in the notice for taking a deposition are matter that may be cognizable in any court of the
waived unless written objection is Philippines (Sec. 1, Rule 24).
promptly served upon the party giving the
notice. Q: What are the contents of the petition?
2. As to disqualification of officer –
Objection to taking a deposition because A: The petition shall be entitled in the name of the
of disqualification of the officer before petitioner and shall show:
whom it is to be taken is waived unless 1. that the petitioner expects to be a party
made before the taking of the deposition to an action in a court of the Philippines
begins or as soon thereafter as the but is presently unable to bring it or cause
disqualification becomes known or could it to be brought;
be discovered with reasonable diligence. 2. the subject matter of the expected action
3. As to competency or relevancy of evidence and his interest therein;
– Objections to the competency of 3. the facts which he desires to establish by
witness or the competency, relevancy, or the proposed testimony and his reasons
materiality of testimony are not waived for desiring to perpetuate it;
by failure to make them before or during 4. the names or a description of the persons
the taking of the deposition, unless the he expects will be adverse parties and
ground, of the objection is one which their addresses so far as known; and
might have been obviated or removed if 5. The names and addresses of the persons
presented at that time. to be examined and the substance of the
4. As to oral examination and other testimony which he expects to elicit from
particulars – Errors and irregularities
59
each, and shall ask for an order 3. any purpose by any party if the court
authorizing the petitioner to take the finds that: DR. USE
depositions of the persons to be a. The witness is Dead
examined named in the petition for the b. The witness Resides more than 100
purpose of perpetuating their testimony kilometers from the place of trial or
(Sec.2, Rule 24) hearing, or is out of the Philippines.
Unless it appears that his absence
Q: What is the rule on notice and service of was procured by the party offering
depositions before action? the deposition
c. The witness is Unable to testify
A: The petitioner shall serve a notice upon each because of age, sickness, infirmity or
person named in the petition as an expected imprisonment
adverse party, together with a copy of the petition, d. The party offering the deposition has
stating that the petitioner will apply to the court, at been unable to procure the
a time and place named therein, for the order attendance of the witness by
described in the petition. At least twenty (20) days Subpoena
before the date of the hearing, the court shall cause e. Upon application and notice, that
notice thereof to be served on the parties and such Exceptional circumstances exist
prospective deponents in the manner provided for as to make it desirable in the interest
service of summons. (Sec. 3, Rule 24) of justice (Sec. 4, Rule 23)
Q: What are the contents of the motion for Q: What is the dual function of depositions?
deposition pending appeal?
A:
A: The motion shall state: 1. Rule 23 – method of discovery, with use
1. The names and addresses of the persons on trial not necessarily contemplated; and
to be examined
2. The substance of the testimony which he 2. Rule 24 – a method of presenting
expects to elicit from each testimony.
3. The reason for perpetuating their
testimony. (Sec. 7, Rule 24). Q: What is the use of deposition pending appeal?
Note: If the court finds that the perpetuation of the
testimony is proper to avoid a failure or delay of A: Depositions are taken pending appeal with the
justice, it may make an order allowing the depositions view to their being used in the event of further
to be taken, and thereupon the depositions may be proceeding in the court of origin or appellate court.
taken and used in the same manner and under the (Sec. 7, Rule 24)
same conditions as are prescribed under Rule 23. (Sec.
7, Rule 24) Note: The deposition taken under this Rule is
admissible in evidence in any action subsequently
b. USES; SCOPE OF EXAMINATION brought involving the same subject matter (Sec. 6, Rule
24)
Q: To whom may the deposition be used against?
Q: What is the scope of the examination of the
A: Any part or all of the deposition, so far as deponent?
admissible under the rules of evidence, may be
used against: A: Unless otherwise ordered by the court as
1. Any party who was present or provided by Sec. 16 or 18, Rule 23, the deponent
represented at the taking of the may be examined regarding any matter, not
deposition; or privileged, which is relevant to the subject of the
2. One who had due notice of the deposition pending action, whether relating to the claim or
(Sec. 4, Rule 23) defense of any other party, including the:
1. Existence;
Q: What are the uses of depositions? 2. Description;
3. Nature;
A: 4. Custody;
1. Contradicting or impeaching the 5. Condition;
testimony of the deponent as a witness; 6. Location of any books, documents, or
2. Any purpose by the adverse party where other tangible things; and
the deponent is a party; or

CIVIL PROCEDURE
7. The identity and location of persons Q: Distinguish protection order from motion to
having knowledge of relevant facts (Sec. terminate or limit examination.
2, Rule 23).
A:
c. WHEN MAY OBJECTIONS TO ADMISSIBILITY BE Motion to Terminate or
Protection Order (Sec.
MADE Limit Examination (Sec.
16, Rule 23)
18, Rule 23)
Q: What is the rule on objections to admissibility Provides protection to Provides such protection
of deposition? the party or witness during the taking of
before the taking of deposition.
A: Subject to the provisions of Sec. 29, Rule 23, deposition.
objection may be made at the trial or hearing to The Motion is filed with Motion or petition is filed
receiving in evidence any deposition or part thereof the court in which the in the court in which the
action is pending. action is pending or the
for any reason which would require the exclusion of
RTC of the place where
the evidence if the witness were then present and
the deposition is being
testifying (Sec. 6, Rule 23)
taken.
d. WHEN MAY TAKING OF DEPOSITION BE

Q: What is the rule on objections to admissibility
TERMINATED OR ITS SCOPE LIMITED
of deposition?
Q: What are the grounds for the termination or
A: Subject to the provisions of Sec. 29, Rule 23,
limitation of the examination?
objection may be made at the trial or hearing to
receiving in evidence any deposition or part thereof
A:
for any reason which would require the exclusion of
1. Upon a showing that the examination is
the evidence if the witness were then present and
being conducted in bad faith;
testifying (Sec. 6, Rule 23).
2. In such manner as unreasonably to annoy,
embarrass or oppress the deponent or
2. WRITTEN INTERROGATORIES TO ADVERSE
party (Sec. 18, Rule 23); or
PARTIES
3. When the constitutional privilege against
self-incrimination is invoked by deponent
Q: What is the purpose of interrogatories to
or his counsel (Herrera, Vol. II, p. 37, 2007
parties?
ed.).
A: For eliciting material and relevant facts from any
Note: If the order made terminates the examination,
adverse party (Sec. 1, Rule 25).
it shall be resumed thereafter only upon the order of
the court in which the action is pending. Upon demand
of the objecting party or deponent, the taking of the Q: Distinguish interrogatories from bill of
deposition shall be suspended for the time necessary particulars.
to make a notice for an order. In granting or refusing
such order, the court may impose upon either party or A:
upon the witness the requirement to pay such costs or Interrogatories Bill of Particulars
expenses as the court may deem reasonable (Sec. 18, Interrogatories to parties Designed to clarify
Rule 23). are not directed to a ambiguities in a pleading
particular pleading. or to state with sufficient
Q: When may taking of deposition be terminated Instead, they seek to definiteness allegations
or its scope limited? disclose all material and in a pleading. It is
relevant facts from a therefore directed to a
A: At any time during the taking of the deposition, party (Sec 1, Rule 25) pleading (Sec 1, Rule 12)
on motion or petition of any party or of the
deponent. (Sec. 18, Rule 23)
61
Q: Distinguish depositions upon written Note: The party against whom it is directed may make
interrogatories under Rule 23, Section 25 from objections to the interrogatories. (Sec. 2, Rule 25)
interrogatories to parties under Rule 25.
Judgment by default may be rendered against a party
A: who fails to serve his answer to written
Depositions Upon Written interrogatories. (Sec.3[c], Rule 29)
Interrogatories to
Interrogatories to Parties
Parties (Rule 25) Q: How can a party make objections to the
(Sec. 25, Rule 23)
Deponent interrogatories?
Party or ordinary witness Party only
Procedure A: Objections shall be presented to the court within
With intervention of the No intervention. 10 days after service of the interrogatories. The
officer authorized by the Written interrogatories filing of the objections shall have the effect of
Court to take deposition are directed to the deferring the filing and service of the answer to the
party himself interrogatories (Sec. 3, Rule 25).
Not served upon the
adverse party directly. They Served directly upon Q: Is leave of court necessary before a party may
are instead delivered to the the adverse party (Sec be served with written interrogatories?
officer before whom the 1, Rule 25)
deposition is to be taken. A:
(Sec 26, Rule 23)
GR: It is not necessary after answer has been
Scope
served, for the first set of interrogatories.
Direct, cross, redirect, re- Only one set of
cross interrogatories
XPN: It is necessary before answer has been
Interrogatories
served because, at that time, the issues are not
15 days to answer
yet joined and the disputed facts are not yet
No fixed time unless extended or
reduced by the court clear.
Q: What is the scope and use of interrogatories?

Q: What is the procedure in taking
interrogatories?
A: Interrogatories may relate to any matters that
can be inquired into under section 2 of Rule 23, and
A: The mode of discovery is availed of by filing and
the answers may be used for the same purposes
serving upon the adverse party written
provided in section 4 of the same Rule (Sec. 5, Rule
interrogatories to be answered by the party served.
25).
If the party is a juridical entity, it shall be answered
by any of its officers competent to testify in its
a. CONSEQUENCES OF REFUSAL TO ANSWER
behalf. (Sec 1, Rule 25) The interrogatories shall be
answered fully in writing and shall be signed and
Q: What are the consequences of refusal to
sworn to by the person making them.
answer?
Q: How many interrogatories may a party serve?
A:
A: No party may, without leave of court, serve more (1) If a party or other deponent refuses to answer
than one set of interrogatories to be answered by any question upon oral examination, the
the same party (Sec. 4, Rule 25). examination may be completed on other
matters or adjourned as the proponent of the
Q: How are interrogatories answered? question may prefer. The proponent may
thereafter apply to the proper court of the place
A: The interrogatories shall be answered fully in where the deposition is being taken, for an
writing and shall be signed and sworn to by the order to compel an answer. The same
person making them. The party upon whom the procedure may be availed of when a party or a
interrogatories have been served shall file and witness refuses to answer any interrogatory
serve a copy of the answers on the party submitting submitted under Rules 23 or 25.
the interrogatories within fifteen (15) days after
service thereof, unless the court, on motion and for If the application is granted, the court shall
good cause shown, extends or shortens the time require the refusing party or deponent to
(Sec. 2, Rule 25). answer the question or interrogatory and if it
also finds that the refusal to answer was
without substantial justification, it may require

CIVIL PROCEDURE
the refusing party or deponent or the counsel arrest of any party or agent of a party for
advising the refusal, or both of them, to pay the disobeying any of such orders except an
proponent the amount of the reasonable order to submit to a physical or mental
expenses incurred in obtaining the order, examination (Sec. 3, Rule 29).
including attorney’s fees.
b. EFFECT OF FAILURE TO SERVE WRITTEN
If the application is denied and the court finds INTERROGATORIES
that it was filed without substantial justification,
the court may require the proponent or the Q: What is the effect of failure to serve written
counsel advising the filing of the application, or interrogatories?
both of them, to pay to the refusing party or
deponent the amount of the reasonable A:
expenses incurred in opposing the application, GR: A party not served with written
including attorney’s fees (Sec. 1, Rule 29). interrogatories may not be compelled by the
adverse party to give testimony in open court,
(2) If a party or other witness refuses to be sworn or to give a deposition pending appeal.
or refuses to answer any question after being
directed to do so by the court of the place in XPN: When allowed by the court and there is
which the deposition is being taken, the refusal good cause shown and the same is necessary to
may be considered a contempt of that court prevent a failure of justice (Sec. 6, Rule 25).
(Sec. 2, Rule 29).
Note: The sanctions adopted by the rules is not one of
(3) If any party or an officer or managing agent of a compulsion in the sense that the party is being
party refuses to obey an order made under compelled to avail of the discovery mechanics, but one
section 1 of this Rule requiring him to answer of negation by depriving him of evidentiary sources
designated questions, or an order under Rule 27 which would otherwise have been accessible to him.
to produce any document or other thing for
inspection, copying, or photographing or to 3. REQUEST FOR ADMISSION
permit it to be done, or to permit entry upon
land or other property, or an order made under Q: What admissions may be requested from the
Rule 28 requiring him to submit to a physical or adverse party?
mental examination, the court may make such
orders in regard to the refusal as are just, and A: Admission of the:
among others the following: 1. Genuineness of any material and relevant
(a) An order that the matters regarding document described in and exhibited with
which the questions were asked, or the the request; or
character or description of the thing or 2. Truth of any material and relevant matter
land, or the contents of the paper, or the of fact set forth in the request (Sec. 1,
physical or mental condition of the party, Rule 26).
or any other designated facts shall be
Note: The request for admission must be served
taken to be established for the purposes of
directly upon the party; otherwise, the party to whom
the action in accordance with the claim of
the request is directed cannot be deemed to have
the party obtaining the order;
admitted the genuineness of any relevant document
(b) An order refusing to allow the described in and exhibited with the request or relevant
disobedient party to support or oppose matters of fact set forth therein on account of failure
designated claims or defenses or to answer the request for admission (Briboneria v. CA,
prohibiting him from introducing in G.R. No. 101682, Dec. 14, 1992).
evidence designated documents or things
or items of testimony, or from introducing However, the answer to a request for admission
evidence of physical or mental condition; properly served which was signed and sworn to by the
(c) An order striking out pleadings or parts counsel of the party so requested, is sufficient
thereof, or staying further proceedings compliance with this rule, especially in the light of
until the order is obeyed, or dismissing the counsel’s authority under Secs. 21 and 23, Rule 138
action or proceeding or any part thereof, (Nestle Philippines, Inc. v. CA, G.R. No. 102404, Feb. 1,
or rendering a judgment by default against 2002)
the disobedient party;
(d) In lieu of any of the foregoing orders or
in addition thereto, an order directing the
63
Q: When may request for admission be made? Q: When should objections to any request for
admission be submitted?
A: At any time after issues have been joined, a
party may file and serve upon any other party a A: They shall be submitted to the court by the party
written request for the admission by the latter. requested within the period for and prior to the
(Sec. 1, Rule 26). filing of his sworn statement and his compliance
therewith shall be deferred until such objections
a. IMPLIED ADMISSION BY ADVERSE PARTY are resolved, which resolution shall be made as
early as practicable (Sec. 2[b], Rule 26).
Q: When is there an implied admission?
Q: May an admission be withdrawn?
A:
GR: Each of the matters of which an admission A: Yes. The court may allow the party making the
is requested shall be deemed admitted. admission to withdraw or amend the admission
upon such terms as may be just (Sec. 4, Rule 26).
XPN: Unless, the party to whom the request is
directed files and serves upon the party d. EFFECT OF FAILURE TO FILE AND SERVE
requesting the admission a sworn statement REQUEST FOR ADMISSION
either denying specifically the matters of which
an admission is requested or setting forth in Q: What is the effect of failure to file and serve
detail the reasons why he cannot truthfully request for admission?
either admit or deny those matters (Sec. 2, Rule
26). A: A party who fails to file and serve a request for
admission on the adverse party on material and
Note: When the defendant is silent on the plaintiff‘s relevant facts at issue shall not be permitted to
request for admission, he is deemed to have impliedly present evidence on such facts unless otherwise
admitted the facts set forth therein (Herrera, Vol. II, p. allowed by the court for good cause shown and to
56, 2007 ed.) prevent a failure of justice (Sec. 5, Rule 26).
b. CONSEQUENCES OF FAILURE TO ANSWER 4. PRODUCTION OR INSPECTION OF DOCUMENTS

REQUEST FOR ADMISSION OR THINGS
Q: What is the effect for failure to answer a Q: What may the court order under this mode of
request for admission? discovery?
A: The facts or documents are deemed admitted. A: Upon motion of any party showing good cause
Under the Rules, each of the matters of which an therefor, the court in which an action is pending
admission is requested shall be deemed admitted may order any party to:
unless within a period designated in the request 1. Produce and permit the inspection and
which shall not be less than 15 days after service copying or photographing, by or on behalf
thereof, or within such further time as the court of the moving party, or of any designated
may allow on motion, the party to whom the documents, papers, books, accounts,
request is directed files and serves upon the party letters, photographs, objects or tangible
requesting the admission a sworn statement either things, not privileged, which constitute or
denying specifically the matter of which an contain evidence material to any matter
admission is requested or setting forth in detail the involved in the action and which are in his
reason why he cannot truthfully either admit or possession, custody or control; or
deny those matters. (Sec. 2, Rule 26) 2. Permit entry upon designated land or
other property in his possession or
c. EFFECT OF ADMISSION control for the purpose of inspecting,
measuring, surveying, or photographing
Q: What is the effect of admission? the property or any designated relevant
object or operation thereon (Sec. 1, Rule
A: Any admission made by a party pursuant to such 27).
request is for the purpose of the pending action
only and shall not constitute an admission by him
for any other purpose nor may the same be used
against him in any other proceeding (Sec. 3, Rule
26).

CIVIL PROCEDURE
Q: What are the limitations on the request for A:

production or inspection of documents or things? 1. A motion must be filed by the party
seeking the production or inspection of
A: documents and things and the motion
1. Should not be privileged; must show good cause supporting the
2. Should constitute or contain evidence same. (Sec 1, Rule 27)
material to any matter involved in the 2. The order shall specify the time, place and
action and which are in his (the party manner of making the inspection and
ordered) possession, custody, or control taking copies and photographs, and may
(Sec. 1, Rule 27); and prescribe such terms and conditions as
3. In the petition, the papers and documents are just. (Sec 1, Rule 27)
to be produced must be sufficiently
described. 5. PHYSICAL AND MENTAL EXAMINATION OF
PERSONS
Q: What are privileged communications?
Q: When may physical and mental examination of
A: persons be ordered?
1. Communication between:
a. Husband and wife A: It may be ordered in an action in which the
b. Attorney and client physical or mental condition of a party is in
c. Physician and patient controversy (Sec. 1, Rule 28).
d. Priest and penitent
e. Public officers and public interest Note: Since the results of the examination are
2. Editors may not be compelled to disclose intended to be made public, the same are not covered
the source of published news by the physician-patient privilege.
3. Voters may not be compelled to disclose
for whom they voted Q: What is the procedure to avail physical and
4. Trade secrets mental examination of persons?
5. Information contained in tax census
returns; and A:
6. Bank deposits. 1. A motion must be filed showing good
cause for the examination, with notice to
Q: Distinguish the rule on production or inspection the other parties as well aside from the
of documents or things under Rule 27 from party to be examined. (Sec 2, Rule 28)
subpoena duces tecum. 2. The motion shall specify the time, place,
manner, conditions and scope of the
A: examination and by the person/s by
whom it is made. (Sec 2, Rule 28)
Production or Inspection
Subpoena Duces Tecum 3. The party examined may request the
of Documents or Things
party causing the examination to be made
Essentially a mode of Means of compelling
to deliver to him a copy of a detailed
discovery. production of evidence
written report of the examining physician
It may be directed to any
Limited to the parties to setting out his findings and conclusions.
person whether a party
the action. (Sec 3, Rule 28)
or not.
Issued only upon motion 4. The party causing the examination to be
Issued upon an ex parte made shall be entitled upon request to
with notice to the
application. receive from the party examined a like
adverse party.
report of any examination, previously or
Note: This mode of discovery does not authorize the thereafter made, of the same mental or
opposing party or the clerk of court or other physical condition. (Sec 3, Rule 28)
functionaries of the court to distrain the articles or
deprive the person who produced the same of their Q: What is the effect if the party refuses to deliver
possession, even temporarily (Tanda v. Aldaya, GR No. the report upon request to the person causing the
L-13423, Nov. 23, 1959). examination to be made?
Q: What is the procedure to avail the production A: The court may order requiring the delivery on
or inspection of documents or things? such terms as are just. (Sec 3, Rule 28)
65
Q: What is the effect if the physician refuses or 1. He has to furnish the other party a copy
fails to make a report? of the report of any previous or
subsequent examination of the same
A: The court may exclude his testimony. (Sec 3, Rule physical and mental condition (Sec. 3,
28) Rule 28)
2. He waives any privilege he may have in
Q: What is the effect if the party examined that action or any other involving the
requests and obtains a report on the results of the same controversy regarding the
examination? testimony of every other person who has
so examined or may thereafter examine
A: him (Sec. 4, Rule 28).
6. CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY
Q: What are the sanctions in case of refusal to comply with the modes of discovery?
A:
Refusal to answer any question upon oral examination
1. Order to compel an answer;
2. Contempt;
3. Require payment of reasonable fees incurred by the proponent;
4. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of
the party obtaining the order.
5. Dismiss the action or the proceeding;
6. Render a Judgment by default against the disobedient party;
7. Refuse to allow the disobedient party to support or oppose claims or defenses;
8. Strike out all or any part of the pleading of the disobedient party;
9. Stay further proceedings until order is obeyed;
10. Order the arrest of the refusing party.
Refusal to produce document or thing for inspection, copying or photographing
2. Refuse to allow the disobedient party to support or oppose claims or defenses;
7. Render a Judgment by default against the disobedient party
8. Order the arrest of the refusing party.
Refusal to submit to Physical or Mental examination
2. Prohibit the disobedient party to introduce evidence of physical and mental conditions;
7. Render a Judgment by default against the disobedient party
Refusal to the request for admission by adverse party
1. Require payment of reasonable fees incurred by the proponent (Secs. 1-4)
2. Each of the matters of which an admission is requested is deemed admitted (Sec. 5, Rule 26).
Note: The remedy of the party, in this case, is to file a motion to be relieved of the consequences of the implied admission. The
amendment of the complaint per se cannot set aside the legal effects of the request for admission since its materiality has not
been affected by the amendment.
Note: Expenses and attorney’s fees are not to be imposed upon the Republic of the Philippines. The matter of how, and
when, the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the
case is pending, having always in mind the paramount and overriding interest of justice (Zepeda v. China Banking Corp.,
G.R. No. 172175, Oct. 9, 2006).

CIVIL PROCEDURE
M. TRIAL
Q: When is a case ready for trial?
Q: What is a trial?
A: When the issues are joined. Issues are joined
A: It is a judicial process of investigating and when all the parties have placed their respective
determining the legal controversies starting with theories and the terms of the dispute are placed
the production of evidence by the plaintiff and before the court.
ending with his closing arguments (Riano, Civil
Procedure: A Restatement for the Bar, p. 394, 2009 Q: What is the rule on notice of trial?
ed.)
A: Upon entry of a case in the trial calendar, the
Q: Is trial necessary? clerk shall notify the parties of the date of its trial in
A: such manner as shall ensure his receipt of that
GR: When an issue exists, trial is necessary.
notice at least five (5) days before such date. (Sec.1,
Decision should not be made without trial.
Rule 30)
XPNs: There is no need for trial in the following
cases: 1. ADJOURNMENTS AND POSTPONEMENTS
1. Where the pleadings of the parties tender
no issue at all, a judgment on the Q: What is the rule on adjournment and
pleadings may be directed by the court postponement of trial?
(Rule 34);
A: A court may adjourn a trial from day to day, and
2. Where from the pleadings, affidavits,
to any stated time, as the expeditious and
depositions and other papers, there is
convenient transaction of business may require, but
actually no genuine issue, the court may
shall have no power to adjourn a trial for a longer
render a summary judgment (Rule 35);
period than one month for each adjournment, nor
3. Where the parties have entered into a
more than three months in all, except when
compromise or an amicable settlement
authorized in writing by the Court Administrator,
either during the pre-trial or while the
Supreme Court. (Sec 2, Rule 30)
trial is in progress (Rule 18; Art. 2028,
NCC);
Note: A motion for postponement should not be filed
4. Where the complaint has been dismissed
on the last hour especially when there is no reason
with prejudice (Sec. 5, Rule 16; Sec. 3, why it could not have been presented earlier (Republic
Rule 17; last. par., Sec. 5, Rule 7); vs Sandiganbayan)
5. Where the case falls under the operation
of the Rules on Summary Procedure (Rule A motion for continuance or postponement is not a
17); matter of right but is addressed to the sound
6. Where, the parties agree in writing, upon discretion of the court, and its action thereon will not
the facts involved in the litigation, and be disturbed by the appellate courts in the absence of
submit the case for judgment on the facts clear and manifest abuse of discretion resulting in the
agreed upon, without the introduction of denial of substantial justice.
evidence. If however, there is no
agreement as to all the facts in the case, 2. REQUISITES OF MOTION TO POSTPONE TRIAL
trial may be held only as to the disputed
facts (1996 Bar Question). Q: What are the criteria in granting
postponements?
Q: Distinguish trial from hearing.
A:
A: 1. Reason for the postponement;
Trial Hearing 2. Merits of the case of the movant
Not confined in trial but
Reception of
embraces several stages of a. FOR ABSENCE OF EVIDENCE
evidence and other
litigation, including the pre-
processes.
trial stage. Q: What are the requisites of a motion to
Does not necessarily imply postpone trial for absence of evidence?
The period for the
presentation of evidence in
introduction of
open court but the parties are A: Affidavit showing:
evidence by both
afforded the opportunity to a. The evidence is material or relevant
parties.
be heard.
67
b. That due diligence has been used to

procure it
Plaintiff shall adduce evidence in support of his
Note: But the adverse party may avoid it by admitting complaint
the facts sought to be proven by the absent evidence,
even if he objects or reserves the right to their
Defendant shall then adduce evidence in support
admissibility. (Sec.3, Rule 30)
of his defense, counterclaim, cross-claim and
third party complaint
b. FOR ILLNESS OF PARTY OR COUNSEL
Q: What are the requisites of a motion to Third party defendant, if any, shall adduce
postpone trial for illness of party or counsel? evidence of his defense, counterclaim, cross-
claim and fourth-party complaint
A: Affidavit showing:
a. Presence of such party or counsel at
the trial is indispensable; Fourth party, and so forth, if any, shall adduce
b. Character of illness is such as to evidence of the material facts pleaded by them
render his non-attendance excusable
3. AGREED STATEMENT OF FACTS Parties against whom any counterclaim or cross-

claim has been pleaded, shall adduce evidence in
Q: Distinguish stipulation of facts in civil cases vis- support of their defense, in the order to be
a-vis criminal cases. prescribed by the court
A:
Parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons
May be signed by the
Must be signed both by and in the furtherance of justice, permits them to
counsel alone who has a
the counsel and the adduce evidence upon their original case
special power of
accused.
attorney.
May be made verbally or Strict. It must always be
in writing. in writing. Upon admission of the evidence, the case shall
be deemed submitted for decision, unless the
Q: What is the rule on stipulation of facts?
court directs the parties to argue or to submit
A: The parties to any action may agree, in writing, their respective memoranda or any further
upon the facts involved in the litigation, and submit pleadings
the case for judgment on the facts agreed upon,
without the introduction of evidence. If the parties Note: If several defendants or third party defendants
agree only on some of the facts in issue, the trial and so forth having separate defenses appear by
shall be held as to the disputed facts in such order different counsel, the court shall determine the
as the court shall prescribe (Sec. 7, Rule 30) relative order of presentation of their evidence (Sec. 5,
Rule 30)
Note: Stipulation of facts is not permitted in actions
for annulment of marriage and for legal separation. Q: When is a reverse order of trial allowed?
4. ORDER OF TRIAL; REVERSAL OF ORDER A: Where the defendant, in his answer, relies upon
an affirmative defense, a reverse order of trial shall
Q: What is the procedure in trial? take place. Since the defendant admits the
plaintiff’s claim but seeks to avoid liability based on
A: Subject to the provisions of Sec. 2, Rule 31, and his affirmative defense he shall proceed first to
unless the court for special reasons otherwise prove his exemption.
directs, the trial shall be limited to the issues stated
in the pre-trial order and shall proceed as follows:

CIVIL PROCEDURE
5. CONSOLIDATION OR SEVERANCE OF HEARING 2. If filed with the different branches of the

OR TRIAL same RTC and one of such cases has not
been partially tried. (Raymundo v. Felipe,
Q: Distinguish consolidation from severance. G.R. No. L-30887, Dec. 24, 1971)
A: Q: When may civil actions be suspended?

Consolidation Severance
Contemplates a single A:
Involves several actions action having a number 1. If willingness to discuss a possible
having a common of claims, counterclaims, compromise is expressed by one or both
question of law or fact cross-claims, third-party parties; or
which may be jointly complaints, or issues 2. If it appears that one of the parties,
tried (Sec.1, Rule 31). which may be separately before the commencement of the action
tried. or proceeding, offered to discuss a
possible compromise but the other party
Q: What are the requisites for consolidation? refused the offer (Sec. 8, Rule 30; Art.
2030, NCC).
A:
1. Actions involving a common question of 6. DELEGATION OF RECEPTION OF EVIDENCE
law or fact; and
2. There must be at least 2 actions pending Q: May the judge delegate the reception of
before the same court (Sec.1, Rule 31). evidence?
Q: What are the ways of consolidating cases? A:

GR: No. The judge shall personally receive and
A: resolve the evidence to be adduced by the
Recasting the Consolidation Test-Case parties.
Cases Proper Method
Reshaping of It is a joint trial By hearing only XPN: The reception of evidence may be
the cases by with joint the principal case
delegated to the Clerk of Court, under the
amending the decision, the and suspending
following conditions:
pleading, cases retaining the hearing on
dismissing their original the other cases
1. The delegation may be made only in
some cases docket until judgment defaults or ex parte hearings, and in any
and retaining numbers. has been case where the parties agree in writing;
only one case. rendered in the 2. The reception of evidence shall be made
There must be principal case. only by the clerk of that court who is a
joinder of The cases retain member of the bar;
causes of their original 3. Said clerk shall have no power to rule on
action and of docket numbers objections to any question or to
parties. (Riano, Civil admission of evidence or exhibits; and
Procedure, p. 96, 4. He shall submit his report and transcripts
2009 ed.). of the proceedings, together with the
objections to be resolved by the court,
within 10 days from the termination of
Q: What is the rule on consolidation of cases? the hearing (Sec. 9, Rule 30).
A: 7. TRIAL BY COMMISSIONERS
GR: Consolidation is discretionary upon the
court to avoid multiplicity of suits, guard against Q: Who is a commissioner?
oppression or abuse, prevent delay, clear
congested dockets, and simplify the work of the A: A person to whom a case pending in court is
trial court and save unnecessary costs and referred, for him to take testimony, hear the parties
expenses. and report thereon to the court, and upon whose
report, if confirmed, judgment is rendered.
XPNs: Consolidation becomes a matter of duty
when: Q: Distinguish delegation to clerk of court under
1. If two or more cases are pending before Rule 30 from trial by commissioner under Rule 32.
the same judge; or
69
A: b. POWERS OF THE COMMISSIONER

Delegation to Clerk of
Trial by Commissioner
Court Q: What are the powers of a commissioner?
Commissioner can be
Delegation is made appointed even after the A:
during trial. case has become final 1. Power to regulate the proceedings in
and executory. every hearing before him;
Clerk of court must be a Commissioner need not 2. Do all acts and take all measures
lawyer. be a lawyer. necessary or proper for the efficient
Clerk of court cannot rule Commissioner can rule performance of his duties under the order
on objections or on the on objections or on of reference;
admissibility of evidence. admissibility of evidence.
3. Issue subpoenas ad testificandum and
duces tecum;
Q: What is the rule on trial by commissioner? 4. Swear witnesses; and
5. Rule upon the admissibility of evidence
A: (Sec.3, Rule 32).
GR: Discretionary upon the courts.
Note: Requirement of hearing cannot be dispensed
XPNS: with as this is the essence of due process.
1. Expropriation (Rule 67);
2. Partition (Rule 69); Q: What is the effect of failure of parties to appear
3. Settlement of estate of a deceased person before a commissioner?
in case of contested claims; and
4. Submission of accounting by executors or A: The commissioner may proceed ex parte or, in
administrator. his discretion, adjourn the proceedings to a future
day, giving notice to the absent party or his counsel
Note: An irregularity in the appointment of a of the adjournment (Sec.6, Rule 32)
commissioner must be seasonably raised in the trial
court where the defect could still be remedied. It can
c. COMMISSIONER’S REPORT; NOTICE TO PARTIES
be waived by consent of the parties, express or
AND HEARING ON THE REPORT
implied.
Q: What is a commissioner’s report?
a. REFERENCE BY CONSENT OR ORDERED ON
MOTION
A: Upon completion of the trial or hearing or
proceeding before the commissioner, he shall file
Q: How may a case be referred to a commissioner?
with the court his report in writing upon the
matters submitted to him by the order of reference.
A: By written consent of both parties, the court may
When his powers are not specified or limited, he
order any or all of the issues in a case to be referred
shall set forth his findings of fact and conclusions or
to a commissioner to be agreed upon by the parties
law in his report. He shall attach in his report all
or to be appointed by the court (Sec. 1, Rule 32).
exhibits, affidavits, depositions, papers and the
transcript, if any, of the evidence presented before
Q: When may a case be referred to a
him (Sec. 9).
commissioner if the consent of the parties are not
given?
Note: The commissioner’s report is not binding upon
the court which is free to adopt, modify, or reject, in
A: whole or in part, the report. The court may receive
1. When the trial of an issue of fact requires further evidence or recommit the report with
the examination of a long account on instructions (Sec. 11, Rule 32; Baltazar vs. Limpin, 49
either side; Phil. 39).
2. When the taking of an account is
necessary for the information of the court Q: What is the rule on notice of filing of the
before judgment; report?
3. When a question of fact, other than upon
the pleadings, arises upon motion or A: Upon the filing of the report, the parties shall
otherwise, in any stage of a case; or be notified by the clerk, and they shall be allowed
4. For carrying a judgment or order into ten (l0) days within which to signify grounds of
effect (Sec. 2, Rule 32). objections to the findings of the report, if they so
desire. Objections to the report based upon

CIVIL PROCEDURE
grounds which were available to the parties during appeal the order of dismissal is reversed he shall be
the proceedings before the commissioner, other deemed to have waived the right to present
than objections to the findings and conclusions evidence. (Sec.1, Rule 33)
therein set forth, shall not be considered by the
court unless they were made before the Q: What is the effect of filing of demurrer to
commissioner. (Sec.10, Rule 32) evidence?
Note: GR: Notice of the filing of the report must be A:

sent to the parties for the purpose of giving them an Motion Granted but
opportunity to present their objections (Santos vs. Motion Denied
Reversed on Appeal
Guzman, 45 Phil. 646). The failure to grant the parties, Movant shall have the Movant is deemed to have
in due form, this opportunity to object, may, in some right to present his waived his right to present
instances, constitute a serious error in violation of evidence evidence. The decision of
their substantial rights (Govt. vs. Osorio, 50 Phil. 864). the appellate court will be
based only on the
XPN: The rule, however, is not absolute. In Manila evidence of the plaintiff as
Trading and Supply Co. vs. Phil. Labor Union, 71 Phil. the defendant loses his
539, it was ruled that although the parties were not right to have the case
notified of the filing of the commissioner’s reports, and remanded for reception of
the court failed to set said report for hearing, if the his evidence.
parties who appeared before the commissioner were Denial is interlocutory,
duly represented by counsel and given an opportunity hence, not appealable. Order of the court is an
to be heard, the requirement of due process has been Sec. 1, Rule 36 (that adjudication on the merits.
satisfied, and a decision on the basis of such report, judgment should state Hence, the requirement in
with the other evidence of the case is a decision which clearly and distinctly the Sec. 1, Rule 36 should be
meets the requirements of fair and open hearing. facts and the law on which complied with.
it is based), will not apply.
Q: What should be heard during the
commissioner’s report hearing? Note: A demurrer to evidence under Rule 33 is in
effect, a motion to dismiss but is not the same as what
A: In the hearing to be conducted on the is described in Rule 16.
commissioner’s report, the court will review only so
much as may be drawn in question by proper Q: Distinguish a demurrer to evidence from a
objections. It is not expected to rehear the case motion to dismiss.
upon the entire record (Kreidt vs. McCullough and
Co., 37 Phi. 474). A:
Motion to Demurrer to
Dismiss Evidence
N. DEMURRER TO EVIDENCE (Rule 16) (Rule 33)
After the plaintiff
Q: What is demurrer to evidence? Before filing of rests its case or after
When answer the completion of the
A: It is a motion to dismiss based on the ground of to file presentation of
insufficiency of evidence and is presented after the evidence
plaintiff rests his case (Regalado, Vol. I, p. 391, 2005
ed.). The aim of this rule is to discourage prolonged The 10 grounds That upon the facts
litigation. Grounds enumerated in and the law, the
Rule 16 plaintiff has shown no
Note: There is only a one side trial, i.e. it is only the right to relief
plaintiff who has presented evidence.
The defendant
Q: When may a party to the case move for If may file his The defendant may
denied responsive present his evidence.
dismissal based on insufficiency of evidence?
pleading.
The complaint The complaint may
A: After the plaintiff has completed the
may be refiled NOT be filed. The
presentation of his evidence, the defendant may
depending on the remedy of the
move for dismissal on the ground that upon the If ground of plaintiff is to appeal
facts and the law the plaintiff has shown no right to granted dismissal. from the dismissal.
relief. If his motion is denied, he shall have the right
to present evidence. If the motion is granted but on
71
Q: ABS Co. is the operator of several buses. One of 2. EFFECT OF DENIAL

the buses owned by ABS Co. rammed with a dump
truck causing the instantaneous death of Nilo, one Q: What is the effect of denial of demurrer to
of the passengers of the ill-fated bus. evidence?
Consequently, Nestor, son of Nilo, filed a
complaint against ABS Co. for damages. After A:
Nestor had rested his case, ABS Co. filed a 1. The defendant shall have the right to
demurrer to evidence, contending that Nestor's present his evidence (Sec. 1, Rule 33)
evidence is insufficient because it did not show (1) 2. The court shall set the date for the
that ABS Co. was negligent and (2) that such reception of the defendant’s evidence.
negligence was the proximate cause of the 3. An order denying a demurrer to evidence
collision. Should the court grant or deny not appealable (because it is
defendant's demurrer to evidence? Reason briefly. interlocutory)
XPN: It can be subject to petition for
A: No, the court should not grant defendant’s certiorari in case of grave abuse of
demurrer to evidence. Under the Rules of Court, discretion or an oppressive exercise of
after the plaintiff has completed the presentation judicial authority.
of his evidence, the defendant may move for 4. The right to present evidence after denial
dismissal on the ground that upon the facts and the of demurrer to evidence does not apply
law the plaintiff has shown no right to relief. to election cases.
Here, Nestor has shown that he is entitled to the 3. EFFECT OF GRANT

relief he is asking for. ABS Co. is a common carrier.
Under Article 1756 of the Civil Code, in case of Q: What is the effect of granting the demurrer to
death of or injuries to passengers, common carriers evidence?
are presumed to have been at fault or to have acted
negligently, unless they prove that they observed A:
extraordinary diligence. Proof that the defendant 1. The case shall be dismissed.
was negligent and that such negligence was the Note: The plaintiff may file an appeal and if that
proximate cause of the collision is not required. appeal was granted, the defendant loses his right
Thus, without proof that ABS Co. has exercised to present evidence. (Sec.1, Rule 33)
extraordinary diligence, the presumption of
negligence stands. (2004 Bar Question) 2. Upon appeal, the appellate court
reversing the order granting the demurrer
Q: What is judgment on demurrer to evidence? should not remand the case to the trial
court. Instead, it should render judgment
A: It is a judgment rendered by the court dismissing based on the evidence submitted by the
a case upon motion of the defendant, made after plaintiff. (Radiowealth Finance
plaintiff has rested his case, on the ground that Corporation vs Del Rosario, 335 SCRA 288)
upon the facts presented by the plaintiff and the
law on the matter, plaintiff has not shown any right 3. The demurrer to evidence abbreviates
to relief. judicial proceedings.
1. GROUND 4. WAIVER OF RIGHT TO PRESENT EVIDENCE
Q: On what ground may the demurrer to evidence Q: When is there a waiver of right to present
be filed? evidence?
A: The only ground for demurrer to evidence is that A: If the demurrer is granted but on appeal the
the plaintiff has no right to relief. order of dismissal is reversed, the defendant is
deemed to have waived his right to present
evidence (Sec.1, Rule 33)

CIVIL PROCEDURE
5. DEMURRER TO EVIDENCE IN A CIVIL CASE VERSUS DEMURRER TO EVIDENCE IN A CRIMINAL CASE
Q: Distinguish demurrer to evidence in civil cases from demurrer to evidence in criminal cases.
A:
Civil Case Criminal Case
Leave of court Not required With or Without
The Plaintiff may appeal from the order of The Plaintiff cannot make an appeal from the
If granted dismissal of the case order of dismissal due to the constitutional
prohibition against double jeopardy
The Defendant may proceed to adduce his The Defendant may adduce his evidence only if
evidence the demurrer is filed with leave of court.
If denied If there was no leave of court, accused can no

longer present his evidence and submits the
case for decision based on the prosecution’s
evidence
If the court finds plaintiff’s evidence insufficient,
it will grant the demurrer by dismissing the
If the plaintiff complaint. The judgment of dismissal is If the court finds the prosecution’s evidence
appeals from appealable by the plaintiff. If plaintiff appeals insufficient, it will grant the demurrer by
the order of and judgment is reversed by the appellate court, rendering judgment acquitting the accused.
dismissal it will decide the case on the basis of the Judgment of acquittal is not appealable;
plaintiff’s evidence with the consequence that double jeopardy sets in
the defendant already loses his right to present
evidence. No res judicata in dismissal due to
demurrer
How can
demurrer be The plaintiff files a motion to deny motion to The court may motu proprio deny the motion.
denied? demurrer to evidence.
O. JUDGMENTS AND FINAL ORDERS 5. Judgment nunc pro tunc (Now for then) –
A judgment intended to enter into the
Q: What is a judgment? record the acts which had already been
done, but which do not appear in the
A: It is a final consideration and determination by a records. Its only function is to record
court of the rights of the parties, upon matters some act of the court which was done at
submitted to it in an action or proceeding. a former time, but which was not then
recorded, in order to make the record
Q: What are the kinds of judgment? speak the truth, without any changes in
substance or any material respect.
A: 6. Judgment sin perjuicio – Judgment
1. Judgment upon compromise – It is one without a statement of the facts in
conferred on the basis of a compromise support of its conclusion to be later
agreement entered into between the supplemented by the final judgment. This
parties. is not allowed.
2. Judgment by confession – It is one 7. Judgment by default (Sec. 3, Rule 9) –
rendered by the court when a party Rendered by the court following a default
expressly agrees to the other party’s order or after it received, ex parte,
claim or acknowledges the validity of the plaintiff’s evidence.
claim against him. 8. Judgment on the pleadings (Rule 34) –
3. Judgment upon the merits – It is one that Proper when an answer fails to tender an
is rendered after consideration of the issue because of a general or insufficient
evidence submitted by the parties during denial of the material allegations of the
the trial of the case. complaint or when the answer admits the
4. Clarificatory judgment – It is rendered to material allegations of the adverse party's
clarify an ambiguous judgment or one pleading.
difficult to comply with. 9. Summary judgment (Rule 35) – One
granted by the court for the prompt
73
disposition of civil actions wherein it A:

clearly appears that there exists no 1. Resolutions of Supreme Court denying the
genuine issue or controversy as to any petitions to review decisions of Court of
material fact. Appeals.
10. Several judgment (Sec. 4, Rule 36) – It is 2. Minute Resolutions – if issued by SC
one rendered by a court against one or denying or dismissing a petition or a
more defendants and not against all of motion for reconsideration for lack of
them, leaving the action to proceed merit, it is understood that the challenged
against the others. decision or order is deemed sustained.
11. Separate judgment (Sec. 5, Rule 36) – It is 3. Interlocutory Orders – those that
one rendered disposing of a claim among determine incidental matters that do not
several others presented in a case, after a touch on the merits of the case or put an
determination of the issues material to a end to the proceedings. E.g. Order
particular claim and all counterclaims denying a motion to dismiss, granting an
arising out of the transaction or extension of time or authorizing an
occurrence which is the subject matter of amendment.
said claim. Note: Appeal is not proper to question an
12. Special judgment (Sec. 11, Rule 39) – One interlocutory order. The proper remedy to
which can only be complied with by the question an interlocutory order is a petition
judgment obligor because of his personal for certiorari under Rule 65.
qualifications or circumstances or one
that requires the performance of an act 1. JUDGMENT WITHOUT TRIAL
other than:
a. Payment of money; and Q: What is a judgment without trial?
b. Sale of real and personal property.
13. Judgment for specific acts (Sec. 10, Rule A: The theory of summary judgment is that
39) – Applicable in cases of: although an answer may on its face appear to
1. Conveyance, delivery of deeds, or tender issues—requiring trial—yet if it is
other specific acts, vesting title; demonstrated by affidavits, depositions, or
2. Sale of real or personal property; admissions that those issues are not genuine, but
3. Delivery or restitution of real sham or fictitious, the Court is justified in
property; dispensing with the trial and rendering summary
4. Removal of improvements on judgment for plaintiff. The court is expected to act
property subject of execution; or chiefly on the basis of the affidavits, depositions,
5. Delivery of personal property. admissions submitted by the movants, and those of
14. Judgment on demurrer to evidence (Rule the other party in opposition thereto. The hearing
33) – A judgment rendered by the court contemplated (with 10-day notice) is for the
dismissing a case upon motion of the purpose of determining whether the issues are
defendant, made after plaintiff has rested genuine or not, not to receive evidence on the
his case, on the ground that upon the issues set up in the pleadings. A hearing is not thus
facts presented by the plaintiff and the de riguer. The matter may be resolved, and usually
law on the matter, plaintiff has not shown is, on the basis of affidavits, depositions,
any right to relief. admissions. Under the circumstances of the case, a
15. Conditional judgment – It is one the hearing would serve no purpose, and clearly
effectivity of which depends upon the unnecessary. The summary judgment here was
occurrence or non-occurrence of an justified, considering the absence of opposing
event. affidavits to contradict the affidavits (Galicia vs.
16. Final judgment – One which disposes of Polo, L-49668, Nov. 14, 1989; Carcon Devt. Corp. vs.
the whole subject matter or terminates CA, GR 88218, Dec. 17, 1989).
the particular proceedings or action,
leaving nothing to be done by the court 2. CONTENTS OF A JUDGMENT
but to enforce by execution what has
been determined. Q: What are the two parts of a judgment?
Q: What are those which are not considered as A:

decisions? 1. Ratio decidendi – the body of judgment
2. Fallo – The dispositive portion of the
judgment. It is also the part of judgment
that is subject to execution because this is

CIVIL PROCEDURE
the judgment of the court itself, i.e. if the Note: in the above cases, the material facts alleged in
petition is granted or denied and the the complaint shall always be proved (Sec. 1, Rule 34)
relief granted.
4. SUMMARY JUDGMENTS
Q: How should a conflict between the parts of a
decision be resolved? Q: What is a summary judgment?
GR: If there is a conflict between the ratio decidendi A: A summary judgment or accelerated judgment is
and the fallo, the fallo should prevail. Reason: the a procedural technique to promptly dispose of
fallo is the final order while the ratio decidendi is cases where the facts appear undisputed and
merely a statement ordering nothing. certain from the pleadings, depositions, admissions
and affidavits on record, of for weeding out sham
XPN: If there is a mere mistake in the fallo and the claims or defenses at an early stage of the litigation
the ratio decidendi is so clear that it states a to avoid the expense and loss of time involved in a
conclusion, the latter should prevail. (Poland trial. Its object is to separate what is formal or
Industrial Limited vs. National Development pretended denial or averment from what is genuine
Company, 467 SCRA 500) and substantial so that only the latter may subject a
party-in-interest to the burden of trial. Moreover,
Q: What are the requisites of a valid judgment? said summary judgment must be premised on the
absence of any other triable genuine issues of fact.
A: Otherwise, the movants cannot be allowed to
1. Authority of the court to hear and obtain immediate relief. A genuine issue is such
determine the case. issue of fact which requires presentation of
2. Jurisdiction – over the parties and the evidence as distinguished from a sham, fictitious,
subject matter contrived or false claim (Monterey Foods Corp. vs.
3. The parties must have been given an Eserjose, GR 153126, Sept. 11, 2003).
opportunity to adduce evidence.
4. The evidence must have been considered Q: What are the requisites of summary
by the tribunal in deciding the case. judgments?
5. The judgment must be in writing,
personally and directly prepared by the A:
judge. 1. There must be no genuine issue as to any
6. The judgment must state clearly the facts material fact, except for the amount of
and the law on which it is based, signed damages; and
by the judge and filed with the clerk of 2. The party presenting the motion for
court. summary judgment must be entitled to a
NOTE: Only for decisions and final orders on judgment as a matter of law.
merits and does not apply to those resolved
through incidental matters. a. FOR THE CLAIMANT
3. JUDGMENT ON THE PLEADINGS Q: When is a claimant allowed to file for summary

judgment?
Q: When is there a judgment based on pleadings?
A: A party seeking to recover upon a claim,
A: Where an answer fails to tender an issue, or counterclaim, or cross-claim or to obtain a
otherwise admits the material allegations of the declaratory relief may, at any time after the
adverse party’s pleading, the court may, on motion pleading in answer thereto has been served, move
of that party, direct judgment on such pleading. with supporting affidavits, depositions or
Note: Judgment must be on motion of the claimant. It admissions for a summary judgment in his favor
cannot be rendered by the court motu proprio. upon all or any part thereof (Sec. 1, Rule 35).
Q: What are cases where judgment on the
pleadings will not apply? b. FOR THE DEFENDANT
A: Q: When is a defendant allowed to file for

1. Actions for the declaration of nullity of a summary judgment?
marriage
2. Actions for annulment of marriage A: A party against whom a claim, counterclaim, or
3. Actions for legal separation cross-claim is asserted or a declaratory relief is
sought may, at any time, move with supporting
75
affidavits, depositions or admissions for a summary d. AFFIDAVITS AND ATTACHMENTS

judgment in his favor as to all or any part thereof
(Sec. 2, Rule 35). Q: What are the rules on affidavits and
attachments on summary judgments?
c. WHEN THE CASE NOT FULLY ADJUDICATED
A:
Q: What happens when a case is not fully 1. Supporting and opposing affidavits shall
adjudicated? be made on personal knowledge, shall set
forth such facts as would be admissible in
A: If on motion, judgment is not rendered upon the evidence, and shall show affirmatively
whole case of for all the reliefs sought and a trial is that the affiant is competent to testify to
necessary, the court at the hearing of the motion, the matters stated therein. Certified true
by examining the pleadings and the evidence copies of all papers or parts thereof
before it and by interrogating counsel shall referred to in the affidavit shall be
ascertain what material facts exist without attached thereto or served therewith
substantial controversy and what are actually and (Sec. 5, Rule 35).
in good faith controverted. It shall thereupon make 2. Should it appear to its satisfaction at any
an order specifying the facts that appear without time that any of the affidavits presented
substantial controversy, including the extent to pursuant to the Rules are presented in
which the amount of damages or other relief is not bad faith, or solely for the purpose of
in controversy, and directing such further delay, the court shall forthwith order the
proceedings in the action as are just. The facts so offending party or counsel to pay to the
specified shall be deemed established, and the trial other party the amount of the reasonable
shall be conducted on the controverted facts expenses which the filing of the affidavits
accordingly (Sec. 4, Rule 35). caused him to incur, including attorney’s
fees. It may, after hearing, further
adjudge the offending party or counsel
guilty of contempt (Sec. 6, Rule 35).
5. JUDGMENT ON THE PLEADINGS VERSUS SUMMARY JUDGMENTS
Judgment on the pleadings Summary judgments

Answer Answer does not tender an issue There is an issue tendered in the answer, but it is
not genuine or real issue as may be shown by
affidavits and depositions that there is no real issue
and that the party is entitled to judgment as a
matter of right
Notice Movants must give a 3-day notice of hearing Opposing party is given 10 days notice
Termination Entire case may be terminated May only be partial
Who can file Only the plaintiff or the defendants as far as Either the plaintiff or the defendant may file it
the counterclaim, cross-claim or third-party
complaint is concerned can file the same
Basis of the Based only on the pleadings alone, hence, Based on the pleadings, affidavits, depositions, and
judgment only on the complaint and the answer admissions
6. RENDITION OF JUDGMENTS AND FINAL ORDERS CA, 6 SCRA 530). It is not the writing of the
judgment or its signing which constitutes rendition
Q: What is a rendition of judgment? of the judgment (Castro vs. Malazo, 99 SCRA 164).
A: Rendition of judgment is the filing of the same Q: How should a judgment be prepared?
with the clerk of court. It is not the pronouncement
of the judgment in open court that constitutes the A: A judgment or final order determining the merits
rendition. Even if the judgment has already been of the case shall be in writing personally and
put in writing and signed, it is still subject to directly prepared by the judge, stating clearly and
amendment if it has not yet been filed with the distinctly the facts and the law on which it is based,
clerk of court and before its filing does not yet signed by him, and filed with the clerk of the court
constitute the real judgment of the court (Ago vs. (Sec. 1, Rule 36).

CIVIL PROCEDURE
its periods, not more than six (6) months from the
7. ENTRY OF JUDGMENT AND FINAL ORDER entry of the judgment or final order (Sec. 3, Rule 38).
Q: What is an entry of judgment? P. POST JUDGMENT REMEDIES
A: The entry of judgment refers to the physical act Q: What are the available remedies to the
performed by the clerk of court in entering the aggrieved party after rendition of judgment?
dispositive portion of the judgment in the book of
entries of judgment and after the same has become A: The remedies against a judgment may refer to
final and executory. The record shall contain the those remedies before a judgment becomes final
dispositive portion of the judgment or final order and executory and those remedies after the same
and shall be signed by the clerk of court, with a becomes executory.
certificate by said clerk that the judgment has
already become final and executory (Sec. 2, Rule 1. Before a judgment becomes final and executory,
36). the aggrieved party may avail of the following
remedies:
Q: What happens if no appeal was filed on time? a. Motion for Reconsideration;
b. Motion for New Trial; and
A: If no appeal or motion for new trial or c. Appeal
reconsideration is filed within the time provided in
the Rules, the judgment or final order shall 2. After the judgment becomes executory, the
forthwith be entered by the clerk in the book of losing party may avail of the following:
entries of judgments. (Sec. 2, Rule 36)
a. Petition for relief from judgment;
Note: There are some proceedings the filing of which is b. Action to annul judgment;
reckoned from the date of the entry of judgment: (a) c. Certiorari; and
the execution of a judgment by motion is within five d. Collateral attack of a judgment.
(5) years from the entry of the judgment (Sec. 6, Rule
39); (b) the filing of a petition for relief has, as one of
1. MOTION FOR NEW TRIAL OR RECONSIDERATION

a. GROUNDS
b. WHEN TO FILE
Q: Distinguish motion for new trial from motion for reconsideration.
A:
MOTION FOR NEW TRIAL MOTION FOR RECONSIDERATION
Grounds
1. Extrinsic fraud, accident, mistake or excusable negligence (FAME) 1. The damages awarded are
which ordinary prudence could not have guarded against and by excessive;
reason of which the rights of the aggrieved party was impaired; or 2. The evidence is insufficient to satisfy
2. Newly discovered evidence, which could not with reasonable the decision or final order; or
diligence, have been discovered and produced at the trial, and which 3. The decisionor final order is contrary
if presented, would probably alter the result (Sec. 1, Rule 37). to law (Sec. 1, Rule 37).
Requisites
1. Must be in writing; 1. Must point out specifically the
2. Affidavit of the existence of FAME and newly discovered evidence; conclusion of judgment;
Note: Whenever a remedy is allowed on the ground of FAME, an affidavit 2. Express reference to testimonial or
of merit is obligatory. documentary evidence or to
3. Affidavit of merit setting forth the particular facts claimed to provisions of law.
constitute a meritorious cause of action;
4. In case of newly discovered evidence:
a. Affidavit of new witnesses; and
b. Duly authenticated documents to be introduced.
Both shall be made in writing stating the ground / grounds therefor, a written notice of which shall be served by the
movant on the adverse party. (Sec. 2, Rule 37) Such written notice is that prescribed in Sec4 and 5 of Rule 15.
The requirements are mandatory and non-compliance therewith is fatal and renders the motion pro forma or a mere
scrap of paper and will not toll the reglementary period for appeal.
When to file
77
A motion for new trial or reconsideration should be filed within the period for taking an appeal. Hence, it must be filed
before the finality of the judgment (Sec. 1, Rule 37). No motion for extension of time to file a motion for reconsideration
shall be allowed. In DistilleriaLimtuaco vs. CA, 143 SCRA 92, it was said that the period for filing a motion for new trial is
within the period for taking an appeal.
Note:
The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from.
Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days
from notice of the judgment or final order (Sec. 3, Rule 41). A record on appeal shall be required only in special
proceedings and other cases of multiple or separate appeals (Sec. 3, Rule 40).
Single motion rule (applicable only on a
Second motion may be allowed so long as based on grounds not existing
judgment or final order but not to
or available at the time the first motion was made. (Sec. 5, Rule 37)
interlocutory order) (Sec. 5, Rule 37)
No new trial or hearing will take place and
the judgment will be based on the
pleadings submitted by the parties. If
If granted, the original judgment or final order shall be vacated, and the
granted, the court may amend such
action shall stand for trial de novo. The recorded evidence taken upon the
judgment or final order accordingly (Sec.
former trial, insofar as the same is material and competent to establish
3, Rule 37).
the issues, shall be used at the new trial without retaking the same (Sec. 6,
Rule 37).
Note: The amended judgment is in the
nature of a new judgment which
supersedes the original judgment.
If denied, the remedy is to appeal from the judgment or final order (Sec. 9, Rule 37).
Available against judgments or final
Available even on appeal but only on the ground of newly discovered orders of both the trial and appellate
evidence. courts.
Both must be resolved within 30 days from the time it is submitted for resolution
Both are prohibited motions under Summary Procedure
COMMON PROVISIONS c. DENIAL OF THE MOTION; EFFECT
Q: What is the period to file motion for new trial Q: What is the effect if the MNT or MR is denied?
or reconsideration?
A: The movant has a “fresh period” of 15 days from
A: Within the period for taking an appeal or within the receipt or notice of the order denying or
15 days after notice to the appellant of the dismissing the motion within which to file a notice
judgment or final order appealed from. Where a of appeal (fresh period rule). (Neypes v. CA, G.R.
record on appeal is required the appellant shall file No.141524, Sept. 14, 2005)
a notice of appeal and a record on appeal within 30
days after notice of the judgment or final order d. GRANT OF THE MOTION; EFFECT
(Section 1, Rule 40).
Note: No extension of time to file a Motion for New Q: What is the effect of a grant of the motion?
Trial or Motion for Reconsideration shall be allowed.
A: If a new trial be granted in accordance with the
Q: When is a record of appeal required? provisions of the rules, the original judgment shall
be vacated or set aside, and the action shall stand
A: A record of appeal is required only in: for trial de novo; but the recorded evidence taken
1. Special proceedings; upon the former trial so far as the same is material
2. Other cases of multiple or separate and competent to establish the issues, shall be used
appeal (Section 3, Rule 40) at the new trial without retaking the same (Sec. 6).
The filing of the motion for new trial or
Q: What is the effect of filing a MNT/ MR on the reconsideration interrupts the period to
period to appeal? appeal (Sec. 2, Rule 40; Sec. 3, Rule 41).
A: The filing of a timely motion interrupts the If the court grants the motion (e.g., it finds that
period to appeal (Section 2, Rule 40; Section 3, Rule excessive damages have been awarded or that the
41). judgment or final order is contrary to the evidence
or law), it may amend such judgment or final order

CIVIL PROCEDURE
accordingly (Sec. 3). The amended judgment is in

the nature of a new judgment which supersedes Q: What happens if the motion is filed without the
the original judgment. It is not a mere supplemental required affidavits?
decision which does not supplant the original but
only serves to add something to it (Esquivel vs. A: Non- compliance with the requirements of the
Alegre, 172 SCRA 315). If the court finds that a Rules would reduce the motion to a mere pro-
motion affects the issues of the case as to only a forma motion.
part, or less than all of the matters in controversy, Note: Under Sec. 2,Rule 37 a pro- forma motion shall
or only one, or less that all of the parties to it, the not toll the reglementary period of appeal.
order may grant a reconsideration as to such issues
if severable without interfering with the judgment Q: What is a pro- forma motion?
or final order upon the rest (Sec. 7).
A: A pro- forma motion is one which does not
e. REMEDY WHEN MOTION IS DENIED, FRESH 15- satisfy the requirements of the rules and one which
DAY PERIOD RULE will be treated as a motion intended to delay the
proceedings (Marikina Development Corporation v.
Q: What is the remedy if the motion is denied?
Flojo, 251 SCRA 87).
A: The remedy is to appeal from the judgment or
MOTION FOR NEW TRIAL
final order itself subject of the motion for
reconsideration or new trial (Sec. 9, Rule 37, Rules
Q: What is a Motion for New Trial?
of Court). The movant has a fresh period of fifteen
days from receipt or notice of the order denying or
A: It is a motion for the rehearing of a case already
dismissing the motion for reconsideration within
decided by the court but before the judgment
which to file a notice of appeal. It is no longer
rendered thereon becomes final and executory,
assailable by certiorari. (Sec.9, Rule 37, A.M. No. 07-
whereby errors of law or irregularities are
7-12-SC).
expunged from the record or new evidence is
Q: When does the fresh period rule apply?
introduced, or both steps are taken.
A: It applies to:
1. Rule 40 – MTC to RTC Q: What are the requisites of newly discovered
2. Rule 41 – Appeals from RTC evidence as a ground for New Trial?
3. Rule 42 – Petition for Review from RTC to CA
4. Rule 43 – Appeals from quasi-judicial agencies A:
to CA 1. The evidence was discovered after trial;
5. Rule 45 – Appeals by certiorari to the SC 2. Such evidence could not have been
discovered and produced at the trial with
Note: The “fresh period rule” does not refer to the reasonable diligence; and
period within which to appeal from the order denying 3. Such evidence is material, not merely
the motion for reconsideration, but to the period cumulative, corrobative or impeaching,
within which to appeal from the judgment itself and is of such weight that if admitted
because an order denying a motion for reconsideration would probably change the judgment
is not appealable. (BERRY RULE) (CIR v. A. Soriano
Corporation, GR No. 113703 January 31,
Q: When should the motion be resolved? 1997).
A: The motion shall be resolved within 30 days from Q: Distinguish Newly Discovered Evidence from
the time it is submitted for resolution (Section 4, Forgotten Evidence.
Rule 37).
A:
Q: Is a MNT/ MR a prerequisite for taking an NEWLY DISCOVERED FORGOTTEN EVIDENCE
appeal or petition for review? EVIDENCE
Evidence was not Evidence was already
A: A final MNT/ MR is not a prerequisite to an available to a party available to a party and
appeal, a petition for review or petition for review during a trial, and was was not presented
on certiorari. And since the purpose is to expedite discovered only through inadvertence or
the final disposition of cases, a strict or prospective thereafter. negligence of the
application of said ruling is in order (Habaluyas v. counsel; it is not a ground
for new trial.
Japson, GR No. 70895, May 30, 1986).
79
A: The purpose of a motion for reconsideration is

Q: Distinguish extrinsic fraud from intrinsic fraud. precisely to request the court or the quasi- judicial
body to take a second look at its earlier judgment
A: and correct any errors it may have committed
EXTRINSIC FRAUD INTRINSIC FRAUD therein (Reyes v. Pearlbank Securities, GR No.
Connotes any fraudulent Refers to the acts of party 171435, July 30, 2008).
scheme executed by the during trial which does
prevailing party outside not affect the Q: Is a second motion for reconsideration allowed?
trial against the losing presentation of the case
party who because of A: A second motion for reconsideration is not
such fraud was prevented allowed. The prohibition on a second motion
from presenting his side applies only when the motion is directed against a
of the case
judgment or a final order. The rule does not apply
to a motion for reconsideration of an interlocutory
Q: Distinguish Motion for New Trial from Motion order.
for Reopening of the Trial.
Q: When may there be partial reconsideration?
A:
MOTION FOR MOTION FOR REOPENING OF A: If the court finds that a motion affects the issues
NEW TRIAL TRIAL
of the case as to only a part, or less than all of the
A motion must be The judge may act motu propio
matters in controversy, or only one, or less than all,
filed
of the parties to it, the order may grant a
Proper only after May properly be presented only
reconsideration as to such issues if severable
promulgation of after either or both parties have
judgment formally offered and closed
without interfering with the judgment or final order
their evidence before judgment upon the rest (Sec. 7, Rule 37).
Based upon Controlled by no other than the
specific grounds paramount interest of justice, Q: In a case filed by Pedro against Juan, the latter
mentioned in Sec. resting entirely on the sound received the adverse decision of the RTC on March
37 in civil cases discretion of the court, the 1, 2008. On March 14, 2008, Juan filed a motion
and Sec. 121 in exercise of such shall not be for reconsideration. Juan received the decision of
criminal cases reviewable on appeal UNLESS a the trial court dismissing his motion on April 1,
clear abuse thereof is shown. 2008. When should Juan file his notice of appeal to
the CA?
Q: Is a second motion for new trial allowed?
A: Juan has 15 days from the receipt of the decision
A: Yes. A second motion for new trial is authorized of the trial court denying his motion for
by the Rules. A motion for new trial shall include all reconsideration to file his notice of appeal. To
grounds then available. Those not so included are standardize the appeal periods provided in the
deemed waived. However, when a ground for a Rules of Court and to afford litigants fair
new trial was not existing or available when the first opportunity to appeal their cases, the SC deemed it
motion was made, a second motion for new trial practical to allow a fresh period of 15 days within
may be filed within the period allowed but which to file the notice of appeal in the RTC,
excluding the time during which the first motion counted from receipt of the order dismissing a
had been (Section 5, Rule 37) motion for a new trial or motion for
reconsideration.
MOTION FOR RECONSIDERATION
Sec. 3, Rule 41 of the 1997 Rules of Civil Procedure
Q: What is a motion for reconsideration? states that the appeal shall be taken within 15 days
from notice of judgment or final order appealed
A: A motion for reconsideration under Rule 37 is from. The order denying the motion for new trial or
one that is directed against a judgment or a final reconsideration is the “final order” (Fresh period
order. It is not the motion for reconsideration of an rule) (Neypes v. CA, G.R. No. 141524, Sept. 14,
interlocutory order which for instance precedes a 2005).
petition for certiorari.
2. APPEALS IN GENERAL
Q: What is the purpose of a MR?
Q: Is the right to appeal part of due process?

CIVIL PROCEDURE
A: The right to appeal is not part of due process but RTC in its original appeal beyond that
a mere statutory privilege that has to be exercised jurisdiction, notice of period)
only in the manner and in accordance with the appeal to the RTC must
provisions of law (Stolt- Nielsen v. NLRC, GR No. disclose where appeal is to
147623, December 13, 2005). be taken. (Sec 5, rule 41)
Period available is 15 days If required, the
Q: What are the basic guidelines as regards before the judgment appellant has 30 days
appeal? becomes final and executor to file and serve both
notice and record on
appeal.
A:
Should indicate: If required, copies of
a. No trial de novo shall be made. The
1.Parties to the appeal; both the notice of
appellate courts must decide the case on the
2.Judgment or final order or appeal and the record
basis of the record, except when the part thereof appealed from; on appeal shall be filed
proceedings were not duly recorded as when 3.Material dates showing the In court and served to
there was absence of a qualified stenographer timeliness of the appeal the adverse party.
(Sec. 22[d], BO 129; Rule 21[d], Interim Rules);
b. There can be no new parties; Q: What are those cases which allow multiple
c. There can be no change of theory (Naval vs. appeals?
CA, 483 SCRA 102);
d. There can be no new matters (Ondap vs. A: The civil cases which admit of multiple appeals
Aubga, 88 SCRA 610); are:
e. There can be amendments of pleadings to 1. Actions for recovery of property with
conform to the evidence submitted before the accounting;
trial court (Dayao vs. Shell, 97 SCRA 407); 2. Actions for partition of property with
f. The liability of solidarity defendant who did accounting;
not appeal is not affected by appeal of solidarity 3. Special civil actions of eminent domain
debtor (Mun. of Orion vs. Concha, 50 Phil. 679); and foreclosure of mortgage; and
g. Appeal by guarantor does not inure to the 4. Special proceedings.
principal (Luzon Metal vs. Manila Underwriter,
29 SCRA 184); Q: What is the rationale for allowing multiple
h. In ejectment cases, the RTC cannot award appeals?
to the appellant on his counterclaim more than
the amount of damages beyond the jurisdiction A: To enable the rest of the case to proceed in the
of the MTC (Agustin vs. Bataclan, 135 SCRA event that a separate and distinct issue is resolved
342); by the court and held to be final (Roman Catholic
i. The appellate court cannot dismiss the Archbishop of Manila v. CA, GR No. 111324, July 5,
appealed case for failure to prosecute because 1996).
the case must be decided on the basis of the
record (Rule 21, Interim Rules). a. JUDGMENT AND FINAL ORDERS SUBJECT TO
APPEAL
Q: Distinguish Notice of Appeal from Record on
Appeal? Q: What kind of judgments and final orders are
subject to appeal?
A:
NOTICE OF APPEAL RECORD ON APPEAL A: An appeal may be taken only from judgments or
Deemed perfected as to Required only in
final orders that completely dispose of the case
him upon the filing of the Special Proceedings
(Sec.1, Rule 41). An interlocutory order is not
notice of appeal. and other cases of
appealable until after the rendition of the judgment
multiple or separate
If decision is made by the appeals. on the merits.
courts of 1st level, notice of
appeal need not state the Deemed perfected as b. MATTERS NOT APPEALABLE
court to which the appeal is to him with respect to
being taken (Sec.3, Rule 40) the subject matter Q: What cases are not appealable?
because there is only one thereof upon its
court to which it shall be approval. (30 days is A:
made – RTC the period for filing, 1. Order denying a petition for relief or any
only the court may similar motion seeking relief from judgment;
If decision is made by the approve the record on 2. Interlocutory order;
81
3. Order disallowing or dismissing an appeal; Q: Can the court consider errors not raised in the
4. Order denying a motion to set aside a assignment of errors?
judgment by consent, confession or
compromise on the ground of fraud, A:
mistake or duress, or any other ground GR: No. The court as a rule shall not consider errors
vitiating consent; not raised in the assignment of errors
5. Order of execution;
6. Judgment or final order for or against one or XPN: Sec. 5, Rule 51 precludes its absolute
more of several parties or in separate application. The court may consider an error not
claims, counterclaims, cross-claims and raised on appeal provided the same falls within any
third-party complaints, while the main case of the following categories:
is pending, unless the court allows an appeal
therefrom; and a. It is an error that affects the jurisdiction
7. Order dismissing an action without over the subject matter;
prejudice (Sec. 1 as amended by A.M. No. b. It is an error that affects the validity of
07-7-12-SC). the judgment appealed from;
c. It is an error which affects the
Note: The order denying a motion for new trial or proceedings;
reconsideration has been deleted from the list by d. It is an error closely related to or
virtue of A.M. No. 07-7-12-SC. dependent on an assigned error and
properly argued in the brief; or
Q: Can a question that was never raised in the e. It is a plain and clerical error.
courts below be allowed to be raised for the first
time on appeal? Q: What is the basis of the court’s power to rule
on such issues not raised on appeal?
A:
GR: No. A question that was never raised in the A: The court is imbued with sufficient authority and
courts below cannot be allowed to be raised for the discretion to review matters, not otherwise
first time on appeal without offending basic rules of assigned as errors on appeal, as it finds that the
fair play, justice and due process (Bank of consideration is necessary in arriving at a complete
Commerce vs. Serrano, 451 SCRA 484). For an and just resolution of the case or to serve the
appellate court to consider a legal question, it interest of justice or to avoid dispensing piecemeal
should have been raised in the court below (PNOC justice (Asian Terminals, Inc. v.NLRC, 541 SCRA 105,
vs. CA, 457 SCRA 32). It would be unfair to the 2007).
adverse party who would have no opportunity to
present evidence in contra to the new theory, c. REMEDY AGAINST JUDGMENTS AND ORDERS
which it could have done had it been aware of it at WHICH ARE NOT APPEALABLE
the time of the hearing before the trial court. it is
true that this rule admits of exceptions as in cases Q: What is the remedy in cases where appeal is
of lack of jurisdiction, where the lower court not allowed?
committed plain error, where there are
jurisprudential developments affecting the issues, A:
or when the issues raised present a matter of public GR: In those instances where the judgment or final
policy (Baluyot vs. Poblete, GR 144435, Feb. 6, order is not appealable, the aggrieved party may
2007). file the appropriate special civil action under Rule
65 (Sec. 1 Rule 41).
XPNs: The rule admits of exceptions as in cases of:
a. Lack of jurisdiction; XPN: An order denying a motion for new trial or a
b. Where the lower court committed plain motion for reconsideration may no longer be
error; assailed by way of Rule 65 as per A.M. No. 07- 7-
c. Where there are jurisprudential 12, the proper ground is to appeal from the
developments affecting the issues, or judgment (Sec. 9, Rule 37).
when the issues raised present a matter
of public policy (Baluyot v. Poblete GR No. d. MODES OF APPEAL
144435, February 6, 2007).
Q: What are the different modes of appeal?
A:
1. Ordinary appeal (Rule 40 and 41)

CIVIL PROCEDURE
a. Notice on appeal 2. Petition for review (Rule 42, 43)

b. Record on appeal 3. Appeal by certiorari(Rule 45)
Q: Distinguish the following modes of appeal.
A:
MODE OF APPEAL PERIOD OF APPEAL PERIOD OF APPEAL IF A MR ISSUES THAT MAY BE
OR MNT WAS FILED RAISED
(Neypes Doctrine)
Ordinary Appeal (MTC to RTC)
Rule 40
a. Notice of Appeal Within 15 days after notice
to the appellant of the Within 15 days from receipt Questions of fact or
judgment or final order of the order denying motion mixed questions of fact
appealed (Sec 2. Rule 40). for reconsideration or new and law.
trial.
b. Record of Appeal Within 30 days after notice
of the judgment or final
order (Sec 2. Rule 40).
Ordinary Appeal (RTC to CA)
Original Jurisdiction Rule 41 Questions of fact or of
a. Notice of Appeal Within 15 days after notice law or mixed question of
to the appellant of the Within 15 days from receipt fact and law that has
judgment or final order of the order denying motion been raised in the court
appealed (Sec 3. Rule 41). for reconsideration or new below and is within the
trial. issues framed by the
b. Record of Appeal Within 30 days after notice parties (Sec. 15, Rule 44).
order (Sec 3. Rule 41).
Note: appeal in habeas

corpus cases shall be taken
within 48 hours from notice
order appealed from (AM
No. 01-1-03-SC, June 19,
2001)
Petition for Review (RTC to CA) Within 15 days from notice Questions of fact, of law,
Appellate Jurisdiction Rule 42 of the decision to be or mixed questions of fact
reviewed or from the denial and law
of a MR or new trial (Sec. 1
Rule 42). Within 15 days from receipt
Note: The court may grant of the order denying motion
an additional period of 15 for reconsideration or new
days provided the extension trial.
is sought:
a. Upon proper motion;
and
b. Upon payment of the
full amount of the
docket and other lawful
fees before the
expiration of the
reglementary period.
Petition for Review (Quasi- Within 15 days from receipt Within 15 days from receipt Questions of fact, of law,
Judicial Bodies to CA) of judgment or final order or of the order denying motion or mixed questions of fact
Rule 43 of last publication (Sec. 4, for reconsideration or new and law (Sec. 3, Rule 43).
Rule 43). trial. Note: The appeal shall not
stay the award, judgment,
final order unless the CA
directs otherwise (Sec. 12,
Rule 43).
83
Petition for Review on Within 15 days from notice Within 15 days from receipt
Certiorari of the judgment, final order of the order denying motion
Rule 45 or resolution appealed from, for reconsideration or new
1. RTC to SC (Sec 2c, or within 15 days from notice trial Only questions of law
Rule 41); of the denial of the (Sec. 1, Rule 45).
2. CA to SC (Sec. 1, petitioner’s motion for new
Rule 45); trial or motion for
3. Sandiganbayan to SC reconsideration filed in due
(Sec. 1, Rule 45); time (Sec. 2, Rule 45).
4. CTA en banc to SC Note: The SC may for
(Sec. 11, RA 9282; justifiable reason grant an
Sec. 1 Rule 45 as extension of 30 days only
amended by AM No. within which to file the
07- 7-12- SC); petition provided:
5. Appeals from a a. There is a motion for
judgment or final extension of time duly
order in a petition filed and served;
for a writ of amparo b. There is full payment of
to the SC (AM No. the docket and other
07-9-12- SC); and lawful fees and the
6. Appeals from a deposit for costs; and
judgment or final c. The motion is filed and
order in a petition served and the
for a writ of Habeas payment is made
Data (AM No. 08-1- before the expiration of
16-SC). the reglementary
period (Sec. 2, Rule 45).
Note: This fresh period rule applies Rule 40,41,42,43, and 45. Accordingly, this rule was adopted to standardize the
appeal periods provided in the Rules to afford fair opportunity to review the case and, in the process, minimize errors of
judgment. Obviously, the new 15 day period may be availed of only if either motion is filed; otherwise, the decision
becomes final and executory after the lapse of the original appeal period provided in Rule 41. (Neypes vs. CA, GR
141524, Sept. 14, 2005)
BEFORE FINALITY OF JUDGMENT

(1) ORDINARY APPEAL
(2) PETITION FOR REVIEW
(3) PETITION FOR REVIEW ON CERTIORARI
Q: Distinguish an ordinary appeal from a petition for review.
A:
Ordinary Appeal Petition for Review
A matter of right Discretionary
All the records are elevated from the court of origin No records are elevated unless the court decrees it
Notice or record on appeal is filed with the court of origin Filed with the CA
As to duration of residual powers: Until the records are As to duration of residual powers: Until the CA gives due
transmitted to the appellate court. course to the petition.
Q: Distinguish Rule 45, Rule 64 and Rule 65.
A:
Review of Judgments, Final
Appeal by Certiorari(Rule 45) Petition for Certiorari(Rule 65)
Orders or Resolutions (Rule 64)
Petition is based on questions of
jurisdiction, that is, whether the
Petition is based only on questions of Petition is based on questions of
lower court acted without
law. law.
jurisdiction or in excess of jurisdiction
or with grave abuse of discretion.
It is a mode of appeal but the
It is a mode of appeal. It is a mode of review.
petition used is Rule 65.

CIVIL PROCEDURE
Involves review of judgments, May be directed against an

Involves the review of the judgment
final orders or resolutions of interlocutory order of a court or
final orders or resolutions of the CA,
COMELEC and COA. where there is no appeal or any
Sandiganbayan, CTA, RTC or other
Note: CSC judgments, final orders or other plain, speedy or adequate
courts on the merits
resolutions are governed by Rule 43 remedy.
Filed within 15 days from notice of Filed within 30 days from notice of Filed not later than 60 days from
judgment, final order or resolution judgment, final order or notice of judgment, order or
appealed from. resolution sought to be reviewed. resolution appealed from.
Does not stay the execution Unless a writ of preliminary
Stays the judgment or order appealed unless SC shall direct otherwise injunction or temporary restraining
from upon such terms as it may deem order is issued, it does not stay the
just. challenged proceeding
The judge, court, quasi-judicial
The appellant and the appellee are
The COMELEC and COA shall be agency, tribunal, corporation, board,
the original parties to the action, and
public respondents who are officer or person shall be public
the lower court or quasi-judicial
impleaded in the action. respondents who are impleaded in
agency is not impleaded.
the action.
Motion for reconsideration or for
The filing of MNT or MR, if new trial is required.
Motion for reconsideration is not allowed under the procedural If a motion for reconsideration or
required. rules of the Commission, shall new trial is filed, another 60 days
interrupt period fixed. shall be given to the petitioner (A.M.
No. 02-03-SC)
The court is in the exercise of its The court is in the exercise of its
appellate jurisdiction and power of appellate jurisdiction and power Court exercises original jurisdiction.
review. of review.
Filed with the RTC, CA,
Filed with the SC. Filed with the SC. Sandiganbayan or COMELEC. (1991,
1998, 1999 Bar Question)
e. ISSUES TO BE RAISED ON APPEAL Procedure: A Restatement for the Bar, pp.

445-446, 2009 ed.)
Q: What issues are to be considered in appeal?
f. PERIOD OF APPEAL
A:
GR: Only errors assigned in the brief may be Q: What is the period to appeal?
considered on appeal
A: Within 15 days from notice of the judgment or
XPNs: final order appealed from.
1. Grounds not assigned as errors but affecting
the jurisdiction over the subject matter Where record on appeal is required: Within 30 days
2. Matters not assigned as errors on appeal but from notice of the judgment or final order. In
are evidently plain or clerical errors within habeas corpus cases, 48 hours from notice of
the contemplation of law; judgment or final order appealed from.
3. Matters not assigned as errors on appeal but
consideration of which is necessary in arriving Note: Where both parties are appellants, they may file
at a just decision and complete resolution of a joint record on appeal (Sec. 8, Rule 41). The period
the case or to serve the interest of justice or shall be interrupted by a timely Motion for New Trial
to avoid dispensing piecemeal justice; or Motion for Reconsideration.
4. Matters not specifically assigned as errors on
appeal but raised in the trial court and are Q: May a period of appeal be extended?
matters of record having some bearing on the
A: Yes, under the sound discretion of the court. The
issue submitted which the parties failed to
mere filing of the motion for extension of time to
raise or which the lower court ignored;
perfect the appeal does not suspend the running of
the reglementary period.
closely related to an error assigned; and
Q: What is the effect if the extension of the period
upon which the determination of a question
to appeal is granted/denied?
properly assigned is dependent. (Riano, Civil
85
A: If granted, and the notice thereof is served Q: What is the effect of judgment on those who
AFTER the expiration of the period to appeal, the failed to appeal?
extension must be computed from the date of A:
notice. 1. As to affirmative relief – an appellee who
has himself not appealed may not obtain
Note: If no action is taken on the motion for extension, from the appellate court any affirmative
or if it is denied after the lapse of the period to appeal, relief other than what was granted in the
THE RIGHT TO APPEAL IS LOST. decision of the lower court
g. PERFECTION OF APPEAL 2. As to reversal of judgment

GR: Binding only on the parties in the appealed
Q: When is an appeal perfected? What is its case and does not affect or inure to the benefit
effect? of those who did not join or were not made
A: parties to the appeal
1. Appeal by notice of appeal – perfected as
to the party upon filing of the notice of XPN: Where the rights of the parties appealing
appeal in due time and upon payment of are so interwoven and dependent on each other
the appellate court docket fee. as to be inseparable, in which case a reversal as
to one operates as a reversal to all.
Effect: the court loses jurisdiction
over the case upon the perfection of Note: Even if the appeal was filed out of time, the
the appeal filed in due time and the court still has jurisdiction to admit and give due course
expiration of the time to appeal of to it, PROVIDED there are justifiable reasons (e.g. in
the other parties the exercise of the equity jurisdiction of the courts,
where a stringent application of the rule would not
2. Appeal by record on appeal – perfected as serve the demands of substantial justice). This is
to the party with respect to the subject tantamount to a valid order granting the extension if
matter thereof upon the approval of the any is prayed for.
record on appeal filed in due time and
upon payment of the appellate court Q: Is the perfection of an appeal jurisdictional?
docket fee.
A:
Effect: The court loses jurisdiction GR: Yes. Perfection of appeal within the
only over the subject matter upon reglementary period is jurisdictional.
the approval of the records on
appeal filed in due time and the XPN: When there has been extrinsic fraud,
expiration of the time to appeal of accident, mistake, or excusable negligence
the other parties (FAME), resort to Petition for relief from
judgment under rule 38. (Habaluyas v. Japson,
3. Appeal by petition for review – upon the 142 SCRA 208 (1986)).
timely filing of a petition for review and
the payment of the corresponding docket Q: What is the effect of a perfected appeal?
and other lawful fees, the appeal is
deemed perfected as to the petitioner. A:
GR: Judgment is not vacated by appeal, but is
Effect: RTC loses jurisdiction over the merely stayed and may be affirmed, modified
case upon the perfection of the or reversed or findings of facts or conclusions
appeal and the expiration of the time of law may be adopted by reference.
to appeal of the other parties.
XPN: Not applicable to civil cases under the
Note: In either case, prior to the transmittal of the Rules on Summary Procedure which provides
original record or record on appeal to the appellate that the decision of the RTC in civil cases
court, the trial court may, motuproprio or on motion, governed by said Rule including forcible entry
dismiss the appeal for having been taken out of time and unlawful detainer cases, shall be
or for non-payment of the docket and other lawful immediately executory without prejudice to a
fees on time. The court may also exercise its residual further appeal that maybe taken therefrom.
powers.
Q: Would non- payment of docket fees result to
the dismissal of the case?

CIVIL PROCEDURE
A: Q: Where to appeal from a judgment or final order

GR: Payment of docket fee is jurisdictional. Without of a Municipal Court?
such payment, the appellate court does not acquire
jurisdiction over the subject matter of the action A: An appeal from a judgment or final order of
and the decision sought to be appealed from Municipal Trial Court may be taken to the Regional
becomes final and executory (Regalado v. Go, GR Trial Court exercising jurisdiction over the area to
No. 167988, February 6, 2007). which the former pertains (Section 1, Rule 40).
However: the rule must be qualified: Q: When should the appeal be taken?
1. The failure to pay appellate court docket
fee within the reglementary period allows A:
only discretionary dismissal, not 1. An appeal may be taken within 15 days after
automatic dismissal, of the appeal; notice to the appellant of the judgment or
2. Such power should be used in the final order appeals from (Section 2, Rule 40);
exercise of the court’s sound discretion 2. Where a record of appeal is required, the
(Republic v. Spouses Luriz, GR No. 158992, appellant shall file a notice of appeal and a
January 26, 2007). record on appeal within 30 days after notice
of the judgment or final order (Section 2, Rule
h. APPEAL FROM JUDGMENTS OR FINAL ORDERS 40).
OF THE MTC
Q: How should the RTC decide an appeal from an
Q: Discuss the procedure of appeal from decisions order of a lower court dismissing a case without
of the MTC to the RTC. trial or those rendered without jurisdiction?
A: A:
1. If the lower court dismissed the case without
Appeal decision of MTC by filing notice of appeal
trial on the merits, RTC may:
within 15 days or 30 days where a record on
a) Affirm- in such case, it is a declaration of
appeal is required from receipt of judgment.
the merits of the dismissal;
b) Affirm and the ground of dismissal is lack
of jurisdiction over the subject matter –
Copies of the notice, and record on appeal when the action of the RTC is a mere
required, shall be served on the adverse party. affirmation of the dismissal. The RTC shall
try the case on the merits as if the case
was originally filed with it;
c) Reverse – it shall remand the case for
The MTC clerk transmits record to the RTC further proceedings.
within 15 days from perfection of appeal. 2. If the case was tried on the merits by the lower
court without jurisdiction over the subject
matter, the RTC shall not dismiss the case if it
has original jurisdiction, but shall decide the
Parties are given notice that the records case, and shall admit amended pleadings and
have been received by the RTC.
additional evidence (Sec. 8, Rule 40).
Q: What if the case is dismissed for lack of

1. Within 15 days from notice of appeal – jurisdiction?
appellant submits memorandum to the RTC.
2. Within 15 days from receipt of appellant’s A: The order of dismissal is one without prejudice
memorandum – appellee files his and the plaintiff may simply refile the complaint in
memorandum. the court with the proper jurisdiction because:
GR: The order dismissing an action without
prejudice is not appealable (Section 1g, Rule 41)
Note: Failure of the appellant to file a memorandum
shall be a ground for the dismissal of the appeal. XPN: Section 8, Rule 40 allows an appeal from an
order of the MTC dismissing a case for lack of
jurisdiction.
87
i. APPEAL FROM JUDGMENTS OR FINAL ORDERS

OF THE RTC Within 30 days after perfection of the appeals, the
RTC clerk shall verify the records and transmit the
Q: What are the three modes of appeal from the same to the appellate court and shall furnish the
decisions of the RTC? parties with copies of his letter of transmittal of
the records to the appellate court
A:
1. Ordinary appeal or appeal by writ of error
.
– where judgment was rendered in a civil
or criminal action by the RTC in the Upon receipt of the original records and documents
exercise of original jurisdiction (governed and upon payment of docket fees, the clerk of court
by Rule 41, taken to the CA on questions of the CA shall docket the case and notify the parties
of fact or mixed questions of fact and
law);
2. Petition for review – where judgment was
rendered by the RTC in the exercise of Within 45 days from the receipt of the notice of the
appellate jurisdiction (governed by Rule clerk of court, the appellant shall file a brief with
42, brought to the CA on questions of proof of service to the appellant
fact, of law, or mixed questions of fact
and law); or
3. Petition for review on certiorari – to the Within 45 days from the receipt of the appellant’s
SC (governed by Rule 45, elevated to the brief, the appellee shall file his own brief with proof
SC only on questions of law). of service to the appellant
Note: Rule 41 refers to appeals from RTC exercising

original jurisdiction. An appeal on pure questions of
law cannot be taken to the CA and such improper Within 20 days from the receipt, the appellant may
appeal will be dismissed pursuant to Sec. 2, Rule 50 file a reply brief
(Regalado, Remedial Law Compendium, Vol. 1, p. 526,
2007 ed.).
Note: In petitions for certiorari, prohibition,
ORDINARY APPEAL OR APPEAL BY WRIT OF ERROR mandamus, quo warranto and habeas corpus cases,
FROM THE RTC TO THE CA briefs are not filed. Instead the parties shall file their
memoranda within a non- extendible period of 30 days
Q: What may be the subject of an appeal under from the receipt of notice that all the evidences are
Rule 41? already attached to the record (Sec 10, Rule 44).
A: An appeal may be taken from a judgment or final Q: What is the title of the case when appealed to
order that completely disposes of the case or of a the CA under Rule 41?
particular matter therein when declared by the
Rules to be appealable (Section 1, Rule 41). A: In all cases appealed to the CA under Rule 41, the
title of the case shall remain as it was in the court of
Q: When does Rule 41 on Ordinary Appeal apply? origin but the party appealing the case shall be
referred to as the appellant and the adverse party
A: Rule 41 applies to appeals from the judgment or appellee (Sec 1. Rule 44).
final orders of the RTC in the exercise of its original
jurisdiction (Section 2a, Rule 41). Q: Distinguish a brief from a memorandum.
Q: Discuss the procedure of appeal from decisions A:

RTC to the CAunder Rule 41? Brief Memorandum
Ordinary Certiorari, prohibition, mandamus, quo
A: appeals warranto and habeas corpus cases
Filed within
Appeal the decision of the RTC by filing notice of Filed within 30 days
45 days
appeal within 15 days or 30 days where a record
Shorter, briefer, only one issue
on appeal is required from receipt of judgment Contents
involved – No subject index or
specified by
assignment of errors, just facts and law
rules
applicable
Copies of the notice, and record on appeal when
required, shall be served on the adverse party.

CIVIL PROCEDURE
Q: What are the contents of appellant’s brief? alphabetically arranged, textbooks and
statutes cited with references to the
A: The appellant’s brief shall contain, in the order pages where they are cited;
herein indicated, the following: 2. Under the heading "Statement of Facts,"
the appellee shall state that he accepts
1. A subject index of the matter in the brief the statement of facts in the appellant’s
with a digest of the arguments and page brief, or under the heading "Counter-
references, and a table of cases Statement of Facts," he shall point out
alphabetically arranged, textbooks and such insufficiencies or inaccuracies as he
statutes cited with references to the believes exist in the appellant’s statement
pages where they are cited; of facts with references to the pages of
2. An assignment of errors intended to be the record in support thereof, but without
urged, which errors shall be separately, repetition of matters in the appellant’s
distinctly and concisely stated without statement of facts; and
repetition and numbered consecutively; 3. Under the heading "Argument," the
3. Under the heading "Statement of the appellee shall set forth his arguments in
Case," a clear and concise statement of the case on each assignment of error with
the nature of the action, a summary of page references to the record. The
the proceedings, the appealed rulings and authorities relied on shall be cited by the
orders of the court, the nature of the page of the report at which the case
judgment and any other matters begins and the page of the report on
necessary to an understanding of the which the citation is found (Sec. 14).
nature of the controversy, with page
references to the record; Q: What is the purpose of an appellant’s /
4. Under the heading "Statement of Facts," appellee’s brief?
a clear and concise statement in a
narrative form of the facts admitted by A: To present to the court in a concise form the
both parties and of those in controversy, points and question in controversy, and by fair
together with the substance of the proof argument on the facts and law of the case, to assist
relating thereto in sufficient detail to the court in arriving at a just and proper conclusion/
make it clearly intelligible, with page decision (De Liano v. CA (2006)).
references to the record;
5. A clear and concise statement of the Q: What is meant by Residual Jurisdiction of the
issues of fact or law to be submitted to court?
the court for its judgment;
6. Under the heading "Argument," the A: The term refers to the authority of the trial court
appellant’s arguments on each to issue orders for the protection and preservation
assignment of error with page references of the rights of the parties.
to the record. The authorities relied upon
shall be cited by the page of the report at The concept of residual jurisdiction is available at a
which the case begins and the page of the stage in which the court is normally deemed to
report on which the citation is found; have lost jurisdiction over the case or the subject
7. Under the heading "Relief," a matter involved in the appeal. There is no residual
specification of the order or judgment jurisdiction to speak of where no appeal or petition
which the appellant seeks; and has even been filed (Fernandez v. CA, 458 SCRA
8. In cases not brought up by record on 454).
appeal, the appellant’s brief shall contain,
as an appendix, a copy of the judgment or Q: What are the Residual Jurisdiction/Powers
final order appealed from (Sec. 13, Rule exercised by the trial court?
44).
A:
Q: What are the contents of the appellee’s brief? 1. Issue orders for the protection and
preservation of the rights of the parties
A: The appellee’s brief shall contain, in the order which do not involve any matter litigated
herein indicated, the following: by the appeal.
2. Approve compromise agreements by
1. A subject index of the matter in the brief parties after judgment has been
with a digest of the arguments and page rendered, (there is no rule that forbids
references, and a table of cases
89
litigants to settle amicably even if there is 4. Must be accompanied by clearly

a judgment already) legible duplicate originals or true
3. Permit appeals of indigent litigants. copies of the judgments or final
4. Order execution pending appeal in
orders of both lower courts, certified
accordance with sec. 2, rule 39.
correct by the clerk of court of the
5. Allow withdrawal of appeal.
Regional Trial Court, the requisite
Note: Provided these are done prior to the number of plain copies thereof and of
transmittal of the original record or the the pleadings and other material
record on appeal even if the appeals have portions of the record as would
already been perfected or despite the support the allegations of the
approval of the record on appeal (Section 9,
petition.
Rule 41).
5. There must be a certification against
RULE 42: PETITION FOR REVIEW FROM THE RTC TO forum shopping (Sec. 2, Rule 42).
THE CA
Q: What is the effect of failure to comply with the
Q: When does Rule 42 apply? requirements?
A: Rule 42 applies to an appeal from the judgment A:The failure of the petitioner to comply with
or final order of the RTC to the CA in cases decided any of the foregoing requirements regarding
by the former in the exercise of its appellate the payment of the docket and other lawful
jurisdiction. fees, the deposit for costs, proof of service of
the petition, and the contents of and the
Q: The RTC affirmed the appealed decision of the
MTC. You are the counsel of the defeated party documents which should accompany the
and he tells you to appeal the RTC's decision. petition shall be sufficient ground for the
1. What mode of appeal will you adopt? dismissal thereof (Sec. 3, Rule 45).
2. Within what time and in what court
should you file your appeal? Q: Is a petition for review a matter of right?
A: A: It is not a matter of right but discretionary on the

1. The mode of appeal is by petition for CA. It may only be given due course if it shows on
review under Rule 42 of the Rules of its face that the lower court has committed an error
Court. of fact and/or law that will warrant a reversal or
2. The period of appeal is within 15 days modification of the decision or judgment sought to
from notice of the decision subject of the be reviewed or dismiss the petition if it finds that it
appeal or of the denial of a motion for is patently without merit, or prosecuted manifestly
new trial or reconsideration filed in due for delay, or the questions raised therein are too
time to the CA. (1998 Bar Question) unsubstantial to require consideration. (Sec. 42)
Q: What are the contents of the petition for Q: What are the contents of comment to the
review? petition?
A: A:
1. State whether or not he accepts the
1. State the full names of the parties to
statement of matters involved in the
the case, without impleading the petition;
lower courts or judges thereof either 2. Point out the insufficiencies or
as petitioners or respondents; inaccuracies in petitioner’s statement of
2. Indicate the specific material dates facts and issues; and
showing that it was filed on time; 3. State the reasons why the petition should
3. Set forth concisely a statement of the be denied or dismissed. (Sec. 5, Rule 42)
matters involved, the issues raised,
the specification of errors of fact or Q: Is the doctrine of residual jurisdiction applicable
to Appeals under Rule 42?
law, or both, allegedly committed by
the Regional Trial Court, and the A: Yes, provided that such residual jurisdiction/
reasons or arguments relied upon for power is exercised before the CA gives due course
the allowance of the appeal; to the petition (Section 8, Rule 42).

CIVIL PROCEDURE
Q: What is the effect of an appeal to the judgment 2. Failure to file the notice of appeal or the
or final order? record on appeal within the period
prescribed by the Rules;
A: The appeal, as a rule, shall stay the judgment or 3. Failure of the appellant to pay the docket
final order; unless the CA, the law or the rules shall and other lawful fees as provided in
provide otherwise. Section 5 Rule 40 and Sec. 4 of Rule 41;
4. Unauthorized alterations, omissions or
Note: Civil cases decided under the Rules on Summary additions in the approved record on
Procedure shall not be stayed (Section 8b, Rule 42). appeal as provided in Sec.4 of Rule 44
5. Failure of the appellant to serve and file
Q: Give some instances where the CA may act as a the required number of copies of his brief
trial court. or memorandum within the time
provided by the Rules;
A:
6. Absence of specific assignment of errors
1. In annulment of judgment under Secs. 5
in the appellant’s brief, or of page
and 6, Rule 47. Should the CA find prima
references to the record as required in
facie merit in the petition, the same shall
Sec.13, paragraphs (a), (c), (d) and (f) of
be given due course and summons shall
Rule 44;
be served on the respondent, after which
7. Failure of the appellant to take the
trial will follow, where the procedure in
necessary steps for the correction or
ordinary civil cases shall be observed.
completion of the record within the time
2. When a motion for new trial is granted by
limited by the court in its order;
the CA, the procedure in the new trial
8. Failure of the appellant to appear at the
shall be the same as that granted by a RTC
preliminary conference under Rule 48 or
(Sec. 4, Rule 53).
to comply with orders, circulars, or
3. A petition for habeas corpus shall be set
directives of the court without justifiable
for hearing (Sec. 12, Rule 102).
cause; and
4. In petition for writs of amparo and habeas
9. The fact that the order or judgment
data, a hearing can be conducted.
appealed from is not appealable (En Banc
5. Under Sec. 12, Rule 124 of the Rules of
Resolution, February 17, 1998)
Criminal Procedure, the CA has the power
to try cases and conduct hearings, receive
Note: The grounds are discretionary upon the
evidence and perform any and all acts appellate court. The very wording of the rule uses the
necessary to resolve factual issues which word “may” instead of “shall”. This indicates that it is
fall within its original and appellate only directory and not mandatory. Sound discretion
jurisdiction. must be exercised in consonance with the tenets of
6. The CA can grant a new trial based on the justice and fair play, keeping in mind the
ground of newly-discovered evidence circumstances obtaining in each case (Mercury Drug
(Sec. 14, Rule 124). Corporation vs. De Leon, G.R. No. 165622, October 17,
7. The CA under Sec. 6, Rule 46, whenever 2008.)
necessary to resolve factual issues, may
conduct hearing thereon or delegate the RULE 45: APPEAL BY CERTIORARI TO THE SC
reception of the evidence of such issues
to any of its members or to an Q: Is the appeal under Rule 45 a matter of right?
appropriate agency or office.
8. Human Security Act. (2008 Bar Question) A: An appeal or review under Rule 45 is not a
matter of right, but of sound judicial discretion with
Q: What are the grounds for the Court of Appeals the exception of cases where the penalty of death,
to dismiss an appeal? or reclusion perpetua where the an appeal is a
matter of right leaving the reviewing court without
A: Under Sec.1 Rule 50, the CA, upon its own any discretion (People v. Flores, GR No. 170565,
motion or upon the motion of the appellee an January 31, 2006).
appeal may be dismissed on the following grounds:
Q: When does Appeal by Certiorari under Rule 45
1. Failure of the record on appeal to show apply?
on its face that the appeal was taken
within the period fixed by the Rules; A: Appeal by certiorari to the Supreme Court or
petition for review on certiorari applies in the
following cases:
91
1. Appeal from a judgment or final order of but only from judgments and final orders of the
the RTC in cases where only questions of court enumerated in Sec. 1 thereof. Appeals from
law are raised or are involved and the judgments and final orders of quasi-judicial
case is one decided by the said court in agencies are now required to be brought to the CA
the exercise of its original jurisdiction on a verified petition for review, under the
(Section 2c, Rule 41); requirements and conditions in Rule 43 which was
2. Appeal from the judgment, final order or precisely formulated and adopted to provide for a
resolutions of the Court of Appeals where uniform rule of appellate procedure for quasi-
the petition shall raise only questions of judicial agencies. (Fabian v. Desierto, G.R. No.
law (Section 1, Rule 45); 129742, Sept. 16, 1998)
3. Appeal from the judgment, final order or
resolutions of the Sandiganbayan where Q: Is the mode of appeal prescribed under Rule 45
the petition shall raise only questions of applicable to criminal cases?
law (Section 1, Rule 45);
4. Appeals from the decision or ruling of the A: Yes. Except in criminal cases where the penalty
Court of Tax Appeals en banc (Section 11, imposed is death, reclusion perpetua or life
RA 9282; Section 1, Rule 45 as amended imprisonment (Section 9, Rule 45).
by AM No, 07-7-12-SC);
5. Appeals from a judgment or final order in Q: Can a case decided by the RTC in the exercise of
a petition for writ of amparo to the its appellate jurisdiction be appealed by way of a
Supreme Court which may raise questions petition for review on certiorari under Rule 45?
of fact, questions of law or of both fact
and law (AM No. 08-1-16-SC, Rule on the A: No, where a case is decided by the RTC in the
Writ of Amparo (Section19) October 24, exercise of its appellate jurisdiction, regardless of
2007); whether the appellant raises questions of fact, of
6. Appeal from judgment or final order in a law or mixed questions of fact and law, the appeal
petition for the writ of Habeas Data. The shall be brought to the CA by filing a petition for
appeal may raise questions of fact or law review under Rule 42 (Quezon City v. ABS-CBN
or both (AM No. 08-1-16-SC, Rule on the Broadcasting Corporation, GR No. 166408 October
Writ of Habeas Data (Section 19) February 6, 2008).
2, 2008).
Q: Discuss the procedure for filing an appeal by
Q: When is there a question of law? How does it
certiorari.
differ from a question of fact?
A: There is a question of law when the doubt or A:

difference arises as to what the law is on a certain RTC, Sandiganbayan or RTC renders decision.
set of facts.
A question of fact on the other hand is when the Aggrieved party files a petition for review on
doubt or difference arises as to the truth or certiorari within 15 days from notice of final
falsehood of the facts alleged. judgment or order of lower court or notice of denial
of motion for reconsideration or new trial.
Q: May a petition for review on certiorari include
prayer for the grant of provisional remedies?
Petitioner serves copies on adverse parties and the
A: The petition for review on certiorari may include lower court and pays the corresponding docket fees.
an application for a writ of preliminary injunction or
other provisional remedies. The petitioner may also
seek the same provisional remedies by verified SC may either dismiss the petition, or require the
motion filed in the same action or proceeding at appellee to comment.
any time during its pendency (Sec. 1, Rule 45 as
amended by A.M. No. 07-7-12-SC). If given due course, parties may submit memoranda.
Q: Does Rule 45 include appeals from quasi-
judicial bodies? SC may affirm, reverse, or modify judgment of the
lower court.
A: No. Under the present Rule 45, appeals may be
brought through a petition for review on certiorari

CIVIL PROCEDURE
With the SC (Section 5 (1)

Article VIII, 1987
Within 20 days from the receipt, the appellant may Constitution).
file a reply brief
Q: When may the SC, on its own initiative, deny

Note: the petition shall raise only questions of law,
the petition for review?
which must be distinctly set forth. Appeals to the SC
are made only by verified petitions for review on
A:
certiorari,
1. The appeal is without merit;
XPN: appeals from judgements of the RTC in criminal 2. Prosecuted manifestly for delay; or
cases where the penalty imposed is life imprisonment 3. That the questions raised therein are too
or reclusion perpetua (elevated by ordinary appeal), or unsubstantial to require consideration
death penalty (subject to automatic review). (sec.5, Rule 45)
Q: Distinguish Certiorari under Rule 45 and j. APPEAL FROM JUDGMENT OR FINAL ORDERS OF
Certiorari under Rule 65. THE CA
A: Q: May a reversal of judgment benefit a party who

CERTIORARI (RULE 45) CERTIORARI (RULE 65) did not join or was not made a party to the
Mode of appeal which Special civil action; an appeal?
seeks to review final original action (Rule 65). It
judgments and orders may be directed against an A:
(Section 2, Rule 41) interlocutory order or GR: The reversal of a judgment on appeal is
matters where no appeal generally binding only on the parties in the
may be taken from (Section appealed case and does not affect or inure to
1, Rule 41) the benefit of those who did not join or were
Raises questions of law Raises questions of not made parties to the appeal.
jurisdiction
It shall be filed within It shall be filed not later XPN: Where the rights of such parties are so
15 days from notice of than 60 days from notice of interwoven and dependent on each other as to
judgment or final order judgment, order or be inseparable due to community of interests.
appealed from resolution sought to be
assailed and in case a MR Q: When may the SC review the findings of fact of
or motion for new trial is
the CA?
timely filed, whether such
motion is required or not,
A:
the 60 day period shall be
GR: CA’s findings of fact are final and conclusive
counted from the notice of
denial of said motion
and cannot be reviewed on appeal to the SC.
Does not require prior Requires as a general rule, The SC shall not entertain questions of fact
motion for a prior MR because its jurisdiction is limited to reviewing
reconsideration errors of law (Natividad v. MTRCB, GR No.
Stays the judgment Does not stay the 161422, December 13, 2007).
sought to be appealed judgment or order subject XPNs:
of the petition unless 1. The conclusion of the CA is grounded
enjoined or restrained. entirely on speculations, surmises
The parties are the The tribunal, board, officer and conjectures;
original parties with the exercising judicial or quasi- 2. The inference made is manifestly
appealing party as the judicial functions is mistaken, absurd or impossible;
petitioner and the impleaded as respondent 3. There is grave abuse of discretion;
adverse party as (Section 5 Rule 65). 4. The judgment is based on
respondent without misapprehension of facts;
impleading the lower 5. The findings of facts are conflicting;
court or its judge 6. The CA in making its findings went
(Section 4a, Rule 45). beyond the issues of the case and
Filed with the SC Filed with the RTC (Section the same is contrary to the
(Section 1, Rule 45). 21, BP 129);
admissions of both appellant and
With the CA (Section 9, BP
appellee;
129);
93
7. The findings are contrary to those of A: A judgment, resolution or final order of the
the trial court; COMELEC and the COA may be brought by the
8. The findings of facts are conclusions aggrieved party to the SC on certiorari under Rule
without citation of specific evidence 65 by filing the petition within 30 days from notice
on which they are based; (Sec. 2, Rule 64).
9. The facts set forth in the petition as
well as in the petitioner’s main and On the other hand, judgments, final orders or
reply briefs are not disputed by the resolutions of the CSC may be taken to the CA
respondents; under Rule 43 of the Rules of Court (Sec. 1, 3 Rule
10. The findings of fact of the CA are 43).
premised on the supposed absence
of evidence and contradicted by the o. REVIEW OF FINAL JUDGMENTS OR FINAL
evidence on record; or ORDERS OF THE OMBUDSMAN
11. Those filed under Writs of amparo,
habeas data, or kalikasan. Q: Does the CA have jurisdiction to review the
decisions in criminal and administrative cases of
k. APPEAL FROM JUDGMENTS OR FINAL ORDERS the Ombudsman?
OF THE CTA
A: It depends
Q: Where should the appeal from the decision of
the CTA en banc be taken? 1. In administrative disciplinary cases, the
rulings of the Office of the Ombudsman
A: A party adversely affected by a decision or ruling are appealable to the CA under Rule 43.
of the CTA en banc may file with the SC a verified
Note: The provision of Section 27 of RA 6770 (The
petition for review on certiorari pursuant to Rule 45
Ombudsman Act of 1987) insofar as it allowed a
(Sec. 12, R.A. 9282; A.M. No. 07-7-12-SC).
direct appeal to the Supreme Court was declared
unconstitutional as it increased the appellate
Q: Melissa filed with the BIR a complaint for
jurisdiction of the SC without the advice and
refund of taxes paid, but it was not acted upon. concurrence of the Court (Fabian v. Deseirto, 356
So, she filed a similar complaint with the CTA SCRA 787).
raffled to one of its divisions. Melissa's complaint
was dismissed. Thus, she filed with the CA a 2. In criminal cases, the ruling of the
petition for certiorari under Rule 65. Does the CA Ombudsman shall be elevated to the SC
have jurisdiction over Melissa's petition? by way of Rule 65. Where the findings of
the ombudsman on the existence of
A: No. A decision of a division of the CTA is probable cause in criminal cases is tainted
appealable within 15 days to the CTA en banc. On with grave abuse of discretion amounting
the other hand, a party adversely affected by a to lack or excess of jurisdiction, the
decision or ruling of the CTA en banc may file with aggrieved party may file a petition for
the SC a verified petition for review on certiorari certiorari with the SC under Rule 65
pursuant to Rule 45 of the Rules of Court. (Enemecio vs. Office of the Ombudsman,
419 SCRA 82)
R.A. 9282 expanded the jurisdiction of the CTA and
elevated the same to the level of a collegiate court Q: What is the remedy of a party aggrieved by the
equivalent to the rank of the CA. Hence, the CA no decision of the Sandiganbayan?
longer has jurisdiction to review the decisions of
the CTA en banc. (2006 Bar Question) A: Decisions and final orders of the Sandiganbayan
shall be appealable to the SC by way of certiorari
l. REVIEW OF FINAL JUDGMENTS OR FINAL under Rule 45 raising pure questions of law (Section
ORDERS OF THE COA 1, Rule 45).
m. REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF THE COMELEC p. REVIEW OF FINAL JUDGMENTS OR FINAL
n. REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE NLRC
ORDERS OF THE CSC
Q: What is the remedy of a party aggrieved by the
Q: What is the remedy of a party aggrieved by the decision of the NLRC?
decision of the COMELEC, COA and CSC?
A: The remedy is to promptly move for the
reconsideration of the decision and if denied, to

CIVIL PROCEDURE
timely file a special civil action of certiorari under A: Appeals from judgment and final orders of quasi-
Rule 65 within 60 days from notice of the decision. judicial bodies/ agencies enumerated in Rule 43 are
In observance of the doctrine of hierarchy of courts, now required to be brought to the CA under the
the petition for certiorari should be filed in the CA requirements and conditions set forth in Rule 43
(St. Martin Funeral Homes vs. NLRC, G.R. No. (Carpio v. Sulu Resource Dev. Corp., 387 SCRA 128).
130866, September 16, 1998). If filed with SC it shall
be dismissed instead of referring the action to the Q: What issues may be raised on appeal?
CA (A.M. No. 99-2-01-SC).
A: The appeal under Rule 43 may raise issues
Note: Those judgments and final orders or resolutions involving questions of fact, of law or mixed
of the Employees Compensation Commission should questions of fact and law (Section 3, Rule 43).
be brought to the CA through a petition for review
under Rule 43. Q: What are the contents of comment to the
petition and when must it be filed?
q. REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF QUASI- JUDICIAL AGENCIES A: The comment shall be filed within 10 days from
notice in 7 legible copies and accompanied by
Q: What is a quasi-judicial agency? clearly legible certified true copies of such material
portions of the record referred to therein together
A: An organ of the government other than a court with other supporting papers.
and other than a legislature, which affects the
rights of private parties through either adjudication The comment shall:
or rule-making. 1. Point out the insufficiencies or
inaccuracies in petitioner’s statement of
Q: What are the agencies included under Rule 43? facts and issues; and
2. State the reasons why the petition should
A: be denied or dismissed. (Sec. 9 Rule 43)
1. Civil Service Commission;
2. Central Board of Assessment Appeals; Note: The appellate court may also require the filing of
3. Securities and Exchange Commission; a reply, but further submissions are governed by the
4. Office of the President; resolution in AM No. 99-2-04.
5. Land Registration Authority;
6. Social Security Commission; Q; What is the effect of the appeal on the award,
7. Civil Aeronautics Board; judgment, final order or resolution?
8. Bureau of Patents, Trademarks and
Technology Transfer; A: The appeal shall not stay the award, judgment,
9. National Electrification Administration; final order or resolution sought to be reviewed
10. Energy Regulatory Board; unless the CA shall direct otherwise upon such
11. National Telecommunications terms as it may deem such (Section 12, Rule 43).
Commission;
12. Department of Agrarian Reform under Q: What is the remedy of a party aggrieved by the
R.A. 6657; decision of a Quasi-judicial Agency?
13. GSIS;
14. Employee Compensation Commission; A: Within 15 days from:
15. Agricultural Inventions Board; 1. Notice of the award, judgment, final order
16. Insurance Commission; or resolution; or
17. Philippine Atomic Energy Commission; 2. Date of publication, if publication is
18. Board of Investments; required by law for its effectivity; or
19. Construction Industry Arbitration 3. Denial of petitioner’s MNT or MR, the
Commission; and aggrieved party must file a verified
20. Voluntary Arbitrators authorized by law petition for review under rule 43 in 7
(Sec. 1 Rule 43). legible copies with the CA. Furnish a copy
to the lower court and adverse party. The
Note: The office of the Prosecutor is NOT a quasi- appeal may involve questions of fact, of
judicial body and its action approving the filing of law, or mixed questions of fact and law.
information is not appealable to the CA under Rule 43.
Q: Is extension of time to file petition for review
Q: Where should the judgments and final orders of allowed?
quasi- judicial bodies be appealed?
95
A: Yes. Upon proper motion and the payment of the (Quelnan v. VHF Philippines, G.R. No. 138500, Sept.
full amount of the docket fee before the expiration 16, 2005).
of the reglementary period, the CA may grant
additional period of 15 days only within which to Q: Purcon was hired as a seaman, he was
file a petition for review. No further extension shall repatriated due to his ailment. After undergoing
be granted except for the most compelling reason some medications, he went back to work but was
and in no case to exceed 15 days. (Sec. 4, Rule 43) not re-hired due to lack of vacany. Purcon then
filed a case for reimbursment of medical expenses
Q: Distinguish appeal from RTC as appellate court with the NLRC. The LA dismissed the complaint for
under Rule 42 and appeal from quasi-judicial lack of merit. A memorandum of appeal with the
agencies under Rule 43. NLRC was filed but was dismissed. Petitioner filed
petition for review on certiorari under Rule 65
A: with the CA which was also denied, the MR was
RTC as likewise denied. This prompted the petitioner to
Appellate Appeal from Quasi-judicial agencies file with the SC a petition for review on certiorari
Court (Rule (Rule 43) under Rule 45 which was denied. As a last
42) recourse, petitioner filed a petition for relief from
GR: Decision is immediately judgment. Whether or not the petitioner can avail
Decision is executory. It is not stayed by an of a petition for relief from judgment after the
stayed by an appeal denial of the SC of his petition for review?
appeal. XPN: CA shall direct otherwise upon
such terms as it may deem just A: No. A petition for relief from judgment is not an
Factual available remedy in the Court of Appeals and
Factual findings are conclusive upon Supreme Court. It should be filed with the same
findings not
CA if supported by substantial
conclusive to court which rendered the decision. While Rule 38
evidence.
CA. uses the phrase "any court," it refers only to
Municipal/Metropolitan and Regional Trial Courts.
Q: Is Rule 43 applicable where the resolution was If a petition for relief from judgment is not among
issued by a quasi-judicial agency with grave abuse the remedies available in the CA, with more reason
of discretion? that this remedy cannot be availed of in the
Supreme Court. This Court entertains only
A: No, Rule 43 is not applicable where the petition questions of law. A petition for relief raises
contains an allegation that the challenged questions of facts on fraud, accident, mistake, or
resolution is patently illegal and was issued with excusable negligence, which are beyond the
grave abuse of discretion and beyond respondent’s concerns of this Court (Purcon v. MRM Philippines
jurisdiction. The appropriate remedy is Rule 65 on Inc., GR No. 182718, September 26, 2008).
certiorari.
Q: Distinguish motion for new
Q: When is the withdrawal of an appeal a matter trial/reconsideration from petition for relief from
of right? judgment.
A: As a matter of right, appellant may withdraw his A:

appeal at any time before the filing of the Motion for New Trial / Petition for Relief from
appellee’s brief. Thereafter, it is in the discretion of Reconsideration Judgment
the court. Available before judgment
Available after judgment has
becomes final and
become final and executory.
AFTER FINALITY OF JUDGMENT executory.
Applies to judgments, final
3. RELIEF FROM JUDGMENTS, ORDERS AND OTHER orders and other
PROCEEDINGS Applies to judgments or proceedings:
final orders only. e.g. land registration; special
Q: What is the nature of petition for relief from proceedings; order of
execution.
judgment? What is its purpose?
Grounds for motion for
new trial:
A: It is a legal remedy whereby a party seeks to set Grounds:
1. Fraud, accident,
aside a judgment rendered against him by a court Fraud, accident, mistake or
mistake or excusable
whenever he was unjustly deprived of a hearing or excusable negligence.
negligence;
was prevented from taking an appeal because of 2. Newly discovered
fraud, accident, mistake or excusable neglect

CIVIL PROCEDURE
evidence Note: The bond is conditioned that if the petition is

dismissed or the petitioner fails on the trial of the case
Grounds for motion for upon its merits, he will pay the adverse party all
reconsideration: the damages and costs that may be awarded to him by
damages awarded are reason of issuance of such injunction or the other
excessive; that the proceedings following the petition.
evidence is insufficient to
justify the decision or final a. GROUNDS FOR AVAILING OF THE REMEDY
order, or that the decision
or final order is contrary to Q: What are the grounds for petition for relief?
law (Sec. 1).
Filed within 60 days from A:
knowledge of the judgment 1. A judgment or final order is entered,
Filed within the time to
and within 6 months from or any other proceeding is thereafter
appeal.
entry of judgment(1990 Bar
taken against a party in any court
Question)
The order of denial is not The order of denial is not through fraud, accident, mistake, or
appealable. The remedy is appealable; the remedy is excusable negligence (Sec. 1, Rule
to appeal from judgment appropriate special civil 38); or
or final order. action under Rule 65 2. The petitioner has been prevented from
Legal remedy. Equitable remedy. taking an appeal by fraud, accident,
Motion need not be mistake, or excusable negligence (Sec. 2,
Petition must be verified.
verified. Rule 38).
Note: A party who has filed a timely motion for new Q: Where should the petition be filed?
trial cannot file a petition for relief after the former is
denied. The two remedies are exclusive of one A:
another. The remedy is to appeal from the judgment
1. If the petition is filed because of the first
(Section 9,Rule 38; Francisco v. Puno, 108 SCRA 427).
ground, the petition shall be filed in such
court and in the same case (not in
Q: Who may file the petition for relief from
another or higher court). The petition
judgment?
shall pray that the judgment, order or
A: A petition for relief from judgment together with
proceeding be set aside (Sec. 1, Rule 38).
a motion for new trial and a motion for
2. If the petition is filed under the second
reconsideration are remedies available only to
ground, the petition shall likewise be filed
parties in the proceedings where the assailed
in such court and in the same case (not in
judgment is rendered. A person who was never a
another or higher court) but the prayer
party to the case, or even summoned to appear
this time is that the appeal be given due
therein, cannot avail of a petition for relief from
course (Sec. 2, Rule 38)
judgment. (Alaban v. CA, 470 SCRA 697)
b. TIME TO FILE PETITION
Q: What are the duties of the court after an
answer to the petition has been filed
Q: When should the petition for relief be filed?
A: After the hearing and the court finds the
A:
allegations therein not true, it shall dismiss the
1. Within sixty (60) days after the petitioner
petition.
learns of the judgment, final order, or
other proceeding to be set aside; and
If the allegations are true, the court shall set aside
2. Not more than six (6) months from entry
the judgment, final order or proceeding complained
of such judgment, order or other
of. (Sec. 6, Rule 38)
proceeding (Sec. 3).
Q: Is the remedy of preliminary injunction
Note: These two periods must concur and are also not
available pending the resolution of the petition for
extendible and never interrupted (Riano, Civil
relief?
Procedure: A Restatement for the Bar, p. 479, 2009
ed.).
A: Yes. The court may grant such preliminary
injunction as may be necessary for the preservation Q: May a defendant who has been declared in
of the rights of the parties upon the filing of a bond default right away avail of a petition for relief from
(Sec. 5, Rule 38). the judgment subsequently rendered in the case?
97
A: No. The remedy of petition for relief from remedies are no longer available through no fault of
judgment is available only when the judgment or the petitioner (Sec. 1, Rule 47).
order in question is already final and executory, i.e.,
no longer appealable. As an extraordinary remedy, Q: Who may avail this remedy?
it may be availed only in exceptional cases where
no other remedy is available. (2007 Bar Question) A: A person need not be a party to the judgment
sought to be annulled. What is essential is that he
c. CONTENTS OF THE PETITION can prove his allegation that the judgment was
obtained by the use of fraud and collusion and he
Q: What is the form and contents of the petition would be adversely affected thereby (Islamic
for relief? Da’wah Council v. CA, G.R. No. 80892, Sept. 29,
1989).
A:
1. The petition for relief must be verified; The extraordinary action to annul a final judgment
2. It must be supported by affidavit showing is restricted to the grounds provided by law to
the FAME relied upon; and prevent it from being used by a losing party to
3. The affidavit of merit accompanying the make a mockery of a duly promulgated decision
petition must also show facts constituting that has long become final and executory.
the petitioner’s good or substantial cause
of action or defense. Q: Where should the petition be filed?
Note: An affidavit of merit serves as the jurisdictional A:

basis for the court to entertain a petition for relief. Judgments of RTC Judgments of MTC
However, it is not a fatal defect to warrant a denial of Filed with the CA Filed with the RTC
the petition, so long as the facts required to be set out Basis – It has exclusive
also appear in the verified petition. Basis – RTC as a court of
original jurisdiction over
general jurisdiction
said action under Sec. 9
Q: When shall the court issue an order to answer? under Sec. 19 (6), BP 129
(2), BP 129
CA may dismiss the case
A:When the petition is sufficient in form and RTC has no such
outright; it has the
discretion. It is required
substance to justify relief, the court in which it is discretion on whether or
to consider it as an
filed, shall issue an order requiring the adverse not to entertain the
ordinary civil action.
parties to answer the same within fifteen (15) days petition.
from the receipt thereof (Sec. 4, Rule 38).
a. GROUNDS FOR ANNULMENT
4. ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS Q: What are the grounds for the annulment of
judgment of the RTC?
Q: What is annulment of judgment?
A:
A: It is a remedy in law independent of the case 1. Extrinsic fraud or collateral fraud – not a
where the judgment sought to be annulled was valid ground if it was availed of, or could
rendered. The purpose of such action is to have the have been availed of in a motion for new
final and executor judgment set aside so that there trial or petition for relief.
will be renewal of litigation. 2. Lack of jurisdiction over the subject
matter and over the person – May be
Note: A co-equal court cannot annul the final barred by estoppels by laches, which is
judgment of a similar court. CA has exclusive that failure to do something which should
jurisdiction over actions for annulment of judgments of be done or to claim or enforce a right at a
RTC. An action to annul a judgment or final order of proper time or a neglect to do something
MTC shall be filed in the RTC having jurisdiction in the which one should do or to seek or enforce
former and it shall be treated as an ordinary civil a right at a proper time. (1998 Bar
action. (Secs. 1 &10, Rule 47). Question)
3. Denial of due process (Alaban v. CA, G.R.
Q: When may it be availed of?
No. 156021, Sept. 23, 2005).
A: The remedy of annulment of judgment may be
Q: What is extrinsic fraud?
availed of when the ordinary remedies of new trial,
appeal, petition for relief or other appropriate

CIVIL PROCEDURE
A: Fraud is regarded as extrinsic where it prevents a amount of the dishonored check. The trial court
party from having a trial or from preventing a party ruled in favor of Jenny. Allied remitted to the
from having a trial or from presenting his entire sheriff a manager’s check amounting to P800,000
case to the court, or where it operates upon drawn on Rhea’s account which was duly received
matters pertaining not to the judgment itself but to by Jenny. Rhea filed a petition in the CA seeking to
the manner in which it is procured (Alaban v. CA, annul and set aside the trial court’s decision on the
GR no. 156021, September 23, 2005). ground of extrinsic fraud. The appellate court
granted Rhea’s petition. Is the CA correct?
Q: What is meant by lack of jurisdiction?
A: Yes. Annulment of judgment is a remedy in law
A: Lack of jurisdiction as a ground for annulment of independent of the case where the judgment
judgment refers to either lack of jurisdiction over sought to be annulled is promulgated. It can be
the person of the defending party or over the filed by one who was not a party to the case in
subject matter of the claim. which the assailed judgment was rendered. Here,
Rhea may avail of the remedy of annulment of
b. PERIOD TO FILE ACTION judgment under Rule 47. The ordinary remedies of
new trial, appeal and petition for relief were not
Q: What is the period to file an action? available to her for the simple reason that she was
not made a party to the suit against Allied
A: (Villanueva v. Nite, G.R. No. 148211, July 25, 2006).
1. If based on extrinsic fraud, the action 5. COLLATERAL ATTACK OF JUDGMENTS
must be filed within four (4) years from its
discovery. Q: What is a collateral attack on judgment?
2. If based on lack of jurisdiction, the action
must be brought before the action is A: It is made in another action to obtain a different
barred by laches or estoppel (Sec. 2, Rule relief; an attack on the judgment is made as an
47). incident in said action. This is proper only when the
judgment, on its face is null and void, as where it is
c. EFFECTS OF JUDGMENTS OF ANNULMENT patent that the court which rendered such
judgment has no jurisdiction (Co vs. Court of
Q: What is the effect of a judgment of annulment? Appeals, 196 SCRA 705).
A: If based on lack of jurisdiction- It shall have the Q. EXECUTION, SATISFACTION AND EFFECT OF
effect of setting aside the questioned judgment or JUDGMENTS
final order and rendering the same null and void
but the judgment of annulment is without prejudice Q: What is execution?
to the refilling of the original action in the proper
court (Sec.7, Rule 47) A: It is a remedy provided by law for the
enforcement or satisfaction of a final judgment.
Note: The prescriptive period for the refilling of the
action shall be deemed suspended from the filing of 1. DIFFERENCE BETWEEN FINALITY OF JUDGMENT
such original action until the finality of the judgment of FOR PURPOSES OF APPEAL; FOR PURPOSES OF
annulment. But shall not however, be suspended EXECUTION
where the extrinsic fraud is attributable to the plaintiff
in the original action (Sec. 8, Rule 47).
Q: What is meant by final judgment?
If based on extrinsic fraud- The court, upon motion,
A:
may order the trial court to try the case as if a
1. The term “final” when used to describe a
motion for new trial was granted (Sec. 9, Rule 47).
judgment may be used in two senses. In
the first, it refers to a judgment that
Q: Rhea took out a loan of P1 Million from Jenny.
disposes of a case in a manner that leaves
To secure the loan, Rhea issued Jenny an Allied
nothing more to be done by the court in
check in the amount of P750,000 which, however,
respect thereto. In this sense, a final
was dishonored due to a material alteration. Rhea
judgment is distinguished from an
then remitted P600,000 to Jenny as partial
interlocutory order which does not finally
payment of the loan with the balance payable at a
terminate or dispose of the case (Rudecon
later date. Prior to the due date for the payment
Management Corp. vs. Singson, 454 SCRA
of the balance, Jenny filed an action for a sum of
612).
money and damages against Allied for the full
99
2. In another sense, the word “final” may 1. The judgment has become final and
refer to a judgment that is no longer executory(Section 1, Rule 39);
appealable and is already capable of
being executed because the period for Note: Once a judgment becomes final and
appeal has elapsed without a party having executory, the prevailing party can have it
perfected an appeal or if there has been executed as a matter of right, and the
appeal, it has already been resolved by a issuance of a writ of execution becomes the
highest possible tribunal (PCGG vs. ministerial duty of the court. Once a
Sandiganbayan, 455 SCRA 526). In this decision becomes final and executory, it is
sense, the judgment is commonly the ministerial duty of the presiding judge to
referred to as one that is final and issue a writ of execution except in certain
executory. cases, as when subsequent events would
render execution of judgment unjust
Q: Distinguish final judgments for purposes of (Mangahas vs. Paredes, GR 157866, Feb. 14,
appeal from final judgments for purposes of 2007).
execution.
2. Judgment debtor has renounced or
A: waived his right to appeal;
Final Judgments for Final Judgments for 3. The period for appeal has lapsed without
purposes of appeal purposes of execution an appeal having been filed;
Dispose of, adjudicate, or Becomes final and 4. Having been filed, the appeal has been
determine the right of the executory by operation resolved and the records of the case have
parties. of law. been returned to the court of origin
After lapse of period to (Florendo v. Paramount Insurance Corp,
appeal and no appeal now MAA General Insurance Inc., GR No.
Still subject to appeal was perfected, no 167976, January 20, 2010).
further action can be
had. Q: May the court which rendered the judgment
Execution of judgment not Execution of judgment a refuse to issue writ of execution?
a matter of right. matter of right.
A:
2. WHEN EXECUTION SHALL ISSUE GR: Execution of judgment is a matter of right
on the part of the winning party. The court
a. AS A MATTER OF RIGHT cannot refuse execution.
Q: When shall execution be issued? XPN:

1. When the judgment has already been
A: Execution is a matter of right upon the expiration
executed by the voluntary compliance
of the period to appeal and no appeal was
thereof by the parties (Cunanan v. CA,
perfected from a judgment or order that disposes
G.R. No. L-25511, Sept. 28, 1968);
of the action or proceeding (Sec. 1, Rule 39) Note: This is a situation where there is a
satisfaction of the judgment without need
Q: How is an execution issued? for its execution by the court.
A: Execution shall issue upon motion. Therefore, 2. When the judgment has been novated by
there is a need to file a motion for the issuance of a the parties (Dormitorio v. Fernandez, G.R.
writ of execution. Even in judgments which are No. L-25897, Aug. 21, 1976);
immediately executory, there must be a motion to Note: The parties, despite the existence of a
that effect and a hearing called for that purpose. judgment, are at liberty to novate a
Also, under SC circular no. 24-94, a motion for the judgment by entering into a compromise. A
issuance of a writ of execution must contain a compromise is a contract recognized by
notice to the adverse party (Lou vs. Siapno, 335 substantive law (Art. 2028, NCC).
SCRA 181 and Pallada vs. RTC of Kalibo, Aklan, Br.1,
304 SCRA 440) 3. When a petition for relief is filed and a
preliminary injunction is granted in
Q: When is an execution a matter of right? accordance with Sec. 5, Rule 38;
4. When the judgment sought to be
A: Execution will issue as a matter of right when: executed is conditional (Co Unjieng v.
HijosMabalacat Sugar Co., G.R. No. L-

CIVIL PROCEDURE
32644, Oct. 4, 1930) or is incomplete (Del 1. There must be a motion filed by the
Rosario v. Villegas, G.R. No. L-25726, Nov. prevailing party with notice to the
22, 1926); adverse party;
5. When facts and circumstances transpire 2. There must be a hearing of the motion for
which would render execution inequitable discretionary execution;
or unjust (Bacharach Corp. v. CA, G.R. No. 3. There must be good reasons to justify the
128349, Sept. 25, 1998); discretionary execution; and
6. When execution is sought more than 5 4. The good reasons must be stated in a
years from its entry without the judgment special order (Sec. 2, Rule 39)
having been revived;
7. When execution is sought against Q: Where should you file an application for
property exempt from execution under discretionary execution?
Sec. 13, Rule 39; or When the refusal to
execute the judgment. A:
1. The motion for discretionary execution
b. AS A MATTER OF DISCRETION shall be filed with the trial court:
a. While it has jurisdiction over the case and
Q: When is execution discretionary? b. While it is in possession of either the
original record or the record on appeal; or
A:
1. Execution pending appeal; and 2. After the trial court has lost jurisdiction,
2. While trial court has jurisdiction over the the motion for execution pending appeal
case and is in possession of either the may be filed in the appellate court
original record or record on appeal; (Bangkok Republic Company Limited vs.
3. When trial court has lost jurisdiction but Lee, G.R. No. 159806, January 20, 2006).
has not transmitted records of the case to
the appellate court; and Q: What is the remedy where the judgment
4. When trial court has lost jurisdiction and subject to discretionary execution is reversed or
has transmitted records (motion for annulled?
execution pending appeal with appellate
court). A: The trial court may, on motion, issue such orders
5. Execution of several, separate or partial of restitution or reparation of damages as equity
judgment(Florendo v. Paramount and justice may warrant under the circumstances
Insurance Corp, now MAA General (Sec. 5, Rule 39).
Insurance Inc., GR No. 167976, January
20, 2010).. Q: In a complaint filed by Granger for rescission
and damages, the RTC ruled against JP Latex,
Note: As such exception, the court’s discretion in defendant. On Aug. 5, 2006, Granger moved for
allowing it must be strictly construed and firmly the execution pending appeal of the decision.
grounded on the existence of good reasons. Upon receipt of the decision, JP Latex filed a
“Good reasons,” has been held, to consist of motion for reconsideration (MR). The RTC granted
compelling circumstances that justify immediate the execution “pending appeal” without acting on
execution lest the judgment becomes illusory. the motion for reconsideration. Is the order of the
Circumstances must be superior, outweighing the trial court correct?
injury or damages that might result should the
losing party secure a reversal of the judgment. A: No. Discretionary execution is allowed only when
Lesser reasons would make of execution pending the period to appeal has commenced but before
appeal, instead of an instrument of solicitude and the trial court loses jurisdiction over the case. The
justice, a tool of oppression and inequity period to appeal where a motion for
(Florendov. ParamountInsurance Corp. reconsideration has been filed commences only
(nowrenamed MAA General Insurance Inc.), G.R.
upon the receipt of the order disposing of the MR.
No. 167976, Jan. 20, 2010).
The pendency of a MR, therefore, prevents the
running of the period to appeal.
Q: What are the requisites for discretionary
execution? The MR filed by JP Latex had not been acted upon
by the RTC before it ruled on the motion for
A: execution “pending appeal.” The pendency of the
MR has prevented the period to appeal from even
commencing. The period within which a party may
101
move for an execution pending appeal of the RTC’s A: It may be stayed upon approval by the proper
decision has not yet started. Thus, where there is court of a sufficient supersedeas bond filed by the
pending MR, an order of execution pending appeal party against whom execution is directed,
is improper and premature. (JP Latex Technology, conditioned upon the performance of the judgment
Inc. v. Ballons Granger Balloons, Inc., et. al., G.R. or order allowed to be executed in case it shall be
No. 177121, Mar. 16, 2009) finally sustained in whole or in part (Sec. 3 Rule 39).
Q: How may a discretionary execution be stayed?
3. HOW JUDGMENT IS EXECUTED
Q: How can a judgment be executed?
A: Judgment is executed by motion within 5 years

from date of its entry
Execution is a matter of Discretionary execution If the winning party does not

right after expiration of upon good reasons move for execution within 5
period to appeal and no stated in a special order years but before 10 years from
appeal is perfected. after due hearing. the date of entry of judgment,
the same can only be revived by
means of new action / petition.
Sheriff executes writ of execution
Losing party is made to indemnify thru:

1. Payment with interest;
2. Levy and sale of personal property;
3. Levy and sale of real property;
4. Delivery of personal and/or real property.
Note: 5 and 10 year periods not applicable to judgment for support and special proceedings.
a. EXECUTION BY MOTION OR BY INDEPENDENT prevailing party after 5 years from the date of entry
ACTION of judgment, such motion is considered null and
void (Tag Fibers, Inc. vs. NLRC, 344 SCRA 29; Terry
Q: What are the modes of execution of judgment? vs. People, 314 SCRA 669)
A: Q: Can execution be effected by motion after five

a. Execution by motion-if the enforcement years?
of the judgment is sought within 5 years
from the date of its entry; and A:
b. Execution by independent action -if the GR:No, execution of a judgment can no longer be
five year period has elapsed and before it effected after 5 years. The remedy would be to file
is barred by statute of limitations (Sec. 6, an independent action for the revival of the
Rule 39) judgment.
Q: When is there a need to file an independent XPNs: The court in certain instances allowed
action for execution? execution of the judgment by mere motion despite
the lapse of the 5 year period. In instances where
A: There is a need for the prevailing party to file an the delay in the execution of the judgment were
independent action for the revival of the judgment through causes attributable to the judgment debtor
before the action is barred by statute of limitations or when the delay is incurred for his benefit.
when a writ of execution is issued by motion of the

CIVIL PROCEDURE
Q: What is revival of judgment? Q: What are the defenses available in an action for
enforcement?
A: This means that from the date of the finality of
judgment, no motion was filed for the execution of A:
said judgment, thus the need for its enforcement by 1. Prescription;
action. 2. Satisfaction of claim; and
3. Counterclaims.
Q: When should the action for revival of judgment
be filed? Q: Will execution issue upon death of a party?
A: The action to revive a judgment must be filed A:

within 10 years from the date of judgment became a. Death of an obligee – execution will issue
final because an action to enforce a judgment in any case, upon application of his
prescribes in 10 years from the finality of the executor, administrator, or successor-in-
judgment. interest
b. Death of an obligor
Q: What is the nature of a revived judgment? - Death before levy:
- Action for recovery of real or
A: A revived judgment is deemed a new judgment personal property or any lien –
separate and distinct from the original judgment. execution will issue.
- Action for a sum of money –
execution will NOT issue. The judgment
Q: How do you enforce a revived judgment?
obligee should file a claim against the
estate of the judgment obligor under
A: A revived judgment may be enforced by motion Rule 86
within 5 years from the date of its entry and - Death after levy:
thereafter by action also before it is barred by the - Execution will issue against his
statute of limitations (Sec. 6, Rule 39). executor, administrator, or successor-
in-interest because the property is
Q: May the period to execute the judgment be already separated from the estate of
stayed? the deceased and is deemed in
custodia legis.
A: Yes: by agreement of the parties; by injunction;
or by taking an appeal or writ of error. b. ISSUANCE AND CONTENT OF A WRIT OF
EXECUTION
Q: What is the effect of an appeal to the execution Q: What is a writ of execution?

of the judgment?
A: It is a judicial writ issued to an officer authorizing
A: him to execute the judgment of the court.
GR: An appeal perfected in due time stays the
execution of a judgment. Q: What is the lifetime of a writ of execution?
A: The writ is enforceable within 5 years from the

XPNs: There are judgments which by express
entry of judgment as provided for in Sec. 6 of Rule
provision of law not stayed by appeal:
39.
1. Those judgments which by express Q: What are the contents of a writ of execution?
provision of the rules are immediately
executor and are not stayed by appeal A:
(Sec. 4, Rule 39); 1. The name of the court which granted the
Note: These are: judgment for injunction, motion;
receivership, accounting and support unless 2. The case number;
the court rule otherwise. 3. The dispositive portion of the judgment
or order subject of the execution; and
2. Those judgments that have become the 4. Shall require the sheriff or other proper
object of discretionary execution (Sec. 2, officer to whom it is directed to enforce
Rule 39).
103
the writ according to its terms (Sec.8, Rule a. Demand from the obligor the immediate
39) payment of the full amount stated in the
judgment including the lawful fees in
Note: The motion for execution and the writ of cash, certified check payable to the
execution must state specifically the amount of judgment obligee or any other form of
interest, costs, damages, rents, or profits due as of the payment acceptable to him.
date of issuance of the writ, aside from the principal b. If the judgment obligor cannot pay all or
obligation. part of the obligation in cash, certified
Q: Is a writ of execution subject to a motion to check or other mode of payment, the
quash? officer shall levy upon the properties of
the judgment obligor. The judgment
A: A writ of execution may be quashed on certain obligor shall have the option to choose
grounds: which property or part thereof may be
1. When the writ of execution varies the levied upon. If the judgment obligor does
judgment; not exercise the option, the officer shall
2. When there has been a change in the first levy on the personal properties, if
situation of the parties making the any, and then on the real properties if the
execution inequitable or unjust; personal properties are insufficient to
3. When execution is sought to be enforced answer for the personal judgment but the
against a property exempt from sheriff shall sell only so much of the
execution; property that is sufficient to satisfy the
4. When it appears that the controversy has judgment and lawful fees.
never been submitted to the judgment of c. The officer may levy on the debts due the
the court; judgment debtor including bank deposits,
5. When the terms of the judgment are not financial interests, royalties, commissions
clear enough and there remains room for and other personal property not capable
interpretation thereof; of manual delivery in the possession or
6. When it appears that the writ of con troll of third parties. This is called
execution has been improvidently issued; garnishment. (Sec. 9, rule 39)
7. When it appears that the writ of
execution is defective in substance, or is Q: What is levy?
issued against the wrong party, or that
the judgment debt has been paid or A: It is the act by which an officer sets apart or
otherwise satisfied or the writ is issued appropriates a part of the whole of the property of
without authority (Reburiano v. CA, 301 the judgment debtor for purposes of the execution
SCRA 342). sale.
c. EXECUTION OF JUDGMENTS FOR MONEY Q: What is garnishment?
Q: What are the 3 ways to enforce a judgment for A: It is the act of appropriation by the court when
money? the property of the debtor is in the hands of third
persons.
A:
1. Immediate payment on demand Note: The garnishee or the third person who is in the
2. Satisfaction by levy possession of the property of the judgment debtor is
- The judgment obligor exercises deemed a forced intervenor.
discretion to choose which property
to levy; if not exercised, the officer Q: Distinguish attachment from garnishment.
shall levy first on personal property,
then on real property. The sheriff A: Attachment refers to corporeal property in the
shall only sell property sufficient to possession of the judgment debtor.
satisfy the judgment and other
lawful fees. Garnishment refers to money, stocks, credits and
3. Garnishment of debts and credits. other incorporeal property which belong to the
judgment debtor but is in the possession or under
Q: What are the steps in executing a judgment for the control of a third person. (1999 Bar Question)
money?
Q: The writ of execution was returned unsatisfied.
A: The judgment obligee subsequently received

CIVIL PROCEDURE
information that a bank holds a substantial 1. In case of conveyance, if a party fails to

deposit belonging to the judgment obligor. If the comply with the time specified, the court
bank denies holding the deposit in the name of the may direct the act to be done at the cost
judgment obligor but your client's informant is of the disobedient party.
certain that the deposit belongs to the judgment 2. In case of delivery or restitution of real
obligor under an assumed name, what is your properties, the officer shall demand the
remedy to reach the deposit? losing party to peaceably vacate the
property within 3 working days, and
A: A motion may be filed for a court order requiring restore possession to the judgment
the proper bank officer to appear in court for oblige; otherwise the officer shall oust
examination under oath as to such bank deposit, such disobedient party.
and subsequently move for a court order 3. In case of removal of improvements on
authorizing the filing of an action against such bank property subject of execution, the officer
for the recovery of the judgment obligor’s shall not destroy, demolish or remove
deposit/interest therein and to forbid a transfer or improvements except upon special order
other disposition of such deposit/interest within of the court.
120 days from notice of the order (Secs. 37 and 4. In judgments for the delivery of personal
43).(2008 Bar Question) property, the officer shall take possession
of the same and forthwith deliver it to the
Q: How is money judgment implemented if the party entitled to satisfy any judgment for
obligee is absent at the time of payment? money as therein provided.
A: Sec. 9, Rule 39 lays down the procedure to be Q: How can judgment be executed for the
followed by the sheriff in implementing money following specific acts if the judgment debtor
judgments. refuses/fails to comply therewith?
When the judgment obligee is not present at the A:

time the judgment obligor makes the payment, the Judgments for
sheriff is authorized to receive it. However, the Specific Act (Sec. Manner of Execution
money received must be remitted to the clerk of 10)
court within the same day or, if not practicable, Court can appoint some other
Conveyance,
deposited in a fiduciary account with the nearest person at the expense of the
delivery of deeds,
government depository bank. Sheriffs are not disobedient party and the act
or other specific
permitted to retain the money in their possession done shall have the same effect as
acts, vesting title.
beyond the day when the payment was made or to if the required party performed it.
deliver the money collected directly to the Sell such property and apply the
Sale of real and
judgment oblige (Peña, Jr. v. Regalado II, A.M. No. proceeds in conformity with the
personal property
P-10-2772 (formerly A.M. OCA I.P.I No. 07-2615-P), judgment.
Feb. 16, 2010). If the party refuses to deliver, a
writ of execution directing the
d. EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS sheriff to cause the defendant to
vacate is in the nature of a
haberefaciaspossesionemand
Q: What are considered specific acts?
authorizes the sheriff to break
Delivery or
open the premises where there is
A: restitution of real
no occupant therein.
1. Conveyance, delivery of deeds, or other property
specific acts vesting title; If party refuses to vacate
2. Sale of real or personal property; property, remedy is not contempt.
3. Delivery or restitution of real property; The sheriff must oust the party.
4. Removal of improvements on property But if demolition is involved, there
subject of execution; and must be a special order.
5. Judgments for the delivery of personal The officer may destroy, demolish
Removal of
property. or remove the improvements
improvements on
upon special order of the court,
property subject of
Q: What are the steps in executing a judgment for issued upon motion of the
execution
specific acts? judgment obligee.
The officer shall take possession
Delivery of
A: and deliver to the party entitled
personal property
thereto.
105
whom the same is rendered, or upon any other

person required thereby, or by law, to obey the
Q: May a judgment debtor be cited in contempt in same, and such party or person may be punished
case of refusal to comply with judgment of the for contempt if he disobeys such judgment (Sec 11,
court? Rule 39).
A: f. EFFECT OF LEVY ON THIRD PERSON

GR: The judgment debtor cannot be cited in
contempt of court. Generally, contempt is not a Q: What is the effect of levy on execution as to
remedy to enforce a judgment. third persons?
XPN: A: It creates a lien in favor of the judgment obligee

1. Refusal to perform a particular act or over the right, title and interest of the judgment
special judgments under Sec. 11 where he obligor in such property at the time of the levy,
may be cited in contempt. subject to liens and encumbrances then existing
2. In case of the provisional remedy of (Sec. 12).
support pendente lite under Rule 61, the
judgment debtor may still be cited for Q: Aiza obtained a judgment for money against
contempt even if the decision is not a Bert. The sheriff enforcing the corresponding writ
special judgment and requires the latter went to Celywho, is the pledgee of a ring Bert had
to pay money. given as security for a loan and insisted on taking
possession of the ring for the purpose of
Note: If a party refuses to: eventually selling it at the execution sale to satisfy
a. Vacate the property – the sheriff must oust the judgment debt of Bert to Aiza. Does Cely have
the party. A demolition order from the court the obligation to surrender the ring to the sheriff?
is required to effect removal of an Explain.
improvement constructed by the defeated
party. A: No, because Cely has the right to retain the ring
b. Deliver – the sheriff will take possession and in his possession until the loan is paid (Art. 2098,
deliver it to the wining party
NCC). If the sheriff should take possession of the
c. Comply – the court can appoint some other
ring, Cely may file a third-party claim. (1987 Bar
person at the expense of the disobedient
party and the act shall have the same effect
Question)
as if the required party performed it.
Q: What are the remedies available to a third-
party claimant in levy of real property?
e. EXECUTION OF SPECIAL JUDGMENTS
A:
Q: What is a special judgment?
1. Summary hearing before the court which
authorized the execution;
A: It is a judgment that can be complied with only
2. Terceriaor third party claim filed with the
by the obligor himself. It requires the performance
sheriff;
of any other act other than payment of money, or
3. Action for damages on the bond posted
the sale or delivery of real or personal property.
by judgment creditors; or
4. Independent reinvindicatory action. (Sec.
Q: What is the effect of failure to comply with
16, Rule 39)
special judgments?
The remedies are cumulative and may be resorted
A: Failure to comply with special judgment under
to by the third party claimant independently of or
Section 11 is punishable by contempt by
separately from the others.
imprisonment.
Note: The officer shall not be liable for damages for
Q: How is execution of special judgments the taking or keeping of the property, to any third-
executed? party claimant if there is a bond filed by the winning
party. If there is no bond, the sale cannot proceed.
A:When a judgment requires the performance of However, the judgment obligee can claim damages
any act other than those mentioned in the two against a third-party claimant who filed a frivolous or
preceding sections, a certified copy of the judgment plainly spurious claim, and such judgment obligee can
shall be attached to the writ of execution and shall institute proceedings therefor in the same or separate
be served by the officer upon the party against action (Sec. 16, Rule 39).

CIVIL PROCEDURE
Q: What are other properties ESPECIALLY exempt

from execution?
4. PROPERTIES EXEMPT FROM EXECUTION
A:
Q: What are the properties exempt from 1. Property mortgaged to DBP (Sec 26, CA
execution? 458)
2. Property taken over by Alien Property
A: Administration (Section 9[f], US Trading
1. The judgment obligor’s family home as with the Enemy Act)
provided by law, or the homestead in 3. Savings of national prisoners deposited
which he resides, and land necessarily with the Postal Savings Bank (Act 2489)
used in connection therewith; 4. Backpay of pre-war civilian employees (RA
2. Ordinary tools and implements personally 304)
used by him in his trade, employment or 5. Philippine Government backpay to
livelihood; guerillas (RA 897)
3. 3 horses, cows, or carabaos, or other 6. Produce, work animals, and farm
beasts of burden, such as the judgment implements of agricultural lessees,
obligor may select necessarily used by subject to limitations (Sec 21, RA 6389)
him in his ordinary occupation; 7. Benefits from private retirement systems
4. His necessary clothing and articles for of companies and establishments, with
ordinary personal use, excluding jewelry; limitations (RA 4917)
5. Household furniture and utensils 8. Labor wages, except for debts incurred
necessary for housekeeping, and used for for food, shelter, clothing, and medical
that purpose by the judgment obligor and attendance (Art 1708, NCC)
his family, such as the judgment obligor 9. Benefit payments from the SSS (Sec 16 RA
may select, of a value not exceeding 1161 as amended by PDs 24, 65, and 177)
P100,000; 10. Copyrights and other rights in intellectual
6. Provisions for individual or family use property under the former copyright law
sufficient for 4 months; (PD 49 cf Sec 239.3, RA 8293); and
7. The professional libraries and equipment 11. Bonds issued under RA1000 (NASSCO v.
of judges, lawyers, physicians, CIR L-17874 31 August 1963) (Regalado, F.
pharmacists, dentists, engineers, Remedial Law Compendium Vol. 1, 9 ed.,
th
surveyors, clergymen, teachers, and other pp. 481-482)

professionals, not exceeding P300,000 in
value; 5. PROCEEDINGS WHEN PROPERTY IS CLAIMED BY
8. 1 fishing boat and accessories not THIRD PERSONS
exceeding the total value of P100,000
owned by a fisherman and by the lawful Q: When can you file a third party claim?
use of which he earns his livelihood;
9. So much of the salaries, wages, or A: At any time, so long as the sheriff has the
earnings of the judgment obligor for his possession of the property levied upon, or before
personal services within the 4 months the property is sold under execution.
preceding the levy as are necessary for
the support of his family; Q: What are the requisites for a claim by a third
10. Lettered gravestones; person?
11. Monies, benefits, privileges, or annuities
accruing or in any manner growing out of A: Requisites for a claim by a third person:
any life insurance;
12. The right to receive legal support, or
1. The property is levied;
money or property obtained as such
2. The claimant is a person other than the
support, or any pension or gratuity from
judgment obligor or his agent;
the government; and
3. Makes an affidavit of his title thereto or
13. Properties specially exempted by law.
right to the possession thereof stating the
grounds of such right or title; and
But no article or species of property mentioned
4. Serves the same upon the officer making
above shall be exempt from execution issued upon
the levy and the judgment obligee.
a judgment recovered for its price or upon a
judgment of foreclosure of a mortgage hereon (Sec.
13).
107
Q: What is the procedure for a 3rd party claim? A: No, Cathy has not been impleaded as a party
defendant. He cannot be held liable for the
A: 3rd party should make an affidavit of his title judgment against Bob without a trial. In fact, since
thereto, or right of possession thereof, and should no bond was filed by Allen, the sheriff is liable to
serve such affidavit upon the sheriff and a copy Cathy for damages. Cathy can file a separate action
thereof to the judgment obligee. to enforce his third-party claim. It is in that suit that
Allen can raise the ground of fraud against Cathy.
Q: What is the duty of the officer if the property However, the execution may proceed where there
sought to be levied on is claimed by another is a finding that the claim is fraudulent (Tanongan v.
person and proper proof of ownership or Samson, G.R. No. 140889, May 9, 2002). (2005 Bar
possession is served upon the officer making levy? Question)
A: If the property levied on is claimed by any person Q: If the writ of execution is issued in the name of
other than the judgment obligor or his agent, and the Republic of the Philippines and the property
such person makes an affidavit of his title thereto object of the levy is being claimed by a third
or right to the possession thereof, stating the person, is there a necessity for filing a bond?
grounds of such right or title, and serves the same
upon the officer making the levy and a copy thereof A: When the writ of execution is issued in favor of
upon the judgment obligee, the officer shall not be the Republic of the Philippines, or any officer duly
bound to keep the property, unless such judgment representing it, the filing of such bond shall not be
obligee, on demand of the officer, files a bond required, and in case the sheriff or levying officer is
approved by the court to indemnify the third-party sued for damages as a result of the levy, he shall be
claimant in a sum not less than the value of the represented by the Solicitor General and if held
property levied on. In case of disagreement as to liable therefor, the actual damages adjudged by the
such value, the same shall be determined by the court shall be paid by the National Treasurer out of
court issuing the writ of execution. No claim for such funds as may be appropriated for the purpose.
damages for the taking or keeping of the property
may be enforced against the bond unless the action a. IN RELATION TO THIRD PARTY CLAIM IN
therefor is filed within one hundred twenty (120) ATTACHMENT AND REPLEVIN
days from the date of the filing of the bond.
Certain remedies available to a third person not

The officer shall not be liable for damages for the party to the action but whose property is the
taking or keeping of the property, to any third-party subject of execution:
claimant if such bond is filed. Nothing herein
contained shall prevent such claimant or any third
person from vindicating his claim to the property in 1. Terceria – By making an affidavit of his title
a separate action, or prevent the judgment obligee thereto or his right to possession thereof,
from claiming damages in the same or a separate stating the grounds of such right or title. The
action against a third-party claimant who filed a affidavit must be served upon the sheriff and
frivolous or plainly spurious claim. the attaching party (Sec. 14, Rule 57). Upon
service of the affidavit upon him, the sheriff
shall not be bound to keep the property under
Q: Allen obtained a money judgment against Bob. attachment except if the attaching party files a
After the finality of the decision, the court issued a bond approved by the court. the sheriff shall
writ of execution for the enforcement thereof. not be liable for damages for the taking or
Conformably with the said writ, the sheriff levied keeping of the property, if such bond shall be
upon certain properties under Bob's name. Cathy filed.
filed a third-party claim over said properties 2. Exclusion or release of property – Upon
claiming that Bob had already transferred the application of the third person through a
same to him. Allen moved to deny the third-party motion to set aside the levy on attachment,
claim and to hold Bob and Cathy jointly and the court shall order a summary hearing for
severally liable to him. After due hearing, the the purpose of determining whether the
court denied the third-party claim and rendered sheriff has acted rightly or wrongly in the
an amended decision declaring Bob and Cathy performance of his duties in the execution of
jointly and severally liable to Allen for the money the writ of attachment. The court may order
judgment. Is the ruling of the court correct'? the sheriff to release the property from the
Explain. erroneous levy and to return the same to the
third person. In resolving the application, the

CIVIL PROCEDURE
court cannot pass upon the question of title to Once he redeems,

the property with any character of finality but no further
only insofar as may be necessary to decide if redemption is
the sheriff has acted correctly or not (Ching vs. allowed. The person Further redemption is allowed,
CA, 423 SCRA 356). to whom even after lapse of 1 year, as
3. Intervention – This is possible because no redemption was long as each redemption is
judgment has yet been rendered and under made must execute made within 60 days after the
and deliver to the last.
the rules, a motion for intervention may be
judgment obligor a
filed any time before the rendition of the
certificated of
judgment by the trial court (Sec. 2, Rule 19).
redemption.
4. Accion Reinvindicatoria – The third party
claimant is not precluded by Sec. 14, Rule 57 Note: The period of redemption is not suspended by
from vindicating his claim to the property in an action to annul the foreclosure sale. The periods for
the same or in a separate action. He may file a redemption are not extendible; but the parties may
separate action to nullify the levy with agree on a longer period, in such case, it would be a
damages resulting from the unlawful levy and conventional redemption.
seizure. This action may be a totally distinct
action from the former case. Note: A surety is not a successor in interest. The right
of redemption cannot be levied on by judgment
6. RULES ON REDEMPTION creditor.
Q: Is the right of redemption available to any type

of property? Q: Can redemption be made in other forms than
cash?
A: No. There is no right of redemption as to
personal properties for the sale is absolute. Such A: Yes. The rule is liberal in allowing redemption
right is available only to real properties. and it has been allowed in the case of a cashier’s
check and certified bank checks.
Q: Distinguish a judgment obligor from a
redemptioner? What are their rights as regards Q: Who may redeem the real property sold?
redemption of real property?
A: Real property sold, or any part thereof sold
A: separately, may be redeemed by the following
JUDGMENT persons:
REDEMPTIONER
OBLIGOR 1. Judgment obligor, or his successor in interest
One who has a lien by by virtue in the whole or any part of the property;
of an attachment judgment, 2. Redemptioner – a creditor having a lien by
judgment, or mortgage on the virtue of an attachment, judgment or
Judgment obligor,
property sold, SUBSEQUENT to mortgage on the property sold, or on some
or his successor in
the lien under which the part thereof, subsequent to the lien under
interest (e.g.
property was sold (Sec. 27) which the property was sold.
transferee,
Note: If creditor’s lien is prior
assignee, heirs, joint
to the judgment, he is not a
debtors) Note: A mortgagee can be a redemptioner even if his
redemptioner because his
interests in his lien are fully mortgage has not yet matured, but his mortgage
protected. contract must have been executed after the entry of
1. Within 1 year from the judgment. Generally in judicial foreclosure sale, there
date of registration of the is no right of redemption, but only equity of
certificate of sale if he is redemption. In sale of estate property to pay off debts
the first redemptioner, or of the estate, there is no redemption at all. Only in
Within 1 year from extrajudicial foreclosure sale and sale on execution is
2. Within 60 days from the
the date of there the right of redemption.
last redemption, if he be a
registration of the
subsequent
certificate of sale.
redemptioner, provided Q: What are the requirements to enable the
that the judgment debtor redemptioner or judgment obligor to redeem the
has not exercised his right real property?
of redemption.
A: The judgment obligor, or redemptioner, may
redeem the property from the purchaser at any
109
time within 1 year from the date of the registration 2. Reversal or setting aside of
of the certificate of sale by paying the purchaser: judgment;
1. the amount of his purchase; 3. The fact that the property was
2. amount of any assessments or taxes which the exempt from execution; or
purchaser may have paid after purchase; 4. If a third person has vindicated his
3. if the purchaser be also a creditor having a claim to the property (Sec. 34).
prior lien to that of the redemptioner, other
than the judgment under which such purchase Q: What is the remedy of purchaser of real
was made, the amount of such other lien; and property sold on execution in the above
4. With 1 percent per month interest up to the situations?
time of redemption.
A:
Q: Is the bona fide tender or delivery of the 1. Bring an action against the judgment
redemption price required in offer to redeem? creditor;
2. File a motion for revival of judgment in his
A: name against the judgment debtor; or
GR: The offer to redeem must be accompanied 3. Bring an action to recover possession of
with a bona fide tender or delivery of the property.
redemption price.
7. EXAMINATION OF JUDGMENT OBLIGOR WHEN
XPN: The right to redeem is exercised through JUDGMENT IS UNSATISFIED
the filing of a complaint to redeem in the
courts. Q: What is the effect when the judgment was
returned unsatisfied?
Q: What are the rights of a judgment debtor?
A:
A: 1. The judgment creditor may cause
1. To remain in possession of the property examination of the judgment debtor as to
until the expiration of period of his property and income (Sec. 36) (2008
redemption; Bar Question);
2. To collect rents and profits until the 2. The judgment creditor may cause
expiration of period of redemption (Sec. examination of the debtors of the
32); judgment debtor as to any debt owed by
3. To use the property in the same manner it him or to any property of the judgment
was previously used; debtor in his possession (Sec. 37);
4. To make necessary repairs; and 3. If the court finds, after examination, that
5. Use it in the ordinary course of husbandry there is property of the judgment debtor
(Sec. 31). either in his own hands or that of any
person, the court may order the property
Q: When is the purchaser entitled to possession applied to the satisfaction of the
and conveyance of the property sold on judgment (Sec. 37);
execution? 4. If the court finds the earnings of the
judgment debtor are more than sufficient
A: The purchaser is entitled to possession and for his family’s needs, it may order
conveyance of the property if no redemption is payment in fixed monthly installments
made within one (1) year from the date of the (Sec. 40);
registration of the certificate of sale (Sec. 33). 5. The court may appoint a receiver for the
property of the judgment debtor not
Q: What are the instances when the purchaser exempt from execution or forbid a
may recover the purchase price from the judgment transfer or disposition or interference
obligor? with such property (Sec. 41);
6. If the court finds that the judgment
A: debtor has an ascertainable interest in
1. If the purchaser or his successor-in- real property either as mortgagor,
interest fails to recover possession of the mortgagee, or otherwise, and his interest
property sold on execution sale; or can be ascertained without controversy,
2. Is evicted due to: the court may order the sale of such
1. Irregularities in the proceedings interest (Sec. 42); and
concerning the sale;

CIVIL PROCEDURE
7. If the person alleged to have the property A:

of the judgment debtor or be indebted to 1. If judgment or final order is on a specific
him, claims an adverse interest in the thing, the same is conclusive upon the
property, or denies the debt, the court title to thing (Sec. 47, Rule 39).
may authorize the judgment creditor to 2. With respect to a probate of a will, or the
institute an action to recover the administration of the estate of a deceased
property, forbid its transfer and may person, the same is conclusive upon the
punish disobedience for contempt (Sec. will or administration but the probate of
43). the will or the granting of letters of
administration shall only be prima facie
Q: Anna, a Manila resident, sued Betsie resident of evidence of the death of the testator or
Malolos, Bulacan, in the RTC Manila for a sum of intestate and not a conclusive
money. The trial court rendered judgment holding presumption of death (Sec.47, Rule 39).
Anna liable for the entire amount prayed for in the 3. With respect to the personal, political or
complaint. After the judgment had become final, a legal condition or status of a particular
writ of execution was issued by the court. As the person or his relationship to another, the
writ was returned unsatisfied, Anna filed a motion judgment or final order is conclusive upon
for an order requiring Betsie to appear before it the condition, status or relationship
and be examined regarding his property and (Sec.47, Rule 39).
income. How should the court resolve the motion? 4. In other cases, if the judgment be with
respect to the matter directly adjudged or
A: The RTC Manila should deny the motion. Betsie as to any other matter that could have
resides in Malolos, Bulacan. When a writ of been raised in relation thereto, the
execution is returned unsatisfied, the judgment judgment or final order is conclusive
obligee, at any time after such return is made, shall between the parties and their successors
be entitled to an order from the court which in interest by title subsequent to the
rendered the said judgment, requiring such commencement of the action or special
judgment obligor to appear and be examined proceeding, litigating for the same thing
concerning his property and income before such and under the same title and the same
court or before a commissioner appointed by it. capacity, relationship (Sec.47, Rule 39).
However, no judgment obligor shall be so required 5. In any other litigation between the same
to appear before a court or commissioner outside parties or their successors in interest, that
the province or city in which such obligor resides or only is deemed to be adjudged in a
is found (Sec. 36). (2002 Bar Question) former judgment or final order which
appear upon its face to have been
8. EXAMINATION OF OBLIGOR OF JUDGMENT adjudged, or which was actually and
OBLIGOR necessarily included therein or necessary
thereto (Sec.47, Rule 39).
Q: How is examination of obligor of judgment
obligor done? Q: When the judgment is final and executory, is it
always ministerial upon the court to order
A: Court may order to be examined any person or execution?
corporation who has property of the debtor in
order to bind the credits due to debtor. A:
GR: Trial Court has ministerial duty to order
Note: The garnishee becomes a forced intervenor,
execution of final and executor judgments. It
requiring him to pay his debt not to the judgment
cannot refuse execution and is compellable by
debtor but to the creditor (a form of involuntary
mandamus.
novation).
Note: A party or other person may be compelled, by
an order of subpoena, to appear before the court or XPN: (Same as grounds to Quash writ of execution)
commissioner to testify as provided in Sec 36 & 37. 1. Change in the situation of the parties
Failure to obey may be punished by contempt. If which makes the execution inequitable or
examination is before a commissioner, he must take it unjust;
in writing and certify it to the court. All examinations 2. Writ of execution varies judgment;
and answers must be under oath. 3. Controversy was never submitted to the
judgment of the court;
9. EFFECT OF JUDGMENT OR FINAL ORDERS 4. Execution is sought against property
exempt from execution;
Q: What is the effect of final judgments?
111
5. Terms of the judgment are not clear and Q; Discuss the effect of judgment under paragraph
leaves room for interpretation; A and B of Section 47
6. Writ of execution is improvidently issued;
7. Writ of execution is defective in A:
substance; In Rem (Par. a) In Personam (Par. b)
8. Writ of execution is issued against the The decision is The judgment or final order
wrong party; conclusive upon the title is conclusive between
9. Judgment debtor has been paid or of the thing, the will or parties and their
otherwise satisfied; and administration or the successors-in-interest,
10. Writ of execution was issued without condition, status or litigating for the same thing
relationship of the and under the same title
authority.
person. and in the same capacity.
Note: In the above exceptions, remedy is certiorari
(Rule 65) i.e. land registration
i.e. actionreinvindicatoria
cases
Q: When may execution of final and executory
judgment be enjoined? Note: In both instances, the judgment may be repelled
by evidence of want of jurisdiction, notice, collusion,
A: fraud or clear mistake of law or fact. (par. 4, Sec. 48)
1. Upon fling of a petition for relief from
judgment; Q: What are the requisites of res judicata?
2. Attack against a judgment which is void
for lack of jurisdiction, or obtained A:
through fraud; 1. Former judgment or order must be final
3. On equitable grounds; and and executory;
4. In cases falling under the 10 exceptions 2. Court has jurisdiction over subject matter
above. and parties;
3. Former judgment or order was on merits;
Note: Judgment novated by a subsequent agreement and
cannot be executed (e.g. agreement entered into by 4. Identity of parties, subject matter, and
the parties other than terms of payment). cause of action between first and second
action. (TEST: determine identity if cause
Note: judgment for support is not final in a sense that of action)
it cannot be modified. Support depends not only on
the varying conditions affecting the ability of the 10. ENFORCEMENT AND EFFECT OF FOREIGN
oblgor to pay, but also upon the ever-changing needs JUDGMENTS OR FINAL ORDERS
of the beneficiary himself.
Q: What is the effect of a foreign order?
Q: Can final and executory judgments be
modified? A:
1. Against a specific thing – conclusive upon
A: title to the thing.
GR: Final and executor judgments cannot be 2. Against a person – presumptive evidence
amended or modified. Any amendment which of a right as between the parties and their
substantially affects a final and executor judgment successors in interest by a subsequent
is null and void for lack of jurisdiction. title.
Note: In both instances, the judgment may be repelled
XPN: Judgment may be modified as to: by evidence of want of jurisdiction, notice, collusion,
1. Clerical errors or mistakes - errors not as a fraud, or clear mistake of law or fact.
result of exercise of judicial functions
2. To clarify ambiguity; or Q: How is a foreign judgment enforced?
3. To enter nunc pro tunc orders – to make a
present record of an order which the A: By filing an action based on said judgment;
court rendered at a previous terms but, foreign judgment is presumed to be valid and
by inadvertence has not been entered. binding.
Note: to recognize a foreign judgment, raise the

foreign judgment as res judicata in the defense (not in
a separate motion)

CIVIL PROCEDURE
R. PROVISIONAL REMEDIES
Q: Distinguish the different kinds of provisional remedies.
A:
Preliminary
Preliminary Injunction Receivership (Rule Replevin (Rule Support Pendente
Attachment (Rule
(Rule 58) 59) 60) Lite (Rule 61)
57)
Subject Matter
Personal property
Personal and real Personal and real Money or other forms
Particular act(s) capable of
property property of support
manual delivery
Jurisdiction (Court which can grant it)
GR: Family Court
XPN: In criminal
actions, as long as the
civil aspect is tried
SC, CA, RTC, Family
SC, CA, RTC, Family RTC, Family Court, together with it , the
Court, SC, CA, RTC, Family
Court, Metropolitan, Metropolitan, RTC or MTC having
Metropolitan, Court, Metropolitan,
Municipal and Municipal, and jurisdiction may also
Municipal and Municipal and Municipal
Municipal Circuit Trial Municipal Circuit issue this remedy.(e.g
Municipal Circuit Circuit Trial Courts
Courts Trial Courts Art. 345 (3) RPC, in
Trial Courts
crimes against
chastity, “In every
case to support the
offspring..”)
Who may grant it
Court where action is
pending, the CA or
Only the Court where the SC, or a member
Courts where the action is pending; thereof, even if action Court of origin and
action is pending, Lower court, CA or SC is pending in the Only the court appellate court.
the CA or the SC provided action is lower court. where action is (Ramos v. CA, GR No.
(Sec. 2) pending in the same Appellate court may pending. L-31897, June 30,
court which issues the allow application for 1972)
injunction (Sec. 2) receivership to be
decided by the court
of origin (Sec. 1)
When available
At any stage of the At the
At the
At any stage of the At any stage of the proceeding and even commencement of
commencement
action but before action but before after finality of the action or at any
of the action but
entry of final judgment or final order judgment; anytime time prior to the
before answer is
judgment (Sec. 1) (Sec. 1) prior to satisfaction of judgment or final
filed (Sec. 1)
judgment order (Sec. 1)
How applied for
File verified application File verified
and applicant’s bond; if application and
application is included in applicant’s bond;
the initiatory pleading, application may also
File affidavits and File affidavits and File verified
the adverse party should be included in
applicant’s bond applicant’s bond application; bond not
be served with summons initiatory pleading in
(Sec. 3) (Sec. 2) required (Sec. 1)
together with a copy of actions for
the initiatory pleading and foreclosure of
the applicant’s affidavit mortgage (Secs. 1 and
and bond (Sec.4) 2)
Purpose(s)
1. To seize the To require a party or a To place the To recover To compel adverse
property of the court, agency or a property subject of possession of party to provide
adverse party in person to refrain from an action or personal support while the
113
advance for the doing a particular act proceeding under property. (1999 action is pending in
satisfaction of or to require the the control of a Bar Question) court.
judgment that may performance of a third party for its
be recovered in particular act preservation and
cases falling under administration litis
Sec.1, Rule 57. To prevent future pendentia and to
2. To enable the court injury and maintain protect the rights of
to acquire the status quo. all the parties under
jurisdiction over the (Kencht v. CA, G.R. No. the direction of the
action by the actual 97962, Nov. 17, 1993) court.
or constructive
seizure of the
property in those
instances where
personal service of
summons on the
creditor cannot be
effected. (Quasha v.
Juan,G.R.No.L54158,
Nov. 19, 1982)
Ground(s)
1. GR: In an action for 1. When the
the recovery of a applicant has an
specified amount or 1. That the applicant is interest in the
damages. entitled to the relief property or fund
XPN: demanded which subject of the
a. moral and consists in proceeding and
exemplary restraining the such property is in
b. against a party commission or danger of being
who is about to continuance of the lost, removed or
depart from the act complained of, materially injured
Philippines with or in requiring the unless a receiver
intent to defraud performance of an is appointed;
Applicant is:
his creditors; act for a limited 2. In foreclosure of
1. The owner
2. In an action for money period or mortgage, when
of the
or property embezzled perpetually the property is in
property
or fraudulently 2. Commission, danger of being When equity and
claimed; or
misapplied or continuance or non- wasted or justice require,
converted to his own performance of the dissipated or having due regard to
2. Entitled to
use by a public officer, act during the materially injured the probable
the
or by any other person litigation would and that its value outcome of the case
possession
in a fiduciary capacity, probably work is probably and such other
thereof but
or for a willful injustice to the insufficient to circumstances as
the
violation of duty; applicant; or discharge the may suggest the
property is
3. In an action to recover 3. Party, court, agency mortgage debt or reasonability of
wrongfully
the possession of or a person is doing, that it has been granting support
detained by
property unjustly or threatening, or is agreed upon by pendente lite
the adverse
fraudulently taken, attempting to do, or the parties;
party (Sec.
detained or is procuring or 3. After judgment, to
2)
converted, when the suffering to be preserve the
property has been done, some act property during
concealed, removed probably in the pendency of
or disposed of to violation of the an appeal or to
prevent its being rights of the dispose of it
found or taken by the applicant respecting according to the
applicant or an the subject of the judgment or to aid
authorized person; action and tending execution when
4. In an action against a to render the execution has
party who has been judgment been returned
guilty of fraud in ineffectual (Sec. 3) unsatisfied of the
contracting the debt judgment obligor
or incurring the refuses to apply

CIVIL PROCEDURE
obligation or in its his property in

performance satisfaction of the
5. In an action against judgment, or
a party who has otherwise to carry
removed or the judgment into
disposed of his effect; or
property, or is about 4. When
to do so, with intent appointment of
to defraud his receiver is the
creditors; most convenient
6. In an action against and feasible
a party who does means of
not reside and is not preserving,
found in the administering or
Philippines, or on disposing of the
whom summons property in
may be served by litigation (Sec. 1).
publication
Whether principal or ancillary action
Ancillary to:
1. Action for
support; or
2. In a criminal
action where civil
liability includes
Principal action/ Principal action/ Principal action/ support for the
Ancillary remedy
ancillary remedy ancillary remedy ancillary remedy offspring provided
the civil aspect
thereof has not
been waived,
reserved or
instituted prior to
its filing.
Effectivity
During the
During the pendency of During the pendency
pendency of the
the case unless earlier of the case unless Until discharged by During the pendency
case unless the
discharged or quashed by earlier discharged or the court of the case.
defendant files a
the court quashed by the court
redelivery bond.
Requirement of Hearing
GR: Required
XPN: Great or Required – Within 3
Not required; may be irreparable injury would Not required ; days after comment
issued ex parte (2001 result / extreme urgency Required may be issued ex is filed or after
Bar Question) and applicant will suffer parte expiration of period
grave injustice and of filing
irreparable injury (Sec. 5)
Bond Requirement
Bond executed to the adverse party in the amount fixed by the court to Bond executed to the
cover the costs which may be adjudged to the adverse party and all adverse party in double the
damages that he may sustain by reason of the granting of provisional value of the property, for
remedy prayed for, if the court shall finally adjudge that the applicant the return of the property
was not entitled thereto (Sec. 4, Rule 57; Sec. 4, Rule 58, Sec. 2, Rule 59 to the adverse party if such No bond
) return be adjudged and for required.
the payment to the adverse
2 bond requirement for receivership: party of such sum as he may
1. Filed by the applicant; and recover from the applicant
2. Filed by the receiver. in the action (Sec. 2)
Immediately Executory
No Yes Yes No Yes
Discharge of Remedy
By counter-bond: Party against whom the provisional remedy is availed of may move for the discharge Not applicable.
115
of the provisional remedy granted by filing a counter-bond in an amount equal to that fixed by the
court or to the value of the property if with respect to a particular property to secure the payment of
any judgment that the adverse party may recover in the action.
Counter Bond
Filing of counter-bond
made only upon showing
that the issuance or
continuance thereof
would cause irreparable
Amount of Amount of counter-
Cash deposit may be damage to the party or
counter-bond to bond should be
made in lieu of the person enjoined while the Not applicable.
be fixed by the double the value of
counter-bond (Sec. 12) applicant can be fully
court (Sec. 3) the property (Sec. 5)
compensated for such
damages as he may suffer;
counter-bond alone will
not suffice to discharge
the injunction (Sec. 6)
Other Grounds For Discharge
1. Improper or irregular
issuance or
enforcement or 1. Plaintiff’s bond is
1. Appointment
insufficiency of bond. found to be
1. Insufficiency of the was obtained
(Sec. 13) insufficient or
application (Sec. 9) without
2. Judgment rendered defective and is
sufficient cause.
against attaching not replaced with
2. Other grounds (e.g.
creditor (Sec. 19) proper bond; or
applicant’s bond is 2. Bond posted by
3. Property attached is
insufficient/ defective), the applicant /
exempt from execution 2. Property is not
upon affidavits of the receiver is
(Sec. 2 & 5) delivered to the
party or person insufficient (Sec.
4. Attachment is plaintiff for any
enjoined 3).
excessive, but the reason (Sec. 6).
discharge shall be
limited to the excess
(Sec. 13).
Damages in Case Applicant is Not Entitled Thereto or For Irregularity of the Procurement Of the Provisional Remedy
When the judgment or
final order finds that the
person who has been
Requisites: providing support
1. Owner of the property attached must file before trial or before perfection of appeal or pendente lite is not
before judgment becomes executory an application for damages; liable therefor, the court
2. Party who availed of provisional remedy and his surety must be notified, showing right shall order the recipient
to damages and amount thereof; and to return the amounts
3. Such damages may be awarded only after proper hearing and shall be included in the already received with
judgment of the main case. interest from the date of
actual payment, without
If the judgment of the appellate court is favorable to the party against whom provisional prejudice to the right of
remedy was effected: the recipient to obtain
Application must be filed with the appellate court before the judgment of the reimbursement in a
appellate court becomes executory. Appellate court may allow application to be heard separate action from
and decided by the trial court. the person legally
obliged to give support.
If bond or deposit given by the party availing of the provisional remedy be insufficient or fail
to satisfy the award: If the recipient fails to
Adverse party may recover damages in the same action (Sec. 20, Rule 57; Sec. 8, Rule 58; Sec. reimburse the amount,
9, Rule 59; Sec. 10, Rule 60) the person who
. provided the same may
Note: Any award of damages for the wrongful issuance of a provisional remedy should be seek reimbursement in a
recovered in the same case. The recovery of damages cannot be had in a separate action. separate action from
the person legally
obliged to give such
support (Sec. 7)

CIVIL PROCEDURE
1. NATURE OF PROVISIONAL REMEDIES d. Production Order

(Riano, Civil Procedure: A Restatement for
Q: What are provisional remedies? the Bar, p. 534-536, 2009 ed.)
A: Provisional remedies are writs and processes 2. JURISDICTION OVER PROVISIONAL

available during the pendency of the action which PROVISIONAL REMEDIES
may be resorted to by a litigant to preserve and
protect certain rights and interests therein pending Q: Which court has jurisdiction over applications
rendition, and for the purpose of the ultimate for provisional remedies?
effects, of a final judgment in the case.
A:
Q: What is the nature of provisional remedies? GR: Applications must be filed with the court having
jurisdiction over the pending principal action. Even
A: an inferior court may grant such remedy, however,
1. Temporary measures availed of during where the main action is for support, the
the pendency of the action provisional remedy of support pendente lite may
2. Mere incidents and are dependent upon not be granted by a Municipal Trial Court because
the result of the main action the main action is within the jurisdiction of the
Family Court. (Riano, Civil Procedure: A
Q: What are the purposes of provisional remedies? Restatement for the Bar, p. 532, 2009 ed.)
A: Provisional remedies are resorted to: XPN: in criminal actions, as long as the civil aspect
1. To preserve or protect their rights or is tried together with it, the RTC or MTC having
interests while the main action is jurisdiction may also issue the remedy of Support
pending; pendent Lite. (e.g. Art 345 (3) RPC, in crimes against
2. To secure the judgment; chastity, “in every case to support the offspring…”)
3. To preserve the status quo;
4. To preserve the subject matter of the Q: When are these provisional remedies available?
action.
A:
1. Attachment, injunction and support
Q: What are the Provisional Remedies under the pendent lite – may be applied for before
Rules of Court? final judgment
2. Replivin – may be applied before the
A: answer
1. Preliminary Attachment (Rule 57) 3. Receivership – may be applied for at any
2. Preliminary Injunction (Rule 58) stage of the action and even after final
3. Receivership (Rule 59) judgment.
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61) 3. PRELIMINARY ATTACHMENT
Q: What are the Other Provisional Remedies Q: What is Preliminary Attachment?

available?
A: It is a provisional remedy issued upon order of
A: the court where an action is pending to be levied
1. Temporary custody over a minor upon the property of the defendant for the same to
2. Deposit in Actions for Annulment of Sale be held by the Sheriff as security for the satisfaction
(Reyes v. Lim) of whatever judgment may be rendered in the case
3. Restraining order against the accused in ( Davao Light and Power, Inc.v. CA, 204 SCRA 343).
cases of violence among immediate
family members living in the same Note: This is only an ancillary remedy. There is no
domicile and household separate action called preliminary attachment. It is not
4. Hold departure orders issued by Regional a distinct proceeding and is availed of within a
Trial Courts in criminal cases principal action because it is a mere provisional
5. Interim reliefs under Writ of Amparo remedy. The grant of remedy is addressed to the
a. Temporary Protection Order discretion of the court. (Riano, Civil Procedure: A
b. Witness Protection Order Restatement for the Bar, p. 537, 2009 ed.)
c. Inspection Order
117
Q: What is the purpose of preliminary Q: What are the kinds of attachment?

attachment?
A:
A: Preliminary attachment is designed to: 1. Preliminary attachment- one issued at the
1. seize the property of the debtor before final commencement of the action or at
judgment and put the same in custodialegis even anytime before entry of the judgment as
while the action is pending for the satisfaction of a security for the satisfaction of any
later judgment (Insular Bank of Asia and America v. judgment that may be recovered in the
CA, 190 SCRA 629); or cases provided for by the rules.
2. Garnishment- the plaintiff seeks to
2. to enable the court to acquire jurisdiction over subject either the property of the
the res or the property subject of the action in defendant in the hands of the third
cases where service in person or any other service person called the garnishee, to his claim
to acquire jurisdiction over the defendant cannot or the money in which said third person
be effected (Philippine Commercial International owes the defendant (RCBC v. Castro, No.
Bank v. Alejandro, 533 SCRA 738). L- 34548, November 29, 1988).
Garnishment simply impounds the
Q: Who may apply for a preliminary attachment? property in the possession of the
garnishee and maintains the status quo
A: It is not only the plaintiff who may apply for a until the main action is finally decided.
writ of preliminary attachment. A defendant who 3. Levy on execution- writ issued by the
asserts a counterclaim, a cross-claim or a third- court after judgment by which the
party claim may also avail of the remedy. Sec. 1 of property of the judgment obligor is taken
Rule 57 provides that the “plaintiff or any proper into the custody of the court before the
party may have the property of the adverse party sale of the property on execution for the
attached.” (Borja v. Platon, 73 Phil. 659) (Riano, satisfaction of a final judgment.
Civil Procedure: A Restatement for the Bar, p. 538,
2009 ed.) Q: Distinguish Preliminary attachment from Final
attachment.
Q: What is the nature of the proceeding?
A:
A: Attachment is in the nature of proceeding quasi PRELIMINARY FINAL ATTACHMENT
in rem (Banco- Espanol Filipino v. Palanca, 37 Phil ATTACHMENT (Rule 57) (Rule 39)
921) although sometimes referred to as an actionin It is an auxiliary remedy It is a means for the
rem (Valdemieso v. Damalerio, 451 SCRA 638, to give security for a execution of a final
February 17, 2005). judgment still to be judgment.
rendered.
Note: Whether in rem or quasi in rem, the legal effects There is no sale because It should always be
are identical because in both cases jurisdiction over the decision has not yet accompanied by a sale at
the person of the defendant is not required as long as been rendered. public auction.
the court acquires jurisdication over the res (Biaco v. Resorted to at the Available after the
Countryside Rural Bank, 515 SCRA 106). commencement of the judgment in the main
action or at any time action had become
Q: Once prayed for, is it mandatory that the court before the entry of executor, and for the
grant the writ of preliminary attachment? judgment, for the satisfaction of said
temporary seizure of the judgment.
A: The grant of preliminary attachment is addressed property of the adverse
party
to the sound discretion of the court.
The proceeds of the sale, The proceeds of the sale
in cases allowed, are in are turned over to the
Q: What is the effect if a preliminary action is
custodial egis (Sec. 11) attaching creditor
availed of and is granted in an action purely in
rem?
a. GROUNDS FOR THE ISSUANCE
A: When availed of and granted in an action purely
Q: What are the groundsfor the issuance of a writ
in personal, it converts the action to one that is
of preliminary attachment? (When is a Preliminary
quasi in rem. This transformation of the nature of
Attachment Proper?)
the action dispenses with the need of acquiring
jurisdiction over the person of the defendant.

CIVIL PROCEDURE
A: b. To answer for all costs and damages

1. Actions for the recovery of a specified
amount of money or damages Note: No notice to the adverse party or hearing is
XPN: required as the time which the hearing will entail could
o moral and exemplary damages be enough to enable the defendant to abscond or
o against a party who is about to depart dispose of his property before the writ issues
from the Philippines which intent to (Regalado, Remedial Law Compendium, Vol I, p. 624,
defraud his creditors 2007 ed.).
2. Actions for money or property embezzled
or fraudulently misapplied or converted Q: When may an order for preliminary attachment
to his own use by a public officer, or an be applied?
officer of a corporation, or an attorney,
factor, broker agent, or clerk, in the A: The writ may be applied:
course of his employment as such, or by 1. At the commencement of the action, or
other person in a fiduciary capacity, or for 2. At any time before entry of judgment
a willful violation of duty (Sec. 1, Rule 57).
3. Actions to recover the possession of
property unjustly or fraudulently taken, c. ISSUANCE AND CONTENTS; AFFIDAVIT AND
detained or converted, when the BOND
property, or any part thereof, has been
concealed, removed, or disposed of to Q: When may an order of attachment be issued
prevent its being found or taken by the and what should be contained therein?
applicant or an authorized person
4. Actions against a party who has been A: (Sec. 2, Rule 57):
guilty of a fraud in contracting the debt or 1. May be issued ex-parte or
incurring or performance the obligation 2. upon motion after notice and hearing
upon which the action is brought Requiring sheriff to attach as much property which
5. Actions against a party who has removed is not exempt from execution, as may be sufficient
or disposed of his property, or is about to to satisfy the judgment
do so, with intent to defraud his creditors
6. Actions against non-residents not found Q: What should the affidavit contain?
in the Philippines, or person upon whom
summons may be served by publication A: The Affidavit of the applicant, or some other
Note: Insolvency of defendant is not a ground for person who personally knows the facts, must show
attachment especially when defendant has not been that:
shown to have committed any act intended to defraud 1. sufficient cause of action exists;
its creditors (Spouses Yu v. Ngo Yet Te, G.R. No. 2. the case is one of those mentioned in
155868, February 6, 2007). Section 1; and
3. there is no other sufficient security for
b. REQUISITES the claim sought to be enforced by the
action, and that the amount due the
Q: What are the requisites in the application for a applicant, or the value of the property the
writ of preliminary attachment? possession of which he is entitled to
recover, is as much as the sum for which
A: the order is granted above all legal
1. Filed at the commencement of action or counterclaims.
any time before entry of judgment (Sec.
1, Rule 57) Q: What is the basis of the bond’s amount?
2. Application by any party and affidavit
showing: (Sec. 3, Rule 57) A: The bond shall answer for:
a. Sufficient cause of action 1. All the costs which may be adjudged to
b. Based on grounds mentioned in the adverse party; and
Section 1 2. All damages which he may sustain by
c. No other sufficient security reason of the attachment.
d. Amount due to applicant or value of
property he is entitled to recover Q: How may the writ be issued?
3. Filing of a bond (Sec. 4, Rule 57):
a. Executed in favor of an adverse party A: The writ of preliminary attachment may be
in an amount fixed by court granted by:
119
1. By motion and notice of hearing by the accompanied by service of summons, copy of

court in which the action is pending and complaint, application and affidavits for the
may even be issued by the CA or the SC attachment and the bond upon the adverse party.
(Sec. 2, Rule 57);
2. It may also be issued ex parte and even Jurisdiction must first be acquired through valid
before summons is served upon the service of summons first before a preliminary
defendant. However, the writ may not be attachment may be enforced.
enforced and may not validly This Rule is not necessary for the validity of the
implemented unless preceded by a ISSUANCE of a writ of attachment (Davao Light v.
service of summons, a copy of the CA, 204SCRA 343 (1991)), it is however necessary
complaint, the application for for the validity of the ENFORCEMENT of the writ.
attachment, the order of attachment and (Onate v. Abrogar, 241 SCRA 659 (1995))
the attachment bond (Davao Light &
Power Co., Inc. v. CA, 204 SCRA 343). Q: What are the cases in which contemporaneous
service is not required?
Q: What is the rationale for allowing the ex parte
issuance of a writ of preliminary attatchment? A: The requirement of prior or contemporaneous
service of summons shall not apply where:
A: An ex parte issuance of the writ is intended to a. the summons could not be served despite
preempt any possible disposition of property by the diligent efforts;
adverse property to the detriment of the attaching b. the defendant is a resident of the
creditor and thus defeat the very purpose of Philippines temporarily absent therefrom;
attachment (Mindanao Savings & Loan Association, c. the defendant is a non-resident of the
Inc. v. CA, 172 SCRA 480). Philippines; or
d. The action is in rem or quasi in rem (Sec.
Q: Alfred filed an action against Banjo for 5, Rule 57).
collection of sum of money with an ex-parte
application for a writ of preliminary attachment e. MANNER OF ATTACHING REAL AND PERSONAL
which was granted by the trial court. A notice of PROPERTY
garnishment was served by the sheriff upon the
bank and summons was subsequently served upon Q: How can a property be attached?
Banjo. Banjo then filed a motion to dissolve the A: (Sec. 7, Rule 57)
writ of preliminary attachment on the ground that 1. Real property, growing crops or interest
the court did not acquire jurisdiction over his therein
person as the writ was served ahead of the a. File a copy of the Order of
summons. Resolve the motion. Attachment with the proper Registry
of Deeds and Occupant or his agent
A: The motion should be denied. The fact that the within the province
writ of preliminary attachment was served ahead of b. Description of the property
the summons did not affect the jurisdiction of the c. Notice of attachment
court over his person. It makes the writ 2. Personal property capable of manual
unenforceable, however, all that is required is to redelivery – sheriff taking into custody and
serve the writ. (2005 Bar Question) safely keeping it, he wll issue a receipt;
3. Stocks, shares or interest – Leaving copy
Note: Where the writ of preliminary attachment had of the writ and notice of attachment with
already been implemented, the subsequent service of President or Managing Agent
summons does not confer a retroactive acquisition of 4. Debts and credits, bank deposits, financial
jurisdiction over her person because the law does not interests, royalties, commission and other
allow for retroactivity of a belated service. (Torres v. personal property not capable of manual
Satsatin, G.R. No. 166759, November 25, 2009) delivery - Leaving copy of the writ and
notice of attachment with person owing
d. RULE ON PRIOR OR CONTEMPORANEOUS or having custody over the property
SERVICE 5. Interest in the estate of a decedent –
Leaving copy of writ and notice of
Q: What is the Rule on Prior or Contemporaneous attachment with:
Service of Summons? a. Executor or administrator of estate
b. Clerk of Court where estate is being
A: Enforcement of the writ of preliminary settled
attachment must be preceded by or simultaneously

CIVIL PROCEDURE
c. Heir, devisee, or legatee; A:

6. Property in custodialegis – writ to the 1. It must be based on the following
court or agency and notice to custodian. grounds:
a. Writ was improperly or irregularly
Q: What remedies are available if property is being issued or enforced (Sec. 13, Rule 57)
claimed by a third person? b. Insufficiency of bond (Sec. 13, Rule
57)
A: c. Excessive attachment (Sec. 13, Rule
1. File a Third Party Complaint or terceria 57)
(Sec. 14, Rule 57) o Effect: Partial discharge (Regalado,
2. File a Motion for Intervention Remedial Law Compendium, Vol. I,
3. File an independent action to recover p. 683, 2005 ed.)
property d. No ground for attachment (Sec. 1,
Rule 57)
f. DISCHARGE OF ATTACHMENT OF ATTACHMENT e. Property is exempt from execution
AND COUNTERBOND (Secs 2 and 5, Rule 57)
f. Judgment is rendered against the
Q: How is attachment discharged? attaching creditor (Sec. 19, Rule 57)
g. Dissolution of attachment 1 month
A: next preceding the commencement
1. If the attachment has already been of insolvency proceedings
enforced, the party whose property has (Insolvency Law) (Feria, Civil
been attached may file a motion to Procedure Annotated, Vol. II, p. 305,
discharge the attachment. 2001 ed.)
Note: This motion shall be with notice and 2. Filing of a cash deposit or counterbond
hearing. After due notice and hearing, the (Sec. 12, Rule 57)
court shall discharge the attachment if the 3. Notice and Hearing (Sec. 12, Rule 57)
movant makes a cash deposit or files a
counterbond executed to the attaching Q: May an ex parte discharge of attachment be
party with the clerk of court where the allowed?
application is made in an amount equal to
that fixed by the court in the order of
attachment exclusive of costs (Sec. 12, Rule A: No. A discharge of attachment must be made
57). only after hearing.
2. Attachment may likewise be discharged Q: What is a counterbond?

without the need for filing of a counter-
bond. This is possible when the party
A: Counterbonds are replacements of the property
whose property has been attached files a
motion to set aside or discharge the formerly attached, and just as the latter, may be
attachment and during the hearing of the levied upon after final judgment (Security Pacific
motion he proves that: Assurance Corporation v. Tria- Infante, 468 SSCRA
a. The attachment was improperly 526).
or irregularly issued or enforced
(Sec. 13, Rule 57); Q: After Defendant AAA’s properties were
b. That the bond of the attaching attached, AAA filed a sufficient counterbond and
creditor is insufficient or that the trial court discharged the attachment. For
the attachment is excessive and having suffered substantial prejudice due to the
must be discharged as to the unwarranted attachment, the trial court rendered
excess (Sec. 13, Rule 57); a judgment ordering plaintiff to pay damages since
c. That the property is exempt the latter was not entitled to the attachment. AAA
from execution, and as such is moved to charge plaintiff’s attachment bond and
also exempt from preliminary such was objected to by the plaintiff and his
attachment (Sec. 2, Rule 57). sureties on the ground that the counter-bond
lifted plaintiff’s attachment bond from all liability.
Q: What are the grounds for the discharge of a Rule on AAA’s motion.
preliminary attachment?
A: AAA’s motion should be granted since the filing
of a counterbond does not constitute a waiver of
121
his right to proceed against the attachment bond. 4. Ordinary execution.

Furthermore, it is a condition in an attachment
bond that applicant will pay all the costs and 4. PRELIMINARY INJUNCTION
damages which may be adjudged to the adverse
party. (DM Wenceslao and Associates, Inc. v a. DEFINITION AND DIFFERENCES: PRELIMINARY
Readycon Trading and Construction Corp., G.R. No. INJUNCTION AND TEMPORARY RESTRAINING
154106, June 29, 2004) ORDER
g. SATISFACTION OF JUDGMENT OUT OF Q: What is an injunction?

PROPERTY ATTACHED
A: It is an ancillary or preventive remedy where a
Q: How can the judgment be satisfied out of the court requires a person, a party or even a court or
attached property? tribunal either to refrain (prohibitory) from or to
perform (mandatory) particular acts during the
A: (Sec. 15, Rule 57) pendency of an action. (Riano, Civil Procedure: A
1. Payment to judgment creditor of all sales Restatement for the Bar, p. 564, 2009 ed.)
of perishable or other property
2. If any balance remains, selling property as Q: Distinguish a main action for injunction from a
may be necessary to satisfy the judgment preliminary injunction (2006 Bar Question).
3. Collecting from all persons having
possession of credits belonging to the A:
judgment debtor and paying the proceeds INJUNCTION AS AN INJUNCTION AS A MAIN
to judgment creditor ANCILLARY REMEDY ACTION
Note: If it remains unsatisfied, recovery may be had on Exist as an incident to a Independent action
the counterbond upon demand and notice and hearing principal action
to surety (Sec. 17, Rule 57). Seeks to preserve the Seeks a judgment
status quo or to prevent embodying a final
Q: What is the order of satisfaction of judgment of future wrongs in order to injunction, to enjoin the
attached property? preserve and protect defendant from the
certain interests or rights commission or
during the pendency of continuance of a specific
A: Order of satisfaction of judgment of attached
the action (Cortez- act, or to compel a
property:
Estrada v. Heirs of particular act in violation
1. Perishable or other property sold in Domingo Samut, 451 of the rights of the
pursuance of the order of the court; SCRA 275, February 14, applicant (Almeida v. CA,
2. Property, real or personal, as may be 2005). 448 SSCRA 681, January
necessary to satisfy the balance; 17, 2005).
3. collecting from debtors of the judgment
obligor;
Q: What are the distinctions among a preliminary injunction, prohibition and status quo order?
A:
Injunction Prohibition Status Quo Order
Directed against a court, Directed against the adverse party and is issued
Directed against a party in an
tribunal or person exercising by the court motu propio(Regalado, Remedial
action
judicial powers Law Compendium, Vol. I, p. 721, 2005 ed.)
Cease and Desist Order intended to maintain
Issued on the ground that the the last, actual, peaceable and uncontested
Does not involve the jurisdiction court against whom the writ is state of things preceding the controversy
of the court sought acted without or in without requiring the doing or undoing of an
excess of jurisdiction act (Regalado, Remedial Law Compendium, Vol.
I, p. 722, 2005 ed.)
May be the main action (final Special Civil Action / Main
injunction) or provisional remedy action

CIVIL PROCEDURE
Q: Distinguish a preliminary injunction from a b. REQUISITES

temporary restraining order.
Q: What are the requisites for the grant of a writ
A: of preliminary injunction?
Preliminary Injunction Temporary Restraining
Order A:
Specie of preliminary 1. Verified application stating the grounds
injunction to maintain for its issuance
status quo before the 2. Applicant must establish that he has a
resolution of the writ of right to relief, a right in esse or a right to
preliminary injunction on be protected and the act against which
the ground of irreparable the injunction is directed is violative of
injury such right
3. Bond executed in favor of the person
Note: Injury is irreparable if enjoined to answer for all damages
it is not susceptible to
4. Service of summons
mathematical computation
(DFA and BSP v. Falcon and XPNs:
BCA Int’l Corp., G.R. No. a. Summons could not be served
176657, September 1, 2010) personally or by substituted service
Effective during the Duration (non-extendible): b. Adverse party is a resident but is
pendency of the action (Sec. 5, Rule 58) temporarily absent from the
unless earlier dissolved 1. If issued by Philippines
RTC/MTC – c. Adverse party is a non-resident
Note: The trial court, 20days from 5. Notice and hearing (Sec. 5, Rule 58)
the Court of Appeals, notice to person
the Sandiganbyan or the restrained c. KINDS OF INJUNCTION
Court of Tax Appeals 2. If issued by CA –
that issued a writ of 60 days from Q: What are the classes of injunction?
preliminary injunction notice
against a lower court, 3. If issued by SC –
A:
board, officer, or quasi- until lifted
Preliminary Injunction Final Injunction
judicial agency shall
Note: Prohibition against the
(Ancillary Remedy) (Injunction as main
decide the main case or
renewal applies only if the action)
petition within six (6)
months from the same is sought under and by Order granted at any Issued after final
issuance of the writ. reason of the same ground stage of the action or judgment of the case
(Sec. 5, Rule 58 as for which it was originally proceeding prior to the permanently
amended by A.M. No. issued (Regalado, Remedial judgment or final order, restraining the
07-7-12-SC) Law Compendium, Vol. I, p. requiring a party or a defendant or making
725, 2005 ed.) court, agency, or a person the preliminary
to refrain from or to injunction permanent
Note: TRO is deemed perform particular act or (Sec. 9, Rule 58)
automatically lifted after the acts (Sec. 1, Rule 58)
expiration of the effectivity GR: Bond is required No bond is required
period
XPN: Exempted by court
Notice and hearing GR: Notice and hearing (Sec. 4, Rule 58)
always required (Sec. 5, required
Rule 58) XPN: To prevent urgent /
Q: What are the kinds of preliminary injunction?
irreparable injury, TRO
may be issued by an
Executive Judge or A:
Presiding Judge for Preventive / Prohibitory Mandatory
72hours and a summary Injunction Injunction
hearing be subsequently Requires a person to Requires the
conducted within such refrain from doing an act performance of a
period particular act
Can be issued to compel Cannot be issued to To preserve status quo To restore status quo
the performance of an compel the performance of
act an act
123
d. WHEN MAY WRIT BE ISSUED Q: In what actions will a preliminary injunction not
lie?
Q: When may a writ for preliminary injunction be
issued? A:
1. Against Department of Public Works and
A: Highways to stop government
1. In petitions for relief from judgment infrastructure projects (Secs. 3 & 4,
entered through FAME; RA8975)
2. In petitions for certiorari, prohibition, and XPNs:
mandamus; a. Extreme urgency
3. In actions for annulment of judgments b. Matter involves a constitutional
obtained through fraud; issue
4. In actions for annulment of judgment c. Grave injustice and irreparable
which are not patent nullities ( want of injury will arise
jurisdiction, lack of due process of law) d. Supreme Court may issue the
(BancoEspanol v. Palanca, 37 Phil. 921); writ of preliminary injunction
5. To restrain continued breach of valid Note: Injunctive writs cannot be issued
negative obligation; against any person or entity involved in
6. To enjoin repeated trespass on land; the execution, implementation and
7. To restrain city from proceeding with operation of government
abatement of nuisance per accidens infrastructure projects (P.D. 1818).
before it has been judicially declared as 2. Act/s perpetrated outside the inferior
such; courts’ territorial jurisdiction
8. To restrain voting of disputed shares of 3. Against judgments of coordinate courts
stocks; and quasi judicial bodies of equal rank
9. To restrain sheriff from selling property 4. Issuance will effectively dispose of the
on execution not belonging to judgment main case without trial and/or due
debtor; process (Boncodin v. Nat’l Power
10. To restrain criminal prosecutions as an Corporation Employees Consolidated
exception, in the following cases: Union, G.R. No. 162716, September 27,
a. To afford adequate protection 2006)
to constitutional rights of 5. Labor disputes
accused; 6. In issuance of licenses, concessions as to
b. When there is a prejudicial disposition, exploitation, utilization,
question which is sub judice; exploration and/or development of
c. Prosecution under an invalid natural resources (Sec. 1, PD605)
law; 7. Implementation of Comprehensive
d. Double jeopardy is clearly Agrarian Reform Program, collection of
apparent; taxes, criminal prosecutions
e. Court wthout jurisdiction over 8. Mandatory foreclosure of a mortgage by
the offense; a government financial institution (Sec. 2,
f. Case of persecution rather than P.D. 385)
prosection; XPN: After hearing, it is established
g. Charges manifestly false and that 20% of outstanding arrearages is
motivated by lust for paid after the filing of the
vengeance; foreclosure proceedings
h. There is clearly no prima facie 9. Act/s sought to be enjoined already
case against accused and consummated
motion to quash on said ground XPN: Preliminary mandatory
is denied; and injunction may be availed of such
i. Preliminary injunction issued by that the dispossessor in forcible
SC to prevent threatened entry can be compelled to restore
unlawful arrest of petitioners. possession to the original possessor
and an electric company can be
compelled to provisionally reconnect
the service it had disconnected.
(Regalado, Remedial Law
Compendium, Vol. I, p. 718, 2005 ed.)
124
REMEDIAL LAW TEAM:
CIVIL PROCEDURE
10. To transfer the property in litigation from 1. Insufficiency of application for injunction
the possession of one party to another or restraining order
where the legal title is in dispute and the 2. Issuance or continuance of injunction or
party having possession asserts restraining order causes irreparable injury
ownership thereto (Almeida v. CA and Sy, while applicant may be fully compensated
G.R. No. 159124, January 17, 2005) for damages by bond
XPN: 3. Extent of injunction or restraining order is
a. Forcible entry and unlawful too great
detainer cases – preliminary Effect: modification
mandatory injunction may be 4. Insufficiency or defective bond (Sec. 7,
issued (Sec. 15, Rule 70) Rule 58).
11. Generally, injunction will not be granted Note: Filing of verified motion and bond as well as
to take property out of the possession of hearing is required
one party and place it in another whose
title not clearly established; g. DURATION OF TRO
12. When action for damages would
adequately compensate injuries caused Q: What is the duration of a TRO?
(Golding v. Balatbat, 36 Phil.941);
13. To prevent directors from discharging A:
their offices and restoring former 1. 20 days from notice : if great or
directors; irreparable injury would result to the
14. To restrain criminal prosecution where applicant before the matter can be heard
the Ombudsman had authorized the on notice.
Special prosecutor to conduct a 2. 72 hours from issuance (issued ex parte) :
preliminary investigation or to file an if the matter is of extreme urgency and
injunction. the applicant will suffer grave injustice
and irreparable injury.
Note: Only the SC may issue injunction against the
government, officials or any person or entity whether Note: after conducting a summary hearing within the
public or private acting under the government 72 hours period until the application for Preliminary
direction, to restrain, prohibit, or compel acts pursuant injunction can be heard, an extension of the 72-hour
to the implementation and completion of TRo may be asked. The total period of effectivity of the
infrastructure projects. (Sec 3, RA 8975) TRO shall not exceed 20 days including the 72 hours.
While the efficacy of the TRO is ordinarily non-
e. GROUNDS FOR ISSUANCE extendible, and the trial courts have no discretion to
extend it considering the mandatory tenor of Rule 58,
Q: What are the grounds for the issuance of a there is no reason to prevent a court from extending
preliminary injunction? the 20-day period when it is the parties themselves
who ask for such extension or for the maintenance of
A: (Sec. 3, Rule 58) the status quo. (Federation of Land Reform Farmers of
1. Clear legal right of the applicant the Philippines v. CA, 246 SCRA 175 (1995)).
2. The commission, continuance or non-
Note: a TRO issued by the trial court or CA expires
performance of the act or acts
automatically upon the lapse of the 20 day period and
complained of will cause injustice to the 60 day period respectively. There is no need for any
applicant judicial declaration of dissolution (Paras v. Roura, 163
3. Person against whom injunction is sought SCRA 1 (1988))
is doing, threatening, attempting,
procuring or suffering to do some act or Q: What happens to the TRO if before the
acts in violation of applicant’s rights expiration of the 20-day period, the application for
tending to render the judgment preliminary injunction is denied?
ineffectual.
A: It will be automatically vacated. (Bacolod City
f. GROUNDS FOR OBJECTION, DISOLUTION OF Water District v. Labayan, G.R. No. 157494,
INJUNCTION OR RESTRAINING ORDER December 10, 2004)
Q: What are the grounds for objections or

dissolution of injunction or restraining order?
A: (Sec. 6, Rule 58)
125
Q: Is a second application for preliminary i. RULE ON PRIOR OR CONTEMPORANEOUS

injunction allowed? SERVICE OF SUMMONS IN RELATION TO
ATTACHMENT
A: A second application for injunction, which rests
in the sound discretion of the court, will ordinarily Q: What is the rule on prior or contemporaneous
be denied unless it is based on facts unknown at service of summons in relation to attachment?
the time of the first application. (Reyes v. Court of
Appeals and Sun Life Insurance Office, Ltd., G.R. No. A: No levy on attachment pursuant to the writ of
87647, May 21, 1990). preliminary attachment shall be enforced unless it
is preceded, or contemporaneously accompanied,
h. IN RELATION TO RA 8975, BAN ON ISSUANCE OF by theservice of summons, together with a copy of
TRO OR WRIT OF INJUNCTION IN CASES the complaint, the application forattachment, the
INVOLVING GOVERNMENT INFRASTRUCTURE applicant’s affidavit and bond, and the order and
writ ofattachment, on the defendant within the
Q: During the Marcos regime, a reclamation Philippines.
contract was signed between the City of Mandaue
and MALAYAN. However, that transaction The requirement of prior or contemporaneous
appeared to be unauthorized. After sometime a service of summons shall not apply in the following
confirmatory agreement was entered by the instances:
parties whereby MALAYAN bound itself to
undertake the project at its own expense. After 1. Where the summons could not be served
the People power, the plan was resubmitted to personally or by substituted servicedespite
the President for approval, the City of Mandaue diligent efforts;
however started negotiated and contracted with 2. The defendant is a resident of the
FF Cruz & Co. for the reclamation project. Philippines who is temporarily out of the
MALAYAN filed a protest with the OP. The country;
Executive Secretaery disapproved the project with 3. The defendant is a non-resident; or
MALAYAN, this prompted MALAYAN to file with 4. The action is one in rem or quasi in
the RTC a petition for prohibitory and mandatory rem (Sec. 5).
preliminary injunction. RTC issued a TRO. Upon
posting a bond, injunction was issued. Whether or 5. RECEIVERSHIP
not a writ of preliminary injunction may be issued
against the government? Q: What is Receivership?
A: Receivership is a provisional remedy wherein the

A: Under PD 1818 and RA 8735, injunction is not
court appoints a representative to preserve,
available to stop infrastructure projects of the
administer, dispose of and prevent the loss or
government (Malayan Integrated Industries vs. CA,
dissipation of the real or personal property during
GR 101469, Sept. 4, 1992; PPA vs. vs. Pier 8 Arrastre
the pendency of an action.
and Stevedoring Services, 475 SCRA 426). This
includes arrestre and stevedoring services.
It may be the principal action itself or a mere
provisional remedy; it can be availed of even after
Note: Section 1 of PD 1818 provides that:No court in the judgment has become final and executory as it
the Philippines shall have jurisdiction to issue any may be applied for to aid execution or carry
restraining order, preliminary injunction, or preliminary judgment into effect.
mandatory injunction in any case, dispute, or
controversy involving an infrastructure project, or a
Q: Who is a receiver?
mining, fishery, forest or other natural resource
development project of the government, or any public
utility operated by the government, including among A: Person appointed by the court in behalf of all the
others public utilities for the transport of the goods or parties to an action for the purpose of preserving
commodities stevedoring and arrastre contracts, to the property involved in the suit and to protect the
prohibit any person or persons, entity or government rights of all the parties under the discretion of the
official from proceeding with, or continuing the court.
execution or implementation of any such project, or
the operation of such public utility, or pursuing any Q: Can a party to the action be appointed as a
lawful activity necessary for such execution, receiver?
implementation or operation. A:
GR: Cannot be appointed
126
REMEDIAL LAW TEAM:
CIVIL PROCEDURE
XPN: Consented to by all parties b. REQUISITES
Note: A clerk of court cannot be appointed as a Q: What are the requisites in the application for
receiver (Abrigo v. Kayanan, G.R. No. L-28601, March receivership?
28, 1983)
A:
Q: Which court may appoint a receiver? 1. Party applying for receivership has an
existing interest in the property in
A: (Sec. 1, Rule 59) litigation
1. Court where action is pending 2. Verified application filed at any stage of
2. Court of Appeals or Supreme Court or a the proceedings even after final
member thereof judgment, prior to the satisfaction of
Note: During pendency of appeal, appellate court judgment (Sec. 1, Rule 59)
may allow receiver to be appointed by court of 3. Posting of bond (Sec. 2, Rule 59)
origin 4. Grounds stated in Sec. 1, Rule 59
5. Receiver must be sworn to perform his
Q: What is the effect of a contract executed by a duties faithfully
receiver without court approval?
c. REQUIREMENTS BEFORE ISSUANCE OF AN
A: Such contract will constitute his personal ORDER
undertakings and obligations (Pacific Merchandising
Corp. v. Consolacion Insurance & Surety Co., G.R. Q: What is the requirement before an order of
No. L-30204, October 29, 1976) appointment may be issued?
Note: Receivership cannot be effected on a property in
A: The applicant must file a bond executed in favor
custodialegis (LizarragaHnos. V. Abada, 40phil124).
of the party against whom the application is
But a receiver can be appointed where a property in
custody of an administrator or executor is in danger of
presented, in an amount fixed by court, to pay
imminent loss or injury. (Dolor v. Sindian, G.R. No. L- damages in case receivership is procured without
27631, April 30, 1971) sufficient cause. (Sec. 2, Rule 59)
a. CASES WHEN A RECEIVER MAY BE APPOINTED Note: The court may require an additional bond for
further security. (Sec. 2, Rule 59)
Q: In what cases may a receiver be appointed?
d. POWERS OF A RECEIVER
1. Applicant has an interest in the property Q: What are the powers of a receiver?
or fund subject of the action is in danger
of being lost, removed, or materially A: (Sec. 6, Rule 59)
injured 1. Power to bring and defend actions in his
2. Mortgaged property is in danger of being own name
Note: No action may be filed by or against a
dissipated or materially injured and that
receiver without leave of court which
its value is probably insufficient to
appointed him
discharge the mortgage debt or
2. Take and keep possession of the property
3. Stipulation in the contract of mortgage
in controversy
4. To preserve the property after judgment
3. Receive rents
during the pendency of the appeal or to
4. Collect debts due to himself as receiver or
dispose it according to judgment
to the fund, property, estate, person or
5. To aid execution when execution has
corporation of which he is a receiver
been returned unsatisfied
5. Compound for and compromise debts
6. Judgment debtor refuses to apply his
collected
property in satisfaction of the judgment
6. Make Transfers
or to carry on the judgment
7. Pay outstanding debts
7. Appointment of receiver is most
8. Divide money and other property that
convenient and feasible means of
shall remain among the persons legally
preserving, administering or disposing of
entitled to receive the same
the property in litigation
9. Invest funds in his hands only by order of
the court upon written consent of all the
parties to action;
127
10. Other acts which the court may authorize in specie, the recovery of damages being only
incidental (Am. Jur. 6). Replevin may be a main
Note: Funds in the hands of a receiver may be invested action or a provisional remedy. As a principal action
only by court order and written consent of all parties its ultimate goal is to recover personal property
to an action. capable of manual delivery wrongfully detained by
a person. The main action for replevin is primarily
e. TWO KINDS OF BONDS possessory in nature and generally determines
nothing more than the right of possession.
Q: What is the 2-bond requirement in
receivership?
Note: A writ of replevin may be served anywhere in
the Philippines (Regalado, Remedial Law Compendium,
A: Vol. I, p. 749, 2005 ed.)
1. Bond posted by the applicant (Sec. 2, Rule
59) Q: Distinguish replevin from preliminary
2. Bond posted by receiver appointed (Sec. attachment.
4, Rule 59)
A:
f. TERMIINATION OF RECEIVERSHIP Replevin Preliminary Attachment
Recovery of possession of Available even if
Q: What are the grounds for the discharge of personal property is the recovery of personal
receiver? principal relief and property is only an
damages are incidental incidental relief
A: This is available before Available from
1. Posting of counterbond by adverse defendant files an answer commencement but
party (Sec. 3, Rule 59) before entry of
Note: Where counterbond is judgment
insufficient or defective, receiver may Available only where May be resorted to even
be re-appointed (Sec. 5, Rule 59) defendant is in actual or if personal property is in
2. Appointment of receiver was made constructive possession of the custody of a third
without sufficient cause (Sec. 3, Rule personal property involved person
59) Extends only to personal Extends to all kinds of
3. Insufficient or defective applicant’s property capable of property whether real,
bond (Sec. 5, Rule 59) manual delivery personal or incorporeal
4. Insufficient or defective receiver’s Used to recover personal Recover property being
bond (Sec. 5, Rule 59) property even if not being concealed, removed or
5. Receiver no longer necessary (Sec. 8, concealed, removed or disposed
Rule 59) disposed
Cannot be availed of when Can be resorted to even
property is in if property is in
Q: How is receivership terminated?
custodialegis(under custodialegis
attachment) or seized
under search warrant
1. By court motupropio or on motion by
Property of GOCCs cannot Properties of GOCCs
either party be reached may be reached if
2. Based on the following grounds: utilized in its proprietary
a. Necessity for receiver no longer function.
exists Sheriff takes possession of Sheriff does not take
b. Receiver asserts ownership over the the property subject of the possession of the
property (Martinez v. Graño, G.R. replevin and hold the property attached
No. L-25437, August 14, 1926) same for a period of 5 except contructively
3. After due notice and hearing to all days after which said placing it under custodia
interested party property will be delivered legis.
to the party who obtained
6. REPLEVIN the writ.
Bond to be posted is Bond amount is fixed by
Q: What is replevin? double the value of the court and does not
property sought to be exceed the claim or
recovered value of the property to
A: Replevin is a proceeding by which the owner or be attached
one who has a general or special property in the
thing taken or detained seeks to recover possession
128
REMEDIAL LAW TEAM:
CIVIL PROCEDURE
Note: These remedies cannot be availed of in the same 1. Applicant is the owner of the property
case. claimed, particular description of such,
entitlement to possession
Q: To be able to secure financial accommodations 2. Property is wrongfully detained, alleging
from Makati Leasing, Wearever discounted and cause of detention according to
assigned several receivables under a Receivable applicant’s knowledge, information and
Purchase Agreement. To secure the collection of belief
the receivables assigned, private respondent 3. Property has not been taken for tax
executed a chattel mortgage over certain assessment or fine, or seized by writ of
machineries which were bolted to the ground. execution, preliminary attachment, in
Upon default Makati Leasing move for custodialegis, if so seized, that it is
extrajudicial foreclosure of the mortgage exempt or should be released from
properties and filed an action for replevin which custody
was granted by the court. Can the machineries 4. Actual market value of the property
bolted to the ground be a subject of replevin?
c. AFFIDAVIT AND BOND; REDELIVERY BOND
A: Machineries bolted to the ground are real
properties that may not be the subject to replevin Q: What are the contents of the affidavit?
(Makati Leasing and Finance Corporation v.
Wearever Textile Mills Inc. GR No L- 58469, May 16, A: Affidavit, alleging:
1983). 1. That the applicant is the owner of property
claimed, describing it or entitled to its possession;
a. WHEN MAY WRIT BE ISSUED 2. That the property is wrongfully detained by the
adverse party, alleging cause of its detention;
Q: When may a writ of replevin be issued? 3. That the property has not been distrained or
taken for tax assessment or fine or under writ of
A: This may only be obtained when the defendant execution/attachment or placed under
in the action has not yet filed his answer to the custodialegis or if seized, that it is exempt or should
complaint where it is necessary to: be released; and
1. Protect plaintiff’s right of possession to 4. The actual market value of the property.
property
2. Prevent defendant from destroying, Q: What is redelivery bond?
damaging or disposing of the property
Q: Can a writ of replevin be issued anywhere in the
Philippines? A: Bond, which must be double the value of
property, to answer for the return of property if
A: Under the Resolution of the Supreme Court adjudged and pay for such sum as he may recover
enbanc dated January 11, 1983, providing for the from the applicant (Sec. 2).
interim rules and guidelines relative to the
implementation of BP 129, a writ of replevin like Q: When is it required?
the one issued in the present case may be served
anywhere in the Philippines (Fernandez v. A: It is required that the redelivery bond be filed
International Corporate Bank now Union Bank of within the period of 5 days after the taking of the
the Philippines, GR No 131283, October 7, 1999). property. The rule is mandatory (Yang vs. Valdez,
177 SCRA 141).
b. REQUISITES
d. SHERIFF’S DUTY IN THE IMPLEMENTATION OF
Q: What are the requisites in applying for THE WRIT; WHEN PROPERTY IS CLAIMED BY THIRD
replevin? PARTY
A: Q: What are the duties of the sheriff?

1. Filing of Affidavit by any party before an
answer is filed A:
2. Posting of bond double the value of the 1. Serve a copy of the court order,
property application, affidavit and bond upon the
adverse party
Q: What are the contents of the affidavit? 2. Take the property and retain it in his
custody
129
3. If property is concealed, make a public rules that are applicable only to specific special civil
demand for the delivery of the property actions (sec. 3) The fact that an action is subject to
4. If property is not delivered, sheriff must special rules other than those applicable to ordinary
cause the building or enclosure to be civil actions is what makes a civil action special.
broken and take property and keep such
in his custody 2. ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL
5. Deliver the property to the party entitled ACTIONS
to such upon receiving his fees.
Q: Distinguish ordinary civil action from special
Q: When may a property subject of replevin be civil action.
returned?
A:
A: Ordinary Civil Action Special Civil Action
1. Filing of a redelivery bond double the Must be based on a Cause of action not
value of the property cause of action – act necessarily needed
2. Plaintiff’s bond is insufficient or defective or omission in Examples:
violation of the rights 1. Declaratory relief –
and is not replaced with a proper bond
of another action is brought before
3. Property is not delivered to the plaintiff
there is any breach
for any reason
2. Interpleader – plaintiff
files a complaint even if
Q: What are the remedies of a third person whose he has not sustained
property is taken by virtue of a replevin? actual transgression of
his rights
A: Venue is determined Not necessarily true as in quo
1. Third party shall file and serve affidavit either by the warranto, the venue is where
upon sheriff and applicant stating his residences of the the Supreme Court or Court
entitlement to possession parties where the of Appeals if the petition is
2. Sheriff shall return the property to third action is personal or commenced in any of these
person unless applicant files a bond (same by the location of the courts without taking into
amount as the value of the property) property where the consideration the residences
approved by court to indemnify the third action is real of the parties
person May be filed in Some actions may be filed
3. Claim for damages upon said bond must Municipal Trial Court only in the Municipal Trial
be filed within 120days from date of filing or the Regional Trial Court, some cannot be
of the bond Court depending commenced therein
upon the
jurisdictional amount
Q: Is the Rule on Prior or Contemporaneous
or nature of the
Service of Summons observed in Replevin? action
May be commenced May be commenced by the
A: Yes. Although the writ of replevin may be issued only by the filing of filing of a complaint or
ex-parte, it cannot be implemented or enforced if complaint petition
not preceded or accompanied by a service of
summons. Q: What are the special civil actions under the
Rules of Court?
S. SPECIAL CIVIL ACTIONS
A:
1. NATURE OF SPECIAL CIVIL ACTIONS 1. Interpleader (Rule 62)
2. Declaratory relief and similar remedies
Q: What are Special Civil Actions? (Rule 63)
3. Review of judgments and final orders of
A: Since a civil action in general is one by which a the COMELEC and the Commission on
party sues another for the enforcement or Audit (Rule 64)
protection of a right, or the prevention or redress of 4. Certiorari, prohibition and mandamus
a wrong (Sec. 3 [a], Rule 1, Rules of Court), a special (Rule 65)
civil action is generally brought or filed for the same 5. Quo warranto(Rule 66)
purpose. 6. Expropriation (Rule 67)
7. Foreclosure of real estate mortgage(Rule
Note: although both types of actions are governed by 68)
the rules for ordinary civil actions, there are certain
130
REMEDIAL LAW TEAM:
CIVIL PROCEDURE
8. Partition (Rule 69) Declaratory Relief

9. Forcible entry and unlawful detainer RTC
(Rule 70) Note: It would be error to
10. Contempt (Rule 71) file the petition with the SC
which has no original Where the petitioner or
jurisdiction to entertain a the respondent resides
Q: What are the three special civil actions which petition for declaratory relief
are within the jurisdiction of inferior courts? (Tano v. Socrates, G.R. No.
110249, Aug. 14, 1997)
A: Expropriation
1. Interpleader, provided that the amount is Land: where the
RTC (incapable of
within the jurisdiction of such inferior property is located
pecuniary estimation)
court
(Barangay San Roque v.
2. Ejectment suits Personal property: the
Heirs of Pastor, G.R. No.
3. Contempt place where the plaintiff
138896, June 20, 2000)
or defendant resides
Q: What special civil actions are initiated by Certiorari, Prohibition, Mandamus
complaints and initiated by petitions? RTC: if it is directed
against a municipal trial
A: court, a corporation, a
1. by complaint board, an officer or a
person.
a. interpleader
b. expropriation
CA or with the SB,
c. foreclosure of real estate mortgage whether or not the
d. partition same is in aid of the
e. forcible entry and unlawful detainer court’s appellate
2. by petition jurisdiction.
a. declaratory relief
b. review of judgments and final If the petition involves
RTC, CA, SC,
orders or resolutions of the an act or an omission of
Sandiganbayan COMELEC
COMELEC / COA a quasi-judicial agency,
in aid of its appellate
c. Certiorari unless otherwise
jurisdiction (A.M. No. 07-
d. Prohibition provided by law or the
7-12-SC)
e. Mandamus Rules, the petition shall
f. Quo Warranto be filed with and be
g. Contempt cognizable only by the
Court of Appeals.
3. JURISDICTION AND VENUE
In election cases
involving an act or
Q: Who has jurisdiction over special civil actions
omission of MTC /RTC,
and where should it be filed? it shall be filed
exclusively with the
A: COMELEC, in aid of its
Jurisdiction Venue appellate jurisdiction
Interpleader (Sec. 4, Rule 65)
MTC – where the value of Quo Warranto
the claim or the personal Where the plaintiff or
With the SC, CA, or in
property does not exceed any of the principal
the RTC exercising
P300,000 or P400,000 in plaintiff resides or where
jurisdiction over the
Metro Manila or where the the defendant or any of territorial area where
value of the real property the principal defendants the respondent or any
does not exceed P20,000 resides
of the respondents
or P50,000 in Metro RTC, CA, SC, SB in aid of its resides. When the
Manila. Note: The venue of special
civil actions is governed by appellate jurisdiction Solicitor General
the general rules on commences the action,
RTC – if the value exceeds it may be brought in a
venue, except as
the above amounts or if RTC in the City of
otherwise indicated in the
the subject matter is particular rule for said Manila, in the CA, or in
exclusively within the special civil action. the SC (Sec. 7, Rule 66)
jurisdiction of the RTC
131
Note: Subject to the

principle of Hierarchy of Q: Distinguish between interpleader and
Courts intervention.
Contempt
Where the charge for A:
indirect contempt has
INTERPLEADER INTERVENTION
been committed against
Special civil action, Not an original action but
RTC or a court of
independent and mere ancillary and
equivalent or higher
original depends upon the
rank, or against an
existence of a precious
officer appointed by it,
pending action.
the charge may be filed
Commenced by the Commenced by a motion
with such court.
filing of a complaint. to intervention filed in a
pending case attaching
Where such contempt
thereto the pleading- in-
MTC, RTC, CA, SC has been committed
intervention.
against a lower court,
the charge may be filed Filed by a person who Filed by a person who has a
with the RTC of the has no interest in the legal interest in any of the
place in which the lower subject matter of the following:
court is sitting; but the action or if he has an a. The subject matter of
proceedings may also interest, the same is the litigation;
not disputed by the b. The success of either
be instituted in such
lower court subject to claimants. of the parties; or
appeal to the RTC of c. The success of both of
such place (Sec. 5, Rule the parties; or
70) d. He may be adversely
affected by the
Forcible Entry
disposition or
Metropolitan Trial Courts;
Where the property is distribution of
covered by Rule on
located property in the
Summary Procedure
judgment.
Unlawful Detainer
The defendants are If a complaint- in-
Metropolitan Trial Courts;
Where the property is brought into the intervention is filed, the
covered by Rule on
located action only because defendants are already
Summary Procedure.
they are impleaded as parties to an existing suit
Partition
such in the complaint. not because of the
1. Real property –
intervention but because
where the property
of the original suit.
RTC is located
(incapable of pecuniary 2. Personal property
estimation) – the place where a. REQUISITES FOR INTERPLEADER
the plaintiff or
defendant resides Q: What are the requisites in order that the
(Sec. 13, Rule 69) remedy of interpleader may be availed of?
Foreclure of REM
RTC (incapable of A:
pecuniary estimation) 1. Plaintiff claims no interest in the subject
Where the land or any
(Barangay San Roque v. matter or his claim is not disputed
part thereof is located
Heirs of Pastor, G.R. No. 2. Two or more claimants asserting
138896, June 20, 2000) conflicting claims
3. The subject matter must be one and the
4. INTERPLEADER same
4. Person in possession or obliged files a
Q: What is an interpleader? complaint.
5. The parties to be interpleaded must make
A: It is a special civil action filed by a person against effective claims.
whom two conflicting claims are made upon the 6. Payment of docket and other lawful fees.
same subject matter and over which he claims no
interest, to compel the claimants to interplead and Note: Upon filing of complaint, the court shall issue an
to litigate their conflicting claims among order requiring conflicting claimants to interplead.
themselves. (Sec. 1, Rule 62). (Sec. 2, Rule 62)
132
REMEDIAL LAW TEAM:
CIVIL PROCEDURE
b. WHEN TO FILE 2. Cross-claim

3. Third-party complaints
Q: When must an action for interpleader be filed? 4. Responsive pleadings
A: Within a reasonable time after a dispute has Q: May an interpleader be availed of the resolve
arisen without waiting to be sued by claimants and breach of undertaking?
before such is barred from laches. (Feria, Civil
Procedure Annotated, Vol. II, p. 425, 2001 ed.) A: No. Such issue should be resolved in an ordinary
civil action for specific performance or other relief
Q: Which court has jurisdiction over an (Beltran v. PHHC, G.R. No. L-25138, August 28,
interpleader? 1969)
A: Inferior courts have jurisdiction so long as the 5. DECLARATORY RELIEF AND SIMILAR REMEDIES
amount involved is within their jurisdiction
Q: What is a declaratory relief?
Q: Should there be service of summons in
interpleader? A: A special civil action brought by a person
interested under a deed, will, contract or other
A: Summons and copies of the complaint and order written instrument, or whose rights are affected by
shall be served upon conflicting claimants. (Sec. 3, a statute, executive order or regulation, ordinance
Rule 62) or any other governmental regulation, before
breach or violation thereof, asking the court to
Note: Claimants shall have 15days to file an answer determine any question of construction or validity
and such answer must be served upon the plaintiff and arising, and for a declaration of his rights or duties
co-defendants. (Sec. 5, Rule 62). thereunder.
Q: What is the effect of failure of a claimant to file Q: What is the purpose of an action for declaratory
an Answer? relief?
A: Upon motion, the court may declare such

claimant in default and render a judgment barring A:
him from any claim in respect to the subject matter. 1. To determine any question of
(Sec. 5, Rule 62) construction or validity or
constitutionality of an instrument,
Q: May a motion to dismiss be filed? ordinance or regulation
2. Declaration of rights and duties
A: Yes. It may be filed by any of the claimant within thereunder
the time for filing an answer. (Sec. 4, Rule 62)
Q: Distinguish declaratory judgment from ordinary
Q: What are the grounds for filing a motion to judgment.
dismiss?
A:
A: (Sec. 4, Rule 62) DECLARATORY ORDINARY JUDGMENT
1. Impropriety of the interpleader action JUDGMENT
2. Grounds specified under Rule 16 of the Declaratory judgment Ordinary judgment
Rules of Court stands by itself and no involves executor or
executory process coercive relief
Q: What is the effect of filing a motion to dismiss? follows
Intended to determine Intended to remedy or
A: Period to file an answer is tolled and if the any question of compensate injuries
motion is denied, the answer may be filed within construction or validity already suffered
the remaining period which shall not be less than prior to breach or
5days from notice of denial. (Sec. 4, Rule 62) violation
Q: What are the other allowed pleadings in an a. WHO MAY FILE THE ACTION
interpleader?
Q: Who may file an action for declaratory relief?
1. Counterclaim A: Any person:
133
1. Interested under a deed, will, A: Court may motupropio or upon motion refuse
contract or other written instrument based on the following grounds:
2. Whose rights are affected by a 1. A decision will not terminate the
statute, executive order or uncertainty or controversy which gave
regulation, ordinance or any other rise to the action
governmental regulation 2. Declaration or construction is not
necessary and proper under the
b. REQUISITES OF ACTION FOR DECLARATORY circumstances
RELIEF
Note: Discretion to refuse does not extend to actions
Q: What are the requisites of an action for for reformation of an instrument quiet title or remove
declaratory relief? clouds or to consolidated ownership in a pacto de retro
sale. (Regalado, Remedial Law Compendium, Vol. I, p.
A: 769, 2005 ed.)
1. Filing of Petition before there is a breach
or violation Q: Can the court exercise discretion in application
2. Subject matter is a deed, will, contract, for declaratory relief?
written instrument, statute, executive
order, regulation or ordinance A:
1. In declaratory relief, the court is given
Note: The enumeration of the subject the discretion to act or not to act on the
matter is exclusive, hence, an action not petition. It may therefore choose not to
based on any of the enumerated subject construe the instrument sought to be
matters cannot be the proper subject of construed or could refrain from
declaratory relief. (Riano, Civil Procedure: A declaring the rights of the petitioner
Restatement for the Bar, p. 613, 2009 ed.) under the deed or the law. A refusal of
3. There is justiciable controversy the court to declare rights or construe
4. Issue is ripe for judicial determination an instrument is actually the functional
(Republic v. Orbecido III, G.R. No. 154380, equivalent of the dismissal of the
October 5, 2005), i.e. litigation is petition.
imminent and inevitable (Tolentino v. 2. On the other hand, the court does not
Board of Accountancy, G.R. No. L-3062, have the discretion to refuse to act with
September 28, 1951) respect to actions described as similar
5. Adequate relief is not available through remedies. Thus, in an action for
other means or other forms of action or reformation of an instrument, to quiet
proceedings (Ollada v. Central Bank, G.R. or to consolidate ownership, the court
No. L-11357, May 31, 1962) cannot refuse to render a judgment (Sec.
6. The controversy is between persons 5, Rule 63).
whose interests are adverse;
d. CONVERSION TO ORDINARY ACTION
Q: To whom shall notices be given?
Q: When may an action for declaratory relief be
A: converted into an ordinary action?
1. Solicitor general if subject matter
involves: A: After filing of petition for declaratory relief but
a. Validity of statute, executive order, before the final termination of the case or rendition
regulation or governmental of judgment, a breach or violation of an instrument,
regulation statute, executive order, regulation or ordinance
b. Constitutionality of local government takes place. (Sec. 6, Rule 63)
ordinance
2. Prosecutor or attorney of the local Q: Distinguish Ordinary Civil Action from Special
government unit if subject matter Civil Action for Declaratory Relief.
involves validity of local government unit
A:
c. WHEN COURT MAY REFUSE TO MAKE JUDICIAL 1. Ordinary civil action – plaintiff alleges that his
DECLARATION right has been violated by the defendant; judgment
rendered is coercive in character; a writ of
Q: When may a court refuse to make a judicial execution may be executed against the defeated
declaration? party.
134
REMEDIAL LAW TEAM:
CIVIL PROCEDURE
2. Special civil action of declaratory relief – an

impending violation is sufficient to file a declaratory A: It is not an action brought to reform a contract
relief; no execution may be issued; the court merely but to reform the instrument evidencing the
makes a declaration. contract. It presupposes that there is nothing wrong
with the contract itself because there is a meeting
Q: Is a third-party complaint proper in an action of minds between the parties. The contract is to be
for declaratory relief? reformed because despite the meeting of minds of
the parties as to the object and cause of the
A: No. Because in a third-party complaint, such contract, the instrument which is supposed to
person seeks to obtain contribution, indemnity, embody the agreement of the parties does not
subrogation or other reliefs and a declaratory relief reflect their true agreement by reason of mistake,
is confined merely to the interpretation of the inequitable conduct or accident. The action is
terms of a contract. (Commission of Customs v. brought so the true intention of the parties may be
Cloribel, G.R. No. 21036, June 30, 1977). expressed in the instrument (Art. 1359, CC).
Q: What are the instances wherein a declaratory Q: When may an instrument be reformed?
relief is unavailable?
A: The instrument may be reformed if it does not
A: express the true intention of the parties because of
1. To obtain judicial declaration of lack of skill of the person drafting the instrument
citizenship; (Art. 1363, CC). If the parties agree upon the
2. To establish illegitimate filiation and mortgage or pledge of property, but the instrument
determine hereditary rights; states that the property is sold absolutely or with a
3. The subject of the action is a court right of repurchase, reformation of the instrument
decision; is proper (Art. 1365, CC).
4. Actions to resolve political questions;
5. Those determinative of the issues rather Q: What is the remedy if the consent of a party to
than a construction of definite status, a contract has been procured by fraud, inequitable
rights and relations; conduct, or accident?
6. Terms of assailed ordinances are not
ambiguous or of doubtful meaning; A: Where the consent of a party to a contract has
7. In a petition to seek relief from a moot been procured by fraud, inequitable conduct or
and academic question; accident, and an instrument was executed by the
8. Where the contract or statute on which parties in accordance with the contract, what is
action is based has been breached; defective is the contract itself because of vitiation
9. When the petition is based on the of consent. The remedy is not to bring an action for
happening of a contingent event; reformation of the instrument but to file an action
10. When the petitioner is not the real party for annulment of the contract (Art. 1359, CC).
in interest; and
11. Where the administrative remedies have Note: Reformation of the instrument cannot be
not yet been exhausted. brought to reform any of the following:
1. Simple donation inter vivos wherein no condition
e. PROCEEDINGS CONSIDERED AS SIMILAR is imposed;
REMEDIES 2. Wills; or
3. When the agreement is void (Art. 1666, CC).
Q: What are the similar reliefs referred to under
Rule 63? (2) CONSOLIDATION OF OWNERSHIP
A:
Q: What is the purpose of an action brought to
1. Reformation of an instrument
consolidate ownership?
2. Quiet title to real property or to remove
clouds
3. Consolidation of ownership (Art. 1607, A: The action brought to consolidate ownership is
Civil Code) not for the purpose of consolidating the ownership
of the property in the person of the vendee or
(1) REFORMATION OF AN INSTRUMENT buyer but for the registration of the property. The
lapse of the redemption period without the seller a
Q: What is meant by reformation of instrument? retro exercising his right of redemption,
135
consolidates ownership or title upon the person of A: The plaintiff need not be in possession of the real
the vendee by operation of law. Art. 1607 requires property before he may bring the action as long as
the filing of the petition to consolidate ownership he can show that he has a legal or an equitable title
because the law precludes the registration of the to the property which is the subject matter of the
consolidated title without judicial order (Cruz vs. action (Art. 477, Civil Code).
Leis, 327 SCRA 570).
6. REVIEW OF JUDGMENT AND FINAL ORDERS OR
Note: The concept of consolidation of ownership RESOLUTIONS OF THE COMELEC AND COA
under Art. 1607, Civil Code, has its origin in the
substantive provisions of the law on sales. Under the Q: What is the constitutional basis for the
law, a contract of sale may be extinguished either by application of Rule 65 under Rule 64?
legal redemption (Art. 1619) or conventional
redemption (Art. 1601). Legal redemption (retracto
legal) is a statutory mandated redemption of a A: Sec. 7, Art. IX-A of the Constitution reads, “unless
property previously sold. For instance, a co-owner of a otherwise provided by the Constitution or by law,
property may exercise the right of redemption in case any decision, order or ruling of each commission
the shares of all the other co-owners or any of them may be brought to the Supreme Court on certiorari
are sold to a third person (Art. 1620). The owners of by the aggrieved party within 30 days from receipt
adjoining lands shall have the right of redemption of a copy thereof.” The provision was interpreted
when a piece of rural land with a size of one hectare or by the Supreme Court to refer to certiorari under
less is alienated (Art. 1621). Conventional redemption Rule 65 and not appeal by certiorari under Rule 45
(pacto de retro) sale is one that is not mandated by the (Aratuc vs. COMELEC, 88 SCRA 251; Dario vs. Mison,
statute but one which takes place because of the 176 SCRA 84). To implement the above
stipulation of the parties to the sale. The period of constitutional provision, the SC promulgated Rule
redemption may be fixed by the parties in which case 64.
the period cannot exceed ten (10) years from the date
of the contract. In the absence of any agreement, the
redemption period shall be four (4) years from the Q: What is the mode of review for judgments and
date of the contract (Art. 1606). When the redemption final orders of the COMELEC and COA?
is not made within the period agreed upon, in case the
subject matter of the sale is a real property, Art. 1607 A: The petition may be brought by the aggrieved
provides that the consolidation of ownership in the party to the Supreme Court on Certiorari under
vendee shall not be recorded in the Registry of Rule 65, except otherwise provided.
Property without a judicial order, after the vendor has
been duly heard. Note: Rule 65 applies to the mode of review under
Rule 64.Said mode of review is based on Article IX-A of
(3) QUIETING OF TITLE TO REAL PROPERTY the 1987 Constitution providing that the proper mode
of review is certiorari under Rule 65 to be filed before
the Supreme Court.Under R.A. 7902 the Court of
Q: What is an action for quieting title to real Appeals has jurisdiction over all adjudications of the
property? Civil Service Commission.
A: This action is brought to remove a cloud on title Note: The order to comment under Sec. 6, Rule 64 in
to real property or any interest therein. The action case the Supreme Court finds the petition sufficient in
contemplates a situation where the instrument or a form and substance is equivalent to summons in
record is apparently valid or effective but is in truth ordinary civil action.
and in fact invalid, ineffective, voidable or
unenforceable, and may be prejudicial to said title Q: What is the period for filing certiorari as
to real property. This action is then brought to referred to in Rule 64?
remove a cloud on title to real property or any
interest therein. It may also be brought as a A: The petition for certiorari referred to in Rule 64
preventive remedy to prevent a cloud from being shall be filed within 30 days from notice of the
cast upon title to real property or any interest judgment, final order or resolution of the COMELEC
therein (Art. 476, Civil Code). and the COA sought to be reviewed (Sec. 3, Rule
64).
Q: Is it required that the plaintiff be in the Note: While Rule 64 makes reference to the certiorari
possession of the property before an action is under Rule 65, the period for the filing of the petition
brought? for certiorari assailing the judgment of the COMELEC
and COA is shorter than that provided under Rule 65
136
REMEDIAL LAW TEAM:
CIVIL PROCEDURE
Q: When may the court issue an order to aggrieved party may file aggrieved party will have
comment? the petition within the another 60 days within
remaining period, but which to file the petition
A: If the SC finds the petition sufficient, which shall not be less counted from the notice
respondents will be ordered to file a verified than 5 days. of denial.
comment within 10days from notice of such order.
(Sec. 6, Rule 64) b. DISTINCTION IN THE APPLICATION OF RULE 65
TO JUDGMENTS OF THE COMELEC AND COA AND
Q: What are basic requirements for the petition? THE APPLICATION OF RULE 65 TO OTHER
TRIBUNALS, PERSONS AND OFFICERS
A: The following basic requirements must be
complied with: Q: Distinguish the mode of review of judgment,
1. The petition shall be verified and filed in 18 final orders or resolutions of COMELEC and COA
copies; from other tribunals, persons and officers.
2. Accompanied by clearly legible duplicate original
or certified true copy of the judgment, final order or A:
resolution subject thereof, together with certified Review of judgment,
true copies of documents relevant and pertinent to final orders or
Rule 64 for COMELEC
the petition; resolutions of other
and COA
3. The aggrieved party is named as the petitioner tribunals, persons and
officer
and shall join as respondent the commission
Petition is based on Petition is based on
concerned and all the persons interested in
questions of law questions of law
sustaining the judgment, final order or resolution.
It is a mode of appeal
4. The petition shall state the facts with certainty,
but the petition used It is a mode of appeal
present clearly the issues involved, set forth the is Rule 65
grounds and brief arguments relied upon for Involves review of Involves the review of
review; judgments, final the judgment final
5. Petition shall state the specific material dates orders or resolutions orders or resolutions of
showing that it was filed within the period fixed by of COMELEC and COA the CA, Sandiganbayan,
the Rules. CTA, RTC or other courts
6. The petition shall be accompanied by proof of Filed within 30 days Filed within 15 days
service of a copy thereof on the commission from notice of from notice of
involved and on the adverse party, and of the judgment, final order judgment, final order or
timely payment of docket and other lawful fees or resolution sought resolution appealed
(Sec. 5, Rule 64) to be reviewed from
7. Certification against non forum shopping
8. Petition shall pray for a judgment annulling or Does not stay the
modifying the questioned judgment, final order or execution unless SC
resolution. shall direct otherwise Stays the judgment or
upon such terms as it order appealed from
Note: The failure of the petitioner to comply with any may deem just
of the foregoing requirements shall be sufficient
ground for the dismissal of the petition (Sec. 5, Rule The appellant and the
The COMELEC and
64). appellee are the original
COA shall be public
parties to the action,
respondents who are
and the lower court or
a. APPLICATION OF RULE 65 UNDER RULE 64 impleaded in the
quasi-judicial agency is
action
not impleaded
Q: Distinguish Rule 64 from Rule 65.
The filing of MNT or
A: MR, if allowed under
Rule 64 Rule 65 Motion for
the procedural rules of
Directed only to the Directed to any tribunal, reconsideration is not
the Commission, shall
judgments, final orders or board or officers required
interrupt period fixed
resolutions of the exercising judicial or
COMELEC and COA; quasi-judicial functions; The court is in the
Must be filed within 30 Must be filed within 60 The court is in the
exercise of its
days from notice of days from notice of exercise of its appellate
appellate jurisdiction
judgment or resolution judgment or resolution jurisdiction and power
and power of review
If MR is denied, the If MR is denied, the of review
137
Petition for certiorari Petition for certiorari is b. Certified true copy of material
is to be filed before to be filed only with the records of the case
the SC Court of Appeals 4. Statement of material dates
5. Sworn certification against forum
Q: What are the requisites for a review under Rule shopping
64? 6. Proof of service
A:
1. Filing of verified petition within 30days Q: What are the grounds for the outright dismissal
from notice of the judgment, final orders of the petition?
or resolutions (Sec. 3, Rule 64)
Note: Interlocutory orders must be assailed A: (Sec. 6, Rule 64)
under Rule 65, not Rule 64 1. Petition is not sufficient in form and
2. Payment of docket and other lawful fees substance (Sec. 5, Rule 64)
(Sec. 4, Rule 64) 2. Petition was filed for purpose of delay
3. Issue is unsubstantial
Note: The filing of the petition for certiorari does not
stay the execution of the assailed judgment, final order Q: Are findings of fact reviewable under Rule 64
or resolution of the Commission unless SC directs using Rule 65?
otherwise by the issuance of a temporary restraining
order or preliminary injunction. (Sec. 8, Rule 64)
A: The petition under Rule 64 using Rule 65, cannot
question the findings of fact of the commission
Q: What are the contents of the petition?
involved where such findings are supported by
substantial evidence. Such findings when so
supported by the requisite quantum of evidence
1. Verified petition filed in 18copies joining
are final and non- reviewable (Sec 5, Rule 64).
as respondents the Commission
concerned and person/s interested in
Q: What is the effect of filing of a motion for new
sustaining the judgment, final order or
trial or reconsideration if allowed under the
resolution a quo
procedural rules of the commission concerned?
2. Statement of facts, issues, grounds for
review, arguments and relief prayed for
A: It will interrupt the period for filing the petition
3. Attachment of:
and if motion is denied, the petition may be filed
a. Duplicate original or certified true
within the remaining period which shall not be less
copy of assailed judgment, final
than 5days. (Sec. 3, Rule 64)
order or resolution
7. CERTIORARI, PROHIBITION AND MANDAMUS
GENERAL MATTERS
a. DEFINITIONS AND DICTINCTIONS
CERTIORARI PROHIBITION MANDAMUS

Certiorari is an extraordinary writ Prohibition is an extraordinary writ Mandamus is an extraordinary writ
annulling or modifying the commanding a tribunal, commanding a tribunal, corporation, board
proceedings of a tribunal, board or corporation, board or person, or person, to do an act required to be done:
officer exercising judicial or quasi- whether exercising judicial, quasi- (a) When he unlawfully neglects the
judicial functions when such tribunal, judicial or ministerial functions, to performance of an act which the law
board or officer has acted without or desist from further proceedings specifically enjoins as a duty, and there is no
in excess of its or his jurisdiction, or when said proceedings are without other plain, speedy and adequate remedy in
with grave abuse of discretion or in excess of its jurisdiction, or the ordinary course of law; or
amounting to lack or excess of with abuse of its discretion, there (b) When one unlawfully excludes another
jurisdiction, there being no appeal or being no appeal or any other plain, from the use and enjoyment of a right or
any other plain, speedy and adequate speedy and adequate remedy in the office to which the other is entitled (Sec. 3,
remedy in the ordinary course of law ordinary course of law (Sec. 2, Rule Rule 65).
(Sec. 1, Rule 65). 65).
Directed against a person exercising to Directed against a person exercising Directed against a person exercising
judicial or quasi-judicial functions judicial or quasi-judicial functions, ministerial duties
or ministerial functions
138
REMEDIAL LAW TEAM:
CIVIL PROCEDURE
To correct an act performed by To prevent the commission of an To compel performance of an act

respondent act
Purpose is to annul or modify the Purpose is to stop the proceedings Purpose is to compel performance of the act
proceedings required and to collect damages
Person or entity must have acted Person or entity must have acted Person must have neglected a ministerial
without or in excess of jurisdiction, or without or in excess of jurisdiction, duty or excluded another from a right or
with grave abuse of discretion or with grave abuse of discretion office
Extends to discretionary and

Extends to discretionary acts Only for ministerial acts
ministerial acts
Only against a respondent exercising

Against respondents who exercise judicial and/or non-judicial functions
judicial or quasi-judicial functions
Q: When does the court acquire jurisdiction over the law is, what the rights of the parties
the person of the respondent in original actions are, and undertakes to determine these
for certiorari, prohibition and mandamus? questions and adjudicate upon the rights
of the parties.
A: 2. Without jurisdiction – is where the
1. If the action is filed with the RTC – Follow respondent does not have the legal
the rules on ordinary civil actions. power to determine the case.
Jurisdiction is acquired by the service of 3. Excess of jurisdiction – is where the
summons to the respondent or by his respondent, being clothed with the power
voluntary appearance in court. to determine the case, oversteps his
2. If the action is filed with the CA or the SC – authority as determined by law.
The court acquires jurisdiction over the 4. Grave abuse of discretion – is where the
respondents with the service on them of respondent acts in a capricious,
its orders indicating its initial action on whimsical, arbitrary or despotic manner
the petition or by voluntary submission to in the exercise of his judgment as to be
such jurisdiction. said to be equivalent to lack of
jurisdiction. The abuse of discretion must
CERTIORARI be so patent and gross as to amount to an
evasion of positive duty or to a virtual
Q: What is certiorari? refusal to perform a duty enjoined by law,
or to act at all in contemplation of law, as
A: A writ issued by a superior court to an inferior where the power is exercised in an
court, board or officer exercising judicial or quasi- arbitrary and despotic manner by reason
judicial functions whereby the record of a particular of passion or personal hostility.
case is ordered to be elevated for review and 5. Plain, speedy and adequate remedy – is
correction in matters of law. one which promptly relieves the
petitioner from the injurious effects of
Note: An original action for certiorari, prohibition, and the judgment and the acts of the lower
mandamus is an independent action. As such, it does court or agency.
not interrupt the course of the principal.
Q: Which court has jurisdiction over petitions for
Note: A petition for certiorari must be based on certiorari?
jurisdictional grounds because as long as the
respondent acted with jurisdiction, any error A: The courts have concurrent jurisdiction,
committed by him or it in the exercise thereof will
however, petitions are subject to the rule on
amount to nothing more than an error of judgment
hierarchy of courts.
which may be reviewed or corrected by appeal
(Microsoft Corp. vs. Best Deal Computer Center Corp.,
GR 148029, Sept. 24, 2002; Estrera vs. CA, GR 154235,
Aug. 16, 2006). Q: Does the filing of a petition for certiorari
interrupt the running of the reglamentary period?
Q: Define the following.
A: No. The rule is the same for prohibition and
A: mandamus since the remedies under Rule 65 are
1. Judicial function – is where the tribunal or independent actions.
person has the power to determine what
139
Q: Distinguish certiorari under Rule 65 and principal case. It is necessary therefore, to avail of
certiorari under Rule 45. either a temporary restraining order or a writ of
preliminary injunction to be issued by a higher
A: court against the public respondent so the latter
Rule 65 Rule 45 may, during the pendency of the petition, be
Findings of fact of Court GR: Findings of fact of CA enjoined from further proceeding with the case (sec
of Appeals are not are conclusive 7, Rule 65).
conclusive or binding
upon SC Q: Are the remedies of appeal and certiorari
Involves question of Involves question of law exclusive?
jurisdiction
Mode of appeal Mode of review A:
Directed against an Involves the review of the GR: Where the proper remedy is appeal, the
interlocutory order of a judgment final orders or action for certiorari will not be entertained.
court or where there is resolutions of the CA, Certiorari is not a remedy for errors of
no appeal or any other Sandiganbayan, CTA, RTC
judgment. Errors of judgment are correctible by
plain, speedy or adequate or other courts
appeal; errors of jurisdiction are reviewable by
remedy
certiorari.
Filed not later than 60 Filed within 15 days from
days from notice of notice of judgment, final
judgment, order or order or resolution XPN: A petition for certiorari may be allowed
resolution appealed from appealed from despite the availability of the remedy of appeal
Unless a writ of Stays the judgment or when:
preliminary injunction or order appealed from 1. Appeal does not constitute a speedy and
temporary restraining adequate remedy;
order is issued, it does 2. Orders were issued either in excess of or
not stay the challenged without jurisdiction;
proceeding 3. For certain special considerations as for
The judge, court, quasi- The appellant and the public policy or public welfare;
judicial agency, tribunal, appellee are the original 4. Order is a patent nullity;
corporation, board, parties to the action, and 5. Decision in the certiorari case will avoid
officer or person shall be the lower court or quasi- future litigation; or
public respondents who judicial agency is not 6. In criminal actions, the court rejects
are impleaded in the impleaded rebuttal evidence for the prosecution as,
action in case of acquittal, there could be no
Motion for Motion for remedy (Regalado, Remedial Law
reconsideration or for reconsideration is not
Compendium, Vol. I, p. 783, 2007 ed.).
new trial is required. required
Note: When the remedy by appeal had already been
If a motion for lost due to petitioner’s own neglect or error in the
reconsideration or new choice of remedies, certiorari cannot lie. The two
trial is filed, another 60 remedies are mutually exclusive (Meralco v. CA, G.R.
days shall be given to the No. 88396, July 4, 1990).
petitioner (A.M. No. 02-
03-SC) PROHIBITION
Court exercises original The court is in the
jurisdiction exercise of its appellate Q: What is prohibition?
jurisdiction and power of
review. A: A remedy to prevent inferior courts,
Filed with the RTC, CA, Filed with the SC corporations, boards or persons from usurping or
Sandiganbayan or
exercising a jurisdiction or power which they have
COMELEC
not been vested by law.
Q: Will the filing of a petition for certiorari Note: It is commenced by a verified petition
interrupt the course of the principal case? Or is an accompanied by a certified true copy of the judgment,
injunctive relief necessary? order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent
A: The filing of a petition for certiorari against the thereto, and a sworn certification of non-forum
lower court or tribunal or any other public shopping (Sec. 2, Rule 65).
respondent does not interrupt the course of the
140
REMEDIAL LAW TEAM:
CIVIL PROCEDURE
Q: Distinction between Prohibition and injunction ministerial duty

To perform a positive To prevent an act to
A: legal duty and not to undo maintain the status quo
INJUNCTION PROHIBITION what has been done between the parties
Directed only to the Directed to court itself,
party litigants, without commanding it to cease b. REQUISITES
in any manner from the exercise of a
interfering with the jurisdiction to which it has CERTIORARI PROHIBITION MANDAMUS
court. no legal claim. That the petition The petition is The plaintiff has a
is directed directed against a clear legal right to
Q: What is the function of writ of prohibition? against a tribunal, the act
tribunal, board corporation, demanded;
A: It is a preventive remedy. Its function is to or officer board or person
restrain the doing of some act about to be done. It exercising exercising
is not intended to provide a remedy for acts already judicial or quasi-judicial, quasi-
accomplished. If the thing be already done, the writ judicial judicial, or
of prohibition cannot undo it (Agustin v. De la functions; ministerial
Fuente, G.R. No. L-2345, Aug. 31, 1949). functions;
The tribunal, The tribunal, It must be the
MANDAMUS board or officer corporation, duty of the
has acted board or person defendant to
Q: What is mandamus? without, or in must have acted perform the act,
excess of without or in which is
jurisdiction or excess of ministerial and
A: A writ issued in the name of the State, to an
with abuse of jurisdiction or not discretionary,
inferior tribunal, corporation, board or person,
discretion with grave abuse because the same
commanding the performance of an act which the
amounting to of discretion is mandated by
law enjoins as a duty resulting from an office, trust lack or excess or amounting to lack law;
or station. jurisdiction of jurisdiction;
There is no There is no The defendant
Note: It is commenced by the filing of a verified
appeal or any appeal or any unlawfully
petition accompanied by certified true copy of the
plain, speedy and plain, speedy and neglects the
judgment, order or resolution subject thereof, copies
adequate adequate remedy performance of
of all pleadings and documents relevant and pertinent
remedy in the in the ordinary the duty enjoined
thereto and a sworn certification of non-forum
ordinary course course of law. by law;
shopping (Sec. 3, Rule 65).
of law.
Accompanied by Accompanied by There is no appeal
Q: Distinguish mandamus from quo warranto.
a certified true a certified true or any plain,
copy of the copy of the speedy and
A: judgment or judgment or adequate remedy
Mandamus Quo Warranto order subject of order subject of in the ordinary
Available when one is Available against the the petition, the petition, course of law.
unlawfully excluded from holder of an office, who copies of all copies of all
the use or enjoyment of is the person claiming the pleadings and pleadings and
an office against a person office as against documents documents
who is responsible for petitioner, not relevant and relevant and
excluding the petitioner necessarily the one who pertinent pertinent thereto,
excludes the petitioner thereto, and and sworn
sworn certification of
Q: Distinguish mandamus from injunction. certification of non-forum
non-forum shopping under
A: shopping under Rule 46.
Mandamus injunction Rule 46.
Special civil action Ordinary civil action
Directed against a Directed against a litigant Q: What are the requisites of a valid certiorari?
tribunal, corporation
board, or officer A:
Purpose is for tribunal, For the defendant either 1. There must be a controversy;
corporation, board or to refrain from an act or 2. Respondent is exercising judicial or quasi-
officer to perform to perform not judicial functions;
ministerial and legal duty necessarily a legal and
141
3. Respondents acted without or in excess of A:

its jurisdiction or with grave abuse of 1. Summary procedure
discretion amounting to lack of 2. Writ of Amparo
jurisdiction; and 3. Writ of Habeas Data
4. There must be no appeal or other plain, 4. Small claims cases (Riano, Civil Procedure:
speedy and adequate remedy. (Sec. 1, A Restatement for the Bar, p. 629, 2009
Rule 65) ed.)
Note: Certiorari is not the remedy for a loss appeal. Q: When is prohibition issued?
Q: What are the requisites of a valid prohibition? A:

GR: Prohibition does not ordinarily lie to
A: Sec. 2, Rule 65 restrain an act which is already fait accompli.
1. There must be a controversy
2. Respondent is exercising judicial, quasi- XPN: It will lie to prevent the creation of a new
judicial functions or ministerial functions province by those in the corridors of power who
3. Respondents acted without or in excess of could avoid judicial intervention and review by
its jurisdiction or with grave abuse of merely speedily and stealthily completing the
discretion amounting to lack of commission of such illegality. (Tan v. COMELEC,
jurisdiction G.R. No. 73155, July 11, 1986)
4. There must be no appeal or other plain,
speedy and adequate remedy Note: Prohibition and not mandamus, is the remedy
where a motion to dismiss is wrongfully denied
Q: What are the requisites of a valid mandamus? (Enriquez v. Macadaeg, G.R. No. L-2422, Sept. 30,
1949)
A: Sec. 3, Rule 65
1. There must be a clear legal right or duty Q: What are the grounds for mandamus?
2. The act to be performed must be within
the powers of the respondent to perform; A:
3. The respondent must be exercising a 1. When any tribunal, corporation, board,
ministerial duty officer or person unlawfully neglects the
4. The duty or act to be performed must be performance of an act which the law
existing (a correlative right will be denied specifically enjoins as a duty resulting
if not performed by the respondent) from an office, trust or station; or
5. There is no appeal or other plain, speedy 2. When any tribunal, corporation, board,
and adequate remedy in the ordinary officer or person unlawfully excludes
course of law another from the use and enjoyment of a
right or office to which the other is
c. WHEN PETITION FOR CERTIORARI, PROHIBITION entitled (Sec. 3)
AND MANDAMUS IS PROPER
Q: Will mandamus issue despite the availability of
Q: What are the grounds for the filing of a petition administrative remedies?
for certiorari?
A:
A: That a tribunal, board or officer exercising GR: Mandamus will not issue when
judicial or quasi-judicial functions acted: administrative remedies are still available.
1. Without or in excess of jurisdiction
2. In grave abuse of discretion amounting to
lack or excess of jurisdiction XPN:
1. If the party is in estoppel (Vda. de Tan v.
Note: It is commenced by the filing of a verified Veterans Backpay Commission, G.R. No. L-
petition accompanied by certified true copy of the 12944, Mar. 30, 1959); or
judgment, order or resolution subject thereof, copies 2. Only questions of law are raised.
of all pleadings and documents relevant and pertinent (Madrigal v. Lecaroz, G.R. No. L-46218,
thereto and a sworn certification of non-forum Oct. 23, 1990)
shopping. (Sec. 1, Rule 65).
Q: May mandamus be used to compel a
Q: When is certiorari under Rule 65 unavailable? discretionary duty?
142
REMEDIAL LAW TEAM:
CIVIL PROCEDURE
A: Mandamus is only applicable to a ministerial Raises only questions of Raises questions of

duty. However, mandamus can be used to the law; jurisdiction because a
extent of requiring the performance of a tribunal, board or officer
discretionary duty to act but not to require exercising judicial or quasi-
performance of such duty in a particular manner. judicial functions has acted
without jurisdiction or in
Q: May the CA award damages in mandamus excess of jurisdiction or
proceedings? with grave abuse of
discretion amounting to
lack of jurisdiction;
A: Yes. The CA in resolving a petition for mandamus
is authorized to award civil damages in the same Filed within 15 days from Filed not later than 60 days
petition (Vital-Gozon v. CA, G.R. No. 101428, Aug. 3 notice of judgment or final from notice of judgment,
order appealed from, or of order or resolution sought
1992)
the denial of petitioner’s to be assailed and in case a
motion for reconsideration motion for reconsideration
d. INJUNCTIVE RELIEF or new trial; or new trial is timely filed,
whether such motion is
Q: When is injunctive relief proper? required or not, the 60 day
period is counted from
A: The court in which the petition is filed may issue notice of denial of said
orders expediting the proceedings, and it may also motion;
grant a temporary restraining order or a writ of Extension of 30 days may Extension no longer
preliminary injunction for the preservation of the be granted for justifiable allowed;
rights of the parties pending such proceedings. The reasons
petition shall not interrupt the course of the Does not require a prior Motion for
principal case unless a temporary restraining order motion for Reconsideration is a
or a writ of preliminary injunction has been issued reconsideration; condition precedent,
against the public respondent from further subject to exceptions
proceeding in the case (Sec. 7, Rule 65). Stays the judgment Does not stay the
The public respondent shall proceed with the appealed from; judgment or order subject
principal case within ten (10) days from the filing of of the petition unless
a petition for certiorari with a higher court or enjoined or restrained;
tribunal, absent a Temporary Restraining Order Parties are the original The tribunal, board, officer
(TRO) or a Writ of Preliminary Injunction, or upon parties with the appealing exercising judicial or quasi-
its expiration. Failure of the public respondent to party as the petitioner and judicial functions is
proceed with the principal case may be a ground for the adverse party as the impleaded as respondent
an administrative charge (AM 07-7-12-SC, Dec. 12, respondent without
2007). impleading the lower court
or its judge;
e. CERTIORARI DISTINGUISHED FROM APPEAL BY Filed with only the May be filed with the
CERTIORARI; PROHIBITION AND MANDAMUS Supreme Court Supreme Court, Court of
DISTINGUISHED FROM INJUNCTION; WHEN AND Appeals, Sandiganbayan,
or Regional Trial Court
WHERE TO FILE PETITION
SC may deny the decision
motupropio on the ground
Q: Distinguish certiorari from appeal by certiorari.
that the appeal is without
merit, or is prosecuted
Certiorari as a Mode of Certiorari as a Special Civil manifestly for delay, or
Appeal (Rule 45) Action (Rule 65) that the questions raised
Called petition for review A special civil action that is therein are too
on certiorari, is a mode of an original action and not a unsubstantial to require
appeal, which is but a mode of appeal, and not a consideration.
continuation of the part of the appellate
appellate process over the process but an
Note: The remedies of appeal and certiorari are
original case; independent action.
mutually exclusive and not alternative or successive.
Seeks to review final May be directed against an The antithetic character of appeal and certiorari has
judgments or final orders; interlocutory order of the been generally recognized and observed save only on
court or where not appeal those rare instances when appeal is satisfactorily
or plain or speedy remedy shown to be an inadequate remedy. Thus, a petitioner
available in the ordinary must show valid reasons why the issues raised in his
course of law petition for certiorari could not have been raised on
143
appeal (Banco Filipino Savings and Mortgage Bank vs. CA, 334 SCRA 305).
Q: Distinguish prohibition and mandamus from injunction.
A:
Prohibition Mandamus Injunction
Prohibition is an extraordinary writ Mandamus is an extraordinary writ Main action for injunction seeks to
commanding a tribunal, corporation, commanding a tribunal, corporation, enjoin the defendant from the
board or person, whether exercising board or person, to do an act required to commission or continuance of a
judicial, quasi-judicial or ministerial be done: specific act, or to compel a particular
functions, to desist from further (a) When he unlawfully neglects the act in violation of the rights of the
proceedings when said proceedings are performance of an act which the law applicant. Preliminary injunction is a
without or in excess of its jurisdiction, or specifically enjoins as a duty, and there is provisional remedy to preserve the
with abuse of its discretion, there being no other plain, speedy and adequate status quo and prevent future wrongs
no appeal or any other plain, speedy and remedy in the ordinary course of law; or in order to preserve and protect
adequate remedy in the ordinary course (b) When one unlawfully excludes certain interests or rights during the
of law (Sec. 2, Rule 65). another from the use and enjoyment of pendency of an action.
a right or office to which the other is
entitled (Sec. 3, Rule 65).
Special civil action Special civil action Ordinary civil action
To prevent an encroachment, excess, To compel the performance of a For the defendant either to refrain
usurpation or assumption of jurisdiction; ministerial and legal duty; from an act or to perform not
necessarily a legal and ministerial
duty;
May be directed against entities May be directed against judicial and non- Directed against a party
exercising judicial or quasi-judicial, or judicial entities
ministerial functions
Extends to discretionary functions Extends only to ministerial functions Does not necessarily extend to
ministerial, discretionary or legal
functions;
Always the main action Always the main action May be the main action or just a
provisional remedy
May be brought in the Supreme Court, May be brought in the Supreme Court, May be brought in the Regional Trial
Court of Appeals, Sandiganbayan, or in Court of Appeals, Sandiganbayan, or in Court which has jurisdiction over the
the Regional Trial Court which has the Regional Trial Court which has territorial area where respondent
jurisdiction over the territorial area jurisdiction over the territorial area resides.
where respondent resides. where respondent resides.
f. EXCEPTIONS TO FILING OF MOTION FOR passed upon by the lower court, or are
RECONSIDERATION BEFORE FILING PETITION the same as those raised and passed upon
in the lower court;
Q: Is it an absolute rule that before recourse to 3. Urgent necessity for the resolution of the
certiorari is taken a motion for reconsideration question, and any further delay would
must be filed? prejudice the interests of the Government
or of the petitioner, or the subject matter
A: of the action is perishable;
GR: Petition for certiorari will not be 4. Under the circumstances, a motion for
entertained unless the public respondent has reconsideration would be useless;
been given first the opportunity through a 5. Petitioner was deprived of due process
motion for reconsideration to correct the error and there is extreme urgency for relief;
being imputed to him. 6. In a criminal case, relief from an order of
arrest is urgent and the granting of such
XPNs: A prior motion for reconsideration is not relief by the trial court is improbable;
necessary to entertain a petition for certiorari 7. Proceedings in the lower court are a
where: nullity for lack of due process;
1. Order is a patent nullity, as where the 8. Proceedings were ex parte or in which the
court a quo has no jurisdiction; petitioner had no opportunity to object;
2. Questions raised in the certiorari and
proceedings have been duly raised and
144
REMEDIAL LAW TEAM:
CIVIL PROCEDURE
9. Issue raised is one purely of law or where without merit, prosecuted manifestly for delay, or
public interest is involved. raises questions which are too unsubstantial to
require consideration?
g. RELIEFS PETITIONER IS ENTITLED TO
A: The court may dismiss the petition. In such
Q: What are the reliefs a petitioner is entitled to event, the court may award in favor of the
with this action? respondent treble costs solidarily against the
petitioner and counsel, in addition to subjecting
A: counsel to administrative sanctions under Rules 139
The primary relief will be the annulment or and 139-B.
modification of the judgment, order, or resolution
or proceeding subject of the petition. It may also The Court may impose motu proprio, based on res
include such other Incidental reliefs as law and ipsa loquitur, other disciplinary sanctions or
justice may require (sec 1, Rule 65) The court may measures on erring lawyers for patently dilatory
also award damages in its judgment and the and unmeritorious petitions for certiorari (Sec. 8, as
execution of the award for damages or costs shall amended by A.M. No. 07-7-12-SC).
follow the procedure in sec 1 of rule 39 (sec 9, rule
65). 8. QUO WARRANTO
h. ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION Q: What is quo warranto?

CASES
A: A proceeding or writ issued by the court to
Q: What is the rule on acts or omissions of the determine the right to use an office, position or
MTC or RTC regarding election cases? franchise and to oust the person holding or
exercising such office, position or franchise if his
A: In election cases involving an act or an omission right is unfounded or if a person performed acts
of a municipal or a regional trial court, the petition considered as grounds for forfeiture of said exercise
shall be filed exclusively with the Commission on of position, office or franchise.
Elections, in aid of its appellate jurisdiction. (Sec.4,
Rule 65, As amended by AM No. 07-7-12-SC, Dec. Note: It is commenced by a verified petition brought in
12, 2007) the name of the Republic of the Philippines or in the
name of the person claiming to be entitled to a public
office or position usurped or unlawfully held or
i. WHERE TO FILE PETITION
exercised by another. (Sec. 1)
Q: When and where to file petition? Q: What are the classifications of quo warranto
proceedings?
A:
1. Supreme Court- Subject to the doctrine of A:
hierarchy of courts and only when compelling 1. Mandatory – brought by the Solicitor
reasons exist for not filing the same with the lower General or Public prosecutor when:
courts. a. directed by the President;
2. Court of Appeals only- If the petition involves an b. upon complaint or when he has
act or an omission of a quasi-judicial agency, unless reason to believe that the cases for
otherwise provided by law or rules. quo warranto can be established by
3. Court of Appeals and Sandiganbayan- Whether proof (Sec. 2)
or not in aid of appellate jurisdiction. c. at the request and upon the relation
4. Regional Trial Court- If the petition relates to an if another person (ex relatione), but
act or an omission of an MTC, corporation, board, leave of court must first be obtained.
officer or person. (Sec. 3)
5. COMELEC- In election cases involving an act or an
omission of an MTC or RTC 2. Discretionary – brought by the Solicitor
As amended by AM No. 07-7-12-SC, Dec. 12, 2007. General or a public prosecutor at the
request and upon the relation of another
j. EFFECTS OF FILING OF AN UNMERITORIOUS person, provided there must be:
PETITION a. leave of court
b. at the request and upon the relation
Q: What is the effect of a petition for certiorari, of another person
prohibition or mandamus which is patently c. indemnity bond (Sec. 3)
145
protest (Cesar v. Garrido, G.R. No. 30705, Mar. 25,

Q: Distinguish quo warranto in elective office from 1929).
an appointive office.
b. WHEN GOVERNMENT COMMENCE AN ACTION
A: AGAINST INDIVIDUALS
c. WHEN INDIVIDUAL MAY COMMENCE AN
Elective Office Appointive Office ACTION
Issue: eligibility of the Issue: validity of the
respondent appointment Q: Who commences the action?
Court will oust the
Occupant declared
person illegally A:
ineligible/disloyal will be
appointed and will order 1. The solicitor general or public prosecutor,
unseated but petitioner
the seating of the person when directed by the President of the
will not be declared the
who was legally
rightful occupant of the Philippines, or when upon complaint or
appointed and entitled to
office. otherwise he has good reason to believe
the office.
that any case specified in the proceding
section can be established by proof.
a. DISTINCTION FROM QUO WARRANTO UNDER
(mandatory quo warranto)
OMNIBUS ELECTION CODE
2. The Solicitor General or a public
Q: Distinguish quo warranto under Rule 66 from prosecutor may, with the permission of
quo warranto under Omnibus Election Code. court, bring an action at the request and
upo n the relation of another person.
A: (discretionary quo warranto)
Quo Warranto Under Rule Quo Warranto In 3. A person claiming to be entitled to a
66 Electoral Proceedings public office or position or unlawfully held
Prerogative writ by which or exercised by anoher may also bring
the government can call action, in his own name.
To contest the right of
upon any person to show
an elected public officer
by what title he holds a Q: Against whom a quo warranto may be filed?
to hold public office.
public office or exercises a
public franchise. A: The action must be filed against:
Grounds: 1. A person who usurps, intrudes into, or
Grounds: 1. usurpation
ineligibility or unlawfully holds or exercises a public
2. forfeiture
disqualification to hold office, position or franchise;
3. illegal association
the office 2. A public officer who does or suffers an act
Presupposes that the which, by the provision of law, constitutes
respondent is already a ground for the forfeiture of his office;
actually holding office and and
Petition must be filed
action must be 3. An association which acts as a corporation
within 10 days from the
commenced within 1 year
proclamation of the within the Philippines without being
from cause of ouster or
candidate. legally incorporated or without lawful
from the time the right of
petitioner to hold office
authority so to act (Sec. 1, Rule 66).
arose.
The petitioner must be the Note: Actions of quo warranto against corporations
government or the person now fall under the jurisdiction of the RTC (Sec. 5.2,
May be filed by any Securities Regulations Code).
entitled to the office and
voter even if he is not
who would assume the
entitled to the office. Q: A group of businessmen formed an association
same if his action
succeeds. in Cebu City calling itself Cars Co. to distribute/sell
Person adjudged entitled Actual or compensatory cars in said city. It did not incorporate itself under
to the office may bring a damages are recoverable the law nor did it have any government permit or
separate action against the in quo warranto license to conduct its business as such. The
respondent to recover proceedings under the Solicitor General filed before the RTC in Manila a
damages. Omnibus Election Code. verified petition for quo warranto questioning and
seeking to stop the operations of Cars Co. The
Note: If the dispute is as to the counting of votes or on latter filed a motion to dismiss the petition on the
matters connected with the conduct of the election, ground of improper venue claiming that its main
quo warranto is not the proper remedy but an election office and operations are in Cebu City and not in

CIVIL PROCEDURE
Manila. Is the contention of Cars Co. correct? Q: What are the requisites of a valid
Why? expropriation?
A: No. As expressly provided in the Rules, when the A:

Solicitor General commences the action for quo 1. Due process of law
warranto, it may be brought in a Regional Trial 2. Payment of just compensation
Court in the City of Manila, as in the case, in the CA 3. Taking must be for public use
or in the SC (Sec. 7, Rule 66). (2001 Bar Question)
Q: What is the power of eminent domain?
d. JUDGMENT IN QUO WARRANTO ACTION
A: It is the right of the State to acquire private
Q: What is the effect of a judgment in Quo property for public use upon the payment of just
Warranto case? compensation.
A; When the respondent is found guilty of usurping, Q: When is expropriation proper?

intruding into, or unlawfully holding or exercising a
public office, position or franchise, judgment shall A: It is proper only when the owner refuses to sell
be rendered that such respondent be ousted and or, if the latter agrees, agreement as to the price
altogether excluded therefrom, and that the cannot be reached.
petitioner or relator, as the case may be, recover
his costs. Such further judgment may be rendered a. MATTERS TO BE ALLEGED IN COMPLAINT FOR
determining the respective rights in and to the EXPROPRIATION
public office, position or franchise of the parties to
the action as justice requires (Sec. 9, Rule 66). Q: Matters to be allege in a complaint for
expropriation.
e. RIGHTS OF A PERSON ADJUDGED ENTITLED TO
A: right and purpose of expropriation, describing
PUBLIC OFFICE
the property sought to be expropriated, and joining
Q: What are the rights of persons adjudged to be as defendants all persons owning or claiming to
entitled to the office? own any part thereof or interest therein (Sec. 1).
A: if judgment be rendered in favor of the person b. TWO STAGES IN EVERY ACTION FOR
averred in the complaint to be entitled to the public EXPROPRIATION
office, he may, after taking the oath of office and
Q: What are the two (2) stages in expropriation
executing any official bond required by law:
proceedings?
1. take upon himself the execution of the
office;
A:
2. may immediately thereafter demand all
1. Determination of the authority of the
the books and papers in the respondent’s
plaintiff to exercise the power of eminent
custody or control appertaining to the
domain and the propriety of the exercise
office to which the judgment relates; and
in the context of the facts involved.
3. may bring an action against the
2. Determination of just compensation.
respondent to recover damages sustained
by such persons by reason of usurpation.
Q: City of Iloilo (petitioner) represented by Mayor
Treñas filed a complaint for eminent domain
Note: when there is a judgment in a quo warranto
against Javellana seeking to expropriate two
action finding usurpation to be existent, respondent
must be ousted and altogether excluded therefrom, parcels of land. Mayor Treñas filed a motion for
and that the petitioner or relator, as the case may be, issuance of writ of possession alleging that it had
recover his cost. Such further judgment may be deposited 10% of the amount of compensation of
rendered determining the respective rights in the which the court issued. A writ of possession was
public office, position, or franchise of all the parties to subsequently issued, and petitioner was able to
the action, as justice requires. take physical possession of the properties. After
which, the expropriation proceedings remained
9. EXPROPRIATION dormant. 16 years later, Javellana filed an ex parte
motion/manifestation, where he alleged that
Q: What is expropriation? when he sought to withdraw the money, he
discovered that no deposit was made. Thus,
A: The procedure for enforcing the right of eminent Javellana filed a complaint for recovery of
domain.
147
possession, fixing and recovery of rental and owner upon the filing of the complaint to be
damages. The City of Iloilo argues that Javellana entitled to a writ of possession. As a relevant
could no longer bring an action for recovery since standard for initial compensation, the market value
the subject property was already taken for public for the property as stated in the tax declaration or
use. The trial court in its orders and amended the current relevant zonal valuation of the Bureau
orders maintained that the assailed orders issued of internal Revenue (BIR), whichever is higher and
by it were interlocutory in character and as such the value of the improvements and/or structures
are always subject to modification and revision by using the replacement cost method.
the court anytime. Is the order of expropriation
final? Note: RA 8974 applies in instances when the national
government expropriates property for national
A: Expropriation proceedings have two stages. The government infrastructure projects. Thus, if
first phase ends with an order of dismissal, or a expropriation is engaged by the national government
determination that the property is to be acquired for purposes other that national infrastructure
for a public purpose. The second phase consists of projects, the assessed value standard and the deposit
the determination of just compensation. Both mode prescribed in Rule 67 continues to apply.
orders, being final, are appealable.
The intent of RA 8974 to supersede the system of
deposit under Rule 67 with the scheme of immediate
An order of condemnation or dismissal is final,
payment in cases involving national government
resolving the question of whether or not the infrastructure projects is indeed very clear (MCWD v. J.
plaintiff has properly and legally exercised its power King and Sons, GR 175983, April 16, 2009)
of eminent domain. Once the first order becomes
final and no appeal thereto is taken, the authority d. NEW SYSTEM OF IMMEDIATE PAYMENT OF
to expropriate and its public use can no longer be INITIAL JUST COMPENSATION
questioned. Thus, it has become final, and the
petitioner’s right to expropriate the property for a Q: What is the new system of immediate payment
public use is no longer subject to review. (City of of initial just compensation?
Iloilo v. Hon. Lolita Contreras-Besana, G.R. No.
168967, Feb. 12, 2010).
A: For the acquisition of right-of-way, site or
location for any national government infrastructure
Q: May Congress enact a law providing that a
project through expropriation, upon the filing of the
5,000 square meter lot, a part of the UST
filing of the complaint, and after due notice to the
compound in Sampaloc, Manila, be expropriated
defendant, the implementing agency shall
for the construction of a park in honor of former
immediately pay the owner of the property the
City Mayor ArsenioLacson? As compensation to
amount equivalent to the sum of (1) 100 percent of
UST, the City of Manila shall deliver its 5-hectare
the value of the property based on the current
lot in Sta. Rosa, Laguna originally intended as a
relevant zonal valuation of the BIR; and (2) the
residential subdivision for the Manila City Hall
value of the improvements and/or structures as
employees. Explain.
determined under Sec. 7 of RA 8974 (Sec. 4, RA
A: Yes, Congress may enact a law to expropriate 8974).
property but it cannot limit just compensation. The
determination of just compensation is a judicial e. DEFENSES AND OBJECTIONS
function and Congress may not supplant or prevent
the exercise of judicial discretion to determine just Q: What must be filed when defendant has an
compensation. Under Sec. 5, Rule 67 of the Rules of objection?
Court, the ascertainment of just compensation
requires the evaluation of 3 commissioners. (2006 A: If a defendant has any objection to the filing of
Bar Question) or the allegations in the complaint, or any objection
or defense to the taking of his property, he shall
c. WHEN PLAINTIFF CAN IMMEDIATELY ENTER serve his answer within the time stated in the
INTO POSSESSION OF THE REAL PROPERTY summons. The answer shall specifically designate or
identify the property in which he claims to have an
Q: What is the new system of immediate payment interest, state the nature and extent of the interest
of initial compensation? claimed, and adduce all his objections and defenses
to the taking of his property. No counterclaim,
A: RA 8974 provides a modification of sec 2, Rule 67 cross-claim or third-party complaint shall be alleged
where the Government is required to make or allowed in the answer or any subsequent
immediate and direct payment to the property pleading.

CIVIL PROCEDURE
Note: if there are no objections, he must file and serve overruled or when no party appears to object to or
a notice of appearance and manifestation to that to defend against the expropriation (Sec 4, Rule 67).
effect. And thereafter, shall be entitled to notice of all
proceedings. Note: after the rendition of the order of expropriation,
the plaintiff shall not be permitted to dismiss or
Q: What is the duty of the court if the defendant discontinue the proceeding except upon such terms as
waives his defenses or objections? the court deems just and equitable (Sec 4, Rule 67)
A: If a defendant waives all defenses and objections g. ASCERTAINMENT OF JUST COMPENSATION

not so alleged, the court, in the interest of justice,
Q: What is just compensation?
may permit amendments to the answer to be made
not later than ten (10) days from the filing thereof.
A: Just compensation is equivalent to the fair
However, at the trial of the issue of just
market value of the property at the time of its
compensation, whether or not a defendant has
taking or filing of complaint whichever comes first.
previously appeared or answered, he may present
It is the fair and full equivalent for the loss
evidence as to the amount of the compensation to
sustained by the defendant.
be paid for his property, and he may share in the
distribution of the award (Sec. 3, Rule 67). Q: What is the formula for the determination of
just compensation?
Q: How may appeal be taken from an order of
expropriation by the party aggrieved thereby? A:
JC = FMV + CD – CB
A: It may be appealed by the defendant by record
on appeal. This is an instance when multiple If CB is more than CD then,
appeals are allowed because they have separate JC = FMV
and/or several judgments on different issues e.g.
issue on the right to expropriate or issue of just
compensation JC – Just compensation
FMV – Fair market value
Note: An appeal does not delay the right of the CD – Consequential damages
plaintiff to enter upon the property of the defendant CB – Consequential benefits
and appropriate the same for public use.
Note:Sentimental value is not computed.
Q: What is the effect if the order of condemnation
was reversed? Q: What is the reckoning point for determining
just compensation?
A: The owner shall repossess the property with the
right to be indemnified for all damages sustained A:The value of just compensation shall be
due to the taking (Sec. 11, Rule 67) determined as of the date of the taking of the
property or the filing of the complaint, whichever
Note: The landowner has the option of proving came first. (Sec. 4)
damages either in the same expropriation case or in
a separate action instituted for that purpose, as the GR: When the taking of the property sought to
judgment denying the right of expropriation is not be expropriated coincides with the
res judicata on the issue of damages arising from commencement of the expropriation
such illegal expropriation (Republic v. Baylosis, G.R. proceedings, or takes place subsequent to the
No. L-6191, Jan. 31, 1955). filing of the complaint for eminent domain, the
just compensation should be determined as of
f. ORDER OF EXPROPRIATION the date of the filing of the complaint. (City of
Iloilo v. Hon. Lolita Contreras-Besana, G.R. No.
Q: What is an order of expropriation? 168967, Feb. 12, 2010).
A: An order of expropriation (or order of Note: Typically, the time of taking is

condemnation) will be issued declaring that the contemporaneous with the time the petition is
plaintiff has a lawful right to take the property for filed. (NAPOCOR v. Co, G.R. No 166973, Feb. 10,
the public use or purpose described in the 2009)
complaint upon the payment of just compensation
in the event the objections of the defendant are XPNs:
1. Grave injustice to the property owner
149
Air Transportation Office cannot the construction of the public

conveniently invoke the right of eminent improvement for which the land was
domain to take advantage of the taken. To permit them to do so would be
ridiculously low value of the property at to allow them to recover more than the
the time of taking that it arbitrarily value of the land at the time when it was
chooses to the prejudice of the land taken, which is the true measure of the
owners. (Heirs of Mateo damages, or just compensation, and
Pidacan&RomanaEigo v. Air would discourage the construction of
Transportation Office, G.R. No. 162779, important public
June 15, 2007) improvements.(Provincial Gov’t of Rizal v.
2. The taking did not have color of legal Caro de Araullo, G.R. No. L-36096, Aug.
authority 16, 1933)
To allow NAPOCOR to use the date it
constructed the tunnels as the date of h. APPOINTMENT OF COMMISSIONERS;
valuation would be grossly unfair. First, it COMMISSIONER’S REPORT; COURT ACTION UPON
did not enter the land under warrant or COMMISSIONER’S REPORT
color of legal authority or with intent to
expropriate the same. It did not bother to Q: May the court dispense with the assistance of
notify the owners and wrongly assumed it commissioners in the determination of just
had the right to dig those tunnels under compensation in expropriation proceedings?
their property. Secondly, the
“improvements” introduced by A: No. The appointment of commissioners in
NAPOCOR, the tunnels, in no way expropriation proceedings is indispensable. In such
contributed to an increase in the value of cases, trial with the aid of commissioners is a
the land. The trial court rightly computed substantial right that may not be done away with
the valuation of the property as of 1992, capriciously or for no reason at all (MERALCO v.
when the owners discovered the Pineda, G.R. No. L-59791, Feb. 13, 1992).
construction of the huge underground
Note: Objections to the order of appointment must be
tunnels beneath their lands and
filed within 10 days from service of the order and shall
NAPOCOR confirmed the same and
be resolved within 30 days after all the commissioners
started negotiations for their purchase
received the copies of the objections (Sec. 5)
but no agreement could be reached.
(NAPOCOR v. Ibrahim, G.R. No. 168732, Q: When may the court appoint a commissioner in
June 29, 2007) expropriation proceedings?
3. The taking of the property was not initially
for expropriation
There was no taking of the property in A: Upon the rendition of the order of expropriation,
1985 by Public Estates Authority (PEA) for the court shall appoint not more than three (3)
purposes of expropriation. As shown by competent and disinterested persons as
the records, PEA filed with the RTC its commissioners to ascertain and report to the court
petition for expropriation on Sept. 22, the just compensation for the property sought to
2003.The trial court was correct in be taken. The order of appointment shall designate
ordering the Republic, through PEA, upon the time and place of the first session of the hearing
the filing of its complaint for to be held by the commissioners and specify the
expropriation, to pay Tan just time within which their report shall be submitted to
compensation on the basis of the BIR the court (Sec. 5, Rule 67).
zonal valuation of the subject property.
(Tan v. Republic, G.R. No. 170740, May Q: When should the commissioner make a report?
25, 2007)
4. The owner will be given undue increment A: The court may order the commissioners to
advantages because of the expropriation report when any particular portion of the real
The value of the property in question was estate shall have been passed upon by them, and
greatly enhanced between the time when may render judgment upon such partial report, and
the extension of the street was laid out direct the commissioners to proceed with their
and the date when the condemnation work as to subsequent portions of the property
proceedings were filed. The owners of the sought to be expropriated, and may from time to
land have no right to recover damages for time so deal with such property. The commissioners
this unearned increment resulting from shall make a full and accurate report to the court of
all their proceedings, and such proceedings shall

CIVIL PROCEDURE
not be effectual until the court shall have accepted a. JUDGMENT ON FORECLOSURE FOR PAYMENT
their report and rendered judgment in accordance OR SALE
with their recommendations. Except as otherwise
expressly ordered by the court, such report shall be Q: What is judgment on foreclosure?
filed within sixty (60) days from the date the
commissioners were notified of their appointment, A: It is the judgment of the court ordering the
which time may be extended in the discretion of debtor to pay within a period not less than 90 days
the court. Upon the filing of such report, the clerk nor more than 120 days from the entry of judgment
of the court shall serve copies thereof on all after ascertaining the amount due to the plaintiff
interested parties, with notice that they are allowed (Sec. 2, Rule 68).
ten (10) days within which to file objections to the
findings of the report, if they so desire (Sec. 7, Rule Q: What is foreclosure sale?
67).
A: When the defendant fails to pay the amount of
i. RIGHTS OF PLAINTIFF UPON JUDGMENT AND the judgment within the period specified therein,
PAYMENT the court, upon motion, shall order the property to
be sold in the manner and under the provisions of
Q: What are the rights of the plaintiff after Rule 39 and other regulations governing sales of
payment? real estate under executions (Sec.3, Rule 68).
A: After payment of just compensation, as Q: When is the sale of mortgaged property proper
determined in the judgment, the plaintiff shall have and how must it be brought about?
the right to enter upon the property expropriated
and to appropriate the same for the public use or A: if the mortgagor fails to pay the sum due within
purpose defined in the judgment or to retain the period (90-120 days) stated by the court in its
possession already previously made in accordance judgment, it would be good practice for the
with Sec 2, Rule 67. mortgagee to file a motion for the sale of the
mortgaged property because under the Rules, the
j. EFFECT OF RECORDING OF JUDGMENT court shall order the sale of the property only
“upon motion of the mortgagee” (sec 3, rule 68)
Q: What is the effect of the recording of the
judgment? Note: it has been held that the motion for the sale of
the mortgaged property is non-litigable and may be
A: When real estate is expropriated, a certified copy made ex parte. After the foreclosure sale has been
of such judgment shall be recorded in the registry effected, the mortgagee should file a motion for the
of deeds of he place in which the property is confirmation of the sale which requires notice and
hearing.
situated, and its effect shall be to vest in the
plaintiff the title to the real estate so described for
b. SALE OF MORTGAGED PROPERTY
such public use or purpose (Sec 13, Rule 69).
Q: What is the effect of confirmation of the sale?
10. FORECLOSURE OF REAL ESTATE MORTGAGE
A: It shall divest the rights in the property of all the
Q: What is foreclosure of Real Estate Mortgage
parties to the action and shall vest their rights in
(REM)?
the purchaser, subject to such rights of redemption
as may be allowed by law (Sec 3, Rule 68)
A: It is the remedy used for the satisfaction of any
monetary obligation, which a person owes to
Note: it is said that title vests in the purchaser upon a
another, by proceeding against the property used valid confirmation of the sale and retroacts to the date
to secure said obligation. of sale.
Note: It is commenced by a complaint setting forth the c. DISPOSITION OF PROCEEDS OF SALE
date and due execution of the mortgage; the names
and residences of the mortgagor and the mortgagee; a Q: How is the disposition of the proceeds of the
description of the mortgaged property; date of the
sale done?
note or other documentary evidence of the obligation
secured by the mortgage, the amount claimed to be
A: The proceeds of the sale of the mortgaged
unpaid thereon; and the names and residences of all
property shall, after deducting the costs of the sale,
persons having or claiming an interest in the property
subordinate in right to that of the holder of the be paid to the person foreclosing the mortgage, and
mortgage (Sec. 1). when there shall be any balance or residue after
151
paying off the mortgage debt due, the same shall On January 10, 2003, GAP filed an ex-parte motion
be paid to junior encumbrances in the order of their with the court for the issuance of a writ of
priority. If there be any further balance after paying possession to oust Gretchen from the land. It also
them or if there be no junior encumbrances, the filed a deficiency claim for P800,000 against Arlene
same shall be paid to the mortgagor or any person and Gretchen. The deficiency claim was opposed
entitled thereto (Sec. 4) by Arlene and Gretchen.
Q: What claims shall be satisfied from the 1. Resolve the motion for the issuance of a
proceeds of the public sale of the mortgaged writ of possession.
property (in order)? 2. Resolve the deficiency claim of the bank.
A: A:
1. Costs incurred in the sale of property; 1. In judicial foreclosure by banks such as GAP,
2. Claim of the person foreclosing the the mortgagor or debtor whose real
property; property has been sold on foreclosure has
3. Claims of junior encumbrancers in the the right to redeem the property within 1
order of their priority; year after the sale (or registration of the
4. Residue goes to the mortgagor or his sale). However, under Sec. 47 of the General
authorized agent, or any other person Banking Law of 2000, the purchaser at the
entitled to it. auction sale has the right to obtain a writ of
possession after the finality of the order
d. DEFICIENCY JUDGMENT confirming sale. The motion for writ of
possession, however, cannot be filed ex
Q: What is deficiency judgment? parte. There must be a notice of hearing.
2. The deficiency claim of the bank may be
A: It is the judgment rendered by the court holding enforced against the mortgage debtor
the defendant liable for any unpaid balance due to Arlene, but it cannot be enforced against
the mortgagee if the proceeds from the foreclosure Gretchen, the owner of the mortgaged
sale do not satisfy the entire debt. property, who did not assume personal
liability of the loan. (2003 Bar Question)
Q: What are the instances when the court cannot
render deficiency judgment? (1) INSTANCES WHEN COURT CANNOT RENDER
DEFICIENCY JUDGMENT
A: where the debtor-mortgagor is a non-resident
and who at the time of the filing of the action for
Q: What are the instances when the courts cannot
foreclosure and during the pendency of the
render deficiency judgment?
proceedings was outside the Philippines, then it is
not procedurally feasible. It is by nature in A: When the:
personam and jurisdiction over the person is
mandatory. 1. Case is covered by the Recto Law (Art.
1484, NCC);
Q: Arlene borrowed P1 million from GAP Bank 2. Mortgagor is a non-resident and is not
(GAP) secured by the titled land of her friend found in the Philippines, unless there is
Gretchen who, however, did not assume personal attachment;
liability for the loan. Arlene defaulted and GAP 3. Mortgagor dies, the mortgagee may file
filed an action for judicial foreclosure of the real his claim with the probate court under
estate mortgage impleading Arlene and Gretchen Sec. 7, Rule 86; and
as defendants. The court rendered judgment 4. Mortgagee is a third person but not
directing Arlene to pay the outstanding account of solidarily liable with the debtor.
P1.5 million (principal plus interest) to GAP. No
appeal was taken by Arlene. Arlene failed to pay e. JUDICIAL FORECLOSURE VERSUS EXTRAJUDICIAL
the judgment debt within the period specified in FORECLOSURE
the decision. At the foreclosure sale, the land was
sold to GAP for P1.2 million. The sale was Q: Distinguish judicial foreclosure from
confirmed by the court, and the confirmation of extrajudicial foreclosure.
the sale was registered with the Registy of Deeds
on January 5, 2002. A:
Judicial Foreclosure Extrajudicial Foreclosure
Governed by Rule 68 Governed by Act 3135

CIVIL PROCEDURE
There is only an equity of appeal. (Consolidated Bank and Trust Corp. v. IAC, G.R.
Right of redemption
redemption except when No. 73341, Aug. 21, 1987)
exists
the mortgagee is a bank
Requires court No court intervention 11. PARTITION
intervention necessary
Mortgagee is given a Q: What is partition?
special power of attorney
Mortgagee need not be
in the mortgage contract A: It is a process of dividing and assigning property
given a special power of
to foreclose the
attorney. owned in common among the various co-owners
mortgaged property in
thereof in proportion to their respective interests in
case of default.
said property.It presupposes the existence of a co-
Note: A mortgagee may bring a personal action for the
amount due, instead of a foreclosure suit, in which
ownership over a property between two or more
case, he will be deemed to have waived his right to persons. The rule allowing partition originates from
proceed against the property in a foreclosure a well-known principle embodied in the Civil Code,
proceeding. (Movido v. RFC, G.R. No. L-11990, May 29, that no co-owner shall be obliged to remain the co-
1959) ownership. Because of this rule, he may demand at
any time the partition of the property owned in
f. EQUITY OF REDEMPTION VERSUS RIGHT OF common (Art. 494).
REDEMPTION
Note: It is commenced by a complaint. (Sec.1, Rule 69)
Q: Distinguish equity of redemption from right of
redemption. Q: What are the requisites of a valid partition?
A: A:
Equity of Redemption Right of Redemption 1. Right to compel the partition;
Right of the debtor, his 2. Complaint must state the nature and
Right of the defendant
successor in interest or any extent of plaintiff's title and a description
mortgagor to
judicial creditor or judgment of the real estate of which partition is
extinguish the
creditor of said debtor or demanded; and
mortgage and retain
any person having a lien on 3. All other persons interested in the
ownership of the
the property subsequent to
property by paying the property must be joined as defendants
the mortgage or deed of
debt within 90-120 (Sec. 1, Rule 69)
trust under which the
days after the entry of
property is sold to redeem
judgment or even after a. WHO MAY FILE A COMPLAINT; WHO SHOULD BE
the property within 1 year
the foreclosure sale MADE DEFENDANT
from the registration of the
but prior to
Sheriff’s certificate of
confirmation Q: Who may file and who should be made
foreclosure sale
Governed by Secs. 29-31, defendants?
Governed by Rule 68
Rule 39
A: The action shall be brought by the person who
Note: There is no right of redemption in judicial has a right to compel the partition of real estate
foreclosure sale after the confirmation of sale except (Sec. 1, Rule 69) or of an estate composed of
those granted by banks or banking institutions in favor personal property, or both real and personal
of non-judicial persons as provided by the General property (Sec. 13, Rule 69). The plaintiff is a person
Banking Act (Government Insurance System v. CFI of who is supposed to be a co-owner of the property
Iloilo, G.R. No. 45322, July 5, 1989). or estate sought to be partitioned. The defendants
are all the co-owners.
In extrajudicial foreclosure, the mortgagor has the
right to redeem the property within one year from the Q: What is the effect of non-inclusion of a co-
registration of the deed of sale. However, Sec. 47 of owner in an action for partition?
the General Banking Act provides that in case of
extrajudicial foreclosure, juridical persons shall have A:
the right to redeem the property until, but not after, 1. Before judgment – not a ground for a
the registration of the certificate of foreclosure sale motion to dismiss. The remedy is to file a
which in no case shall be more than 3 months after
motion to include the party.
foreclosure, whichever is earlier.
2. After judgment – makes the judgment
therein void because co-owners are
The pendency of the action stops the running of the
right of redemption. Said right continues after indispensable parties.
perfection of an appeal until the decision of the
153
Note: Creditors or assignees of co-owners may 2. Judgment as to the fruits and income of
intervene and object to a partition affected without the property
their concurrence. But they cannot impugn a partition 3. Judgment of partition (Riano, Civil
already executed unless there has been fraud or in Procedure: A Restatement for the Bar, p.
case it was made notwithstanding a formal opposition 596, 2009 ed.)
presented to prevent it. (Sec. 12, Rule 69)
d. ORDER OF PARTITION AND PARTITION BY
b. MATTERS TO ALLEGE IN THE COMPLAINT FOR
AGREEMENT
PARTITION
Q: What is an order of partition?
Q: What are the matters to be alleged in the
complaint for partition?
A: The order of partition is one that directs the
parties or co-owners to partition the property
A: The plaintiff shall state in his complaint, the
nature and extent of his title, an adequate Q: When does the court issue the order of
description of the real estate of which partition is partition?
demanded, and shall join as defendants all other
persons interested in the property (Sec. 1, Rule 69). A: During the trial, the court shall determine
He must also include a demand for the accounting whether or not the plaintiff is truly a co-owner of
of the rents, profits and other income from the the property, that there is indeed a co-ownership
property which he may be entitled to. These cannot among the parties, and that a partition is not legally
be demanded in another action because they are proscribed thus may be allowed. If the court so
parts of the cause of action for partition. They will finds that the facts are such that a partition would
be barred if not set up in the same action pursuant be in order, and that the plaintiff has a right to
to the rule against splitting a single cause of action. demand partition, the court will issue an order of
partition.
c. TWO (2) STAGES IN EVERY ACTION FOR
PARTITION Note: The court shall order the partition of the
property among all the parties in interest, if after trial
Q: What are the two aspects of partition it finds that the plaintiff has the right to partition (Sec.
proceedings? 2, Rule 69). It was held that this order of partition
including an order directing an accounting is final and
A: not interlocutory and hence, appealable; thus,
1. Existence of co-ownership; and revoking previous contrary rulings on the matter. A
2. Accounting or how to actually partition final order decreeing partition and accounting may be
the property. appealed by any party aggrieved thereby.
Note: During the trial, the court shall determine Q: When is partition by agreement proper?
whether or not the plaintiff is truly a co-owner and
there is co-ownership and that partition is not legally
proscribed, the court will issue an order of partition. It
A: The parties may make the partition among
directs the parties to partition the property by proper themselves by proper instruments of conveyance, if
instruments of conveyance, if they agree among they agree among themselves. If they do agree, the
themselves. court shall then confirm the partition so agreed
upon by all of the parties, and such partition,
If they do agree, the court shall then confirm the together with the order of the court confirming the
partition so agreed and such is to be recorded in the same, shall be recorded in the registry of deeds of
registry of deeds of the place in which the property is the place in which the property is situated (Sec. 2,
situated (Sec 2, Rule 69). There always exist the Rule 69).
possibility that the parties are unable to agree on the
partition. Thus, the next stage is the appointment of
e. PARTITION BY COMMISSIONERS; APPOINTMENT
commissioners.
OF COMMISSIONERS, COMMISSIONER’S REPORT;
Q: What are the stages in an action for partition COURT ACTION UPON COMMISSIONER’S REPORT
which could be the subject of appeal?
Q: Can the appointment of commissioners be
A: dispensed with in an action for partition?
1. Order determining the propriety of the A: The appointment of commissioners is mandatory

partition unless there is an extrajudicial partition between

CIVIL PROCEDURE
the parties. They have the power to effect the A; The provisions of this Rule shall apply to
partition but not to inquire into question of partitions of estates composed of personal
ownership or possession property, or of both real and personal property, in
so far as the same may be applicable (Sec. 13, Rule
Note: if parties cannot agree, the court shall appoint 69).
not more than 3 commissioners of competent and
disinterested persons to make partition. They shall h. PRESCRIPTION OF ACTION
make full and accurate report to the court of all their
proceedings as to the partition. Upon the filing of such Q: What is the rule on prescription in an action of
report, copies of which shall be served to the clerk of
partition?
court upon all interested parties with notice that they
are allowed 10 days within which to file objections to
A: Prescription of action does not run in favor of a
the findings of the report, if they so desire.
co-owner or co-heir against his co-owner or co-
The court may upon hearing accept the report and heirs as long as there is a recognition of the co-
render judgment in accordance with the same, may ownership expressly or impliedly (Art. 494). Also,
recommit to the commissioners for further the action for partition cannot be barred by
proceedings, or reject the report and render judgment prescription
that shall effectuate a fair and just partition.
12. FORCIBLE ENTRY AND UNLAWFUL DETAINER
f. JUDGMENT AND ITS EFFECTS
a. DEFINITIONS AND DISTINCTION
Q: What should the judgment contain and its
effects? Q: What is forcible entry?
A: The judgment shall state definitely, by metes and A: It is entry effected by force, intimidation, threat,
bounds and adequate description, the particular strategy, or stealth; the action is to recover
portion of the real estate assigned to each party, possession founded upon illegal possession from
the effect of the judgment shall be to vest in each the beginning.
party to the action in severalty the portion of the
real estate assigned to him. A certified copy of the Note: It is commenced by a verified complaint. (Sec. 1)
judgment shall in either case be recorded in the
registry of deeds of the place in which the real Q: What are the requisites of a valid forcible
estate is situated, and the expenses of such entry?
recording shall be taxed as part of the costs of the
action (Sec. 11, Rule 69). A:
a. If the whole property is assigned to one of the 1. A person is deprived of possession of any
parties upon his paying to the others the sum or land or building by force, intimidation,
sums ordered by the court, the judgment shall state threat, strategy, or stealth; and
the fact of such payment and of the assignment of 2. Action is brought within 1 year from the
the real estate to the party making the payment, unlawful deprivation. (Sec. 1)
and the effect of the judgment shall be to vest in
the party making the payment the whole of the real Q: What are the questions to be resolved in an
estate free from any interest on the part of the action for forcible entry?
other parties to the action.
A:
b. If the property is sold and the sale confirmed by
1. Who has actual possession over the real
the court, the judgment shall state the name of the
property;
purchaser or purchasers and a definite description
2. Was the possessor ousted therefrom
of the parcels of real estate sold to each purchaser,
within one year from the filing of the
and the effect of the judgment shall be to vest the
complaint by force, intimidation, strategy,
real estate in the purchaser or purchasers making
threat or stealth; and
the payment or payments, free from the claims of
3. Does the plaintiff ask for the restoration
any of the parties to the action.
of his possession (Dizon v. Concina, G.R.
No. 23756, Dec. 27, 1969)
g. PARTITION OF PERSONAL PROPERTY
Q: What is unlawful detainer?
Q: What is the rule on partition of personal
property?
A: It is unlawful detention by a person who has
acquired possession rightfully, but who detains the
155
property after the right to keep possession has force, intimidation, the possession of the
ended. strategy, threat property under his
or stealth. contract with the plaintiff.
Demand is jurisdictional if
Note: It is commenced by a verified complaint. (Sec. 1) No previous demand for the ground is non-
the defendant to vacate payment of rentals or
Q: What are the requisites of a valid unlawful the premises is necessary. failure to comply with the
detainer? lease contract.
The plaintiff must prove
A: that he was in prior
The plaintiff need not
1. Possession of any land or building is physical possession of the
have been in prior physical
unlawfully withheld from a lessor, vendor, premises until he was
possession.
vendee, or other person after the deprived thereof by the
expiration or termination of the right to defendant.
hold possession by virtue of any contract The 1 year period is
Period is counted from the
generally counted from
express or implied; date of last demand or last
the date of actual entry on
2. Action is brought within 1 year after such letter of demand.
the land.
unlawful deprivation or withholding of
possession; and
b. DISTINGUISHED FROM ACCION PUBLICIANA
3. Demand to pay or comply with the
AND ACCION REINVINDICATORIA
conditions of the lease and to vacate is
made upon the lessee. (Sec. 1)
Q: What are the possessory actions on real
property?
Q: Is formal contract a prerequisite in unlawful
detainer? A:
Accion Accion Accion
A: The existence of a formal contract is not Interdictal Publiciana Reinvindicatoria
necessary in unlawful detainer. Even if there is no Summary
formal contract between the parties, there can still A plenary action
action for the An action for the
be an unlawful detainer because implied contracts for the recovery
recovery of recovery of
are covered by ejectment proceedings. Possession of the real right
physical ownership,
by tolerance creates an implied promise to vacate of possession
possession which
when the
the premises upon the demand of the owner (Peran where the necessarily
dispossession
v. CFI of Sorsogon, G.R. No. 57259, Oct. 13, 1983). disposses-sion includes the
has lasted for
has not lasted recovery of
more than 1
Q: Does the amount of rents and damages prayed for more than possession.
year.
for in an action for forcible entry and unlawful 1 year.
detainer affect the jurisdiction of the courts? RTC has
All cases of RTC has
jurisdiction if
forcible entry jurisdiction if the
A: No. The amount of rents and damages claimed the value of the
and unlawful value of the
does not affect jurisdiction of the MTCs because the property
detainer property
same are only incidental or accessory to the main exceeds
irrespective of exceeds P20,000
action (Lao SengHian v. Lopez, G.R. No. L-1950, May P20,000 or
the amount of or P50,000 in
16, 1949). P50,000 in
damages or Metro Manila.
Metro Manila.
unpaid rentals
Note: If only rents or damages are claimed in an sought to be MTC has
ordinary action, the action is personal and the amount MTC has
recovered jurisdiction if the
claimed determines whether it falls within the jurisdiction if
should be value of the
jurisdiction of the RTC or the MTC. the value of the
brought to the property does
property does
MTC. not exceed the
Q: Distinguish forcible entry from unlawful not exceed the
above amounts.
detainer. above amounts.
A: Note: Forcible entry and unlawful detainer actions are

summary in nature designed to provide for an
Forcible Entry Unlawful Detainer
expeditious means of protecting actual possession or
(Detentacion) (Desahucio)
the right to possession of the property involved
Possession of the land by Possession is inceptively
(Sudaria v..Quiambao, GR No. 164305, November 20,
the defendant is unlawful lawful but it becomes
2007)
from the beginning as he illegal by reason of the
acquires possession by termination of his right to

CIVIL PROCEDURE
Q: What rule should govern the proceedings of A: The only pleadings allowed to be filed are the
accion interdictal? complaint, compulsory counterclaim and cross-
claim pleaded in the answer, and the answers
A: thereto. All pleadings shall be verified (Sec. 4, Rule
GR: Ejectment cases are summary proceedings 70).
intended to provide an expeditious means of
protecting actual possession or right to f. ACTION ON THE COMPLAINT
possession of property.
Q: What action will the court make upon receipt of
XPN: When the decision of the MTC is appealed
to the RTC, the applicable rules are those of the the complaint?
latter court (Refugia v. CA, G.R. No. 118284, July
5, 1996). A: The court may, from an examination of the
allegations in the complaint and such evidence as
c. JURISDICTION IN ACCION PUBLICIANA AND may be attached thereto, dismiss the case outright
ACCION REINVINDICATORIA on any of the grounds for the dismissal of a civil
action which are apparent therein. If no ground for
Q: In which court accion publiciana and accion dismissal is found, it shall forthwith issue summons
reinvindicatoria filed? (Sec. 5, Rule 70).
A: The actions of forcible entry and unlawful

g. WHEN DEMAND IS NECESSARY
detainer are within the exclusive and original
jurisdiction of the MTC, MeTC and MCTC (Sec.
Q: When is demand necessary?
33[2], BP 129; RA 7691) and shall be governed by
the rules on summary procedure irrespective of the
amount of damages or rental sought to be A: Unless there exists a stipulation to the contrary,
recovered (Sec. 3, Rule 70). an unlawful detainer case shall be commenced only
after the demand to pay or comply with the
conditions of the lease and to vacate is made upon
d. WHO MAY INSTITUTE THE ACTION AND WHEN;
the lessee (Sec. 2). The requirement for a demand
AGAINST WHOM THE ACTION MAY BE
implies that the mere failure of the occupant to pay
MAINTAINED
rentals or his failure to comply with the conditions
Q: Who may institute the action? of the lease does not ipso facto render his
possession of the premises unlawful. It is the failure
A: Subject to the provisions of the next succeeding to comply with the demand that vests upon the
section, a person deprived of the possession of any lessor a cause of action.
land or building by force, intimidation, threat,
strategy, or stealth, or a lessor, vendor, vendee, or Q: In what form should the demand be made?
other person against whom the possession of any
land or building is unlawfully withheld after the A: The demand may be in the form of a written
expiration or termination of the right to hold notice served upon the person found in the
possession, by virtue of any contract, express or premises. The demand may also be made by
implied, or the legal representatives or assigns of posting a written notice on the premises if no
any such lessor, vendor, vendee, or other person, person can be found thereon (Sec. 2). It has been
may, at any time within one (1) year after such ruled, however, that the demand upon a tenant
unlawful deprivation or withholding of possession, may be oral (Jakihaca vs. Aquino, 181 SCRA 67).
bring an action in the proper Municipal Trial Court Sufficient evidence must be adduced to show that
against the person or persons unlawfully there was indeed a demand like testimonies from
withholding or depriving of possession, or any disinterested and unbiased witnesses.
person or persons claiming under them, for the
restitution of such possession, together with
damages and costs (Sec. 1, Rule 70). h. PRELIMINARY INJUNCTION AND PRELIMINARY
MANDATORY INJUNCTION
e. PLEADINGS ALLOWED
Q: Can the court grant injunction while the case is
pending?
Q: What are the pleadings allowed?
A: The court may grant preliminary injunction, in
accordance with the provisions of Rule 58, to
157
prevent the defendant from committing further k. SUMMARY PROCEDURE; PROHIBITED

acts of dispossession against the plaintiff. A PLEADINGS
possessor deprived of his possession through
forcible entry or unlawful detainer may, within five Q: What is the nature of an action for forcible
(5) days from the filing of the complaint, present a entry and unlawful detainer?
motion in the action for forcible entry or unlawful
detainer for the issuance of a writ of preliminary A: Forcible entry and unlawful detainer actions are
mandatory injunction to restore him in his summary in nature designed to provide for an
possession. The court shall decide the motion expeditious means of protecting actual possession
within thirty (30) days from the filing thereof (Sec. or the right to possession of the property involved
15, Rule 70). (Tubiano vs. Riazo, 335 SCRA 531). These action
shall both fall under the coverage of the Rules of
i. RESOLVING DEFENSE OF OWNERSHIP Summary Procedure irrespective of the amount of
damages or unpaid rental sought to be recovered
Q: In what instances may the court resolve issue of (Sec. 3, Rule 70).
ownership?
Q: What are the prohibited pleadings and motion
A: When the defendant raises the issue of under Rule 70?
ownership, the court may resolve the issue of
ownership only under the following conditions: A: Prohibited pleadings and motions:
(a) When the issue of possession cannot be 1. Motion to dismiss the complaint except
resolved without resolving the issue of ownership; on the ground of lack of jurisdiction over
and the subject matter, or failure to comply
(b) The issue of ownership shall be resolved only with section 12;
to determine the issue of possession (Sec. 16). 2. Motion for a bill of particulars;
3. Motion for new trial, or for
Note: The assertion by the defendant of ownership reconsideration of a judgment, or for
over the disputed property does not serve to divest reopening of trial;
the inferior court of its jurisdiction. The defendant 4. Petition for relief from judgment;
cannot deprive the court of jurisdiction by merely 5. Motion for extension of time to file
claiming ownership of the property involved (Rural pleadings, affidavits or any other paper;
Bank of Sta. Ignacia vs. Dimatulac, 401 SCRA 742; 6. Memoranda;
Perez vs. Cruz, 404 SCRA 487).If the defendant raises 7. Petition for certiorari, mandamus, or
the question of ownership and the issue of possession prohibition against any interlocutory
cannot be resolved without deciding the question of order issued by the court;
ownership, the issue of ownership shall be resolved 8. Motion to declare the defendant in
only to determine the issue of possession (Sec. 3, RA default;
7691). 9. Dilatory motions for postponement;
10. Reply;
j. HOW TO STAY THE IMMEDIATE EXECUTION OF 11. Third-party complaints;
JUDGMENT 12. Interventions
Q: How is the execution of judgment stayed? 13. CONTEMPT
A: Defendant must take the following steps to stay

the execution of the judgment: Q: What is contempt?
1. Perfect an appeal;
A: It is a defiance of the authority, justice or dignity
2. File a supersedeas bond to pay for the rents,
of the court; such conduct as tends to bring the
damages and costs accruing down to the time of
authority and administration of the law into
the judgment appealed from; and
disrespect or to interfere with, or prejudice litigant
3. Deposit periodically with the RTC, during the
or their witnesses during litigation (Halili v. CIR, G.R.
pendency of the appeal, the adjudged amount of
No. L-24864, Nov. 19, 1985)
rent due under the contract or if there be no
contract, the reasonable value of the use and Note: It is commenced by a verified petition with
occupation of the premises (Sec. 19, Rule 70). supporting particulars and certified true copies of
documents or papers involved therein (Sec. 4).

CIVIL PROCEDURE
a. KINDS OF CONTEMPT d. Failure to obey a subpoena duly

served.
Q: What are the kinds of contempt? e. Assuming to be an attorney or an
officer of the court without
A: authority.
1. Direct or indirect, according to the f. Rescue or attempted rescue, of a
manner of commission. person or property in the custody of
2. Civil or Criminal, depending on the nature an officer.
and effect of the contemptuous act. g. Any improper conduct tending to
degrade the administration of justice
Q: Distinguish direct from indirect contempt? (Sec. 3)
A: Q: Distinguish criminal contempt from civil

Direct Contempt Indirect Contempt contempt.
Committed in the presence Not committed in the
of or so near a court. presence of the court. A:
Punished after being Criminal Contempt Civil Contempt
Summary in nature
charged and heard
Punitive in nature Remedial in nature
If committed against: IF COMMITTED AGAINST:
1. RTC – fine not 1. RTC – FINE NOT
Purpose is to provide a
exceeding P2,000 or EXCEEDING P30,000 Purpose is to
remedy for an injured suitor
imprisonment not OR IMPRISONMENT preserve the court’s
and to coerce compliance
exceeding 10 days or NOT EXCEEDING 6 authority and to
with an order for the
both. MONTHS OR BOTH punish disobedience
preservation of the rights of
2. MTC – fine not 2. MTC – fine not of its orders
private persons
exceeding P200 or exceeding P5,000
imprisonment not or imprisonment
Intent is necessary Intent is not necessary
exceeding 1 day, or not exceeding 1
both. month or both
Instituted by the aggrieved
Remedy:Certiorari or Remedy: Appeal (by party or his successor or
prohibition notice of appeal) State is the real
someone who has pecuniary
prosecutor
Contempt in facie curiae Constructive contempt interest in the right to be
protected
Q: What are the grounds of contempt?
Proof required is Proof required is more than
A: proof beyond mere preponderance of
1. Direct contempt reasonable doubt. evidence
a. Misbehavior in the presence of or so
near a court as to obstruct or If accused is If judgment is for
acquitted, there can respondent, there can be an
interrupt the proceedings
be no appeal. appeal
b. Disrespect towards the court
c. Offensive personalities toward
others; or
Q: Lawyer Mendoza, counsel for the accused in a
d. Refusal to be sworn or to answer as
criminal case, was cited for direct contempt by
a witness, or to subscribe an affidavit
Judge Tagle and was sentenced to 10 days
or deposition when lawfully required
imprisonment. Lawyer Mendoza was placed in
to do so (Sec. 1)
prison immediately. Lawyer Mendoza manifested
2. Indirect contempt
his readiness to post a bond and to appeal the
a. Misbehavior of an officer of a court
order by certiorari to stay its execution but Judge
in the performance of his official
Tagle said that the order is immediately executory.
duties or in his official transactions;
Is Judge Tagle correct?
b. Abuse or any unlawful interference
with the proceedings not A: No. An order of direct contempt is not
constituting direct contempt. immediately executory or enforceable. The
c. Disobedience of or resistance to a contemner must be afforded a reasonable remedy
lawful writ, process, order, or to extricate or purge himself of the contempt.
judgment of a court or unauthorized Under Sec. 2, Rule 71, of the Rules of Court, a
intrusion to any real property after person adjudged in direct contempt by any court
being ejected.
159
may not appeal therefrom, but may avail himself of lower court, the penalty is a fine not
the remedies of certiorari or prohibition. The exceeding 200 pesos or
execution of the judgment shall be suspended imprisonment not exceeding one (1)
pending resolution of such petition, provided such day, or both (Sec. 1)’;
person files a bond fixed by the court which c. If the contempt consists in the
rendered the judgment and conditioned that he will refusal or omission to do an act
abide by and perform the judgment should the which is yet within the power of the
petition be decided against him (Tiongco v. Judge respondent to perform, he may be
Salao, A.M. No. RTJ-06-2009, July 27, 2006). imprisoned by order of the court
concerned until he performs it.
b. PURPOSE AND NATURE OF EACH 2. A person adjudged in direct contempt may not
appeal therefrom. His remedy is a petition for
certiorari or prohibition directed against the
Q: What is the purpose of the power to contempt?
court which adjudged him in direct contempt
(Sec. 2). Pending the resolution of the petition
A: The reason for the power to punish for contempt for certiorari or prohibition, the execution of
is that respect of the courts guarantees the stability the judgment for direct contempt shall be
of their institution. Without such guarantee, said suspended. The suspension however shall take
institution would be resting on shaky foundation place only if the person adjudged in contempt
(Cornejovs.Tan, 85 Phil. 772). files a bond fixed by the court which rendered
the judgment. This bond is conditioned upon
Q: What is the nature of contempt power? his performance of the judgment should the
petition be decided against him.
A: The power to punish for contempt is inherent in
all courts; its existence is essential to the d. REMEDY AGAINST INDIRECT CONTEMPT;
preservation of order in judicial proceedings and to PENALTY
the enforcement of judgments, orders and
mandates of the courts, and, consequently, to the
Q: What is theremedy against indirect contempt
due administration of justice.
and its penalty?
Q: What are the dual aspects on the power to
punish contempt? A:
1. The punishment for indirect contempt depends
A: upon the level of the court against which the act
1. Primarily, the proper punishment of the was committed;
guilty party for his disrespect to the (a) Where the act was committed
courts; and against an RTC or a court of equivalent or
2. Secondarily, his compulsory performance higher rank, he may be punished by a fine
of some act or duty required of him by the not exceeding 30,000 pesos or
court and which he refuses to perform. imprisonment not exceeding 6 months, or
both;
c. REMEDY AGAINST DIRECT CONTEMPT; PENALTY (b) Where the act was committed
against a lower court, he may be
punished by a fine not exceeding 5,000
Q: What is theremedy against direct contempt and
pesos or imprisonment not exceeding one
its penalty?
month, or both. Aside from the applicable
penalties, if the contempt consists in the
A: violation of a writ of injunction, TRO or
1. The penalty for direct contempt depends upon status quo order, he may also be ordered
the court which the act was committed; to make complete restitution to the party
a. If the act constituting direct injured by such violation of the property
contempt was committed against an involved or such amount as may be
RTC or a court of equivalent or alleged and proved (Sec. 7);
higher rank, the penalty is a fine not (c) Where the act was committed
exceeding 2,000 pesos or against a person or entity exercising
imprisonment not exceeding 10 quasi-judicial functions, the penalty
days, or both; imposed shall depend upon the provisions
b. If the act constituting direct of the law which authorizes a penalty for
contempt was committed against a

CIVIL PROCEDURE
contempt against such persons or pursuant to law, Rule 71 shall apply suppletorily (Sec
entities. 12, Rule 71)
(2) The person adjudged in indirect contempt
may appeal from the judgment or final order of the Quasi-judicial bodies that have the power to cite
court in the same manner as in criminal cases. The persons for indirect contempt pursuant to Rule 71 of
appeal will not however have the effect of the Rules of Court can only do so by initiating them in
the proper RTC. It is not within their jurisdiction and
suspending the judgment if the person adjudged in
competence to decide the indirect contempt cases.
contempt does not file a bond in an amount fixed
by the court from which the appeal is taken. This
Q: May a non-party be held for contempt?
bond is conditioned upon his performance of the
judgment or final order if the appeal is decided A: No, unless he is guilty of conspiracy with any one
against (Sec. 11). of the parties in violating the court’s orders
(DesaEnt., Inc. v. SEC, G.R. No. L-45430, Sept. 30,
e. HOW CONTEMPT PROCEEDINGS ARE 1982).
COMMENCED
Q: Ray, through Atty. Velasco, filed a complaint for
Q: How may an action for indirect contempt be quieting of title against Chiz. Chiz, however,
commenced? interposed the defense that the documents relied
upon by Ray and Atty. Velasco were forged and
A: falsified. Finding that the said documents were
indeed forged and falsified, Judge Victoria cited
1. By order or other formal charge by the Ray and Atty. Velasco for direct contempt and
court requiring the respondent to show ordered them to serve 10 days of detention at the
cause why he should not be punished for Municipal Jail. Ray and Atty. Velasco filed a
contempt (motuproprio); or motion for bail and a motion to lift the order of
2. By a verified petition with supporting arrest. But they were denied outright by Judge
particulars and certified true copies of the Victoria. Is Judge Victoria correct?
necessary documents and papers
(independent action) (Sec. 4). A: No. Direct contempt is a contumacious act done
facie curiae and may be punished summarily
Note: The first procedure applies only when the without hearing. Indirect or constructive contempt,
indirect contempt is committed against a court or in turn, is one perpetrated outside of the sitting of
judge possessed and clothed with contempt powers. the court.
The second mode applies if the contemptuous act was Here the use of falsified and forged documents is a
committed not against a court or a judicial officer with contumacious act. However, it constitutes indirect
authority to punish contemptuous acts. (Nazareno v. contempt not direct contempt. The imputed use of
Barnes, G.R. No. L-59072, Apr. 25, 1984) a falsified document, more so where the falsity of
the document is not apparent on its face, merely
The court does not declare the respondent in default constitutes indirect contempt, and as such is
since the proceeding partakes the nature of a criminal subject to such defenses as the accused may raise
prosecution (Fuentes v. Leviste, G.R. No. L-47363, Oct.
in the proper proceedings. Thus, following Sec. 3,
28, 1982).
Rule 71, acontemner may be punished only after a
charge in writing has been filed, and an opportunity
Q: What are the procedural requisites before the
has been given to the accused to be heard by
accused may be punished for indirect contempt?
himself and counsel.
A:
Moreover, settled is the rule that a contempt
1. A charge in writing to be filed;
proceeding is not a civil action, but a separate
2. An opportunity for the person charged to
proceeding of a criminal nature in which the court
appear and explain his conduct; and
exercises limited jurisdiction. Thus, the modes of
3. To be heard by himself or counsel.
procedure and the rules of evidence in contempt
(Regalado v. Go, G.R. No. 167988, Feb. 6,
proceedings are assimilated as far as practicable to
2007)
those adapted to criminal prosecutions. Thus, the
NOTE: The rules on contempt under Rule 71 apply to judge erred in declaring summarily that Ray and
contempt committed against persons or entities Judge Velasco are guilty of direct contempt and
exercising quasi-judicial functions or in case there are ordering their incarceration. He should have
rules for contempt adopted for such bodies or entities conducted a hearing with notice to Ray and Judge
161
Velasco (Judge Espaool v. Formoso, G.R. No. g. WHEN IMPRISONMENT SHALL BE IMPOSED
150949, June 21, 2007).
Q: When shall imprisonment be imposed?
f. ACTS DEEMED PUNISHABLE AS INDIRECT
CONTEMPT A: When the contempt consists in the refusal or
omission to do an act which is yet in the power of
Q: What are the acts which are deemed the respondent to perform, he may be imprisoned
punishable as indirect contempt? by order of the court concerned until he performs
it. Indefinite incarceration may be resorted to
A:After a charge in writing has been filed, and an where the attendant circumstances are such that
opportunity given to the respondent to comment the non-compliance with the court order is an utter
thereon within such period as may be fixed by the disregard of the authority of the court which has
court and to be heard by himself or counsel, a then no other recourse but to use its coercive
person guilty of any of the following acts may be power. When a person or party is legally and validly
punished for indirect contempt: required by a court to appear before it for a certain
purpose, and when that requirement is disobeyed,
the only remedy left for the court is to use force to
1. Misbehavior an officer of a court in the
bring the person or party before it.
performance of his official duties or in his
official transactions;
2. Disobedience of or resistance to a lawful Note: The punishment is imposed for the benefit of a
writ, process, order, or judgment of a complainant or a party to a suit who has been injured
aside from the need to compel performance of the
court, including the act of a person who,
orders or decrees of the court, which the contemnor
after being dispossessed or ejected from
refuses to obey although able to do so. In effect, it is
any real property by the judgment or within the power of the person adjudged guilty of
process of any court of competent contempt to set himself free.
jurisdiction, enters or attempts or induces
another to enter into or upon such real
property, for the purpose of executing h. CONTEMPT AGAINST QUASI-JUDICIAL BODIES
acts of ownership or possession, or in any
manner disturbs the possession given to Q: What is the rule on contempt against quasi-
the person adjudged to be entitled judicial bodies?
thereto;
3. Any abuse of or any unlawful interference A: The rules on contempt apply to contempt
with the processes or proceedings of a committed against persons or entities exercising
court not constituting direct contempt quasi-judicial functions or in case there are rules for
under section 1 of this Rule; contempt adopted for such bodies or entities
4. Any improper conduct tending, directly or pursuant to law, Rule 71 shall apply suppletorily.
indirectly, to impede, obstruct, or Quasi-judicial bodies that have the power to cite
degrade the administration of justice; persons for indirect contempt can only do so by
5. Assuming to be an attorney or an officer initiating them in the proper RTC. It is not within
of a court, and acting as such without their jurisdiction and competence to decide the
authority; indirect contempt cases. The RTC of the place
6. Failure to obey a subpoena duly served; where contempt has been committed shall have
7. The rescue, or attempted rescue, of a jurisdiction over the charges for indirect contempt
person or property in the custody of an that may be filed (Sec. 12).
officer by virtue of an order or process of
a court held by him (Sec. 3).
Note: Failure by counsel to inform the court of the

death of his client constitutes indirect contempt within
the purview of Sec. 3, Rule 71, since it constitutes an
improper conduct tending to impede the
administration of justice.

SPECIAL PROCEDINGS
IV. SPECIAL PROCEEDINGS A: It is a remedy by which a party seeks to establish

a status, a right or a particular fact. (Sec. 3(c), Rule
Q: What is Special Proceeding? 1)
NOTE: It is a proceeding in rem.
Q: Distinguish an Ordinary action and Special Civil Action from a special proceeding.
A:
Ordinary Action Special Proceeding Special Civil Action
To protect or enforce a right or Involves the establishment of a Civil Action subject to specific
prevent or redress a wrong right, status, or fact rules.
Involve 2 or more parties – plaintiff May involve only one party – only Involves two or more parties
and defendant petitioner
Governed by ordinary rules, Governed by special rules, Ordinary rules apply primarily but
supplemented by special rules supplemented by ordinary rules subject to specific rules
Some are initiated by complaint,
Initiated by a complaint, and Initiated by a petition and parties
while some are initiated by
parties respond through an answer respond through an opposition
petition
Heard by courts of general Heard by courts of limited
jurisdiction jurisdiction
Issues or disputes are stated in the
Issues are determined by law
pleadings of the parties
Adversarial Not adversarial
Not based on a cause of action Some special civil action have no
Based on a cause of action
(except habeas Corpus) cause of action
Q: What are the subject matters of special proceedings?
A:
Special Proceeding Jurisdiction Venue
RTC- Gross value of the estate 1. If inhabitant (resident) of the
exceeds 400,000/ 500,000 Philippines (whether citizen
(Manila) or alien)- Court of the
MTC- Gross value of the estate province/ city where the
Settlement of Estate does not exceed 400,000/ deceased resides at the time
Rules 73-90
of Deceased Persons 500,000 of death
NOTE: MTC jurisdiction is exclusive 2. Inhabitant (non- resident) of
of interest, damages of whatever foreign country- court of any
kind, attorney’s fees, litigation province/ city wherein he had
expenses and costs estate
1. Ordinary escheat proceedings:
RTC
a. If resident- place where the
deceased last resided
b.If non-resident- place where
he had estate
2. Reversion of land to the State for
Rule 91 Escheat RTC violation of the Consitution/
Laws- RTC where the land lies in
whole or in part
3. Unclaimed deposits (for 10
years)- RTC of the city/ province
where the bank is located
NOTE: All banks located in 1 province
where the court is located may be
made party- defendant in 1 action.
163
RTC-Gross value of the estate Where the will was allowed or

exceeds 400,000/500,000 where the property or portion
Rule 98 Trustees
MTC- does not exceed 400,000/ thereof affected by the trust is
500,000 situated
Hospitalization of Where such insane person may be
Rule 101 RTC
insane person found
Where petitioner resides for 3
Rule 103 Change of name RTC years prior to the filing of the
petition
Cancellation or
Where the corresponding civil
Rule 108 correction of entries RTC
registry is located
in the civil registry
Declaration of Where the absentee resided before
Rule 107 RTC
absence and death his disappearance
A.M. No. Corporate Where principal office of the
RTC
00-8-10-SC rehabilitation corporation is situated
Voluntary dissolution Where principal office of
Rule 104 SEC
of corporation corporation is situated
Administrative Local civil registry office where the
correction of Local civil registry/Consul record is kept/where the interested
RA 9048
entry/change of first general party is presently residing or
name or nickname domiciled
1. If resident- place where
Rules 92-
minor/ incompetent resides
97; A.M. Family Court – In case of minors
Guardianship 2. If non-resident- place where
No. 03-02- RTC – In cases other than minors
minor/ incompetent has
05-SC
property
A.M. No.
Domestic Adoption Family Court Where the adopter resides
02-06-02-SC
A.M. No. Rescission of
Family Court Where the adoptee resides
02-6-02-SC Adoption
A.M. No. Inter-country Family Court or the Inter-
Where the adopter resides
02-6-02-SC Adoption Country Adoption Board
Where petitioner resides or where
Rule 99 Custody of Minors Family Court
the minor may be found
Judicial Approval of
Voluntary
Rule 105 Family Court Where the child resides
Recognition of Minor
Natural Children
Where the petitioner resides or
Family Summary
Family Court where the child resides if it involves
Code Proceedings
minors
Actions mentioned in the Family Courts Act
1. Petitions on
Foster care and
Temporary
Where petitioner or respondent
Custody
has been residing for at least 6
2. Declaration of
R.A. 8369 months prior to the date of filing
Nullity of
Family Court In case of non-resident
Marriage
respondent, where he may be
3. Cases of
found at the election of the
Domestic
petitioner
Violence Against
Women and
Children
SC, CA, RTC, MTC in the province
or city in case there is no RTC Where the aggrieved party is
Rule 102 Habeas Corpus
judge; SB only in aid of its detained (RTC)
appellate jurisdiction

SPECIAL PROCEDINGS
A.M. No. Habeas Corpus in

Where the petitioner resides or
03-04-04- Relation to Custody of Family Court, CA, SC
where the minor may be found
SC Minors
Where the threat, act or omission
A.M. No. RTC, SB, CA or SC or any justice
Writ of Amparo was committed or any of its
07-9-12-SC thereof
elements occurred
Where the petitioner or
respondent resides, or that which
A.M. No. RTC, SB, CA or SC or any justice has jurisdiction over the place
Writ of habeas data
08-1-16-SC thereof where the data or information is
gathered, collected or stored, at
the option of the petitioner
A.M. No. Where the unlawful act, omission
Writ of Kalikasan SC or any stations of CA
09-6-8-SC or threat was committed
Declaration of nullity
A.M. months prior to the date of filing
of void
No.02-11- Family Court In case of non-resident
marriage/Annulment
10-SC respondent, where he may be
of marriage
petitioner
A.M. No. months prior to the date of filing
02-11-11- Legal Separation Family Court In case of non-resident
SC respondent, where he may be
petitioner
Q: What is the publication requirement in special proceedings?
A:
Special Proceeding Publication of Order of Hearing
Administrative change of first name or nickname
Once a week for 2 consecutive weeks
Corporate rehabilitation
Settlement of estate of deceased persons
Judicial change of name
Judicial cancellation or correction of entries in the civil
registry
Domestic adoption
Inter-country adoption
Voluntary dissolution of corporation
(Except shortening of corporate term)
Note: The declaration of absence shall not take effect
Declaration of absence
until six (6) months after its publication in a newspaper
of general circulation.
Escheat Once a week for 6 consecutive weeks
Guardianship
Trustees
Custody of minors
Hospitalization of insane person
Rescission of adoption
Administrative cancellation or correction of entries
None
Habeas corpus
Writ of amparo
Writ of habeas data
Writ of kalikasan
1. Petitions on foster care and temporary custody
2. Cases of domestic violence against women and
165
children
Summary proceedings
Note: In declaration of nullity or annulment of marriage or legal separation, service of summons may be through
publication once a week for 2 consecutive weeks.
Q: Who should be notified in special proceedings?
A:
Special proceeding To whom notice must be given
Settlement of estate of deceased persons Executor/administrator/any interested party
Trustees All persons interested on the trust
On the person alleged to be insane and to the one having
Hospitalization of insane person
charge of him or any of his relatives
Judicial change of name Interested parties/Solicitor General
Judicial cancellation or correction of entries in the civil Persons named in the petition/Solicitor General/Civil
registry Registrar impleaded as respondent
Heirs/legatees/devisees/creditors/other interested
Declaration of absence and death
persons
Corporate rehabilitation Creditors/Debtors
Voluntary dissolution of corporation Creditors
Administrative correction of entry/ change of first name
Interested parties
or nickname
The minor if above 14 years of age/incompetent
Guardianship himself/Interested parties on the property of the ward.
General or special notice may be given.
Domestic Adoption Biological parents/Solicitor General
Rescission of Adoption Adopter
Inter-country Adoption Biological parents, if any/guardian
Custody of Minors Biological parents/guardian if any
Habeas corpus To the person to which the writ is directed
Writ of amparo Respondent
Writ of habeas data Respondent
Writ of kalikasan Respondent
Summary proceedings Respondent and interested party
1. Petitions on foster care and temporary custody
2. Cases of domestic violence against women and Solicitor General/Public Prosecutor
children
Declaration of nullity of void marriage / Annulment of
City/Provincial Prosecutor/ Respondent
marriage
Legal separation City/Provincial prosecutor/ Respondent
Escheat None
A. SETTLEMENT OF ESTATE OF DECEASED Q: State the rule on venue in judicial settlement of

PERSONS, VENUE AND PROCESSES estate of deceased persons.
1. WHICH COURT HAS JURISDICTION A:

Resident Non-Resident
Q: Which court has jurisdiction over the estate of Court of the province/city
the deceased? where the deceased Court of the province/city
resided at the time of wherein he had the
A: death, whether a citizen estate
Regional Trial Court Metropolitan Trial Court or alien
Gross value of the estate
Gross value of the estate
exceeds 500,000 (within
does not exceed
Metro Manila) or 400,000
500,000/400,00
(outside Metro Manila)

SPECIAL PROCEDINGS
2. VENUE IN JUDICIAL SETTLEMENT OF ESTATE v. Santiago, L- 1723, May 30, 1949); or by filing
another petition for settlement in a proper
Q: What is venue? court of concurrent venue (De Borja v. Tan, 77
Phil 872).
A: Under the Rules of Court, the province where the
estate of the deceased shall be settled (Cuenco v. XPN: Estoppel by Laches
CA, G.R. No. L-24742, October 26, 1973)
Note: The rule applies to both testate and intestate
proceedings.
Q: Is venue waivable?
3. EXTENT OF JURISDICTION OF PROBATE COURT
A: Yes. Wrong venue is a waivable procedural
defect, and such waiver may occur by laches where Q: May probate courts determine issues of
a party had been served notice of the filing of the ownership in a proceeding for the settlement of
probate petition for a year and allowed the estate of decedent? Explain.
proceedings to continue for such time before filing
a motion to dismiss. A:
GR: No, because probate courts are courts of
Note: Jurisdiction under Rule 73 does not relate to limited jurisdiction.
jurisdiction per se but to venue. Hence institution in
the court where the decedent is neither an inhabitant XPNS:
nor had his estate may be waived (Uriarte v. CFI, G.R. 1. Provisionally, for the sole purpose of
Nos. L-21938-39, May 29, 1970). including the property in the inventory,
without prejudice to its final
Q: What constitutes residence?
determination in a separate action;
2. When all the parties are heirs of the
A: It is the personal, actual, physical habitation, his
decedent and they agreed to submit the
actual residence or place of abode (Fule v. CA, G.R.
issue of ownership to the probate court,
No. L-40502, Nov. 29, 1976) and not his permanent
provided that no rights of third persons
legal residence or domicile.
are prejudiced;
Note: MTC jurisdiction is exclusive of interest, 3. If the question is one of collation or
damages of whatever kind, attorney’s fees, litigation advancement; or
expenses and costs. 4. If the parties consent to the assumption
of jurisdiction by the probate court and
Q: What is the remedy if Venue is improperly laid? no rights of third parties are prejudiced.
(Agpalo, Handbook on Special
A: Proceedings, pp. 10-12, 2003 ed.)
GR: ORDINARY APPEAL should be filed, not
certiorari or mandamus. Q: The probate court ordered the inclusion of a
parcel of land registered in the name of Richard in
XPN: CERTIORARI OR MANDAMUS should be the inventory of the properties of the deceased
filed when want of jurisdiction appear on the Anna. Richard opposed the inclusion arguing that
record of the case. the probate court cannot determine the issue of
the ownership of the parcel of land inasmuch as
Q: What is the Principle of Preferential the same was registered in his name. Is Richard
Jurisdiction? correct?
A: A: Yes. In probate proceedings, if a property

GR: The court first taking cognizance of the covered by Torrens title is involved, the
settlement of the estate of the decedent shall presumptive conclusiveness of such title should be
exercise jurisdiction to the exclusion of all given due weight, and in the absence of strong
other courts (Sec. 1 of Rule 73.) compelling evidence to the contrary, the holder
thereof should be considered as the owner of the
The probate court acquires jurisdiction from property in controversy until his title is nullified or
the moment the petition for the settlement of modified in an appropriate ordinary action,
estate is filed with said court. It cannot be particularly, when as in the case at bar, possession
divested of such jurisdiction by the subsequent of the property itself is in the persons named in the
acts of the parties as by entering into title (Luy Lim v. CA, G.R. No. 124715, Jan. 24, 2000).
extrajudicial partition of the estate (Sandoval
167
Q: What may the court do in the exercise of its Q: Where should the estate be settled if the
probate jurisdiction? marriage is dissolved by death of either spouse or
both?
A: It may issue warrants and processes to compel
the attendance of witnesses or carry into effect A: When the marriage is dissolved by the death of
their orders and judgments and all other powers the husband or wife, the community property shall
granted them by law. (Sec. 3, Rule 73) be inventoried, administered and liquidated, and
the debts thereof paid, in the testate or intestate
Q: May the probate court issue a writ of proceedings of the deceased spouse. If both
execution? spouses have died, the conjugal partnership shall be
liquidated in the testate or intestate proceedings of
A: either. (Sec. 2, Rule 73)
GR: No, because its orders usually refer to the Note: If separate proceedings have been instituted for
adjudication of claims against the estate which each estate, both proceedings may be consolidated if
the executor or administrator may satisfy they were filed in the same court.
without the necessity of resorting to a writ of
execution. The rule on consolidation in settlement proceedings
for husband and wife exclusively applies to them. It
XPNS: does not apply to siblings, parents and child or
1. To satisfy the contributive share of the other relatives no matter how close. (Benigno v. de
devisees, legatees and heirs when the la Peña, G.R. No. L-38036, Oct. 15, 1932)
latter had entered prior possession over
the estate (Sec. 6, Rule 88); Notes:
2. To enforce payment of the expenses of 1. The jurisdiction of a court as well as the
concomitant nature of the action is
partition (Sec. 3, Rule 90); and
determined by the averments in the
3. To satisfy the costs when a person is cited
complaint and not by the defenses
for examination in probate proceedings
contained in the answer. (Vda. De Manalo v.
(Sec. 13, Rule 142; De Valera v. Hon. CA, 349 SCRA 135).
Ofilada, G.R. No. L-27526, Sept. 19, 1974). 2. The residence of the deceased or the
4. To satisfy the claim in a summary location of his estate is not an element of
proceedings of creditors or heirs who jurisdiction over the subject matter but
appear within two years from merely of venue (Cuenca v. CA 53 SCRA 360,
distribution. 1973.)
3. Testate proceedings take precedence over
Q: Can a declaration of heirship be made in an intestate proceedings for the same estate. If
independent action? in the course of the intestate proceedings, it
is found that the decedent had left a last
A: will, proceedings for the probate of the
1. If the special proceedings are pending, or latter should replace the intestate
if there are no special proceedings filed proceedings even if at that state, an
but there is a need to file one, then the administrator had already been appointed
determination of heirship should be (Uriarte v. CFI, 33 SCRA 252, 1970.)
raised and settled in said special 4. Mere discovery of a document purporting to
proceedings. be the last will and testament of decedent
after appointment of an administrator does
2. If the special proceeding had been
not ipso facto nullify the letters of
instituted but had been finally closed and
administration already issued until the will
terminated, or if a putative heir has lost
has been proven and allowed (Advincula v.
the right to have himself declared in the Teodoro, 99 Phil 413).
special proceedings as co-heir and he can
no longer ask for its re-opening, then an 4. POWERS AND DUTIES OF PROBATE COURT
ordinary civil action can be filed for his
declaration as heir in order to bring about Q: What are the powers and duties of a Probate
the annulment of the partition or Court?
distribution or adjudication of properties
belonging to the estate of the deceased A: In probate proceedings, the court:
(Portugal and Portugal, Jr. v. Portugal-
Beltran, G.R. No. 155555, Aug. 16, 2005). 1. Orders the probate of the will of the
decedent
2. Grants letters administration

SPECIAL PROCEDINGS
3. Supervises and controls all acts of Allowed only in intestate Allowed in both testate
administration succession and intestate succession
4. Hears and approves claims against the There must be no Available even if there
estate of the deceased outstanding debts of the are debts, it is the court
5. Orders payment of lawful debts estate at the time of the which will make provision
6. Authorizes sale, mortgage or any settlement for its payment
encumbrance of real estate Resorted at the instance May be instituted by any
7. Orders the payment of taxes and other and by agreement of all interested party even a
charges heirs creditor of the estate
8. Directs the delivery of the estate to those without the consent of all
entitled thereto. the heirs
Note: The court acts as a trustee and as such must Amount of bond is equal Amount of bond is to be
jealously guard the estate and see to it that it is wisely to the value of personal determined by the court
and economically administered, not dissipated. property
Q: What are the powers and duties of a probate Q: Distinguish the procedure in extrajudicial
court? settlement from summary settlement
A: A:
To pass upon the issue regarding: A. EXTRAJUDICIAL SETTLEMENT BY
1. Validity of the will (i.e. formalities
AGREEMENT BETWEEN THE HEIRS
required by law)
2. Distribute shares
3. Determine who are the legal heirs Division of estate made through a public
instrument or affidavit of adjudication
4. Issue warrants and processes to secure
attendance of witnesses
5. Determine and rule upon issues relating Filing of the public instrument or affidavit of
to settlement of the estate, such as adjudication with the proper Register of Deeds
administration, liquidation, and
distribution of the estate
Publication of notice of the fact of extrajudicial
6. Determine the following: settlement once a week for three consecutive
a. Heirs of the decedent; weeks in a newspaper of general circulation
b. Recognition of natural child;
c. Validity of disinheritance effected by
testator;
Personal property- file a bond equivalent to its
d. Status of a woman who claims to be
amount.
the lawful wife of the decedent ; Real property- subject to a lien in favor of the
e. Validity if waiver of hereditary heirs; creditors, heirs or other persons for the full period
f. Status of each heir; of 2 years from such distribution and such lien
g. Whatever property in the inventory is cannot be substituted by a bond
conjugal or exclusive property of
deceased spouse; or
h. Matters incidental or collateral to the
settlement and distribution of the
estate.
B. SUMMARY SETTLEMENT OF ESTATES
1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT

BETWEEN HEIRS, WHEN ALLOWED
EXTRA JUDICIAL
SUMMARY SETTLEMENT
SETTLEMENT BY
OF ESTATE OF SMALL
AGREEMENT BETWEEN
VALUE
HEIRS
No court intervention Requires summary
adjudication
The value of the estate is Gross value of the estate
immaterial must not exceed P10,000
169
B. SUMMARY SETTLEMENT OF ESTATE OF

SMALL VALUE Note: While the Rules of Court provide that the
Petition for summary settlement to be filed in the decedent must not have left any debts, it is sufficient if
MTC with an allegation that the gross value of the any debts he may have left have been paid at the time
estate, whether he died testate or intestate does the extrajudicial settlement is entered into (Guico v.
not exceed P10,000 Bautista, G.R. No. L-14921, Dec. 31, 1960). It is a
disputable presumption that the decedent left no
debts if no creditor files a petition for letters of
Publication of notice once a week for 3 consecutive administration within two years after the death of the
weeks; court may likewise order that notice be decedent.
given to persons as the court may direct
Q: What is a bond?
Hearing to be held not less than 1 month nor more A: It is the value of the personal property certified
than 3 months from the date of last publication of by the parties under oath and conditioned upon
notice payment of just claims under Section 4, Rule 74.
Note: The amount of bond required under Section 2 is

determined by the COURT whereas in Section 1 the
The court proceeds summarily without the amount is EQUAL TO THE VALUE OF THE PERSONAL
necessity of appointing an executor or
PROPERTY as established by adjudication.
administrator; and to make orders as may be
necessary
Q: When is a bond required to be filed in
The court may also require a bond in an amount
extrajudicial settlement of estate?
fixed by the court (not value of personal property)
conditioned upon payment of just claims under
Section 4 A: When personal property is involved, a bond is
required. On the other hand, if it is a real property,
it is subject to a lien in favor of a creditor for 2 years
Q: When is extra judicial settlement by agreement
from distribution and such lien cannot be
between the heirs allowed? (Substantial
substituted by a bond. (Sec. 1, Rule 74)
Requisites)
Note: The same provision on the bond and lien also
A:
applies in summary settlement of estate. (Sec. 2,
When the decedent:
Rule 74)
1. Left no will and no debts; and the heirs
Q: Is a public instrument necessary for the validity
are all of age; and of the extrajudicial settlement?
2. Of the minors are represented by their
judicial or legal representatives duly A: No, the requirement of public instrument is not
authorized for the purpose. constitutive of the validity but is merely evidentiary
in nature (Hernandez v. Andal, G.R. No. L-273, Mar.
Q: What are the requisites before an extrajudicial 23, 1947). Even a private instrument, oral
settlement of estate could be resorted as evidence agreement of partition or compromise agreement
of its validity? (Procedural Requisites) entered into without previous authority from the
court is valid. However, reformation of the
A: instrument may be compelled.
1. Settlement is made in a public instrument
or by affidavit of adjudication in the case Note: Public instrument is required in transfer and
of a sole heir; registration of title to the heirs.
Note: In case of disagreement of heirs, they Q: What is the effect of an extra-judicial partition
may state their oppositions in an ordinary executed without the knowledge and consent of
action of partition. the other co-heirs?
2. Filed with the Register of Deeds; A: It shall not prejudice the co-heir who had no
3. Fact of settlement must be published in a knowledge nor consented to the same. He shall
newspaper of general circulation once a have the right to vindicate his inheritance. Such heir
week for 3 consecutive weeks; and or such other person deprived of his lawful
4. Bond filed equivalent to the value of participation payable in money may compel the
personal property. (Sec. 1, Rule 74) settlement of the estate in courts for the purpose

SPECIAL PROCEDINGS
of satisfying such lawful participation. (Sec. 4, Rule 3. AFFIDAVIT OF SELF-ADJUDICATION BY SOLE

74) HEIR
Q: Why is publication of the extrajudicial Q: What is an Affidavit of Self-Adjudication by sole

settlement necessary? heir?
A: To notify and bind the whole world of the A: It is an affidavit required by Sec.1, Rule 74 to be
extrajudicial settlement and give the concerned executed by the sole heir or a deceased person in
parties a chance to come forward and challenge the adjudicating to himself the entire estate left by the
same (Sec. 1, Rule 74). decedent.
Note: Publication alone does not suffice to bind the 4. SUMMARY SETTLEMENT OF ESTATES OF SMALL
excluded heirs to the extrajudicial settlement VALUE
unless he did not participate in the proceedings.
Q: What is summary settlement of estate?
Q: What is the effect if the provisions on notice or
participation requirement under Sec. 1, Rule 74 A: It is a judicial proceeding, without appointment
have been strictly complied with? of executor or administrator, and without delay, the
competent court summarily proceeds to estimate
A: It bars distributees or heirs from objecting to an the value of estate of the decedent; allow his will if
extra-judicial partition after the two-year any; declare his heirs, devisees, and legatees;
prescriptive period to question such partition. (Sec. distribute his net estate among them, who shall
4, Rule 74) thereupon be entitled to receive and enter into the
possession of the parts of the estate so awarded to
2. TWO-YEAR PRESCRIPTIVE PERIOD them, respectively.
Q: When does the two year period rule apply? Q: Summary settlement of estates of small value,
when is it allowed?
A: After the expiration of two years from the
extrajudicial partition, distributees or heirs are A: Only when gross estate does not exceed
barred from objecting to an extrajudicial partition. P10,000. Amount is jurisdictional. (Sec. 2, Rule 74)
The two year prescriptive period applies only:
Notes:
1. To persons who have participated or 1. Amount is jurisdictional;
taken part or had notice of the 2. Summary settlement of estate of small value
extrajudicial partition; and is allowed in both testate and intestate
2. When all the persons or heirs of the estates;
decedent have taken part in the 3. Available even if there are debts as the court
extrajudicial settlement or are will make provisions for the payment
represented by themselves or through thereof.
their guardians. 4. In accordance with B.P. Blg. 129, the
jurisdiction is vested to the Municipal Trial
Note: It is only a bar against the parties who had not Courts.
taken part in the extrajudicial proceedings, but not 5. Instituted by any interested party and even
against third persons not parties thereto. (Herrera, by a dredirtor of the estate, without the
Remedial Law III-A, 39) consent of all the heirs.
6. The date for hearing, shall be set by court
not less than 1 month nor more than 3
Q: Does the two year period apply for a claim of
months from date of publication of last
minor or incapacitated person?
notice and the order of hearing be published
once a week for 3 consecutive weeks in a
A: If on the date of the expiration of the period of newspaper of general circulation.
two years prescribed, the person authorized to file 7. Notice shall be served upon such interested
a claim is a minor or mentally incapacitated, or is in persons as the court may direct.
prison or outside the Philippines, he may present 8. Bond in an amount fixed by the court (not
his claim within one year after such disability is value of the personal property) conditioned
removed. (Sec. 5, Rule 74) upon payment of just claims under sec. 4.
171
Q: When can settlement of estates in courts be 2. The existence of debts against the estate;
compelled? 3. If there is undue deprivation of lawful
participation payable in money. (Sec. 4,
A: Rule 74)
1. If there is undue deprivation of lawful
participation in the estate;
5. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE
Q: What are the remedies of the aggrieved party in summary or extrajudicial settlement of the estate?
A:
CLAIM AGAINST THE BOND OR GROUNDS: (Section 4, Rule 74)
REAL ESTATE a. If there is undue deprivation of lawful participation in the estate;
b. Existence of debts against the estate.
Should be brought within 2 years after settlement and distribution of the estate
COMPEL THE SETTLEMENT OF
ESTATE IN COURTS Should be brought within 2 years after settlement and distribution of the estate
ACTION FOR RESCISSION It must be availed of within 5 years from the time the right of action accrues.
(Art. 1149, NCC)
Also applicable in judicial proceedings
ACTION FOR RECONVEYANCE OF GR: It is based on an implied or constructive trust which prescribes in 10 years
REAL PROPERTY from the date of registration or date of issuance of certificate of title or from
actual discovery of fraud if the registration was made in bad faith.
XPN: If the plaintiff is in possession of the property and did not pass to innocent
purchaser for value and good faith, action is imprescriptible. (Marquez v. CA,
G.R. No. 125715, Dec. 29, 1998) Also applicable in judicial proceedings.
REOPENING BY INTERVENTION IN Upon motion of a person who either:
SUMMARY SETTLEMENT a. Has a legal interest in the matter in litigation;
b. Has such legal interest in the success of either of the parties, or an interest
against both; or
c. Is so situated as to be adversely affected by the distribution of property in
the custody of the court or of an officer.
Note: May be availed of after judgment but before its finality or appeal by the
aggrieved party.
PETITION FOR RELIEF (SUMMARY On grounds of fraud, accident, mistake, and excusable negligence within 60 days
SETTLEMENT) after petitioner learns of the judgment, final order or other proceeding to be set
aside, and not more than 6 months after such judgment or final order was
entered. (Rule 38.) Also applicable in judicial proceedings.
ACTION TO ANNUL A DEED OF On the ground of fraud which should be filed within 4 years from the discovery
EXTRAJUDICIAL SETTLEMENT OR of fraud.
JUDGMENT IN SUMMARY
SETTLEMENT
ORDINARY ACTION BUT NOT If the order of closure has already become final and executory, the heir must file
AGAINST THE BOND an independent civil action of accion reinvidicatoria to recover his deprived
share.
Note: It must be brought within 10 years from the time the right of action
accrues. [Art. 1144(c)]
Also applicable in judicial proceedings.
After the lapse of two years an ordinary action may be instituted against the
distributees within the statute of limitations but not against the bond.

SPECIAL PROCEDINGS
C. PRODUCTION AND PROBATE OF WILL anxiety; as in the case of absolute

preterition (Nuguid v. Nuguid, G.R. No. L-
1. NATURE OF PROBATE PROCEEDING 23445, June 23, 1966).
2. Where the entire or all testamentary
Q: What is probate? dispositions are void and where the
defect is apparent on its face
A: Probate is the act of proving before a competent (Nepomuceno v. CA, G.R. No. L-62952,
court the due execution of a will by a person Oct. 9, 1985).
possessed of testamentary capacity, as well as the
approval thereof by said court, (also known as Note: Principle does not apply where the
Allowance of Will). meat of the controversy is not the
intrinsic validity of the will.
Q: Why is probate necessary?
NOTE: The decree of probate is conclusive with respect
A: To settle all questions concerning the capacity of to the due execution of the will and it cannot be
the testator and the proper execution of his will, impugned on any of the grounds authorized by law,
irrespective of whether its provisions are valid and except by fraud, in any separate or independent action
enforceable. (Fernandez v. Dimagiba, G.R. No. L- or proceeding.
23638, Oct. 12, 1967)
2. WHO MAY PETITION FOR PROBATE
Q: What is the nature of a probate proceeding?
Q: Who may file petition for allowance of will?
A:
1. IN REM- It is binding upon the whole world. A:
1. Executor (Sec. 1, Rule 76);
2. MANDATORY- No will shall pass either real or 2. Devisee or legatee named in the will (Sec.
personal property unless it is proved and allowed in 1, Rule 76);
the proper court. 3. Person interested in the estate; e.g. heirs
Note: However, a will may be sustained on the basis of Note: An interested party is one who would
Article 1080 of the NCC which states that, “if the be benefited by the estate, such as an heir,
testator should make a partition of his property by an or one who has a claim against the estate
act intervivos or by will, such partition shall stand in so such as a creditor. (Sumilang v. Ramagosa,
far as it does not prejudice the legitime of the forced G.R. No. L-23135, Dec. 26, 1967)
heir. (Mang- Oy v. CA, L-27421, 1986)
4. Testator himself during his lifetime (Sec.
3. IMPRESCRIPTIBLE- because of the public policy 1, Rule 76); or
to obey the will of the testator 5. Any creditor – as preparatory step for
filing of his claim therein.
4. DOCTRINE OF ESTOPPEL DOES NOT APPLY- the
probate of the will is mandatory. The presentation Q: Who are the people entitled to notice in a
and probate of the will is required by public policy. probate hearing?
It involves public interest. (Fernandez v. Dimagiba,
L- 23638, 1967) A:
1. Designated or known heirs, legatees and
Q: Does the probate court look into the intrinsic devisees of the testator resident in the
validity of the will? Philippines at their places of residence, at
least 20 days before the hearing, if such
A: places of residence be known.
GR: The jurisdiction of probate court is limited 2. Person named executor, if he not the
to the examination and resolution of the petitioner.
extrinsic validity of a will. 3. To any person named as co-executor not
petitioning, if their places of residence be
XPNS: Principle of practical considerations known.
wherein the court may pass upon the intrinsic 4. If the testator asks for the allowance of
validity of the will: his own will, notice shall be sent only to
his compulsory heirs. (Sec. 4, Rule 76)
1. If the case where to be remanded for
probate of the will, it will result to waste
of time, effort, expense, plus added
173
D. ALLOWANCE OR DISALLOWANCE OF A WILL At least one The will shall be

witness who allowed if at least
1. CONTENTS OF PETITION FOR ALLOWANCE FOR knows the three witnesses
WILL handwriting and who know the
signature of the handwriting of
Q: What are the contents of a petition for Holographic testator explicitly the testator
allowance of a will? will declares that the explicitly declare
will and that the will and
A: signature are in signature are in
the handwriting the handwriting
1. Jurisdictional facts:
of the testator. of the testator.
I. death of the testator and
(Sec. 5, Rule 76) (Sec. 11, Rule 76)
II. his residence at the time of his death
III. if non- resident, the province where the
Note: At the hearing, compliance with publication and
estate was left notice must first be shown before the introduction of
2. The names, ages and residences of the testimony in support of the will.
heirs, legatees and devisees of the testator
or decedent. In the absence of competent witness, and if the
3. The probable value and character of the court deems it necessary, expert testimony may be
property of the estate. resorted to. (Sec. 5, Rule 76)
4. The name of the persons for whom letters
are prayed. Q: What is the remedy if none of the subscribing
5. The name of the person having custody of witnesses resides in the province where probate is
the will if it has not been delivered to the being conducted?
court.
NOTE: But no defect in the petition shall render void A: A motion for taking of deposition of one or more
the allowance of the will or the issuance of letters of them. (Sec. 7, Rule 76)
testamentary or of administration with the will
annexed. Note: Court may also authorize photographic copy of
the will to be made and to be presented to the witness
Q: What is the effect of the allowance of a will? on his examination, who may be asked questions with
respect to matters pertaining to the will. (Sec. 7, Rule
A: The judgment or decree of the court allowing the 76)
will is:
Q: What are the instances when the court may
1. Conclusive as to its extrinsic validity; admit the testimony of witnesses other than the
2. Not subject to collateral attack and it subscribing witnesses?
stands as final, if not modified, set aside,
or revoked by a direct proceeding, or A:
reversed on appeal by a higher court; and 1. The subscribing witnesses are dead or
3. Conclusive on the whole world. (Yuseco v. insane; or
CA, G.R. Nos. L-40719-21, Dec. 29, 1975) 2. None of them resides in the Philippines.
Q: How should a will be proved? (Sec. 8, Rule 76)
A: Q: What matters shall be testified on by the other

Uncontested Contested witnesses?
The court may A:

grant allowance 1. The sanity of the testator; and
thereof on the 2. Due execution of the will.
All the subscribing
testimony of one
witnesses and the
of the Note: The court may admit proof of handwriting of the
notary public
subscribing testator and of the subscribing witnesses, or any of
Notarial must testify as to
witnesses only, if them. (Sec. 8, Rule 76)
will due execution and
such witness
attestation of the
testifies that the
will. (Sec. 11, Rule
will was
76)
executed as is
required by law.
(Sec. 5, Rule 76)

SPECIAL PROCEDINGS
Q: What proof is necessary if the testator himself 2. If the testator was insane, or otherwise
files the petition for probate of his holographic will mentally incapable to make a will, at the
and no contest is filed? time of its execution;
3. If it was executed under duress, influence
A: The fact that he affirms that the holographic will of fear, or threats;
and the signature are in his own handwriting shall 4. If it was procured by undue and improper
be sufficient evidence of the genuineness and due pressure or influence, on the part of the
execution thereof. (Sec. 12, Rule 76) beneficiary, or of some other person for
his benefit; or
Q: What if the holographic will is contested? 5. If the signature of the testator was
procured by fraud or trick, and he did not
A: If the holographic will is contested, the burden of intend that the instrument should be his
disproving the genuiness and due execution thereof will at the time of fixing his signature
shall be on the contestant. The testator may, in his thereto. (Sec. 9, Rule 76)
turn, present such additional proof as may be
necessary to rebut the evidence for the contestant. Q: What is the Substantial Compliance Rule?
(Sec. 12, Rule 76)
A: If the will has been executed in substantial
Q: What is the rule on proof of lost or destroyed compliance with the formalities of the law, and the
will? possibility of bad faith and farud is obviated, said
will should be admitted to probate (Art. 809, New
A: If notarial will, it may be proven by a photostatic
Civil Code).
or xerox copy of the will coupled with the
testimonies of the attesting witnesses.
3. REPROBATE; REQUISITES BEFORE WILL PROVED
OUTSIDE ALLOWED IN THE PHILIPPINES; EFFECT
If holographic will, a photostatic copy or
exerox copy of the lost will would not suffice.
Q: What is reprobate?
But if there are no other copies available then
a photostatic or xerox copy would suffice to
A: It is a special proceeding to establish the validity
serve as a comparison to the standard
of a will proved in a foreign country.
writings of the testator. No testimonies of
witnesses is allowed because the will was Q: What are the requisites before a will proven
made entirely by the testator himself. (Bonilla outside the Philippines be allowed here?
vs. Aranz, G.R. No. L-58509, Dec. 7, 1982)
A:
Q: What are the requisites for allowance of a lost 1. The testator was domiciled in a foreign
or destroyed will? country;
2. The will has been admitted to probate in
A: No will shall be proved as a lost or destroyed will
such country;
unless:
3. The foreign court is, under the laws of
1. Its execution and validity of the same
said foreign country, a probate court with
must be established;
jurisdiction over the proceedings;
2. It must have been in existence at the time
4. Proof of compliance with the law on
of the death of the testator, or is shown
probate procedure in said foreign
to have been fraudulently or accidentally
country;
destroyed during the lifetime of the
5. The legal requirements in said foreign
testator without his knowledge; and
country for the valid execution of the will
3. Its provisions must be clearly and
have been complied with;
distinctly proved by at least 2 credible
6. Filing a petition in the Philippines with
witnesses (Sec. 6)
copy of the will and of its decree of
allowance; and
2. GROUNDS FOR DISALLOWING A WILL
7. Notice and hearing. (PCIB v. Escolin, G.R.
No. 76714, June 2, 1994)
Q: What are the grounds for disallowance of will?
Note: Under the doctrine of processual presumption,
A:
there must be evidence to prove the existence of
1. If not executed and attested as required foreign law, otherwise the court should presume that
by law; the law of the foreign country is the same as Philippine
laws.
175
Q: What are the effects of probate? 2. Non-resident of the Philippines; and

3. Those who, in the opinion of the court,
A: are unfit to execute the duties of the trust
1. The will shall have the same effect as if by reason of drunkenness, improvidence,
originally proved and allowed in the want of understanding or integrity, or
Philippines (Sec. 3, Rule 77); conviction of an offense involving moral
2. Letters testamentary or administration turpitude (Sec. 1, Rule 78).
with a will annexed shall extend to all
estates of the testator in the Philippines Q: What authority is issued to the person who
(Sec. 4, Rule 77); and administers the estate?
3. Such estate, after the payment of just
debts and expenses of administration, A:
shall be disposed of according to the will, 1. Letters testamentary – authority issued to
so far as such will, may operate upon it, an executor named in the will to
and the residue, if any, shall be disposed administer the estate;
of as provided by law in cases of estates 2. Letters of administration – authority
in the Philippines belonging to persons issued by the court to a competent
who are inhabitants of another country person to administer the estate of the
(Sec. 4, Rule 77). deceased who died intestate; or
3. Letters of administration with a will
E. LETTERS TESTAMENTARY AND OF annexed – authority issued by the court
ADMINISTRATION to a competent person to administer the
estate of the deceased if the executor
1. WHEN AND TO WHOM THE LETTERS OF named in the will refused to accept the
ADMINISTRATION GRANTED office, or is incompetent.
Q: Who can administer the estate? 2. ORDER OF PREFERENCE
A: Q: State the order of preference in granting letters

1. Executor – named by the testator in his of administration. (to whom letters are granted)
will for the administration of his property
after his death; A: If no executor is named in the will, or the
2. Administrator – appointed by the court in executors are incompetent, refuse the trust, or fail
accordance with the Rules or governing to give the bond, or a person dies intestate,
statutes to administer and settle the administration shall be granted to:
intestate testate; or
3. Administrator with a will annexed – 1. The surviving spouse or next of kin, or
appointed by the court in cases when, both, in the discretion of the court, or to
although there is a will, the will does not such person as such surviving spouse or
appoint any executor, or if appointed, next of kin, requests to have appointed, if
said person is either incapacitated or competent and willing to serve
unwilling to serve as such. 2. The principal creditors, if competent and
willing to serve, if the surviving spouse or
Q: Who may serve as executor or administrator? next of kin, or the person selected by
them be incompetent or unwilling or if
A: Any competent person may serve as executor or the surviving spouse or next of kin
administrator. There may be several executors neglects for 30 days after the death of the
named in the will. Letters testamentary may issue person to apply for administration or to
to such of them as are competent, accept and give request that administration be granted to
bond. (Sec. 4, Rule 78) some other person
3. Such other person as the court may select
Note: If the named executor does not qualify, then an if there is no such creditor competent and
administrator may be appointed. (Sec. 6, Rule 78) willing to serve. (Sec. 6)
Q: Who are incompetent to serve as executor or NOTE: Order of preference may be disregarded for a
administrator? valid cause.
A:
1. Minor;

SPECIAL PROCEDINGS
Note: Co-administrators may be appointed for the 1. Incompetency of the person for whom
benefit of the estate and those interested therein letters are prayed therein; or
(Matute v. CA, G.R. No. 26751, Jan. 31, 1969). 2. Contestant's own right to the
administration (Sec. 4, Rule 79).
Q: What is the rationale behind the order of
preference in appointing an administrator? Note: Letters of administration may be granted to any
qualified applicant, though it appears that there are
A: The underlying assumption behind this rule is other competent persons having better right to the
that those who will reap the benefits of a wise, administration, if such persons fail to appear when
speedy and economical administration of the estate notified and claim the issuance of letters to themselves
or on the other hand, suffer the consequences of (Sec. 6, Rule 79).
waste, improvidence or mismanagement, have the
higher interest and most influential motive to Q: Is the order of Appointment of Regular
administer the estate correctly (Gonzales v. Administrator final?
Aguinaldo, G.R. No. 74769, Sept. 28, 1990).
A: No. The order of appointment of a regular
Q: When may co-administrators be appointed? administrator is appealable. Where no notice is
required by Sec. 3, Rule 79 of the Rules of Court has
A: been given to persons believed to have an interest
1. To have the benefit of their judgment and in the estate of the deceased person; the
perhaps at all times to have different proceeding for the settelement of the estate is void
interests represented; and should be annulled. The requirement as to
2. Where justice and equity demand that notice is essential to the validity of the proceeding
opposing parties or factions be in order that no person may be deprived of his right
represented in the management of the to property without due process of law. (Herrera,
estate of the deceased; Vol. III-A, p. 94, 2005 ed.)
3. Where the estate is large or, from any
cause, an intricate and perplexing one to
settle; 4. POWERS AND DUTIES OF EXECUTORS AND
4. To have all interested persons satisfied ADMINISTRATORS; RESTRICTIONS ON THE
and the representatives to work in POWERS
harmony for the best interest of the
estate; or Q: What are the rights of the executor or
5. When a person entitled to the administrator of the deceased partner’s estate?
administration of an estate desires to
have another competent person A:
associated with him in the office. (Gabriel 1. He shall at all times have access to, and
v. CA, G.R. No. 101512, Aug. 7, 1992) may examine and take copies of books
and papers relating to the partnership;
3. OPPOSITION TO ISSUANCE OF LETTERS 2. He can make invoices of the property
TESTAMENTARY; SIMULTANEOUS FILING OF belonging to the partnership, and the
PETITION FOR ADMINISTRATION surviving partner or partners on request;
and
Q: Who may oppose the issuance of letters 3. The books, papers, and property in the
testamentary or administration? partnership’s hands or control shall be
exhibited to such executor or
A: Any person interested in the will may file a administrator. (Sec. 1, Rule 84)
written opposition.
Note: To exercise these rights, the executor or
Note: He may attach thereto a petition for letters of administrator must file his application with the
administration and pray that letters be issued to probate court which must grant the same.
himself, or to any competent person named in the
opposition (Sec. 1, Rule 79). Q: What should be done by the executor or
administrator to freely exercise his rights and
Q: What are the grounds for opposing a petition duties?
for administration?
A: He shall submit a written application to the court
A: Any interested person may by filing a written having jurisdiction of the estate. (Sec. 1, Rule 84)
opposition, contest the petition on the ground of
the:
177
Q: What are the general powers of an 6. He cannot profit by the increase or

administrator or an executor? decrease in the value of the property
under administration;
A: 7. He cannot exercise the right of legal
1. To have access to, and examine and take redemption over a portion of the
copies of books and papers relating to the property owned in common sold by one
partnership in case of a deceased partner of the other co-owners. (Herrera, Vol. III-
2. To examine and make invoices of the A, pp. 116-117, 2005 ed.)
property belonging to the partnership in
case of a deceased partner 5. APPOINTMENT OF SPECIAL ADMINISTRATOR
3. To maintain in tenantable repairs, houses
and other structures and fences and to REGULAR SPECIAL
deliver the same in such repair to the ADMINISTRATOR ADMINISTRATOR
heirs or devisees when directed so to do Order of Appointment Order of Appointment is
by the court may be the subject of an interlocutory and hence
4. To make improvements on the properties appeal not appealable
under administration with the necessary One of the obligations is Cannot pay the debts of
court approval except for necessary to pay the debts of the the estate
repairs estate
5. To possess and manage the estate when Appointed when the Appointed when there is
necessary: deceased died intestate delay in granting letters
i) For the payment of debts; and or did not appoint an testamentary or
ii) For the payment of expenses of executor in the will or the administration
administration will was disallowed
Q: Is the right of an executor/administrator to the Q: When are the grounds for the appointment of a
possession and management of property of the special administrator?
deceased absolute?
A:
A: No, it can only be exercised so long as it is 1. When there is delay in granting letters
necessary for the payment of debts and expenses of testamentary or of administration by any
administration (Ruiz v. CA, G.R. No.118671, Jan. 29, cause including an appeal from the
1996). allowance or disallowance of a will (Sec. 1,
Rule 80); or
Q: What are the restrictions on the powers of 2. When the executor or administrator is a
administrator or executor? claimant against the estate he represents
(Sec. 6, Rule 86).
A:
1. He cannot acquire by purchase, even at Note: Only one special administrator at a time may be
public or judicial action, either in person appointed, since the appointment is merely
or mediation of another, the property temporary.
under administration;
2. He cannot borrow money without Q: Why is there a need for appointing a special
authority from the court; administrator?
3. He cannot speculate with funds under
A: The principal object is to preserve the estate
administration;
until it can pass into the hands of persons fully
4. He cannot lease the property under
authorized to administer it for the benefit of the
administration for more than 1 year;
creditors and heirs (De Guzman v. Guadiz, G.R. No.
Note: The administrator has the power to
L-48585, Mar. 31, 1980).
enter into lease contracts involving the
properties of the estate even without prior Q: What are the qualifications of a special
judicial authority and approval. (Mananquil administrator?
v. Villegas, A.M. No. 2430, Aug. 30, 1990)
A: These are not spelled out in the Rules of Court.
5. He cannot continue the business of the Thus, the appointment should be within the sound
deceased unless authorized by the court; discretion of the court. The fundamental and legal
and principles governing the choice of a regular
administrator should also be taken into account in

SPECIAL PROCEDINGS
the appointment of a special administrator. administrator is appointed with those

(Herrera, Vol. III-A, p. 99, 2005 ed.) powers.
2. If a special administrator has been
Q: Does the order of preference in the appointed, and thereafter a proceeding to
appointment of regular administrators apply to contest a will before it is admitted to
the appointment of special administrators? probate has been instituted, the court
shall enter an order granting to the
A: No, but such order of preference may be special administrator the additional
followed by the judge in the exercise of sound powers, duties and obligations of an
discretion (Matias v. Gonzales, G.R. No. L- 13391, executor or administrator and requiring
May 25, 1960). such additional bond as the court deems
proper.
Q: Is the order appointing a special administrator
appealable? 6. GROUNDS FOR REMOVAL OF ADMINISTRATOR
A: No, it is an interlocutory order. (Esler v. Tad-y, Q: What are the grounds for the removal of an
G.R. No. L-20902, Oct. 9, 1923) executor or administrator?
Q: What are the powers and duties of a special A:

administrator? 1. Neglect to render an account and settle
the estate according to law;
A: 2. Neglect to perform an order or judgment
1. Possess and take charge of the goods, of the court, or a duty expressly provided
chattels, rights, credits and estate of the by the Rules;
deceased; 3. Absconds;
2. Preserve the same; 4. Becomes insane; or
3. Commence and maintain suit for the 5. Becomes incapable or unsuitable to
estate; discharge the trust (Sec. 2, Rule 82).
4. Sell only:
a. Perishable property; and Note: These grounds are not exclusive. False
b. Other property ordered sold by the misrepresentation by an administrator in securing his
court; appointment is a ground for his removal (Cobarrubias
5. Pay debts only as may be ordered by the v. Dizon, G.R. No. L-225, Feb. 26, 1946).
court. (Sec. 2, Rule 80)
Q: What are the other grounds for removal of an
Q: When do the powers of special administrator executor or administrator?
cease?
A:
A: After the questions causing the delay are 1. Death;
resolved and letters testamentary or administration 2. Resignation;
are granted to executor or regular administrator. 3. An administrator who disbursed funds of
(Sec. 1) the estate without judicial approval.
(Cotia vs. Jimenez, 104 Phil. 960);
Q: When can 2 special administrators be 4. False representation by an administrator
appointed? in securing his appointment (Cabarubbias
vs. Dizon, 76 Phil. 209);
A: 5. An administrator who holds an interest
1. If a special administrator is appointed adverse to that of the estate or by his
pending determination of a contest of a conduct showing his unfitness to
will instituted before it is admitted to discharge the trust (Garcia vs. Vasquez, 32
probate, or pending an appeal from an SCRA 490);
order appointing, suspending or removing 6. An administrator who has the physical
an executor or administrator, the special inability and consequent unsuitability to
administrator has the same powers, manage the estate (De Borja vs. Tan, 93
duties and obligations as an executor or Phil. 167).
administrator, and the letters of
administration issued to the special
administrator must recite that the special
179
Q: Are the grounds for removal of executor or Q: What is the duty of the court after granting
administrator the same for special administrator? letters testamentary or of administration?
A: No. The grounds for the removal of regular A: The court shall issue a notice requiring all
administrator do not apply strictly to the special persons having money claims to file them in the
administrator as he may be removed by the court office of the clerk of court. (Sec. 1, Rule 86)
on other grounds upon its discretion.
1. TIME WHITIN WHICH CLAIMS SHALL BE FILED;
Q: What is the rule on proceedings upon death, EXCEPTIONS
resignation or removal of an executor or
administrator? Q: What is the time within which claims shall be
filed?
A: When an executor or administrator dies, resigns,
or is removed the remaning executor or A: It should not be less than six (6) months nor
administrator may administer the trust alone, more than twelve (12) months from the day of the
unless the court gransts letters to someone act with first publication of the notice thereof. Such period
him. If there is no remaining executor or when fixed by the probate court becomes
administrator, administration may be granted to mandatory. However, at any time before an order
any suitable person. of distribution is entered, on application of a
creditor who has failed to file his claim within the
Q: Does the discovery of a will automatically time previously limited, the court may, for cause
terminate the letters of administration? shown and on such terms as are equitable, allow
such claim to be filed within a time not exceeding
A: No, until the will has been proved and allowed one (1) month. (Sec. 2, Rule 86)
pursuant to Section 1, Rule 82. (De Parreno v.
Aranzanso, G.R. No. L- 27657, Aug. 30, 1982) The period prescribed in the notice to creditors is
not exclusive; that money claims against the estate
Q: What are the powers of a new executor or may be allowed at any time before an order of
administrator after the first one resigns or is distribution is entered, at the discretion of the court
removed? for the cause and upon such terms as are equitable.
(Quisumbing vs Guison, 76 Phil 730)
A:
1. To collect and settle the estate not Note: The range of period specified in Sec.2 of Rule 86
administered; is intended to give the court the discretion to fix the
2. To prosecute or defend actions period for the filing of the claims. The probate court is
commenced by or against the former permitted by the rule to set the period as long as it is
executor or administrator; and within the limitation provided.
To recover execution on judgments in the name of
former executor or administrator. (Sec. 4, Rule 82) 2. STATUTE OF NON-CLAIMS
F. CLAIMS AGAINST THE ESTATE Q: What is the statute of non-claims?
Q: What is a claim? A: It is a period fixed by the courts for the filing of

claims against the estate for examination and
A: Claim refers to any debt or pecuniary demand allowance. (Herrera, Vol. III-A, p. 132, 2005 ed.)
against the decedent’s estate.
Q: When should claims be filed?
Q: What is absolute claim?
A:
A: It is one which, if contested between living GR: Within the time fixed in the notice which
persons, would be the proper subject of immediate shall not be more than 12 months nor less than
legal action and would supply a basis of judgment 6 months after the date of the first publication.
for a sum certain. Such period once fixed by the court is
mandatory. Otherwise, the claims are barred
Q: What is contingent claim? forever.
A: It is a conditional claim, which is subject to the Note: Where an executor or administrator

happening of a future uncertain event. (Buan v. commences an action, or prosecutes an action
Laya, G.R. No. L-7840, Dec. 24, 1957) already commenced by the deceased in his
lifetime, the debtor may set forth by answer the

SPECIAL PROCEDINGS
claims he has against the decedent, and mutual estate may be commenced against the executor or
claims may be set off against each other in such administrator under Rule 87.
action. (Sec. 5, Rule 86)
Q: What if the effect of claims not filed?
XPN: Belated claims.
A: As expressly provided by the rule, all claims not
Q: What is the rule on Belated Claims? presented within the time herein provided are
barred.
A: Belated claims may be filed even beyond the
period fixed by the court: Q: The trial court admitted to probate the
holographic will of Alice and thereafter issued an
1. On application of a creditor who has order for all the creditors to file their respective
failed to file his claim within the time claims against the estate. Alan filed a contingent
previously limited, at any time before an claim for agent's commission due him in the event
order of distribution is entered, the court of the sale of certain parcels of land belonging to
may, for just causes, allow such claim to the estate and reimbursement for expenses
be filed not exceeding 1 month from the incurred. The executrix of the estate moved for
order allowing belated claims; or (Sec. 2 , the dismissal of said money claim against the
Rule 86) estate on the grounds that Alan failed to attach a
2. Where the estate filed a claim against the certification against non-forum shopping. The trial
creditor or claimant who failed to present court dismissed the case. Is the trial court correct?
his claim against the estate within the
period fixed by the probate court for the A: No. Under Sections 1 and 5, Rule 86 of the Rules
settlement of such claims, the creditor of Court, after granting letters of testamentary or of
will be allowed to set up the same as a administration, all persons having money claims
counterclaim to the action filed by the against the decedent are mandated to file or notify
estate against him. the court and the estate administrator of their
respective money claims; otherwise, they would be
Note: Statute of non-claims supersedes the Statute of barred, subject to certain exceptions. A money
Limitations insofar as the debts of deceased persons claim is only an incidental matter in the main action
are concerned because if a creditor fails to file his for the settlement of the decedent's estate; more
claim within the time fixed by the court in the notice, so if the claim is contingent since the claimant
then the claim is barred forever. However, both
cannot even institute a separate action for a mere
statute of non-claims and statute of limitations must
contingent claim. Hence, Alan’s contingent money
concur in order for a creditor to collect.
claim, not being an initiatory pleading, does not
Q: What claims against the estate of the decedent require a certification against non-forum shopping.
must be presented in the probate court in the (Sheker v. Estate of Alice O. Sheker, G.R. No.157912,
testate or intestate proceedings? Dec. 13, 2007)
A: Only claims which survive such as: Q: Should taxes due and assessed after the death
1. All claims for money against the of the decedent be presented in the form of a
decedent, arising from contract, express claim?
or implied, whether the same be due, not
A: No. The court in the exercise of its administrative
due, or contingent;
control over the executor or administrator may
2. All claims for funeral expenses;
direct him to pay such taxes. Moreover, heirs even
3. Expenses for the last sickness of the
after distribution are liable for such taxes. (Vera v.
decedent; or
Fernandez, G.R. No. L-31364, Mar. 30, 1979)
4. Judgment for money against the
decedent. (Sec. 5, Rule 86)
3. CLAIM OF EXECUTOR OR ADMINISTRATOR
AGAINST THE ESTATE
Note: Action on contractual claims such as favorable
judgment obtained by the plaintiff in an action for
Q: What should be the action of the executor or
recovery of money arising from contract, express or
implied, and the defendant dies before entry of final administrator if he has a claim against the estate?
judgment may be filed against the estate of the
decedent. (Sec. 20, Rule 3) A: He shall give notice to the court in writing and
the court shall thereafter appoint a special
Action which survives like an action to recover real administrator (Sec. 8, Rule 86).
or personal property or an interest therein from the
181
Q: What is the procedure in filing claims?
A:
Q: Jericho loaned P5 Million from Carina. Said loan 1. Waive the mortgage and claim the entire debt
was secured by a real estate mortgage over a from the estate of the mortgagor as an
parcel of land owned by Jericho. Thereafter, ordinary claim;
Jericho died without satisfying the loan secured by 2. Foreclose the mortgage judicially and prove
the said mortgage. What are the remedies any deficiency as an ordinary claim;
available to Carina to enforce her mortgage credit? 3. Rely on the mortgage exclusively, foreclosing
the same at any time before it is barred by
A: prescription without the right to claim for any
deficiency (Sec. 7, Rule 86).
Note: The above remedies are alternative.

SPECIAL PROCEDINGS
4. PAYMENT OF DEBTS 5. The decedent was, in his lifetime, under

contract, binding in law, to deed real
Q: Is execution the proper remedy to satisfy an property to beneficiary (Sec. 8, Rule 89);
approved claim? 6. The decedent during his lifetime held real
property in trust for another person (Sec.
A: No, because: 9, Rule 89).
1. Payment approving a claim does not create a Q: How shall the proceeds from sale of personal
lien upon property of the estate property be used?
2. Special procedure is for the court to order the
sale to satisfy the claim A:
1. To pay the debts and expenses of
Note: A writ of execution is not the proper administration;
procedure to satisfy debts. The court must order 2. To pay legacies; and
the sale or mortgage of the properties of 3. To cover expenses for the preservation of
decedent, the proceeds of which will satisfy the the estate. (Sec. 1, Rule 89)
debts and expenses.
Q: How should contingent claims be paid?
Q: How should the debts of the estate be paid?
A: If the court is satisfied that a contingent claim
A:
duly filed is valid, it may order the executor or
GR: The payment of the debts of the estate
administrator to retain in his hands sufficient estate
must be taken from the following order:
to pay such contingent claim when the same
becomes absolute, or if the estate is insolvent,
1. Portion or property designated in the will
sufficient estate to pay a portion equal to the
– The debts of the testator, expenses of
dividend of the other creditors. (Sec. 4, Rule 88)
administration, or family expenses, shall
be paid according to the provisions of the
Q: What must be satisfied before a contingent
will. If such are insufficient, the properties
claim may be allowed by the court?
not disposed of by will, if any, shall be
appropriated for that purpose. A:
2. Personal property; 1. Duly filed within the 2 year period
3. Real property. (Sec. 2, Rule 88) allowed for the creditors to present
claims;
Note: If there is still a deficiency, it shall be
2. The claim is valid; and
met by contributions of devisees, legatees,
3. The claim became absolute. (Sec. 5, Rule
or heirs who have entered into possession
88)
of portions of the estate before the debts
and expenses have been settled and paid
(Secs. 2, 3, and 6, Rule 88). Q: What is the consequence if the contingent claim
is not presented within the 2 year period after it
XPNS: On application by executor or becomes absolute?
administrator, with written notice to persons
interested, and after hearing, real properties A: The assets retained in the hands of the executor
can be charged first even though the personal or administrator, not exhausted in the payment of
properties are not exhausted when: claims, shall be distributed by the order of the court
to the persons entitled to the same (Sec. 4, Rule
1. The personal property is not sufficient to 88). However, the assets so distributed may still be
pay the debts, expenses of administration applied to the payment of the claim when
and legacies (Sec. 3, Rule 88); established, and the creditor may maintain an
2. The sale of such personal property would action against the distributees to recover the debt,
be detrimental to the participants of the and such distributees and their estates shall be
estate (Sec. 3, Rule 88); liable for the debt in proportion to the estate they
3. Sale of personal property may injure the have respectively received from the property of the
business or other interests of those deceased.
interested of the estate (Sec. 2, Rule 89);
4. The testator has not made sufficient Note: If heirs have taken possession of portions of the
estate before the debts have been settled, they shall
provision for payment of such debts,
become liable to contribute for the payment of debts
expenses or legacies (Sec. 2, Rule 89);
and expenses, and the court may, after hearing, settle
183
the amount of their several liabilities, and order how A: Those claims which can proceed independently
much and in what manner each person shall of the settlement proceeding such as:
contribute (Sec. 6, Rule 88).
1. Actions to recover real or personal
Q: What is the order of payment if estate is property, or an interest therein, from the
insolvent or assets are insufficient? estate;
2. Enforcement of a lien;
A: The executor or administrator shall pay the debts 3. Actions to recover damages for an injury
according to the concurrence and preference of to person or property, real or personal.
credits provided by Articles 1059 and 2239-2251 of (Sec. 1, Rule 87)
the NCC (Sec. 7, Rule 88).
Q: What action may be brought by the executor or
Q: How should the estate in the Philippines of an administrator?
insolvent non-resident be disposed of?
A: Recovery or protection of the property or rights
A: It shall be disposed of that his creditors in and of the deceased, action for causes which survive.
outside the Philippines may receive an equal share, (Sec. 2, Rule 87)
in proportion to their respective credits (Sec. 9, Rule
88). Note: When an executor or administrator is appointed
and assumes the trust, no action to recover the title or
Q: When and how should claims proved outside possession of lands or for damages done shall be
the Philippines against insolvent resident’s estate maintained against him by an heir or devisee until
be paid? there is an order of the court assigning the lands to
such heir or devisee or until the time allowed for
A: Claims proven outside the Philippines where the paying debts has expired. (Sec. 3, Rule 87)
executor had knowledge and opportunity to contest
its allowance may be added to the list of claims Q: What is the concept of a superseades bond?
proved against the decedent in the Philippines and
the estate will be distributed equally among those A: It partakes the form of a security posted by the
creditors (Sec. 10, Rule 88). appealing party (who has lost the case in the lower
court) to compensate the opposing party for the
Note: The benefits in the above provision shall not be legal expenses in case it wins also in the higher
extended to the creditors in another country if the (appellate) court.
property of such deceased person there found is not
equally apportioned to the creditors residing in the Q: What are the requisites in order that
Philippines and the other creditors, according to their executor/administrator may commence and
respective claims. prosecute an action for the recovery of property, if
the decedent fraudulently conveys property to
Q: When should the court authorize sale, defraud his creditors?
mortgage or other encumbrance of estate to pay
debts and legacies in other countries? A:
1. Application of the creditors;
A: When it appears from records and proceedings 2. Payment of cost and expenses; and
of a probate court of another country that the 3. Give security therefore to the executor or
estate of the deceased in foreign country is not administrator. (Sec. 9, Rule 87)
sufficient to pay debts and expenses, the court here
may authorize the executor or administrator to sell, 2. REQUISITES BEFORE CREDITOR MAY BRING AN
mortgage or encumber the property in the same ACTION FOR RECOVERY OF FRAUDULENTLY
manner as for the payment of debts and legacies in CONVEYED BY THE DECEASED
the Philippines (Sec. 5, Rule 89).
Q: What are the requisites before a creditor may
G. ACTIONS BY AND AGAINST EXECUTORS AND bring an action for recovery of property
ADMINISTRATORS fraudulently conveyed by the deceased?
1. ACTIONS THAT MAY BE BROUGHT AGAINST A:

EXECUTORS AND ADMINISTRATORS 1. There is a deficiency of assets in the
hands of an executor or administrator for
Q: What actions may be brought against the the payment of debts and expenses of
executor or administrator? administration;

SPECIAL PROCEDINGS
2. In his lifetime, the deceased had made or

attempted to make a fraudulent Note: The creditor shall have a lien on the judgment
conveyance of his property or had so recovered for costs and expenses. The last 3 requisites
conveyed such property that by law, the are unnecessary where the grantee is the executor or
conveyance would be void as against his administrator himself, in which event, the action
creditors; should be in the name of all the creditors. (Sec. 10;
3. The subject of the attempted conveyance Herrera, Vol. III-A, p. 175, 2005 ed.)
would be liable to attachment in his
H. DISTRIBUTION AND PARTITION
lifetime;
4. The executor or administrator has shown
1. LIQUIDATION
no desire to file the action or failed to
institute the same within a reasonable
Q: What is liquidation?
time;
5. Leave is granted by the court to the
A: Liquidation is the determination of all assets of
creditor to file the action;
the estate and payment of all debts and expenses.
6. A bond is filed by the creditor; and
7. The action by the creditor is in the name
of the executor or administrator (Sec. 10).
Q: Discuss the process for the distribution of the residue of the estate.
A:
185
Note: Even if the testator stated in his will that he owes a certain person and ordered that the same be paid, if the
estate is insolvent, the creditor shall not enjoy priority over other claimants. The provision in the will should only
establish the claim of the creditor against the estate. He must still file his claim according to Section 9, Rule 86 and must
comply with the statute of non-claims.
Q: When is the order for distribution of residue It is merely a proposal for the distribution of the
made? hereditary estate which the court may accept or
reject. (Herrera, Remedial Law III-A, p 213)
A:
GR: Order of distribution shall be made after Q: May an heir of the deceased sell his undivided
payments of all debts, funeral expenses, share during the pendency of the estate
expenses for administration, allowance of proceedings without the prior approval of the
widow and inheritance tax. (Sec. 1, Rule 90) probate court?
XPN: If the distributees or any of them gives a A: Yes. An heir has the right to sell his undivided or
bond conditioned for the payment of said ideal share of the estate, he being the co-owner
obligation, the order of distribution may be with other heirs of the estate. Court approval is
made even before the payment of all debts, etc. necessary only if specific property of the estate is
(par. 2, Sec. 1, Rule 90) sold. (Heirs of Pedro Escanlar v. CA, G.R. No.
119777, Oct. 23, 1997)
Note: The probate court loses jurisdiction over the
settlement proceedings only upon payment of all Q: Does the finality of the approval of the project
debts and expenses of the obligor and delivery of of partition by itself alone terminate the probate
the entire estate to all the heirs. (Guilas v. Judge of proceeding?
CFI of Pampanga, G.R. No. L- 26695, Jan. 31, 1972)
A: No. As long as the order of the distribution of the
Q: When should declaration of heirship be made? estate has not been complied with, the probate
proceedings cannot be deemed closed and
A: It is only after, and not before, the payment of all terminated. (Estate of Ruiz v. CA, G.R. No. 118671,
debts, funeral expenses, charges of administration, Jan. 29, 1996)
allowances to the widow, and inheritance tax shall
have been effected that the court should make the 3. REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT
declaration of heirs or of such person as are NOT GIVEN HIS SHARE
entitled by law to the residue.
Q: What is the remedy of an heir who is entitled to
It should however be made clear that what the the residue but was not given his share?
court is enjoined from doing so is the distribution of
the residue of the estate before its obligations are A:
first paid, but the court is not enjoined from making 1. MOTION TO SET ASIDE THE
the declaration of heirs prior to the satisfaction of DISTRIBUTION- If an heir appears after
these obligations. the court approved the project of
partition, the heir must file a Motion to
Q: What should the executor or administrator do if set aside the distribution with the court
all the claims are paid or settled? so that the court will not proceed with
the distribution of the residue. The
A: The executor or administrator shall prepare the probate court shall determine whether
project of partition reflecting the residue of the such heir has a right to participate in the
estate and how it is to be distributed. However, this distribution of the residue. If it is proven
is not mandatory. (Herrera, Vol. III-A, p. 213, 2005 that the heir has a right, the court may
ed.) order the revision of the project of
partition for its adjustment.
2. PROJECT OF PARTITION
2. MOTION FOR THE RE- OPENING OF THE
Q: What is project of partition?
SETTLEMENT PROCEEDINGS-If the
A: It is a document prepared by the executor or distribution has already been made, a
administrator setting forth the manner in which the motion for closure has already been
estate of the deceased is to be distributed among granted, the heir must file a Motion for
the heirs. (Solivio v. CA, G.R. No. 83308, Feb. 12, the re-opening of the settlement
1990) proceedings within the 30 day

SPECIAL PROCEDINGS
reglementary period, provided the order CFI of Mindoro, 85 Phil. 228, a writ of
of closure has not yet become final and execution is not the proper procedure
executory. allowed by the Rules of Court for the payment
of debts and expenses of administration. The
3. ACCION REINVIDICATORIA- If the order of proper procedure is for the court to order the
closure has already become final and sale of personal estate or the sale or
executory, (Vda. de Lopez v. Lopez, G.R. mortgage of real property of the deceased
No. L-28602, Sept. 29, 1970) and all debts and expenses of the
administration should be paid out of the
Q: When is title to property vested to the heirs? proceeds of such sale or mortgage. The order
for the sale or mortgage should be issued
A: It is vested from finality of order of distribution. upon motion of the administrator and with
the written notice to all the heirs, legatees
Q: Is the order that determines distributive share and devisees residing in the Philippines. And
appealable? when the sale or mortgage is to be made, the
regulations contained in Rule 89, Sec. 7
A: Yes. Otherwise, it becomes final. should be complied with.
4. INSTANCES WHEN PROBATE COURT MAY ISSUE XPNS:

WRIT OF EXECUTION 1. To satisfy the distributive shares of the
devisees, legatees and heirs in possession
Q: What are the instances when the probate court of the decedent’s assets;
may issue writ of execution? 2. To enforce payment of the expenses of
partition; and
A:
3. To satisfy the costs when a person is cited
GR: A probate court cannot issue a writ of
for examination in probate proceedings.
execution. In the case of Aldamiz vs. Judge of
I. TRUSTEES
1. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR
EXECUTOR/ ADMINISTRATOR TRUSTEE

Accounts are NOT under oath and except for initial and Accounts must be UNDER OATH and filed ANNUALLY
final submission of accounts, they shall be filed only at
such times as may be required by the court
Court that has jurisdiction may be MTC or RTC Court which has jurisdiction is the RTC if appointed to
carry into effect provisions of a will; if trustee dies, resigns
or is removed in a contractual trust, RTC has jurisdiction in
the appointment of new trustee
May sell, encumber or mortgage property if it is necessary May sell or encumber property of the estate held in trust
for the purpose of paying debts, expenses of if necessary or expedient or upon order of the court
administration or legacies or for the preservation of
property or if sale will be beneficial to heirs, legatees or
devisees
(Upon application to the court with written notice to the
heirs)
Order of sale has NO TIME LIMIT Order of sale has NO TIME LIMIT
Approved by the court to settle estate of the decedent Appointed to carry into effect the provisions of a will or
written instrument (contractual trust)
NOT EXEMPTED from filing a bond even if such exemption May be EXEMPTED from filing a bond if provided in the
is provided in the will (ratio: bond is only conditioned upon will or if beneficiaries requested such exemption
payment of debts)
Services of executors or administrator is terminated Trusteeship is terminated upon TURNING OVER THE
UPON PAYMENT OF DEBTS of the estate and PROPERTY to beneficiary after expiration of the trust
DISTRIBUTION of property to the heirs (period may be provided for in the will or trust contract)
MUST PAY the debts of the estate NO OBLIGATION TO PAY the debts of the beneficiaries or
trustor
187
Q: What is a trust? 3. REQUISITES FOR THE REMOVAL AND

RESIGNATION OF A TRUSTEE
A: A legal relationship between one person having
an equitable ownership in property and another Q: What are the requisites for the removal or
person owning the legal title to such property. resignation of a trustee?
Q: Who is a trustee? A:
1. Petition filed by parties beneficially
A: A trustee is one who is appointed to carry out interested;
the provision of the will or any written instrument 2. Notice to trustee; and
executed by the trustor. 3. Hearing (Sec. 8, Rule 98).
2. CONDITIONS OF THE BOND 4. GROUNDS FOR REMOVAL AND RESIGNATION OF

A TRUSTEE
Q: What are the conditions of the bond?
Q: What are the grounds for removal or
A: resignation of a trustee?
1. That the trustee will make and return to
the court, at such time as it may order, a A:
true inventory of all the estate belonging 1. Removal appears essential in the interest
to him as trustee, which at the time of the of petitioners;
making of such inventory shall have come 2. Insanity;
to his possession or knowledge; 3. Incapability of discharging the trust; or
Note: When the trustee is appointed as a 4. Unsuitability (Sec. 8, Rule 98).
successor to a prior trustee, the court may
dispense with the making and return of an Note: A trustee may resign his trust if it appears to the
inventory if one has already been filed. court proper to allow such resignation (Sec. 8, Rule 98).
2. That he will manage and dispose of all 5. EXTENT OF AUTHORITY OF TRUSTEE

such estate, and faithfully discharge his
trust in relation thereto, according to law Q: What is the extent of authority of a trustee?
3. and the will of the testator or the
provisions of the instrument or order A: Rule 98, applies only to express trust, one which
under which he is appointed; is created by a will or a written instrument.
4. That he will render upon oath at least
once a year until his trust is fulfilled a true Q: When is there a testamentary trust?
account of the property in his hands and
of the management and disposition A: If a testator has omitted in will to appoint a
thereof, and such other accounts as the trustee in the Philippines, and if such appointment
court may order; and is necessary to carry into effect the provisions of
5. That at the expiration of his trust he will the will. After notice to all persons interested, the
settle his accounts in court and pay over proper RTC may appoint a trustee who shall have
and deliver all the estate remaining in his the same rights, powers, and duties, and in whom
hands, or due from him on such the estate shall vest, as if he had been appointed by
settlement, to the persons entitled the testator.
thereto (Sec. 6, Rule 98).
Q: When is there a contractual trust?
Q: Is the trustee required to file a bond?
A: When a trustee under a written instrument
A: declines, resigns, dies, or is removed before the
GR: Yes. Neglect of trustees to file a bond will objects of the trust are accomplished, and no
be interpreted by the court as resignation or adequate provision is made in such instrument for
decline to accept the trust. supplying the vacancy after due notice to all
persons interested, the proper RTC may appoint a
XPN: If requested by the testator or by all
new trustee to act alone or jointly with the others,
persons beneficially interested in the trust, the
as the case may be.
trustee may be exempted from filing a bond.
But the court may cancel such exemption
anytime. (Sec. 5, Rule 98)

SPECIAL PROCEDINGS
Q: Can the possession of the trustee of the

property ripen into ownership? Q: Can the court convert escheat proceedings into
settlement of the estate?
A:
GR: An action to compel a trustee to convey A: No, once the court acquires jurisdiction to hear
property registered in his name in trust for the the petition for escheat by virtue of the publication
benefit of the cestui qui trust does not of the petition for escheat, this jurisdiction cannot
prescribe. The trustee’s possession is not be converted into one for the distribution of the
adverse and therefore cannot ripen into title by properties of the decedent.
prescription.
Note: For the distribution of the estate to be
XPN: Prescription may arise where there is instituted, the proper petitions must be presented and
adverse possession of the property. To the proceedings should comply with the requirements
of the Rules of Court. (Municipality of Magallon v.
constitute adverse possession, the following
Bezore, G.R. No. L-14157, Oct. 26, 1960)
must be present:
3. REMEDY OF RESPONDENT AGAINST PETITION;
1. That the trustee has performed
PERIOD FOR FILING A CLAIM
unequivocal acts amounting to an ouster
of the cestui qui trust;
Q: What is the remedy of the respondent against
2. That such positive acts of repudiation had
the petition for escheat?
been made known to the cestui qui trust;
and A: When the petition does not state the facts which
3. That the evidence thereon should be clear entitle the petitioner to the remedy prayed for, or
and conclusive. (Ceniza vs. CA, 181 SCRA even admitting them hypothetically, the
552) respondent may file a MOTION TO DISMISS, in such
case the Motion to dismiss plays the role of a
J. ESCHEAT demurrer to evidence (Herrera, Remedial Law III-A,
p 227-228)
Q: What is escheat?
K. GUARDIANSHIP
A: It is a French or Norman term meaning chance or
accident. It is the reversion of property to the State Q: What is guardianship?
in consequence of want of any individual
competent to inherit. A: It is a trust relation in which one person acts for
another whom the law regards as incapable of
1. WHEN TO FILE managing his own affairs.
Q: What are the three instances of escheat? Note: Guardianship of minors is now governed by the
Rule on Guardianship of Minors (AM No. 03-02-05-SC)
A: which took effect on May 1, 2003. While guardianship
1. When a person dies intestate leaving no of incompetents who are not minors is still governed
heir but leaving property in the by the provisions of the Rules of Court on
Philippines (Sec. 1, Rule 91); Guardianship. (Rule 92- 97)
2. Reversion proceedings where sale of
property is made in violation of the Q: What is ancillary guardianship?
Constitutional provision; and
3. Dormant accounts for 10 years A: It refers to the guardianship in a state other than
(Unclaimed Balance Act of Banking Laws). that in which guardianship is originally granted.
2. REQUISITES FOR FILING OF PETITION 1. GENERAL POWERS AND DUTIES OF GUARDIANS
Q: What are the requisites for filing a petition? Q: To what extent does guardianship extend?
A: A: Conflicts regarding ownership or title to the

1. A person died intestate; property in the hands of the guardian in his capacity
2. He left no heirs or persons by law entitled as such should be litigated in a separate
to the same; and proceeding, the court in guardianship proceeding is
3. The deceased left properties in the concerned solely with the ward’s care and custody
Philippines. (Sec. 1, Rule 91) and proper administration of his properties (Villoria
189
v. Administrator of Veteran Affairs, L-9620, June to the possession or knowledge of any

1957) other person for him;
2. To faithfully execute the duties of his
Q: What are the general powers and duties of trust, manage and dispose of the estate
guardians? according to the rules for the best
interests of the ward, and to provide for
A: the proper care, custody, and education
1. To have the care and custody of the of the ward;
person of the ward, and/or the 3. To render a true and just account of all
management of his estate; the estate of the ward in his hands, and of
2. Pay the debts of the ward; all proceeds or interest derived there
3. To settle accounts, collect debts, and from, and of the management and
appear in actions for the ward; disposition of the same, at the time
4. Manage the estate of the ward frugally, designated by the rules and such other
and apply the proceeds to the times as the court directs; and at the
maintenance of the ward; expiration of his trust, settle his accounts
5. Render verified inventory within 3 with the court and deliver and pay over all
months after his appointment and the estate, effects, and moneys remaining
annually thereafter, and upon application in his hands, or due from him on such
of interested persons; settlement, to the person lawfully entitled
6. Render to court for its approval an thereto; and
accounting of the property for 1 year 4. To perform all orders required by the
from his appointment and as often court (Sec. 1, Rule 94; Sec.14, A.M. No.
thereafter as may be required, and upon 03-02-05-SC).
application of interested persons
7. Consent to a partition of real or personal Q: What is the purpose of the bond?
property owned by ward jointly or in
common with others. (Secs. 1-8, Rule 96; A: It is for the protection of the property of the
Sec. 17, A.M. No. 03-02-05-SC) minor or incompetent to the end that he may be
assured of an honest administration of his funds
Q: What is the order of liability of the ward’s (Herrera, Vol. III-A, p. 282, 2005 ed.)
property?
Note: The bond of the guardian is a continuing one
A: against the obligors and their estates until all of its
1. Personal estate and income of real estate conditions are fulfilled. The mere fact that defendant
2. Real estate was removed as guardian did not relieve her or her
bondsmen from liability during the time she was duly
Q: What are the requisites to authorize the acting as such guardian. (Guerrero v. Teran, G.R. No. L-
guardian to join in the partition proceedings after 4898, Mar. 19, 1909)
hearing?
Q: Does the requirement of posting a bond extend
A: to parents who are the legal guardians of their
1. Hearing minor children? Explain.
2. Notice to relatives of the ward; and
A:
3. Careful investigation as to the necessity
GR: No, if the market value or annual income of
and propriety of the proposed action
the child is P 50,000 or below.
(Section 5)
XPN: If the market value of the property or the
2. CONDITIONS OF THE BOND OF THE GUARDIAN
annual income of the child exceeds P50,000,
the parent concerned shall furnish a bond in
Q: What are the conditions of the bond of the
such amount as the court may determine, but
guardian?
in no case less than 10% of the value of such
A: property or annual income, to guarantee the
1. To make and return to the court, within 3 performance of the obligations prescribed for
months, a true and complete inventory of general guardians (Sec. 16, A.M. No. 03-02-05-
all the estate of his ward which shall SC).
come to his possession or knowledge or

SPECIAL PROCEDINGS
3. RULE ON GUARDIANSHIP OVER MINOR A:

1. Moral character;
Q: Who may petition for appointment of guardian 2. Physical, mental, and psychological
for resident? condition;
3. Financial status;
A: 4. Relationship of trust with the minor;
1. Any relative; 5. Availability to exercise the powers and
2. Other person on behalf of the minor; duties of a guardian for the full period of
3. Minor himself is 14 years of age; or the guardianship;
4. Secretary of Social Welfare and 6. Lack of conflict of interest with the minor;
Development AND by the Secretary of Health in and
case of insane minor who needs to be hospitalized. 7. Ability to manage the property of the
(Section 2, AM-03-02-05-SC) minor (Sec. 5, A.M. No. 03-02-05-SC).
Q: Is court appointment necessary to enable the Note: The court shall order a social worker to conduct
father and the mother to exercise joint legal a case study of the minor and all the prospective
guardianship over the person and property of guardians and submit his report and recommendation
minor? to the court for its guidance before the scheduled
hearing. (Sec.9, A.M. No. 03-02-05-SC).
A: No. The father and the mother shall jointly
exercise legal guardianship over the person and Q: Who may be appointed as guardian of a minor?
property of their minor without the necessity of a
court appointment. In such case, this Rule shall be A: In default of parents or a court-appointed
suppletory to the provisions of the Family Code on guardian, the court may appoint a guardian of the
Guardianship (Section 1, AM -03-02-05-SC) person or property, or both, of a minor, observing,
as far as practicable, the following order of
Q: What would the court do if an issue arises as to preference:
who has the better right or title to the properties 1. Surviving grandparent and, in case several
conveyed in the guardianship proceeding? grandparents survive, the court shall
select any of them taking into account all
A: relevant considerations;
GR: The issue should be threshed out in a 2. Oldest brother or sister of the minor over
separate ordinary action as it is beyond the 21 years of age, unless unfit or
jurisdiction of the guardianship court. disqualified;
3. Actual custodian of the minor over 21
XPN: When the ward’s right or title to the years of age, unless unfit or disqualified;
property is clear and undisputable, the 4. Any other person, who in the sound
guardianship court may issue an order directing discretion of the court would serve the
its delivery or return. best interests of the minor (Sec. 6, A.M.
No. 03-02-05-SC).
Q: What are the grounds for the appointment of a
guardian over the person or property, or both, of a Q: What are the grounds for opposition to petition
minor? of guardianship of minors?
A: A:
1. Death, continued absence, or incapacity 1. Majority of the alleged minor; or
of his parents; 2. Unsuitability of the person for whom
2. Suspension, deprivation or termination of letters are prayed for (Sec. 10, A.M. No.
parental authority; 03-02-05-SC).
3. Remarriage of surviving parent, if the
latter is found unsuitable to exercise Q: How may a petition for guardianship of minors
parental authority; or or incompetents be opposed?
4. When the best interests of the minor so
require (Sec. 4, A.M. No. 03-02-05-SC). A: Any interested person may contest the petition
by filing a written opposition and pray that the
Q: What are the factors to be considered for the petition be denied, or that letters of guardianship
appointment of guardian of minors? issue to himself, or to any suitable person named in
the opposition (Sec. 10, A.M. No. 03-02-05-SC; Sec.
4, Rule 9).
191
L. ADOPTION A: No. Adoption cannot be had without the written

consent of a natural parent who has allegedly
Q: What is adoption? abandoned them. Abandonment cannot be merely
presumed, it must be duly proven. Moreover, there
A: It is a juridical act, a proceeding in rem, which should be proof of emotional abandonment. (Cang
creates between two persons a relationship similar v. CA, GR No. 105308, Sept. 25, 1998).
to that which results from legitimate paternity and
filiation. Q: Is publication of the hearing for adoption
necessary for the adoption to be valid?
Q: What is the State policy on adoption?
A: Indeed, publication of the scheduled hearing for
A: It is the policy of the State to ensure that every the petition for adoption is necessary for the
child remains under the care of his or her parent/s validity of a decree of adoption but not for the
and be provided with love, care, understanding and purpose merely of taking a deposition. In taking a
security towards the full and harmonious deposition, no substantial rights are affected since
development of his personality. depositions may or may not be presented or may
even be objected to when formally offered as
Q: What is a Child Legally Available for Adoption? evidence at the trial of the main case later on. the
philosophy behind adoption statutes is to promote
A: A Child Legally Available for Adoption refers to a the welfare of the child and every reasonable
child in whose favor a certification was issued by intendment should be sustained to promote that
the DSWD that he/she is legally available for objective. (Republic v. Elepano, G.R. No. 92542, Oct.
adoption after the fact of abandonment or neglect 15, 1991).
has been proven through the submission of
pertinent documents, or one who was voluntarily Note: The necessary consequence of the failure to
committed by his/her parent(s) or legal guardian. implead the civil registrar as an indispensable party
(Sec. 2(5), R.A. 9523). and to give notice by publication of the petition for
correction of entry was to render the proceeding of
Q: What is the requirement in order that the child the trial court, so far as the correction of entry was
may be declared legally available for adoption? concerned, null and void for lack of jurisdiction both as
to party and as to the subject matter. (Republic v. CA,
G.R. No. 103695, Mar. 15, 1996).
A: There must be a certification which shall be
issued by the DSWD in lieu of a judicial order, thus
Q: What is the effect of adoption created under
making the entire process administrative in nature.
the law of a foreign country?
The certification, shall be, for all intents and
purposes, the primary evidence that the child is
A: It is entitled to registration in the corresponding
legally available in a domestic adoption and in an
civil register of the Philippines. It is to be
inter-country adoption proceeding (Sec. 8, Ibid.).
understood, however, that the effects of such
adoption shall be governed by laws of the
Q: Can minor children be legally adopted without
Philippines. (Marcaida v. Aglubat, G.R. No. L-24006,
the written consent of a natural parent on the
Nov. 25, 1967)
ground that the latter has abandoned them?
1. DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION
DOMESTIC INTER-COUNTRY
Jurisdiction Family Court where adopter resides Inter-Country Adoption Board
(Petition may also be filed with Family Court
where adoptee resides; FC to endorse petition
to ICAB)
Who May adopt 1) Any Filipino citizen of legal age, in A foreigner must meet the following
possession of full civil capacity and legal rights, requirements in order to be qualified to adopt
of good moral character, has not been in the Philippines under the Inter-Country
convicted of any crime involving moral Adoption Act:
turpitude; who is emotionally and
psychologically capable of caring for children, at a) GR: at least twenty-seven (27) years of
least sixteen (16) years older than the adoptee, age and at least sixteen (16) years older
and who is in a position to support and care for than the child to be adopted, at the time

SPECIAL PROCEDINGS
his children in keeping with the means of the of application;

family. The requirement of a 16-year difference
between the age of the adopter and adoptee XPN: if the adopter is the parent by nature
may be waived when the adopter is the of the child to be adopted or the spouse
biological parent of the adoptee or is the of such parent, he/she is not required to
spouse of the adoptee’s parent; meet the above age requirement;
2) Any alien possessing the same qualifications b) If married, his/her spouse must jointly file
as above-stated for Filipino nationals: Provided, for the adoption;
That his country has diplomatic relations with c) With capacity to act and assume all rights
the Republic of the Philippines, that he has and responsibilities of parental authority
been living in the Philippines for at least three under his national laws, and has
(3) continuous years prior to the filing of the undergone the appropriate counseling
petition for adoption and maintains such from an accredited counselor in his/her
residence until the adoption decree is entered, country;
that he has been certified by his diplomatic or d) Not convicted of a crime involving moral
consular office or any appropriate government turpitude;
agency to have the legal capacity to adopt in his e) Eligible to adopt under his/her national
country, and that his government allows the law;
adoptee to enter his country as his adopted f) In a position to provide the proper care
child. Provided, further, That the requirements and support and to give the necessary
on residency and certification of the alien’s moral values and example to all his
qualification to adopt in his country may be children, including the child to be
waived for the following: adopted;
g) Agrees to uphold the basic rights of the
(i) A former Filipino citizen who seeks child as embodied under Philippine family
to adopt a relative within the fourth laws, the U.N. Convention on the Rights of
(4th) degree of consanguinity or the Child, and to abide by the rules and
affinity; regulations issued to implement the
(ii) One who seeks to adopt the provisions of this Act;
legitimate child of his Filipino h) Comes from a country with whom the
spouse; Philippines has diplomatic relations and
(iii) One who is married to a Filipino whose government maintains a similarly
citizen and seeks to adopt jointly authorized and accredited agency and
with his spouse a relative within the that adoption is allowed under his/her
fourth (4th) degree of consanguinity national laws; and
or affinity of the Filipino spouse. i) Possesses all the qualifications and none
of the disqualifications provided herein
(3) The guardian with respect to the ward after and in other applicable Philippine laws.
the termination of the guardianship and
clearance of his financial accountabilities.
Husband and wife shall jointly adopt, except in

the following cases:
(i) Iif one spouse seeks to adopt the

legitimate child of one spouse by
the other spouse; or
(ii) If one spouse seeks to adopt his
own illegitimate child: Provided,
however, That the other spouse has
signified his consent thereto; or
(iii) If the spouses are legally separated
from each other.
In case husband and wife jointly adopt or one

spouse adopts the illegitimate child of the
other, joint parental authority shall be
exercised by the spouses.
Supervised Trial Within the Philippines (6 month period Within the country of the adopter (Mandatory;
Custody discretionary upon the court to shorten period all expenses borne by adopter)
or exempt parties from trial custody)
193
Petition for May include N/A

adoption 1. Prayer for change of name
2. Rectification of simulated birth
3. Declaration that child is abandoned,
dependent or neglected child or foundling
Who may be 1. Any child legally declared available for Child legally available for adoption
adopted adoption
2. Legitimate or illegitimate child of a spouse
3. Person of legal age
Supporting 1. Income Tax Returns
Documents 2. Police Clearance
3. Character Reference
4. Family Picture
5. Birth Certificate of adopter
Publication 3 successive weeks in a newspaper of general N/A
circulation in the province or city where the
court is situated
Where to file Family Court which has jurisdiction May be made through foreign placement
application agency which will then submit application to
the ICAB
Q: What is the effect of the petition for adoption

2. DOMESTIC ADOPTION in relation to use of surnames?
a. EFFECTS OF ADOPTION A: Pursuant to Art. 189 of the Family Code which

states that the adopted child shall acquire the
Q: What are the effects of adoption? reciprocal rights and obligations arising from the
relationship of a parent and child, including the
A: right of the adopted to use the surname of the
1. All legal ties between the biological adopter, the adoptee has both the right and
parents and the adoptee shall be severed obligation to use the surname of the adopter, and
and the same shall then be vested on the that upon reaching the age of majority, he may file
adopter/s, except where the biological a petition for a change of surname, as the use by
parent is the spouse of the adopter; the adoptee of the surname of the adopter is more
2. The adoptee shall be considered the an incident rather than the object of adoption
legitimate child of the adopter/s for all proceedings. (Republic v. CA, G.R. No. 97906, May
intents and purposes and shall be entitled 21, 1992)
to all the rights and obligations provided
by law to legitimate children born to them Note: This ruling may imply that what may be included
without discrimination of any kind; and in a petition for adoption is only the first or given
3. In legal and intestate succession, the name of the adoptee and not the surname, for he has
adopter/s and the adoptee shall have the right and obligation, at least initially to use the
reciprocal rights of succession without surname of the adopter. (Agpalo, Handbook on Special
distinction from legitimate filiation. Proceedings, p. 193, 2003 ed.)
However, if the adoptee and his biological
While the right of a natural parent to name the child is
parent/s had left a will, the law on
recognized, guaranteed and protected under the law,
testamentary succession shall govern.
the so-called right of an adoptive parent to re-name an
(Secs. 16-18, R.A. 8552) adopted child by virtue or as a consequence of
adoption, even for the most noble intentions and
Note: The decree of adoption shall order the Civil moving supplications, is unheard of in law and
Registrar where the adoption was registered to issue a consequently cannot be favorably considered. To
certificate of birth which shall not bear that it is a new repeat, the change of the surname of the adoptee as a
or amended certificate and shall state among others, result of the adoption and to follow that of the
the following: registry number, registration date, name adopter does not lawfully extend to or include the
of child, sex, date of birth, place of birth, name and proper or given name. (Republic vs. Hernandez, G.R.
citizenship of adoptive mother and father, and the No. 117209, Feb. 9, 1996).
date and place of their marriage, when applicable.
[Sec. 16, 3(b)]

SPECIAL PROCEDINGS
b. INSTANCES WHEN ADOPTION MAY BE permanently residing abroad where the petition is
RESCINDED filed, the supervised trial custody is taken, and the
decree of adoption is issued outside of the
Q: What are the grounds for rescission of Philippines. [Sec. 3(a)]
adoption?
a. WHEN ALLOWED
A: Upon the petition of the adoptee, with the
assistance of the DSWD if a minor or though over Q: When may inter-country adoption be allowed?
18 is incapacitated, on any of the following grounds
committed by the adopter/s: A: It shall only be allowed when all the possibilities
1. Repeated physical and verbal for domestic adoption of the child have been
maltreatment by the adopter/s despite exhausted and that inter-country adoption is in the
having undergone counseling; best interest of the child. (Sec. 27a)
2. Attempt on the life of the adoptee;
3. Sexual assault or violence; or It is allowed when the adopter is an alien or a
4. Abandonment and failure to comply with Filipino citizen permanently residing abroad.
parental obligations (Sec. 19, Ibid.). Moreover, his qualifications include:
Note: Only the adoptee can rescind the decree of 1. At least twenty-seven (27) years of age
adoption. However, the adopter is not left without any and at least sixteen (16) years older than
remedy as he may deny to an adopted child his the child to be adopted, at the time of
legitime and by will, may freely exclude him from application unless the adopter is the
having a share in the disposable portion of his estate. parent by nature of the child to be
The new law had already abrogated or repealed the adopted or the spouse of such parent;
right of an adopter under the Civil and Family Codes to 2. If married, his/her spouse must jointly
rescind a decree of adoption (Lahom v. Sibulo, G.R. No.
file for adoption;
1439889, July 14, 2003).
3. Has the capacity to act and assume all
rights and responsibilities of parental
c. EFFECTS OF RESCISSION OF ADOPTION
authority under his national laws and has
undergone the appropriate counseling
Q: What are the effects of rescission of adoption?
from an accredited counselor in his/her
country;
A:
4. Has not been convicted of a crime
1. The parental authority of the adoptee's
involving moral turpitude;
biological parent/s, if known, or the legal
5. Is eligible to adopt under his/her national
custody of the DSWD shall be restored if
law;
the adoptee is still a minor or
6. Is in a position to provide proper care
incapacitated;
and support and to give the necessary
2. The reciprocal rights and obligations of
moral values and example to all his
the adopter/s and the adoptee to each
children, including the child to be
other shall be extinguished;
adopted;
3. The court shall order the Civil Registrar to
7. Agrees to uphold the basic rights of the
cancel the amended certificate of birth of
child as embodied under the Philippine
the adoptee and restore his or her
laws, the U.N. Convention of the Rights of
original birth certificate;
the Child, and to abide by the rules and
4. The successional rights shall revert to its
regulations issued to implement the
status prior to adoption, but only as of
provisions of this Act;
the date of judgment of judicial
8. Comes from another country with whom
rescission; and
the Philippines has diplomatic relations
5. The vested rights acquired prior to judicial
and whose government maintains a
rescission shall be respected (Sec. 23,
similarly authorized and accredited
Ibid.).
agency and that adoption is allowed
under his/her national laws; and
3. INTER-COUNTRY ADOPTION (R.A. 8043)
9. Possesses all the qualifications and none
of the disqualifications provided herein
Q: What is inter-country adoption?
and other applicable laws. (Sec. 9, R.A.
8043).
A: It refers to the socio-legal process of adopting a
Filipino child by a foreigner or a Filipino citizen
195
b. FUNCTIONS OF THE RTC of liberty must be actual and effective, not merely
nominal or moral. (Ilusorio v. Bildner, G.R. Nos.135789-
Q: What is the function of the RTC in inter-country 90, May 16, 2000)
adoption?
Q: What is the nature of the petition?
A: The Court, after finding that the petition is
sufficient in form and substance and a proper case A: It is an inquisition by the government at the
for inter-country adoption, shall immediately suggestion and instance of an individual, most
transmit the petition to the ICAB for appropriate probably, but still in the name and capacity of the
action. (Sec. 32, Rule on Adoption). sovereign is a proceeding in rem. It is also instituted
for the purpose of fixing the status of a person and
The application for adoption shall be filed with the that there can be no judgment entered against
RTC having jurisdiction over the child, or the Inter- anybody since there is no real plaintiff and
Country Adoption Board, through an intermediate defendant. (Alimpoos v. CA, G.R. No. L-27331, July
agency, whether governmental or an authorized 30, 1981)
and accredited agency, in the country of the
prospective adoptive parents. Note: In habeas corpus cases, the judgment in favor of
the applicant cannot contain a provision for damages.
c. “BEST INTEREST OF THE MINOR” STANDARD
1. CONTENTS OF THE PETITION
Q: What is the Best Interest Standard?
Q: What should a verified petition for a writ of
A: It refers to the totality of the circumstances and habeas corpus contain?
conditions as are most congenial to the survival,
protection, and feelings of security of the minor and A:
most encouraging to his physical, psychological and 1. That the person in whose behalf the
emotional development. It also means the least application is made is imprisoned or
detrimental available alternative for safeguarding restrained of his liberty;
the growth and development of the minor. (Sec. 14) 2. The officer or name of the person by
whom he is so imprisoned or restrained;
M. WRIT OF HABEAS CORPUS or, if both are unknown or uncertain, such
officer or person may be described by an
Q: What is writ of habeas corpus? assumed appellation, and the person who
is served with the writ shall be deemed
A: It is a writ directed to the person detaining the person intended;
another and commanding him to produce the body 3. The place where he is so imprisoned or
of the prisoner at a certain time and place with the restrained, if known;
day and the cause of his caption and detention to 4. A copy of the commitment or cause of
do, submit to and receive whatsoever, the court or detention of such person, if it can be
judge awarding the writ shall consider in that procured without impairing the efficiency
behalf. of the remedy; or, if the imprisonment or
restraint is without any legal authority,
Note: It is regarded as “palladium of liberty”, a such fact shall appear. (Sec. 3, Rule 102)
prerogative writ which does not issue as a matter of
right but in the sound discretion of the court or judge. 2. CONTENTS OF THE RETURN
Q: To what instances may habeas corpus extend? Q: What are the contents of the return?
A: A: When the person to be produced is imprisoned

1. Cases of illegal confinement or detention or restrained by an officer, the person who makes
by which a person is deprived of his the return shall state therein, and in other cases the
liberty; and person in whose custody the prisoner is found shall
2. Cases by which the rightful custody of the state, in writing to the court or judge before whom
person is withheld from the person the writ is returnable, plainly and unequivocably:
entitled thereto. (Sec. 1, Rule 102)
1. Whether he has or has not the party in his
Note: To justify the grant of the petition, the restraint custody or power, or under restraint;
of liberty must be an illegal and involuntary 2. If he has the party in his custody or
deprivation of freedom of action. The illegal restraint power, or under restraint, the authority

SPECIAL PROCEDINGS
and the true and whole cause thereof, set process, render the judgment, or make
forth at large, with a copy of the writ, the order. (Sec. 4, Rule 102).
order, execution, or other process, if any, 6. If the person is charged or convicted of an
upon which the party is held; offense in the Philippines. (Sec. 4, Rule
3. If the party is in his custody or power or is 102).
restrained by him, and is not produced, 7. If the person is suffering imprisonment
particularly the nature and gravity of the under lawful judgment. (Sec. 4, Rule 102).
sickness or infirmity of such party by 8. In case of three-day retention of a suspect
reason of which he cannot, without for three days without charge, pursuant
danger, be brought before the court or to Sec. 18 of the Human Security Act.
judge; 9. When person is serving final sentence
4. If he has had the party in his custody or imposed by court.
power, or under restraint, and has 10. For asserting or vindicating a denial of
transferred such custody or restraint to right to bail.
another, particularly to whom, at what 11. For correcting errors in appreciation of
time, for what cause, and by what facts or of law.
authority such transfer was made. (Sec.
10, Rule 102) Note: Issuance of a writ of habeas corpus may not lie
in order to revive a settled issue of the validity of the
3. DISTINGUISH PEREMPTORY WRIT FROM writ of preliminary injunction issued in an agrarian
PRELIMINARY CITATION case allegedly on the ground of the existence of a
tenancy relationship between the parties arising from
Q: What is the difference between a preliminary their arrest for having assaulted persons in authority.
citation and a peremptory writ? (Bernarte v. CA, G.R. No. 107741, Oct. 18, 1996).
Loss of the records of the case after petitioner, by his
own admission, was already convicted by the trial
A:
court of the offense charged will bar the issuance of a
1. Preliminary citation is issued when a writ of habeas corpus. The loss must have occurred
government officer has the person in his prior to the filing of the information against him. (Feria
custody, the illegality of which is not v. CA, G.R. No. 122954, Feb. 15, 2000).
patent, to show cause why the writ of
habeas corpus should issue. It has been noted that the ORDER contains a provision
2. Peremptory writ is issued when the cause enjoining the prosecution of the Accused in the
of the detention appears to be patently Criminal Case. That is error. If the Accused was illegally
illegal and the non-compliance therewith detained because he was arrested without a
is punishable. (Lee Yick Hon v. Collector of preliminary examination, what should have been done
Customs, G.R. No. 16779, Mar. 30, 1921). was to set aside the warrant of arrest and order the
discharge of the Accused, but without enjoining the
4. WHEN NOT PROPER/APPLICABLE Municipal Judge from conducting a preliminary
examination and afterwards properly issuing a warrant
Q: When is habeas corpus not applicable? of arrest. Habeas Corpus proceedings are not meant to
determine criminal responsibility. (Alimpoos v. CA, G.R.
No. L-27331, July 30, 1981).
A:
1. When detained under a lawful cause.
In case of an illegal arrest, the petition for a writ
2. In case of invasion or rebellion or when of habeas corpus will still not prosper if the detention
public safety requires it, under Art. III, has become legal by virtue of the filing before the trial
Sec. 15, 1987 Constitution. court of the complaint against him and by the issuance
3. When in case of invasion or rebellion or of an order denying bail. (Velasco v. CA, G.R. No.
when public safety requires it, for a 118644, July 7, 1995).
period not exceeding 60 days, under Art.
7, Sec. 18, 1987 Constitution. Habeas Corpus may be had to give retroactive effect to
4. If the jurisdiction of the court to try the a previous ruling of the Supreme Court favorable to
person detained appears after the writ is the accused when the accused has already served the
allowed. (Sec. 4, Rule 102). full term for a crime which the Court has declared non-
5. If the person is in custody of an officer existent. (Gumabon v. Director of the Bureau of
under process issued by a court or by Prisons, G.R. No. L-30026, Jan. 30, 1971). However, it
virtue of a judgment or order of a court of will not lie if the penalty of imprisonment imposed by
record which has jurisdiction to issue the the court is longer than that allowed by law. Such error
of judgment may be corrected by appeal or by the
197
President. (Pomeroy v. Director of Prisons, G.R. No. L- effective until a copy of the order has been served
14284, Feb. 24, 1960). on the officer or person detaining the prisoner. If
the officer or person detaining the prisoner does
The writ of habeas corpus cannot be issued in cases in not desire to appeal, the prisoner shall be released.
which the Bureau of Immigration has duly ordered the
deportation of undocumented aliens, specifically those 6. DISTINGUISH FROM WRIT OF AMPARO AND
found guilty of illegally entering the Philippines with HABEAS DATA
the use of tampered and previously cancelled
passports. (Tung Chin Hui v. Rodriguez, G.R. No.
Q: Distinguish Writ of Habeas Corpus from Writ of
141938, April 2, 2001).
Amparo and Writ of Habeas Data.
Q: May a wife secure a writ of habeas corpus to
compel her husband to live with her in the A: Refer to page 205.
conjugal home?
7. RULES ON CUSTODY OF MINORS AND WRIT OF
A: No. Marital rights including coverture and living HABEAS CORPUS IN RELATION TO CUSTODY OF
in conjugal dwelling may not be enforced by the MINORS (AM No. 03-04-04-SC)
extra-ordinary writ of habeas corpus. In case the
husband refuses to see his wife for private reasons, Q: Who may file a petition for custody of minor?
he is at liberty to do so without threat of any
penalty attached to the exercise of his right. That is A: Any person may file a verified petition for the
a matter beyond judicial authority and is best left to rightful custody of a minor. The party against whom
the man and woman’s free choice. (Ilusorio v. it may be filed shall be designated as the
Bildner, G.R. No. 139789, May 12, 2000). respondent. (Sec. 2, AM No. 03-04-04-SC).
Q: Where should a petition for custody of minor

5. WHEN WRIT DISALLOWED/DISCHARGED be filed?
Q: In what instances shall a writ be disallowed or A: Family courts in the province or city where the
discharged? petitioner resides or where the minor may be
found. (Sec. 3, AM No. 03-04-04-SC)
A:
1. In cases of supervening events such as Q: Whether Family Courts have concurrent
issuance of a process and filing of an jurisdiction with the Supreme Court and the Court
information (Velasco v. CA, G.R. No. of Appeals in petitions where the custody of minors
118844, July 7, 1995); is at issue?
2. In cases of improper arrest or lack of
preliminary investigation (Paredes v. A: Yes. The Court of Appeals and Supreme Court
Sandiganbayan, G.R. No. 89989, Jan. 28, have concurrent jurisdiction with family courts in
1991); and habeas corpus cases where the custody of minors is
3. In cases of invalid arrest due to involved. The provisions of RA 8369 must be read
deportation cases cured by filing of in harmony with RA 7029 and BP 129 ― that
deportation proceedings (Santos v. family courts have concurrent jurisdiction with the
Commissioner of Immigration, G.R. No.L- Court of Appeals and the Supreme Court in
25694, Nov. 29, 1976). petitions for habeas corpus where the custody of
minors is at issue. (Thornton v. Thornton, G.R. No.
Note: In all petitions for habeas corpus, the court must 154598, Aug. 16, 2004).
inquire into every phase and aspect of petitioner’s
detention- from the moment petitioner was taken into Q: What are the contents of the verified petition?
custody up to the moment the court passes upon the
merits of the petition and only after such a scrutiny A:
can the court satisfy itself that the due process clause 1. The personal circumstances of the petitioner
of the Constitution has been satisfied. (Bernarte v. CA, and of the respondent.
G.R. No. 107741, Nov. 18, 1996) 2. The name, age and present whereabouts of
the minor and his or her relationship to the
When the court or judge has examined into the petitioner and the respondent.
cause of caption and restraint of the prisoner, and 3. The material operative facts constituting
is satisfied that he is unlawfully imprisoned or deprivation of custody.
restrained, he shall order his discharge from
confinement, but such discharge shall not be

SPECIAL PROCEDINGS
4. Such other matters which are relevant to emotional violence which endangers the
the custody of the minor. safety and best interests of the minor;
5. Certificate of Non-Forum Shopping signed 2. The desire and ability of one parent to
personally by the petitioner. (Sec. 4, AM No. foster an open and loving relationship
03-04-04-SC) between the minor and the other parent;
3. The health, safety and welfare of the
Q: When is a child not allowed to be separated minor;
from the mother? 4. Any history of child or spousal abuse by
the person seeking custody or who has
A: Under Article 213 (2) of the Family Code, no child had any filial relationship with the minor,
under 7 years of age shall be separated from the including anyone courting the parent;
mother, unless the court finds compelling reasons 5. The nature and frequency of contact with
to order otherwise. both parents;
6. Habitual use of alcohol, dangerous drugs
Q: When will the court take into consideration the or regulated substances;
choice of the child? 7. Marital misconduct;
8. The most suitable physical, emotional,
A: The child, who is over 7 years of age, may choose spiritual, psychological and educational
which parent he prefers to live with, unless the environment for the holistic development
parent so chosen is unfit to take charge of the child and growth of the minor; and
by reason of moral depravity, habitual drunkenness, 9. The preference of the minor over seven
incapacity, or poverty. (Art. 213, Family Code) years of age and of sufficient
discernment, unless the parent chosen is
Note: If both parents are unfit, the court may unfit. (Sec. 14, AM No. 03-04-04-SC)
designate other persons or an institution to take
charge of the child, such as the paternal or maternal Q: Would a decision rendering judgment on the
grandparent of the child, or his oldest brother or sister, issue of custody of a child in a nullity of marriage
or some reputable and discreet person. case constitute as res judicata on a pending
habeas corpus case on the same matter?
Q: What should be considered in awarding the
custody of minor? A: Yes. By filing the case for declaration of nullity of
marriage petitioner automatically submitted the
A: The court shall consider the best interests of the issue of the custody of the child as an incident
minor and shall give paramount consideration to his thereof. Section 21 of the "Rule on Declaration Of
material and moral welfare. (Sec. 14, AM No. 03-04- Absolute Nullity Of Void Marriages and Annulment
04-SC). of Voidable Marriages" directs the court taking
jurisdiction over a petition for declaration of nullity
Q: What is the Best Interest Standard? of marriage to resolve the custody of common
children, by mere motion of either party, it could
A: It refers to the totality of the circumstances and only mean that the filing of a new action is not
conditions as are most congenial to the survival, necessary for the court to consider the issue of
protection, and feelings of security of the minor and custody of a minor. (Yu v. Yu, G.R. No. 164915,
most encouraging to his physical, psychological and March 10, 2006).
emotional development. It also means the least
detrimental available alternative for safeguarding Q: What are the stages in the pre-trial?
the growth and development of the minor. (Sec. 14,
AM No. 03-04-04-SC) A:
1. First stage – the parties may agree on the
Q: What are the other factors that the court may custody of the minor.
consider in awarding custody? 2. Second stage – the trial court will direct
the parties to secure the services of a
A: mediator if the parties do not agree on
1. Any extrajudicial agreement which the the custody of the minor. (Sec. 12, AM
parties may have bound themselves to No. 03-04-04-SC)
comply with respecting the rights of the
minor to maintain direct contact with the Note: If the second stage does not produce an
non custodial parent on a regular basis, amicable settlement, the court will proceed with the
except when there is an existing threat or pre-trial conference. Pre-trial is mandatory. (Sec. 12,
danger of physical, mental, sexual or AM No. 03-04-04-SC)
199
Q: What is the order of preference in awarding A: No, the court should conduct thorough trial on
provisional custody? all matters relevant to the welfare and interests of
the child. (Laxamana v. Laxamana, G.R. No. 144763,
A: As far as practicable, the order of preference Sept. 3, 2002)
shall be observed:
1. Both parents jointly; Q: Can the minor child be brought out of the
2. Either parent, taking into account all country without leave from court while the
relevant considerations, especially the petition is pending?
choice of the minor over seven years of
age and of sufficient discernment, unless A: The minor child subject of the petition shall not
the parent chosen is unfit; be brought out of the country without prior order
3. The grandparent, or if there are several from the court while the petition is pending.
grandparents, the grandparent chosen by
the minor over seven years of age and of The court, motu proprio or upon application under
sufficient discernment, unless the oath, may issue ex parte a hold departure order,
grandparent chosen is unfit or addressed to the Bureau of Immigration and
disqualified; Deportation, directing it not to allow the departure
4. The eldest brother or sister over twenty- of the minor from the Philippines without the
one years of age, unless he or she is unfit permission of the court. (Sec. 16, AM No. 03-04-04-
or disqualified; SC)
5. The actual custodian of the minor over
twenty-one years of age, unless the N. WRIT OF AMPARO (AM No. 07-9-12-SC)
former is unfit or disqualified; or
6. Any other person or institution the court Q: What is writ of amparo?
may deem suitable to provide proper care
and guidance for the minor. A: It is a remedy available to any person whose
right to life, liberty and security is violated or
Q: May the court award temporary visitation threatened with violation by an unlawful act or
rights in the provisional custody order? omission of a public official or employee, or of a
private individual or entity. The writ shall cover
A: Yes, the court shall provide in its order awarding extralegal killings and enforced disappearances or
provisional custody appropriate visitation rights to threats thereof. (Sec. 1)
the non-custodial parent or parents, unless the
court finds said parent or parents unfit or Note: The remedy provides rapid judicial relief as it
disqualified. partakes of a summary proceeding that requires only
substantial evidence to make the appropriate reliefs
Q: What should the court award after the hearing? available to the petitioner; it is not an action to
determine criminal guilt requiring proof beyond
A: reasonable doubt, or liability for damages requiring
1. Care, custody and control of each child as preponderance of evidence, or administrative
responsibility requiring substantial evidence that will
will be for its best interest.
require full and exhaustive proceedings. (Deliberations
2. Court may order either or both parents to
of the Committee on the Revision of the Rules of Court,
support or help support the child, Aug. 10, 2007, Aug. 24, 2007, Aug. 31, 2007 and Sept.
irrespective of who may be its custodian. 20, 2008)
The fact that the father has recognized
the child may be a ground for ordering Q: What are extralegal killings?
him to give support, but not for giving him
custody of the child. A: Killings committed without due process of law,
3. Court may permit the parent who is legal safeguards or judicial proceedings. (Secretary
deprived of care and custody to visit the of National Defense v. Manalo, G.R. No. 180906,
child or have temporary custody thereof Oct. 7, 2008) These include the illegal taking of life
in an order that is just and reasonable. regardless of the motive, summary and arbitrary
(Sec. 18, AM No. 03-04-04-SC) executions, salvaging even of suspected criminals,
and threats to take the life of persons who are
Q: May the court award the custody of the minors openly critical of erring government officials and
based merely on psychiatric report and agreement the like.
of the parties?

SPECIAL PROCEDINGS
Q: What are enforced disappearances? under Section 1, Rule 27 of the Rules of Civil
Procedure which provides in relevant part, viz:
A: An arrest, detention or abduction of a person by
a government official or organized groups or private Section 1. Motion for production or inspection
individual acting with the direct or indirect order. Upon motion of any party showing good
acquiescence of the government; the refusal of the cause therefor, the court in which an action is
State to disclose the fate or whereabouts of the pending may (a) order any party to produce
person concerned or a refusal to acknowledge the and permit the inspection and copying or
deprivation of liberty which places such persons photographing, by or on behalf of the moving
outside the protection of law. (Secretary of National party, of any designated documents, papers,
Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008) books of accounts, letters, photographs,
objects or tangible things, not privileged,
1. COVERAGE which constitute or contain evidence material
to any matter involved in the action and which
Q: What is the scope of the Writ of amparo? are in his possession, custody or control.”
A: It covers extralegal killings and enforced A search warrant is a court order issued by a judge
disappearances or threats thereof. It is available to or magistrate judge that authorizes the law
any person whose right to life, liberty and security enforcement officers to conduct a search of a
is violated or threatened with violation by an person or location for evidence of a crime and to
unlawful act or omission of a public official or confiscate evidence if it is found. A writ of amparo
employee, or of a private individual or entity. is a form of constitutional relief.
The petition for a writ of amparo is a remedy 4. WHO MAY FILE

available to any person whose right to life, liberty
and security is violated or threatened with violation Q: Who may file the petition?
by an unlawful act or omission of a public official or
employee, or of a private individual or entity. The A: Any aggrieved party may file the petition. It may
writ shall cover extralegal killings and enforced also be filed by any qualified person or entity in the
disappearances or threats thereof. following order:
2. DISTINGUISH FROM HABEAS CORPUS AND 1. Any member of the immediate family,
HABEAS DATA namely: the spouse, children and parents
of the aggrieved party;
Q: Distinguish Writ of Habeas Corpus from Writ of 2. Any ascendant, descendant or collateral
Amparo and Writ of Habeas Data. relative of the aggrieved party within the
fourth civil degree of consanguinity or
A: Refer to page 205. affinity, in default of those mentioned in
the preceding paragraph; or
3. DIFFERENCES BETWEEN WRIT OF AMPARO AND 3. Any concerned citizen, organization,
SEARCH WARRANT association or institution, if there is no
known member of the immediate family
Q: What is the difference between a Writ of or relative of the aggrieved party.
Amparo from a Search Warrant?
NOTE: The filing of a petition by the aggrieved party
A: In the October 7, 2008 decision of the Supreme suspends the right of all other authorized parties to file
Court in the case of The Secretary of National similar petitions. Likewise, the filing of the petition by
Defense vs. Manalo, the Court said that “the an authorized party on behalf of the aggrieved party
production order under the Amparo Rule should suspends the right of all others, observing the order
not be confused with a search warrant for law established herein. (Sec. 2).
enforcement under Article III, Section 2 of the 1987
Constitution. This Constitutional provision is a 5. CONTENTS OF RETURN
protection of the people from the unreasonable
intrusion of the government, not a protection of the Q: What is the content of the verified return?
government from the demand of the people such
as respondents. A: Within seventy-two (72) hours after service of
Instead, the Amparo production order may be the writ, the respondent shall file a verified written
likened to the production of documents or things return together with supporting affidavits which
shall, among other things, contain the following:
201
1. The lawful defenses to show that the A: The omnibus waiver rules states that all defenses
respondent did not violate or threaten not raised in the return are deemed waived. (Sec.
with violation the right to life, liberty and 10).
security of the aggrieved party, through
any act or omission; 8. PROCEDURE FOR HEARING
2. The steps or actions taken by the
respondent to determine the fate or Q: What is the nature of the hearing?
whereabouts of the aggrieved party and
the person or persons responsible for the A: The hearing on the petition shall be summary.
threat, act or omission; However, the court, justice or judge may call for a
3. All relevant information in the possession preliminary conference to simplify the issues and
of the respondent pertaining to the determine the possibility of obtaining stipulations
threat, act or omission against the and admissions from the parties. (Sec. 12).
aggrieved party; and
4. If the respondent is a public official or Q: How long should the hearing last?
employee, the return shall further state
the actions that have been or will still be A: The hearing shall be from day to day until
taken: completed and given the same priority as petitions
a. to verify the identity of the aggrieved for habeas corpus. (Sec. 13)
party;
b. to recover and preserve evidence 9. INSTITUTION OF SEPARATE ACTION
related to the death or
disappearance of the person Q: May a separate action be filed after filing a
identified in the petition which may petition for a writ of amparo?
aid in the prosecution of the person
or persons responsible; A: Yes. It does not preclude the filing of separate
c. to identify witnesses and obtain criminal, civil or administrative actions. (Sec. 21)
statements from them concerning
the death or disappearance; 10. EFFECT OF FILING A CRIMINAL ACTION
d. to determine the cause, manner,
location and time of death or Q: What is the effect if a prior criminal action has
disappearance as well as any pattern been filed?
or practice that may have brought
about the death or disappearance; A: No petition for a writ of amparo shall be filed.
e. to identify and apprehend the The reliefs under the writ shall be available by
person or persons involved in the motion in the criminal case. (Sec. 22)
death or disappearance; and The procedure under this Rule shall govern the
f. to bring the suspected offenders disposition of the reliefs available under the writ of
before a competent court. amparo.
5. Other matters relevant to the
investigation, its resolution and the 11. CONSOLIDATION
prosecution of the case.
Q: What happens if criminal action is filed
Note: A general denial of the allegations in the petition subsequent to a petition for writ of amparo?
shall not be allowed.
A: The petition for the writ shall be consolidated
6. EFFECTS OF FAILURE TO FILE A RETURN with criminal action. (Sec. 23)
Q: What happens when the respondent fails to file Q: What happens if a criminal action and a
a return? separate civil action are filed subsequent to a
petition for writ of amparo?
A: The court, justice or judge shall proceed to hear
the petition ex parte. (Sec. 9) A: The petition for writ of amparo shall be
consolidated with the criminal action.
7. OMNIBUS WAIVER RULE
Note: After consolidation, the procedure under this
Q: What is the Omnibus Waiver Rule? Rule shall continue to apply to the disposition of the
reliefs in the petition.

SPECIAL PROCEDINGS
12. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT
Q: What are interim reliefs available?
A:
PETITIONER RESPONDENT
1. Temporary protection order;
2. Inspection order; 1. Inspection order;
3. Production order; 2. Production order. (Sec. 15)
4. Witness protection order. (Sec. 14)
HOW INITIATED THE COURT SHALL

Temporary Upon motion or motu proprio Order the petitioner or the aggrieved party and any
Protection Order member of the immediate family be protected in a
government agency or by an accredited person or
private institution capable of keeping and securing their
safety. If the petitioner is an organization, association or
institution referred to in Section 3(c) of this Rule, the
protection may be extended to the officers involved.
Inspection Order Upon verified motion and after due Order any person in possession or control of a
hearing designated land or other property, to permit entry for
the purpose of inspecting, measuring, surveying, or
photographing the property or any relevant object or
operation thereon.
Production Order Upon verified motion and after due order any person in possession, custody or control of
hearing any designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute
or contain evidence relevant to the petition or the
return, to produce and permit their inspection, copying
or photographing by or on behalf of the movant.
Witness Upon Motion or Motu Proprio refer the witnesses to the Department of Justice for
Protection Order admission to the Witness Protection, Security and
Benefit Program, pursuant to Republic Act No. 6981.
The court, justice or judge may also refer the witnesses

to other government agencies, or to accredited persons
or private institutions capable of keeping and securing
their safety.
13. QUANTUM OF PROOF IN APPLICATION FOR regularly performed to evade responsibility or

ISSUANCE OF WRIT OF AMPARO liability.
Q: What is the quantum of evidence required in a Note: No writ of amparo may be issued unless there is
petition for a writ of amparo? a clear allegation of the supposed factual and legal
basis of the right sought to be protected. A threatened
A: The parties shall establish their claims by demolition of a dwelling by virtue of a final judgment
substantial evidence. (Sec. 17) of the court is not included among the enumeration of
The respondent who is a private individual or entity rights as stated in the above-quoted Section 1 for
must prove that ordinary diligence as required by which the remedy of a writ of amparo is made
available. Their claim to their dwelling, assuming they
the applicable laws, rules and regulations was
still have any despite the final and executory judgment
observed in the performance of duty.
adverse to them, does not constitute right to life,
liberty and security. There is, therefore, no legal basis
The respondent who is a public official or employee for the issuance of the writ of amparo. (Canlas v.
must prove that extraordinary diligence as required Napico Homeowners Association, G.R. No. 182795,
by applicable laws, rules and regulations was June 5, 2008).
observed in the performance of duty.
Q: Raymond and Reynaldo Manalo escaped from
The respondent public official or employee cannot captivity and surfaced of the armed forces. But
invoke the presumption that official duty has been while the two admit that they are no longer in
203
detention and are physically free, they assert, that property, and may be ordered destroyed by the
they are not free in every sense of the word as court.
their movements continue to be restricted for fear
that the people they have named in their judicial 3. DISTINGUISH FROM HABEAS CORPUS AND WRIT
affidavits and testified against are still at large and OF AMPARO
have not held accountable. The Manalo brothers
claim that they are under the threat of being once Q: Distinguish Writ of Habeas Corpus from Writ of
again abducted, kept captive or even killed, which Amparo and Writ of Habeas Data.
constitute a direct violation of their right to
security of person. They filed a petition for writ of A: Refer to page 205.
amparo. Should the court granted the petition?
A: Yes, the Manalo brothers’ right to security as 4. WHO MAY FILE
freedom from threat is violated by the apparent
threat to their life, liberty and security of person. Q: Who may file the petition?
Their right to security as a guarantee of protection
by the government is likewise violated by the A: Any aggrieved party may file a petition for the
ineffective investigation and protection on the part writ of habeas data. However, in cases of extralegal
of the military. In blatant violation of guarantees to killings and enforced disappearances, the petition
life, liberty and security, these rights are snuffed may be filed by:
out from victims of extralegal killings and enforced
disappearances. The writ of amparo is a tool that 1. Any member of the immediate family of
gives voice to preys of silent guns and prisoners the aggrieved party, namely: the spouse,
behind secret walls. (Secretary of National Defense children and parents; or
v. Manalo, G.R. No. 180906, Oct. 7, 2008) 2. In default thereof, any ascendant,
descendant or collateral relative of the
O. WRIT OF HABEAS DATA (AM No. 08-1-16-SC) aggrieved party within the fourth civil
degree of consanguinity or affinity. (Sec.
1. SCOPE OF WRIT 2)
Q: What is the scope of the writ? 5. CONTENTS OF PETITION
A: The writ covers instances wherein a person’s Q: What are the contents of the verified petition?
right to privacy in life, liberty or security is violated
or threatened by an unlawful act or omission of a A:
public official or employee, or of a private individual 1. The personal circumstances of the
or entity engaged in the gathering, collecting or petitioner and the respondent
storing of data or information regarding the person, 2. The manner the right to privacy is
family, home and correspondence of the aggrieved violated or threatened and how it affects
party. the right to life, liberty or security of the
aggrieved party
2. AVAILABILITY OF WRIT 3. The actions and recourses taken by the
petitioner to secure the data or
Q: What is writ of habeas data? information
4. The location of the files, registers or
A: It is a remedy available to any person whose databases, the government office, and
right to privacy in life, liberty or security is violated the person in charge, in possession or in
or threatened by an unlawful act or omission of a control of the data or information, if
public official or employee, or of a private individual known
or entity engaged in the gathering, collecting or 5. The reliefs prayed for, which may include
storing of data or information regarding the person, the updating, rectification, suppression or
family, home and correspondence of the aggrieved destruction of the database or
party. It is a procedure designed to safeguard information or files kept by the
individual freedom from abuse in the information respondent. In case of threats, the relief
age. (Sec. 1) may include a prayer for an order
enjoining the act complained of.
Information or data written, tends to threaten 6. Such other relevant reliefs as are just and
violation of constitutional right to life, liberty or equitable. (Sec. 6)

SPECIAL PROCEDINGS
6. CONTENTS OF RETURN A:
1. When a subsequent criminal action is
Q: What should the respondent allege in his filed, the Petition for the writ of Habeas
verified return? Data shall be consolidated with the
criminal action.
A: The respondent, within 5 working days from the 2. When a criminal action and a separate
service of the writ, unless reasonably extended by civil action are filed subsequent to a
the Court, shall allege: petition for a writ of habeas data, the
petition shall be consolidated with the
1. The lawful defenses such as national criminal action.
security, state secrets, privileged
communication, confidentiality of the Note: After consolidation, the procedure under the
source of information of media and Rule shall continue to govern the disposition of the
others; reliefs in the petition. (Sec. 21)
2. In case of respondent in charge, in
possession or in control of the data or 9. EFFECT OF FILING A CRIMINAL ACTION
information subject of the petition:
a. A disclosure of the data or Q: What is the effect of an institution of a criminal
information about the petitioner, the action?
nature of such data or information,
and the purpose for its collection; A: No separate petition for the writ shall be filed.
b. The steps or actions taken by the The reliefs under the writ shall be available to an
respondent to ensure the security aggrieved party by motion in the criminal case. (Sec.
and confidentiality of the data or 22).
information; and
c. The currency and accuracy of the 10. INSTITUTION OF SEPARATE ACTION
data or information held; and
3. Other allegations relevant to the Q: Does the filing of a petition for the writ of
resolution of the proceeding. habeas data prohibit the filing of separate
Note: A general denial of the allegations in the petition criminal, civil or administrative actions?
shall not be allowed.
A: The filing of a petition for the writ of habeas data
7. INSTANCES WHEN PETITION BE HEARD IN shall not preclude the filing of separate criminal,
CHAMBERS civil or administrative actions. (Sec. 20).
Q: What are the instances when a petition for a 11. QUANTUM OF PROOF IN APPLICATION FOR
writ of habeas data may be heard in chambers? WRIT OF HABEAS DATA
A: It may be conducted where the respondent Q: What is the quantum of evidence required in a
invokes the defense that the release of the data or petition for a writ of habeas data?
information in question shall compromise national
security or State secrets, or when the data or A: The court shall render judgment within (10) days
security and that it cannot be divulged to the public from the time the petition is submitted for decision.
due to its nature or privileged character. (Sec. 12) If the allegations in the petition are proven by
substantial evidence, the court shall enjoin the act
8. CONSOLIDATION complained of, or order the deletion, destruction,
or rectification of the erroneous data or
Q: What happens when a criminal and/or civil information and grant other relevant reliefs as may
action is filed after the filing of the petition for be just and equitable; otherwise, the privilege of
writ of habeas data? the writ shall be denied. (Sec. 16.).
Q: What are the differences between the writs?
A:
HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN
Literal interpretation
It is a Filipino word which
You have the body To protect You have the data
means “nature” in English
205
Governing rule
Rule 102 A.M. No. 07-9-12-SC A.M. No. 08-1-16-SC A.M. No. 09-6-8-SC
Description
Writ directed to Remedy available to any Remedy available to any person Special remedy available
the person person whose right to whose right to privacy in life, liberty to a natural or juridical person,
detaining another, life, liberty, and security or security is violated or threatened entity authorized by law,
commanding him is violated or threatened by an unlawful act or omission of a people’s organization, non-
to produce the with violation by an public official or employee, or of a governmental organization, or
body of the unlawful act or omission private individual or entity engaged any public interest group
accredited by or registered with
prisoner at a of a public official or in the gathering, collecting, or
any government agency, on
designated time employee, or of a storing of data or information
behalf of persons whose
and place, with the private individual or regarding the person, family, home
constitutional right to a
day and cause of entity. and correspondence of the balanced and healthful ecology
his capture and aggrieved party. is violated, or threatened with
detention, to do, violation by an unlawful act or
submit to, and omission of a public official or
receive whatsoever employee, or private individual
the court or judge or entity, involving
awarding the writ environmental damage of such
shall consider in magnitude as to prejudice the
that behalf. life, health or property of
inhabitants in two or more cities
or provinces.
Coverage
Involves the right to life,
Involves the right Involves the right to privacy in life,
liberty, and security of
to liberty of and liberty, and security of the Constitutional right to a
the aggrieved party and
rightful custody by aggrieved party and covers balanced and healthful
covers extralegal killings
the aggrieved extralegal killings and enforced ecology.
and enforced
party. disappearances.
disappearances.
Rights violated
There is an actual or
There is an actual There is an actual or
There is an actual or threatened threatened violation of one’s
violation of the threatened violation of
violation of the aggrieved party’s right to a healthful and
aggrieved party’s the aggrieved party’s
right. balanced ecology involving
right. right.
environmental damage.
Where to file
RTC where the petitioner or
RTC or any judge RTC of the place where
respondent resides, or that which has
thereof, CA or any the threat, act or
jurisdiction over the place where the
omission was committed
member thereof in data or information is gathered,
or any of its elements
instances collected or stored, at the option of In SC or any stations of the CA.
occurred; SB or any
authorized by law; the petitioner; or with SC, CA or SB
justice thereof; CA or any
or SC or any when the action concerns public data
justice thereof; SC or any
member thereof. files or government offices.
justice thereof.
Habeas Corpus Amparo Habeas Data Kalikasan

Who may file a petition
In the following order: A natural or
1. Any aggrieved party;
1. Any member of the juridical person,
2. However, in cases of extralegal
immediate family entity authorized
killings and enforced
2. Any ascendant, by law, people’s
disappearances:
1. Party for whose relief descendant, or organization, non-
a. Any member of the
it is intended; or collateral relative of governmental
immediate family
the aggrieved party organization, or
th b. Any ascendant,
2. Any person on his within the 4 civil any public interest
descendant, or collateral
behalf degree of group accredited
relative of the aggrieved
consanguinity or by or registered
party within the 4th civil
affinity with any
degree of consanguinity
3. Any concerned citizen, government
or affinity
organization, agency.

SPECIAL PROCEDINGS
association or
institution
Respondent
Public official or employee or a
private individual or entity engaged
Public official or employee in the gathering, collecting or storing Public official or
May or may not be an
or a private individual or of data or information regarding the employee, private
officer.
entity. person, family, home and individual or entity.
correspondence of the aggrieved
party.
Enforceability of the writ
If granted by SC or CA:
enforceable anywhere In
the Philippines; Enforceable anywhere in the Philippines regardless of who issued Enforceable
the same anywhere in the
If granted by RTC: Philippines
enforceable only within
the judicial district
Docket fees
Payment is required Payment is required.
Petitioner is
Petitioner is exempted
exempted from
Note: Rule on indigent from payment Note: Rule on indigent petitioner
payment
petitioner applies. applies.
Service of writ
Served upon the person to
whom it is directed, and if Served upon the
Served upon the
not found or has not the Served upon the respondent respondent
respondent personally; or
prisoner in his custody, to personally; or substituted service personally; or
substituted service
the other person having or substituted service.
exercising such custody
Person who makes the return
Officer by whom the
prisoner is imprisoned or
the person in whose Respondent Respondent Respondent
custody the prisoner is
found
When to file a return
The respondent shall file a verified
Within 5 working days
written return together with
after service of the writ, Within non-
supporting affidavits within 5
On the day specified in the the respondent shall file a extendible period
working days from service of the
writ verified written return of 10 days after the
writ, which period may be
together with supporting service of writ.
reasonably extended by the Court
affidavits.
for justifiable reasons.

Return
If issued by RTC: returnable If issued by RTC: returnable
before such court; before such court;
If granted by the SC or If issued by SB or CA or any If issued by SB or CA or any of

CA: returnable before of their justices: their justices: returnable
the court or any returnable before such before such court or to any
member or before RTC court or to any RTC of the RTC of the place where the
If issued by SC, returnable
or any judge thereof; place where the threat, act petitioner or respondent
before such court or CA.
or omission was resides or that which has
If granted by RTC: committed or any of its jurisdiction over the place
returnable before such elements occurred; where the data or
court information is gathered,
If issued by SC or any of its collected or stored;
justices: returnable before
such court, or before SB, If issued by SC or any of its
207
CA, or to any RTC of the justices: returnable before

place where the threat, act such court, or before SB, CA,
or omission was or to any RTC of the place
committed or any of its where the petitioner or
elements occurred respondent resides or that
which has jurisdiction over
the place where the data or
information is gathered,
collected or stored
General denial
Not prohibited. Not allowed. Not allowed. Not allowed.
Liability of the person to whom the writ is directed if he refuses to make a return
Forfeit to the aggrieved
party the sum of Imprisonment or fine for Imprisonment or fine for
Indirect contempt.
P1000, and may also be committing contempt. committing contempt.
punished for contempt.
Hearing
The hearing including the
preliminary conference shall
Summary hearing shall be Summary hearing shall be
Date and time of not extend beyond sixty (60)
conducted not later than 7 conducted not later than 10
hearing is specified in days and shall be given the
days from the date of working days from the date
the writ. same priority as petitions for
issuance of the writ. of issuance of the writ.
the writs of habeas corpus,
amparo and habeas data.
Period of appeal
Within fifteen (15) days from
Within 48 hours from
5 working days from the 5 working days from the date the date of notice of the
notice of the judgment
date of notice of the of notice of the judgment or adverse judgment or denial
or final order appealed
adverse judgment. final order. of motion for
from.
reconsideration.

Prohibited pleadings
1. Motion to dismiss; 1. Motion to dismiss;
2. Motion for extension of time to file opposition, 2. Motion for extension of
affidavit, position paper and other pleadings; time to file return;
3. Dilatory motion for postponement; 3. Motion for
4. Motion for a bill of particulars; postponement;
5. Counterclaim or cross - claim; 4. Motion for a bill of
6. Third - party complaint; particulars;
None 7. Reply; 5. Counterclaim or cross-
8. Motion to declare respondent in default; claim;
9. Intervention; 6. Third-party complaint;
10. Memorandum; 7. Reply; and
11. Motion for reconsideration of interlocutory orders or 8. Motion to declare
interim relief orders; and respondent in default.
12. Petition for certiorari, mandamus or prohibition
against any interlocutory order.
Note: In writ of amparo, one rare instance where the SB, notwithstanding its status as a special court, is vested with
jurisdiction co-equal with SC, CA and RTC. Take note that CTA, albeit acting as a special court being in the same rank of
CA and SB, is not vested with jurisdiction to issue writ of amparo.
P. CHANGE OF NAME
1. DIFFERENCES UNDER RULE 103, R.A. 9048 AND RULE 108
Discuss the differences among Rule 103 (Change of Name), R.A. 9048 (Administrative Correction of Clerical or
Typographical Error/Change of first name or nickname) and Rule 108 (Cancellation or Correction of Clerical or
Typographical Error).

SPECIAL PROCEDINGS
A:
Rule 103 R.A. 9048 Rule 108
Scope
Correction of or substantial errors
Change of first name or Change of first name or nickname/ correction
of entries in the Civil Registry/
surname. of clerical errors of entries in the Civil Registry.
cancellation of entries.
Nature
Judicial; hearing is necessary
Summary if it involves clerical
Judicial; hearing is necessary. Administrative; hearing is not necessary. errors
Adversarial if it involves substantial
errors.
Initiated by
Verified petition. Sworn affidavit. Verified petition.
Where to file
RTC of the province where the 1. Local Civil Registry office where the record
RTC where the corresponding civil
petitioner resides at least 3 is kept;
registry is located.
months. 2. Consul general.
Where to appeal , in case of adverse decision
Civil Registrar General under Sec. 7 or CA
CA under Rule 41 CA under Rule 41
under Rule 43
Who may file
Petition is filed by the person of legal age who
must have a direct and personal interest in the
correction:
1. Owner of the record; Any person interested in the act,
Filed by the person desiring to
2. Owner’s spouse, children, parents, event, decree or order concerning
change his name.
brothers, sisters, grandparents, guardian; the civil status of persons.
or
3. Anyone authorized by law or owner of the
record.
Who must be notified
Solicitor General/ Interested Interested parties/Solicitor General need not be Civil registrar as respondent; Solicitor
parties. notified. General/ Interested parties.
Publication
Order for hearing shall be Order for hearing in case of change of first
Order for hearing shall be published
published once a week for 3 name/nickname shall be published once a week
once a week for 3 consecutive weeks.
consecutive weeks. for 2 consecutive weeks.
Grounds
1. Name is ridiculous, tainted
with dishonor or extremely
difficult to write or
pronounce;
2. Habitual and continuous used
and been known since
childhood by a Filipino name,
unaware of her alien 1. The petitioner finds the first name or
parentage; nickname to be ridiculous, tainted with
3. Consequence of a change of dishonor or extremely difficult to write or
status; pronounce.
4. A sincere desire to adopt a 2. The new first name or nickname has been
N/A
Filipino name to erase signs of habitually and continuously used by the
former alienage, all in good petitioner and he has been publicly known by
faith and without prejudicing that by that first name or nickname in the
anybody; community: or
5. The change will avoid 3. The change will avoid confusion.
confusion; or
6. When the surname causes
embarrassment and there is
no showing that the desired
change of name was for a
fraudulent purpose or that
the change of name should
209
prejudice public interest.

(Republic v. CA, G.R. No.
88202, Dec. 14, 1998).
Entries subject to correction

1. Correction of clerical or 1. Correction of clerical or typographical errors in 1. Births;
typographical errors in any the civil registry 2. Marriages;
entry in civil registry 2. change of first name or nickname in the civil 3. Deaths;
documents, except registry 4. Legal separations;
corrections involving the 5. Judgments of annulments of
change in sex, age, nationality marriage;
and status of a person; and 6. Judgments declaring marriages
2. Change of a person's first void from the beginning;
name or nickname in his or 7. Legitimations;
her civil registry. 8. Adoptions;
9. Acknowledgments of natural
children;
10. Naturalization;
11. Election, loss or recovery of
citizenship;
12. Civil interdiction;
13. Judicial determination of
filiation; and
14. Change of name. (Sec. 2)
NOTE: Clerical/typographical error refer to an obvious mistake committed in clerical work, either in writing, copying,
transcribing, or typing an entry in the civil register that is harmless and innocuous, such as a misspelled name or place of birth
and the like, and can be corrected or changed only by reference to other existing record or records. [Sec. 2(3) of RA 9048]
nationality of a party, it is deemed substantial, and the

2. GROUNDS FOR CHANGE OF NAME procedure to be adopted is adversary. (Republic v.
Bautista, 155 SCRA 1, Oct. 26, 1987).
Q: What are the grounds for change of name
under Rule 103? Q. ABSENTEES
A: 1. PURPOSE OF THE RULE

1. Name is ridiculous, tainted with dishonor
or extremely difficult to write or Q: What is the purpose of this Rule?
pronounce;
2. Habitual and continuous used and been A: It is to appoint an administrator over the
known since childhood by a Filipino name, properties of the absentee. This is proper only
unaware of her alien parentage; where the absentee has properties to be
3. Consequence of a change of status; administered.
4. A sincere desire to adopt a Filipino name When a person disappears from his domicile his
to erase signs of former alienage, all in whereabouts being unknown, and without having
good faith and without prejudicing left an agent to administer his property, or the
anybody; power conferred upon the agent has expired, any
interested party, relative or friend, may petition the
5. The change will avoid confusion; or
RTC of the place where the absentee resided before
6. When the surname causes
his disappearance for the appointment of a person
embarrassment and there is no showing
to represent him provisionally in all that may be
that the desired change of name was for a
necessary.
fraudulent purpose or that the change of
name should prejudice public interest.
Note: If the absentee left no properties, such petition
(Republic v. CA, G.R. No. 88202, Dec. 14, is not necessary. (Reyes v. Alejandro, G.R. No. L-46187,
1998). Jan. 16, 1986)
Note: Under Rule 108, change of name may either be

summary or adversary in nature. If the correction
sought to be made in the civil registrar is clerical, then
the procedure to be adopted is summary. If the
rectification affects the civil status, citizenship or

SPECIAL PROCEEDINGS
2. WHO MAY FILE A PETITION; WHEN TO FILE Note: Rule 108, when all the procedural requirements
thereunder are followed, is the appropriate adversary
Q: Who may file a petition for declaration of proceeding to effect substantial correction and
absence and appointment of administrator or changes in the entries of civil register (Lee v. CA, G.R.
trustee? No. L-118387, Oct. 11, 2001).
A:
1. Spouse present; Q: What are the requisites of adversarial
2. Heirs instituted in the will; proceedings?
3. Relatives who will succeed by intestacy;
4. Those who have over the property of the A:
absentee some right subordinated to the 1. Proper petition is filed where the Civil
condition of his death. (Sec. 2, Rule 107) Registrar and all parties interested are
impleaded;
Q: When should a petition for declaration of 2. The order of hearing must be published
absence and appointment of administrator or once a week for three consecutive weeks;
trustee be filed? 3. Notice must be given to the Civil Registrar
and all parties affected thereby;
A: 4. The civil registrar and any person
1. After 2 years: interested, may within 15 days from
a. From his disappearance and without notice or from the last date of
any news about the absentee; or publication, files his opposition thereto;
b. of the last news about the absentee. and
2. After 5 years – If he left an administrator 5. Full blown trial. (Republic v. Valencia,
of his property. (Sec. 2, Rule 107) supra.)
R. CANCELLATION OR CORRECTION OF ENTRIES IN 1. ENTRIES SUBJECT TO CANCELLATION OR

THE CIVIL REGISTRY CORRECTION UNDER RULE 108, IN RELATION TO
RA 9048
Q: Who may file a petition for cancellation or
correction of entries? Q: What are the entries subject to cancellation or
correction under Rule 108?
A: Any person interested in any act, event, order or
decree concerning the civil status of persons which A:
has been recorded in the civil register, may file a 1. Births;
verified petition for the cancellation or correction 2. Marriages;
of any entry relating thereto, with the RTC of the 3. Deaths;
province where the corresponding civil registry is 4. Legal separations;
located (Sec. 1). 5. Judgments of annulments of marriage;
6. Judgments declaring marriages void from
Q: What is the nature of proceedings in Rule 108? the beginning;
7. Legitimations;
A: It is summary if the entries in the civil register 8. Adoptions;
sought to be corrected are clerical or innocuous in 9. Acknowledgments of natural children;
nature. However, where such entries sought to be 10. Naturalization;
corrected or changed are substantial, the 11. Election, loss or recovery of citizenship;
proceedings are adversarial in nature. (Republic v. 12. Civil interdiction;
Valencia, G.R. No. L-32181, Mar. 5, 1986) 13. Judicial determination of filiation; and
14. Change of name. (Sec. 2)
Q: What is meant by appropriate adversarial
proceeding? Q: May the trial court issued an order declaring
the nullity of marriage under Rule 108 and change
A: One which has opposing parties; contested as the status from married to single?
distinguished from an ex parte application, one of
which the party seeking relief has given legal A: No, it is proper only in ordinary adversarial
warning to the other party, and afforded the latter proceedings. (Lim v. Republic, G.R. No. 8932, May
an opportunity to contest it. (Republic v. Valencia, 31, 1957)
Ibid.)
211
Q: Within what period may a petition for Kho, G.R. No. 170340, June 29, 2007; Alba v. CA,
correction or cancellation of entries be filed? G.R. No. 164041, July 29, 2005; Barco v. CA, G.R. No.
120587, Jan. 20, 2004). (2007 Bar Question)
A: The law did not fix a period within which the
petition for correction under Rule 108 in relation to Q: Helen is the daughter of Eliza, a Filipina, and
Art. 412 of Civil Code may be filed. Accordingly, Tony, a Chinese, who is married to another
such petition may be filed within 5 years from time woman living in China. Her birth certificate
the petitioner discovered the error or mistake in indicates that Helen is the legitimate child of Tony
the civil registry, and not from the date the birth and Eliza and that she is a Chinese citizen. Helen
certificate was registered in the civil registry. (Lee v. wants her birth certificate corrected by changing
CA, supra.) her filiation from "legitimate" to "illegitimate" and
her citizenship from “Chinese" to "Filipino"
Q: Celine files a petition for cancellation of the because her parents were not married. What
birth certificate of her daughter Jeanie on the petition should Helen file and what procedural
ground of falsified material entries therein made requirements must be observed? Explain.
by Celine’s husband as the informant. The RTC sets
the case for hearing and directs the publication of A: A petition has to be filed in a proceeding under
the order once a week for 3 consecutive weeks in a Rule 108 of the Rules of Court. A petition to change
newspaper of general circulation. Summons was the record of birth by changing the filiation from
served on the Civil Registrar but there was no “legitimate” to “illegitimate” and petitioner’s
appearance during the hearing. The RTC granted citizenship from “Chinese” to “Filipino” does not
the petition. Jeanie filed a petition for annulment involve a simple summary correction which could
of judgment before the CA, saying that she was otherwise be done under the authority of R.A.
not notified of the petition and hence, the decision 9048. Procedural requirements include: (a) filing a
was issued in violation of due process. Celine verified petition; (b) naming as parties all persons
opposed saying that the publication of the court who have or claim any interest which would be
order was sufficient compliance with due process. affected; (c) issuance of an order fixing the time and
Rule. place of hearing; (d) giving reasonable notice to the
parties named in the petition; and (e) publication of
A: The petition for annulment of judgment before the order once a week for 3 consecutive weeks in a
the CA should be granted. Jurisdiction of the court newspaper of general circulation. (2005 Bar
over a petition for cancellation of a birth certificate Question)
requires reasonable notice to all interested parties
and also publication of the order once a week for 3 S. APPEALS IN SPECIAL PROCEEDINGS
consecutive weeks in a newspaper of general
circulation. In this case, publication of the order is 1. JUDGMENTS AND ORDERS FOR WHICH APPEAL
insufficient because Jeanie, a directly concerned MAY BE TAKEN
party, was not given reasonable notice, hence,
denied due process. The lower court, therefore, did Q: What are the orders or judgments from which
not acquire jurisdiction. (Ceruila v. Delantar, G.R. appeal may be taken?
No. 140305, Dec. 9, 2005).
A: An interested person may appeal when such
Alternative Answer: order or judgment:
It should not be granted. The publication of an
order of hearing under Section 4 of Rule 108 cured 1. Allows or disallows a will;
the failure to implead an indispensable party. A 2. Determines who are the lawful heirs of a
petition for correction is an action in rem, an action deceased person, or the distributive share
against a thing and not against a person. The of the estate to which such person is
decision on the petition binds not only the parties entitled;
thereto but the whole world. An in rem proceeding 3. Allows or disallows, in whole or in part,
is validated essentially through publication. any claim against the estate of a deceased
Publication is notice to the whole world that the person, or any claim presented on behalf
proceeding has for its object to bar indefinitely all of the estate in offset to a claim against it;
who might be minded to make an objection of any 4. Settles the account of an executor,
sort against the right sought to be established. It is administrator, trustee or guardian;
the publication of such notice that brings in the 5. Constitutes, in the proceedings relating to
whole as a party in the case and vests the court the settlement of the estate of a
with jurisdiction to hear and decide it (Republic v. deceased person, or the administration of

SPECIAL PROCEEDINGS
a trustee or guardian, a final A:

determination in the lower court of the 1. Rule 40 (Appeal from MTC to RTC) – By
rights of the party appealing, except that filing a notice of appeal, record on appeal
no appeal shall be allowed from the and payment of appeal fees on questions
appointment of a special administrator; of law or fact or both;
6. Is the final order or judgment rendered in
the case, and affects the substantial rights 2. Rule 41 (Appeal from the RTC to CA in
of the person appealing, except orders exercise of its original jurisdiction) – By
granting or denying a motion for new trial ordinary appeal by filing a notice of
or for reconsideration (Sec. 1, Rule 109). appeal, record on appeal and payment of
appeal fees on questions of law or fact or
Note: A stranger having neither material nor direct both;
interest in a testate or intestate estate has no
right to appeal from any order issued therein. 3. Rule 42 (Petition for review from the RTC
(Panis v. Yangco, G.R. No. L-29460, Dec. 22, 1928) to the CA in exercise of its appellate
jurisdiction) – By filing a notice of appeal,
2. WHEN TO APPEAL record on appeal and payment of appeal
fees on questions of law or fact or both;
Q: When should the appeal in special proceedings
be filed? 4. Rule 45 (Appeal by certiorari to the SC) –
By filing of verified petition for review on
A: certiorari and payment of fees which shall
PERIOD FOR APPEAL raise questions of law only
30 days (Record on Appeal XPN: Any party may raise questions
Special Proceedings
required) of fact in their appeal in cases of writ
48 hours from service of of amparo, habeas data and
Habeas Corpus
judgment kalikasan.
5 working days from date of
Writ of Amparo
notice of judgment
5. Rule 65 (Petition for certiorari) – By filing
5 working days from date of
Writ of Habeas Data of verified petition for certiorari on the
notice of judgment
ground that the court acted without or in
15 days from notice of
excess of jurisdiction or with grave abuse
Writ of Kalikasan judgment or denial of motion
for reconsideration
of discretion.
4. RULE ON ADVANCE DISTRIBUTION

Q: What are the orders that are not
appealable?
Q: When can an advance distribution be made
despite a pending controversy in the settlement of
A:
an estate?
1. Order directing the administrator to
take action to recover an amount due
A: Notwithstanding a pending controversy or
to the estate.
2. Order made in administration appeal in proceedings to settle the estate of a
proceedings relating to the inclusion decedent, the court may, in its discretion and upon
or exclusion of items of property in such terms as it may deem proper and just, permit
the inventory of executor or that such part of the estate as may not be affected
administrator. by the controversy or appeal be distributed among
3. Order appointing a special
the heirs or legatees, upon compliance with the
administrator.
4. Order granting or denying a motion conditions set forth in Rule 90 of these rules. (Sec.
for new trial or for reconsideration. 2)
3. MODES OF APPEAL
Q: What are the modes of appeal, how perfected

and their grounds?
213
CRIMINAL PROCEDURE 3. Determined by the nature of the offense

and/ or penalty attached thereto and not
A. GENERAL MATTERS what may be meted out after trial;
4. Determined by the law in force at the
Q: What is criminal procedure? time of the institution of the criminal
action and not at the time of its
A: It is the method prescribed by law for the commission. ONCE VESTED IT CANNOT BE
apprehension and prosecution of persons accused WITHDRAWN BY:
of any criminal offense, and for their punishment, in a. Subsequent valid amendment of the
case of conviction (Herrera, Vol. IV, p. 1, 2007 ed.). information (People v. Chipeco GR
No. 1968, March 31, 1964) or;
Q: Distinguish criminal law from criminal b. Subsequent statutory amendment of
procedure. the rules of jurisdiction UNLESS the
amendatory law expressly provides
A: otherwise or is construed that it is
Criminal Law Criminal Procedure intended to operate to actions
Substantive Remedial pending before its amendment, in
It declares what acts are It provides how the act is which case the court where the
punishable to be punished action is pending is ousted of
It provides for the jurisdiction and the pending action
It defines crimes, treats
method by which a will have to be transferred to the
of their nature and
person accused of a court having jurisdiction by virtue of
provides for their
crime is arrested, tried or the amendatory law (Binay v.
punishment
punished. Sandiganbayan GR No. 120011,
October 1, 1999)
1. DISTINGUISH JURISDICTION OVER SUBJECT
MATTER FROM JURISDICTION OVER PERSON OF 2. REQUISITES FOR EXERCISE OF CRIMINAL
THE ACCUSED JURISDICTION
Q: Distinguish jurisdiction over the subject matter Q: What is criminal jurisdiction?

from jurisdiction over the person of the accused.
A: It is the authority to hear and try a particular
A: offense and impose the punishment for it (People v.
Jurisdiction Over the Mariano, GR. No. L-40527, June 30, 1976).
Jurisdiction Over the Subject
Person of the
Matter
Accused
Note: Jurisdiction is determined by the law in force at
May be acquired by the time of the commencement of the action
Derived from the law. It can consent of the
never be acquired solely by accused (by voluntary
consent of the accused. appearance) or by Q: What are the requisites for the valid exercise of
waiver of objections. criminal jurisdiction?
Objection that the court has
no jurisdiction over the A:
If he fails to make his
subject matter may be made 1. Jurisdiction over the subject matter – the
objection on time, he
at any stage of the power to hear and determine cases of
will be deemed to
proceeding, and the right to general class to which the proceeding in
have waived it.
make such objection is never question belong. The offense, by virtue of
waived. the imposable penalty or its nature, is one
which the court is by law authorized to
Q: What determines jurisdiction of the court in take cognizance of.
criminal cases? 2. Jurisdiction over the territory – The
offense must have been committed or
A: any of its essential ingredients took place
1. The geographical limits of its territory; within the territorial jurisdiction of the
2. Determined by the allegations in the court. It cannot be waived and where the
complaint or information not by the place of the commission was not
results of proof or by the trial’s court’s specifically charged, the place may be
appreciation of the evidence presented; shown by evidence.

CRIMINAL PROCEDURE
3. Jurisdiction over the person of the accused A: It is lodged with the trial court having jurisdiction
– The person charged with the offense to impose the maximum and most serious penalty
must have been brought to its presence imposable of an offense forming part of the
for trial, forcibly by warrant of arrest or complex crime. It must be prosecuted integrally and
upon his voluntary submission to the must not be divided into component offenses which
court. may be made subject of multiple information
Note: brought in different courts (Cuyos v. Garcia, G.R.
GR: Questions of jurisdiction may be raised at any No. L-46934, Apr. 15, 1988).
stage of the proceedings and for lack of it, a court
can dismiss a case motupropio Q: Which court has jurisdiction over continuing
crimes?
XPN: The party raising the question is guilty of
estoppel or laches (Tijam v. Sibonghanoy, G.R. No.
A: Continuing offenses are consummated in one
L-21450, Apr. 15, 1968)
place, yet by the nature of the offense, the violation
of the law is deemed continuing (e.g.estafa and
3. JURISDICTION OF CRIMINAL COURTS
libel). As such, the courts of the territories where
the essential ingredients of the crime took place
Q: How is jurisdiction determined?
have concurrent jurisdiction. But the court which
first acquires jurisdiction excludes the other courts.
A: It is determined by the allegations in the
complaint or information not by the results of proof
Q: Which court has jurisdiction over crimes
or by the trial court’s appreciation of the evidence
punishable by destierro?
presented (Buaya v. Polo, G.R. No. 75097, Jan. 26,
1989).
A: Where the imposable penalty is destierro, the
case falls within the exclusive jurisdiction of the
Q: What is the principle of adherence?
Municipal Trial Court, considering that in the
hierarchy of penalties under Art. 71 of the RPC,
A: It provides that once jurisdiction is vested in the
destierrofollowsarresto mayor which involves
court, it is retained up to the end of litigation (Dela
imprisonment (People v. Eduarte, G.R. No. 88232,
Cruz v. Moya, G.R. No. 65192, Apr. 27, 1988).
Feb. 26, 1990).
Q: Is there an exception to the principle of
4. WHEN INJUNCTION MAY BE ISSUED TO
adherence?
RESTRAIN CRIMINAL PROSECUTION
A: Yes, when the subsequent statute expressly
Q: Will injunction lie to restrain criminal
provides, or is construed that it shall have
prosecution?
retroactive effect to pending case (Herrera, Vol. IV,
p. 9, 2007 ed.).
A:
GR: Writs of injunction or prohibition to restrain
Q: If fine is the only penalty, how is jurisdiction
criminal prosecution are generally not available
determined?
because public interest requires that criminal
acts be immediately investigated and
A: In cases where the only penalty provided by law
prosecuted for the protection of society.
is a fine, the amount thereof shall determine the
jurisdiction of the court. The RTC has jurisdiction
XPNs:
where the fine is more than 4,000 pesos including
1. To afford adequate protection to the
offenses committed by public officers and
constitutional rights of the accused;
employees in relation to their office, where the
2. When necessary for the orderly
amount of the fine does not exceed 6,000 pesos (SC
administration of justice or to avoid
Court Circular No. 09-94) except in cases of criminal
oppression or multiplicity of actions;
negligence involving damage to property which falls
3. When there is a prejudicial question
under the exclusive original jurisdiction of the MTC.
which is subjudice;
The MTC has jurisdiction where the fine is 4,000
4. When the acts of the officer are without
pesos or less. Accessory penalties and civil liabilities
or in excess of authority;
are no longer determinative of criminal jurisdiction.
5. Where the prosecution is under an invalid
law, ordinance or regulation;
Q: In complex crimes, how is the jurisdiction of a
6. When double jeopardy is clearly
court determined?
apparent;
215
7. Where the court has no jurisdiction over A: There is NO DIRECT FILING of an information or
the offense; complaint with the RTC because its jurisdiction
8. Where it is a case of persecution rather covers offenses which require preliminary
than prosecution; investigation.
9. Where the charges are manifestly false There is likewise NO DIRECT FILING with the
and motivated by lust for vengeance; Metropolitan Trial Court because in Manila,
10. When there is clearly no prima facie case including other chartered cities, as a rule, the
against the accused and a motion to complaint shall be filed with the office of the
quash on that ground has been denied; prosecutor, unless otherwise provided by their
and charters. In case of conflict between a city charter
11. Preliminary injunction has been issued by and a provision of the Rules of Court, the former,
the SC to prevent the threatened being substantive law, prevails.
unlawful arrest of petitioners (Domingo v.
Sandiganbayan, G.R. No 129904, Mar. 16, Q: What is the effect of institution of the criminal
2002). action on the prescriptive period?
B. PROSECUTION OF OFFENSES A:
GR: It interrupts the running of the period of
1. CRIMINAL ACTIONS, HOW INSTITUTED prescription of the offense charged (Sec. 1).
Q: What is criminal action? XPN: Prescriptive periods of violations of special

laws and municipal ordinances governed by Act
A: It is one by which the State prosecutes a person No. 3323 (An Act to Establish Periods of
for an act or omission punishable by law. Prescription for Violations Penalized by Special
Laws and Municipal Ordinances and to Provide
Q: How is criminal action instituted? When Prescription shall Begin to Run) shall only
be interrupted by the filing of a complaint or
A: The institution of a criminal action depends upon information in court. The filing of a complaint
whether the offense requires a preliminary with the prosecutor or the proper officer for
investigation. purposes of conducting a preliminary
investigation will not interrupt the prescriptive
Where a preliminary investigation is required, a period (Zaldivia v. Reyes, Jr., G.R. No. 102342,
criminal action is instituted by filing the complaint July 3, 1992).
with the proper officer for the purpose of
conducting the requisite preliminary investigation. Q: May the offended party go directly to court to
file a criminal action?
Where a preliminary investigation is not required, a
criminal action is instituted either: GR:No. Before a complaint is filed in court, there
should have been a confrontation between the
a. By filing the complaint or information parties before the Lupon chairman. The Lupon
directly with the Municipal Trial Court of secretary must certify that no conciliation or
Municipal Circuit Trail Court; or settlement was reached, attested to by the Lupon
b. By filing the complaint with the office of chairman. The complaint may also be filed if the
the prosecutor. (Section 1, Rule 110, Rules settlement is repudiated by the parties.
of Court)
XPNs:
Note: 1. Where the accused is under detention
1. For Metro Manila and other chartered cities, 2. Where a person has otherwise been
the complaint shall be filed with the deprived of personal liberty calling for
prosecutor regardless of the imposable habeas corpus proceedings
penalty (Section 1, Rule 110, Rules of Court) 3. Where actions are coupled with
2. Cases falling within the jurisdiction of the
provisional remedies
RTC are always commenced by information
4. Where the action may be barred by the
filed by the prosecutor.
statute of limitations
Q: Can the complaint or information be directly
filed in the Regional Trial Court or Metropolitan
Trial Court or other chartered cities?

CRIMINAL PROCEDURE
Q: What is the rule regarding the prescriptive 2. If the offended party has consented to the
periods of cases falling under the authority of the offense or pardoned the offenders (Sec. 5).
Lupon?
2. Seduction, abduction or acts of lasciviousness-
A: The prescriptive period shall be suspended from prosecuted exclusively and successively by the
the time of the filing of complaint with the punong following persons in this order:
barangay which suspension shall not exceed 60
days. The prescriptive period shall resume upon 1. The offended party;
receipt of the certificate of repudiation or 2. Offended party’s parents;
certificate to file action [Sec. 410(c), LGC]. 3. Offended party’s grandparents; or
4. Offended party’s guardian (Sec. 5).
2. WHO MAY FILE THEM, CRIMES THAT CANNOT
BE PROSECUTED DE OFFICIO Note: Such crimes cannot be prosecuted if the
offender has been expressly pardoned by any of
the abovementioned parties (Sec. 5).
Q: What is the concept of an offense or crime that
cannot be prosecuted de officio?
3. Defamation imputing to a person any of the
foregoing crimes of concubinage, adultery,
A: These are crimes or offenses which cannot be
seduction, abduction, rape or acts of
prosecuted except on complaint filed by the
lasciviousness- only by the party or parties
offended party or if the offended party is a minor,
defamed (Article 360, last paragraph, Revised Penal
by the parents, grandparents or the guardian. All
Code)
other crimes can be prosecuted de officio.
Q: Are there instances where the State may
Note: These are also known as private crimes.
initiate the action for seduction, abduction or acts
of lasciviousness in behalf of the offended party?
Q: Are all crimes initiated by a complaint or
information filed by the prosecutor?
A: Yes, when the offended party:
1. Dies or becomes incapacitated before a
A:
complaint is filed; or
GR: Yes.
2. Has no known parents, grandparents or
guardian (Sec. 5; Rule 110).
XPNs: Private crimes which may only be
prosecuted by a complaint filed by the private
Q: Who may file a complaint on cases of unlawful
offended party, i.e.:
acts in RA 7610 (Special Protection of Children
against Child Abuse, Exploitation and
1. Concubinage
Discrimination Act)?
2. Adultery
3. Seduction
A: The complaint may be filed by the following:
4. Abduction
1. Offended party;
5. Defamation
2. Parents or guardians;
6. Acts of lasciviousness
3. Ascendant or collateral relative within the
Note: These are crimes which are by their nature
third degree of consanguinity;
cannot be prosecuted de officio 4. Officer, social worker or representative of
Rape is now a crime against persons by a licensed child-caring institution;
virtue of RA 8353. 5. Officer or social worker of the
Department of Social Welfare and
Q: Who can legally file a complaint for crimes that Development;
cannot be prosecuted de officio? 6. Barangay chairman; or
7. At least three (3) concerned, responsible
A: citizens where the violation occurred (Sec.
1.Adultery or concubinage- Only the offended 27, RA 7160)
spouse may file a complaint for adultery or
concubinage(Sec. 5). Q: May a minor file a complaint for seduction,
abduction, or acts of lasciviousness?
Note: The offended spouse cannot institute a
criminal action for adultery A:
1. Without including the guilty parties if both GR: Yes, the offended party, even if a minor, has
are alive; or the right to initiate the prosecution of such
217
offenses independently of his parents, a. The offended minor, if with sufficient

grandparents or guardian. discretion, can validly pardon the
accused by herself if she has no
XPN: If the minor is: parents or where the accused is her
1. Incompetent; or own father and her mother is dead;
2. Incapable of doing so (Sec. 5, Rule 110). b. The parents, grandparents or
guardian of the offended minor, in
Note: If the minor fails to file a complaint, his parents, that order, extend a valid pardon in
grandparents or guardian may file the same. The right said crimes without the conformity
granted to the former shall be excusive and successive of the offended party, even if the
in the order herein provided (Sec.5Rule 110). latter is a minor;
c. If the offended woman is of age and
Q: Can the father file a complaint on behalf of his not otherwise incapacitated, only
daughter for concubinage? she can extend a valid pardon.
A: No. The rule allowing the parents, grandparents, Note: The pardon refers to pardon before filing of the
and guardians to file a complaint on behalf of the criminal complaint in court. Pardon effected after the
minor applies only to the offenses of seduction, filing of the complaint in court does not prohibit the
abduction, and acts of lasciviousness. A complaint continuance of the prosecution of the offense.
for adultery or concubinage may be filed only by
the offended spouse. Q: In cases of seduction, abduction or acts of
lasciviousness may a minor extend pardon?
Q: If the offended party in abduction, seduction,
and acts of lasciviousness is of age, can her parents A: Yes, but the pardon to be effective as to prevent
file the complaint for her? prosecution of the accused must be given by both
parents and the offended party.
A: No. If the offended party is already of age, she
has the exclusive right to file the complaint unless Q: Does the subsequent marriage of the accused
she becomes incapacitated. The parents, and offended party extinguish the criminal
grandparents, and guardian only have exclusive, liability?
successive authority to file the case if the offended
party is still a minor. A:
GR: The subsequent marriage between the
Q: If the offended party dies during the pendency party and the accused, even after the filing of
of the case, is the criminal liability of the accused the complaint, extinguishes the criminal liability
extinguished? of the latter, together with that of the co-
principals, accomplices and accessories.
A: No.
XPNs:
Q: Distinguish pardon from consent.
1. Where the marriage was invalid or
A: contracted in bad faith in order to escape
Pardon Consent criminal liability;
2. In “private libel” or the libelous
Refers to past acts Refers to future acts
imputation of the commission of the
In order to absolve the crimes of concubinage, adultery,
In order to absolve the
accused from liability, it seduction, abduction, rape or acts of
accused from liability, it
is sufficient even if lasciviousness and in slander by deed; and
must be extended to
granted only to the 3. In multiple rape, in so far as the other
both offenders
offending spouse accused in the other acts of rape
committed by them are concerned.
Q: Who can give pardon?
Q: Can the offended party intervene in the
A: criminal action?
1. Concubinage and adultery – only the
offended spouse, not otherwise A:
incapacitated. GR: The offended party has the right to
2. Seduction, abduction and acts of intervene by counsel in the prosecution of the
lasciviousness: criminal action where the civil action for the

CRIMINAL PROCEDURE
recovery of civil liability is instituted in the

criminal action pursuant to Rule 111 (Sec. 16). 2. During the pendency of the case, will not
extinguish the criminal liability of the
However, if the civil action for damages is filed accused whether total or partial (Donio-
separately from the criminal action and is based Teves v. Vamenta, G.R. No. L-38308
upon an independent civil action under Articles
32, 33, 34 or 2176 of the Civil Code, the right to 3. CRIMINAL ACTIONS, WHEN ENJOINED
intervene is not lost because the subject of the
suit does not arise from the crime. The civil Q: When may criminal actions be enjoined?
action to recover civil liability arising from the
offense charged is not the one separately filed A: Whenever a criminal case is prosecuted and the
(Philippine Rabbit v. People, 427 SCRA 456) State is the offended party, the case must always be
prosecuted under control and guidance of the State
XPN: Where: through the government prosecutors.
1. From the nature of the crime and the law
defining or punishing it, no civil liability Whenever there is acquittal or dismissal of the case
arises in favor of the offended party, e.g. and the private complainant intends to question
sedition, rebellion, treason (crimes such acquittal or dismissal, the same must likewise
against national security); be undertaken by the State through the Solicitor
2. The offended party waived the right to General.
civil indemnity; or
3. The offended party had already instituted Only the Solicitor General may represent the People
separate action. of the Philippines on appeal. The private offended
party or complainant may question such acquittal
Q: What is the effect of desistance made by the or dismissal or appeal therefrom only insofar as the
offended party in private crimes? civil aspect is concerned, in the name of the
petitioner or appellant and not in the name of the
A: It does not bar the People from prosecuting the People of the Philippines (Metropolitan Bank and
criminal action, but it operates as a waiver of the Trust Co. vs. Veridiano II, 360 SCRA 359).
right to pursue civil indemnity.
Note:The rule that the Solicitor General is the lawyer
Note: of the People in appellate courts admits an exception,
GR: Since it is the State who is the real offended namely, that which is provided for in RA 8249, which
party in a criminal case, it is the prosecutor or the states in part that “in all cases elevated to the
Ombudsman as the case may be, or the Solicitor Sandiganbayan and from the Sandiganbayan to the
General in cases before the CA or SC, who has the Supreme Court, the Office of the Ombudsman,
personality and authority prosecute and file a through its special prosecutor, shall represent the
petition in behalf of the State. People of the Philippines, except in cases filed
pursuant to EO 1, 2, 14 and 14-A, issued in 1986.”
XPN: An offended party in a criminal case has
sufficient personality to file a special civil action for
certiorari, even without the imprimatur of the 4. CONTROL OF PROSECUTION
State. In so doing, the complainant should not
bring the action in the name of the People of the Q: Who prosecutes criminal actions?
Philippines. The action may be prosecuted in the
name of the said complainant. (Perez v. Hagonoy A:
Rural Bank, Inc., G.R. No. 126210, Mar. 9, 2000) GR: The public prosecutor shall prosecute,
direct and control all criminal actions
commenced by a complaint or information.
Q: What is the effect of death by the offended
party to the criminal action? XPN: The private prosecutor (private counsel)
may prosecute the case in the event and
A: Death of the complainant: provided that:
1. The public prosecutor has heavy work
1. Will not be sufficient justification for the schedule; or
dismissal of the information, if prior to 2. There is lack of public prosecutors;
the filing of a case in court, a complaint 3. The private prosecutor must be
was already filed by the offended party authorized in writing by the Chief
with the prosecutor (People v. Ilarde, G.R. Prosecution Office or Regional State
No. L-57288, Apr. 30, 1984) Prosecutor; and
219
4. Such will be subject to the court’s 3. Prosecution’s stand to maintain

approval. prosecution should be respected by the
court
Note: The institution of a criminal action depends 4. The court must make its own
upon the sound discretion of the prosecutor. But once independent assessment of evidence in
the case is already filed in court, the same can no granting or dismissing motion to dismiss.
longer be withdrawn or dismissed without the Otherwise, the judgment is void.
tribunal’s approval (Herrera, Vol. IV, p. 79, 2007 ed.).
Should the prosecutor find it proper to conduct a Q: Who shall review the decisions of the
reinvestigation of the case at such stage, the prosecutor?
permission of the court must be secured. (Republic v.
Judge Sunga, G.R. No. 38634, June 20, 1988).
A:
1. The Secretary of Justice who exercises
Q: Are private prosecutors allowed to intervene in
supervision and control over his actions
the prosecution of the offenses?
and who may sustain, modify or set aside
his resolution on the matter; or
A: Yes, however such intervention may be allowed
if the offended party: 2. In appropriate cases, by the courts when
1. Waives the civil action; he acts with grave abuse of discretion
2. Reserves the right to institute it amounting to lack of jurisdiction (Herrera,
properly; or Vol. IV, p. 75, 2007 ed.).
3. Institutes the civil action prior
to the criminal action. Q: May a prosecutor be compelled by mandamus
to file a complaint regarding a complaint filed
Q: How long will the authority of the private which he previously dismissed for lack of merit
prosecutor last? after preliminary investigation?
A: The authority of the private prosecutor shall A: No. This is because the determination of
continue until the end of the trial unless the probable cause is within the discretion of the
authority is revoked or withdrawn (Sec. 5). prosecutor. The remedy is an appeal to the
Secretary of Justice.
Q: What are the matters within the control and
supervision of the prosecutor? 5. SUFFICIENCY OF COMPLAINT OR INFORMATION
A:
1. What case to file Q: Define complaint.
2. Whom to prosecute
3. Manner of prosecution A: Complaint is a sworn written statement charging
4. Right to withdraw information before a person with an offense, subscribed by the
arraignment even without notice and offended party, any peace officer, or other public
hearing officer charged with the enforcement of the law
violated (Sec. 3).
Q: What are the matters within the control of the
Court after the case is filed? Note: The complaint contemplated under Sec. 3 Rule
110 is different from the complaint filed with the
Prosecutor’s office. It refers to the one filed in court
A:
for the commencement of the criminal prosecution.
1. Suspension of arraignment
2. Reinvestigation
3. Prosecution by the fiscal Q: Define information.
4. Dismissal of the case
5. Downgrading of offense or dropping of A: Information is an accusation in writing charging a
accused even before plea person with an offense, subscribed by the
prosecutor and filed with the court (Sec. 4, Rule
Q: What are the limitations of control by the 110).
Court?
Q: Distinguish information from complaint.
A:
Information Complaint
1. Prosecution is entitled to notice of
Accusation must be in It is a sworn written
hearing
writing. It requires no statement.
2. Court must await for petition for review
oath. This is because the

CRIMINAL PROCEDURE
prosecutor filing the Note: In case of variance between the complaint filed
information is acting by the offended party and the information in crimes
under oath of his office against chastity, the complaint controls.
(Estudillo v. Baloma, 426
SCRA 83) An Information not properly signed cannot be cured by
Subscribed by the Subscribed by silence, acquiescence or even by express consent.
prosecutor (Sec. 4)
a. The offended The non-inclusion of some of the names of the
party; eyewitnesses in the information does not preclude the
b. Any peace prosecution from presenting them during trial. (People
officer; v. Dela Cruz, G.R. No. 128362, Jan. 16,2001)
c. Other public
officer charged Q: What is the rule in determining the name of the
with the accused?
enforcement of
the law violated A: Section 7 of Rule 110 establishes the following
(Sec. 3) rules in designating the name of the accused:
Note: However, both are filed in the name of the 1. The complaint or information must state
People of the Philippines against all persons who the name and surname of the accused or
appear to be responsible for the offense involved (Sec. any appellation or nickname by which he
2, Rule 110). has been or is known.
2. If his name cannot be ascertained, he
Q: Why should the complaint or information be in must be described under a fictitious
the name of the People of the Philippines? name. A description of the accused under
a fictitious name must be accompanied by
A: Criminal actions must be commenced in the a statement that his true name is
name of the People because a crime is an outrage unknown.
against the peace and security of the people at 3. If later his true name is disclosed by him
large, so must its vindication be in the name of the of becomes known in some other
People. However, if the action is instituted in the manner, his true name shall be inserted in
name of the offended party or of a particular city, the complaint or information and in the
the defect is merely of form and may be cured at records of the case.
any stage of the trial.
Q: is the mistake in the name of the accused
Q: What is the form of a valid complaint or equivalent to a mistake in his identity?
information?
A: No. A mistake in the name of the accused is not
A: The complaint or information shall be: equivalent, and does not necessarily amount to, a
1. In writing; mistake in the identity of the accused especially
2. In the name of the People of the when sufficient evidence is adduced to show that
Philippines; and the accused us pointed to as one of the
3. Against all persons responsible for the perpetrators of the crime (People v. Amodia GR No.
offense involved (Sec. 2). 173791).
Q: When is a complaint or information sufficient? Q: What is the rule regarding the name of the
offended party?
A: It is sufficient if it states the:
1. Name of the accused; A: The complaint or information must state the
2. Designation of the offense given by the name and surname of the persons against whom or
statue; against whose property the offense was committed
3. Acts or omissions complained of as or any appellation or nickname by which such
constituting the offense; person has been or is known and if there is no
4. Name of the offended party; better way of identifying him, he must be described
5. Approximate date of the commission of under a fictitious name.
the offense; and
6. Place where the offense was committed 1. In crimes against property, if the name of
(Sec. 6). the offended party is unknown, the
property must be described with such
221
particularity as to properly identify the gives no designation to the offense, then

particular offense charged. reference must instead be made to the
2. If the true name of the offended party is section or subsection punishing it (Sec. 8)
thereafter disclosed or ascertained, the 2. Included in the complete designation of
court must cause such true name to be the offense is an averment of the acts or
inserted in the complaint or information omissions constituting the offense (Sec. 8)
in record. 3. The present rule also provides for a
3. If the offended party is a juridical person, mandatory requirement, that the
it is sufficient to state its name, or any complaint or information must specify the
name or designation by which it is known qualifying and aggravating circumstances
or may be identified, without need of of the offense (Sec. 8)
averring that it is a juridical person (Sec.
12). Q: Must the qualifying and aggravating
circumstances be stated?
Q: Must the complaint or information state with
particularity the date of the commission of the A: Yes, it is required by Sec. 8 of Rule 110 that the
offense? complaint or information, in designating the
offense, shall specify the qualifying and aggravating
A: circumstances. A statement of the qualifying and
GR: It is not required. It suffices that the aggravating circumstances is considered as a part of
allegation approximates or be as near the actual the cause of accusation. It must be stated in an
date when the offense was committed (Sec. 11). ordinary and concise language (Sec. 9)
XPNs: Note: The qualifying and aggravating circumstances

1. If the date of the commission of the must be specified in the information. They must not
offense constitutes an essential only be proven but they must also be alleged,
element of the offense (e.g. otherwise, they should not be considered (Catiis v. CA,
infanticide, abortion, bigamy) (Sec. G.R. 153979, February 9, 2006).
11).
2. When the dates are essential to the Q: Do allegations prevail over designation of the
defense of alibi (People v. offense in the information?
Valdesancho, G.R. No. 137051-52, A: Allegations prevail over designation of the
May 30, 2001). offense in the information. It is not the designation
of the offense in the complaint or information that
Note: The remedy against an indictment that fails to is controlling (People vs. Samillano, 56 SCRA 573);
allege the time of commission of the offense with the facts alleged therein and not its title determine
sufficient definiteness is a motion for bill of particulars the nature of the crime (People vs. Magdowa, 73
under Sec. 10, Rule 116; the failure to move for
Phil. 512).
specification or quashal of the information on any of
the grounds provided for in the Rules deprives the Q: May the accused be convicted of a crime more
accused of the right to object to evidence which could serious than that named in the title of the
be lawfully introduced and admitted under an information?
information of more or less general terms but which
sufficiently charges the accused with a definite crime. A: The accused may be convicted of a crime more
Besides, the exact date of the commission of the crime serious than that named in the title or preliminary
is not an essential element of the crime (People v. part if such crime is covered by the facts alleged in
Elpedes, G.R. Nos. 137106-07, Jan. 31, 2001). the body of the information and its commission is
established by evidence (Buhat vs. Court of Appeals,
6. DESIGNATION OF OFFENSE 265 SCRA 701).
Note: Limitation on the rule that an accused may be
Q: What is the rule with regard to the designation
convicted of a crime which is more serious than that
of the offense? named in the title so long as the facts alleged the more
serious offense.
A: In designating the offense, the following rules
must be observed: An accused could not be convicted under one act
1. The designation of the offense requires, when he is charged with a violation of another if the
as a rule, that the name given to the change from one statute to the other involves:
offense by statute must be stated in the 1. A change in the theory of the trial;
2. Requires of the defendant a different
complaint or information. If the statute
defense; or

CRIMINAL PROCEDURE
3. Surprises the accused in any way (U.S. vs. Note: Where what is alleged in the information is a
Panlilio, 28 Phil. 603) complex crime and the evidence fails to support the
charge as to one of the component offenses, the
7. CAUSE OF ACCUSATION defendant can be convicted of the offense proven.
Q: What is the purpose of designating the cause of Q: What must be alleged if the crime is
accusation? “committed in relation to his office?”
A: A: Mere allegation in the information that the

1. To enable the court to pronounce proper offense was committed by the accused public
judgment; officer in relation to his office is not sufficient. The
2. To furnish the accused with such a phrase is merely “a conclusion of law”, not a factual
description of the charge as to enable him averment that would show close intimacy between
to make a defense; the offense charged and the discharge of the
3. As a protection against further accused’s official duties. What is controlling is the
prosecution for the same cause specific actual allegations in the information
(Lacson v. Executive Secretary, G.R. No. 128006,
Q: What is the rule with respect to the cause of Jan. 20, 1999).
accusation?
Q: When is an offense deemed committed in
A: In informing the accused of the cause of relation to public office?
accusation against him, it is not necessary to
employ the words used in the statute alleged to A: An offense is deemed committed in relation to
have been violated. It is sufficient for the complaint public office when the “office” is a constituent
or information to use ordinary and concise element of the offense. The test is whether the
language sufficient to enable a person of common offense cannot exist without the office (Crisostomo
understanding to know the following: v. Sandiganbayan, G.R. No. 152398, Apr. 14, 2005).
1. The offense being charged Q: What is the rule regarding the allegation as to
2. The acts or omissions complained of as the place of the commission of the offense?
constituting the offense; and
3. The qualifying and aggravating A:
circumstances (Sec. 9, Rule 110) GR: The complaint or information is sufficient if
it appears from the allegation that the offense
Q: What is the rule regarding negative averments? was committed or some of its essential
ingredients occurred some place, within the
A: territorial jurisdiction of the court.
GR: Where the statute alleged to have been
violated prohibits generally acts therein defined XPN: When the place of commission is an
and is intended to apply to all persons essential element of the offense, the place of
indiscriminately, but prescribes certain the commission must be alleged with
limitation or exceptions from its violation, the particularity (e.g. trespass to dwelling,
complaint or information is sufficient if it alleges destructive arson, robbery in an inhabited
facts which the offender did as constituting a house) (Sec. 10, Rule 110).
violation of law, without explicitly negating the
exception, as the exception is a matter of right 8. DUPLICITY OF OFFENSES; EXCEPTION
which the accused has to prove.
Q: What does duplicity of offenses means?
XPN: Where the statute alleged to have been
violated applies only to specific classes of A: Duplicity of Offense in an information or
persons and special conditions and the complaint means the joinder of two or more
exemptions from its violations are incorporated SEPARATE and DISTINCT or DIFFERENT offenses in
in the language defining the crime that the one and the same information or complaint.
ingredients of the offense cannot be accurately
and clearly set forth if the exemption is omitted, Q: What is the “duplicity rule”?
then the indictment must show that the
accused does not fall within the exemptions A:
(Herrera, Vol. IV, p. 130, 2007 ed.). GR: A complaint or information must charge
only one offense.
223
XPNs: Q: What constitutes formal amendment?

1. Complex crimes;
2. Special complex crimes; A: Where:
3. Continuous crimes or delicto 1. it neither affects nor alters the nature of
continuado; the offense charged; or
4. Crimes susceptible of being 2. the charge does not deprive the accused
committed in various modes; of a fair opportunity to present his
5. Crimes of which another defense; or
offenses is an ingredient 3. It does not involve a change in the basic
theory of the prosecution.
Q: What is the remedy in case of duplicity of
offense? Q: When is there an amendment in substance?
A: Should there be duplicity of offense in the A: There is an amendment in substance where it

information unless a single punishment for various covers matters involving the recital of facts
offenses is prescribed, the accused must move for constituting the offense charged and determinative
the quashal of the same before arraignment (Sec. 3, of the jurisdiction of the court. (Almeda v. Villaluz,
Rule 117). Otherwise, he is deemed to have waived GR No. L- 31665, August 6, 1975)
the objection and may be found guilty of as many
offenses as those charged and proved during the Q: What are the kinds of amendment?
trial (Sec. 3, Rule 120).
RATIO: The State should not heap upon the A:
defendant two or more charges which might 1. BEFORE THE PLEA
confuse him in his defense. GR: any amendment formal or substantial, before
the accused enters his plea may be done with leave
Q: Is Splitting of case allowed? of court
XPN: any amendment before plea which
A: NO. A defendant should not be harassed with downgrades the nature of the offense charged in or
various prosecution based upon the same act by excludes any accused form the complaint or
splitting the same into various charges, all information can be made only:
emanating from the same law violated when the a. Upon motion of the prosecutor;
prosecution could easily and well embody them in a b. With notice to the offended party; and
single information (People v. Silva, 4 SCRA 95) c. With LEAVE of COURT
Q: What is the Principle of Absorption? 2. AFTER THE PLEA- covers only formal
amendments provided:
A: Acts committed in furtherance of rebellion a. Leave of court is obtained;
though crimes in themselves are deemed absorbed b. Such amendment is not prejudicial to
in the single crime of rebellion. The test is whether the rights of the accused.
or not the act was done in furtherance of a political
end. The political motive of the act should be EXCEPT when a fact supervenes which
conclusively demonstrated (Enrile v. Salazar GR NO changes the nature of the crime charged
92163, June 5, 1990) in the information or upgrades it to a
higher crime, in which case, there is a
9. AMENDMENT OR SUBSTITUTION OF need for another arraignment of the
COMPLAINT OR INFORMATION accused under the amended information.
Note: Section 14 applies only to original case and not Q: What steps should be taken by the prosecution
to appealed case. so that amended information which downgrades
the nature of the offense may be validly made?
Q: What may be amended? Why?
A: Only valid information may be amended. An A: The prosecution should file a motion for leave of
information filed before the effectivity of the law court with notice to the offended party. This is for
punishing the offense may not be amended after the protection of the interest of the offended party
the law had come into effect (Herrera, Vol. IV, p. and to prevent possible abuse by the prosecution.
162, 2007 ed.).

CRIMINAL PROCEDURE
Q: What is the test in determining whether the Amendment before the It must be with leave of
right of the accused is prejudiced by the plea is entered can be court as the original
amendment? effected without leave of information has to be
court. dismissed.
A: It is when the defense of the accused under the An amendment as to form Substitution of the
complaint or information as it originally stood, will not require another information entails
would no longer be available after the amendment preliminary investigation another preliminary
is made, and when any evidence the accused might and retaking of plea of the investigation and plea to
accused. the new information.
have, would be inapplicable to the complaint or
An amended information
information as amended (People v. Montenegro
refers to the same offense
G.R. No. 45772, Mar. 25, 1988).
charged in the original
information or to an
Q: Can the prosecutor amend the information Requires or presupposes
offense which necessarily
which changes the nature of the crime after the that the new
includes or is necessarily
arraignment? information involves a
included in the original
different offense which
charge, hence substantial
A: does not include or is
amendments to the
GR: The prosecutor can no longer amend the not necessarily included
information after the plea
in the original charge;
information after arraignment as it would has been taken cannot be
hence the accused
prejudice the substantial rights of the accused. made over the objection
cannot claim double
of the accused, for if the
jeopardy.
XPN: When a fact supervenes which changes the original would be
nature of the crime charged in the information withdrawn, the accused
or upgrades it to a higher crime, the prosecutor, could invoke double
with leave of court, may amend the information jeopardy.
to allege such supervening fact and upgrade the
crime charged to the higher crime brought VARIANCE BETWEEN INDICTMENT AND PROOF
about by such supervening fact. (Situations Contemplated)
Q: When is substitution proper? 1. When the offense proved is less serious

than, and is necessarily included in, the
A: If it appears any time before judgment that a offense charged, in which case the
mistake has been made in charging the proper defendant shall be convicted of the
offense, the court shall dismiss the original offense proved.
complaint or information upon the filing of a new 2. When the offense proved is more serious
one charging the proper offense, provided the than and includes the offense charged, in
accused shall not be placed in double jeopardy (Sec. which case the defendant shall be
14, Rule 110). convicted of the offense charged.
3. When the offense proved is neither
Q: What are the limitations to the rule on included in, nor does it include, the
substitution? offense charged and is different
therefrom, in which case the court should
A: dismiss the action and order the filing of a
1. No judgment has yet been rendered; new information charging the proper
2. The accused cannot be convicted of the offense.
offense charged or of any other offense Note: The third situation set forth above is substitution
necessarily included therein; and of information under Section 14, Rule 110.
3. The accused would not be placed in 10. VENUE OF CRIMINAL ACTIONS
double jeopardy (Herrera, Vol. IV, p. 176,
2007 ed.). Q: Where should a criminal action be instituted?
Q: Distinguish amendment from substitution A:
A: GR: Subject to existing laws, criminal action

Amendment Substitution shall be instituted and tried in the court of the
Involves substantial municipality or territory where the offense was
May involve either formal
change from the original committed or any of its essential ingredients
or substantial changes
charge occurred (Sec. 15, Rule 110).
225
XPNs: where the civil action for the recovery of civil

1. An offense was committed on a railroad liability is instituted in the criminal action pursuant
train, in an aircraft, or in any other public to Rule 111.
or private vehicle in the course of trip –
XPNs:
the criminal action may be instituted and
tried in the court of any municipality or 1. Where from the nature of the crime and
territory where such train, aircraft or the law defining and punishing it, NO civil
other vehicle passed during such trip, liability arises in favor of the offended
including the place of departure and party; and
arrival; 2. Where the offended party has waived his
2. Where the offense is committed on board right to civil indemnity OR has expressly
a vessel on its voyage – the criminal reserved his right to institute a civil action
action may be instituted and tried in the OR has already instituted said action.
proper court of the first port of entry or 3. Where the offended party has expressly
of any municipality or territory through reserved his right to institute a separate
which the vessel passed during such civil action; OR
voyage subject to the generally accepted 4. Where the offended party has already
principles of international law; instituted said action
3. Felonies under Art. 2 of the RPC – shall be
cognizable by the proper court where the Q: What is the remedy of the offended party in
criminal action was first filed (pars. b, c case of dismissal?
and d, Sec. 15);
4. Continuous or transitory crimes – such
offenses may be tried by the court of any A: Where the prosecutor sought the dismissal of
jurisdiction wherever the offender may be the criminal action or refused to institute the
found, but the complainant should allege corresponding action or to proceed with the
that the offense was committed within prosecution of the case, the offended party may
the jurisdiction of the court (Herrera, Vol.
IV, p. 184, 2007 ed.). C. PROSECUTION OF CIVIL ACTION
5. Piracy – the venue of piracy, unlike all
other crimes, has no territorial limits. It is 1. RULE ON IMPLIED INSTITUTION OF CIVIL ACTION
triable anywhere; WITH CRIMINAL ACTION
6. Libel – the action may be instituted at the
election of the offended or suing party in Q: Does the institution of a criminal action include
the municipality or city where: the civil action as well?
a. the libellous article is printed and
first published; A:
b. If one of the offended parties is a GR: When a criminal action is instituted, the
private individual, where said private civil action for the recovery of civil liability
individual actually resides at the time arising from the offense shall be deemed
of the commission of the offense; instituted with the criminal action (Section 1a,
c. If the offended party is a public Rule 111)
official, where the latter holds
office at the time of the XPNs: When the offended party:
commission of the offense. 1. WAIVES the civil action;
7. B.P. 22 cases – the criminal action shall be 2. RESERVES his right to institute a separate
filed at the place where the check was civil action; or
dishonored or issued. In case of crossed 3. INSTITUTES A CIVIL ACTION PRIOR to the
check, the place of the depositary or the criminal action (Sec. 1, Rule 111).
collecting bank.
PURPOSE: To prevent double recovery (Yakult
11. INTERVENTION OF OFFENDED PARTY Philippines v. CA, GR No. 91856 October 5, 1990)
Q: What is the rule on intervention of the
Q: Whatcivil actions are not deemed impliedly
offended party in the criminal action?
instituted in the criminal action?
A:
GR: Offended party has the right to intervene by A: Those which are:
counsel in the prosecution of the criminal action,

CRIMINAL PROCEDURE
1. Arising from breach of contract (Herrera, 2. A claim arising from an offense which is
Vol. IV, p. 217, 2007 ed.); cognizable by the Sandiganbayan(Herrera,
2. Independent civil actions or those based Vol. IV, p. 231, 2007 ed.); and
on Arts. 31, 32, and 33 of the New Civil 3. Tax cases.
Code; and
3. Based on Art. 2176 of the New Civil Code Q: Can the offended party in a criminal case appeal
or quasi-delict(Herrera, Vol. IV, p. 216, the civil aspect despite the acquittal of the
2007 ed.). accused?
NOTE: A:In case the judgment is of acquittal, it shall state

1. The failure to reserve the right to file the whether the evidence of the prosecution absolutely
enumerated actions does not amount to a failed to prove the guilt of the accused or merely
waiver to institute a separate civil action failed to prove his guilt beyond reasonable doubt.
(Herrera, Vol. IV, p. 217, 2007 ed.). In either case, the judgment shall determine if the
2. The appearance of the private prosecutor act or omission from which the civil liability might
(private counsel) does not amount to a arise did not exist. (Section 2, Rule 120)
waiver of the civil action (Herrera, Vol. IV, p.
226, 2007 ed.). Q: May the offended party compromise the civil
3. They shall proceed independently of the aspect of a crime?
criminal action and require only a
preponderance of evidence (Secs. 1 and 3)
A: Yes, provided it must be entered before or
during the litigation, and not after final judgment
Q: When should the reservation to file a separate
civil action be made? 2. WHEN CIVIL ACTION MAY PROCEED
INDEPENDENTLY
A:
1. Before the prosecution starts to present Q: When may civil action proceed independently
its evidence; and of the criminal action?
2. Under circumstances affording the
offended party a reasonable opportunity A: The institution of an independent civil action
to make such reservation (Sec. 1 Rule based on Arts. 32 33, 34 and 2176 of the Civil Code
111). against the offender may proceed independently of
the criminal case at the same time without the
Q: Should the reservation to file a separate action suspension of either proceeding (Sec. 3 Rule 111).
be express?
Note: It requires only a preponderance of evidence
A: No, jurisprudence instructs that the reservation and the offended party is entitled only to the bigger
may not be necessarily express but may be implied, award when the awards in the cases vary.
which may be inferred not only from the acts of the
offended party but also from acts other than those Recovery of civil liability under Arts. 32, 33, 34 and
of the latter (Herrera, Vol. IV, p. 228, 2007 ed.). 2176 of the Civil Code may be prosecuted separately
even without reservation (DMPI Employees Credit
Note: Failure of the court to pronounce judgment as to Cooperative v. Velez, G.R. No. 129282, Nov. 29, 2001).
the civil liability amounts to the reservation of the right
to a separate civil action (Herrera, Vol. IV, p. 228, 2007 Q: Is the consolidation of civil action and criminal
ed.). action arising from the same offense allowed?
Q: What is the effect of reserving the right to file a A: Yes. Before judgment on the merit is rendered in
separate civil action? the civil action, the same may, upon motion of the
offended party, be consolidated with the criminal
A: The prescriptive period of the civil action that action in the court trying the criminal action (Sec.
was reserved shall be tolled (Sec. 2 Rule 111). 2Rule 111).
Q: What are the instances wherein the reservation Note: A separate civil action for collection of sum of
to file a separate civil action shall not be allowed? money cannot be consolidated with cases pending
before the Sandiganbayan for the latter has no
jurisdiction over collection cases (Herrera, Vol. IV, p.
A:
231, 2007 ed.).
1. Criminal action for violation of B.P. 22
[Sec. 1, Rule 111 (b)];
227
Q: What is the effect of the consolidation of the 3. Civil obligation not based on the criminal
civil and criminal actions with regard to the offense (Herrera, Vol. IV, p. 249, 2007 ed.).
evidence in each case?
4. EFFECT OF DEATH OF THE ACCUSED OR CONVICT
A: In cases where the consolidation is given due ON CIVIL ACTION
course, the evidence presented and admitted in the
civil case shall be deemed automatically reproduced Q: How does the death of the accused affect the
in the criminal action without prejudice to civil aspect of the case?
admission of additional evidence and right to cross
examination (Sec. 2). A: If the accused died:
1. After arraignment and during the
3. WHEN SEPARATE CIVIL ACTION IS SUSPENDED pendency of the criminal action
GR: The civil liability of the accused based
Q: When is a separate civil action suspended? on the crime is extinguished.
A: XPN:
1. After the filing of the criminal action, the a. Independent civil action based on
civil action which has been reserved Arts. 32 33, 34 and 2176 of the Civil
cannot be instituted until final judgment Code; and
has been rendered in the criminal action b. Civil liability predicated on other
(Sec. 2).; sources of obligations, i.e. law,
2. If the civil action is instituted before the contract, and quasi-contract, which
filing of the criminal action and the is subsequently instituted;
criminal action is subsequently
commenced, the pending civil action shall 2. Before arraignment – the offended party
be suspended until final judgment in the may file the civil action against the estate
criminal action has been rendered. of the deceased (Sec. 4).
XPNs: 3. Pending appeal

1. In cases of independent civil actions a. Civil liability arising from the crime is
based on Arts. 32, 33, 34 and 2176 of the extinguished
Civil Code; b. Civil liability predicated from another
2. In cases where the civil action presents a source survives i.e. civil liability
prejudicial question; and arising from law, contracts, quasi-
3. In cases where the civil action is contract and quasi-delict.
consolidated with the criminal action; and
4. Where the civil action is not one intended Note:
to enforce the civil liability arising from 1. In nos. 1 and 3(b), the civil action may be
the offense. continued against the estate or legal
representative of the accused after proper
Q: Does the extinction of the penal action carry substitution, as the case may be (Sec. 4).
with it the extinction of the civil action? 2. Where the civil liability survives, it may be
pursued by the filing of a separate civil
A: action unless otherwise waived, reserved or
instituted prior to the institution of the
GR: The extinction of the penal action does not
criminal action (Herrera, Vol. IV, p. 257,
extinguish the civil action.
2007 ed.).
XPN: When there is a finding in a final judgment
Q: What is the effect of the death of the accused
in the criminal action that the act or omission
after final appeal?
from which the civil liability might arise did not
exist (Sec. 2).
A: Pecuniary liabilities of the accused are not
Note: The civil action that is extinguished refers accused are not extinguished. Claims shall be filed
exclusively to civil liability arising from the crime and against the estate of the accused (Rule 86).
does not include civil actions:
NOTE: However, the independent civil action instituted
1. Based on quasi-delict; under Section 3 of this Rule or which thereafter is
2. Based on Arts. 32, 33 and 34 of the NCC instituted to enforce liability arising from other sources
(independent civil actions); or of obligation may be continued against the estate or

CRIMINAL PROCEDURE
legal representative if the accused after proper same criminal action at any time before the
substitution, or against said estate, as the case may be. prosecution rests.
5. PREJUDICIAL QUESTION Q: Where should the petition for suspension by

reason of prejudicial question be filed?
Q: What is a prejudicial question?
A:
A: Prejudicial question is one which arises in a case, 1. Office of the prosecutor; or
the resolution of which is a logical antecedent of 2. Court where the criminal action has been
the issue involved therein and the cognizance of filed for trial at any time before the
which pertains to another tribunal prosecution rests (Sec. 6).
Q: What are the elements of a prejudicial

question? Q: Give an example of a prejudicial question.
A:
A:
1. The civil action must be instituted prior to a. A question of ownership in a pending civil
the criminal action; case is a prejudicial question justifying the
2. The civil action involves an issue similar or suspension of the criminal case for
intimately related to the issue raised in violation of the Anti-Squatting Law (Apa v.
the subsequent criminal action; and Fernandez, G.R. No. 112318, Mar. 20,
3. The resolution of such issue determines 1995).
whether or not the criminal action may b. Civil action involving title to property is
proceed (Sec. 7). prejudicial to criminal action for damages
to said property (Herrera, Vol. IV, p. 265,
Note: For the principle of prejudicial question to apply, 2007 ed.).
it is essential that there be two cases involved,
invariably a civil case and a criminal case. If the two Note: For the principle of prejudicial question to apply,
cases are both civil or if they are both criminal, the it is essential that there be two cases involved
principle does not apply. invariably a civil case and a criminal case. If the two
cases are both civil or if they are both criminal, the
The law limits a prejudicial question to a previously principle finds no application.
instituted civil action not to a subsequent one.
The law limits a prejudicial question to a PREVIOUSLY
Q: When may prejudicial question be raised? INSTITUTED civil action not to a subsequent one.
A: Q: Give examples which are not considered

prejudicial questions.
1. The prejudicial question may be raised during the
preliminary investigation of the offense or in court A:
before the prosecution rests its case. 1. Where the outcome of the civil case is not
determinative of the guilt or innocence of
2. The suspension of the criminal case due to a the respondent in the criminal case
prejudicial question is only a procedural matter, (People v. Delizo, G.R. No. 141624, Aug.
and is subject to a waiver by virtue of prior acts of 17, 2004)e.g. award of damages in favor
the accused. of the accused;
2. A civil action instituted to resolve whether
3. There is no prejudicial question where one case is
the designation of certain persons where
administrative and the other is civil.
in accordance with law is not a prejudicial
question in a criminal case for violation of
Note: A prejudicial question is based on a fact distinct
and separate from the crime but so intimately
the anti-graft law (Tuanda v.
connected with it that it determines the guilt or Sandiganbayan, G.R. No. 110544, Oct. 17,
innocence of the accused. 1995); or
3. A civil action for replevin is not prejudicial
Q: When do you plead a prejudicial question? to theft (Ramirez v. Jimenez, 1 CA rep.
143) (Herrera, Vol. IV, p. 270, 2007 ed.).
A: When the criminal action has been filed in court 4. An action for declaration of nullity of a
for trial, the petition to suspend shall be filed in the second marriage is not a prejudicial
question to the criminal prosecution of
229
bigamy (Beltran v. People, G.R. No. civil action is made (Roa v. Dela Cruz, G.R. No. L-
137567, June 26, 2000). 13134, Feb. 13, 1960).
Note: The plain reading of the of law (Art. Note: In an appeal of a criminal case the appellate
349, RPC) would indicate that the provision court may impose additional damages or increase or
penalizes the mere act of contracting a decrease the amount of damages upon the accused-
second or subsequent marriage during the appellant. HOWEVER, additional penalties CANNOT be
subsistence of a valid marriage (Herrera, imposed upon a co- accused who DID NOT APPEAL,
Vol. IV, p. 269, 2007 ed.). BUT modifications of the judgment BENEFICIAL to him
are considered in his favor.
6. RULE ON FILING FEES IN CIVIL ACTION DEEMED
INSTITUTED WITH THE CRIMINAL ACTION Q: What is the effect of the failure to plead
damages in the complaint or information?
Q: What are the rules regarding filing fees of civil
action deemed instituted with the criminal action? A: The offender is still liable and the offended party
has the right to prove and claim for them in the
A: criminal case, unless a waiver or reservation of the
1. Actual damages civil action is made (Roa v. Dela Cruz, G.R. No. L-
GR: No filing fee is required. 13134, Feb. 13, 1960).
XPN: B.P. 22 cases, wherein the amount Q: May the accused file counterclaims, cross-
of the filing fees shall be equivalent to the claims or third party complaints in a criminal
amount of the check involved. proceeding?
2. Liquidated, moral, nominal, temperate or A: No. Counterclaims, cross claims, third party
exemplary damages – The filing fee shall complaints are no longer allowed in a criminal
be based on the amount alleged in the proceeding. Any claim which could have been the
complaint or information (Sec. 1). subject thereof may be litigated in a separate civil
action.
Note: If the amount of the damages claimed is not
specifically alleged in the complaint or information, Reasons:
but the court subsequently awards such, the filing fees 1. The counterclaim of the accused will
based on the amount awarded shall constitute a first unnecessarily complicate and confuse the criminal
lien on the judgment (Sec. 1Rule 111). proceedings;
Q: What is the extent of damages that may be 2. The trial court should confine itself to the
awarded in civil liability arising from a crime? criminal aspect and the possible civil liability of the
accused arising out of the crime.
A:
1. Actual damages e.g. loss of earning D. PRELIMINARY INVESTIGATION
capacity;
2. Moral damages; Note: This rule has been partially amended by AM 05-
3. Exemplary damages (Herrera, Vol. IV, p. 8-26. The amendments took effect on October 3, 2005.
223, 2007 ed.); The conduct of preliminary investigation has been
4. Life expectancy (People v. Villanueva, G.R. removed from judges of the first level courts.
No. 96469, Oct. 21, 1992).
Q: What is the procedure for conducting
Note: Attorney’s fees may be awarded if: preliminary investigation?
1. Exemplary damages is awarded; or A:

2. Civil action is separately instituted from the
criminal action (People v. Teehankee, Jr., Filing of the complaint accompanied by the
G.R. Nos. 111206-08, Oct. 6, 1995). affidavits and supporting documents
Q: What is the effect of the failure to plead

damages in the complaint or information?
Within 10 days after the filing, the
investigating officer shall either dismiss or
A: The offender is still liable and the offended party
has the right to prove and claim for them in the issue a subpoena
criminal case, unless a waiver or reservation of the

CRIMINAL PROCEDURE
If a subpoena is issued, respondent shall From the filing of the complaint, the
submit a counter- affidavit and other investigating officer has ten (10) days
supporting documents within 10 days from within which to decide on which of the
receipt thereof following options to take:
a. To dismiss the complaint if he

finds no ground to conduct the
Clarificatory hearing (optional). It shall be held investigation; or
within 10 days from the submission of counter b. To issue a subpoena in case he
affidavits or from the expiration of the period finds the need to continue with
of their submission. the investigation, in which case
the subpoena shall be
accompanied with the
complaint and its supporting
Resolution of the investigating prosecutor affidavits and documents (Sec.
(Section 4 and 5) 3(b))
3. Filing of counter-affidavit
1. Filing of the complaint
The respondent who received the
A complaint shall be filed before the
subpoena, the complaint, affidavits and
investigating officer. This complaint shall
other supporting documents, is not
be accompanied by
allowed to file a motion to dismiss.
a. The affidavits of the
Instead, within 10 days from receipt of
complainant;
subpoena, he is required to submit his
b. The affidavits of his witnesses;
counter-affidavit, the affidavits of his
and
witnesses and the supporting documents
c. Other supporting documents
relied upon for his defense (Sec. 3(c)Rule
that would establish probable
112)
cause (Sec. 3(a) Rule 112).
Note: The respondent is not allowed to file a
motion to dismiss. Instead, he must file a
Note: It shall contain the address of the counter-affidavit.
respondent.
Despite the subpoena, if the respondent
The affidavits that shall accompany the
does not submit his counter-affidavit
complaint shall be subscribed and sworn
within the ten-day period granted him,
to before:
the investigating officer shall resolve the
complaint based on the evidence
a. Any prosecutor;
presented by the complainant. The same
b. Before any government official
rule shall apply in case the respondent
authorized to administer oaths;
cannot be subpoenaed (Sec. 3(d) Rule
or
112).
c. In the absence or unavailability
of the abovementioned, the
GR: In preliminary investigation, a motion
affidavits may be subscribed
to dismiss is not an accepted pleading for
and sworn to before a notary
it merely alleges the innocence of the
public.
respondent without rebutting or
repudiating the evidence of the
Note: The officer or notary public before
whom the affidavits were subscribed and complainant.
sworn to must certify that he personally
examined the affiants and that he is satisfied XPN: When it contains countervailing
that they voluntarily executed and evidence or defenses and evidence which
understood their affidavits (Sec. 3(a)Rule rebuts or repudiates the charges; in which
112). case it will be treated as a counter-
affidavit.
2. Dismissal or issuance of subpoena
231
Note: If one files a motion to dismiss and he b. That there is reasonable ground
only asserts that the case should be to believe that a crime has been
dismissed, then the motion to dismiss is a committed;
mere scrap of paper. If the respondent does c. That the accused is probably
not later on submit a counter-affidavit, it guilty thereof
will constitute a waiver on his part to file a d. That the accused was informed
counter-affidavit. of the complaint and of the
evidence submitted against
4. Clarificatory hearing, if necessary him; and
e. That he was given an
Within ten days from the submission of opportunity to submit
the counter-affidavit, other affidavits and controverting evidence (Sec. 4
documents filed by the respondent, a Rule 112)
hearing may be set by the investigating
officer, only if there are facts and issues Within five days from his resolution, he
to be clarified either from a party or a shall forward the record of the case to the
witness. The parties do not have the right provincial or city prosecutor or chief state
to examine or cross-examine each other prosecutor, or to the Ombudsman or his
or the witnesses. If they have questions to deputy in cases of offenses cognizable by
ask, they shall submit the questions to the the Sandiganbayan in the exercise of its
investigating officer who shall ask the original jurisdiction. They shall act on the
questions (Sec. 3(e)) resolution within ten days from their
receipt thereof and shall immediately
Note: Parties are not allowed to cross
inform the parties of such action (Sec.
examine the witnesses during the
4Rule 112).
clarificatory proceeding, only the prosecutor
can ask questions from any of the witnesses
Q: What is the difference between preliminary
during the clarificatory proceeding to clarify
some gray areas in the affidavit or counter investigation conducted by the prosecutor and one
affidavit. However, the parties and their conducted by the judge?
lawyers are not precluded from submitting
questions to the prosecutor who may ask A: The prosecutor is not bound by the designation
such questions at his discretion. (Paderanga of the offense in the complaint. After preliminary
v. Drilon, G.R. No. 96080, Apr. 19, 1991). investigation, he may file any case as warranted by
the facts.
5. Resolution of the investigating officer
The judge cannot change the charge in the
Within ten days from the termination of complaint but must make a finding on whether or
the investigation, the investigating not the crime charged has been committed.
prosecutor shall determine whether or
not there is sufficient ground to hold the Q: Who are the officers authorized to conduct
respondent for trial (Sec. 3(f)) preliminary investigation?
A:
If the investigating officer finds cause to
hold the respondent for trial, he shall
prepare the resolution and information. 1. Provincial or city prosecutors and their
Otherwise, he shall recommend the assistants:
dismissal of the complaint (Sec. 4) 2. National and Regional State Prosecutors;
and
The information shall contain a 3. Other officers as may be authorized by
certification by the investigating officer law (COMELEC, PCGG, Ombudsman)
under oath in which he shall certify the
following: Note: Their authority to conduct preliminary
investigation shall include all crimes cognizable by the
a. That he, or as shown by the proper court in their respective territorial jurisdictions
record, an authorized officer, (Sec. 2, as amended by AM 05-8-26-SC, Oct. 3, 2005).
has personally examined the
complainant and his witnesses;

CRIMINAL PROCEDURE
Q: What is the extent of the authority of the committed and the respondent is probably guilty
Ombudsman in the conduct of preliminary thereof, and should be held for trial (Sec. 1).
investigation?
Q: What is the nature of the right of preliminary
A: The power to investigate and to prosecute investigation?
granted to the Ombudsman is plenary and
unqualified. It pertains to any act or omission of any A: It is merely inquisitorial and a means of
public officer or employee when such act or determining the persons who may be reasonably
omission appears to be illegal, unjust, improper or charged with a crime. It is not a trial of the case on
inefficient. The law does not make a distinction the merits (Herrera, Vol. IV, p. 273, 2007 ed.)
between cases cognizable by the Sandiganbayan
and those cognizable by the regular courts (Office Note: It does not place the person against whom it is
of the Ombudsman v. Breva, G.R. No. 145938, Feb. taken in jeopardy.
10, 2006).
Q: What is the difference between the preliminary
Note: This however does not include administrative investigation conducted by the prosecutor and the
cases of court personnel because the 1987 preliminary investigation conducted by the judge?
Constitution vests in the SC administrative supervision
over all courts and court personnel. A:
Q: May prosecutors conduct preliminary The preliminary investigation conducted by the

investigation of offenses falling within the original prosecutor is EXECUTIVE in nature, it is for the
jurisdiction of the Sandiganbayan? purpose of determining whether or not there exist
sufficient ground for the filing of information;
A: No, the Ombudsman has primary authority to
investigate and exclusive authority to file and The preliminary investigation conducted by the
prosecute Sandiganbayan cases (Ledesma v. CA, judge which is properly called PRELIMINARY
G.R. 161629, July 29, 2005). EXAMINATION is for the determination of probable
cause for the issuance of warrant of arrest. (P/Supt.
The Ombudsman is authorized to take over at any Cruz v. Judge Areola, A.M. No. RTJ-01-1642, March
stage, from any investigatory agency of the 6, 2002)
government, the investigation of such cases (Sec.
15, R.A. 6770). Q: Does the lack of preliminary investigation affect
the court’s jurisdiction?
Note: A prosecutor however has shared authority to
investigate and prosecute Ombudsman cases not
A: Absence of preliminary investigation does not
cognizable by the Sandiganbayan(Herrera, Vol. IV, p.
affect the jurisdiction of the court but merely the
287, 2007 ed.)
regularity of the proceedings (People v. De Asis,
Q: Who may conduct preliminary investigation of G.R. No. 105581, Dec. 7, 1993).
election cases?
Q: Is preliminary investigation considered part of
A: The Commission on Elections is vested the power the trial?
to conduct preliminary investigations; it may
A: No, it is not part of the trial of the criminal action
deputize other prosecuting arms of the government
in court. Nor is its record part of the record of the
to conduct preliminary investigation and prosecute
case in the RTC. The dismissal of the case by the
offenses (People v. Basilla, G.R. No. 83938-40, Nov.
investigator will not bar the filing of another
6, 1989).
complaint for the same offense, but if re-filed, the
1. NATURE OF THE RIGHT TO PRELIMINARY accused is entitled to another preliminary
INVESTIGATION investigation (US v. Marfori,G.R. No. 10905, Dec. 9,
1916).
Note: Rule 112 pertains to preliminary investigation
conducted by the prosecutor Q: Can the right to preliminary investigation be
waived?
Q: What is preliminary investigation?
A: Yes, by failure to invoke the right prior to or at
A: It is an inquiry or proceeding to determine least at the time of plea (People v. Gomez, G.R. No.
whether there is sufficient ground to engender a L-29590, Sept. 30, 1982).
well-founded belief that a crime has been
233
Q: What are the instances wherein the right to 2. To protect the accused from
preliminary investigation is deemed waived? inconvenience, expense and burden of
defending himself in a formal trial unless
A: It shall be deemed waived by: probability of his guilt is first ascertained
by a competent officer;
1. express waiver or by silence (Herrera, Vol. 3. To secure the innocent against hasty,
IV, p. 278, 2007 ed.); malicious, and oppressive prosecution
2. failure to invoke it during arraignment and to protect him from an open and
(People v. De Asis, G.R. No. 105581, Dec. public.accusation of a crime and anxiety
7, 1993); and of a public trial;
3. consenting to be arraigned and entering a 4. To protect the State from having to
plea of not guilty without invoking the conduct useless and expensive trial; and
right to preliminary investigation (People 5. To determine the amount of bail, if the
v. Bulosan, G.R. No. 58404, Apr. 15, 1988); offense is bailable(Herrera, Vol. IV, p. 273,
Note: 2007 ed.).
1. The waiver, whether express or implied, Q: When is preliminary investigation required to
must be in a clear and unequivocal manner
be conducted?
(Herrera, Vol. IV, p. 278, 2007 ed.)
2. The right to preliminary investigation cannot
A:
be raised for the first time on appeal (Pilapil
GR: Before the filing of a complaint or
v. Sandiganbayan, G.R. No. 101978, Apr. 7,
1993). information for an offense where the penalty
prescribed by law is imprisonment of at least 4
Q: What are the instances wherein the right to yrs., 2 months and 1 day.
preliminary investigation is not deemed waived?
XPN:
A:
1. Where an information or complaint is
1. Failure to appear before the prosecutor filed pursuant to Sec. 7, Rule 112, i.e. the
during the clarificatory hearing or when complaint or information is filed directly
summoned, when the right was invoked in court (Sec. 1);
at the start of the proceeding (Larranaga 2. For cases requiring preliminary
v. CA, G.R. No. 130644, Mar. 13, 1998); or investigation, when a person is lawfully
2. When the accused filed an application for arrested without a warrant provided that
bail and was arraigned over his objection inquest was made in accordance with
and the accused demanding that Rule 112 (Sec. 6).
preliminary investigation be conducted
(Go v. CA, G.R. No. 101837, Feb. 11, Note: Cases falling under summary procedure or
punishable with a penalty of imprisonment less than 4
1992).
yrs., 2 months and 1 day does not require preliminary
investigation. See discussion on Sec. 1, Rule 110 for
Q: What is the effect if the accused raises the issue cases directly filed in court.
of lack of preliminary investigation before entering
plea? Q: What are the rights of the respondent in a
preliminary investigation?
A: The court, instead of dismissing the information,
should conduct the preliminary investigation or A: To:
order the prosecutor to conduct it (Larranaga v. CA, 1. submit a counter affidavit;
G.R. No. 130644, Mar. 13, 1998). 2. examine the evidence submitted by the
complainant at his own expense; and
2. PURPOSES OF PRELIMINARY INVESTIGATION
3. be present during the clarificatory hearing
(Sec. 3, Rule 112).
Q: What are the purposes of conducting
Note: Object evidence need not to be furnished but is
available for examination, copying or photographing at
A:
the expense of the requesting party (Sec. 3, Rule 112).
1. For the investigating prosecutor to
determine if the crime has been
committed;

CRIMINAL PROCEDURE
Q: Who are authorized to conduct a preliminary the absence or unavailability of an inquest

investigation? prosecutor, the complaint may be filed
directly with the proper court on the basis
A: of the affidavit of the offended party or
arresting officer or person (Sec. 7)
1. Provincial or City prosecutors and their 2. The fact that a person was lawfully
assistants; arrested without a warrant does not
2. National and Regional State Prosecutors; absolutely bar him from availing of a
and preliminary investigation because before
3. Other officers as may be authorized by the complaint or information is filed, he
law (e.g.Ombudman; authorized officer may ask that a preliminary examination
deputized by COMELEC for election be conducted. However, before he is
offenses). granted the preliminary investigation
asked for by him, he must sign a waiver of
the provisions of Article 125 of the
Q: What is the effect if lack of preliminary Revised Penal Code.
investigation is raised in a proceeding pending 3. If the complaint or information has been
before the Sandiganbayan? filed without a preliminary investigation,
the accused who desires a preliminary
A: The proceeding will be held in abeyance and case investigation, may, within five days from
should be remanded to the Office of the the time he learns of its filing, ask for a
Ombudsman or the Special Prosecutor to conduct preliminary investigation (Sec. 7)
the preliminary investigation (Ong v.
Sandiganbayan, G.R. No. 126858, Sept. 26, 2005). Note: The waiver of the provisions of Article 125 does
not bar the person arrested from applying for bail and
Q: What is the effect of absence of preliminary even while the preliminary investigation is pending.
investigation?
3. WHO MAY CONDUCT DETERMINATION OF
A: It does not: EXISTENCE OF PROBABLE CAUSE
1. become a ground for a motion to quash Q. What is probable cause?
the complaint or information (Sec. 3, Rule
117); A: The existence of such facts and circumstances as
2. affect the court’s jurisdiction (People v. would excite the belief, in a reasonable mind, acting
De Asis, G.R. No. 105581, Dec. 7, 1993); on the facts within the knowledge of the
3. impair the validity of the information or prosecutor, that the person charged was guilty of
render it defective; and the crime for which he was prosecuted.
4. justify the release of the respondent or
nullify the warrant of arrest against him Q: What degree of proof is necessary to warrant
(Larranaga v. CA, G.R. No. 130644, Mar. the filing of an information or complaint in court?
13, 1998).
A: Probable cause. It need not be based on
Q: What are the instances when preliminary evidence establishing guilt beyond reasonable
investigation is not required even if the offense doubt but only such as may engender a well-
requires a preliminary investigation? founded belief that an offense has been committed
and that the accused is probably guilty thereof.
A:
Q: Who may conduct the determination of
1. If a person is arrested lawfully without a probable cause?
warrant involving an offense which
requires a preliminary investigation, i.e., A: It depends
the penalty is at least four years, two
months and one day, an information or THE FISCAL OR PROSECUTOR, if the determination
complaint may be filed against him of probable cause is for purposes of indictment;
without need for a preliminary such finding will not be disturbed by the court
investigation. If he has been arrested in a unless there is finding of grave abuse of discretion.
place where an inquest prosecutor is
available, an inquest will be conducted THE COURT, if the determination of probable cause
instead of preliminary investigation. In is for the purposes of issuance of warrant of arrest.
235
4. RESOLUTION OF INVESTIGATING PROSECUTOR either file the information without need for a new
preliminary investigation or to dismiss or move for
Q: How does the investigating prosecutor resolve its dismissal if already filed in court.
the findings after preliminary investigation?
Q: Are the findings or resolution of the
A: investigating prosecutor final?
1. If he finds probable cause to hold the respondent A: No, the resolution of the investigating prosecutor
for trial, he shall prepare a resolution and certify is merely recommendatory. No complaint or
under oath in the information that: information may be filed or dismissed by an
investigating prosecutor without the prior written
a. he or an authorized has personally authority or approval of the provincial or city
examined the complainant and his prosecutor or chief state prosecutor or the
witnesses; Ombudsman or his deputy (Sec. 4).
b. that there is reasonable ground to Q: What is the rule when the recommendation for
believe that a crime has been committed dismissal by the investigating prosecutor is
and that the accused is probably guilty disapproved?
thereof;
A: If the recommendation of the investigating
c. that the accused was informed of the prosecutor is disapproved by the provincial or city
complaint and evidences against him; prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a
d. that he was given opportunity to probable cause exists, the latter, may by himself,
submit controverting evidence file the information against the respondent, or
direct another assistant prosecutor or state
2. If he finds no probable cause, he shall prosecutor to do so without conducting another
recommend the dismissal of the complaint preliminary investigation (Sec. 4)
3. Within 5 days from his resolution, he shall Q: What is the rule when the resolution is reversed
forward the record of the case to the provincial or or modified by the Secretary of Justice?
city prosecutor of chief state Prosecutor of the
Ombudsman. They shall act on the resolution A: If upon petition by a proper party or
within 10 days from receipt and shall immediately motuproprio, the Secretary of Justice reverses or
inform the parties of such action. modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall direct
4. No complaint of information may be filed or the prosecutor concerned either to file the
dismissed by an investigating prosecutor without corresponding information without conducting
the prior written authority or approval of the another preliminary investigation, or to dismiss or
provincial or city prosecutor or chief state move for dismissal of the complaint or information
prosecutor or the Ombudsman. with notice to the parties (Sec. 4)
5. If the investigating prosecutor recommends the Q: What is the effect of the filing of a petition for
dismissal of the complaint, but his recommendation review before the DOJ if the information was
is disapproved by the provincial or city prosecutor already filed in court?
or chief state prosecutor or Ombudsman on the
ground that probable cause exists, the latter may A: Should the information be already filed in court
either: but the accused filed a petition for review of the
findings of the prosecutors with the DOJ, the court
a. by himself, file the information; or is bound to suspend the arraignment of the accused
for a period not exceeding 60 days (Sec. 11, Rule
b. direct another assistant prosecutor to
116).
file the informationwithout need for a
new preliminary investigation. Note: Under the present Rules, once a petition for
review is filed before the DOJ after the information is
6. The Secretary of Justice may, upon petition by a filed in court, only a motion for suspension of the
proper party or by itself, reverse or modify the proceedings in view of the pendency of the petition for
resolution of the provincial or city prosecutor, the review before the DOJ may be filed which must be
chief state prosecutor, or the ombudsman. In such made before arraignment. The suspension of the
a case, he shall direct the prosecutor concerned to proceedings before the court would only last for 60

CRIMINAL PROCEDURE
days reckoned from the date of the filing of the before the CA pursuant to Rule 43 (De Ocampo v.
petition for review. Sec. Of Justice, G.R. No. 147392, Jan. 25, 2006).
Q: Are there instances where a new preliminary Q: What is the remedy against the resolution of
investigation is not necessary? the Ombudsman?
A: Yes, when: A: The resolution of the Ombudsman may be

1. amendment to information is not subject of petition for review via Rule 43 before the
substantial (Villaflor v. Vivar, G.R. No. CA or a special civil action for certiorari via Rule 65
134744, Jan. 16, 2001); before the SC.
2. the court orders the filing of correct
information involving a cognate offense The resolution of the Ombudsman, if the latter
(Sy Lim v. CA, G. R. No. L-37494, Mar. acted without or in excess of jurisdiction, may be
30,1982); and nullified by a writ of certiorari(Ramiscal v.
3. if the crime originally charged is related to Sandiganbayan, G.R. Nos. 109727-28, Aug. 18,
the amended charge such that an inquiry 2006)
into one would elicit substantially the
same facts that an inquiry to another When the officer conducting a conducting a
would reveal (Orquinaza v. People, G.R. preliminary investigation, i.e. the Ombudsman, acts
No. 165596, Nov. 15, 2005; Herrera, Vol. without or in excess of authority and resolves to file
IV, p. 281, 2007 ed.) an information despite the absence of probable
cause, such may be nullified by a writ of certiorari
5. REVIEW (Mendoza-Arce v. Office of the Ombudsman, G.R.
No. 149148, Apr. 5, 2002).
Q: What is the remedy of the aggrieved party from
the resolution of the investigating prosecutor as Note: In the absence of grave abuse of discretion, the
approved by his superior? court will not interfere or pass upon the findings of the
Ombudsman to avoid its being hampered by
A: A verified petition for review within 15 days from innumerable petitions assailing the dismissal of the
the resolution or denial of the motion for investigatory proceedings conducted by the latter
(Tejano v. Ombudsman, G.R. No. 159190, June 30,
reconsideration. The Secretary of Justice may
2005).
reverse or modify the resolution.
Q: Does the SC and CA have the power to review
The Secretary of Justice may also motuproprio
reverse or modify the resolution.
A: Yes, they have the power to review the findings
The Secretary of Justice shall direct either the filing
of prosecutors in preliminary investigations (Social
of the complaint without the need for a new
Security System v. DOJ, G.R. No. 158131, Aug. 8,
preliminary investigation or move for the dismissal
2007).
of the complaint (Sec. 4).
6. WHEN WARRANT OF ARREST MAY ISSUE
Note: The Secretary of justice may review resolutions
of his subordinates in criminal cases despite the
CONSTITUTIONAL BASIS: No warrant of arrest should
information being filed in court (Community Rural
issue except upon probable cause to be determined
Bank of Guimba v. Talavera, A.M. No. RTJ-05-1909,
personally by the judge after examination under oath
Apr. 6, 2005).
or affirmation of the complainant and the witnesses he
may produce (Section 2, Article VI, 1987 Constitution)
Q: What is the remedy of an aggrieved party
against the resolution of the Secretary of Justice?
Q: What is preliminary examination?
A: Such resolution may be nullified in a petition for
A: Preliminary examination is the proceeding for
certiorari under Rule 65 on grounds of grave abuse
the determination of the existence of probable
of discretion resulting to lack or excess of
cause for the purpose of issuing a warrant of arrest.
jurisdiction (Ching v. Sec. Of Justice, G.R. No.
164317, Feb. 6, 2006). Q: What is a warrant of arrest?
Alternative Answer: A: A warrant of arrest is a legal process issued by a
The resolution of the DOJ is appealable competent authority directing the arrest of a
administratively before the Office of the President,
and the decision of the latter may be appealed
237
person or persons upon the grounds stated therein Q: Are “John Doe” warrants valid?
(Herrera, Vol. IV, p. 345, 2007 ed.).
A: Generally, John Doe warrants are void because
Q: When may a warrant of arrest be issued? they violate the constitutional provision that
requires that warrants of arrest should particularly
A: describe the person or persons to be arrested. But
By the RTC if there is sufficient description to identify the
person to be arrested, then the warrant is valid.
1. Within 10 days from the filing of the complaint or
information, the judge shall personally evaluate the Q: What are the principles governing the finding of
resolution of the prosecutor and its supporting probable cause for the issuance of a warrant of
evidence. arrest?
2. He may immediately dismiss the case if the A:

evidence fails to establish probable cause. 1. There is a distinction between the objective
of determining probable cause by the
3. If he finds probable cause, he shall issue a prosecutor and by the judge. The prosecutor
warrant of arrest or a commitment order if the determines it for the purpose of filing a
accused has already been arrested by virtue of a complaint or information, while the judge
warrant issued by the MTC judge who conducted determines it for the purpose of issuing a
the preliminary investigation or if he was arrested warrant of arrest – whether there is a
by virtue of a lawful arrest without warrant. necessity of placing him under immediate
custody in order not to frustrate the ends of
4. In case of doubt on the existence of probable justice.
cause, the judge may order the prosecutor to 2. Since their objectives are different, the judge
present additional evidencewithin 5 days from should not rely solely on the report of the
notice and the issue must be resolved within 30 prosecutor in finding probable cause to justify
days from the filing of the complaint or the issuance of a warrant of arrest. The judge
information. must decide independently and must have
supporting evidence other than the
By the MTC prosecutor’s bare report.
1. If the preliminary investigation was conducted 3. It is not required that the complete or entire
by a prosecutor, same procedure as above records of the case during the preliminary
2. If the preliminary investigation was conducted investigation be submitted to and examined
by the MTC judge and his findings are affirmed by the judge. He must have sufficient
by the prosecutor, and the corresponding supporting documents upon which to make
information is filed, he shall issue a warrant of his independent judgment.
arrest.
3. However, without waiting for the conclusion of Q: How should the complaint or information be
the investigation, he may issue a warrant of filed when the accused is lawfully arrested without
arrest if he finds after: warrant?
1. an examination in writing and under oath
of the complainant and his witnesses A: The complaint or information may be filed by a
2. in the form of searching questions and prosecutor without need for a preliminary
answers that probable cause exists AND investigation provided an inquest proceeding has
that there is a necessity of placing the been conducted in accordance with existing rules.
accused under immediate custody in In the absence of an inquest prosecutor, the
order not to frustrate the ends of justice. offended party or any peace officer may file the
complaint directly in court on the basis of the
Q: When is a warrant of arrest not necessary? affidavit of the offended party or peace officer.
A: 7. CASES NOT REQUIRING A PRELIMINARY

1. When the accused is already under INVESTIGATION
detention issued by the MTC
2. When the accused was arrested by virtue Q: What are those cases which do not require
of a lawful arrest without warrant preliminary investigation?
3. When the penalty is a fine only
A: Those offenses punishable by imprisonment of
less than 4 years, 2 months and 1 day.

CRIMINAL PROCEDURE
Q: What is the procedure if the complaint is filed Note: The waiver of the provisions of Article 125 does
with the prosecutor? not bar the person arrested from applying for bail and
even while the preliminary investigation is pending.
A: If the complaint is filed with the prosecutor
involving an offense punishable by imprisonment of 8. REMEDIES OF ACCUSED IF THERE WAS NO
less than 4 years, 2 months and 1 day, the PRELIMINARY INVESTIGATION
procedure in Rule 112 Section 3a shall be observed.
Q: If there was no preliminary investigation
Q: What is the procedure if the complaint is filed conducted, what are the remedies of the accused?
with the MTC?
A:
A: Same procedure shall be observed
1. Refuse to enter plea upon arraignment and
Note: in all other cases cognizable by the MTC or object to further proceedings upon such ground;
MCTC, the issuance of the warrant of arrest is 2. Insist on preliminary investigation;
discretionary on the part on the part of the judge. As 3. File a certiorari, if refused;
long as he is satisfied that there is no need for the 4. Raise lack of preliminary investigation as error on
necessity of placing the accused under custody, he appeal (US v. Banzuela, GR No. 10172,1915)
may issue summons instead of warrant of arrest. 5. File for Prohibition (Conde v. CFI, GR No. L-21236,
October 1, 1923
Q: What are the instances when preliminary
investigation is not required even if the offense 9. INQUEST
requires a preliminary investigation?
Q: What is the procedure for conducting inquest
A: proceeding?
1. If a person is arrested lawfully without a A:

warrant involving an offense which Receipt of the Inquest Officer of the referral
requires a preliminary investigation, i.e., documents
the penalty is at least four years, two Arrest NOT Arrest properly
months and one day, an information or properly effected effected
complaint may be filed against him
without need for a preliminary
investigation. If he has been arrested in a
Release shall be A preliminary
place where an inquest prosecutor is
recommended investigation may be
available, an inquest will be conducted
instead of preliminary investigation. In conducted if
requested
the absence or unavailability of an inquest
prosecutor, the complaint may be filed If evidence does not
directly with the proper court on the basis warrant the conduct
of the affidavit of the offended party or of a preliminary
Otherwise inquest
arresting officer or person (Sec. 7) investigation, the
proper shall be
2. The fact that a person was lawfully detained person shall
conducted
arrested without a warrant does not be released otherwise
absolutely bar him from availing of a a preliminary
investigation shall be
preliminary investigation because before
conducted. Determination of
the complaint or information is filed, he Probable Cause
may ask that a preliminary examination
be conducted. However, before he is
granted the preliminary investigation
asked for by him, he must sign a waiver of If there is probable cause, information shall be
the provisions of Article 125 of the filed; otherwise release shall be recommended.
Revised Penal Code.
3. If the complaint or information has been Q: What is an inquest?
filed without a preliminary investigation,
the accused who desires a preliminary A: It is an informal and summary investigation
investigation, may, within five days from conducted by a public prosecutor in criminal cases
the time he learns of its filing, ask for a involving persons arrested and detained without
preliminary investigation (Sec. 7) the benefit of a warrant of arrest issued by the
239
court for the purpose of determining whether or a. Punishable by imprisonment of

not said persons should remain under custody and more than 6 years even if Congress is
correspondingly be charged in court (Sec. 1, DOJ in session (People v. Jalosjos, G.R.
Circular No. 61). No. 132875-76, Feb. 3, 2000)
b. If the offense is not punishable by
Q: When should the accused arrested without a imprisonment of not more than 6
warrant ask for a preliminary investigation? years, the privilege does not apply
even if congress is not in session.
A:
2. Under the generally accepted principles
1. Before the complaint or information is of international law, sovereign and other
filed in court, anytime before the filing chiefs of state, ambassadors, ministers
provided he signs a waiver of the plenipotentiary, ministers resident, and
provision of Art. 125 of the RPC providing charges d’affaires are immune from the
for the period of detention, in the criminal jurisdiction of the country of
presence of his counsel; their assignment and are therefore
2. When the complaint or information is immune from arrest;
already filed in court, within 5 days from
the time he learns of the filing (Sec. 6). 3. The arrest of duly accredited
ambassadors, public ministers of a foreign
E. ARREST country, their duly registered domestics,
subject to the principle of reciprocity (Sec.
1. ARREST, HOW MADE 4 and 7, RA 75).
Q: What is arrest? Q: Who may issue a warrant of arrest?
A: Arrest is the taking of a person into custody in A: The 1987 Constitution speaks of “judges” which
order that he may be bound to answer for the means judges of all levels. This power may not be
commission of an offense. limited much less withdrawn by Congress. The
power to determine the existence of probable
Q: How is arrest made? cause is a function of the judge and such power lies
in the judge alone (People v. Inting,G.R. No. 85866,
A: It is made by an actual restraint of a person to be July 24, 1990).
arrested, or by his submission to the custody of the
person making the arrest (Sec. 2). 2. ARREST WITHOUT WARRANT, WHEN LAWFUL
Note: Arrest may be made on any day, at any time of Q: What are the instances of a valid warrantless
the day or night (Sec.6). arrest?
Q: What is warrant of arrest? A:

1. When in the presence of the arresting
A: It is a legal process issued by a competent person, the person to be arrested has
authority, directing the arrest of a person or committed, is actually committing or is
persons upon the grounds stated therein (Herrera, attempting to commit an offense (in
Vol. IV, p. 345, 2007 ed.). flagrante delicto arrest).
2. When an offense has in fact been
Q: Who are persons not subject to arrest? committed and the arresting person has
probable cause to believe based on
A: personal knowledge of facts and
1. A senator or member of the House of circumstances that the person to be
Representatives shall, in all offenses arrested has committed it (doctrine of hot
punishable by not more than 6 years pursuit).
imprisonment, be privileged from arrest 3. When the person to be arrested is a
while congress is in session (Sec. 11, Art. prisoner who has escaped from a penal
VI, 1987 Constitution); establishment or place where he is
However, the privilege of a senator or serving final judgment or temporarily
congressman will not apply when the confined while his case is pending or has
offense is: escaped while being transferred from one
confinement to another (Sec. 5).

CRIMINAL PROCEDURE
4. Where the person who has been lawfully of the Dangerous Drugs Law. The violator is caught
arrested escapes or is rescued. in flagrante delicto and the police officers
5. By the bondsmen for the purpose of conducting the operation are not only authorized
surrendering the accused. but duty-bound to apprehend the violator and to
6. Where the accused attempt to leave the search him for anything that may have been part of
country without permission of the court. or used in the commission of the crime. (People v.
Juatan, G.R. No. 104378, Aug. 20, 1996)
Q: What are the elements of hot pursuit arrest?
Q: What is required by the phrase “in his
A: presence”?
1. An offense has been committed (close
proximity between the arrest and the A: It does not necessarily require that the arresting
time of commission of the crime); officer sees the offense, but it includes cases where
2. The offense has just been committed; and the arresting officer hears the disturbance created
3. Probable cause based on personal and proceeds at once to the scene. The officer must
knowledge of facts or circumstances that have personal knowledge of offense just
the person/s to be arrested committed it committed.
(Herrera, Vol. IV, p. 418, 2007 ed.)
Q: What is meant by personal knowledge?
NOTE: the probable cause justifying a warrantless
arrest must, under the Rules, be based on personal A: It means actual belief or reasonable grounds of
knowledge of facts and circumstances on the part of suspicion that the person to be arrested is probably
the person making the arrest. guilty of the offense based on actual facts.
Q: The officers went to the scene of the crime Q: How can an arresting officer have personal
where they found a piece of wood and a concrete knowledge of facts when he was not present when
hollow block used by the killers in bludgeoning the the crime was committed?
victim to death. A neighbor of the accused who
witnessed the killing, pointed to Roberto as one of A: Personal knowledge has no reference to the
the assailants. Roberto was arrested three hours actual commission of the crime but to personal
after the killing. Is the arrest a valid warrantless knowledge of facts leading to probable cause.
arrest?
Q: What is the obligation of the arresting officer
A: Yes. Under the abovementioned circumstances, after the warrantless arrest?
since the policemen had personal knowledge of the
violent death of the victim and of facts indicating A: He must comply with the provisions of Art. 125
that Roberto and two others had killed him, they of the RPC, otherwise, he may be held criminally
could lawfully arrest Roberto without a warrant. If liable for arbitrary detention under Art. 124 of the
they had postponed his arrest until they could RPC.Jurisdiction over the person arrested must be
obtain a warrant, he would have fled the law as his transferred to the judicial authorities. Art. 125 is a
two companions did. (People v. Gerente, 219 SCRA procedural requirement in case of warrantless
756) arrest. A case must be filed in court.
Note: There is no rule on the exact proximity of the The person must be delivered to the judicial
commission of the offense to the arrest. In the authorities within the period specified in Art. 125
following instances, the Court ruled as invalid the (Delay in the delivery of detained persons to the
warrantless arrest that took place: proper judicial authorities).
1. 19 hours after the commission of the crime
of murder (People v. Manlulu, 231 SCRA 1. Light penalties – 12 hours
701) 2. Correctional penalties – 18 hours
2. One day after the crime of robbery was 3. Afflictive or capital penalties – 36 hours
committed (People v. Del Rosario, 305 SCRA
740) The accused should be brought to the prosecutor
3. Two days after a drug offense was for inquest proceedings wherein existence of
committed (People v. Kimura, 428 SCRA 51)
probable cause will be determined. Then the judge
shall issue a commitment order (order issued by the
Q: What is buy-bust operation?
judge when the person charged with a crime is
already arrested or detained) and not a warrant.
A: A form of entrapment which has been repeatedly
accepted to be a valid means of arresting violators
241
3. METHOD OF ARREST Q: What amount of force may be used in effecting

an arrest?
Q: What are the modes of effecting arrest?
A: No violence or unnecessary force shall be used in
A: making an arrest. The person arrested shall not be
1. By actual restraint of the person to be arrested; subject to a greater restraint than is necessary for
2. By his submission to the custody of the person his detention (Sec. 2).
making the arrest
NOTE: Reasonable amount of force may be used to
a. BY OFFICER WITH WARRANT effect arrest , an officer having the right to arrest an
b. BY OFFICER WITHOUT WARRANT offender may use such force as necessary to effect his
c. BY PRIVATE PERSON purpose, and to a great extent he is made the judge of
the degree of force that may be properly exerted.
Q: How may arrest be effected?
Q: May an officer break into a building or
enclosure to make an arrest? What are the
A:
Exception to the rule on
requisites?
Method of arrest
giving information
A: Yes, provided that:
Arrest by officer by virtue of a warrant (Sec. 7)
1. The person to be arrested is or reasonably
The officer shall inform believed to be in the said building;
the person to be arrested
2. The officer has announced his authority
the cause of the arrest
and the fact that the
1. When the person to be and purpose for entering therein;
arrested flees; 3. He has requested and been denied
warrant has been issued
2. When he forcibly resists admittance (Sec. 11).
for his arrest.
before the officer has an
opportunity to inform
Note: The officer need Note: A lawful arrest may be made anywhere, even on
him; and
not have the warrant in a private property or in a house. This rule is applicable
3. When the giving of such
his possession at the time both where the arrest is under a warrant, and where
information will imperil
of the arrest but must there is a valid warrantless arrest.
the arrest.
show the same after the
arrest, if the person Q: What can be confiscated from the person
arrested so requires.
arrested?
Arrest by officer without a warrant (Sec. 8)
1. when the person to be A:
arrested is engaged in the 1. Objects subject of the offense or used or
commission of an offense
intended to be used in the commission of
or is pursued immediately
the crime;
The officer shall inform its commission;
the person to be arrested 2. when he has escaped, 2. Objects which are fruits of the crime;
of his authority and the flees, or forcibly resists 3. Those which might be used by the
cause of the arrest w/out before the officer has an arrested person to commit violence or to
a warrant opportunity to so inform escape; and
him; and 4. Dangerous weapons and those which may
3. when the giving of such be used as evidence in the case.
information will imperil
the arrest.
Note: Arrest must precede the serach, the process
Arrest by a private person (Sec. 9) cannot be reversed. Nevertheless, a serach
substantially contemporaneous with an arrest can
The private person shall 1. when the person to be
inform the person to be arrested is engaged in the precede the arrest at the outset of the search. Reliable
arrested of the intention commission of an offense information alone is not sufficient to justify a
to arrest him and the or is pursued immediately warrantless arres under Sec. 5, Rule 113.
cause of the arrest. its commission;
2. when he has escaped, Q: Jose, Alberto and Romeo were charged with
Note: Private person flees, or forcibly resists murder. Upon filing of the information, the RTC
must deliver the arrested before the officer has an judge issued the warrants of arrest. Learning of
person to the nearest opportunity to so inform the issuance of the warrants, the 3 accused jointly
police station or jail, him; and filed a motion for reinvestigation and for the recall
otherwise, he may be 3. when the giving of such
of the warrants of arrest. On the date set for
held criminally liable for information will imperil
illegal detention. the arrest. hearing of their motion, none of the accused
showed up in the court for fear of being arrested.

CRIMINAL PROCEDURE
The RTC judge denied their motion. Did the RTC A: An accused who enters his plea of not guilty and
rule correctly? participates in the trial waives the illegality of the
arrest. Objection to the illegality must be raised
A: The RTC ruled correctly in denying the motion for before arraignment, otherwise it is deemed waived,
reinvestigation and recall of the warrants of arrest as the accused, in this case, has voluntarily
because the accused have not surrendered their submitted himself to the jurisdiction of the court.
persons to the court. Jurisdiction over the person of (People v. Macam, G.R. Nos. L-91011-12, Nov.
the accused can only be obtained through arrest or 24,1994)
voluntary surrender (Dimatulac v. Villon, G.R. No.
127107, Oct. 12, 1998). Q: Bogart was charged with the crime of
kidnapping for ransom. However, he was arrested
Alternative Answer: without a warrant. Bogart raised the illegality of
No. the court acquired jurisdiction over the person his arrest for the first time on appeal to the
of the accused when they filed the aforesaid Supreme Court. Is he now barred from questioning
motion and invoked the court’s authority over the the illegality of the arrest?
case, without raising the issue of jurisdiction over
their person. Their filing the motion is tantamount A: Yes. Bogart waived any irregularities relating to
to voluntary submission to the court’s jurisdiction their warrantless arrest when he failed to file a
and constitutes voluntary appearance. (2008 Bar motion to quash the Information on that ground, or
Question) to object to any irregularity in their arrest before
they were arraigned. He is now estopped from
Q: When is warrant of arrest not necessary? questioning the legality of their arrest (People v.
Ejandra, G.R. No. 134203, May 27, 2004).
A: When the:
1. Accused is already under detention; Q: How may an illegal arrest be cured?
2. Complaint or information was filed
pursuant to a valid warrantless arrest; A: Illegality of warrantless arrest maybe cured by
3. complaint or information is for an offense filing of information in court and the subsequent
penalized by fine only [Sec. 5 (c), Rule issuance by the judge of a warrant of arrest.
112];
4. Complaint or information is filed with the Q: Is an application for bail a bar to questions of
MTC and it involves an offense which illegal arrest, irregular or lack of preliminary
does not require preliminary investigation?
investigation, judge may issue summons
instead of a warrant of arrest if he is A: No, provided that he raises them before entering
satisfied that there is no necessity for his plea. The court shall resolve the matter as early
placing the accused under custody [Sec. 8 as possible, not later than the start of the trial on
(b), Rule 112]. the case (Sec. 26, Rule 114).
Q: May authorities resort to warrantless arrest in Q: May an accused who has been duly charged in
cases of rebellion? court question his detention by a petition for
habeas corpus?
A: Yes, since rebellion has been held to be a
continuing crime, authorities may resort to A: No. Once a person has been duly charged in
warrantless arrests of persons suspected of court, he may no longer question his detention by
rebellion, as provided under Sec. 5, Rule 113. petition for habeas corpus; his remedy is to quash
However, this doctrine should be applied to its the information and/or the warrant of arrest.
proper context – i.e., relating to subversive armed
organizations, such as the New People’s Army, the Q: Fred was arrested without a warrant. After
avowed purpose of which is the armed overthrow preliminary investigation, an information was filed
of the organized and established government. Only in court. He pleaded not guilty during arraignment.
in such instance should rebellion be considered a After trial on the merits, he was found guilty by
continuing crime (People v. Suzuki, G.R. No. 120670, the court. On appeal he claims that judgment was
Oct. 23, 2003). void due to his illegal arrest. As Solicitor General,
how would you refute said claim?
Q: When is an accused deemed to have waived the
illegality of his arrest? A: Any objection to the illegality of the arrest of the
accused without a warrant is deemed waived when
he pleaded not guilty at the arraignment without
243
raising the question. It is too late to complain about examination of the accused (Alimpoos v. Court of
a warrantless arrest after trial is commenced and Appeals, GR No L-27331, July 30, 1981)
completed and a judgment of conviction rendered
against the accused (People v. Cabiles, G.R. No. NOTE: Posting of bail does not bar one from
112035, Jan. 16, 1998). questioning illegal arrest (Section 26, Rule 114)
Q: What are the consequences of illegal arrests? 5. DETERMINATION OF PROBABLE CAUSE FOR
ISSUANCE OF WARRANT OF ARREST
A:
1. The documents, things or articles seized Q: Who determines probable cause for the
following the illegal arrest are issuance of warrant of arrest?
inadmissible in evidence;
2. The arresting person may be held A: The determination of probable cause for the
criminally liable for illegal arrest under warrant of arrest is made by the judge
Art. 269, RPC;
3. Arresting officer may be held civilly liable 6. DISTINGUISH PROBABLE CAUSE OF FISCAL
for the damages under Art. 32, NCC; and FROM THAT OF A JUDGE
4. He may also be held administratively
Q: Who may conduct the determination of
liable.
probable cause?
4. REQUISITES OF A VALID WARRANT OF ARREST
A:
FISCAL, for the purpose of either filing an
Q: What are the essential requisites of a Valid
information in court or dismissing the charges
Warrant of Arrest?
against the respondent, which is an executive
A: function; such finding will not be disturbed by the
1. Issued upon probable cause court unless there is finding of grave abuse of
2. Determined personally by the judge after discretion.
examination after oath of the complainant and the
witnesses he may produce THE COURT, if the determination of probable cause
3. The judge must personally evaluate the report of is for the purposes of issuance of warrant of
the prosecutor and the evidence adduced during arrest.The determination by the judge of probable
the preliminary examination (Soliven v. Makasiar cause begins only after the prosecutor has filed the
GR No L-82585,November 14, 1988) information in court and the latter’s determination
of probable cause is for the purpose of issuing an
Note: The judge is only required to personally evaluate arrest warrant against the accused, which is judicial
the report and the supporting documents submitted function (People vs. CA, 301 SCRA 475).
by the fiscal during the preliminary investigation and
on the basis thereof he may dismiss, issue warrant or Q: Distinguish the probable cause as determined
require further affidavits (People v. Inting,G.R. No.
by a fiscal from that of a judge?
85866, July 24, 1990).
A:
4. The warrant must particularly describe the
Probable Cause as Probable Cause as
person to be arrested;
determined by the determined by the
Prosecutor Judge
5. In connection with specific offense or crime
Note: A warrant of arrest has NO expiry date. It For the filing of an For the issuance of
remains valid until arrest is effected or warrant is lifted information in court warrant
(Manangan v. CFI GR No 82760 August 30,1990) Executive function Judicial function
Basis: the report and the
Q: What is the remedy for warrants improperly supporting documents
issued? submitted by the fiscal
Basis: reasonable ground to
during the preliminary
believe that a crime has
investigation and the
A: Where a warrant of arrest was improperly been committed
supporting affidavits that
issued, the proper remedy is a petition to quash it,
may be required to be
NOT a petition for habeas corpus, since the court in submitted.
the latter case may only order his release but not
enjoin the further prosecution or the preliminary Note: The determination of probable cause by the
prosecutor is for a purpose different from that which is

CRIMINAL PROCEDURE
to be made by the judge. Whether there is reasonable appearance at the trial (Almeda v. Villaluz GR No L-
ground to believe that the accused is guilty of the 31665, August 6, 1975);
offense charged and should be held for trial is what
the prosecutor passes upon. The judge, on the other 2. To honor the presumption of innocence until his
hand, determines whether a warrant of arrest should guilt is province beyond reasonable doubt;
be issued against the accused, i.e., whether there is a
necessity for placing him under immediate custody in 3. To enable him to prepare his defense without
order not to frustrate the ends of justice. (P/Supt. Cruz being subjected to punishment prior to conviction
v. Judge Areola, A.M. No. RTJ-01-1642, March 6, 2002)
Note: Bail is available only to persons in custody of the
Q: When may a judge issue a warrant of arrest? law. A person is in custody of the law when he has
been either arrested or otherwise deprived of his
A: When probable cause exists, freedom or when he has voluntarily submitted himself
to the jurisdiction of the court by surrendering to the
1. Upon the filing of information by the proper authoritites. (Dinapol v. Baldado AM No 92-
prosecutor; or 898, August 5, 1993)
2. Upon application of a peace officer.
Q: When is bail available?
F. BAIL
A: Bail is available only to persons in custody of the
1. NATURE law.
Note: A person is in custody of law when he is either

Q: What is bail?
arrested or otherwise deprived of his freedom or when
he has voluntarily submitted himself to the jurisdiction
A: Under the Rules of Court it is the security given
of the court by surrendering to the proper authorities
for the release of a person in custody of the law,
(Dinapol v. Baldado AM No. 92- 898, August 5, 1993)
furnished by him or a bondsman, to guarantee his
appearance before any court as required under the Q: May bail still be filed after final judgment?
conditions prescribed under the rules (Sec. 1, Rule
114). A: Bail may not be filed once there is already a final
judgment (Sec. 24, Rule 114).
Q: What is the nature of the right to bail?
Note: If before such finality, the accused applies for
A: The right to bail is a constitutional right which probation, he may be allowed temporary liberty under
flows from the presumption of innocence in favor his bail. In no case shall bail be allowed after the
of every accused who should not be subjected to accused has commenced to serve sentence.
the loss of freedom. Thus, the right to bail only
accrues when a person is arrested or deprived of his Q: May prosecution witness be required to post
liberty. The right to bail presupposes that the bail?
accused is under legal custody (Paderanga v. Court
of Appeals, 247 ACRS 741) A: Yes. A prosecution witness may be required to
post bail to ensure his appearance at the trial of the
Q: What is the nature of bail proceedings? case where:
A: The hearing of an application for bail should be 1. There is substitution of information (Section 4,
summary or otherwise in the discretion of the Rule 119); and
court.
By 'summary hearing' is meant such brief and 2. Where the court believes that a material witness
speedy method of receiving and considering the may not appear at the trial (Section 14, Rule 119)
evidence of guilt as is practicable and consistent
with the purpose of the hearing which is merely to Q: What are the forms of bail?
determine the weight of the evidence for the
purpose of bail (Ocampo v. Bernabe, 77 Phil. 55) A:
Q: What are the purposes of bail? 1. Corporate surety/ Bail bond;
A: a. An obligation under seal given by the

accused with one or more sureties
1. To relieve an accused from the rigors of and made payable to the proper
imprisonment until his conviction and yet secure his officer with the condition to be void
245
upon performance by the accused of own undertaking over and above all just
such acts as he may be legally debts, obligations and properties exempt
required to perform; from execution (Sec. 12).
b. The accused goes to an authorized
bonding company and he will pay a No bail shall be approved unless the surety
premium for the service which is a is qualified (Sec. 13).
percentage of the total amount of
3. Cash deposit/ Cash bond;
bail. The bonding company will then
go to the court and execute an
a. It is the deposited by the accused
undertaking, or "security bond" in
himself or any person acting in his
the amount of the bail bond in
behalf;
behalf of the accused, that if the
b. Cash shall be in the amount fixed by
accused is needed, the bonding
the court or recommended by the
company will bring him before the
prosecutor who investigated the
court;
case;
c. If the accused jumps bail, the bond
c. It is to be deposited before the:
will be cancelled and the bonding
i. Nearest collector of internal
company will be given sufficient time
revenue;
to locate the whereabouts of the
ii. Provincial, city or municipal
accused who posted bail but later on
treasurer; or
jumps bail. Notice to bonding
iii. Clerk of court where the case is
company is notice to the accused.
pending;
Notice is usually sent to the bonding
d. No further order from the court is
company in order to produce the
necessary for the release of the
body of the accused.
accused if the conditions prescribed
were complied with (Sec. 14);
Note: Liability of surety/bondsman covers
e. If the accused does not appear when
all three stages:
i. trial required, the whole amount of the
ii. promulgation cash bond will be forfeited in favor
iii. execution of sentence of the government and the accused
will now be arrested.
2. Property bond;
4. Recognizance
a. The title of the property will be used
as security for the provisional liberty a. An obligation of record, entered into
of the accused which shall constitute before some court or magistrate duly
a lien over the property; authorized to take it with the
b. The accused shall cause the condition to do some particular act.
annotation of the lien within 10 days It is an undertaking of a disinterested
after approval of the bond before person with high credibility wherein
the: he will execute an affidavit of
i. Registry of Deeds if the recognizance to the effect that when
property is registered; or the presence of the accused is
ii. Registration Book in the required in court, the custodian will
Registry of Deeds of the place bring him to that court.
where the land lies and before b. This is allowed for light felonies only.
the provincial, city or municipal
assessor on the corresponding Note: If the accused does not appear
tax declaration if property is not despite notice to the custodian, or the
registered (Sec. 11); person who executed the recognizance does
not produce the accused, he may be cited
c. The person who undertakes the
for contempt of court. This is the remedy
conditions of a regular bond will be
because no money is involved in
the custodian of the accused during recognizance.
the time that he is under provisional
liberty.] BAIL BOND RECOGNIZANCE
An obligation under seal An obligation of record
Note: In all cases, the surety of properties given by the accused entered into before some
must be worth the amount specified in his with one or more court or magistrate duly

CRIMINAL PROCEDURE
sureties, and made authorized to take it with A: Yes, when a person lawfully arrested without a
payable to the proper the condition to do some warrant asks for preliminary investigation before
officer with the particular act, the most the complaint or information is filed in court, he
condition to be void usual condition in criminal may apply for bail (Sec. 6, Rule 112).
upon performance by cases being the
the accused of such acts appearance of the Q: Is arraignment required before the court grants
as he may legally be accused for trial. bail?
required to perform.
A: NO, for the following reasons:
Q: Where should bail be filed?
1. The trial court could ensure the presence of the
A: accused at the arraignment precisely by granting
1. In the court where the case is pending; or bail and ordering his presence at any stage of the
2. In the absence or unavailability of the proceedings (Section 2b, Rule 114); and
judge thereof, with any RTC judge, MTC
judge, or MCTC judge in the province, 2. The accused would be placed in a position where
city, or municipality. he has to choose between filing a motion to quash
3. If the accused is arrested in a province, and thus delay his release on bail, and foregoing the
city, or municipality other than where the filing of a motion to quash so that he can be
case is pending, bail may also be filed arraigned at once and thereafter be released on
with any RTC of said place, or if no judge bail (Lavides v. Court of Appeals GR No. 129670,
thereof is available, with any MTC judge, February 1, 2000
MCTC therein.
4. Any person in custody who is not yet Note: When bail is a matter of right, an accused may
charged in court may apply for bail with apply for and be granted bail even prior to
any court in the province, city, or arraignment. An application for bail in a case involving
municipality where he is held (Sec. 17). an offense punishable by reclusion perpetua to death
may also be heard even before an accused is
Note: Where the grant of bail is a matter of discretion, arraigned. Further, if the court finds in such case that
or the accused seeks to be released on recognizance, the accused is entitled to bail because the evidence
the application may only be filed in the court where against him is not strong, he may be granted
the case is pending, whether on preliminary provisional liberty even prior to arraignment; for in
investigation, trial, or on appeal. such a situation, bail would be "authorized" under the
circumstances (Serapio v. Sandiganbayan, G.R. Nos.
When bail is filed with a court other than where the 148468, 148769 & 149116, Jan. 28, 2003).
case is pending, the judge who accepted the bail shall
forward it, together with the order of release and Q: What are the conditions or requirements of
other supporting papers, to the court where the case is bail?
pending (Sec. 19).
A:
Q: Is hearing required for the grant of bail? 1. The undertaking shall be effective upon
approval, and unless cancelled, shall
A: YES, In all cases whether the bail is a matter of remain in force at all stages of the case
right or discretion a hearing is required. until promulgation of the judgment of the
court, irrespective of whether the case
Q: If an information was filed in the RTC Manila was originally filed in or appealed to it.
charging Mike with homicide and he was arrested 2. The accused shall appear before the
in Quezon City, in what court or courts may he proper courts whenever so required by
apply for bail? Explain. the court or these rules.
3. The failure of the accused to appear at
A: Mike may apply for bail in RTC Manila where the the trial without justification despite due
information was filed or in the RTC Quezon City notice shall be deemed a waiver of his
where he was arrested, or if no judge thereof is right to be present thereat. In such case,
available, with any MTC judge or MCTC judge the trial may proceed in absentia.
therein. 4. The bondsman shall surrender the
accused to court for execution of the final
Q: Is bail available during preliminary judgment (Sec. 2, Rule 114).
investigation?
247
Note: No additional conditions may be imposed. of the bailbond. Otherwise, petition

However, when the court finds that there is likelihood should be denied (Sec. 19)
of the accused jumping bail or committing other harm
to the citizenry is feared, the court may grant other Q: Who has the burden of proof in bail
conditions in granting bail (Almeda v. Villaluz, G.R. No. applications?
L-31665, Aug. 6, 1975).
A: It is the prosecution who has the burden of
Q: What are the guidelines regarding the showing that evidence of guilt is strong at the
effectivity of bail? hearing of an application for bail filed by a person
who is charged for the commission of a capital
A: The Supreme Court en banc laid the following
offense or offense punishable by reclusion perpetua
policies concerning the effectivity of the bail of the
or life imprisonment (Sec. 8, Rule 114).
accused:
2. WHEN A MATTER OF RIGHT; EXCEPTIONS
1. When the accused is charged with an
offense which is punishable by a penalty
Q: When is bail a matter of right?
lesser than reclusion perpetua at the time
of the commission of the offense, or the
A:
application for bail and thereafter he is
In the MTC, it is a matter of right before or after
convicted of a lesser offense than that
conviction, regardless of the offense.
charged, he may be allowed to be
released on the same bail he posted,
In the RTC,
pending his appeal provided, he does not
GR: it is a matter of right before conviction,
fall under any conditions of bail.
2. The same rule applies if he is charged XPNs: offenses punishable by death, reclusion
with a capital offense but later on perpetua, or life sentence and the evidence of guilt
convicted of a lesser offense, that is, is strong, in which case it is discretionary.
lower than that charged.
3. If on the other hand, he is convicted of Note: The prosecution cannot adduce evidence for the
that offense which was charged against denial of bail where it is a matter of right. However
him, his bail shall be cancelled and he where the grant of bail is discretionary, the
shall thereafter be placed in confinement. prosecution may show proof to deny the bail.
Bail in these circumstances is still not a
matter of right but only upon the sound Q: Is notice of hearing required?
discretion of the court (Herrera, Vol. IV, p.
470, 2007 ed.). A: Whether bail is a matter of right or of discretion,
reasonable notice of hearing is required to be given
Q: What are the duties of the trial judge if an to the prosecutor or fiscal or at least he must be
application for bail is filed? asked for his recommendation because in fixing the
amount of bail, the judge is required to take into
A: account a number of factors such as the applicant’s
1. Notify the prosecutor of the hearing of character and reputation, forfeiture of other bonds
the application for bail or require him to or whether he is a fugitive from justice.
submit his recommendation (Sec. 18, Rule
114); Hearing, however is not required where Bail is
2. Conduct a hearing of the application for recommended by the prosecution and it is a matter
bail regardless of whether or not the of right.
prosecution refuses to present evidence
to show that the guilt of the accused is Q: When the accused is entitled as a matter of
strong for the purpose of enabling the right to bail, may the court refuse to grant him bail
court to exercise its sound discretion on the ground that there exists a high degree of
(Secs. 7 and 8, Rule 114); probability that he will abscond or escape?
3. Decide whether the evidence of guilt of Explain.
the accused is strong based on the
summary of evidence of the prosecution A: No. What the court can do is to increase the
(Baylon v. Sison, A.M. No. 92-7-360-0, amount of bail. One of the guidelines that the judge
Apr. 6, 1995); may use in fixing a reasonable amount of bail is the
4. If the guilt of the accused is not strong, probability of the accused appearing in trial. (1999
discharge the accused upon the approval Bar Question)

CRIMINAL PROCEDURE
Note: Where the offense is bailable, the mere Q: What is the remedy of the accused when bail is
probability that the accused will escape or if he had discretionary?
previously escaped while under detention does not
deprive him of his right to bail. The remedy is to A: When bail is discretionary, the remedy of the
increase the amount of bail, provided the amount is accused is to file a petition for bail. Once a petition
not excessive (Sy Guan v. Amparo, G.R. No. L-1771, for bail is filed, the court is mandated to set a
Dec. 4, 1947). hearing. The purpose of the hearing is to give
opportunity to the prosecution to prove that the
3. WHEN A MATTER OF DISCRETION evidence of guilt is strong. If strong, bail will be
denied. If weak, the bail will be granted.
Q: When is bail a matter of discretion?
Q: Where is the application for bail filed where the
A: Bail is a matter of discretion
accused is convicted by the RTC of an offense not
1. Upon conviction by the RTC of an
punishable by death, reclusion perpetua or life
offense not punishable by death,
imprisonment?
reclusion perpetua or life
imprisonment; A:
2. If the penalty of imprisonment 1. With the trial court despite the filing of a notice
exceeds six (6) years but not more of appeal provided that it has not transmitted the
than 20 years, bail shall be denied original record to the appellate court;
upon a showing by the prosecution,
with notice to the accused, of the 2. With the appellate court of the decision of the
following or other similar trial court convicting the accused changed the
circumstances: nature of the offense from non- bailable to bailable.
a. That he is a recidivist, quasi-
recidivist or habitual Q: Is the right to bail available in extradition
delinquent, or has committed cases?
the crime aggravated by the
circumstance of reiteration; A: Yes.
b. That he previously escaped 1. While our extradition law does not
from legal confinement, evaded provide for the grant of bail to an
sentence, or has violated the extraditee, however, there is no provision
conditions of his bail without prohibiting him or her from filing a
valid justification; motion for bail, a right to due process
c. That he committed the offense under the constitution.
while on probation, parole, or 2. While extradition is not a criminal
under conditional pardon; proceeding, it still entails a deprivation of
d. That the circumstances of his liberty on the part of the potential
case indicate the probability of extraditee and furthermore, the purpose
flight if released on bail; or of extradition is also the machinery of
e. That there is undue risk that criminal law.
during the pendency of the 3. The Universal Declaration of Human
appeal, he may commit another Rights applies to deportation cases,
crime (Sec. 5). hence, there is no reason why it cannot
3. Regardless of the stage of the be invoked in extradition cases.
criminal prosecution, a person 4. The main purpose of arrest and
charged with a capital offense, or an temporary detention in extradition cases
offense punishable by reclusion is to ensure that the potential extraditee
perpetua or life imprisonment, when will not abscond.
evidence of guilt is not strong (Sec. 5. Under the principle of pactasuntservanda,
7); and the Philippines must honor the
4. Juvenile charged with an offense Extradition Treaty it entered into with
punishable by death, reclusion other countries. Hence, as long as the
perpetua or life imprisonment requirements are satisfactorily met, the
evidence of guilt is strong (Sec. 17, extraditee must not be deprived of his
A.M. No. 02-1-18-SC). right to bail (Government of Hong Kong
Special Administrative Region v. Olalia,
G.R. No. 153675, Apr. 19, 2007).
249
Q: What is the rationale in allowing bail in b. release of the child in conflict with
extradition cases? the law on bail; or
c. transfer of the minor to a youth
A: The SC held that the Philippines, along with other detention home/youth rehabilitation
members of the family of nations, is committed to center (Sec. 35, R.A. 9344).
uphold the fundamental human rights as well as
value the worth and dignity of every person
(Government of Hong Kong Special Administrative Note: The court shall not order the detention of a child
Region v. Olalia, G.R. No. 153675, Apr. 19, 2007). in a jail pending trial or hearing of his/her case (Sec.
35, R.A. 9344).
Q: What is the quantum of proof required in
granting or denying bail in extradition cases? Q: What if the minor is unable to furnish bail?
A: The required proof of evidence is “clear and A: The minor shall be, from the time of his arrest,
convincing evidence” and not preponderance of committed to the care of the DSWD or the local
evidence nor proof beyond reasonable doubt rehabilitation center or upon recommendation of
(Government of Hong Kong Special Administrative DSWD or other agencies authorized by the court
Region v. Olalia, G.R. No. 153675, Apr. 19, 2007). may, in its discretion be released on recognizance
(Sec. 36, R.A. 9344)
Q: Who has the burden of proof in the application
for bail in extradition cases? Q: Charged with murder Leviste was convicted
with the crime of homicide and was sentenced to
A: The burden lies with the extraditee(Government suffer an indeterminate penalty of six years and
of Hong Kong Special Administrative Region v. one day of prision mayor as minimum to 12 years
Olalia, G.R. No. 153675, Apr. 19, 2007). and one day of reclusion temporal as maximum.
Pending appeal he applied for bail, CA denied his
Q: Is bail available on court martial offenses? application for bail. Petitioner’s theory is that,
where the penalty imposed by the trial court is
A: No. An accused military personnel triable by more than six years but not more than 20 years
courts martial or those charged with a violation of and the circumstances mentioned in the third
the Articles of War does not enjoy the right to bail. paragraph of Section 5 are absent, bail must be
granted to an appellant pending appeal. In an
Q: Is bail available in deportation proceedings? application for bail pending appeal by an appellant
sentenced to a penalty of imprisonment for more
A: Yes, however bail in deportation proceedings is than six years, does the discretionary nature of the
WHOLLY DISCRETIONARY grant of bail pending appeal mean that bail should
automatically be granted absent any of the
Q: Is a minor charged with a capital offense circumstances mentioned in the third paragraph of
entitled to bail? Section 5, Rule 114 of the Rules of Court?
A: No. A juvenile charged with an offense A: In an application for bail pending appeal by an
punishable by death, reclusion perpetua or life appellant sentenced for more than six years, the
imprisonment shall not be admitted to bail when discretionary nature of the grant of bail pending
evidence of guilt is strong (Sec. 17, R.A. 9344). appeal does not mean that bail should
automatically be granted absent any of the
Q: What are the rules provided by law with regard circumstances mentioned in the third paragraph of
to juveniles in conflict with the law with respect to Section 5, Rule 114 of the Rules of Court (Leviste v.
bail of non-capital? CA, GR No. 189122, March 17, 2010)
A: Note: The third paragraph of Section 5 of Rule 114
1. The privileged mitigating circumstances of applies to two scenarios where the penalty imposed
minority shall be considered. (Sec. 34, on the appellant applying for bail is imprisonment
R.A. 9344, Juvenile and Justice Act of exceeding 6 years.
2006) The first scenario deals with the circumstances
2. Where a child is detained, the court shall enumerated in the said paragraph NOT being present.
order the: The second scenario contemplates the existence of AT
a. release of the minor on recognizance LEAST ONE of the said circumstances.
to his/her parents and other suitable In the first situation, bail is a matter of SOUND
person; JUDICIAL DISCRETION. This means that, if none of the
circumstances mentioned in the 3rd paragraph of Sec. 5

CRIMINAL PROCEDURE
Rule 114 is present, the appellate court has the 4. Character and reputation of the accused;
discretion to grant or deny bail. An application for bail 5. Age and health of the accused;
pending appeal may be denied even if the bail- 6. Weight of evidence of the accused;
negating circumstances in the third paragraph of 7. Probability of the accused to appear in
Section 5, Rule 114 are absent. trial;
On the other hand on the second situation, the 8. Forfeiture of other bail;
appellate court exercises a more stringent discretion, 9. The fact that the accused was a fugitive
that is, to carefully ascertain whether any of the
from justice when arrested; or
enumerated circumstances in fact exists. If it so
10. Pendency of other cases when the
determines, it has no other option except to deny or
revoke bail pending appeal. Thus a finding that none
accused is on bail (Sec. 9).
off the said circumstances is present will not
automatically result in the grant of bail. Such finding Q: What is the effect of grant of bail?
will simply authorize the court the less stringent sound
discretion approach (Leviste v. CA, GR No. 189122, A: The accused shall be released upon approval of
March 17, 2010). the bail by the judge (Sec. 19).
4. HEARING OF APPLICATION FOR BAIL IN CAPITAL Q: May the amount of bail be reduced or
OFFENSES increased?
RA 9346 An Act Prohibiting the Imposition of A: Yes, after the accused is admitted to bail, the
Death Penalty in the Philippines abolished death court may, either increase or reduce its amount.
penalty When increased, the accused may be committed to
custody if he does not give bail in the increased
Q: What is a capital offense? amount within a reasonable period (Sec. 20).
A: Capital offense refers to an offense which, under 6. BAIL WHEN NOT REQUIRED
the law existing at the time of its commission and at
the time of its application to be admitted to bail, Q: What are the instances when bail is not
may be punished with reclusion perpetua or life required?
imprisonment or death.
A: Instances when accused may be released on
Note: if the offense is punishable with reclusion recognizance without posting bail or on reduced
perpetua or life imprisonment or death at the time of bail.
the commission but no longer so at the time of the
application for bail, or if the offense was not yet ON REDUCED 1. The offense charged is a
punishable with death when the crime was committed BAIL OR ON HIS violation of an ordinance, light
but already so punishable at the time admission to bail OWN felony, or a criminal offense the
was applied for, the crime is not a capital offense RECOGNIZANCE imposable penalty thereof does
within the meaning of the rule. not exceed 6 months of
imprisonment and/ or fine of
Q: Is capital offense bailable? P2,000 under RA 6036.
2. Where a person has been in
A: GR: Capital offense or those punishable by custody for a period equal to or
reclusion perpetua, life imprisonment or death are more than the minimum of the
NOT bailable when evidence of guilt is strong. imposable principal penalty
without application of the
XPN: If the accused charged with the capital Indeterminate Sentence Law or
offense is a minor any modifying circumstances, in
which case the court, in its
5. GUIDELINES IN FIXING AMOUNT OF BAIL discretion may allow his release on
his own recognizance.
Q: What are the guidelines in fixing the reasonable 3. Where the accused has applied
amount of bail? for probation pending resolution of
the case but no bail was filed or
A: the accused is incapable of filing
one.
1. Financial ability of the accused to give 4. In case of youthful offender held
for physical and mental
bail;
examination, trial or appeal if he is
2. Nature and circumstances of the offense;
unable to furnish bail and under
3. Penalty of the offense charged;
251
circumstances envisage in PD 603 Q: What happens if the bondsmen failed to do

as amended. such requirements?
Espiritu v. Jovellanos AM No MTJ
97-1139 (1997) A: A judgment shall be rendered against the
UNDER THE GR: NO bail bondsmen, jointly and severally, for the amount of
REVISED RULES XPNs: the bail.
ON SUMMARY 1.When a warrant of arrest is
PROCEDURE issued for failure to appear when Note: The 30 day period granted to the bondsmen to
required by the court; comply with the two requisites for the lifting of the
2.When the accused: order of forfeiture cannot be shortened by the court
a.is a recidivist; but may be extended for good cause shown.
b.is a fugitive from justice;
c.is charged with physical injuries; Q: Distinguish Order of Forfeiture from Order of
d.does not reside in the place Cancellation.
where the violation of the law or
the ordinance is committed; or he ORDER OF ORDER OF CANCELLATION
has no known residence. FORFEITURE
Conditional and Not independent of the order
7. INCREASE OR REDUCTION OF BAIL interlocutory. It is not of forfeiture. It is a judgment
appealable ultimately determining the
liability of the surety
Q: When may the court increase or reduce the thereunder and therefore
amount of bail? final. Execution may issue at
once.
A:
1. After the accused is admitted to bail. Q: When is bail cancelled?
2. Upon good cause
A: Bail is cancelled:
Q: What is the remedy if the bail is increased and
the accused did not give the increased amount of 1.Upon application of the bondsmen with
bail within a reasonable time? due notice to the prosecutor, upon
surrender of the accused or proof of his
A: When the amount of bail is increased, the death;
accused may be committed to custody if he does 2. Upon acquittal of the accused;
not give bail in the increased amount within a 3. Upon dismissal of the case; or
reasonable period. 4. Execution of judgment of conviction
Without prejudice on any liability on the bail
Note: Where the offense is bailable as a matter of
right, the mere probability that the accused will 9. APPLICATION FOR BAIL IS NOT A BAR TO
escape, or even if he had previously escaped while OBJECTIONS IN ILLEGAL ARREST OR IRREGULAR
under detention does not deprive him of his right to PRELIMINARY INVESTIGATION
bail. The remedy is to INCREASE the amount of the
bail, provided such amount would not be excessive. (Sy Q: Is the application to bail bar to any objections in
Guan v. Amparo, 79 Phil 670) illegal arrest or irregular preliminary investigation?
8. FORFEITURE AND CANCELLATION OF BAIL A: An application for or admission to Bail shall NOT
bar the accused:
Q: When is bail forfeited?
1. From challenging the validity of his arrest;
A: If the accused fails to appear in person as
2. The legality of the warrant issued thereof;
required, his bail shall be declared forfeited and the
3. From assailing the regularity of
bondsmen within 30 days from the failure of the
questioning the absence of a preliminary
accused to appear in person must:
investigation of the charge against him.
1. PRODUCE the body of their principal or
PROVIDED that the accused raises them before
give the reason for non- production; and
entering his plea.
2. EXPLAIN why the accused did not appear
before the court when required to do so NOTE: The court shall observe the matter as early as
practicable, but not later than the start of the trial of
(Section 21, Rule 114) the case.

CRIMINAL PROCEDURE
10. HOLD DEPARTURE ORDER AND BUREAU OF the Regional Trial Courts (SC Circular 39-97); upon
IMMIGRATION WATCHLIST proper motion of the party.
Q: What is a Hold Departure Order? Q: What is the effect of the acquittal of the
accused or dismissal of the case to the hold
A: A Hold Departure Order or HDO is an order departure order issued by the RTC?
issued by the Secretary of Justice or the proper RTC
commanding the Commissioner of the Bureau of A: Whenever [a] the accused has been acquitted; or
Immigration to prevent the departure for abroad of [b] the case has been dismissed, the judgment of
Filipinos and/ or aliens named therein by including acquittal or the order of dismissal shall include
them in the Bureau’s Hold Departure List. (DOJ therein the cancellation of the Hold-Departure
Department Order No. 17) Order issued. The Court concerned shall furnish the
Department of Foreign Affairs and the Bureau of
Note: The proper court may issue a hold departure Immigration with a copy each of the judgment of
order or direct the Department of Foreign Affairs to acquittal promulgated or the order of dismissal
cancel the passport of the accused. This is a case of a issued within twenty-four [24] hours from the time
valid restriction on a person’s right to travel so that he of promulgation/issuance and likewise through the
may be dealt with in accordance with the law. (Silverio fastest available means of transmittal.
v. Court of Appeals GR No. 94284, April 8, 1991)
Q: In what cases may the DOJ issue a Hold
Q: Who may issue a Hold Departure Order?
Departure Order?
A: A hold departure order (HDO) may be issued
A: The Secretary of Justice may issue an HDO under
either by:
any of the following instances:
1. The Regional Trial Court pursuant to SC Circular
1. Against an accused irrespective of nationality, in
39-97; or
criminal case falling within the jurisdiction of courts
below the RTCs;
Note: SC Circular 39-97 dated June 19, 1997,
"limits the authority to issue hold departure
Note: If the case against the accused is
orders to the Regional Trial Courts.
pending trial, the application under oath of
Considering that only the RTC is mentioned
an interested party must be supported by:
in said Circular and by applying the rule on
a) certified true copy of the complaint or
legal hermeneutics of express mention
information; and b) a certification from the
implied exclusion, courts lower than the RTC
Clerk of Court concerned that the criminal
— such as the MeTC, MTC, MTCC and MCTC
case is pending.
— has no authority to issue hold departure
orders in criminal cases. (A.M. No. 99-9-141-
If the accused has jumped bail or has
MTCC November 25, 1999)
become a fugitive of justice, the application
under oath of an interested party must be
2. By the RTC sitting as a Family Court pursuant to
supported by: a) a certified true copy of the
A.M. No. 02-11-12-SC, complaint or information; b) a certified true
copy of the warrant or order of arrest; and
Note: in which case, the court, motuproprio
c) a certification from the Clerk of Court
or upon application under oath, may issue
concerned that the warrant or order of
ex-parte a hold departure order, addressed
arrest was returned unserved.
to the Bureau of Immigration and
Deportation, directing it not to allow the
2. Against an alien whose presence is required
departure of the child from the Philippines
either as a defendant, respondent or a witness in a
without the permission of the court while
civil or labor case pending litigation, or any case
the petition for legal separation, annulment
or declaration of nullity is going on. before an administrative agency;
3. By the Department of Justice pursuant to 3. Against any person motuproprio, or upon the
Department Order No. 41. request of the Head of a Department of the
Government, head of a constitutional body or
Q: When may the RTC issue a Hold Departure commission; the Chief Justice of the Supreme Court
Order? for the Judiciary; the Senate President or the House
Speaker for the legislature; when the adverse party
A: Hold-Departure Orders shall be issued only in is the Government or any of its agencies or
criminal cases within the exclusive jurisdiction of instrumentalities, or in the interest of national
253
security, public safety or public health. (DOJ 2. Against the respondent, irrespective of
Department Circular No. 41). nationality in criminal cases pending Preliminary
Investigation, Petition for Review or Motion for
Q: What is the validity of an HDO issued by the Reconsideration BEFORE the DOJ or any of its
DOJ? provincial or city prosecution offices;
A: An HDO issued by the DOJ shall be valid for 5 3. The Secretary of Justice may likewise issue a WLO
years from the date of its issuance unless sooner against any person, either motuproprioor upon
terminated. (Section 4, DOJ Circular No. 41). request of any government agencies, including
commissions, task forces or similar entities created
Q: When may an HDO issued by the DOJ be lifted by the Office of the President, pursuant to the
or cancelled? “Anti- Trafficking of Persons Act of 2003” (RA 9208)
and/ or in connection with any investigation being
A: The HDO may be lifted under any of the conducted by it, or in the interest of national
following grounds: security, public safety or public health. (Section 2,
DOJ Department Order 41)
1. When the validity of the HDO has already
expired; Q: What is the validity of a WLO?
2. When the accused subject of the HDO has been A: A WLO issued shall be valid for sixty (60) days
allowed to leave the country during the pendency unless sooner terminated or extended, for a non-
of the case, or has been acquitted of the charge, or extendible period of not more than sixty (60) days.
the case in which the warrant/ order of arrest has (Section 4, DOJ Department Order No. 41)
been recalled;
Q: Where should permission to leave the country
3. When the civil or labor case or case before an be filed?
administrative agency of the government wherein
the presence of the alien subject of the HDO/ WLO A: Permission to leave the country should be filed in
has been dismissed by the court or by appropriate the same court where the case is pending because
government agency, or the alien has been they are in the best position to judge the propriety
discharged as a witness therein, or the alien has and implication of the same.(Santiago v. Vasquez,
been allowed to leave the country. (Section 5, DOJ G.R. No. 99289-90, January 27, 1993)
Department Order No. 41).
Q: What is the remedy against an HDO/ WLO?
Q: How about the HDO/WLO issued by the DOJ
either motuproprio or upon request of A: A WLO may be attacked by filing a motion for
government functionaries/ agencies, when may cancellation or by getting an Allow Departure Order
such be lifted? from the DOJ or by filing a Motion to Lift Hold
Departure Order.
A: Any HDO/ WLO issued by the Secretary of Justice
either motuproprio or upon request of government Q: What is an Allow Departure Order (ADO)?
functionaries/ agencies, when the adverse party is
the Government or any of its agencies or A: An Allow Departure Order is a directive that
instrumentalities, or in the interest of national allows the traveler to leave the territorial
security, public safety or public health, may be jurisdiction of the Philippines. This is issued upon
lifted or recalled ANYTIME if the application is application to the Commissioner of Immigration
favorably indorsed by the Government and the appropriate government agency. (An
functionaries/ offices who requested the issuance outline of Philippine Immigration and Citizenship
of the HDO/ WLO. (Section 5, DOJ Department Laws, Volume I, Atty. Rolando P. Ledesma, page 34).
Circular No. 41)
Q: When is ADO issued?
Q: When may a Watch List Order (WLO) be issued?
A: Any person subject of an HDO/ WLO pursuant to
A: The Secretary of Justice may issue a WLO under Department Order No. 41, who intends, for some
any of the following circumstances: exceptional reasons, to leave the country may,
upon application under oath with the Secretary of
1. Against the accused, irrespective of nationality in Justice, be issued an ADO upon submission of the
criminal cases pending trial before the RTC or following requirements:
before courts below the RTCs;

CRIMINAL PROCEDURE
1. Affidavit stating clearly the purpose, inclusive 7. to have compulsory process issued to
period of the intended travel, and undertaking to secure the attendance of witnesses and
immediately report to the DOJ upon return; and production of other evidence in his
behalf;
2. Authority to travel or travel clearance from the 8. to have speedy, impartial and public trial;
court or appropriate government office where the and
case upon which the issued HDO/ WLO was based is 9. to appeal on all cases allowed by law and
pending or from the investigating prosecutor in in the manner prescribed by law (Sec. 1).
charge of the subject case.
Q: What does “the right to be heard” mean?
Q: What is the remedy of a person who is not the
same person whose name appears in the HDO/ A: It means that the accused must be given the
WLO? opportunity to present his case either by way of
oral or verbal arguments, or by way of pleadings.
A: Any person who is prevented from leaving the
country because his/ her name appears to be the PRESUMPTION OF INNOCENCE
same as the one that appears in the HDO/ WLO
may upon application under oath obtain a Q: What is the meaning of the right of
Certification to the effect that said person is not the presumption of innocence?
same person whose name appears in the issued
HDO/ WLO upon submission of the following A: The right means that the presumption must be
requirements: overcome by evidence of guilt beyond reasonable
doubt. Guilt beyond reasonable doubt means that
1. Affidavit of Denial; there is moral certainty as to the guilt of the
2. Photocopy of the page of the passport bearing accused. Conviction should be based on the
the personal details; strength of the prosecution and not on the
3. Latest clearance from the National Bureau of weakness of the defense. The significance of this is
Investigation; and that accusation is not synonymous with guilt.
4. Clearance from the court or appropriate
government agency when applicable. Q: What are the exceptions to the presumption of
innocence?
G. RIGHTS OF THE ACCUSED
A:
Note: The rule enumerates the rights of a person 1. In cases of self-defense, the person
accused of an offense which are both constitutional as invoking self defense is presumed guilty.
well as statutory, save the right to appeal, which is
In this case, a reverse trial will be held.
purely statutory in character.
2. The legislature may enact that when
certain facts have been proved, they shall
1. RIGHTS OF ACCUSED AT THE TRIAL
be prima facie evidence of the existence
Q: What are the rights of the accused at the trial? of guilt of the accused and shift the
burden of proof provided there be a
A: Right: rational connection between the facts
1. to be presumed innocent until the proved and the ultimate fact presumed so
contrary is proved beyond reasonable that the inference of the one from proof
doubt; of the other is not an unreasonable and
2. to be informed of the nature and the arbitrary experience (People v. Mingoa,
cause of the accusation against him; G.R. No. L-5371, Mar. 26, 1953).
3. to be present and defend in person and E.g.:
by counsel at every stage of the a. Unexpected flight of the accused
proceeding; b. Failure to explain possession of
4. to testify as a witness in his own behalf stolen property
but subject to cross- examination on c. Failure to account funds and
matters covered by direct examination; property of a public officer entrusted
5. to exempt from being compelled to be a to him
witness against himself (against self-
incrimination); Q: What is reasonable doubt?
6. to confront and cross examine the
witnesses against him at the trial; A: It is the doubt engendered by an investigation of
the whole proof and an inability, after such
255
investigation, to let the mind rest easy upon the variance between the information and the evidence
certainty of guilt. Absolute certainty is not does not alter the nature of the offense, nor does it
demanded by law to convict of any criminal charge determine or qualify the crime or penalty, so that
but moral certainty is required as to every even if a discrepancy exists, this cannot be pleaded
proposition of proof requisite to constitute the as a ground for acquittal (People v. Noque GR No.
offense. 175319, January 15, 2010).
Q: What is the equipoise rule? RIGHT TO BE PRESENT DURING TRIAL
A: Where the evidence of the parties in a criminal Q: May the right to be present during the trial be
case are evenly balanced, the constitutional waived?
presumption of innocence should tilt in favor of the
accused who must be acquitted. A: Yes, by:
1. a waiver pursuant to the stipulation set
Q: What is a reverse trial? forth in his bail;
2. absence of the accused without justifiable
A: A reverse trial happens if the accused admits the cause at the trial of which he had notice
killing but claims self-defense. He must first shall be considered a waiver of his right to
establish the elements of self-defense in order to be present thereat; and
overturn the presumption that he was guilty of the 3. if the accused jumps bail, such shall be an
offense. automatic waiver of the right to be
present on all subsequent trial dates until
RIGHT TO BE INFORMED custody over him is regained (Sec. 1(c)).
Q: What is meant by the accused’s right to be Note: The accused may be compelled to be present
informed? despite waiver for purposes of identification, but if the
accused manifest in open court that he is indeed the
A: The right requires that the information should accused, such shall also be considered a waiver
state the facts and circumstances constituting the thereof.
crime charged in such a way that a person of
common understanding may easily comprehend Q: What are the effects of waiver of the right to
and be informed of what it is about. appear by the accused?
Q: May the right to be informed be waived? A:

1. It is also a waiver to present evidence;
A: The right to be informed of the nature and cause 2. Prosecution can present evidence despite
of the accusation may not be waived. the absence of the accused; and
3. The court can decide even without
Q: Noque was convicted for the crime of selling accused’s evidence.
and possessing methamphetamine hydrochloride.
On appeal, Noque claimed that his conviction RIGHT TO TESTIFY AS A WITNESS
violated his right to be informed of the nature and
cause of the accusations against him since the Q: Distinguish an accused as a witness from an
charges in the Information are for selling and ordinary witness.
possessing methamphetamine hydrochloride but
what was established and proven was the sale and A:
possession of ephedrine. Is the appellant’s right to Ordinary
Accused as Witness
be informed of the nature and cause of accusation Witness
violated? May altogether refuse to take the
May be
witness stand and refuse to
compelled to
A: NO. The Information filed was for the crimes of answer any and all questions.
take the witness
illegal sale and illegal possession of regulated drugs. stand and claim
Note: If the accused testifies in his
Ephedrine has been classified as a regulated drug; it the right against
own behalf, then he may be cross-
is classified as the raw material of shabu. Under self-
examined as any other witness. He
Sections 4 and 5, Rule 120 of the Rules of Court, an incrimination as
may not, on cross examination,
offense charged is necessarily included in the each question
refuse to answer any question on
offense proved when the essential ingredients of requiring an
the ground that the answer will
the former constitute or form part of those incriminating
give or the evidence that he will
constituting the latter. At any rate, a minor answer is asked
produce would have tendency to

CRIMINAL PROCEDURE
him. incriminate him for the crime that XPN: Immunity statutes such as:
he was charged.
1. Forfeiture of illegally obtained wealth
But he may refuse to answer any (R.A. 1379)
question incriminating him for an 2. Bribery and graft cases (R.A. 749)
offense distinct from that which he (Herrera, Vol. IV, p. 563, 2007 ed.).
is charged. Q: Distinguish use immunity from transactional
May be cross examined but only immunity.
May be cross- on matters covered by his direct
examined as to examination. A:
any matter
stated in the Use Immunity Transactional Immunity
Note: If the accused refuses to be
Witness’ compelled Witness immune from
direct cross-examined, the testimony of the
testimony and the fruits
examination or accused who testifies on his own prosecution of a crime to
thereof cannot be used in
connected behalf will not be given weight and subsequent prosecution of a which his compelled
therewith. will have no probative value because crime against him. testimony relates.
the prosecution will not be able to Witness can still be
test its credibility. prosecuted but the Witness cannot be
compelled testimony cannot prosecuted at all
Q: As counsel of an accused charged with be used against him
homicide, you are convinced that he can be
utilized as a State witness. What procedure will Q: Does the right against self-incrimination include
you take? Explain. the furnishing of a signature specimen?
A: As counsel for the accused, I will advise my client A: Yes, because writing is not a purely mechanical
to ask for a reinvestigation and convince the act for it involves the application of intelligence and
prosecutor for him to move for the discharge of my attention. If such person is asked whether the
client as a State witness or the accused can apply as writing in a document is his or not, and he says it is
a State witness with the Department of Justice not, he deemed to have waived his right. On the
pursuant to R.A. 6981, the Witness Protection, other hand, if the accused simply refused to answer
Security and Benefit Act. The right to prosecute the question inquiring about the handwriting, no
vests the prosecutor with a wide range of waiver of the right took place (Beltran v. Samson
discretion, including what and whom to charge. G.R. No. 32025, Sept. 23, 1929).
Q: What is the effect if the accused refuses to Note: The right against self-incrimination is available
not only in criminal cases but also in government
testify?
proceedings, civil, administrative proceedings where
there is a penal sanction involved.
A:
GR: The silence of the accused should not be Q: Is the right of the accused against self-
used against him. incrimination waivable?
XPN: A: Yes. It may be waived by the failure of the
1. When the prosecution has already accused to invoke the privilege after the
established a prima facie case, the incriminating question is asked and before his
accused must present proof to overturn answer.
the evidence; and
2. Defense of the accused is alibi and does RIGHT TO CROSS-EXAMINATION
not testify, the inference is that the alibi is
not believable. Q: What does the right of the accused to confront
and cross-examine a witness against him
RIGHT AGAINST SELF-INCRIMINATION contemplate?
Q: What is the scope of the right against self- A: Confrontation is the act of setting a witness face-
incrimination? to-face with the accused so that the latter may
make any objection he has to the witness which
A: must take place in the court having jurisdiction to
GR: The right covers only testimonial permit the privilege of cross-examination.
compulsion and not the compulsion to produce
real and physical evidence using the body of the In addition, the accused is entitled to have
accused. compulsory process issued to secure the
257
attendance of witness and production of other 4. Prejudice to the accused resulting from
evidence in his behalf [Sec. 1 (g)]. the delay.
Note: The main purpose of this right to confrontation Note: There is no violation of the right where the delay
is to secure the opportunity of cross-examination and is imputable to the accused.
the secondary purpose is to enable the judge to
observe the demeanor of witness. Q: What are the remedies available to the accused
when his right to speedy trial is violated?
Q: Does the right to confrontation cover witnesses
who did not appear or was not presented at the A:
trial? 1. Ask for the trial of the case;
2. Unreasonable delay of the trial of a
A: No, the right to confrontation applies to criminal case as to make the detention of
witnesses who appear before the court; the witness defendant illegal gives ground for habeas
must be present for the right to confrontation to corpus as a remedy for obtaining release;
attach. What is important is that the accused is 3. Mandamus proceeding to compel the
given the right to cross-examine the witness dismissal of the information; or
presented (People v. Honrada, G.R. Nos. 112178-79, 4. Ask for the trial of the case and then
Apr. 21, 1995). move to dismiss (Gandicela v. Lutero, G.R.
No. L-4069, Mar. 5, 1951).
Q: What is the rule with respect to the testimony
of a witness who dies or becomes unavailable? Q: What is the rule regarding trial by publicity?
A: If the other party had the opportunity to cross- A: The right of the accused to a fair trial is not
examine the witness before he died or became incompatible with free press. Pervasive publicity is
unavailable, the testimony may be used as not per se prejudicial to the right to a fair trial. To
evidence. However, if the other party did not have warrant the finding of prejudicial publicity, there
the opportunity to cross-examine before the death must be allegations and proof that judges have
or unavailability of the witness, the testimony will been unduly influenced, not simply that they might
have no probative value. be due to the barrage of publicity (People v.
Teehankee, G.R. Nos. 111206-08, Oct. 6, 1995).
RIGHT TO COMPULSORY PROCESS
Q: Is the rule that the trial should be public
Q: What is the right to compulsory process mean? absolute?
A: This refers to the right of the accused to have a A: No. The court may bar the public in certain cases,
subpoena and/or subpoena ducestecum issued in such as when the evidence to be presented may be
his behalf in order to compel the attendance of offensive to decency or public morals; or in rape
witnesses and the production of other evidence. cases, where the purpose of some persons in
attending is merely to ogle at the parties.
Q: What is the effect if a witness refuses to testify
RIGHT TO APPEAL
when he is required?
Q: What is the nature of the right to appeal?
A: The Court should order the witness to give bail or
order his arrest, if necessary. Failure to obey a
A: The right to appeal from a judgment of
subpoena amounts to contempt of court.
conviction is fundamentally of statutory origin. It is
not a matter of absolute right independently of
RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL
constitutional or statutory provision allowing such
appeal.
Q: What are the facts to be considered to
determine if the right to speedy trial has been Q: Can the right to appeal be waived?
violated?
A:
A: GR: The right to appeal can be waived expressly
1. Length of the delay; or impliedly.
2. Reason for the delay;
3. The accused’s assertion or non assertion XPN: Where the death penalty is imposed, such
of the right; and right cannot be waived as the review of the

CRIMINAL PROCEDURE
judgment by the CA is automatic and

mandatory pursuant to Administrative Circular Note: The right to counsel covers the period beginning
No. 20-2005 which is an order directing regional from custodial investigation until rendition of
trial courts to directly forward to the Court of judgment and even on appeal (People v. Serzo, Jr., G.R.
Appeals records of criminal cases which are No. 118435, June 20, 1997).
subject of automatic review or regular appeals.
Q: May the right to counsel during trial be waived?
Note: When the accused flees, after the case has been
submitted to court for decision, he will be deemed to A: Yes. It can be waived when the accused
have waived his right to appeal from the judgment voluntarily submits himself to the jurisdiction of the
rendered against him (People v. AngGioc, G.R. No. L- court and proceeds with his defense. The accused
48547, Oct. 31, 1941). may defend himself in person only if the court is
convinced that he can properly protect his rights
RIGHT TO COUNSEL even without the assistance of counsel. The
Republic Act No. 7438 defendant cannot raise the question of his right to
have an attorney for the first time on appeal.
Q: Distinguish the right to counsel during trial from
right to counsel during custodial investigation? Q: May an accused defend himself without the
assistance of counsel?
A: Right to counsel during trialmeans the right of
the accused to an effectivecounsel. Counsel is not A: Yes, but only when it sufficiently appears that he
to prevent the accused from confessing but to can properly protect his right without the
defend the accused. On the other hand, right to assistance of counsel [Sec. 1(c)].
counsel during custodial investigation requires the
presence of competent and independent counsel Q: What is the rule if the accused makes an
who is preferably the choice of the accused. The extrajudicial confession?
reason for such right is that in custodial
investigation, there is a danger that confessions can A: Any extrajudicial confession made shall also be in
be exacted against the will of the accused since it is writing and signed by the person, detained or under
not done in public. custodial investigation in the presence of his
counsel, or in the latter’s absence, upon a valid
Q: What are the requisites for a valid custodial waiver, and in the presence of any of the parents,
investigation report? older brothers and sisters, his spouse, the municipal
mayor, the municipal judge, district school
A: RA No. 7438 provides for the following requisites supervisor, or priest or minister of the gospel as
for a valid custodial investigation report: chosen by him; otherwise such extrajudicial
confession shall be inadmissible as evidence in any
1. The report shall be reduced to writing by the proceeding (Sec. 2(d) RA 7438)
investigating officer;
Q: An affidavit was made by the accused without
2.If the person arrested or detained does not know the presence of counsel during preliminary
how to read or write, it shall be read and investigation, admitting the commission of a
adequately explained to him by his counsel or by crime. When presented during trial as evidence,
the assisting counsel in the language or dialect the accused objected claiming that there was a
known to such arrested or detained person. This is violation of his right to a competent and
to be done before the report is signed. If this independent counsel. Is the accused correct?
procedure is not done, the investigation report shall
be null and void and of no effect whatsoever. A: No. The constitutional right to a competent and
independent counsel exists only in custodial
Q: Is the statement signed by the accused interrogations, or in-custody interrogation of
admissible if during the investigation, the assisting accused persons. A preliminary investigation is an
lawyer leaves, or comes and goes? inquiry or a proceeding to determine whether there
is sufficient ground to engender a well-founded
A: No. It is inadmissible because the lawyer should belief that a crime has been committed, and that
assist his client from the time the confessant the respondent is probably guilty thereof and
answers the first question asked by the should be held for trial. Evidently, a person
investigating officer until the signing of the undergoing preliminary investigation before the
extrajudicial confession (People v. Morial, G.R. No. public prosecutor cannot be considered as being
129295, Aug. 15, 2001).
259
under custodial investigation (People v. Ayson, G.R. A:

No. L-28508-9, July 7, 1989). 1. The person arrested, detained, invited or under
custodial investigation must be informed in a
2. RIGHTS OF PERSONS UNDER CUSTODIAL language known to and understood by him of the
INVESTIGATION reason for the arrest and he must be shown the
warrant of arrest, if any; every other warnings,
Q: What is custodial investigation? information or communication must be in a
language known to and understood by said person;
A: Custodial Investigation is the stage “where the
police investigation is no longer a general inquiry 2. He must be warned that he has a right to remain
into an unsolved crime but has begun to focus on a silent and that any statement he makes may be
particular suspect taken into custody by the police used as evidence against him;
who carry out a process of interrogation that lends
itself to elicit incriminating statements” (People v. 3. He must be informed that he has the right to be
Sunga, 399 SCRA 624). assisted at all times and have the presence of an
independent and competent lawyer, preferably of
Sec. 2(f) of RA 7438 expanded the meaning of his own choice;
custodial investigation. It shall include the practice
of issuing an “invitation” to a person who is 4. He must be informed that if he has no lawyer or
investigated in connection with an offense he is cannot afford the services of a lawyer, one will be
suspected to have committed, without prejudice to provided for him; and that a lawyer may also be
the liability of the “inviting” officer for any violation engaged by any person in his behalf, or may be
of law. appointed by the court upon petition of the person
arrested or one acting in his behalf;
Q: When do the rights in custodial investigation
attach? 5. That whether or not the person arrested has a
lawyer, he must be informed that no custodial
A: The rights begin to operate at once as soon as investigation in any form shall be conducted except
the investigation ceases to be a general inquiry into in the presence of his counsel or after a valid waiver
an unsolved crime and direction is then aimed upon has been made;
a particular suspect who has been taken into
custody and to whom the police would then direct 6. The person arrested must be informed that, at
interrogatory question which tend to elicit any time, he has the right to communicate or
incriminating statements (People v. Jose Ting confer by the most expedient means - telephone,
LanUy, G.R. No. 157399, Nov. 17, 2005). It includes radio, letter or messenger - with his lawyer (either
the practice of issuing an “invitation” to a person retained or appointed), any member of his
who is investigated in connection with an offense immediate family, or any medical doctor, priest or
he is suspected to have committed. minister chosen by him or by any one from his
immediate family or by his counsel, or be visited
Q: What is the importance of the right to counsel by/confer with duly accredited national or
in custodial investigation? international non-government organization. It shall
be the responsibility of the officer to ensure that
A: The importance of the right to counsel is so vital this is accomplished;
that under existing law, “in the absence of any
lawyer, no custodial investigation shall be 7. He must be informed that he has the right to
conducted and the suspected person can only be waive any of said rights provided it is made
detained by the investigating officer in accordance voluntarily, knowingly and intelligently and ensure
with the provisions of Art. 125 of the Revised Penal that he understood the same;
Code. (Section 3c RA 7438)
8. In addition, if the person arrested waives his right
The purpose of providing counsel to a person under to a lawyer, he must be informed that it must be
custodial investigation is to curb the uncivilized done in writing AND in the presence of counsel,
practice of extracting a confession. (People v. otherwise, he must be warned that the waiver is
Duenas, Jr. 426 SCRA 666). void even if he insist on his waiver and chooses to
speak;
Q: What are the rights of persons under Custodial
Investigation? 9. That the person arrested must be informed that
he may indicate in any manner at any time or stage
of the process that he does not wish to be

CRIMINAL PROCEDURE
questioned with warning that once he makes such b.specify the details desired. (Section 9, Rule 116)
indication, the police may not interrogate him if the
same had not yet commenced, or the interrogation b.Suspension of arraignment- Upon motion, the
must ceased if it has already begun; proper party may ask for the suspension of the
arraignment in the following cases:
10. The person arrested must be informed that his 1. That the accused appears to be suffering from an
initial waiver of his right to remain silent, the right unsound mental condition which effectively renders
to counsel or any of his rights does not bar him him unable to fully understand the charge against
from invoking it at any time during the process, him and to plead intelligently thereto. In such case,
regardless of whether he may have answered some the court shall order his mental examination and, if
questions or volunteered some statements; necessary his confinement for such purpose;
2. That there exists a prejudicial question; and
11. He must also be informed that any statement or 3. There is a petition for review of the resolution of
evidence, as the case may be, obtained in violation the prosecutor which is pending at either the DOJ,
of any of the foregoing, whether inculpatory or or of the Office of the President (Section 11, Rule
exculpatory, in whole or in part, shall be 116)
inadmissible in evidence (People v. Mahinay, G.R. Note: The period of suspension shall not exceed
No. 122485, Feb. 1, 1999). sixty (60) days counted from the filing of the
petition with the reviewing office.
Q: What are the requirements in order that an
admission of guilt of an accused during a custodial c. Motion to Quash – At any time before entering
investigation be admitted in evidence? his plea, the accused may move to quash the
complaint or information on any of the grounds
A: An admission of guilt during a custodial under Section 3, Rule 117 in relation to Section 1 of
investigation is a confession. To be admissible in the same rule;
evidence, the confession must be voluntary, made
with the assistance of competent and independent d. Challenge the validity of the arrest or legality of
counsel, express and in writing. the warrant issued or assail the regularity or
question the absence of preliminary investigation of
H. ARRAIGNMENT AND PLEA the charge otherwise the objection is deemed
waived.
1. ARRAIGNMENT AND PLEA, HOW MADE
Q: Where is arraignment made?
Q: What is arraignment?
A: The accused must be arraigned before the court
A: Arraignment is the proceeding in a criminal case, where the complaint or information was filed or
whose object is to fix the identity of the accused, to assigned for trial. (Section 1a, Rule 116)
inform him of the charge and to give him an
opportunity to plead, or to obtain from the accused Q: How is arraignment made?
his answer, in other words, his plea to the
information. A: Arraignment is made:
1. in open court where the complaint or
Note: Arraignment is indispensable as the means for information has been filed or assigned for trial;
bringing the accused into court and notifying him of 2. by the judge or clerk of court;
the cause he has to meet. (Borja v. Mendoza, 77 SCRA 3. By furnishing the accused with a copy of the
42) complaint or information;
4. Reading it in a language or dialect known to the
Q: What are the options of the accused before accused;
arraignment and plea? 5. Asking accused whether he pleads guilty or not
guilty.
A: Before arraignment and plea, the accused may 6. Both arraignment and plea shall be made of
avail of any of the following: record but failure to enter of record shall not affect
the validity of the proceedings.
a. Bill of Particulars- The accused may, before
arraignment, move for a bill of particulars to enable Q: When is arraignment made?
him to properly plead and prepare for trial.
Note: The motion shall: A: Under the Rules of Court, the arraignment shall
a. specify the alleged defects of the complaint or be made within thirty (30) days from the date the
information, and shall court acquires jurisdiction over the person of the
261
accused, unless a shorter period is provided by a Q: Is the presence of the offended party required
special law or a Supreme Court circular. (Section 1g, in arraignment?
Rule 116).
A: The private offended party shall be required to
Q: What are the instances when arraignment is appear in the arraignment for the following
held within a shorter period? purposes:
A: a.plea bargaining;
1. When an accused is under preventive detention, b. determination of civil liability ;and
his case should be raffled within 3 days from filing c. other matters requiring his presence.
and accused shall be arraigned within 10 days from
receipt by the judge of the records of the case (RA Note: in case the offended party fails to appear
8493 Speedy Trial Act) despite due notice, the court may allow the accused to
2. Where the complainant is about to depart from enter a plea of guilty to a lesser offense which is
the Philippines with no definite date of return, the necessarily included in the offense charged with the
accused should be arraigned without delay. conformity of the trial prosecutor alone. (Section 1f,
3. Cases under RA 7610 (Child Abuse Act), the trial Rule 116)
shall be commenced within 3 days from
Q: Accused appellant assailed his conviction
arraignment.
because he claimed that he was not properly
4. Cases under the Dangerous Drugs Act.
arraigned since he was only arraigned after the
5. Cases under SC AO 104-96 ie., heinous crimes,
case was submitted for decision. The absence of
violations of the Intellectual Property Rights law,
arraignment was not objected by the appellant; it
these cases must be tried continuously until
is only upon his conviction that appellant raised
terminated within 60 days from commencement of
the issue of absence of arraignment. May
the trial and to be decided within 30 days from the
arraignment be made after a case has been
submission of the case.
submitted for decision?
Q: What are the different rules on arraignment?
A: Yes. No protest was made when appellant was
A: subsequently arraigned. The parties did not
1. Trial in absentia may be conducted only after question the procedure undertaken by the trial
valid arraignment. court. The appellant’s rights were not prejudiced
2. Accused must personally appear during since he has actively participated in the hearings
arraignment and enter his plea (counsel cannot conducted (People v. Pangilinan 518 SCRA 358).
enter plea for accused)
Q: What is plea?
3. Accused is presumed to have been validly
arraigned in the absence of proof to the contrary.
A: It pertains to the matter which the accused, on
4. Generally, judgment is void if accused has not
his arraignment, alleges in answer to the charge
been validly arraigned.
against him.
5. If accused went into trial without being
arraigned, subsequent arraignment will cure the Q: What is the period to plea?
error provided that the accused was able to present
evidence and cross examine the witnesses of the A:
prosecution during trial.
1. When the accused is under preventive detention:
Note: If an information is amended in substance which His case shall be raffled and its records transmitted
changes the nature of the offense, arraignment on the
to the judge to whom the case was raffled within 3
amended information is MANDATORY, except if the
days from the filing of the information or complaint
amendment is only as to form. (Teehankee Jr. v.
and the accused arraigned within 10 days from the
Madayag GR NO 103102, March 6, 1992)
date of the raffle. The pre-trial conference of his
Q: Is the presence of the accused required during case shall be held within 10 days after arraignment;
arraignment?
2. When the accused is NOT under preventive
A: The accused must be present at the arraignment detention: Unless a shorter period is provided by
and personally enter his plea. (Section 1b, Rule 116) special law or Supreme Court circular, the
arraignment shall be held within 30 days from the
date the court acquires jurisdiction over the person
of the accused. The time of the pendency of a
motion to quash, or for bill of particulars, or other

CRIMINAL PROCEDURE
causes justifying suspension of the arraignment, 2. WHEN SHOULD PLEA OF NOT GUILTY BE
shall be excluded in computing the period. ENTERED
Q: What is the effect of a plea of guilty? Q: When should a plea of not guilty be entered?
A: A plea of guilty is a judicial confession of guilt A:

(People v. Comendador GR No. L-38000, September 1. When the accused so pleaded;
19, 1980). It is an unconditional plea of guilt admits 2. When he refuses to plead;
of the crime and all the attendant circumstances 3. Where in admitting the act charged he sets up
alleged in the information including the allegations matters of defense or with lawful justification;
of conspiracy and warrants of judgment of 4. When he enters a conditional plea of guilty;
conviction without need of further evidence 5. Where after a plea of guilty he introduces
evidence of self- defense or other exculpatory
XPN: circumstances;
1. Where the plea of guilt was compelled by 6. When the plea is indefinite or ambiguous.
violence or intimidation;
2. When the accused did not fully understand the 3. WHEN MAY ACCUSED ENTER A PLEA OF GUILTY
meaning and consequences of his plea; TO A LESSER OFFENSE
3. Where the information is insufficient to sustain
conviction of the offense charged; Q: What is plea bargaining?
4. Where the information does not charge an
offense, any conviction thereunder being void;’ A: Plea bargaining in criminal cases is a process
5. Where the court has no jurisdiction. whereby the accused and the prosecution work a
mutually satisfactory disposition of the case subject
XPN to the XPN: If what the accused would prove is to court approval. It usually involves the
an exempting circumstance, it would amount to a defendant’s pleading guilty to a lesser offense or to
withdrawal of his plea of not guilty. only one or some of the counts of a multi- count
indictment in return for a lighter sentence than that
Note: For non-capital offenses, the reception of for the graver charge (Daan v. Sandiganbayan GR
evidence is merely discretionary on the part of the No. 163972-77, March 28, 2008).
court. If the information or complaint is sufficient for
the judge to render judgment on a non-capital offense, Q: May the accused enter a plea of guilty to a
he may do so. But if the case involves a capital offense, lower offense?
the reception of evidence to prove the guilt and
degree of culpability of the accused is mandatory. A: Yes:
1. During arraignment
Q: May the plea of guilty be collaterally attacked? a. If the offended party is present, the
latter must consent with the
A: prosecutor consented plea; and
b. That the lesser offense is necessarily
GR:No. A plea of guilty entered by one who is
included in the offense charged.
fully aware of the direct consequences,
including the actual value of any commitments
2. After arraignmentbut beforetrial provided
made to him by court, the prosecutor or his
the following requisites are present:
own counsel must stand.
a. The plea of guilty is withdrawn;
b. The plea of not guilty and the
XPN: It was induced by:
withdrawal of the previous guilty plea
1. threats; shall be made before trial;
2. misrepresentation; or c. The lesser offense is necessarily
3. improper promises as it has no proper included in the offense charged; and
relationship to the prosecutor’s business d. The plea must have the consent of the
(People v. Villasco, G.R. No. L-4706, July prosecutor and the offended party
24, 1951). (Section 2, Rule 116)
Note: No amendment of complaint or

Note: It is only when the consensual character of the
information is necessary (Sec. 2).
plea is called into question that the validity of a guilty
plea may be impaired.
3. After prosecution rests – allowed only
when the prosecution does not have
263
sufficient evidence to establish guilt for 2. The judge must convince himself that
the crime charged. there exists a rational basis for finding of
guilt based on accused’s testimony
4. ACCUSED PLEAD GUILTY TO CAPITAL 3. Inform the accused of the exact length of
OFFENSE, WHAT COURT SHOULD DO imprisonment and the certainty that he
will serve it in a national penitentiary
Q: What is the duty of the court after the accused
pleads guilty to a capital offense? 6. IMPROVIDENT PLEA
A: When the accused pleads guilty to a capital Q: What is an improvident plea?

offense, the court shall:
1. Conduct a searching inquiry into the: A: It is a plea without information as to all the
a. Voluntariness of the plea and circumstances affecting it. It is based upon a
b. Full comprehension of the consequences of mistaken assumption or misleading information or
the plea; advice.
2. Require the prosecution to prove guilt and the
precise degree of his culpability; Q: Enumerate the instances of improvident plea.
3. Ask the accused if he desires to present evidence
in his behalf and allow him to do so if he desires. A:
However, the defendant after pleading guilty may 1. Plea of guilty was compelled by violence
not present evidence as would exonerate him or intimidation;
completely from criminal liability such as proof of 2. The accused did not fully understand the
self-defense. meaning and consequences of his plea;
3. Insufficient information to sustain
Note: This procedure is mandatory, and a judge who conviction of the offense charged;
fails to observe it commits grave abuse of discretion. 4. Information does not charge an offense;
5. Court has no jurisdiction.
Q: Why is the presentation of evidence required
after the plea of guilty? Q: When may an improvident plea be withdrawn?
A: To preclude any room for reasonable doubt in A: The court may permit an improvident plea of
the mind of either the trial court or of the Supreme guilty to be withdrawn at any time before the
Court, on review as to the possibility that there judgment of conviction becomes final and be
might have been misunderstanding on the part of substituted by a plea of not guilty.
the accused as to the nature of the charges to
which he pleaded guilty; and to ascertain the Note: The withdrawal of a plea of guilty is not a matter
circumstances attendant to the commission of the of right to the accused but addressed to the sound
crime which justify or require the exercise of discretion to the trial court (Sec. 5).
greater or lesser degree of severity in the
imposition of prescribed penalties. (People v. Basa, Q: What is the effect of such withdrawal?
51 SCRA 317)
A: The court shall set aside the judgment of
5. SEARCHING INQUIRY conviction and re-open the case for new trial.
Q: What are the objectives of a searching inquiry? 7. GROUNDS FOR SUSPENSION OF ARRAIGNMENT
A: To determine the voluntariness of the plea and Q: May arraignment be suspended?

whether the accused understood fully the
consequence of his plea. A: Yes, upon motion by the proper party on the
following grounds:
Q: What is the meaning of the duty of the judge to
conduct a “searching inquiry”? (elements of 1. The accused appears to be suffering from
searching inquiry) an unsound mental condition which
effectively renders him unable to fully
A: In all cases, the judge must convince himself: understand the charge against him and to
1. The judge must convince himself that the plead intelligently thereto;
accused is entering the plea voluntarily 2. There exists a valid prejudicial question;
and intelligently; 3. A petition for review of the resolution of
the prosecutor is pending at the

CRIMINAL PROCEDURE
Department of Justice or the Office of the A: The motion to quash must be:
President (Sec. 11); provided that the 1. in writing;
period of suspension shall not exceed 60 2. signed by the accused or his counsel; and
days counted from the filing of the 3. specify the factual and legal grounds on
petition; which it is based.
4. There are pending incidents such as:
a. Motion to Quash Note: The court shall not consider any other ground
b. Motion for Inhibition other than those specifically stated in the motion to
c. Motion for Bill of quash except lack of jurisdiction over the offense
Particulars charged (Sec. 2).
Note: The period of suspension shall not Q: What are the grounds for a motion to quash the
exceed sixty (60) days counted from the complaint or information?
filing of the petition with the reviewing
office (Sec. 11).
A:
I. MOTION TO QUASH 1. That the facts charged do not constitute
an offense;
Q: What is motion to quash? 2. That the court trying the case has no
jurisdiction over the offense charged;
A: Itis a special pleading filed by the defendant 3. That the court has no jurisdiction over the
before entering his plea, which hypothetically person of the accused;
admits the truth of the facts spelled out in the 4. That the officer who filed the information
complaint or information at the same time that it had no authority to do so;
sets up a matter which, if duly proved, would 5. That the information does not conform
preclude further proceedings. substantially to the prescribed form;
6. That more than one offense is charged
Q: When may a motion to quash an information or except when a single punishment for
complaint be filed? various offense is prescribed by law;
7. That the criminal action or liability has
A: At any time before entering his plea, the accused been extinguished;
may move to quash the information or complaint 8. That it contains various averments which
(Sec. 1, Rule 117). if true would constitute legal excuse or
justification;
Note: The court is not authorized to motuproprio
initiate a motion to quash by issuing an order requiring
Note: Only exempting circumstances
an explanation why the information should not be
constitute a legal excuse or justification.
quashed. The court has discretion to dismiss the case if
Justifying circumstances such as self-defense
the info is not sufficient or on any ground provided by
must be proven.
law, or to dismiss the info for a different one.
9. That the accused has been previously
Q: May a motion to quash be filed after the plea of
convicted or acquitted of the offense
the accused?
charged, or the case against him was
dismissed or otherwise terminated
A:
without his express consent (double
GR: No motion to quash can be entertained
jeopardy) (Sec. 3, Rule 117).
after accused enters his plea.
Note: Matters of defense are generally not a ground
XPN: On the following grounds:
for a motion to quash. They should be presented at
1. Lack of jurisdiction over the offense
the trial
charged;
2. The facts alleged charged no offense; Q: Can lack of preliminary investigation be a
3. That the offense or the penalty has ground for a motion to quash?
prescribed; or
4. Double jeopardy. A: No, the grounds under Sec. 3, Rule 117 are
exclusive in character. Accordingly, it was held that
1. GROUNDS lack of preliminary investigation is not a ground for
a motion to quash, not only because it is not stated
Q: What are the requirements for a valid motion by the rule as one of the grounds, but also because
to quash?
265
it does not impair the validity of the information, Congress.

render it defective or affect the jurisdiction of the It is a private act which
court over the case (People v. Yutila, G.R. No. L- must be pleaded and
It is a public act which
34332, Jan. 27, 1981). proved by the person
the courts have to take
pardoned because the
judicial notice of.
Q: Can the accused move to quash on the ground courts take no notice of
that he was denied due process? it.
Granted to classes of
A: No. Denial of due process is not one of the persons or communities
grounds for a motion to quash. who may be guilty of
political offenses,
Granted to one after
Q: Can the court grant a motion to quash filed by generally before or after
conviction.
the accused on the following grounds: that the the institution of the
court lacked jurisdiction over the person of the criminal prosecution and
sometimes after
accused and that the complaint charged more than
conviction.
one offense?
Relieves the offender
from the consequences
A: No. A motion to quash on the ground of lack of
of the offense of which
jurisdiction over the person of the accused must be
he is convicted. It only Abolishes and puts into
based only on this ground. If other grounds are serves as a relief from the oblivion the offense
included, there is a waiver, and the accused is punishment but it does itself. It is as though the
deemed to have submitted himself to the not restore the political offense was never
jurisdiction of the court. rights of the person, committed.
unless it is expressly
Q: What are the grounds for extinction of criminal provided for in the
liability? pardon.
A: Under Article 89 of the Revised Penal Code, it is Q: In cases of violation of special laws, when will
provided that criminal liability is totally the prescriptive period begin to run?
extinguished:
1. By the death of the convict, as to personal A: Violation of special law is malumprohibitum,
penalties; and as to pecuniary penalties, liability hence, the applicable statute requires that if
therefor is extinguished only when the death of the violation of special law is not known at the time,
offender occurs before final judgment; the prescriptive period begins to run only from the
2. By service of the sentence; discovery thereof, which includes discovery of the
3. By amnesty, which completely extinguish the unlawful nature of the constitutive acts which
penalty and all its effects; requires the evidence to be shown. (People v.
4. By absolute pardon; Duque, G.R. No. 100285, Aug. 18, 1992)
5. By prescription of the crime;
6. By prescription of the penalty; and Note: Where the last day of the prescriptive period
7. By the marriage of the offended woman, as for filing an information is a Sunday or legal
provided in Article 344 of the Revised Penal Code. holiday, the information can no longer be filed on
the next working day. The remedy is for the fiscal
Q: Is the death of the offended party a ground for or prosecution to file the information on the last
the dismissal of the case? working day before the criminal offense prescribes
(Yapdiangco v. Buencamino, G.R. No. L-31442, June
A: No, the death of the offended party before final 24, 1983).
conviction will not abate prosecution where the
offense charged is one against the State involving Q: What is nolleprosequi?
peace and order as well as in private crimes (People
v. Misola, G.R. No. L-3606, Dec. 29, 1950). A: It is a Latin term for “we shall no longer
prosecute.” It is a dismissal of the criminal case by
Q: Distinguish pardon from amnesty. the government before the accused is placed on
trial and before he is called to plead, with the
A: approval of the court in the exercise of its judicial
Pardon Amnesty discretion. It partakes of a non-user or
Proclaimed by the discontinuance in a civil suit and leaves the matter
Granted by the Chief in the same condition in which it was before the
President, but it has to be
Executive. commencement of the prosecution. It is not an
with the concurrence of

CRIMINAL PROCEDURE
acquittal; it is not a final disposition of the case; and XPNs: Instances where a motion to quash may
it does not bar a subsequent prosecution for the be filed AFTER plea:
same offense. Thus, it can be refiled(Galvez v. 1. Failure to charge an offense;
CA,G.R. No. 120715, Mar. 29, 1996). 2. Lack of jurisdiction over the offense
charged;
Q: Is nolleprosequi the same as quashal? 3. Extinction of the offense or penalty;
4. The defendant would be placed in double
A: No,although both have the same result – the jeopardy.
dismissal of the case. A nolleprosequi is initiated by
the prosecutor while a quashal is upon motion to Note: Right to file a motion to quash belongs only to
quash filed by the accused. the accused. There is nothing in the rules which
authorizes the court or judge to motuproprio initiate a
Q: What is the effect of failure to move to quash motion to quash.
or failure to allege a ground?
3. EFFECTS OF SUSTAINING THE MOTION TO
A: QUASH
GR: It shall be deemed a waiver of any
objections. Q: What are the effects of granting a motion to
quash?
XPN: Grounds based on:
1. the facts charged do not constitute an A:
offense; 1. If an order sustaining the motion to quash
2. the court trying the case has no is made:
jurisdiction over the offense charged; a. The court may order that another
3. criminal liability has been extinguished; complaint or information be filed
and except on the ground of double
4. that the accused has been previously jeopardy and extinguishment of
convicted or acquitted of the offense criminal liability; and
charged, or the case against him was b. If the accused is in custody he shall
dismissed or otherwise terminated not be discharged unless admitted to
without his express consent (Sec. 9). bail;
2. If no order is made or if having made, no
2. DISTINGUISH FROM DEMURRER TO EVIDENCE information is filed within the time
specified in the order or within such time
Q: Distinguish Motion to Quash from Demurrer to as the court may allow for good cause,
Evidence the accused if in custody shall be
discharged unless he is in custody for
A: another charge (Sec. 5, Rule 117).
MOTION TO QUASH DEMURRER TO EVIDENCE
Filed before the Filed after the Q: Is the order granting the motion to quash
defendant enters his plea prosecution has rested its appealable?
case
Does not go into the Based upon the A: Yes, because the order to that effect is a final
merits of the case but is inadequacy of the order, and not merely interlocutory. The accused
anchored on matters not evidence adduced by the would not be placed in double jeopardy because
directly related to the prosecution in support of the accused has not been arraigned yet and the
question of guilt or the accusation dismissal was obtained with his expressed consent.
innocence of the accused
Governed by Rule 117 of Governed by Rule 119 of Q: Is the order denying the motion to quash
the Rules on Criminal the Rules on Criminal appealable?
Procedure Procedure
A: No. It is interlocutory and not appealable.
Q: When may the accused move to quash the Certiorari and prohibition are not the correct
complaint or information? remedies against an order denying a motion to
quash. The defendant should instead go to trial and
A:
raise the special defense he had invoked in his
GR: The accused may move to quash the
motion. And if after trial on the merits, an adverse
complaint or information at any time BEFORE
decision is rendered, remedy is to appeal in the
entering his plea.
267
manner authorized by law (Bulaong v. CA, G.R. No. otherwise terminated without his express
78555, Jan. 30, 1990). consent (People v. Obsania, 23 SCRA
1249).
Q: What is the procedure if the motion to quash is
denied? Q: When does the first jeopardy attach?
A: A:
1. The accused should plead; 1. Competent Court
2. Accused should go to trial without prejudice to 2. Valid jurisdiction
the special defenses he invoked in the motion; 3. Accused was arraigned
3. Appeal from the judgment of conviction, if any, 4. Accused pleaded
and interpose the denial of the motion as an error
Q: May an order denying a motion to quash Q: When does the second jeopardy attach?
appealable?
A:
A: No. An order denying the motion to quash is 1. When the accused was acquitted;
INTERLOCUTORY and NOT APPEALABLE. Appeal in 2. When there is final conviction;
due time as the proper remedy implies a previous 3. Dismissal on the merits
conviction as a result of a trial on the merits of the 4. Dismissal without express consent
case and does not apply to an interlocutory order
denying a motion to quash. (Acharon v. Purisima, Q: What is the effect of double jeopardy on the
GR No. 23731, February 26, 1965) criminal and civil aspects of the case?
4. EXCEPTION TO THE RULE THAT SUSTAINING THE A: When double jeopardy exists, “the conviction or
MOTION TO QUASH IS NOT A BAR TO ANOTHER acquittal of the accused or the dismissal of the case
PROSECUTION shall be a bar to another prosecution for the
offense charged, or for any attempt to commit the
Q: Is an order granting a motion to quash a bar to same or frustration thereof, or for any offense
another prosecution? which necessarily includes or is necessarily included
in the offense charged in the former complaint or
A: information (Section 7, Rule 117).
GR: An order sustaining the motion to quash is
not a bar to another prosecution for the same The offended party and the accused may appeal the
offense. civil aspect of the case because the concept of
double jeopardy evidently has reference only to
XPN: the criminal case and has no effect on the civil
1. Double jeopardy; or liability of the accused (Riano, Criminal Procedure
2. Criminal liability is extinguished (Sec. 6). 2011 p. 475)
5. DOUBLE JEOPARDY Note: A judgment of acquittal is final and is no longer
reviewable, unless the trial court acted with grave
Q: What is double jeopardy? abuse of discretion or when there is mistrial.
A: It means that when a person is charged with an Q: Is the concept of double jeopardy applicable to
offense and the case is terminated either by administrative cases?
acquittal or conviction or in any other manner
without the consent of the accused, the latter A: NO. The rule on double jeopardy does not apply
cannot again be charged with the same or identical to a controversy where one is an administrative
offense. case and the other is criminal in nature (Riano,
Criminal Procedure 2011 p. 487 citing Icasiano v.
Q: What are the elements of double jeopardy? Sandiganbayan, 209 SCRA 377).
A:
Q: As a result of vehicular mishap, petitioner was
1. A valid complaint or information
charged before the MTC of two separate offenses
2. A competent court
in two informations:
3. The defendant pleaded to the charge
a. reckless imprudence resulting in slight
4. The defendant was acquitted or convicted
physical injuries; and
or the case against him was dismissed or

CRIMINAL PROCEDURE
b. reckless imprudence resulting in homicide is necessarily included in the first offense or an

and damage to property for the death of the attempt or frustration thereof.
husband of the respondent and damage to
the vehicle. Q: What are the exceptions to the identity rule?
Petitioner pleaded guilty to the first information
and was punished only be public censure. Invoking A:
such conviction petitioner now moves for the 1. The graver offense developed due to
quashal of the other information on the ground of supervening facts arising out of the same
double jeopardy. Does double jeopardy apply to act or omission constituting the former
quasi offenses? charge.
2. The facts constituting the graver offense
A: Yes. The two charges arose from the same facts became known or were discovered only
and were prosecuted under the same provision of after a plea was entered in the former
the Revised Penal Code, namely Article 365. The complaint or information.
doctrine is that reckless imprudence under Art. 365 3. The plea of guilty to a lesser offense was
is a single quasi- offense by itself and not merely a made without the consent of the
means to commit other crimes. Hence, conviction prosecutor and the offended party (Sec.
or acquittal of such quasi offense bars subsequent 7)
prosecution for the same quasi offense, regardless 4. The second offense was not in existence
of its various resulting acts (Ivler v. Modesto- San at the time of the first prosecution for the
Pedro, GR No. 172716, November 17, 2010) simple reason that in such case, there is
no possibility for the accused, during the
Note: Reason and precedent both coincide in that first prosecution, to be convicted for an
once convicted or acquitted of a specific act of offense that was then inexistent (Melo v.
reckless imprudence, the accused may not be People, 85 Phil 766).
prosecuted again for that same act. For the essence
of the quasi offense of criminal negligence under Note: In any of the foregoing cases, where the accused
article 365 of the Revised Penal Code lies in the satisfies or serves in whole or in part the judgment, he
execution of an imprudent or negligent act that, if shall be credited with the same in the event of
intentionally done, would be punishable as a felony. conviction for the graver offense.
The law penalizes thus the negligent or careless act,
not the result thereof. The gravity of the Q: What are the instances wherein dismissal of the
consequence is only taken into account to case is tantamount to an acquittal?
determine the penalty, it does not qualify the
substance of the offense. And, as the careless act is A:
single, whether the injurious result should affect one 1. Insufficiency of evidence of the
person or several persons, the offense (criminal prosecution (demurrer to evidence).
negligence) remains one and the same, and can not 2. Dismissal due to violation of right to
be split into different crimes and prosecutions. speedy trial (even if dismissal was upon
(People v. Buan, GR No. L-15974, March 29, 1968) motion of the accused or with his express
consent).
Q: Distinguish dismissal from acquittal.
Q: What is the doctrine of supervening fact?
A:
Dismissal Acquittal A: If, after the first prosecution, a new fact
Does not decide on the Always based on the supervenes on which the defendant may be held
merits, does not merits. Defendant is liable, altering the character of the crime and giving
determine the acquitted because guilt rise to a new and distinct offense, the accused
defendant’s guilt or was not proven beyond cannot be said to be in second jeopardy if indicted
innocence reasonable doubt for the new offense.
Double jeopardy will not Double jeopardy always
always attach attaches Q: What are the rules regarding the application of
double jeopardy on State witnesses?
Q: What is the identity rule?
A: An order discharging an accused as a State
A: There is identity between two offenses not only witness amounts to an acquittal, hence double
when the second offense is exactly the same as the jeopardy will apply. However, if he fails or refuses
first, but also when the second offense includes or to testify against his co-accused in accordance with
his sworn statement, he may be prosecuted again.
269
6. PROVISIONAL DISMISSAL provided by special laws or circulars of the Supreme

Court (Sec. 1, Rule 118).
Q: What is the rule on provisional dismissal of a Note: When the accused is under preventive
case? detention, wherein his case shall be raffled and
records transmitted within 3 days from the filing of the
A: complaint or information. The accused shall be
GR: Where the case was dismissed arraigned within 10 days from the date of the raffle
PROVISIONALLY with the consent of the [Sec. 1(d), Rule 116]. Pre-trial in criminal cases is
accused, he CANNOT invoke double jeopardy mandatory.
in another prosecution therefore OR where
the case was reinstated on a motion for Q: Give three distinctions between a pre-trial in a
reconsideration by the prosecution. criminal case and a pre-trial in a civil case.
XPNs: Where the dismissal was actually an
acquittal based on: A:
Pre-trial in Criminal
Pre-trial in Civil Cases
1. Lack or insufficiency of the evidence Cases
2. Denial of the right to speedy trial The accused is merely
required to sign the
hence even if the accused gave his
written agreement
express consent to such dismissal,
arrived at in the pre-trial
such consent would be immaterial as conference, if he is in
such dismissal is actually an acquittal. The presence of the conformity therewith.
defendant is required Unless otherwise
Q: What are the requisites for provisional unless he is duly required by the court,
dismissal? represented at the pre- his presence therefore is
trial conference by his not indispensable.
A: counsel with the requisite
1. Consent of the prosecutor; authority to enter into a Note: This is aside from
2. Consent of the accused; and compromise agreement. the consideration that
3. Notice to the offended party (Sec. 8). Failing in either of which, the accused may waive
the case shall proceed as if his presence at all
Note: If a case is provisionally dismissed, the failure to the defendant has been stages of the criminal
revive or reinstate the case within the periods set by declared in default. action, except at the
law will make the dismissal permanent. arraignment,
promulgation of
Q: What is the time bar rule? Explain. judgment or when
required to appear for
A: It provides that the provisional dismissal of a identification.
case shall become permanent without the case The presence of the
having been revived in the following periods: private offended party is
1. 1 year after issuance of the order of not required. Instead,
provisional dismissal – for offenses he is priorly required to
punishable by imprisonment not appear at the
exceeding 6 years or a fine of any arraignment of the
The presence of the
amount, or both; and accused for purpose of
plaintiff is required unless
plea bargaining,
2. 2 years after issuance of the order of excused therefrom for
determination of civil
provisional dismissal – with respect to valid cause or if he is
liability and other
offenses punishable by imprisonment of represented therein by a
matters requiring his
more than 6 years (Sec. 8). person fully authorized in
presence.
writing to perform the acts
J. PRE-TRIAL specified in Sec. 4, Rule 18.
Should he fail to appear
therein and the accused
1. MATTERS TO BE CONSIDERED DURING PRE- Absent such justification,
offers to plead guilty to
the case may be dismissed
TRIAL a lesser offense
with or without prejudice.
necessarily included in
Q: When is pre-trial held? the offense charged, the
accused may be allowed
A: After arraignment and within thirty (30) days to do so with the
from the date the court acquires jurisdiction over conformity of the trial
the person of the accused unless a shorter period is prosecutor alone.

CRIMINAL PROCEDURE
The filing of a pre-trial 5. Modification of the order of the trial if

brief is not required. It one of the accused admits the charge but
A pre-trial brief is required only requires interposes a lawful defense (reverse trial);
with the particulars and attendance at a pre-trial and
the sanctions provided by conference to consider 6. Such other matters as will promote a fair
Sec. 6, Rule 18. the matters stated in and expeditious trial of the civil and
Sec. 1, Rule 118. (1997 criminal aspects of the case (Sec. 1).
Bar Question)
Note: During the preliminary conference, the branch
Q: What must the order for pre-trial conference clerk of court shall assist the parties in reaching a
contain? settlement of the civil aspect of the case, mark the
documents to be presented as exhibits and copies
A: It must contain orders: thereof attached to the records after comparison,
1. Requiring the private offended party to ascertain from the parties the undisputed facts and
appear thereat for purposes of plea- admissions on the genuineness and due execution of
bargaining and for other matters documents marked as exhibits and consider such other
requiring his presence; matters as may aid in the prompt disposition of the
2. Referring the case to the branch clerk of case. The proceedings during the preliminary
court, if warranted, for a preliminary conference shall be recorded in the minutes of
conference to be set at least three (3) preliminary conference to be signed by both parties
and counsel.
days prior to the pre-trial to mark the
documents or exhibits to be presented by
The minutes of preliminary conference and the exhibits
the parties and copies thereof to be
shall be attached by the branch clerk of court to the
attached to the records after comparison case record before the pre-trial (A.M. No. 03-1-09-SC).
and to consider other matters as may aid
in its prompt disposition; and
3. Informing the parties that no evidence Q: What is plea bargaining?
shall be allowed to be presented and
offered during the trial other than those A: Plea bargaining is the process whereby the
identified and marked during the pre-trial accused, the offended party and the prosecution
except when allowed by the court for work out a mutually satisfactory disposition of the
good cause shown. In mediatable cases, case subject to court approval. It usually involves
the judge shall refer the parties and their the defendant’s pleading guilty to a lesser offense
counsel to the Philippine Mediation or to only one or some of the counts of a multi-
Center unit for purposes of mediation if count indictment in return for a lighter sentence
available (A.M. No. 03-1-09-SC). than that for the graver charge.
Q: What is the form of a valid pre-trial agreement? Q: When is plea bargaining not applicable?
A: The pre-trial agreement must be in writing and A: Violations of the Dangerous Drugs Act regardless
signed by both the accused and his counsel. If the of the imposable penalty.
required form is not observed, the pre-trial
agreement cannot be used against the accused Q: What shall the court do if the plea bargaining
(Sec. 2, Rule 118). fails?
Note: The agreements covering the matters in the pre- A: The court shall:
trial conference shall be approved by the court. 1. Adopt the minutes of preliminary
conference as part of the pre-trial
Q: What are the matters considered during pre- proceedings, confirm markings of exhibits
trial? or substituted photocopies and
admissions on the genuineness and due
A: execution of documents and list object
1. Plea bargaining; and testimonial evidence;
2. Stipulation of facts; 2. Scrutinize every allegation of the
3. Marking for identification of evidence of information and the statements in the
parties; affidavits and other documents which
4. Waiver of objections to admissibility of form part of the record of the preliminary
evidence; investigation and other documents
identified and marked as exhibits in
271
determining farther admissions of facts, 3. PRE-TRIAL AGREEMENT

documents and in particular as to the
following: Q: What is pre- trial agreement?
a. The identity of the accused;
b. Court’s territorial jurisdiction relative A: All agreements or admissions made or entered
to the offense/s charged; into during the pre- trial conference shall be
c. Qualification of expert witness; reduced to writing and signed by the accused and
d. Amount of damages; counsel, otherwise the same shall not be used un
e. Genuineness and due execution of evidence against the accused.
documents;
f. The cause of death or injury, in Q: What are the requisites before a pre- trial
proper cases; agreement may be used as evidence?
g. Adoption of any evidence presented
during the preliminary investigation; A:
h. Disclosure of defenses of alibi, 1. They are reduced to writing;
insanity, self-defense, exercise of 2. The pre-trial agreement is signed by the accused
public authority and justifying or and his counsel
exempting circumstances; and
i. Such other matters that would limit 4. NON- APPEARANCE DURING PRE-TRIAL
the facts in issue.
3. Define factual and legal issues; Q: What is the effect of non-appearance of counsel
4. Ask parties to agree on the specific trial for the accused or the prosecutor during the pre-
dates and adhere to the flow chart trial without valid justification?
determined by the court which shall
A: The court may impose proper sanctions or
contain the time frames for the different
penalties in the form of reprimand, fines or
stages of the proceeding up to
imprisonment if he does not offer an acceptable
promulgation of decision and use the
excuse for his lack of cooperation (Sec. 3, Rule 118).
time frame for each stage in setting the
trial dates; Note: These sanctions are not applicable on the
5. Require the parties to submit to the accused, because to include him among the mandatory
Branch COC the names, addresses and parties to appear might violate his constitutional right
contact numbers of witnesses that need to remain silent.
to be summoned by subpoena; and
6. Consider modification of order of trial if 5. PRE-TRIAL ORDER
the accused admits the charge but
interposes a lawful defense (A.M. No. 03- Q: What is pre-trial order?
1-09-SC).
A: It is an order issued by the court reciting the
2. WHAT THE COURT SHOULD DO WHEN actions taken, the facts stipulated and the evidence
PROSECUTION AND OFFENDED PARTY AGREE TO marked during the pre-trial conference. Such order
THE PLEA OFFERED BY THE ACCUSED binds the parties and limits the trial to those
matters not disposed of (Sec. 4).
Q: What is the effect if the prosecution and the
offended party agree to the plea offered by the Q: When shall the trial judge issue a pre-trial order
accused? and what are its contents?
A: The court shall: A: It must be issued within ten (10) days after the
1. issue an order which contains the plea termination of the pre-trial. It shall set forth the
bargaining arrived at; following:
2. proceed to receive evidence on the civil 1. Actions taken during the pre-trial
aspect of the case; and conference;
3. render and promulgate judgment of 2. Facts stipulated;
conviction, including the civil liability or 3. Admissions made;
damages duly established by the evidence 4. Evidence marked; and
(A.M. No. 03-1-09-SC). 5. Number of witnesses to be presented and
the schedule of trial (Sec. 4).

CRIMINAL PROCEDURE
6. REFERRAL FOR SOME CASES FOR COURT 1. All civil cases and the civil liability of criminal
ANNEXED MEDIATION AND JUDICIAL DISPUTE cases covered by the Rule on Summary Procedure,
RESOLUTION including the civil liability for violation of B.P. 22,
(A·M. No, 11-1-6-SC-PHILJA) except those which by law may not be
compromised;
Q: What is the purpose of Court Annexed
Mediation and Judicial Dispute Resolution? 2. Special proceedings for the settlement of estates;
3. All civil and criminal cases filed with a certificate
A: The diversion of pending court cases both to to file action issued by the Punong Barangay or the
Court-Annexed Mediation (CAM) and to Judicial PangkatngTagapagkasundounder the Revised
Dispute Resolution(JDR) is plainly intended to put KatarungangPambarangay Law;
an end to pending litigationthrough a compromise 4. The civil aspect of Quasi-Offenses under Title 14
agreement of the parties and therebyhelp solve the of the Revised Penal Code;
ever-pressing problem of court docket congestion. 5. The civil aspect of less grave felonies punishable
It is also intended to empower the parties to by correctional penalties not exceeding 6 years
resolve their own disputes and give practical effect imprisonmentwhere the offended party is a private
to the State Policy expressly stated in the ADR Act person;
of 2004 (R.A. No. 9285), to wit: 6. The civil aspect of estafa, theft and libel;
“to actively promote party autonomy in the 7. All civil cases and probate proceedings, testate
resolution of disputes or the freedom of the and intestate, brought on appeal from the exclusive
parties to make their own arrangement to and original jurisdiction granted to the first level
resolve disputes. Towards this end, the State courts under Section 33, par. (1) of the Judiciary
shall encourage and actively promote the use Reorganization Act of 1980;
of Alternative Dispute Resolution (ADR) as an 8. All cases of forcible entry and unlawful detainer
important means to achieve speedy and brought on appeal from the exclusive and original
impartial justice and de-clog court dockets.” jurisdiction granted to the first level courts under
Section 33, par. (2) of the Judiciary Reorganization
Q: What are the three stages of diversion of cases Act of 1980;
to Court Annexed Mediation and Judicial Dispute (9) All civil cases involving title to or possession of
Resolution? real property or an interest therein brought on
appeal from the exclusive and original jurisdiction
A: granted to the first levelcourts under Section 33,
1.The first stage is the Court-Annexed Mediation par.(3) of the Judiciary Reorganization Act of 1980;
(CAM) where the judge refers the parties to the 13 and
Philippine Mediation Center (PMC) for the (10) All habeas corpus cases decided by the first
mediation of their dispute by trained and level courts in the absence of the Regional Trial
accredited mediators. Court judge, that are brought up on appeal from
2. Upon failing to secure a settlement of the dispute the special jurisdiction granted to thefirst level
during the first stage, a second attempt is made at courts under Section 35 of the Judiciary
the JDR stage. There, the JDR judge sequentially Reorganization Act of 1980.
becomes a mediatorconciliator- early neutral
evaluator in a continuing effort to secure a Q: What are those cases which cannot be referred
settlement. Still failing that second attempt, the to Court Annexed Mediation and Judicial Dispute
mediator-judge must turn over the case to another Resolution?
judge (a new one by raffle or nearest/pair judge)
who will try the unsettled case. The trial judge shall A: The following cases shall not be referred to CAM
continue with the pre-trial proper and, thereafter, and JDR:
proceed to try and decide the case. 1. Civil cases which by law cannot be compromised
3. The third stage is during the appeal where (Article 2035, New Civil Code);
covered cases are referred to the PMC-Appeals 2. Other criminal cases not covered under
Court Mediation (ACM) unit for mediation. paragraphs 3 to 6 above;
3. Habeas Corpus petitions;
Q: What are the cases covered by Court Annexed 4. All cases under Republic Act No. 9262 (Violence
Mediation and Judicial Dispute Resolution? against Women and Children); and
5. Cases with pending application for Restraining
A: Orders/Preliminary Injunctions. However, in cases
The following cases shall be 1) referred to Court- covered under 1, 4 and 5 where the parties inform
Annexed Mediation (CAM) and 2) be the subject of the court that they have agreed to undergo
Judicial Dispute Resolution (JDR) proceedings: mediation on some aspects thereof, e.g., custody of
273
minor children, separation of property, or support applications. During the pre-trial stage, the judge
pendentelite, the court shall refer them to refers the case to CAM, but if the parties do not
mediation. settle at CAM, the case will be raffled to another
branch for JDR. If the parties do not settle at JDR,
Q: What is the duration of mediation in the the case will be returned to the branch that ruled
Philippine Mediation Center? on the applications for the pre-trial proper and up
to judgment.
A: The Mediator shall have a period of not
exceeding thirty (30) days to complete the 2. SINGLE SALA COURT- Unless otherwise agreed
mediation process. Such period shall be computed upon as provided , the JDR proceedings will be
from the date when the parties first appeared for conducted by the judge of the pair court, if any,
the initial conference as stated in the Order to otherwise, by the judge of the nearest court as
appear. An extended period of another thirty (30) determined by the concerned Executive Judge. The
days may be granted bythe court, upon motion filed JDR proceedings shall be conducted at the station
by the Mediator, with the conformity of the parties. where the case was originally filed. The result of the
JDR proceedings shall be referred to the court of
Q: What is the effect of the referral of the case to origin for appropriate action, e.g. approval of the
CAM and JDR? compromise agreement, trial, etc.
A: The period during which the case is undergoing Notwithstanding the foregoing, before the
mediation shall be excluded from the regular and commencement of the JDR proceedings, the parties
mandatory periods for trial and rendition of may file a joint written motion requesting that the
judgment in ordinary cases and in cases under court of origin conduct the JDR proceedings and
summary proceedings. trial.
Q: What is the procedure after the parties reached 3. FAMILY COURTS- Unless otherwise agreed upon
a settlement? as provided below, the JDR proceedings in areas
where only one court is designated as a family
A: If full settlement of the dispute is reached, the court, shall be conducted by a judge of another
parties, assisted by their respective counsels, shall branch through raffle. However, if there is another
draft the compromise agreement which shall be family court in the same area, the family court to
submitted to the court for judgment upon whom the case was originally raffled shall conduct
compromise or other appropriate action. JDR proceedings and if no settlement is reached,
the other family court shall conduct the pre-trial
Where compliance is forthwith made, the parties proper and trial.
shall instead submit a satisfaction of claims or a
mutual withdrawal of the case and, thereafter, the Notwithstanding the foregoing, before
court shall enter an order dismissing the case. If commencement of the JDR proceedings, the parties
partial settlement is reached, the parties shall, with may file a joint written motion requesting that the
the assistance of counsel, submit the terms thereof family court to which the case was originally raffled
for the appropriate action of the court, without shall conduct the JDR proceedings and trial.
waiting for resolution of the unsettled part.
Despite the non-mediatable nature of the principal
In relation to the unsettled part of the dispute, the case, like annulment of marriage, other issues such
court shall proceed to conduct JDR proceedings in as custody of children, support, visitation, property
accordance withPART THREE where JDR is available. relations and guardianship, may be referred to CAM
and JDR to limit the issues for trial.
Q: What is the remedy if the case is not resolved
during JDR? 4. COMMERCIAL, INTELLECT PROPERTY AND
ENVIRONMENTAL COURTS- Unless otherwise
A: agreed upon as provided below, the JDR
1. MULTIPLE SALA COURT- If the case is not proceedings in areas where only one court is
resolved during the JDR, the case shall be raffled to designated as commercial/intellectual
another branch for the pre- trial proper up to property/environmental court, hereafter referred
judgement. to as special court, shall be conducted by another
judge through raffle and not by the judge of the
For cases with pending applications for restraining
special court. Where settlement is not reached, the
orders/preliminary injunctions, the judge to whom
judge of the special court shall be the trial judge.
the case was raffled shall rule on the said
Any incident or motion filed before the pre-trial

CRIMINAL PROCEDURE
stage shall be dealt with by the special court that corpus(Montilla v. Arellano, G.R. No. 123872, Jan. 30,
shall refer the case to CAM. 1998).
Notwithstanding the foregoing, before Q: What is a hearing?

commencement of the JDR proceedings, the parties
may file a joint written motion requesting that the A: Hearing is not confined to trial, but embraces
special courts to which the case was originally several stages of litigation including the pre- trial
raffled shall conduct the JDR proceedings and trial. stage. A hearing does not necessarily imply the
presentation of oral or documentary evidence in
Q: May a case be referred to JDR even during trial? open court but that the parties are afforded an
opportunity to be heard. (Republic v.
A: YES. Cases may be referred to JDR even during Sandiganbayan, 416 SCRA 133, 2003).
the trial stage upon written motion of one or both
parties indicating willingness to discuss a possible Q: In a criminal proceeding, when is the presence
compromise. If the motion is granted, the trial shall of the accused required?
be suspended and the case referred to JDR, which
shall be conducted by another judge through raffle A:
in multiple sala courts. 1. During arraignment;
2. Promulgation of judgment except when the
Q: What is the duty of the court if settlement is conviction is for a light offense, in which
reached during the JDR? case, it may be pronounced in the presence
of his counsel or a representative; and
A: If settlement is reached during JDR, the JDR court 3. When ordered by the court for purposes of
shall take appropriate action thereon, i.e. identification.
approval/disapproval of the compromise
agreement. If settlement is not reached at JDR, the Note: Such requirement has no application to the
case shall be returned to the referring court for proceedings or to the entry and promulgation of the
continuation of trial. judgments before the CA and SC. The defendant need
not be present during the hearing of the appeal (Sec. 9,
In single sala courts, the JDR shall be conducted by Rule 124).
the nearest court (or pair court, if any) regardless of
the level of the latter court. The result of the JDR Q: What is the order of trial in criminal cases?
proceedings shall be referred to the court of origin
for appropriate action, e.g. approval of the A: In criminal cases, unless the accused admits the
compromise agreement, trial, etc. act or omission charged in the complaint or
information but interposes a lawful defense, the
The parties may, by joint written motion, despite trial shall proceed in the following order:
confidential information that may be divulged
during JDR proceedings, file a request that their 1. The prosecution shall present evidence to
case be not transferred to other courts for JDR and prove the charge and, in the proper case,
that they agree to have the trial judge continue the the civil liability.
trial should the case not be settled through JDR. 2. The accused may present evidence to
prove his defense, and damages, if any,
K. TRIAL arising from the issuance of a provisional
remedy in the case.
Q: What is a trial? 3. The prosecution and the defense may, in
that order, present rebuttal and sur-
A: Trial is the examination before a competent rebuttal evidence unless the court, in
tribunal according to the laws of the land, of facts furtherance of justice, permits them to
put in issue in a case for the purpose of determining present additional evidence bearing upon
such issue. the main issue.
4. Upon admission of the evidence of the
After a plea of not guilty is entered, the accused parties, the case shall be deemed
shall have at least fifteen (15) days to prepare for submitted for decision unless the court
trial. The trial shall commence within 30 days from directs them to argue orally or to submit
receipt of pre-trial order. written memoranda (Sec. 11, Rule 119).
Note:
Note: Denial of right to prepare is reversible error; the GR: The order in the presentation of evidence
proper remedy from a judgment of conviction under must be followed. The accused may not be
such case is appeal and not certiorari nor habeas
275
required to present evidence first before the Q: What is continuous trial system?
prosecution adduces its own proof.
A: Trial once commenced shall continue from day to
XPN: Where a reverse procedure was adopted day as far as practicable until terminated. It may be
without the objection of the defendant and such postponed for a reasonable period of time for good
procedure did not prejudice his substantial rights, cause. The entire trial period shall in no case exceed
the defect is not a reversible error. 180 days from the first day of trial, except as
otherwise provided by the SC (Sec. 2).
1. INSTANCES WHEN PRESENCE OF THE ACCUSED
REQUIRED The SC adopted the continuous trial system as a
mode of judicial fact-finding and adjudication
Q: What are the instances when the presence of
conducted with speed and dispatched so that trials
the accused is required by law?
are held on the scheduled dates without
postponement, the factual issues for a trial well
A: The only instances when the presence of the
defined at pre-trial and the whole proceedings
accused is required:
terminated and ready for judgment within ninety
1. Upon arraignment and in entering plea; (90) days from the date of initial hearing, unless for
2. During trial when his presence is necessary meritorious reasons an extension is permitted.
for the purpose of identification;
Note: The non-appearance of the prosecution at the
3. Upon promulgation of judgment except for trial, despite due notice, justifies a provisional
light offenses dismissal or an absolute dismissal depending upon the
4. When the court with due notice requires so. circumstances.
Q: Is there a time limit for the trial of criminal Q: What are the cases where the time limitation is
cases? inapplicable?
A: A:
GR: Trial shall not exceed 180 days from the 1. Criminal cases covered by the Rule on
first day of trial. Summary Procedure;
2. When the offended party is about to
XPNs: depart with no definite date of return;
1. Those governed by the rules on summary 3. Child abuse cases (Sec. 32, R.A. 7610 or
procedure; The Child Abuse Act);
2. Those where the penalty prescribed by 4. Violations of Dangerous Drugs Law; and
law does not exceed 6 months 5. Kidnapping, robbery by a band, robbery
imprisonment or a fine of P1,000 or both; against banking or financial institution,
and violation of Carnapping Act and other
3. Those authorized by the Chief Justice of heinous crimes (Herrera, Vol. IV, p. 796,
the SC. (Sec. 6, R.A. 8493, Speedy Trial 2007 ed.).
Act)
2. REQUISITE BEFORE TRIAL CAN BE SUSPENDED
Note: Commencement of trial may be extended based ON ACCOUNT OF ABSENCE OF WITNESS
on the following conditions:
1. For the 180 days, for the first 12 calendar Q: What are the requisites before a trial can be
month period from the effectivity of the
suspended on account of the absence of a
law.
witness?
2. 120 days for the second 12 month period.
3. 80 days for the third 12 month period. (Sec.
A: That the:
9, R.A. 8493)
1. witness is material and appears to the
Q: What is the effect if the court failed to comply court to be so;
with the mandates of the Speedy Trial Act to 2. party who applies has been guilty of no
terminate the case within the 180 day period? neglect;
3. witnesses can be had at the time to which
A: The judge may be charged administratively, or the trial is deferred and no similar
may be fined, suspended or removed unless his evidence could be obtained; and
failure to comply with the speedy trial act is for 4. affidavit showing the existence of the
reasons not attributable to him. above circumstances must be filed.

CRIMINAL PROCEDURE
Q: What are the remedies of the accused where a Q: What is the remedy if the accused was not
prosecuting officer without just cause secures brought to trial within the time limit?
postponements of the trial against his protest
beyond a reasonable period of time? A: The remedy of the accused is to file a motion to
dismiss the information on the ground of the denial
A: of his right to speedy trial. Failure of the accused to
1. Mandamus to compel a dismissal of the move for dismissal prior to trial shall constitute a
information; or waiver of his right to file a motion to dismiss. The
2. If he is restrained of his liberty, by habeas accused shall have the burden of proving such
corpus to obtain his freedom. denial of right, but the prosecution shall have the
burden of going forward with the evidence to
3. TRIAL IN ABSENTIA establish the exclusion of time.
Q: May trial proceed in the absence of the The dismissal shall be subject to the rules on double
accused? jeopardy. So if the dismissal is with prejudice, the
case cannot be revived anymore. But if the
A: YES. Section 14 (2), Article 3 of the Constitution dismissal is without prejudice, the revival of the
provides that trial may proceed notwithstanding case is proper (Sec. 9, Rule 119).
the absence of the accused provided that he has
been duly notified and his failure to appear is 5. REQUISITES FOR THE DISCHARGED OF THE
unjustifiable. (Parada v. Veneracion, A.M. No.RTJ- ACCUSED TO BECOME A STATE WITNESS
96-1353. March 11, 1997)
Q: Who is a State witness?
Q: What are the requisites for trial in absentia?
A: He is one of two or more persons jointly charged
A: with the commission of a crime but who is
1. The accused has been arraigned; discharged with his consent as such accused so that
2. He has been notified of the trial; and he may be a witness for the State (People v. Ferrer,
3. His failure to appear is unjustified. G.R. No. 102062, Mar. 14, 1996).
Q: What are the effects of trial in absentia? Q: What are the requisites before an accused may
become a State witness?
A: The accused waives the right to present evidence
and cross-examine the witnesses against him. The A:
accused’s waiver does not mean, however, that the 1. There is absolute necessity for the
prosecution is deprived of the right to require the testimony of the accused whose discharge is
presence of the accused for purposes of requested;
identification by the witnesses which is vital for 2. There is no other direct evidence available
conviction of the accused, except where he has for the proper prosecution of the offense
unqualifiedly admits in open court after his committed, except the testimony of the said
arraignment that he is the person named as accused;
defendant in the case on trial. 3. The testimony of said accused can be
substantially corroborated in its material
4. REMEDY IF ACCUSED IS NOT BROUGHT TO TRIAL points;
WITHIN THE PRESCRIBED PERIOD 4. Said accused does not appear to be the
most guilty; and
Q: What is the remedy available to the accused if 5. Said accused has not at any time been
he is not brought to trial within the period convicted of any offense involving moral
prescribed by the Rules of Court? turpitude (Sec. 17, Rule 119).
A: The information may be dismissed on motion of Note: All the requisites must be complied with.
the accused on the ground of denial of his right to (Herrera, Vol. IV, p. 820, 2007 ed.)
speedy trial. The dismissal shall be subject to the
rules on double jeopardy (Sec. 9, Rule 119). Law enforcement officers, even if he would be
testifying against the other law enforcement officers
Note: The trial of an accessory can proceed without cannot be a State witness. In such a case, only the
awaiting the result of separate charge against the immediate members of his family may avail
principal (Vino v. People, G.R. No. 84163, Oct. 19, themselves of the protection provided for under the
1989). Witness Protection Act (Sec. 3, R.A. 6981, Witness
Protection Act).
277
Q: When should the application for discharge of Q: Distinguish Witness Protection Program from
the state witness be made? Sec. 17, Rule 119 of the Rules of Court.
A: It should be made upon motion of the A:

prosecution before resting its case.
Witness Protection
Rules of Court
6. EFFECTS OF THE DISCHARGE Program
The offense in which the
Q: What are the effects of the order discharging testimony is to be used is It has no qualifications. It
the accused as a State witness? limited only to grave applies to all felonies.
felony.
A: The immunity is granted The immunity is granted
GR: by DOJ. by court.
1. Discharge of accused operates as an The witness so
The witness is
acquittal and bar to further prosecution discharged must still
automatically entitled to
for the same offense apply for the enjoyment
certain rights and
2. Evidence adduced in support of the of said rights and benefits
benefits.
discharge shall automatically form part of in the DOJ.
the trial (People v. Feliciano, G.R. No. He is charged in court as
The witness need not be
one of the accused as
136258, Oct. 10, 2001); and charged elsewhere.
stated in the information.
3. If the court denies the motion to
The charges against him
discharge the accused as State witness, No information may thus
shall be dropped and the
his sworn statement shall be inadmissible be filed against the
same operates as an
in evidence (People v. Feliciano, G.R. No. witness.
acquittal.
136258, Oct. 10, 2001).
Q: When will discharge of an accused operate as
XPN: an acquittal?
1. When the accused fails or refuses to testify
against his co-accused in accordance with his A:
sworn statement constituting the basis of his GR: The discharge of the accused shall amount
discharge (Sec. 18). to an acquittal and shall be a bar to future
2. Failure to testify refers exclusively to prosecution for the same offense.
defendant’s will or fault,
3. Where an accused who turns state’s XPN: If the accused fails or refuses to testify
evidence on a promise of immunity but later against his co-accused in accordance with his
retracts and fails to keep his part of the sworn statement constituting the basis of the
agreement, his confession of his participation discharge (Sec. 18, Rule 119).
in the commission of the crime is admissible as
evidence against him. (People v. Beberino GR Q: What shall be done when mistake has been
No L-23213 October 28, 1977) made in charging the proper offense?
Note: Discharge under this rule is only one of the A: When it becomes manifest at any time before
modes to be a State witness. Other modes are: judgment that a mistake has been made in charging
the proper offense and the accused cannot be
1. The Witness Protection Program of R.A. convicted of the offense charged or any other
6981;
offense necessarily included therein, the accused
2. The power of the Ombudsman to grant
shall not be discharged if there appears to be a
immunity under Sec. 17, R.A. 6770.
good cause to detain him. In such case, the court
Q: What are the effects if the discharged accused shall commit the accused to answer for the proper
retracts or fails to comply with his part of the offense and dismiss the case upon filing of the
agreement? proper information (Sec. 19, Rule 119).
Note: This rule is predicated on the fact that an

A: If the retraction or failure to testify is solely his
accused has the right to be informed of the nature and
fault, his confession of his participation in the
cause of the accusation against him, and to convict
commission of the crime is admissible as evidence him of an offense different from that charged in the
(People v. Beberino, G.R. No. L-23092, Oct. 28, complaint or information would be an unauthorized
1977). denial of that right.

CRIMINAL PROCEDURE
7. DEMURRER TO EVIDENCE the proceedings (People v. Mahinay, G.R. No.

109613, July 17, 1995).
Q: What is demurrer to evidence?
Note: If the demurrer is sustained by the court, the
A: It is an objection by one of the parties in an order of dismissal is tantamount to an acquittal. Hence
action to the effect that the evidence which his it is NOT appealable.
adversary produced is insufficient in point of law,
whether true or not, to make out a case or sustain L. JUDGMENT
the issue.
1. REQUISITES OF A JUDGMENT
Q: What is the rule on demurrer of evidence?
Q: What is judgment?
A:
How made A: It is an adjudication by the court that the accused
1. Court on its own initiative; or is guilty or not guilty of the offense charged and the
2. Upon filing of the accused for demurrer of imposition of the proper penalty and civil liability, if
evidence: any (Sec. 1). It is a judicial act which settles the
a. With leave of court; or issues, fixes the rights and liabilities of the parties,
b. Without leave of court and is regarded as the sentence of the law
When made pronounced by the court on the action or question
After the prosecution rests its case before it (Sec. 1, Rule 120).
Ground
Insufficiency of evidence Q: What are the requisites of judgment?
Effect
The court may dismiss the case (Sec. 23) A: It must be:
1. Written in official language;
2. Personally and directly prepared by the
Q: Distinguish the effect of filing a demurrer with judge;
leave of court from filing a demurrer without 3. Signed by the judge; and
leave? 4. Contain clearly and distinctly a statement
of the facts and the law upon which it is
A: based (Sec. 1, Rule 120).
Demurrer With Leave of Demurrer Without Leave
Court of Court Note: Decisions of the court shall contain the facts and
If demurrer is denied, it is the law on which they are based (Sec. 14, Art. VIII,
tantamount to a waiver 1987 Constitution). The rationale is that the losing
of the accused’s right to party is entitled to know why he lost, so he may appeal
If leave of court is denied,
present evidence and as to a higher court.
the accused may proceed
a consequence the case
with presenting his
will be submitted for Q: How is entry of judgment made?
evidence
judgment on the basis of
the evidence for the A: The recording of the judgment or order in the
prosecution. book of entries of judgments shall constitute its
If leave of court is entry. The record shall contain the dispositive part
granted, the accused of the judgment order and shall be signed by the
may file the demurrer to clerk, with a certificate that such judgment or order
evidence within ten (10) If demurrer is granted, has become final and executory(Sec. 2, Rule 36).
days. The prosecution the case will be
may however, oppose dismissed, and will result Q: What is mittimus?
the demurrer to evidence to an acquittal of the
within a non-extendible accused (Sec.23). A: It is a process issued by the court after conviction
period of ten (10) days to carry out the final judgment, such as
from the receipt of the
commanding a prison warden to hold the accused
demurrer.
in accordance with the terms of judgment.
Q: What is the purpose of leave of court in Q: What is reasonable doubt?
demurrer to evidence?
A: Reasonable doubt is defined as the state of the
A: To determine whether or not the defendant in a case which, after full consideration of all evidence,
criminal case has filed the demurrer merely to stall leaves the mind of the judge in such a condition
279
that he cannot say that he feels an abiding b. In either case, the judgment shall determine if
conviction toa moral certainty of the truth of the the act or omission from which the civil liability
charge. might arise did exist (Sec. 2, Rule 120).
Q: What is acquittal? Q: What is the rule regarding a judgment for two

or more offenses charged in the complaint or
A: An acquittal is a finding of not guilty based on information?
the merits, that is, the accused is acquitted because
the evidence does not show that his guilt is beyond A: The court may convict the accused of as many
reasonable doubt, or a dismissal of the case after offenses as are charged and proved, and impose
the prosecution has rested its case upon motion of the penalty for each offense, setting out separately
the accused on the ground that the evidence fails to the findings of fact and law in each offense (Sec. 3)
show beyond reasonable doubt that the accused is
guilty, Note: Failure of the accused to object to the duplicity
of offense charged in the complaint or information, is
Note: It is well settled that acquittal, in a criminal case deemed a waiver thereof (Herrera, Vol. IV, p. 882,
is immediately final and executor upon its 2007 ed.).
promulgation, and that accordingly, the State may not
seek its review without placing the accused in double Q: What is the rule regarding a judgment in case of
jeopardy (Barbers v. Laguio Jr., AM No. RTJ-00-1568, variance between the offense charged and
February 15, 2001). proved?
Q: Is there a maximum duration for the court’s A:

sentence? GR: An accused can be convicted of an offense only
when it is both charged and proved; if it is not
A: YES. In the service of sentence, the maximum charged although proved, or if it is not proved
duration of the court’s sentence shall not be more although charged, the accused CANNOT be
than three- fold the length of time corresponding to convicted thereof.
the most severe of the penalties imposed upon the
accused, and such maximum shall in no case exceed XPN: Where there is a variance between the
forty years. offense charged in the complaint or information
and that proved AND the offense as charged is
2. CONTENTS OF JUDGMENT included in or is necessarily includes the offense
proved, the accused shall be convicted of the
Q: What are the contents of judgment? offense proved which is included in the offense
charged, or of the offense charged which is
A: The judgment must state: included in the offense proved. (Sec. 4).
1. If of conviction
a. Legal qualification of the offense Note: An accused cannot be convicted of an offense
constituted by the acts committed by not charged or included in the information for this will
the accused, and the aggravating or be in violation of the constitutional right of the
mitigating circumstances attending accused to be informed of the nature of the offense
its commission; charged against him (Herrera, Vol. IV, p. 882, 2007 ed.).
b. Participation of the accused whether
as principal, accomplice or accessory; Q: What happens when an offense includes or is
c. Penalty imposed upon the accused; included in another?
and
d. Civil liability or damages caused by A:
the wrongful act or omission unless a GR: If what is proved by the prosecution evidence is
separate civil action has been an offense which is included in the offense charged
reserved or waived. in the information, the accused may validly be
convicted of the offense proved.
2. If of acquittal
a. Whether the evidence of the An offense charged NECESSARILY INCLUDES the
prosecution absolutely failed to offense proved when some of the essential
prove the guilt of the accused or ingredients or ingredients of the former as alleged
merely failed to prove his guilt in the complaint or information constitute the
beyond reasonable doubt; and latter.

CRIMINAL PROCEDURE
An offense charged NECESSARILY INCLUDED in the Q: What is probation?

offense proved when the essential ingredients of
the former constitute or form part of those A: A disposition under which a defendant, after
constituting the latter. conviction and sentence, is subject to conditions
imposed by the court and under the supervision of
XPN: Where the facts supervened after the filing of a probation officer (Sec. 3, PD 968, Probation Law).
information which changed the nature of the
offense.(Sec. 5). 3. PROMULGATION OF JUDGMENT; INSTANCES OF
PROMULGATION OF JUDGMENT IN ABSENTIA
Note: An accused cannot be convicted for the lesser
offense necessarily included in the crime charged if at Q: What is promulgation of judgment?
the time of the filing of the information, the lesser
offense has already prescribed (Francisco v. CA, G.R. A: It is the official proclamation or announcement
No. L-45674, May 30, 1983). of judgment. It consists of reading the judgment or
sentence in the presence of the accused and any
Q: What is the effect of the judgment of conviction judge of the court rendering the judgment.
upon a minor?
Q: How is judgment promulgated?
A: The courts shall promulgate the sentence and
ascertain any civil liability which the accused may A: It is promulgated by reading it in the presence of
have incurred. The sentence, however, shall be the accused and any judge of the court which
suspended without need of application pursuant to rendered it (Sec. 6).
P.D. 603 or the Child and Youth Welfare Code. In
which case, the child shall have been committed Q: Is the accused required to be present during the
under the care of the DSWD or any other accredited promulgation of judgment?
government institution until he reaches the age of
twenty one (21) or until the court so determines A:
(Sec. 40, R.A. 9344, Juvenile Justice and Welfare Act GR: Yes.
of 2006).
XPNs:
Q: What are the exceptions for suspension of 1. In case of acquittal;
sentence of youthful offenders? 2. Conviction of light offense wherein the
judgment may be pronounced in the
A: Offender: presence of the accused’s counsel or
1. has enjoyed previous suspension of representative; and
sentence; 3. Promulgation of judgment when the
2. is convicted of a crime punishable by accused was tried in absentia(Sec. 6).
death or life imprisonment;
3. is convicted by a military tribunal; or Q: Who promulgates the judgment?
4. is already of age at the time of sentencing
even if he was a minor at the time of the A:
commission of the crime (Declarador v. GR: The judge of the court who renders the
Gubaton, G.R. No. 159208, Aug. 18, judgment.
2006).
XPN: When:
Q: What if the minor already reached the age of 1. The judge is absent or outside the
majority upon the promulgation of his sentence? province or city – judgment may be
promulgated by the clerk of court; and
A: He is no longer entitled to the suspension of 2. Accused is confined or detained in another
sentence. However, the time he spent during the city – judgment may be promulgated by
period of his confinement shall be credited to his the executive judge of the RTC having
actual service of sentence. Furthermore, he shall jurisdiction over the place of confinement
still be entitled to the privileged mitigating or detention (Sec. 6).
circumstance of minority (People v. Francisco, G.R.
No. 102976, Oct. 25, 1995; R.A. 9344, Juvenile Q: Is the presence of the accused indispensable in
Justice and Welfare Act of 2006). the promulgation of judgment?
A: No. The promulgation shall still be made by

recording such judgment in the criminal docket and
281
serving him a copy thereof in his last known address Q: What is the remedy if the judgment fails to
or through his counsel. If judgment is one of award civil liability?
conviction and the accused is absent without
justifiable cause, the court shall order his arrest and A:
he shall lose the remedies available in the rules 1. Appeal;
against judgment and his bail shall be forfeited. 2. Certiorari; or
3. Mandamus
However, the accused may surrender and file a
motion for leave of court to avail of these remedies 4. WHEN DOES JUDGMENT BECOME FINAL (FOUR
within fifteen (15) days from the promulgation of INSTANCES)
judgment. If such motion is granted, he may avail of
these remedies within fifteen (15) days from notice Q: When does judgment becomes final?
of such order granting the motion (Sec. 6).
A: Judgment becomes final:
Note: He must however, state the reasons for his 1. After the lapse of time for perfecting an
absence at the promulgation and prove that his appeal
absence was for a justifiable cause. 2. When the sentence has been partially or
totally satisfied
Q: What are the instances when judgment may be 3. When the accused has expressly waived
promulgated even if the accused is not present? in writing his right to appeal
4. When the accused has applied for
A: probation
1. Judgment is for a light offense, in which
case judgment may be promulgated in the Q: When may the trial court lose jurisdiction even
presence of the counsel for the accused before the lapse of the 15 day period?
or a representative.
2. Accused fails to attend the promulgation A: The trial court loses jurisdiction even before the
despite due notice or if he jumped bail or lapse of the 15 day period when:
escaped from prison. Notice must be
given to the bondsmen, warden, 1. The defendant voluntarily submits to the
accused’s bailor and counsel (Sec. 6). execution of the judgment;
2. When the defendant perfects an appeal;
Q: How is promulgation in absentia conducted? 3. Defendant withdraws his appeal;
4. Accused expressly waives in writing his right to
A: Promulgation shall be made by: appeal;
1. Recording the judgment in the criminal 5. Accused files for probation.
docket; and
2. Serving the accused a copy thereof at his
last known address or through his
counsel.
M. NEW TRIAL OR RECONSIDERATION
1. GROUNDS FOR NEW TRIAL

2. GROUNDS FOR RECONSIDERATION
Q: Distinguish new trial from reconsideration?
A:
New trial Reconsideration
Rehearing of a case already decided but before the
judgment of conviction therein rendered has become
May be filed in order to correct errors of law or fact in the
final, whereby errors of law or irregularities are
judgment. It does not require any further proceeding.
expunged from the record or new evidence is
introduced, or both steps are taken
Grounds: Grounds:
1. Errors of law or irregularities prejudicial to the
substantial rights of the accused have been 1. Errors of law; or
committed during the trial.

CRIMINAL PROCEDURE
2. New and material evidence has been discovered 2. Errors of fact (Sec. 3).
which the accused could not, with reasonable
diligence, have discovered and produced at the trial Note: The principle underlying this rule is to afford the trial
and which if introduced and admitted would court the opportunity to correct its own mistakes and to
probably change the judgment (Sec. 2). avoid unnecessary appeals from being taken. The grant by
the court of reconsideration should require no further
3.Other grounds which the court may consider in the proceedings, such as taking of additional proof.
exercise of its jurisdiction :
a. Negligence or incompetency of counsel or mistake
which is so gross amounting to deprivation of the
substantial rights of the accused and due process;
(Aguilar v. Court of Appeals GR No. 114282,
November 28, 1995)
b. Recantation of a witness where there is no
evidence sustaining the judgment of conviction
other than the testimony of such witness; (Tan Ang
Bun v. Court of Appeals GR No
c. Improvident plea of guilty which may be
withdrawn;
d. Disqualification of attorney de officio to represent
accused in trial.
Q: When should a motion for new trial or Q: What should be the form of a motion for new
consideration be filed? trial or reconsideration?
A: It should be filedwith the trial court within 15 A: The motion must:

days from the promulgation of the judgment. 1. be in writing;
2. filed in court;
Note: Notice of the motion for new trial or 3. state the grounds on which it is based;
reconsideration shall be given to the prosecutor. and
4. if the motion for new trial is based on
Q: When should a motion for reconsideration of newly discovered evidence, it must be
any final order or order be filed in cases before the supported by the affidavits of the witness
Sandiganbayan? by whom such evidence is expected to be
given or duly authenticated copies of
A: It may be filed within fifteen (15) days from the documents which it is proposed to
promulgation or notice of final order or judgment introduce in evidence (Sec. 4).
(Sec. 5, R.A. 8249).
Note: Such motion for reconsideration shall be Note: While the rule requires that an affidavit of
decided within 30 days from submission (Sec. 5, R.A. merits be attached to support a motion for new trial
8249). based on newly discovered evidence, the rule also
allows that the defect of lack of merit may be cured by
Q: When may a new trial granted? the testimony under oath of the defendant at the
hearing of the motion (Paredes v. Borja, G.R. No. L-
A: It may be granted at any time before the 15559, Nov. 29, 1961).
judgment of conviction becomes final on motion of
the accused or the court with the consent of the Q: What is recantation? Is it a ground for new
accused (Sec. 1). trial?
Note: The award of new trial or taking of additional A: Recantation is the public and formal withdrawal
evidence rests upon the sound discretion of the court. of a witness of his prior statement (People v.
Once the appeal is perfected, the court a quo loses Ballabare, G.R. No. 108871, Nov. 19, 1996). It is not
jurisdiction over it, except for the purpose of
a ground for new trial because it makes a mockery
correcting clerical errors. In such case, the appellate
of the court and would place the investigation of
court steps in. When new material evidence has been
truth at the mercy of unscrupulous witness.
discovered, the accused may file a motion for new trial
with the appellate court. Moreover, retractions are easy to extort out of
witness. In contrast, their statements are made
under oath, in the presence of judge, and with the
opportunity to cross-examine.
283
Q: Distinguish recantation from desistance. the client, who otherwise has a good cause, is
prejudiced and denied his day in court, the
A: litigation may be reopened to give the client
Recantation Affidavit of Desistance another chance to present his case (Abrajano v.
A witness who CA, G.R. No. 114282, Oct. 13, 2000).
previously gave a
testimony The complainant states that 4. EFFECTS OF GRANTING A NEW TRIAL OR
subsequently declares he did not really intend to RECONSIDERATION
that his statements are institute the case and he is
untrue publicly (People no longer interested in Q: What are the effects of granting a new trial or
v. Ballabare, G.R. No. testifying or prosecuting. reconsideration?
108871, Nov. 19,
1996). A: In all cases, when the court grants a new trial or
GR: It is not a ground reconsideration, the original judgment shall be set
for granting a new trial It is not by itself a ground aside or vacated and a new judgment rendered
and are hardly given for dismissal of the action
accordingly.
weight (People v. Ramirez, G.R.
Nos. 150079-80, June 10,
In addition, when granted on the ground of:
XPN: When there is no 2004).
1. Errors of law or irregularities committed
evidence sustaining the
during the trial
judgment of conviction It is merely an additional
other than the ground to buttress the a. All proceedings and evidence not
testimony of the defense and not a sole affected by such errors and
recanting witness (Tan consideration for acquittal irregularities shall stand;
Ang Bun v. CA, G.R. No. (People v. Ballabare, G.R. b. Those affected shall be set aside and
L-47747, Feb. 15, No. 108871, Nov. 19, 1996). taken anew; and
1990). c. In the interest of justice, the court may
allow the introduction of additional
3. REQUISITES BEFORE A NEW TRIAL MAY BE evidence.
GRANTED ON GROUND OF NEWLY DISCOVERED
EVIDENCE 2. Newly discovered evidence
a. The evidence already taken shall stand;
Q: What are the requisites before a new trial may b. Newly discovered and other evidence
be granted on the ground of newly discovered as the court may, in the interest of
evidence? justice, allow to be introduced, shall be
taken and considered together with the
A: That: evidence already in the record (Sec. 6).
1. the evidence was discovered after trial;
2. such evidence could not have been Note: The effect of granting a new trial is not to acquit
discovered and produced at the trial even the accused of the crime of which the judgment finds
with the exercise of reasonable diligence; him guilty but precisely to set aside said judgment so
3. it is material, not merely cumulative, that the case may be tried de novo as if no trial had
corroborative or impeaching; and been had before.
4. the evidence is of such a weight that it
would probably change the judgment if 5. APPLICATION OF NEYPES DOCTRINE IN
admitted (Herrera, Vol. IV, p. 935, 2007 CRIMINAL CASES
ed.).
Q: What is the effect of filing a motion for new
Q: May errors or ignorance of counsel be a ground trial or reconsideration on the period of perfecting
for new trial or consideration? an appeal?
A: A: A fresh period of fifteen (15) days to appeal is

GR: Mistakes or errors of counsel in the conduct counted from the denial of the motion for
of his case are not grounds for new trial. This rule reconsideration or new trial (Neypes v. CA, G.R. No.
is the same whether the mistakes are the result 141524, Sept. 14, 2005).
of ignorance, inexperience, or incompetence.
Note: Denial of a motion for reconsideration or new
XPN: If the incompetence, ignorance or trial is not appealable nor subject of certiorari; but it
may be raised as an error on appeal.
inexperience of counsel is so great and the error
committed as a result thereof is so serious that

CRIMINAL PROCEDURE
Q: Distinguish new trial from reopening of the stops running upon the filing of a motion for new
case. trial or reconsideration and starts to run again upon
receipt of the order denying said motion for new
A: trial or reconsideration. It was this situation that
New Trial Re-opening of the Case Neypes addressed in civil cases. No reason exists
Made by the court before why this situation in criminal cases cannot be
Filed after judgment is
the judgment is rendered similarly addressed.
rendered but before the
in the exercise of sound
finality thereof.
discretion. Third, while the Court did not consider in Neypes
Does not require the the ordinary appeal period in criminal cases under
Made by the court on
consent of the accused; Section 6, Rule 122 of the Revised Rules of Criminal
motion of the accused or
may be at the instance of Procedure since it involved a purely civil case, it did
at its own instance but
either party who can include Rule 42 of the 1997 Rules of Civil Procedure
with the consent of the
thereafter present
accused. on petitions for review from the RTCs to the Court
additional evidence.
of Appeals (CA), and Rule 45 of the 1997 Rules of
Civil Procedure governing appeals by certiorari to
Q: What is the “fresh period rule” as enunciated in
this Court, both of which also apply to appeals in
Neypes?
criminal cases, as provided by Section 3 of Rule 122
A: In Neypes, the Court modified the rule in civil
of the Revised Rules of Criminal Procedure.
cases on the counting of the 15-day period within
which to appeal. The Court categorically set a fresh N. APPEAL
period of 15 days from a denial of a motion for
reconsideration within which to appeal. 1. EFFECT OF AN APPEAL
The "fresh period rule" shall also apply to Rule 40
Q: What are the modes of review?
governing appeals from the Municipal Trial Courts
to the Regional Trial Courts; Rule 42 on petitions for A: The Rules of Court recognize four modes by
review from the Regional Trial Courts to the Court which the decision or final order of the court may
of Appeals; Rule 43 on appeals from quasi-judicial be reviewed by a higher tribunal:
agencies to the Court of Appeals and Rule 45 1. Ordinary Appeal;
governing appeals by certiorari to the Supreme 2. Petition for Review;
Court. The new rule aims to regiment or make the 3. Petition for Review on Certiorari;
appeal period uniform, to be counted from receipt 4. Automatic Appeal
of the order denying the motion for new trial,
motion for reconsideration (whether full or partial)
Q: What is appeal?
or any final order or resolution (Neypes v. Court of
Appeals, G.R. No. 141524, September 14, 2005).
A: It is a proceeding for review by which the whole
case is transferred to the higher court for a final
Q: Does the “fresh period rule” apply to criminal
determination. It is not an inherent right of a
cases?
convicted person. The right of appeal is statutory.
A: Yes. The Court held in the case of Yu v. Samson- Only final judgments and orders are appealable.
Tatad(G.R. No. 170979, Feb. 9, 2011) that the
Q: Who may appeal?
pronouncement of a “fresh period” to appeal
should equally apply to the period for appeal in
A: Any party may appeal from a judgment or final
criminal cases under Section 6 of Rule 122, for the
order, unless the accused will be placed in double
following reasons:
jeopardy (Sec. 1).
First, BP 129, as amended, the substantive law on
Q: What is the effect of an appeal?
which the Rules of Court is based, makes no
distinction between the periods to appeal in a civil A: An appeal in a criminal case opens the whole
case and in a criminal case. case for review and this includes the review of
penalty, indemnity, and the damages involved.
Second, the provisions of Section 3 of Rule 41 of the
Consequently, on appeal, the appellate court may
1997 Rules of Civil Procedure and Section 6 of Rule
increase the penalty and indemnity of damages
122 of the Revised Rules of Criminal Procedure
awarded by the trial court although the offended
mean exactly the same. There is no substantial
party had not appealed from said award, and the
difference between the two provisions insofar as
party who sought a review of the decision was the
legal results are concerned – the appeal period
accused.
285
Note: When an appeal has been perfected, the court a Q: May the prosecution appeal a judgment of
quo loses jurisdiction. acquittal?
Q: What is the difference between the appeal of a A:

judgment nd the appeal of an order? GR: No, because the accused would be
subjected to double jeopardy.
A: The appeal from a judgment must be perfected
within 15 days from promulgation. The appeal from XPNs:
an order should be perfected within 15 days from 1. If the dismissal is made upon motion or
notice of the final order. with the express consent of the accused.
However, double jeopardy will still attach
2. WHERE TO APPEAL if the dismissal is based on:
a. Insufficiency of the prosecution
Q: When is appeal taken? evidence; or
b. Violation of the accused’s right to
A: An appeal must be filed within fifteen (15) days speedy trial.
counted from the promulgation or notice of the 2. If the dismissal is not an acquittal or
judgment or order appealed from. based upon consideration of the evidence
on the merits;
Q: Where is the appeal taken?
3. If the question is purely legal so that
should the dismissal be found incorrect,
A: To the:
the case shall be remanded for further
1. RTC, in cases decided by the MTC, MTCC,
proceedings to determine the guilt or
MeTC, or MCTC;
innocence of the accused; and
2. CA or to the SC in the proper cases
4. If there is a showing of grave abuse of
provided by law, in cases decided by the
discretion amounting to lack or excess of
RTC;
jurisdiction, certiorari under Rule 65 may
3. SC, in cases decided by the CA (Sec. 2).
be available.
3. HOW IS APPEAL TAKEN (AMENDED BY AM 00-5-03-SC, October 3, 2002)
Q: How is appeal taken?
A:
Appeal
From decision of How taken
to
1. File a notice of appeal with the MTC;
RTC MTC
2. Serve a copy of the notice to the adverse party.
RTC
1. Exercising its original jurisdiction for
1. File a notice of appeal with the RTC;
offenses with imposable penalties less
than reclusion perpetua or life
imprisonment
2. Exercising its appellate jurisdiction File a petition for review under Rule 42.
3. Where the imposable penalty is:
CA a. life imprisonment or reclusion
perpetua; or
b. a lesser penalty for offenses
1. File a notice of appeal with the RTC;
committed on the same occasion or
which arose from the same
occurrence that gave rise to the
offense punishable reclusion perpetua
or life imprisonment
4. Where the imposable penalty is death Automatic review to CA (Sec. 10)

CRIMINAL PROCEDURE
1. All other appeals except:

a. Decision of RTC where the imposable
penalty is life imprisonment or
reclusion perpetuaor a lesser penalty
for offenses committed on the same
occasion or which arose from the Petition for review on certiorari via Rule 45
same occurrence that gave rise to the
offense punishable by reclusion
perpetua or life imprisonment; and
b. Decisions of RTC imposing the penalty
of death.
2. CA
a. When it finds that death penalty Automatic review (Sec. 13, Rule 124)
should be imposed
b. Where it imposes reclusion perpetua,
SC Notice of appeal (Sec. 13, Rule 124)
life imprisonment or a lesser penalty
3. Sandiganbayan
a. Exercising its appellate jurisdiction
File a notice of appeal
for offenses where the imposable
penalty is reclusion perpetua or life
imprisonment
b. Exercising its original jurisdiction for
offenses where the imposable File a notice of appeal (Sec. 13, Rule 124; Sec. 5, PD
penalty is reclusion perpetua and life 1606 as amended by R.A. 8249)
imprisonment
c. Exercising its original or appellate
Automatic review (Sec. 13, Rule 124; Sec. 5, PD 1606
jurisdiction where it finds that the
as amended by R.A. 8249)
penalty to be imposed is death
d. Cases not falling in paragraphs a and
Petition for review on certiorari via Rule 45
b above
4. EFFECT OF APPEAL BY ANY OF SEVERAL 5. GROUNDS FOR DISMISSAL OF APPEAL

ACCUSED
Q: What are the grounds for the dismissal of an
Q: What are the effects of appeal by any of the appeal?
several accused?
A:
A: 1. Failure of the record on appeal to show
1. An appeal taken by one or more of on its face that the appeal was taken
several accused shall not affect those who within the period fixed by these Rules;
did not appeal, except insofar as the 2. Failure to file the notice of appeal or the
judgment of the appellate court is record on appeal within the period
favorable and applicable to the latter; prescribed by these Rules;
2. The appeal of the offended party from 3. Failure of the appellant to pay the docket
the civil aspect shall not affect the and other lawful fees as provided in
criminal aspect of the judgment or order section 5 of Rule 40 and section 4 of Rule
appealed from; and 41;
3. Upon perfection of the appeal, the 4. Unauthorized alterations, omissions or
execution of the judgment or final order additions in the approved record on
appealed from shall be stayed as to the appeal as provided in section 4 of Rule 44;
appealing party (Sec. 11). 5. Failure of the appellant to serve and file
the required number of copies of his brief
Note: In People v. Fernandez (G.R. No. 80481, June 27, of memorandum within the time provided
1990), the SC applied the benefit of an acquittal by these Rules;
handed down in an appeal to an accused who jumped 6. Absence of specific assignment of errors
bail or escaped. in the appellant’s brief, or of page
references to the record as required in
287
section 13, paragraphs (a), (c), (d) and (f) 5. It is interlocutory in character- it leaves
of Rule 44; something more to be done, the
7. Failure of the appellant to take the determination of the guilt of the accused.
necessary steps for the correction or
completion of the record within the time Q: What are the requisites for issuing a search
limited by the court in its order; warrant?
8. Failure of the appellant to appear at the
preliminary conference under Rule 48 or A:
to comply with orders, circulars, or 1. The search warrant must be issued upon
directives of the court without justifiable probable cause;
cause; and 2. Probable cause must be determined by
9. The fact that the order or judgment the judge;
appealed from is not appealable (Rule 50) 3. The judge must have personally examined
the witness, in the form of searching
O. SEARCH AND SEIZURE questions and answers, the applicant and
his witnesses and took down their
1. NATURE OF SEARCH WARRANT depositions;
4. Must particularly describe or identify the
Q: What is a search warrant? property to be seized as far as the
circumstances will ordinarily allow;
A: A search warrant is an order in writing issued in 5. Must particulary describe the place to be
the of the People of the Philippines, signed by the searched and the person or things to be
judge and directed to a peace officer, commanding seized;
him to search for personal property described 6. Must be in connection with one specific
therein and bring it before the court. offense:
7. The sworn statements together with the
Note: The warrant MUST name the person upon affidavit submitted by witnesses must be
whom it is to be served EXCEPT in those cases where it attached to the record. (Prudente v.
contains a DESCRIPTIO PERSONAE such as will enable Dayrit GR No. 82870, December 14, 1989);
the officer to identify the person. The description must 8. It must not have been issued more than
be sufficient to indicate clearly the proper person upon 10 days prior to the search made
whom it is to be served. (People v. Veloso GR No L- pursuant thereto.
23051, October 20, 1925)
Note: Two points must be stressed in connection with
Q: What is a general warrant? this mandate: (1) that NO warrant of arrest shall issue
but upon probable cause to be determined by the
A: A general warrant is a search warrant which judge in the manner set forh in said provision, and (2)
vaguely describes and does not particularize the that the warrant shall particularly describe the things
personal properties to be seized without a definite to be seized. (Stonehill v. Diokno, G.R. No. L-19550,
guidelines to the searching team as to what items June 19, 1967)
might be lawfully seized, thus giving the officers of
the law discretion regarding what articles they Q: Distinguish Search from Seizure.
should seize.
A: The term search as applied to searches and
NOTE: A general warrant is not valid as it infringes on seizures is an examination of a man’s house or
the constitutional mandate requiring particular other buildings or premises or of his person with a
description of the things to be seized. view to the discovery of contraband or illicit or
stolen property or some evidence of guilt to be
Q: What is the nature of a search warrant? used in the prosecution of a criminal action for
some offense with which he is charged.
A:
1. Search warrants are in the nature of A seizure is the physical taking of a thing into
criminal process and may be invoked only custody.
in furtherance of public prosecutions;
2. Search warrants have no relation to civil
process or trials; and
3. They are not available to individuals in the
course of civil proceedings;
4. It is not for the maintenance of any mere
private right;

CRIMINAL PROCEDURE
2. DISTINGUISH FROM WARRANT OF ARREST 3. APPLICATION FOR SEARCH WARRANT, WHERE

FILED
Q: Distinguish a warrant of arrest from a search
warrant. Q: Where should an application for a search
warrant be filed?
A:
Warrant of Arrest Search Warrant A:
GR: It should be filed with the court within whose
Order directed to the Order in writing in the territorial jurisdiction the crime was committed. For
peace officer to execute name of the Republic of compelling reasons, any court within the judicial
the warrant by taking the the Philippines signed by region where the crime was committed if the place
person stated therein into the judge and directed to of the commission of the crime is known, or any
custody so that he may be the peace officer to search court within the judicial region where the warrant
bound to answer for the personal property shall be enforced
commission of the described therein and to
offense. bring it to court.
XPNs:
Does not become stale. Validity is for 10 days only.
1. However, if the criminal action has been
filed, the application shall only be made in
To be served only in
the court where the criminal action is
daytime unless the
May be served on any day pending (Sec. 2);
affidavit alleges that the
and at any time of day or 2. In case of search warrant involving
property is on the person
night. heinous crimes, illegal gambling, illegal
or in the place to be
searched. possession of firearms and ammunitions
as well as violations of the
Must personally conduct Comprehensive Dangerous Drugs Act of
Searching examination of an examination of the 2002, the Intellectual Property Code, the
witnesses is not necessary. complainant and the Anti- Money Laundering Act of 2001, the
witnesses. Tariff and Customs Code, the Executive
judges and whenever they are on official
Examination must be leave of absence or are not physically
Judge is merely called
probing. Not enough to present in the station, the Vice- Judges of
upon to examine and
merely adopt the RTCs of Manila and Quezon City shall have
evaluate the report of the
questions and answers the authority to act on the application
prosecutor and the
asked by a previous filed by the NBI, PNP and the Anti- Crime
evidence
investigator
Task Force (ACTAF). (Administrative
Matter No. 99-10-09-SC)
Note: In general, the requirements for the issuance of
Note: The application shall be personally
a search warrant are more stringent than the
endorsed by the heads of such agencies and
requirements for the issuance of a warrant of arrest.
shall particularly described therein the
The violation of the right to privacy produces a
places to be searched and/ or the property
humiliating effect which cannot be rectified anymore.
or things to be seized as prescribed in the
This is why there is no other justification for a search,
Rules of Court. The Executive Judges and the
except a warrant. On the other hand, in a warrant of
Vice- Exceutive Judges concerned shall issue
arrest, the person to be arrested can always post bail
the warrants if justified, which may be
to prevent the deprivation of liberty.
served outside the territorial jurisdiction of
said courts. (Sps. Marimla v. People of the
Q: Why are the requirements for the issuance of a Philippines, GR No. 158467, October 16,
search warrant more stringent than the 2009)
requirements for the issuance of a warrant of
arrest? 4. PROBABLE CAUSE
A: The violation of the right to privacy produces a Q: What is probable cause?

humiliating effect which cannot be rectified
anymore. This is why there is no other justification A: It refers to the facts and circumstances which
for a search, except a warrant. On the other hand, could lead a reasonably discreet and prudent man
in a warrant of arrest, the person to be arrested can to believe that an offense has been committed and
always post bail to prevent the deprivation of that the objects sought in connection with the
liberty. offense are in the place sought to be searched
289
(Burgos v. Chief of Staff, G.R. No. L-65334, Dec. 26, 4. It must be probing and exhaustive, not
1984). merely routinary or pro forma (Roan v.
Gonzales, G.R. No. 71410, Nov. 25, 1986);
Q: What are the requisites in determining the and
existence of probable cause? 5. It is done ex-parte and may even be held
in the secrecy of chambers (Mata v.
A: Bayona, G.R. No. L-50720, Mar. 26, 1984).
1. The judge must examine the complainant 6. PARTICULARITY OF PLACE TO BE SEARCHED AND
and his witness personally; THINGS TO BE SEIZED
2. The examination must be under oath; and
3. The examination must be reduced in Q: What are the kinds of personal properties to be
writing in the form of searching questions seized by virtue of a search warrant?
and answers (People v. Mamaril, 420
SCRA 662) A:
1. Subject of the offense;
Q: Who determines probable cause? 2. Stolen or embezzled and other proceeds
or fruits of the offense; and
A: 3. The means used or intended to be used as
GR: Probable cause must be determined the means of committing an offense (Sec.
personally by the judge (Article 3, Section 2, 3).
1987 Constitution) Note: It is not required that the property to be seized
should be owned by the person against whom the
XPN: Deportation of illegal and undesirable search warrant is directed. It is sufficient that the
aliens, whom the President or the person against whom the warrant is directed has
Commissioner of Immigration may order control or possession of the property sought to be
arrested following a final order of deportation seized (Burgos v. Chief of Staff, G.R. No. L-65332, Dec.
for the purpose of deportation (Harvey v. 26, 1984).
Defensor- Santiago GR No 82544, June 28,
1988) Q: What are the tests to determine particularity of
the place to be searched?
Note: The requirement of probable cause, to be
determined by a Judge, does not extend to A:
deportation proceedings. (Tiu Chun Hai v. 1. When the description therein is as specific
Commissioner, G.R. No. L-10009 December 22, 1958) as the ordinary circumstance will allow
(People v. Rubio, GR No L-35500, October
Q: What is Multi Factor Balancing Test in 27, 1932);
determining probable cause? 2. When the description express a
conclusion of fact, not of law which the
A: Multi Factor Balancing test is one which requires warrant officer may be guided in making
the officer to weigh the manner and intensity of the the search and seizure;
interference on the right of the people, the gravity 3. When the things described therein are
of the crime committed, and the circumstances limited to those which bear direct relation
attending the incident. to the offense for which the warrant is
being issued.
5. PERSONAL EXAMINATION BY JUDGE OF THE
APPLICANT AND WITNESS Q: What is the purpose of describing with
particularity the place to be searched and the
Q: What are the requisites of personal persons or things to be seized?
examination by the judge?
A: The purpose of the rule is to leave the officers of
A: the law with not discretn regarding what articles
they shall seize, to the end that “unreasonable
1. The judge must examine the witness searches and seizures” may not be made- that
personally; abuses may not be committed. (Stonehill v. Diokno,
2. The examination must be under oath; G.R. No. L-19550, June 19, 1967)
3. The examination must be reduced to
writing in the form of searching questions
and answers (Marinas v. Siochi, G.R. Nos.
L-25707 & 25753-25754, May 14, 1981);

CRIMINAL PROCEDURE
7. PERSONAL PROPERTY TO BE SEIZED

3. Search of moving vehicle – May validly be
Q: What are the kinds of personal properties to be made without a search warrant because
seized by virtue of a search warrant? the vessel or aircraft can quickly move out
of the jurisdiction before such warrant
A: could be secured (People v. Lo Ho Wing,
1. Subject of the offense; G.R. No. 88017, Jan. 21, 1991).
2. Stolen or embezzled and other proceeds 4. Checkpoints; body checks in airport
or fruits of the offense; and NOTE: Searches conducted in checkpoints
3. The means used or intended to be used as are valid for as long as they are warranted
the means of committing an offense (Sec. by the exigencies of public order and are
3). conducted in a way least intrusive to
motorists. For as long as the vehicle is
Note: It is not required that the property to be seized neither searched nor its occupants
should be owned by the person against whom the subjected to a body search, and the
search warrant is directed. It is sufficient that the inspection of the vehicle is limited to a visual
person against whom the warrant is directed has search, said routine checks cannot be
control or possession of the property sought to be regarded as violative of an individual’s right
seized (Burgos v. Chief of Staff, G.R. No. L-65332, Dec. against unreasonable search. (People v.
26, 1984). Vinecario, G.R. No. 141137, January 20,
2004)
8. EXCEPTIONS TO SEARCH WARRANT
REQUIREMENT In body checks in airports, passengers
a. SEARCH INCIDENTAL TO LAWFUL ARREST attempting to board an aircraft routinely
b. CONSENTED SEARCH pass through metal detectors; their carry-on
c. SEARCH OF MOVING VEHICLE baggage as well as checked luggage are
routinely subjected to x-ray scans. Should
d. CHECK POINTS; BODY CHECKS IN AIRPORT
these procedures suggest the presence of
e. PLAIN VIEW SITUATION
suspicious objects, physical searches are
f. STOP AND FRISK SITUATION conducted to determine what the objects
g. ENFORCEMENT OF CUSTOM LAWS are. There is little question that such
searches are reasonable, given their minimal
Q: May there be valid warrantless search? intrusiveness, the gravity of the safety
interests involved, and the reduced privacy
A: Yes, the following are instances where a expectations associated with airline travel.
warrantless search is valid: Indeed, travelers are often notified through
airport public address systems, signs, and
1. Search incident to lawful arrest notices in their airline tickets that they are
Immediate control test – A search subject to search and, if any prohibited
incidental to a lawful warrantless arrest materials or substances are found, such
may extend beyond the person where the would be subject to seizure. These
exigencies of the situation justify a announcements place passengers on notice
warrantless search for dangerous that ordinary constitutional protections
weapons and to prevent the arrestee against warrantless searches and seizures do
from destroying evidence of the crime not apply to routine airport procedures.
within reach (People v. Musa, G.R. No. (People v. Johnson, G.R. No. 138881,
95329, Jan. 27, 1993). December 18, 2000)
2. Consented search (waiver of right) – 5. Plain view situation

Consent cannot be presumed simply The plain view doctrine authorizes a search
because the accused failed to object to and a seizure without a warrant.
the search. To constitute a waiver, it must
For the doctrine to apply, the following
appear that:
requisites must be met:
a. The right exists;
a. There must have been a legal
b. The person involved had knowledge,
presence in the place where the
actual or constructive, of the
search is made;
existence of such rights; and
b. The evidence was discovered
c. Actual intention to relinquish such
inadvertently by an officer with a
rights (People v. Burgos, G.R. No.
right to be where he is;
92739, Aug. 2, 1991).
291
c. The evidence is immediately or unlawful per se ought to be returned to their

apparently illegal; and rightful owner or possessor.
d. There is no need for any further
search to obtain the evidence Q: In what court may a motion to quash the search
(People v. Concepcion, 361 SCRA 540; warrant or suppress evidence be filed?
People v. Sarap, 399 SCRA 503;
People v. Go; 411 SCRA 81) A:
1. It may be filed and acted upon ONLY by the court
6. Stop and frisk situations where the action has been instituted;
This is a limited protective search of the outer
clothing of a person to determine the presence 2. If no criminal action has been instituted, it may
of weapons. Probable cause is not required but be filed in and resolved by the court that issued the
a genuine reason (not mere suspicion) must warrant. However if such court failed to resolve the
exist, in the light of the officer’s experience motion and a criminal case is subsequently filed in
and surrounding circumstances, to warrant the another court, the motion shall be resolved by the
belief that the persons has concealed weapons LATTER court.
(Malacat v. Court of Appeals, 283 SCRA 159).
P. PROVISIONAL REMEDIES IN CRIMINAL CASES
Its object is either to:
a. determine the identity of a 1. NATURE
suspicious individual
b. maintain the status quo momentarily Q: What is the nature of provisional remedies?
while the police officer seeks to
obtain more information. A: They are those to which parties may resort for
the preservation or protection of their rights or
Note: The officer may search the outer interests and for no other purposes during the
clothing of the person in an attempt to pendency of the action. They are applied to a
discover weapons which might be used to pending litigation for the purpose of securing the
assault him (Manalili v. CA, G.R. No. 113447, judgment or preserving the status quo; and in some
Oct. 9, 1997). cases after judgment, for the purpose of preserving
or disposing of the subject matter (Cala v. Roldan,
7. Enforcement of custom laws G.R. No. L-252, Mar. 30, 1946).
9. REMEDIES FROM UNLAWFUL SEARCH AND 2. KINDS OF PROVISIONAL REMEDIES

SEIZURE
Q: What provisional remedies are available in
Q: What are the remedies against an unlawful criminal cases?
search?
A: As far as applicable, provisional remedies under
A: the Civil Procedure are available (Sec. 1) such as:
1. Motion to quash the search warrant;
2. Motion to suppress as evidence the 1. attachment (Rule 57);
objects illegally taken (exclusionary rule – 2. preliminary Injunction (Sec. 58);
any evidence obtained through 3. receivership (Rule 59);
unreasonable searches and seizures shall 4. delivery of personal property (Rule 60);
be inadmissible for any purpose in any 5. support Pendent lite (Rule 61).
proceeding);
3. Replevin, if the objects are legally Q: Who may apply for attachment?
possessed; and
4. Certiorari, where the search warrant is a A: The aggrieved party in whose behalf the civil
patent nullity. aspect of the criminal action is prosecuted may
apply for the issuance of a writ of preliminary
attachment, he being the person primarily and
Note: The remedies are alternative. If a motion to directly interested thereby. The prosecutor in the
quash is denied, a motion to suppress cannot be criminal action may make such an application in
availed consequently. The illegality of the search behalf of or for the protection of the interest of the
warrant does not call for the return of the things offended party.
seized, the possession of which is prohibited by law.
However, those personalities seized in violation of the
constitutional immunity whose possession is not illegal

CRIMINAL PROCEDURE
Note: The Public prosecutor has the authority to apply

for preliminary attachment as may be necessary to
protect the interest of the offended party.
Q: Is notice to the adverse party required before a

writ of preliminary attachment may issue?
A: No notice to the adverse party, or hearing on the

application is required before a writ of preliminary
attachment may issue as a hearing would defeat
the purpose of the provisional remedy. The time
which such hearing would take could be enough to
enable the defendant to abscond or dispose of his
property before a writ of attachment may issue
(Mindanao Savings etc v. Court of Appeals, 172
SCRA 480)
Note: The only requirements for the issuance of a writ

of preliminary attachment are: the affidavit and bond
of the applicant.
Q: When may attachment be availed?
A: Attachment may be availed of ONLY when the

civil action arising from the crime has not been
expressly waived or not reserved and is limited on
the following instances:
1. When the accused is about to abscond from the

Philippines;
2. When the criminal action is based on a claim for

money or property embezzled or fraudulently
misapplied or converted for the use of the accused
who is a public officer or a corporate officer or an
attorney, broker, or agent or clerk in the course of
employment or by a person in fiduciary capacity;
3. When the accused has concealed or removed or

about to dispose of his property; and
4. When the accused resides abroad.
293
EVIDENCE A: No. Any evidence inadmissible according to the

laws in force at the time the action accrued, but
A. GENERAL PRINCIPLES admissible according to the laws in force at the
time of the trial is receivable.
1. CONCEPT OF EVIDENCE
3. EVIDENCE IN CIVIL CASES VERSUS EVIDENCE IN
Q: What is evidence? CRIMINAL CASES
A: Evidence is the means, sanctioned by the Rules Q: Distinguish Evidence in Civil Cases from
of Court, of ascertaining in a judicial proceeding the Evidence in Criminal Cases.
truth respecting a matter of fact. (Sec. 1, Rule 128)
A:
Q: What are the four component elements? Civil Cases Criminal Cases
The party having the
A: The guilt of the accused
burden of proof must
1. Means of ascertainment – includes not has to be proven
prove his claim by a
only the procedure or manner of beyond reasonable
preponderance of
ascertainment but also the evidentiary doubt
evidence
fact from which the truth respecting a An offer of compromise An offer of compromise
matter of fact may be ascertained is not an admission of by the accused may be
2. Sanctioned by the rules – not excluded by any liability, and is not received in evidence as
the Rules of Court admissible in evidence an implied admission of
3. In a judicial proceeding – contemplates an against the offeror guilt
action or proceeding filed in a court of law The concept of The accused enjoys the
4. The truth respecting a matter of fact – presumption of constitutional
refers to an issue of fact and is both innocence does not presumption of
substantive (determines the facts needed apply innocence
to be established) and procedural
(governs the manner of proving said 4. PROOF VERSUS EVIDENCE
facts).
Q: Distinguish proof from evidence.
Q: Why is evidence required?
A:
A: It is required because of the presumption that Proof Evidence
the court is not aware of the veracity of the facts The effect when the
The mode and manner
involved in a case. It is therefore incumbent upon requisite quantum of
of proving competent
the parties to prove a fact in issue thru the evidence of a particular
facts in judicial
fact has been duly
presentation of admissible evidence (Riano, proceedings
admitted and given weight
Evidence: A Restatement for the Bar, p. 2, 2009 ed.).
The probative effect of
The means of proof
evidence
2. SCOPE OF THE RULES OF EVIDENCE
Q: What is the scope of the Rules of Evidence? 5. FACTUM PROBANS VERSUS FACTUM
PROBANDUM
A: The rules of evidence shall be the same in all
courts and in all trials and hearings, except as Q: Distinguish factum probandum from factum
otherwise provided by law or by these rules. It is probans.
guided by the principle of uniformity. (Sec. 2, Rule
A:
128).
Factum Probandum Factum Probans
NOTE: It does not apply to election cases, land
registration, cadastral, naturalization and insolvency The ultimate fact sought
The intermediate facts
proceedings, and other cases, except by analogy or in to be established
suppletory character and whenever practicable and Proposition to be Materials which establish
convenient. (Sec. 4, Rule 1, Rules of Court) established the proposition
Hypothetical Existent
Q: Are there vested rights under the Rules of
Evidence? Note: Every evidentiary question involves the
relationship between the factum probandum and
factum probans.

EVIDENCE
6. ADMISSIBILITY OF EVIDENCE of exception to the general admissibility

of all that is rational and probative.
Q: Distinguish admissibility of evidence from
probative value of evidence. b. RELEVANCE OF EVIDENCE AND COLLATERAL
MATTERS
A:
Admissibility Probative Value Q: What is meant by relevance of evidence?
Question of whether certain Question of whether
pieces of evidence are to be the admitted evidence A: Evidence must have such a relation to the fact in
considered at all. proves an issue. issue as to induce belief in its existence or non-
existence.
Note: Thus, a particular item of evidence may be
admissible, but its evidentiary weight depends on Q: Is evidence on collateral matters allowed?
judicial evaluation within the guidelines provided by
the rules of evidence (Heirs of Sabanpan v. Comorposa, A: Evidence on collateral matters shall not be
G.R. No. 152807, Aug. 12, 2003). allowed, except when it tends in any reasonable
degree to establish the probability or improbability
a. REQUISITES FOR ADMISSIBILITY OF EVIDENCE of the fact in issue. (Sec. 4, Rule 128)
Q: What are the requisites for admissibility of Note: While the evidence may not bear directly on the
evidence? issue, it will be admitted if it has the tendency to
corroborate or supplement facts established
A: previously by direct evidence, or to induce belief as to
1. Relevancy – such a relation to the fact in the probability or improbability of a fact in issue.
issue as to induce belief in its existence or
non-existence. c. MULTIPLE ADMISSIBILITY
2. Competency – if not excluded by law or by d. CONDITIONAL ADMISSIBILITY
the rules. e. CURATIVE ADMISSIBILITY
Q: What is the doctrine of “Fruit of the Poisonous

Tree? Q: What are the kinds of admissibility of evidence?
A: The doctrine speaks of that illegally seized A:

documents, papers, and things are inadmissible in MULTIPLE Evidence that is plainly relevant and
competent for two or more purposes
evidence. The exclusion of such evidence is the only
will be received if it satisfies all the
practical means of enforcing the constitutional
requirements prescribed by law in
injunction against unreasonable searches and
order that it may be admissible for
seizures. the purpose for which it is presented,
even if it does not satisfy the other
Q: What are the two axioms of admissibility requisites of admissibility for other
according to Wigmore? purposes.
CONDITIONAL Evidence appears to be immaterial is
A: admitted by the court subject to the
1. Axiom of relevancy – none but facts condition that its connection with
having rational probative value are another fact subsequent to be
admissible. proved will be established.
Otherwise, such fact already received
Note: Components of relevancy: will be stricken off the record at the
a. Materiality – whether the evidence is initiative of the adverse party.
offered upon a matter properly in CURATIVE Evidence that is otherwise improper
issue. is admitted (despite objection from
b. Probativeness – the tendency to the other party) to contradict
establish the proposition for which it is improper evidence presented or
offered as evidence. introduced by the other party, to
cure, contradict or neutralize such
2. Axiom of competency – facts having improper evidence.
rational probative value are admissible
unless some specific rule forbids their
admission. The rules of exclusion are rules
295
Q: What are the three theories on curative 3. The combination of all the circumstances
admissibility? is such as to produce a conviction beyond
reasonable doubt (Sec. 4, Rule 133;
A: People vs Sevilleno, G.R. No. 152954,
1. American Rule – the admission of such March 11, 2004).
incompetent evidence, without objection
by the opoonent does not justify such Q: Is direct proof of previous agreement to commit
opponent in rebutting it by similar a crime necessary to prove conspiracy?
incompetent evidence
A: No. Considering the difficulty in establishing the
2. English Rule – if a party has presented existence of conspiracy, settled jurisprudence finds
inadmissible evidence, the adverse party no need to prove it by direct evidence (Fernan, Jr.
may resort to similar inadmissible and Torrevillas v. People, G.R. No. 145927, Aug. 24,
evidence 2007). It may be deduced from the acts of the
perpetrators before, during and after the
3. Massachusetts Rule – the adverse pary commission of the crime which are indicative of a
may be permitted to introduce similar common design, concerted action and concurrence
incompetent evidence In order to avoid a of sentiments (Serrano v. CA, G.R. No. 123896, June
plain and unfair prejudice cause by the 25, 2003).
admission of the other party’s evidence.
g. POSITIVE AND NEGATIVE EVIDENCE
Q: What should determine the application of the
rule of curative admissibility? Q: What is positive and negative evidence?
A: A:
1. Whether the incompetent evidence was 1. Positive – when the witness affirms that a
seasonably objected to; and fact did or did not occur, it is entitled to
2. Whether, regardless of the objection, the greater weight since the witness
admission of such evidence shall cause a represents of his personal knowledge the
plain and unfair prejudice to the party presence or absence of a fact.
against whom it is admitted.
2. Negative – when the witness states that
f. DIRECT AND CIRCUMSTANTIAL EVIDENCE he did not see or know of the occurrence
of a fact and there is total disclaimer of
Q: Distinguish direct evidence from circumstantial personal knowledge. Such is admissible
evidence. only if has to contradict positive acts of
the other side or would tend to exclude
A: the existence of fact sworn to by the
DIRECT EVIDENCE CIRCUMSTANTIAL EVIDENCE other side.
Establishes the Does not prove the existence
existence of a fact in of a fact in issue directly, but Note: A denial is a negative evidence. It is considered
issue without the merely provides for logical by jurisprudence to be a very weak form of defense
aid of any inference inference that such fact really and can never overcome an affirmative or positive
or presumption exists testimony particularly when it comes from the mouth
Each proof is given of facts and of a credible witness. (People vs Mendoza, 450 SCRA
The witness testifies circumstances from which the 328, January 21, 2005).
directly of his own court may infer other
knowledge as to the connected facts which h. COMPETENT AND CREDIBLE EVIDENCE
main facts to be reasonably follow, according
proved to the common experience of Q: Distinguish competent evidence from credible
mankind evidence.
Q: When is circumstantial evidence sufficient to A:

convict the accused? COMPETENT CREDIBLE
Refers to worthiness of
A: It is sufficient for conviction if: belief (believability)
Evidence is not excluded
1. There is more than one circumstance; Note: That quality which
by the rules
2. The facts from which the inferences are renders a witness worthy of
th
derived are proven; and belief (Black’s, 5 Ed., 330)

EVIDENCE
7. BURDEN OF PROOF AND BURDEN OF EVIDENCE being, from introducing to the other party. It
evidence in support of relieves those favored
Q: What is burden of proof? his averment because thereby of the burden of
the presumption stands proving the fact presumed.
A: It is the duty of a party to present evidence to in the place of evidence.
establish his claim or defense by the amount of (Francisco, p. 356, 1992
evidence required by law (Sec. 1, Rule 131). It is also ed.)
called onus probandi.
Note: The burden of proof is on the party who asserts
the affirmative of the issue at the beginning of the
Q: What are the two concepts of burden of proof?
case and continues on him throughout the case. Ei
incumbit probatio qui dicit, no qui negat - he who
A:
asserts, not he who denies, must prove (Homeowners
1. Burden of going forward – Party’s obligation of Savings & Loan Bank v. Dailo, G.R. No. 153802, Mar.
producing evidence. 11, 2005).
2. Burden of persuasion – The burden of Where insanity is alleged, the burden of proof rests
persuading the trier of fact that the burdened upon him who alleges insanity to establish that fact
party is entitled to prevail. but where insanity is once proved to exist, the burden
of evidence is shifted to him who asserts that the act
Q: Distinguish burden of proof from burden of was done while the person was sane (Engle v. Doe,
evidence. (2004 Bar Question) G.R. No. L-23317, Aug. 7, 1925).
A: Q: What is the test to determine where the burden

BURDEN OF PROOF BURDEN OF EVIDENCE of proof lies?
Definition
It is the duty of a party to A: The test is to ask which party to an action or suit
provide evidence at any will fail if he offers no evidence competent to show
stage of the trial until he the facts averred as the basis for the relief he seeks
has established a prima to obtain. If the defendant has affirmative defenses,
It is the duty of a party
facie case, or the like duty he bears the burden of proof as to those defenses
to present evidence on
of the adverse party to which he sets up in answer to the plaintiff’s cause
the facts in issue
meet and overthrow that
necessary to establish of action (Bank of the Philippine Islands v. Spouses
prima facie case thus
his claim or defense by Royeca, G.R. No. 176664, July 21, 2008).
established. In both civil
the amount of evidence
and criminal cases, the
required by law (Sec. 1, Q: Who has the burden of proof?
burden of evidence lies on
Rule 131)
the party who asserts an
affirmative allegation. A:
(Regalado, Vol. II, p. 817, CIVIL CASE
2008 ed.) Plaintiff Defendant
Whether it shifts throughout the proceedings To show the truth of his
Does not shift as it Shifts to the other party allegations if the If he raises an affirmative
remains throughout the when one party has defendant raises a defense.
entire case exactly produced sufficient negative defense.
where the pleadings evidence to be entitled to a CRIMINAL CASE
originally placed it ruling in his favor Prosecution Accused
What determines it When he admits the
Generally determined by Because of presumption offense/crime charged
Generally determined by the developments at the of innocence but raises justifying,
the pleadings filed by trial, or by the provisions of exempting circumstances,
the party; and whoever the substantive law or or absolutory causes.
asserts the affirmative of procedural rules which may
the issue has the burden relieve the party from Q: Who has the burden of evidence?
of proof presenting evidence on the
fact alleged
A:
Effect of a legal presumption
CIVIL CASE
It does not shift the It creates a prima facie Plaintiff Defendant
burden of proof. case and thereby sustains
Has to prove the
However, the one who the said burden of Has to prove his
affirmative allegations in
has the burden of proof evidence on the point affirmative allegations in
his counterclaim and his
is relieved from the time which it covers, shifting it the complaint
affirmative defenses
297
CRIMINAL CASE admitted the killing.” (Cabuslay v. People and

Prosecution Accused Sandiganbayan, G.R. No. 129875, Sept. 30, 2005).
Has to prove its
Has to prove his
affirmative allegations in Q: What is the Principle of Negative Averments?
affirmative allegations
the Information
regarding the existence
regarding the elements A:
of justifying, exempting,
of the crime as well as GR: Negative allegations need not be proved,
absolutory, or mitigating
the attendant whether in civil or criminal cases.
circumstances
circumstances
XPN: Where such negative allegations are
Q: What are the degrees of proof necessary to essential parts of the cause of action or defense
satisfy the burden of proof? in a civil case, or are essential ingredients of the
offense in a criminal case or the defenses
A: thereto, negative allegations should be proved.
1. Civil case – Preponderance of evidence (Industrial Finance Corp., v.Tobias, G.R. No. L-
2. Administrative case – Substantial 41555, July 27, 1977)
evidence
3. Criminal case: XPN to the XPN: In civil cases, even if the
a. During preliminary investigation – negative allegation is an essential part of the
Well founded belief of the fact of cause of action or defense, it does not have to
commission of a crime be proved if it is only for the purpose of denying
b. Issuance of warrant of arrest – the existence of a document which should
Probable cause properly be in the custody of the adverse party.
c. To convict an accused – Evidence of (Regalado, Vol. II, p. 818, 2008 ed.)
guilt beyond reasonable doubt
d. Accused claims justifying/exempting 8. PRESUMPTIONS
circumstances – Clear and convincing
evidence Q: What are matters which need not be proved?
Q: Who has the burden of proof if the accused A:

seeks dismissal under the Speedy Trial Act? 1. Facts admitted or not denied provided they
have been sufficiently alleged (Sec. 11,
A: If the accused is not brought to trial within the Rule 8);
time required, the Information shall be dismissed 2. Agreed and admitted facts (Sec. 4, Rule
upon motion of the accused. In such a case, the 129);
burden of proof of supporting his motion is with the 3. Facts subject to judicial notice (Sec. 3,
accused (Sec. 13, R.A. 8493). Rule 129); and
4. Facts legally presumed (Secs. 2 & 3, Rule
Q: Who has the burden of proof in self-defense? 131).
A: One who invokes self-defense admits Q: What is presumption?

responsibility for the killing. Accordingly, the
burden of proof shifts to the accused who must A: It is an assumption of fact resulting from a rule of
then prove the justifying circumstance. He must law, which requires such fact to be assumed from
show by clear and convincing evidence that he another fact or group of facts found or otherwise
indeed acted in self-defense, or in defense of a established in the action (Black’s, 5thEd., 1067 citing
relative or a stranger. Self-defense, like alibi, is a Uniform Rule 12; NJ evidence Rule 13). It is an
defense which can easily be concocted. inference of the existence or non-existence of a fact
which courts are permitted to draw from the proof
It is well-settled in this jurisdiction that once an of other facts. (In the matter of the Intestate Estates
accused has admitted that he inflicted the fatal of Delgado and Rustia, G.R. No. 175733, Jan. 27,
injuries on the deceased, it is incumbent upon him 2006)
in order to avoid criminal liability, to prove the
justifying circumstance claimed by him with clear, Note: A presumption shifts the burden of going
satisfactory and convincing evidence. He cannot forward with the evidence. It imposes on the party
rely on the weakness of the prosecution but on the against whom it is directed the burden of going
strength of his own evidence, “for even if the forward with evidence to meet or rebut the
evidence of the prosecution were weak it could not presumption.
be disbelieved after the accused himself had

EVIDENCE
Q: Distinguish the classes of presumptions. in derogation of the deed, or from denying

the truth of any material fact asserted in the
A: deed e.g. The tenant is not permitted to
PRESUMPTION OF FACT deny the title of his landlord at the time of
PRESUMPTION OF LAW
(Praesumptiones the commencement of the relation of
(Praesumptiones Juris)
Hominis) landlord and tenant between them [Sec. 2
It is a deduction which (par. b)]
It is a deduction which
reason draws from the
the law expressly directs
facts proved without an Note: Estoppel may attach even though the landlord
to be made from
express direction from does not have title at the commencement of the
particular facts.
law to that effect. relations. It may inure in favor of the successor.
A certain inference must
be made whenever the Discretion is vested in the If the title asserted is one that is alleged to have been
facts appear which tribunal as to drawing the acquired subsequent to the commencement of that
furnish the basis of the inference relation, the presumption will not apply.
inference
Derived wholly and Q: What are the requisites for a party to be
directly from the estopped?
Reduced to fixed rules
circumstances of the
and form a part of the
particular case by means
system of jurisprudence A:
of the common
1. Conduct amounting to false representation
experience of mankind
or concealment of material facts; or at least
Need not be pleaded or
proved if the facts on calculated to convey the impression that the
Has to be pleaded and facts are otherwise than, and inconsistent
which they are based are
proved with, those which the party subsequently
duly averred and
established attempts to assert;
2. Intent, or at least, expectation, that this
Q: What are the kinds of presumptions of law? conduct shall be acted upon by, or at least
influence, the other party; and
A: 3. Knowledge, actual or constructive, of the
1. Conclusive presumptions (presumptions juris real facts. (Riano, Evidence: A Restatement
et de jure) for the Bar, p. 431, 2009 ed.)
2. Disputable presumptions (presumptions juris
tantum) Q: What are the requisites before estoppel can be
claimed?
a. CONCLUSIVE PRESUMPTIONS
A:
Q: What is a conclusive presumption? 1. Lack of knowledge and of the means of
knowledge of the truth as to the facts in
A: Conclusive presumptions are those which are not question;
permitted to be overcome by any proof to the 2. Reliance, in good faith, upon the conduct or
contrary. statements of the party to be estopped; and
3. Action or inaction based thereon of such
Q: What are the classes of conclusive character as to change the position or status
presumptions? of the party claiming the estoppel, to his
injury, detriment or prejudice. (Kalalo v. Luz,
A: G.R. No. L-27782, July 31, 1970)
1. Estoppel in pais – Whenever a party has, by
his own declaration, act or omission, b. DISPUTABLE PRESUMPTIONS
intentionally and deliberately led another to
believe a particular thing to be true, and to Q: What are disputable presumptions?
act upon such belief, he cannot, in any
litigation arising out of such declaration, act A: Those which are satisfactory if uncontradicted,
or omission, be permitted to falsify it [Sec. 2, but may be contradicted and overcome by other
(par. a)]. evidence. (Sec. 3, Rule 131)
2. Estoppel by deed – A party to a property

deed is precluded from asserting, as against
another party to the deed, any right or title
299
Q: What are the disputable presumptions under the latter.

Section 3 of Rule 130?
8. Obligation delivered up to the debtor has been
A: paid.
1. A person is innocent of a crime or wrong.
9. Prior rents or installments had been paid when
Note: It applies to both civil and criminal cases. a receipt for the later ones is produced.
Presumption of innocence of the accused
accompanies him until the rendition of 10. A person found in possession of a thing taken
judgement and disappears after conviction, such in the doing of a recent wrongful act is the
that upon appeal, the appellate court will then taker and doer of the whole act; otherwise,
presume the guilt of the accused. that things which a person possesses or
exercises acts of ownership over, are owned
2. Unlawful act is done with an unlawful intent. by him.
Note: Presumption of possession of stolen goods
3. Person intends the ordinary consequences of arises once the prosecution is able to prove that a
his voluntary act. certain object has been unlawfully taken, and
that the accused is in possession of the object
4. Person takes ordinary care of his concerns. unlawfully taken. Presumption of innocence
Note: All people are sane and normal and moved disappears and presumption of guilt takes place.
by substantially the same motives. When of age
and sane, they must take care of themselves. 11. Person in possession of an order on himself for
Courts operate not because one person has been the payment of the money or the delivery of
defeated or overcome by another but because anything has paid the money or delivered the
that person has been defeated or overcome thing accordingly.
illegally. There must be a violation of the law
(Vales v. Villa, G.R. No. 10028, Dec. 16, 1916).
12. Person acting in public office was regularly
appointed or elected to it.
5. Evidence willfully suppressed would be adverse
if produced. Ratio: It would cause great inconvenience if in
the first instance strict proof were required of
The requisites for the presumption to apply appointment or election to office in all cases
are: where it might be collaterally in issue.
a. The evidence is material;
b. The party had the opportunity to produce 13. Official duty has been regularly performed.
it; and Note: All things are presumed to have been done
c. The evidence is available only to the said regularly and with due formality until the
party. contrary is proved (Omnia praesumuntur rite et
solemniter esse acta donec probetur in
The presumption will not be applicable when: contrarium). An adverse presumption may arise
a. Suppression of evidence is not willful; where the official act in question appears
b. Evidence suppressed or withheld is irregular on its face. This presumption extends to
merely corroborative or cumulative; persons who have been appointed pursuant to a
c. Evidence is at the disposal of both parties; local or special statute to act in quasi-public or
and quasi-official capacities and to professionals like
d. Suppression is by virtue of an exercise of lawyers and surgeons.
privilege.
Ratio:
a. Innocence and not wrongdoing is to be
Note: Failure of the prosecution to present a
presumed;
certain witness and to proffer a plausible
b. An official oath will not be violated; and
explanation does not amount to willful
suppression of evidence since the prosecutor has
c. A republican form of government cannot
survive long unless a limit is placed upon
the discretion/prerogative to determine the
controversies and certain trust and
witnesses he is going to present (People v.
confidence reposed in each governmental
Jalbuena, G.R. No. 171163, July 4, 2007).
department or agent at least to the extent
of such presumption.
6. Money paid by one to another was due to the
latter.
GR: Presumption applies to both civil as well as
criminal cases.
7. Thing delivered by one to another belonged to

EVIDENCE
absence of 10 years is required; and if he

XPN: Petition for writ of amparo – disappeared after the age of 75, absence of
presumption may not be invoked by the only 5 years is sufficient. The following shall be
respondent public officer or employee (Rule on considered dead for all purposes including the
the Writ of Amparo, A.M. No. 17-9-12-SC). division of estate among the heirs:
14. A court or judge acting as such, whether in the a. Person on board a vessel lost during a sea
Philippines or elsewhere, was acting in the voyage, or an aircraft which is missing,
lawful exercise of jurisdiction. who has not been heard of for 4 years
Note: Lawful exercise of jurisdiction is presumed since the loss of the vessel or aircraft;
in all cases, be it superior or inferior courts, b. Member of the armed forces who has
whether in the Philippines or elsewhere, unless taken part in armed hostilities, and has
the record itself shows that jurisdiction has not been missing for 4 years;
been acquired or the record itself shows the c. Person who has been in danger of death
absence of jurisdiction, in which case jurisdiction under other circumstances and whose
to render a judgment may not be presumed. existence has not been known for 4 years;
d. If a married person has been absent for 4
15. All the matters within an issue raised in a case consecutive years, the spouse present
were laid before the court and passed upon by may contract a subsequent marriage if he
it; all matters within an issue raised in a or she has well-founded belief that the
dispute submitted for arbitration were laid absent spouse is already dead; 2 years in
before arbitrators and passed upon by them. case of disappearance where there is
danger of death under the circumstances
16. Private transactions have been fair and hereinabove provided. Before marrying
regular. again, the spouse present must institute a
Note: Presumption that all men act fairly,
summary proceeding as provided in the
honestly and in good faith, and that an individual
Family Code and in the rules for
intends to do right rather than wrong and intends
to do only what he has the right to do.
declaration of presumptive death of the
absentee, without prejudice to the effect
17. Ordinary course of business has been followed. of re-appearance of the absent spouse.
Note: Persons engaged in a given trade or
business are presumed to be acquainted with the 24. Acquiescence resulted from a belief that the
general customs, usages and other facts thing acquiesced in was conformable to the
necessarily incident to the proper conduct of the law or fact.
business.
25. Things have happened according to the
18. There was a sufficient consideration for a ordinary course of nature and ordinary habits
contract. of life.
19. Negotiable instrument was given or indorsed 26. Persons acting as co-partners have entered
for a sufficient consideration. into a contract of co-partnership.
20. An endorsement of negotiable instrument was 27. A man and woman deporting themselves as
made before the instrument was overdue and husband and wife have entered into a lawful
at the place where the instrument is dated. contract of marriage.
21. A writing is truly dated. 28. Property acquired by a man and a woman who
are capacitated to marry each other and who
22. Letter duly directed and mailed was received in live exclusively with each other as husband
the regular course of the mail. and wife without the benefit of marriage or
Note: For this presumption to arise, it must be under void marriage, has been obtained by
proved that the letter was properly addressed their joint efforts, work or industry.
with postage pre-paid and that it was actually
mailed. 29. In cases of cohabitation by a man and a
woman who are not capacitated to marry each
23. Absentee of 7 years, it being not known other and who have acquired properly through
whether or not he is still alive, is considered their actual joint contribution of money,
dead for all purposes except for succession. property or industry, such contributions and
For the purpose of opening his succession, an
301
their corresponding shares including joint marriage.

deposits of money and evidences of credit are b. A child born after 180 days following the
equal. subsequent marriage is considered to have
been conceived during the subsequent
30. If the marriage is terminated and the mother marriage, even though it be born within the
contracted another marriage within 300 300 days after the termination of the former
hundred days after such termination of the marriage.
former marriage, these rules shall govern in
the absence of proof to the contrary: Note: There is no presumption of legitimacy or
illegitimacy when a child is born after 300 days
Presumptions of paternity: following dissolution of marriage or the
a. A child born before 180 days after the separation of the spouses. Whoever alleges the
subsequent marriage is conceived during the legitimacy or illegitimacy of such child must prove
former marriage, provided it is born within 300 his allegation (Sec. 4).
days after the termination of the former
no presumption
subsequent marriage 300 days after

termination of termination of 1st 180 days after the
1st marriage marriage subsequent marriage
no presumption of
legitimacy or illigitimacy
conceived during the
subsequent marriage
conceived during the
former marriage
termination of subsequent marriage 180 days after the 300 days after termination of 1st
1st marriage subsequent marriage marriage
31. A thing once proved to exist continues as long such person or his successor in interest.
as is usual with things of that nature. 36. Except for purposes of succession, when 2
persons perish in the same calamity, and it is
32. The law has been obeyed. not shown who died first, and there are no
particular circumstances from which it can be
33. A printed or published book, purporting to be inferred, the survivorship is determined from
printed or published by public authority, was so the probabilities resulting from the strength
printed or published. and age of the sexes, according to the
following rules:
34. A printed or published book, purporting to
contain reports of cases adjudged in tribunals Presumed To
First Person Second Person
of the country where the book is published, Have Survived
contains correct reports of such cases.
< 15 yrs old < 15 yrs old older
35. A trustee or other person whose duty it was to
convey real property to a particular person has > 60 yrs old > 60 yrs old younger
actually conveyed it to him when such
< 15 > 60 yrs old < 15
presumption is necessary to perfect the title of

EVIDENCE
>15 and < 60 >15 and < 60

The male
male female A: The doctrine refers to a situation where the
evidence of the parties are evenly balanced or there
>15 and < 60 >15 and < 60 is doubt on which side the evidence preponderates.
The older
female female In such case the decision should be against the
party with the burden of proof (Marubeni Corp. v.
The one Lirag, G.R. No. 130998, Aug. 10, 2001).
< 15 or > 60 15-60 between those
ages
Burden of proof 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
37. That if there is a doubt, as between two or
required by law (Sec. 1, Rule 131).
more persons who are called to succeed each
other, as to which of them died first, whoever
The Constitution provides that no person shall be
alleges the death of one prior to the other,
deprived of life, liberty or property without due
shall prove the same; in the absence of proof,
process of law, nor shall any person be denied the
they shall be considered to have died at the
equal protection of the law (Sec. 1, Art. Ill). In a
same time. (Sec. 3).
criminal case, its constitutional basis is the pre-
sumption of innocence and the requirement of
9. LIBERAL CONSTRUCTION OF THE RULES OF
proof beyond reasonable doubt for conviction.
EVIDENCE
(1995 Bar Question)
Q: How are the rules on evidence construed?
In criminal cases, the equipoise rule provides that
where the evidence is evenly balanced, the
A: The rules of evidence must be liberally
constitutional presumption of innocence tilts the
construed. (Section 6, Rule 1) The Rules of
scales in favor of the accused. (Malana v. People,
Procedure are mere tools intended to facilitate
G.R. No. 173612, Mar. 26, 2008)
rather than to frustrate the attainment of justice. A
strict and rigid application of the rules must always
Q: What is the hierarchy of quantum of evidence?
be eschewed if it would subvert their primary
objective of enhancing substantial justice.
A:
Procedural rules myst be liberally interpreted and
applied so as not to frustrate substantial justice
(Quiambao vs. Court of Appeals, 454 SCRA 17,
March 28, 2005). However, to justify relaxation of
the rules, a satisfactory explanation and a
subsequent fulfillment of the requirements have
always been required (Barcenas vs Tomas, 454
SCRA 593, March 31, 2005).
10. QUANTUM OF EVIDENCE (WEIGHT AND

SUFFICIENCY OF EVIDENCE) (RULE 133)
Q: Define weight of evidence.
A: It is the probative value given by the court to

particular evidence admitted to prove a fact in
issue.
Q: When is evidence credible?
A: It is credible if it is admissible and believable and

worthy of belief, such that it can be used by the
courts in deciding a case.
Q: Explain the Equipoise Doctrine in the law of evi-

dence and cite its constitutional and procedural Note: Evidence, to be worthy of credit, must not only
bases. proceed from a credible source but must also be
303
credible in itself. It must be natural, reasonable and

probable as to make it easy to believe (People v. A:
Peruelo, G.R. No. 50631, June 29, 1981). 1. Where the identity of the assailant is in
question;
Q: Distinguish positive testimony from negative 2. To determine the voluntariness of the
testimony. criminal act or the sanity of the accused;
3. To determine from which side the unlawful
A: aggression commenced, as where the
POSITIVE TESTIMONY NEGATIVE TESTIMONY accused invoked self-defense wherein
unlawful aggression on the part of his
1. Affirms that a fact did or opponent is an essential element;
did not occur. 1. When a witness states
4. To determine the specific nature of the
2. that he did not see or
crime committed;
3. Entitled to greater weight know the occurrence of a
since the witness fact.
5. To determine whether a shooting was
represents his personal 2. intentional or accidental, the fact that the
knowledge of the
3. There is a total disclaimer accused had personal motives to shoot the
presence or absence of a of personal knowledge, victim being weighty; and
fact. hence without any 6. Where the accused contends that he acted
4. representation or in defense of a stranger, since it is essential,
5. When a witness declares disavowal that the fact in for such defense to prosper, that the
of his own knowledge question could or could accused was not induced by revenge,
that a fact did not take not have existed or resentment or other evil motive. (Regalado,
place, it is an affirmation happened. Vol. II, pp. 893-894, 2008 ed.)
of a positive testimony.
Q: What is alibi?
Note: Mere denial, if unsubstantiated by clear and
convincing evidence, has no weight in law and cannot A: It is a defense where an accused claims that he
be given greater evidentiary value than the positive was somewhere else at the time of the commission
testimony of the complaining witness. Denial is of the offense. It is one of the weakest defenses an
intrinsically weak, being a negative and self-serving
accused may avail because of the facility with which
assertion (People v. Rodas, G.R. No. 175881, Aug. 28,
it can be fabricated, just like a mere denial (People
2007).
v. Esperanza, G.R. Nos. 139217-24, June 27, 2003).
A categorical and positive identification of an
Q: What are the guidelines in the assessment of
accused, without any showing of ill-motive on the
credibility of a witness?
part of the eyewitness testifying on the matter,
A: prevails over an alibi (People v. Gingos and
1. A witness who testified in clear, positive Margote, G.R. No. 176632, Sept. 11, 2007). When
and convincing manner and remained this is the defense of the accused, it must be
consistent in cross-examination is a established by positive, clear and satisfactory
credible witness (People v. Comanda, G.R. evidence.
No. 175880, July 6, 2007); and
Note: For the defense of alibi to prosper, the accused
2. Findings of fact and assessment of
must show that:
credibility of a witness are matters best
1. He was somewhere else; and
left to the trial court that had the front- 2. It was physically impossible for him to be at
line opportunity to personally evaluate the scene of the crime at the time of its
the demeanor, conduct, and behavior of commission. (People v. Gerones, et.al., G.R.
the witness while testifying (Sps. Paragas No. L-6595, Oct. 29, 1954)
v. Heirs of Balacano, G.R. No. 168220,
Aug. 31, 2005). Q: What is Out-of-Court Identification?
Q: What is motive? A: It is a means of identifying a suspect of a crime

and is done thru:
A: It is the moving power which impels one to 1. Show-ups: where the suspect alone is
action for a definite result (The Revised Penal Code brought face to face with the witness for
[Book One] by L. Reyes, p.57, 2001 ed.). identification;
2. Mug shots: where photographs are shown
Q: When is evidence of motive relevant? to the witness to identify the suspect; or

EVIDENCE
3. Line-ups: where a witness identifies the matters is not the number of witnesses but the
suspect from a group of persons lined up for credibility and the nature and quality of their
the purpose. (People v. Claudio Teehankee, testimonies. The testimony of a lone witness is
Jr., G.R. Nos. 111206-08, Oct. 6, 1995) sufficient to support a conviction if found positive
and credible (Ceniza-Manantan v. People, G.R. No.
Q: What is the relevance of an eyewitness 156248, Aug. 28, 2007).
identification?
Q: Define res ipsa loquitur.
A: It is often decisive of the conviction or acquittal
of an accused. Identification of an accused through A: It literally means the thing speaks for itself. This
mug shots is one of the established procedures in doctrine provides that the fact of the occurrence of
pinning down criminals. However, to avoid charges an injury, taken with the surrounding
of impermissible suggestion, there should be circumstances, may permit an inference or raise a
nothing in the photograph that would focus presumption of negligence, or make out a plaintiff's
attention on a single person (People v. Villena, G.R. prima facie case, and present a question of fact for
No. 140066, Oct. 14, 2002). defendant to meet with an explanation. Where the
thing which caused the injury complained of is
Q: Is a police line-up mandatory to prove the shown to be under the management of the
identity of an offender? defendant or his servants and the accident is such
as in ordinary course of things does not happen if
A: A police line-up is merely a part of the those who have its management or control use
investigation process by police investigators to proper care, it affords reasonable evidence, in the
ascertain the identity of offenders or confirm their absence of explanation by the defendant, that the
identification by a witness to the crime. Police accident arose from or was caused by the
officers are not obliged to assemble a police line-up defendant's want of care (Ramos v. CA, G.R. No.
as a condition sine qua non to prove the identity of 124354, Dec. 29, 1999).
an offender. If on the basis of the evidence on
hand, police officers are certain of the identity of Q: What are the requisites in applying the doctrine
the offender, they need not require any police line- of res ipsa loquitur?
up anymore (Tapdasan, Jr. v. People, G.R. No.
141344, Nov. 21, 2002). A:
1. The occurrence of an injury;
Q: When is “out-of-court identification” admissible 2. The thing which caused the injury was under
and reliable? the control and management of the
defendant;
A: It is admissible and reliable when it satisfies the 3. The occurrence was such that in the
“totality of circumstances” test. Under the “totality ordinary course of things, would not have
of circumstances” test, the following factors are happened if those who had control or
considered: management used proper care; and
1. Witness’ opportunity to view the criminal 4. The absence of explanation by the
at the time of the crime; defendant (Professional Services, Inc. v.
2. Witness’ degree of attention at that time; Agana, G.R. No. 126297, Jan. 31, 2007).
3. Accuracy of any prior description given by
the witness; Q: Does the application of the doctrine dispense
4. Level of certainty demonstrated by the with the requirement of proof of negligence?
witness at the identification;
5. Length of time between the crime and the A: No. It is considered merely as evidentiary or in
identification; and the nature of procedural rule. It is simply in the
6. Suggestiveness of the identification process of such proof, permitting the plaintiff to
procedure. (People v. Claudio Teehankee, present enough of the attending circumstances to
Jr., G.R. Nos. 111206-08, Oct. 6, 1995) invoke the doctrine, creating an inference or
presumption of negligence and thereby place on
Q: Is the testimony of only one witness sufficient the defendant the burden of going forward with the
to convict the accused? proof to the contrary. (Ramos, et. al. v. CA, G.R. No.
124354, Dec. 29, 1999)
A: Yes. Truth is established not by the number of
witnesses but by the quality of their testimonies. In
determining the sufficiency of evidence, what
305
was raped and consequently subject herself to an

Q: What is the Rule on Partial Credibility of a examination of her private parts, undergo the
witness? trauma and humiliation of a public trial, and
embarrass herself with the need to narrate in detail
A: The testimony of a witness may be believed in how she was raped, if she was not raped at all. This
part and disbelieved in another part, depending on ruling especially holds true where the complainant
the probabilities and improbabilities of the case is a minor, whose testimony deserves full credence.
(People v. Tan, G.R. No. 176526, Aug. 8, 2007). (People v. Esperanza, G.R. Nos. 139217-24, June 27,
2003).
Note: If the testimony of the witness on a material
issue is willfully false and given with an intention to Q: What is the Sweetheart Theory?
deceive, the court may disregard all the witness’
testimony. Falsus in uno, falsus in omnibus (False in A: It is an admission by the accused of sexual
one thing, false in everything). intercourse with the victim but argues that they
were lovers and the act is consensual and
Note: This is not a mandatory rule of evidence but is consequently places on the accused the burden of
applied by the courts in its discretion. It deals only with proving the supposed relationship by substantial
the weight of evidence and not a positive rule of law. evidence. To be worthy of judicial acceptance, such
The witnesses’ false or exaggerated statements on defense should be supported by documentary,
other matters shall not preclude the acceptance of testimonial, or other evidence. Corroborative proof
such evidence as is relieved from any sign of like notes, pictures or tokens that such a
falsehood. The court may accept and reject portions of relationship had really existed must be presented
the witness’ testimony depending on the inherent
(People v. Hapin, G.R. No.175782, Aug. 24, 2007).
credibility thereof. (Regalado, Vol. II, p. 883, 2008 ed.)
Q: Is extrajudicial confession a sufficient ground
Q: May the trial court’s findings as to the
for conviction?
credibility of witnesses be disturbed on appeal?
A: It is not sufficient ground for conviction unless
A: The trial court’s findings of fact will not be
corroborated by evidence of corpus delicti. (Sec. 3)
disturbed on appeal, unless there is a clear showing
that it plainly overlooked matters of substance
Q: What is corpus delicti?
which, if considered, might affect the results of the
review. The credibility of witnesses is best
A: It is the actual commission by someone of the
determined by the trial judge, who has the direct
particular crime charged. It refers to the fact of the
opportunity to observe and evaluate their
commission of the crime, not to the physical body
demeanor on the witness stand. (People v.
of the deceased or to the ashes of a burned
Pacuancuan, G.R. No. 144589, June 16, 2003).
building. The corpus delicti may be proven by the
credible testimony of a sole witness, not necessarily
Q: May the uncorroborated testimony of an
by physical evidence (Rimorin v. People, G.R. No.
accused who turned into a State witness suffice to
146481, Apr. 30, 2003).
convict his co-accused?
Q: What are the elements of corpus delicti?
A: Yes. It may suffice to convict his co-accused if it is
given unhesitatingly and in a straightforward
A:
manner and is full of details which by their nature
1. Proof of the occurrence of a certain
could not have been the result of deliberate
event; and
afterthought, otherwise, it needs corroboration, the
2. A person’s criminal responsibility for the
presence or lack of which may ultimately decide the
act (People v. Corpuz, G.R. No. 148919,
case of the prosecution and the fate of the accused
Dec. 17, 2002).
(People v. Sunga, G.R. No. 126029, Mar. 27, 2003).
Note: The identity of the accused is not a necessary
element of the corpus delicti.
Q: May the testimony alone of the complaining
party in a rape case sufficient to convict the Q: What are the elements of illegal possession of
accused? firearm which constitute the corpus delicti?
A: Yes. In rape cases, the lone testimony of the A:
offended party, if free from serious and material 1. The existence of the firearm; and
contradictions, is sufficient to sustain a verdict of 2. That it has been actually held with animus
conviction. No woman would openly admit that she possidendi by the accused without the

EVIDENCE
corresponding license therefor. (People v. 6. Their personal credibility so far as the same
Solayao, G.R. No. 119220, Sept. 20, 1996) may legitimately appear upon the trial; or
7. The number of witnesses, though the
a. PROOF BEYOND REASONABLE DOUBT preponderance is not necessarily with the
greater number (Sec. 1, Rule 133).
Q: What is meant by reasonable doubt?
c. SUBSTANTIAL EVIDENCE
A: It is that state of the case which, after the entire
comparison and consideration of all the evidence Q: What is substantial evidence?
leaves the mind of the judge in that condition that
he cannot say that he feels an abiding conviction to A: It is that amount of relevant evidence which a
a moral certainty of the truth of the charge. (People reasonable mind might accept as adequate to
v. Calma, G.R. No. 127126, Sept. 17, 1998) justify a conclusion. (Sec. 5)
Q: What does proof beyond reasonable doubt Q: When is substantial evidence sufficient to
require? establish a fact?
A: It only requires moral certainty or that degree of A: In cases filed before administrative or quasi-
proof which produces conviction in an unprejudiced judicial bodies, a fact may be deemed established if
mind. It does not mean such degree of proof as it is supported by substantial evidence.
excluding the possibility of error, produce absolute
certainty. (Basilio v. People, G.R. No. 180597, Nov. d. CLEAR AND CONVINCING EVIDENCE
7, 2008)
Q: What are the instances when clear and
Q: Must the identity of the accused be proved convincing evidence is required as quantum of
beyond reasonable doubt? proof?
A: Yes. When the identity of the accused is not A:

established beyond reasonable doubt, acquittal 1. Granting or denial of bail in extradition
necessarily follows. Conviction for a crime rests on proceedings (Government of Hong Kong
the strength of the prosecution’s evidence, never Special Administrative Region v. Olalia, Jr.,
on the weakness of that of the defense. G.R. No. 153675, April 19, 2005);
2. When proving a charge of bias and partiality
Note: In every criminal prosecution, the prosecution against a judge (Rivera v. Mendoza, A.M.
must prove two things: No. RTJ-06-2013, Aug. 4, 2006);
1. The commission of the crime; and 3. GR: When proving fraud (Alonso v. Cebu
2. The identification of the accused as the Country Club, Inc., G.R. No. 130876, Dec. 5,
perpetrator of the crime. What is needed is 2003)
positive identification made with moral certainty XPN: Under Art. 1387 of the New Civil Code,
as to the person of the offender (People v. certain alienations of property are
Maguing, G.R. No. 144090, June 26, 2003).
presumed fraudulent.
4. When proving forgery (Citibank, N.A. v.
b. PREPONDERANCE OF EVIDENCE Sabeniano, G.R. No. 156132, Feb. 6, 2007);
5. When proving ownership over a land in
Q: What are the matters that must be taken into annulment or reconveyance of title
consideration in determining where the (Manotok Realty, Inc. v. CLT Realty
preponderance of evidence lies? Development Corp., G.R. No. 123346, Dec.
14, 2007);
A: 6. When invoking self-defense, the onus is on
1. All the facts and circumstances of the case; the accused-appellant to establish by clear
2. The witnesses’ manner of testifying, their and convincing evidence his justification for
intelligence, their means and opportunity of the killing (People v. Tomolin, G.R. No.
knowing the facts to which there are 126650, July 28, 1999);
testifying; 7. When proving the allegation of frame-up
3. The nature of the facts to which they and extortion by police officers in most
testify; dangerous drug cases (People v. Boco, G.R.
4. The probability or improbability of their No. 129676, June 23, 1999);
testimony;
5. Their interest or want of interest;
307
8. When proving physical impossibility for the personal knowledge of the court; rather, it is the
accused to be at the crime scene when cognizance of “common knowledge.” Judicial notice
using alibi as a defense (People v. Cacayan, relieves the parties from the necessity of introducing
G.R. No.180499, July 9, 2008); evidence to prove the fact notified. It makes evidence
9. When using denial as a defense like in unnecessary.
prosecution for violation of the Dangerous
Drugs Act (People v. Mustapa, G.R. No. Q: What are the requisites of judicial notice?
141244, Feb. 19, 2001);
10. To overcome the presumption of due A:
execution of notarized instruments (Viaje v. 1. The matter must be one of common and
Pamintel, G.R. No. 147792, Jan. 23, 2006); general knowledge;
11. When proving bad faith to warrant an 2. It must be well and authoritatively settled
award of moral damages (Resolution of the and not doubtful or uncertain; and
SC in Cual v. Leonis Navigation, G.R. No. 3. It must be one which is not subject to a
167775, Oct. 10, 2005); reasonable dispute in that it is either:
12. When proving that the police officers did a. Generally known within the territorial
not properly perform their duty or that they jurisdiction of the trial court; or
were inspired by an improper motive b. Capable of accurate and ready
(People v. Concepcion, G.R. No. 178876, determination by resorting to sources
June 27, 2008); or whose accuracy cannot reasonably be
13. When a person seeks confirmation of an questionable (Expertravel & Tours, Inc.
imperfect or incomplete title to a piece of v. CA, G.R. No. 152392, May 26, 2005).
land on the basis of possession by himself Note: The principal guide in determining what facts
and his predecessors-in-interest, he must may be assumed to be judicially known is that of
notoriety (Ibid.). The test of notoriety is whether the
prove with clear and convincing evidence
fact involved is so notoriously known as to make it
compliance with the requirements of the
proper to assume its existence without proof.
applicable law. (Republic v. Imperial Credit
Corp., G.R. No. 173088, June 25, 2008) (List
Q: When is a matter considered “common
of cases: Riano, Evidence: A Restatement for
knowledge”?
the Bar, pp. 422-426, 2009 ed.)
A: They are those matters coming to the knowledge
B. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
of men generally in the course of ordinary
1. WHAT NEED NOT BE PROVED
experiences of life, or they may be matters which
are generally accepted by mankind as true and are
Q: What are the facts that need not be proved?
capable of ready and unquestioned demonstration.
A: Note: Thus, facts which are universally known, and
1. Those which the courts may take judicial which may be found in encyclopedias, dictionaries or
notice (Rule 129); other publications, are judicially noticed, provided,
2. Those that are judicially admitted (Rule they are of such universal notoriety and so generally
129); understood that they may be regarded as forming part
3. Those that are conclusively presumed (Rule of the common knowledge of every person. A court
131); and however cannot take judicial notice of any fact which,
4. Those that are disputably presumed but in part, is dependent on the existence or non-existence
uncontradicted (Rule 131). of a fact of which the court has no constructive
knowledge (Expertravel & Tours, Inc. v. CA, G.R. No.
2. MATTERS OF JUDICIAL NOTICE 152392, May 26, 2005).
Q: What is judicial notice? Q: In discretionary judicial notice, when is

hearing necessary?
A: It is the cognizance of certain facts which judges
may properly take and act upon without proof A:
because they are supposed to be known to them. It AFTER TRIAL BUT BEFORE
is based on considerations of expediency and DURING TRIAL JUDGMENT OR ON
convenience. It displaces evidence, being APPEAL
equivalent to proof. The court on its own The proper court, on its
Note: Judicial notice fulfils the objective which the initiative, or on request own initiative or on
evidence intends to achieve. It is not equivalent to of a party, may request of a party, may
judicial knowledge or that which is based on the announce its intention take judicial notice of any

EVIDENCE
to take judicial notice of matter and allow the 3. It can be verbal or written admission. There
any matter and allow parties to be heard is no particular form required.
the parties to be heard thereon if such matter is
thereon (Sec. 3). decisive of a material issue Q: Distinguish judicial admission from extrajudicial
in the case. admission.
Note: Hearing is necessary in the foregoing instances A:

to afford the parties reasonable opportunity to present EXTRAJUDICIAL
information relevant to the propriety of taking such JUDICIAL ADMISSIONS
ADMISSIONS
judicial notice or the tenor of the matter to be Those made out of
judicially noticed. Those made in the course court or in a judicial
of the proceeding in the proceeding other than
a. MANDATORY same case the one under
consideration
Q: What is mandatory notice? Do not require proof and
Regarded as evidence
may be contradicted only
and must be offered as
A: If the fact sought to be proved are: by showing that it was
such, otherwise the
1. Existence and territorial extent of States; made through palpable
court will not consider it
2. Political history, forms of government and mistake or that no such
in deciding the case.
symbols of nationality; admission was made.
3. Law of nations; Judicial admissions need
4. Admiralty and maritime courts of the world not be offered in evidence
and their seals; since it is not evidence. It Requires formal offer
5. Political constitution and history of the is superior to evidence and for it to be considered
Philippines; shall be considered by the
court as established.
6. Official acts of legislative, executive and
Conclusive upon the
judicial departments of the Philippines; Rebuttable
admitter
7. Laws of nature;
Admissible even if self- Not admissible if self-
8. Measure of time; and
serving serving
9. Geographical divisions (Sec. 1). Subject to cross- Not subject to cross-
examination examination
b. DISCRETIONARY
Q: When are judicial admissions made?
Q: What is discretionary notice?
A: It may be made by the party himself or by his
A: Discretionary – a court may take judicial notice of counsel:
matters which are: 1. In the pleadings filed by the parties;
1. Of public knowledge; 2. In the course of the trial either by verbal or
2. Capable of unquestionable demonstration; written manifestations or stipulations,
or including depositions, written
3. Ought to be known to judges because of interrogatories and requests for admissions;
their judicial functions (Sec. 2). or
3. In other stages of the judicial proceedings,
3. JUDICIAL ADMISSIONS as in pre-trial.
Q: What is judicial admission? Q: What remedy is available to a party who gave a

judicial admission?
A: It is an admission, verbal or written, made by a
party in the course of the proceedings in the same A:
case, which does not require proof (Sec. 4). 1. Written admission – File a motion to
withdraw such pleading, or any other
Q: What are the elements of judicial admission? written instrument containing such
admission.
A: 2. Oral admission – The counsel may move for
1. It must be made by a party to the case or the exclusion of such admission.
his counsel;
2. It must be made in the course of the
proceedings in the same case; and
309
Q: What are the rules on admissions made in A: Yes. Admissions made in the pre-trial are
pleadings? deemed judicial admissions because they are made
in the course of the proceedings of the case. (Riano,
A: Evidence: A Restatement for the Bar, p. 104, 2009
GR: The facts alleged in a party’s pleadings are ed.)
deemed admissions and are binding upon that
party. a. EFFECT OF JUDICIAL ADMISSIONS
XPN: Hypothetical admissions made by party Q: What are the consequences of judicial
litigant, as when a defendant moves to dismiss admissions?
the case based on lack of jurisdiction or sets up
affirmative defenses. A:
1. A party who judicially admits a fact cannot
Note: Admissions in a pleading which had been later challenge that fact as judicial
withdrawn or superseded by an amended pleading, admissions constitute waiver of proof;
although filed in the same case, are considered as production of evidence is dispensed with;
extrajudicial admissions. The original must be proved 2. No evidence is needed to prove a judicial
by the party who relies thereon by formally offering it admission and it cannot be contradicted
in evidence (Torres v. CA, G.R. Nos. L-37420-21, July 31, unless it is shown to have been made
1984). through palpable mistake or that no such
admission was made.
Note: Justice Regalado opines that as amended, it
would appear that Sec. 4, Rule 129 includes
b. HOW JUDICIAL ADMISSIONS MAY BE
superseded pleadings as judicial admissions (Regalado,
Vol. II, p. 837, 2005 ed.).
CONTRADICTED
Q: What are the rules on admissions made in Q: How can judicial admission be contradicted?
pleadings which were not filed with the court?
A: It may be contradicted by showing:
A: 1. That it was made through palpable mistake;
1. If signed by the party litigant himself – 2. That no such admission was made (Sec. 4);
considered as extrajudicial admission. or
2. If signed by the counsel – not admissible 3. To prevent manifest injustice (e.g. pre-trial
because a counsel only binds his client with in civil cases, Sec. 7, Rule 18).
respect to admissions in open court and in
pleadings actually filed with the court. 4. JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF
NATIONS AND MUNICIPAL ORDINANCE
Q: What is self-serving evidence?
Q: May courts take judicial notice of foreign laws?
A: No. The self-serving rule which prohibits the
admission of declaration of a witness applies only A:
to extrajudicial admissions. If the declaration is GR: Foreign laws may not be taken judicial
made in open court, such is raw evidence. It is not notice of, and have to be proved like any other
self-serving. It is admissible because the witness fact.
may be cross-examined on that matter. XPN: When said laws are within the actual
knowledge of the court and such laws are:
Q: Are judicial admissions made by the accused 1. Well and generally known;
during his arraignment binding upon him? 2. Actually ruled upon in other cases before
it; and
A: No. A plea of guilty entered by the accused may 3. None of the parties claim otherwise.
be later withdrawn at any time before the
judgment of conviction becomes final. Such plea is Q: Suppose a foreign law was pleaded as part of
not admissible in evidence against the accused and the defense of the defendant but no evidence was
is not even considered as an extrajudicial presented to prove the existence of said law, what
admission. is the presumption to be taken by the court as to
the wordings of said law?
Q: Are admissions made during a pre-trial in a civil
case considered as judicial admissions? A: The doctrine of processual presumption applies.
The presumption is that the wordings of the foreign

EVIDENCE
law are the same as the local law (doctrine of 3. When the action is closely interrelated to
processual presumption) (Northwest Orient Airlines another case pending between the same
v. CA, G.R. No. 83033, June 8, 1990; Moran, Vol. 6, parties;
p. 34, 1980 ed.). (1997 Bar Question) 4. Where the interest of the public in
ascertaining the truth are of paramount
Q: What are the rules with regard to judicial notice importance;
of ordinances? 5. In cases seeking to determine what is
reasonable exercise of discretion or
A: whether or not the previous ruling is
1. MTCs are required to take judicial notice of applicable in a case under consideration; or
the ordinances of the municipality or city 6. Where there is finality of a judgment in
wherein they sit. another case that was previously pending
determination and therefore, res judicata.
2. RTCs must take judicial notice only: (Herrera, Vol. V, pp. 89-90, 1999 ed.)
a. When expressly authorized to do so by
statute; or Q: Anna and Badong were accused of killing Cathy.
b. In case on appeal before them and However, only Anna was arrested since Badong
wherein the inferior court took judicial went in to hiding. After trial, Anna was acquitted
notice of an ordinance involved in the of the charge in a decision rendered by Judge
same case. Santos. Subsequently, Badong was arrested and
brought to trial. After trial, Badong was found
3. Appellate courts may also take judicial guilty of homicide in a decision rendered by Judge
notice of ordinances not only because the Yantok, the judge who replaced Judge Santos after
lower courts took judicial notice thereof but the latter retired. On appeal, Badong argues that
because these are facts capable of Judge Yantok should have taken judicial notice of
unquestionable demonstration. (Riano, the acquittal of Anna rendered by Judge Santos. Is
Evidence: A Restatement for the Bar, pp. 90- Badong correct?
91, 2009 ed.)
A: No. The appreciation of one judge of the
Q: What is the rule on judicial notice of records of testimony of a certain witness is not binding on
another case previously tried? another judge who heard the testimony of the
same witness on the same matter. Each magistrate
A: who hears the testimony of a witness is called upon
GR: Courts are not authorized to take judicial to make his own appreciation of the evidence. It is,
notice of the contents of the records of other therefore, illogical to argue that because one judge
cases, even when such cases have been tried or made a conclusion in a certain way with respect to
are pending in the same court, and one or more of the accused; it necessarily dictates
notwithstanding the fact that both cases may that the succeeding judge who heard the same case
have been heard or are actually pending before against the other accused should automatically
the same judge. (Calamba Steel Center, Inc. v. make the same conclusion (People v. Langit, G.R.
CIR, G.R. No. 151857, Apr. 28, 2005) Nos. 134757-58, Aug. 4, 2000).
XPNS: Note: All courts must take judicial notice of the

1. When in the absence of any objection, with decisions of the Supreme Court as they are duty bound
the knowledge of the opposing party, the to know the rulings of the highest tribunal and to apply
contents of said other cases are clearly them in the adjudication of cases, jurisprudence being
referred to by title and number in a pending a part of our judicial system
action and adopted or read into the record
of the latter; C. OBJECT (REAL) EVIDENCE
2. When the original record of the other case
or any part of it is actually withdrawn from 1. NATURE OF OBJECT EVIDENCE
the archives at the court’s discretion upon
the request, or with the consent, of the Q: Define object evidence.
parties, and admitted as part of the record
of the pending case. (Jumamil v. Cafe, G.R. A: Object evidence, also known as real evidence,
No. 144570, Sept. 21, 2005) demonstrative evidence, autoptic preference and
physical evidence, is that evidence which is
addressed to the senses of the court (Sec. 1). It is
not limited to the view of an object. It extends to
311
the visual, auditory, tactile, gustatory, and object in question as to render a view
olfactory. It is considered as evidence of the highest thereof unnecessary. (Regalado, Vol. II, p.
order. 716, 2008 ed.)
Q: What are the purposes of authentication of Q: Is exhibition of the object which is repulsive or
object evidence? indecent absolutely prohibited?
A: A: No. If a view of the object is necessary in the

1. Prevent the introduction of an object interest of justice, such object may still be
different from the one testified about; and exhibited, but the court may exclude the public
2. Ensure that there has been no significant from such view. Such view may not be refused if
changes in the object’s condition. the indecent or immoral objects constitute the very
basis of the criminal or civil action (e.g. obscene
2. REQUISITES FOR ADMISSIBILITY pictures or exhibits). (Moran, p. 73)
Q: What are the requisites for the object evidence Q: In a criminal case for murder, the prosecution
to be admissible? offered as evidence photographs showing the
accused mauling the victim with several of the
A: It must latter’s companions. The person who took the
1. Be relevant to the fact in issue; photograph was not presented as a witness. Be
2. Be authenticated before it is admitted; that as it may, the prosecution presented the
3. Not be hearsay; companions of the victim who testified that they
4. Not be privileged; and were the ones in the photographs. The defense
5. Meet any additional requirement set by objected to the admissibility of the photographs
law. because the person who took the photographs
was not presented as witness. Is the contention of
Q: What does object evidence include? the defense tenable?
A: A: No. Photographs, when presented in evidence,

1. Any article or object which may be known must be identified by the photographer as to its
or perceived by the use of the senses; production and testified as to the circumstances
2. Examination of the anatomy of a person or under which they were produced. The value of this
of any substance taken therefrom; kind of evidence lies in its being a correct
3. Conduct of tests, demonstrations or representation or reproduction of the original, and
experiments; and its admissibility is determined by its accuracy in
4. Examination of representative portrayals of portraying the scene at the time of the crime.
the object in question (e.g. maps, diagrams)
The photographer, however, is not the only witness
Q: May the courts refuse the introduction of who can identify the pictures he has taken. The
object or real evidence and rely on testimonial correctness of the photograph as a faithful
evidence alone? representation of the object portrayed can be
proved prima facie, either by the testimony of the
A: Yes, but only if: person who made it or by other competent
1. Its exhibition is contrary to public morals or witnesses who can testify to its exactness and
decency; accuracy, after which the court can admit it subject
2. To require its being viewed in court or in to impeachment as to its accuracy.
ocular inspection would result in delays,
inconvenience, or unnecessary expenses Here, the photographs are admissible as evidence
which are out of proportion to the inasmuch as the correctness thereof was testified
evidentiary value of such object; to by the companions of the victim (Sison v. People,
3. Such object evidence would be confusing or G.R. Nos. 108280-83, Nov. 16, 1995).
misleading, as when the purpose is to prove
the former condition of the object and Q: Ron was charged with murder for shooting
there is no preliminary showing that there Carlo. After trial, Ron was found guilty as charged.
has been no substantial change in said On appeal, Ron argued that the trial court should
condition; or have acquitted him as his guilt was not proved
4. The testimonial or documentary evidence beyond reasonable doubt. He argues that the
already presented clearly portrays the paraffin test conducted on him 2 days after he was

EVIDENCE
arrested yielded a negative result. Hence, he could Note: It is a discretionary act of the trial court to go to
not have shot Carlo. Is Ron correct? the place where the object is located, when the object
evidence cannot be brought in courts.
A: No. While the paraffin test was negative, such
fact alone did not ipso facto prove that Ron is 6. CHAIN OF CUSTODY IN RELATION TO SECTION
innocent. A negative paraffin result is not 21 OF THE COMPREHENSIVE DANGEROUS DRUGS
conclusive proof that a person has not fired a gun. ACT OF 2002
It is possible to fire a gun and yet be negative for
nitrates, as when the culprit is wearing gloves or he Q: What is Chain of Custody Rule in relation to Sec.
washes his hands afterwards. Here, since Ron 21 of the Comprehensive Dangerous Drugs Act of
submitted himself for paraffin testing only two days 2002?
after the shooting, it was likely he had already
washed his hands thoroughly, thus removing all A: It is a method of authenticating evidence. It
traces of nitrates therefrom (People v. Brecinio, G.R. requires that the admission of an exhibit be
No. 138534, Mar. 17, 2004). preceded by evidence sufficient to support a finding
that the matter in question is what the proponent
3. CATEGORIES OF OBJECT EVIDENCE claims it to be. It would include testimony about
every link in the chain, from the moment the item
Q: What are the categories of object evidence for was picked up to the time it is offered into
purposes of authentication? evidence, in such a way that every person who
touched the exhibit would describe how and from
A: whom it was received, where it was and what
1. Unique objects – those that have readily happened to it while in the witness’ possession, the
identifiable marks (e.g. a calibre 40 gun with condition in which it was received and the condition
serial number XXX888) in which it was delivered to the next link in the
2. Objects made unique – those that are chain.
readily identifiable (e.g. a bolo knife used to These witnesses would then describe the
hack a victim which could be identified by a precautions taken to ensure that there had been no
witness in court) change in the condition of the item and no
3. Non-unique objects – those which have no opportunity for someone not in the chain to have
identifying marks and cannot be marked possession of the same. (Lopez v. People, G.R. No.
(e.g. footprints left at a crime scene) 172953, Apr. 30, 2008)
4. DEMONSTRATIVE EVIDENCE Q: When is there a need to establish a chain of

custody?
Q: Distinguish real evidence from demonstrative
evidence. A: It is necessary when the object evidence is non-
unique as it is not readily identifiable, was not made
A: identifiable or cannot be made identifiable, e.g.
Real evidence Demonstrative Evidence drops of blood or oil, drugs in powder form, fiber,
Tangible object that grains of sand and similar objects. (Riano, Evidence:
Tangible evidence that
played some actual A Restatement for the Bar, p. 149, 2009 ed.)
merely illustrates a matter
role in the matter that
of importance in the
gave rise to the Q: What is the purpose of establishing a chain of
litigation
litigation custody?
Intends to show that the
Intends to prove that demonstrative object fairly A: To guaranty the integrity of the physical evidence
the object is used in represents or illustrates and to prevent the introduction of evidence which
the underlying event what it is alleged to be is not authentic but where the exhibit is positively
illustrated identified the chain of custody of physical evidence
is irrelevant. (Ibid.)
5. VIEW OF AN OBJECT OR SCENE
7. RULE ON DNA EVIDENCE (A.M. NO. 06-11-5-SC)
Q: What is ocular inspection or “view”?
Q: In what cases do the Rules on DNA Evidence
A: An ocular inspection conducted by the judge apply?
without the presence of the parties or due notice is
not valid, as an ocular inspection is part of the trial. A: It shall apply whenever DNA evidence is offered,
used, or proposed to be offered or used as evidence
313
in all criminal and civil actions as well as special A: In pending actions, the appropriate court may, at
proceedings (Sec. 1). any time issue a DNA testing order either motu
proprio or upon application of any person who has
a. MEANING OF DNA a legal interest in the matter in litigation after due
hearing and notice to the parties and upon showing
Q: What is DNA? of the following:
1. A biological sample exists that is relevant to
A: DNA (deoxyribonucleic acid) is the chain of the case;
molecules found in every nucleated cell of the body 2. The biological sample:
(Sec. 3, Rule on DNA Evidence). It is the 3. was not previously subjected to the type of
fundamental building block of a person’s entire DNA testing now requested; or
genetic make-up, which is found in all human cells 4. was previously subjected to DNA testing,
and is the same in every cell of the same person but the results may require confirmation for
(People v. Umanito, G.R. No. 172607, Oct. 26, good reasons;
2007). 5. The DNA testing uses a scientifically valid
technique;
Q: What is DNA evidence? 6. The DNA testing has the scientific potential
to produce new information that is relevant
A: It constitutes the totality of the DNA profiles, to the proper resolution of the case; and
results and other genetic information directly 7. The existence of other factors, if any, which
generated from DNA testing of biological samples the court may consider as potentially
(Sec. 3). affecting the accuracy or integrity of the
DNA testing (Sec. 4).
Q: What is DNA testing?
Q: Is the order granting the DNA testing
A: It means verified and credible scientific methods appealable?
which include the extraction of DNA from biological
samples, the generation of DNA profiles and the A: No. An order granting the DNA testing shall be
comparison of the information obtained from the immediately executory and shall not be appealable.
DNA testing of biological samples for the purpose of Any petition for certiorari initiated therefrom shall
determining, with reasonable certainty, whether or not, in any way, stay the implementation thereof,
not the DNA obtained from two or more distinct unless a higher court issues an injunctive order (Sec.
biological samples originates from the same person 5).
(direct identification) or if the biological samples
originate from related persons (Kinship Analysis) Q: During Alexis’ trial for rape with murder, the
(Sec. 3). prosecution sought to introduce DNA evidence
against him, based on forensic laboratory
Note: The scientific basis of this test comes from the matching of the materials found at the crime scene
fact that our differences as individuals are due to the and Alexis’ hair and blood samples. Alexis’ counsel
differences in the composition of our genes. These objected, claiming that DNA evidence is
genes comprise a chemical substance, the inadmissible because the materials taken from
deoxyribonucleic acid or DNA [The Court Systems Alexis were in violation of his constitutional right
Journal (1999)]. against self-incrimination as well as his right of
privacy and personal integrity. Should the DNA
b. APPLICATION FOR DNA TESTING ORDER evidence be admitted or not? Reason.
Q: May DNA testing be conducted absent a prior A: The DNA evidence should be admitted. It is not
court order? in violation of the constitutional right against self-
incrimination or his right of privacy and personal
A: Yes. The Rules on DNA Evidence does not integrity. The right against self-incrimination is
preclude a DNA testing, without need of a prior applicable only to testimonial evidence. Extracting a
court order, at the behest of any party, including blood sample and cutting a strand from the hair of
law enforcement agencies, before a suit or the accused are purely mechanical acts that do not
proceeding is commenced (Sec. 4). involve his discretion nor require his intelligence.
(2004 Bar Question)
Q: What are the requisites for the issuance of a
DNA testing order?

EVIDENCE
Q: Is the result of DNA testing automatically 2. Such sample is relevant to the case; and
admitted as evidence in the case in which it was 3. The testing would probably result in the
sought for? reversal or modification of the judgment of
conviction (Sec. 6).
A: No. The grant of a DNA testing application shall
not be construed as an automatic admission into Q: What is the remedy of the convict if the post-
evidence of any component of the DNA evidence conviction DNA testing result is favorable to him?
that may be obtained as a result thereof (Sec. 5).
A: The convict or the prosecution may file a petition
Q: If a DNA test was conducted, what are the for a writ of habeas corpus in the court of origin. In
possible results that it may yield? case the court, after due hearing, finds the petition
to be meritorious, it shall reverse or modify the
A: judgment of conviction and order the release of the
1. The samples are similar, and could have convict, unless continued detention is justified for a
originated from the same source (Rule of lawful cause (Sec. 10).
Inclusion). In such a case, the analyst
proceeds to determine the statistical d. ASSESSMENT OF PROBATIVE VALUE OF DNA
significance of the similarity. EVIDENCE AND ADMISSIBILITY
2. The samples are different hence it must
have originated from different sources (Rule Q: What should the courts consider in determining
of Exclusion). This conclusion is absolute the probative value of DNA evidence?
and requires no further analysis;
3. The test is inconclusive. This might occur A:
due to degradation, contamination, failure 1. The chain of custody, including how the
of some aspect of protocol, or some other biological samples were collected, how they
reasons. Analysis might be repeated to were handled, and the possibility of
obtain a more conclusive result (People v. contamination of the samples;
Vallejo, G.R. No. 144656, May 9, 2002). 2. The DNA testing methodology, including the
procedure followed in analyzing the
Q: What should the courts consider in evaluating samples, the advantages and disadvantages
DNA testing results? of the procedure, and compliance with the
scientifically valid standards in conducting
A: the tests;
1. The evaluation of the weight of matching 3. The forensic DNA laboratory, including
DNA evidence or the relevance of accreditation by any reputable standards-
mismatching DNA evidence; setting institution and the qualification of
2. The results of the DNA testing in the light of the analyst who conducted the tests. If the
the totality of the other evidence presented laboratory is not accredited, the relevant
in the case; and experience of the laboratory in forensic
3. DNA results that exclude the putative casework and credibility shall be properly
parent from paternity shall be conclusive established; and
proof of non-paternity (Sec. 9). 4. The reliability of the testing result (Sec. 7).
c. POST-CONVICTION DNA TESTING; REMEDY Q: What are the things to be considered in

assessing the probative value of DNA evidence?
Q: To whom is the post-conviction DNA testing
available? A:
1. How the samples are collected;
A: Post-conviction DNA testing may be available, 2. How they were handled;
without need of prior court order, to the 3. The possibility of the contamination of the
prosecution or any person convicted by final and samples;
executory judgment. 4. The procedure followed in analyzing the
samples;
Q: What are the requisites for the applicability of 5. Whether the proper standards and
the Post-conviction DNA testing? procedures were followed in conducting the
tests; and
A: 6. The qualification of the analyst who
1. Existing biological sample; conducted the tests. (Ibid.)
315
e. RULES ON EVALUATION OF RELIABILITY OF THE A:

DNA TESTING METHODOLOGY 1. The document must be relevant;
2. The evidence must be authenticated;
Q: What are the things to be considered in 3. The document must be authenticated by a
evaluating whether or not the DNA testing competent witness; and
methodology is reliable? 4. The document must be formally offered in
evidence.
A:
1. The falsifiability of the principles or 3. BEST EVIDENCE RULE
methods used, that is, whether the theory
or technique can be and has been tested; a. MEANING OF THE RULE
2. The subjection to peer review and
publication of the principles or methods; Q: What is Best Evidence Rule?
3. The general acceptance of the principles or
methods by the relevant scientific A:
community; GR: It provides that when the subject of the
4. The existence and maintenance of inquiry is the contents of the document, no
standards and controls to ensure the evidence shall be admissible other than the
correctness of data generated; original document itself.
5. The existence of an appropriate reference
population database; and XPNs:
6. The general degree of confidence attributed 1. When the original has been lost or
to mathematical calculations used in destroyed, or cannot be produced in
comparing DNA profiles and the significance court, without bad faith on the part of the
and limitation of statistical calculations used offeror;
in comparing DNA profiles. 2. When the original is in the custody or
under the control of the party against
D. DOCUMENTARY EVIDENCE whom the evidence is offered, and the
latter fails to produce it after reasonable
1. MEANING OF DOCUMENTARY EVIDENCE notice;
3. When the original consists of numerous
Q: Define Documentary Evidence. accounts or other documents which
cannot be examined in court without
A: Documents as evidence consist of writings or any great loss of time and the fact sought to
material containing letters, words, numbers, be established from them is only the
figures, symbols, or other modes of written general result of the whole;
expressions, offered as proof of their contents (Sec. Note: The voluminous records must be
2). made accessible to the adverse party so
that the correctness of the portion
Q: May a private document be offered and produced or summary of the document
admitted in evidence both as documentary may be tested on cross-examination.
evidence and as object evidence? Explain. 4. When the original is a public record in the
custody of a public officer or is recorded
A: Yes. A private document is considered as object in a public office (Sec. 3)
evidence when it is addressed to the senses of the Note: Where the issue is only as to
court or when it is presented in order to establish whether such a document was actually
executed, or exists, or on the
certain physical evidence or characteristics that are
circumstances relevant to or
visible on the paper and the writings that comprise
surrounding its execution, the best
the document. It is considered as documentary evidence rule does not apply and
evidence when it is offered as proof of its contents. testimonial evidence is admissible.
(2005 Bar Question)
b. WHEN APPLICABLE
2. REQUISITES FOR ADMISSIBILITY
Q: When is this applicable?
Q: What are the requisites for admissibility of
documentary evidence? A: The rule will come into play only “when the
subject of inquiry is the contents of a document.”

EVIDENCE
Q: Why is the best evidence rule often described presented an expert witness to prove that her
as a misnomer? signature in the promissory note was forged. Jean
objected to the presentation of Paula’s expert
A: Because it merely requires the best evidence witness on the ground that the finding of said
available and, in the absence thereof, allows the witness is based on a mere photocopy of the
introduction of secondary evidence. promissory note. Is the objection of Jean tenable?
Alternative Answer: A: Yes. As a rule, forgery cannot be presumed and

It is a misnomer because it is applicable only to must be proved by clear, positive and convincing
documentary evidence and not to testimonial and evidence and the burden of proof lies on the party
object evidence. (1994 Bar Question) alleging forgery. The best evidence of a forged
signature in an instrument is the instrument itself
Q: At the trial of Ace for violation of the reflecting the alleged forged signature.
Dangerous Drugs Act, the prosecution offers in
evidence a photocopy of the marked P100.00 bills The fact of forgery can only be established by a
used in the “buy-bust” operation. Ace objects to comparison between the alleged forged signature
the introduction of the photocopy on the ground and the authentic and genuine signature of the
that the best evidence rule prohibits the person whose signature is theorized upon to have
introduction of secondary evidence in lieu of the been forged. Without the original document
original. containing the alleged forged signature, one cannot
1. Is the photocopy real (object) evidence or make a definitive comparison which would
documentary evidence? establish forgery. A comparison based on a mere
2. Is the photocopy admissible in evidence? photocopy or reproduction of the document under
controversy cannot produce reliable results (Heirs
A: of Gregorio v. CA, G.R. No. 117609, Dec. 29, 1998).
1. It is real (object) evidence, because the
marked bills are real evidence. Q: When Anna loaned a sum of money to Blair,
Anna typed a single copy of the promissory note,
2. Yes, it is admissible in evidence, because the which they both signed. Anna made two
best evidence rule does not apply to object photocopies of the promissory note, giving one
or real evidence. The best evidence rule is copy to Blair and retaining the other copy. Anna
inapplicable since such secondary evidence entrusted the typewritten copy to his counsel for
is only intended to establish the existence of safekeeping. The copy with Anna's counsel was
a transaction and not the contents of the destroyed when the law office was burned.
document. (1994 Bar Question) 1. In an action to collect on the promissory note,
which is deemed to be the "original" copy for
Q: Are affidavits and depositions considered as the purpose of the best evidence rule?
best evidence? 2. Can the photocopies in the hands of the
parties be considered "duplicate original
A: No, hence, not admissible if the affiants and copies"?
witnesses are available as witnesses. (Regalado, 3. As counsel for Anna, how will you prove the
Vol. II, p. 721, 2008 ed.) loan given by Anna to Blair?
Q: What is the best evidence of telegrams and A:

cables? 1. The copy that was signed and lost is the
only "original" copy for purposes of the best
A: It depends on the issue to be proved. evidence rule (Sec. 4 [b]).
1. Contents of the telegram received by the
addressee: the original dispatch received. 2. No, because they merely are photocopies
2. The telegram sent by the sender: the which were not signed (Mahilum v. CA, G.R.
message delivered for transmission. No. L-17970, July 10, 1966), They constitute
3. Inaccuracy of transmission of the telegram: secondary evidence (Sec. 5).
both telegrams as sent and received
(Regalado, Vol. II, pp. 722-723, 2008 ed.). 3. It may be proved by secondary evidence
through the photocopies of the promissory
Q: In a civil case for collection of money, Paula note. When the original document is lost or
sought to escape liability from a promissory note destroyed, or cannot be produced in court,
by showing that the same was a forgery. She the offeror, upon proof of its execution or
317
existence and the cause of its unavailability ledgers, all the entries are likewise equally
without bad faith on his part, may prove its regarded as originals (Sec. 4).
contents by a copy, or by a recital of its
contents in some authentic document, or by Q: What is the rule on duplicate original?
the testimony of witnesses in the order
stated (Sec. 5). (1997 Bar Question) A: It states that when a document is in two or more
copies executed at or about the same time with
Q: Car was declared in default by the MTC in an identical contents, all such copies are equally
action for unlawful detainer. Plaintiff, Loise was regarded as originals (Sec. 4b, Rule 130). It may be
allowed to present evidence in support of her introduced in evidence without accounting for the
complaint. Photocopies of official receipts and non-production of the other copies.
original copies of affidavits were attached to the
position paper submitted by Loise.
d. REQUISITES FOR INTRODUCTION OF
Said documents were offered by Loise and SECONDARY EVIDENCE
admitted in evidence by the court on the basis of
which the court rendered judgment in favor of Q: What is secondary evidence?
Loise. Car appealed to the RTC claiming that the
judgment is not valid because the MTC based its A: Secondary evidence is that which shows that
judgment on mere photocopies and affidavits of better or primary evidence exists as to the proof of
persons not presented in court. Is the claim of Car the fact in question. It is the class of evidence that
valid? Explain. is relevant to the fact in issue, it being first shown
that the primary evidence of the fact is not
A: Yes, although the rules on summary procedure obtainable. It performs the same functions as that
requires merely the submission of position papers, of primary evidence. (Francisco, p. 68, 1992 ed.)
the evidence submitted with the position paper
must be admissible in evidence. Photocopies of Note: All originals must be first accounted for before
official receipts and affidavits are not admissible in one can resort to secondary evidence. It must appear
evidence without proof of loss of the originals. that all of them have been lost or destroyed or cannot
(2000 Bar Question) be produced in court. The non-production of the
original document, unless it falls under any of the
Q: What is the Collateral Facts Rule? exceptions in Sec. 3, Rule 130, gives rise to the
presumption of suppression of evidence.
A: It states that a document or writing which is
merely “collateral” to the issue involved in the case Q: When may secondary evidence be admitted?
on trial need not be proved. Where the purpose of
presenting a document is not to prove its contents, A: It may be admitted only by laying the basis for its
but merely to give coherence to, or to make production and such requires compliance with the
intelligible the testimony of a witness regarding a following:
fact contemporaneous to the writing, the original of 1. The offeror must prove the due execution
the document need not be presented. and existence of the original document;
2. The offeror must show the cause of its
c. MEANING OF ORIGINAL unavailability; and
3. The offeror must show that the
Q: What is an original document? unavailability was not due to his bad faith.
A: There are three concepts of “original” document: Accordingly, the correct order of proof is as follows:
1. The original of a document is one the existence, execution, loss, and contents. This order
contents of which are the subject of inquiry; may be changed if necessary at the sound
2. When a document is in 2 or more copies discretion of the court. (Citibank N.A. Mastercard v.
executed at or about the same time, with Teodoro, G.R. No. 150905, Sept. 23, 2003)
identical contents, including signed carbon
Note: Intentional destruction of the originals by a
copies, all such copies are equally regarded
party who acted in good faith does not preclude the
as originals; or
introduction of secondary evidence of the contents
3. When an entry is repeated in the regular thereof.
course of business, one being copied from
another at or near the time of the
transaction, including entries in journals and

EVIDENCE
Q: What is the order of presentation of secondary 3. Any person who heard when the document
evidence? was being read;
4. Any person who was present when the
A: contents of the document were talked over
1. Copy of the original; by the parties to such an extent as to give
2. A recital of the contents of the document in him reasonably full information of the
some authentic document; or contents; or
3. By the testimony of witnesses (Sec. 5, Rule 5. Any person to whom the parties have
130) stated or confessed the contents thereof.
Q: What is Definite Evidentiary Rule? Q: May the presentation or the offer of the
original be waived?
A: Where the law specifically provides for the class
and quantum of secondary evidence to establish A: Yes, if the party against whom the secondary
the contents of a document, or bars secondary evidence is offered does not object thereto when
evidence of a lost document, such requirement is the same is offered in evidence, the secondary
controlling. E.g. Evidence of a lost notarial will evidence becomes primary evidence. But even
should consist of a testimony of at least two admitted as primary evidence, its probative value
credible witnesses who can clearly and distinctly must still meet the various tests by which its
establish its contents (Sec. 6, Rule 76). reliability is to be determined. Its admissibility
should not be confused with its probative value.
Q: How may the due execution of the document (Heirs of Teodoro De la Cruz v. CA, G.R. No. 117384,
be proved? Oct. 21, 1998)
A: It may be proved through the testimony of: Q: What facts must be shown by the party offering
1. The person who executed it; secondary evidence if the original is in the custody
2. The person before whom its execution was of the adverse party?
acknowledged;
3. Any person who was present and saw it A:
executed and delivered; 1. Original is in the possession or under the
4. Any person who thereafter saw and control of the opponent;
recognized the signature; 2. Demand or notice is made to him by the
5. One to whom the parties thereto had proponent signifying that the document is
previously confessed the execution thereof; needed;
or 3. Failure or refusal of opponent to produce
6. By evidence of the genuineness of the document in court; and
signature or handwriting of the maker. (Sec. 4. Satisfactory proof of existence of document
20, Rule 132) (Sec. 6).
Q: How may the loss or destruction be proved? Note: The party who called for a document is not
obliged to offer it into evidence (Sec. 8).
A: It may be proved by:
1. Any person who knew of such fact; Q: What is the form of notice required to be given
2. Anyone who, in the judgment of the court, to the adverse party?
had made sufficient examination in the
places where the document or papers of A: No particular form of notice is required as long
similar character are usually kept by the as it fairly appraises the other party as to what
person in whose custody the document papers are desired. Even an oral demand in open
was and has been unable to find it; or court for such production at a reasonable time
3. Any person who has made any other thereafter will suffice. Such notice must, however,
investigation which is sufficient to satisfy be given to the adverse party, or his attorney, even
the court that the document is indeed lost. if the document is in the actual possession of a third
person. (Regalado, Vol. II, p. 726, 2008 ed.)
Q: How may the contents be proved?
Q: What is the effect if the refusal or failure of the
A: They may be proved by the testimony of: adverse party to produce the original is justified?
1. Any person who signed the document;
2. Any person who read it; A: It does not give rise to the presumption of
suppression of evidence, or create an unfavorable
319
inference against him. It only authorizes the

presentation of secondary evidence. (Regalado, Vol. Note: The promissory note is an actionable document
II, p. 727, 2008 ed.) and the original or a copy thereof should have been
attached to the complaint. (Sec. 7, Rule 8) In such a
Q: Paula filed a complaint against Lynette for the case, the genuineness and due execution of the note, if
recovery of a sum of money based on a promissory not denied under oath, would be deemed admitted.
note executed by Lynette. Paula alleged in her (Sec. 8, Rule 9)
complaint that although the promissory note says
that it is payable within 120 days, the truth is that Q: When Linda died, her common law husband,
the note is payable immediately after 90 days but Lito and their alleged daughter Nes executed an
that if Paula is willing, she may, upon request of extrajudicial partition of Linda’s estate. Thereafter,
Lynette give the latter up to 120 days to pay the the siblings of Linda filed an action for partition of
note. Linda’s estate and annulment of titles and
damages with the RTC. The RTC dismissed the
During the hearing, Paula testified that the truth is complaint and rendered that Nes was the
that the agreement between her and Lynette is for illegitimate daughter of the decedent and Lito
the latter to pay immediately after 90 days time. based solely on her birth certificate, which on
Also, since the original note was with Lynette and closer examination, reveals that Nes was listed as
the latter would not surrender to Paula the “adopted” by both Linda and Lito. Is the trial court
original note which Lynette kept in a place about correct?
one day's trip from where she received the notice
to produce the note and in spite of such notice to A: No. The mere registration of a child in his or her
produce the same within 6 hours from receipt of birth certificate as the child of the supposed
such notice, Lynette failed to do so. Paula parents is not a valid adoption, does not confer
presented a copy of the note which was executed upon the child the status of an adopted child and
at the same time as the original and with identical the legal rights of such child, and even amounts to
contents. simulation of the child's birth or falsification of his
or her birth certificate, which is a public document.
1. Over the objection of Lynette, will Paula be Furthermore, a record of birth is merely a prima
allowed to testify as to the true agreement or facie evidence of the facts contained therein. It is
contents of the promissory note? Why? not conclusive evidence of the truthfulness of the
2. Over the objection of Lynette, can Paula statements made there by the interested parties.
present a copy of the promissory note and Nes should have adduced evidence of her adoption,
have it admitted as valid evidence in her in view of the contents of her birth certificate. The
favor? Why? records however are bereft of any such evidence
(Rivera v. Heirs of Villanueva, G.R. No. 141501, July
A: 21, 2006).
1. Yes. As an exception to the parol evidence
rule, a party may present evidence to Q: What are the requisites for the admission of
modify, explain or add to the terms of the secondary evidence when the original consists of
written agreement if he puts in issue in numerous accounts?
his pleading the failure of the written
agreement to express the true intent and A:
agreement of the parties thereto. Here, 1. The original must consist of numerous
Paula has alleged in her complaint that accounts or other documents;
the promissory note does not express the 2. They cannot be examined in court without
true intent and agreement of the parties. great loss of time; and
3. The fact sought to be established from
2. Yes. The copy in possession of Paula is a them is only the general result of the whole.
duplicate original because it was executed (Sec. 3c, Rule 130)
at the same time as the original and with
identical contents. Moreover, the failure Note: Secondary evidence may consist of a summary
of the voluminous documents or records. (Herrera,
of Lynette to produce the original of the
Vol. V, p. 203, 1999 ed.) Such records must be made
note is excusable because she was not
accessible to the adverse party so that the correctness
given reasonable notice, a requirement of the summary of the voluminous records may be
under the Rules before secondary tested on cross-examination. (Compania Maritima v.
evidence may be presented. (2001 Bar Allied Free Workers Union, et.al., G.R. No. L-28999,
Question) May 24, 1977)

EVIDENCE
A: An electronic document is admissible in evidence

Q: How may the contents of the document be if it complies with the rules on admissibility
proved when the original is in the custody of a prescribed by the Rules of Court and related laws
public officer? and is authenticated in the manner prescribed by
the Rules on Electronic Evidence (Sec. 2, Rule 3).
A: The contents may be proved by:
1. A certified copy issued by the public officer a. MEANING OF ELECTRONIC EVIDENCE;
in custody thereof (Sec. 7, Rule 130); and ELECTRONIC DATA MASSAGE
2. Official publication. (Herrera, Vol. V, p. 203,
1999 ed.) Q: What is Electronic Evidence?
Q: What is the effect of not offering a document in A: According to Black's Law Dictionary, evidence is
evidence after calling for its production and "any species of proof, or probative matter, legally
inspection? presented at the trial of an issue, by the act of the
parties and through the medium of witnesses,
A: If the party who calls for the production of a records, documents, exhibits, concrete objects, etc.
document does not offer the same in evidence, no for the purpose of inducing belief in the minds of
unfavorable inference may be drawn from such the court or jury as to their contention." Electronic
failure. This is because a party who calls for the information (like paper) generally is admissible into
production of a document is not required to offer it. evidence in a legal proceeding..
(Sec. 8, Rule 130)
Q: What are the distinctions between the Q: What is Electronic Data Message?
production of documents under Sec. 8, Rule 130
and Rule 27 (mode of discovery)? A: Electronic data message refers to information
generated, sent, received or stored by electronic,
A: optical or similar means.
SEC. 8, RULE 130 RULE 27
The production of b. PROBATIVE VALUE OF ELECTRONIC
Procured by mere notice
document is in the nature DOCUMENTS OR EVIDENTIARY WEIGHT; METHOD
to the adverse party,
of a mode of discovery OF PROOF
which is a condition
and can be sought only by
precedent for the
proper motion in the trial Q: What are the factors to be considered in
subsequent introduction
court and is permitted assessing evidentiary weight of an electronic
of secondary evidence
only upon good cause document?
by the proponent.
shown.
Contemplates a situation
Presupposes that the A:
wherein the document is
document to be 1. The reliability of the manner or method in
either assumed to be
produced is intended as which it was generated, stored or
favorable to the party in
evidence for the communicated, including but not limited
possession thereof or that
proponent who is to input and output procedures, controls,
the party seeking its
presumed to have tests and checks for accuracy and
production is not
knowledge of its reliability of the electronic data message
sufficiently informed of
contents. or document, in the light of all the
the contents of the same.
circumstances as well as any relevant
4. RULES ON ELECTRONIC EVIDENCE (A.M. NO. 01- agreement;
7-01-SC) 2. The reliability of the manner in which its
originator was identified;
Q: In what cases do the Rules on Electronic 3. The integrity of the information and
Evidence applies? communication system in which it its
recorded or stored, including but not
A: It shall apply to all civil actions and proceedings, limited to the hardware and computer
as well as quasi-judicial and administrative cases programs or software used as well as
(Sec. 2, Rule 1). programming errors;
4. The familiarity of the witness or the
Q: State the rule on the admissibility of electronic person who made the entry with the
evidence. communication and information system;
321
5. The nature and quality of the information 1. The electronic signature is that of the
which went into the communication and person to whom it correlates;
information system upon which the 2. The electronic signature was affixed by that
electronic data message document was person with the intention of authenticating
based; or or approving the electronic document to
6. Other factors which the court may which it is related or to indicate such
consider as affecting accuracy or integrity person’s consent to the transaction
of the electronic document or electronic embodied therein; and
data message. (Sec. 1, Rule 7) 3. The methods or processes utilized to affix or
verify the electronic signature operated
C. AUTHENTICATION OF ELECTRONIC DOCUMENTS without error or fault (Sec. 3, Rule 6).
AND ELECTRONIC SIGNATURES
Q: What is a Digital Signature?
Q: How is an electronic document authenticated?
A: It refers to an electronic signature consisting of a
A: transformation of an electronic document or an
1. By evidence that it had been digitally electronic data message using an asymmetric or
signed by the person purported to have public cryptosystem such that a person having the
signed the same; initial untransformed electronic document and the
2. By evidence that other appropriate signer’s public key can accurately determine:
security procedures or devices as may be 1. whether the transformation was created
authorized by the Supreme Court or by using the private key that corresponds to
law for authentication of electronic the signer’s public key; and
documents were applied to the 2. whether the initial electronic document had
document; or been altered after the transformation was
3. By other evidence showing its integrity made [Sec. 1(e), Rule 2]
and reliability to the satisfaction of the
judge (Sec. 2, Rule 5). Q: What is the effect of authentication of digital
signatures?
Q: What is Electronic Signature?
A: Upon authentication, it shall be presumed that:
A: It refers to any distinctive mark, characteristic 1. The information contained in a certificate is
and/or sound in electronic form, representing the correct;
identity of a person and attached to or logically 2. The digital signature was created during the
associated with the electronic data message or operational period of a certificate;
electronic document or any methodology or 3. No cause exists to render a certificate
procedure employed or adopted by a person and invalid or revocable;
executed or adopted by such person with the 4. The message associated with a digital
intention of authenticating, signing or approving an signature has not been altered from the
electronic data message or electronic document. time it was signed; and
For purposes of these Rules, an electronic signature 5. A certificate had been issued by the
includes digital signatures [Sec. 1 (j), Rule 2]. certification authority indicated therein
(Sec. 4, Rule 6).
Q: How is an electronic signature authenticated?
d. ELECTRONIC DOCUMENTS AND THE HEARSAY
A: RULE
1. By evidence that a method or process was
utilized to establish a digital signature and Q: When is the Hearsay Rule not applicable to
verify the same; electronic documents?
2. By any other means provided by law; or
3. By any other means satisfactory to the judge A: A memorandum, report, record or data
as establishing the genuineness of the compilation of acts, events, conditions, opinions, or
electronic signature (Sec. 2, Rule 6). diagnoses, made by electronic, optical or other
similar means at or near the time of or from
Q: What is the effect of authentication of an transmission or supply of information by a person
electronic signature? with knowledge thereof, and kept in the regular
course or conduct of a business activity, and such
A: Upon authentication, it shall be presumed that: was the regular practice to make the

EVIDENCE
memorandum, report, record, or data compilation 5. PAROL EVIDENCE RULE

by electronic, optical or similar means, all of which
are shown by the testimony of the custodian or Q: What is Parol Evidence?
other qualified witnesses, is excepted from the rule
on hearsay evidence (Sec. 1, Rule 8). A: It is any evidence aliunde (extrinsic evidence)
which is intended or tends to vary or contradict a
Note: The presumption provided for in Section 1 of complete and enforceable agreement embodied in
this Rule may be overcome by evidence of the a document (Regalado, Vol. II, p. 730, 2008 ed.). It
untrustworthiness of the source of information or the may refer to testimonial, real or documentary
method or circumstances of the preparation, evidence.
transmission or storage thereof (Sec. 2, Rule 8).
Q: What is the rationale of the parol evidence
e. AUDIO, PHOTOGRAPHIC, VIDEO AND rule?
EPHEMERAL EVIDENCE
A:
Q: May parties present audio, photographic or 1. To give stability to written statements;
video evidence? Discuss. 2. To remove the temptation and possibility of
perjury; and
A: Yes. Audio, photographic and video evidence of 3. To prevent possible fraud.
events, acts or transactions shall be admissible
provided it shall be shown, presented or displayed Q: Distinguish the kinds of ambiguities.
to the court and shall be identified, explained or
authenticated by the person who made the A:
recording or by some other person competent to INTRINSIC OR EXTRINSIC OR
testify on the accuracy thereof (Sec. 1, Rule 11). INTERMEDIATE
LATENT PATENT
On its face, the
Q: What is ephemeral electronic communication? Ambiguity is
writing appears Ambiguity
apparent on the
clear and consists in the
face of the
A: It refers to telephone conversations, text unambiguous use of
writing and
messages, chat room sessions, streaming audio, but there are equivocal
requires that
streaming video, and other electronic forms of collateral words
something be
communication the evidence of which is not matters which susceptible of
added to make
recorded or retained. [Sec. 1(k)] make the two or more
the meaning
meaning interpretation
certain
Q: Are text messages admissible as evidence? uncertain
Cannot be
Curable by Curable by
cured by
A: Yes. Text messages have been classified as evidence evidence
evidence
ephemeral electronic communication under Section aliunde aliunde
aliunde
1(k), Rule 2 of the Rules on Electronic Evidence, and
shall be proven by the testimony of a person who
Q: What is the principle of “falsa demonstratio
was a party to the same or has personal knowledge
non nice cum de corpore constat”?
thereof (Vidallon-Magtolis v. Cielito Salud, A.M. No.
CA-05-20-P, Sept. 9, 2005).
A: It literally means “an erroneous description does
not spoil the act”. It states that the false description
Q: How shall ephemeral electronic communication
does not injure or vitiate a document if the subject
be proven?
is sufficiently identified. The incorrect description
shall be rejected as surplusage while the correct
A: It shall be proven by the testimony of a person
and complete description standing alone shall
who was a party to the same or has personal
sustain the validity of the writing (Regalado, Vol. II,
knowledge thereof. In the absence or unavailability
p. 735, 2008 ed.). Parol evidence is admissible to
of such witnesses, other competent evidence be
prove mistake in the execution of a written
admitted. A recording of the telephone
instrument.
conversation or ephemeral electronic
communication shall be covered by the
Q: May a condition precedent and a condition
immediately preceding section. If the foregoing
subsequent be established by parol evidence?
communications are recorded or embodied in an
electronic document, then the provisions of Rule 5
A: Condition precedent may be established by parol
regarding Authentication of Electronic Documents
evidence because there is no varying of the terms
shall apply. (Sec. 2, Rule 11)
323
of the written contract by extrinsic agreement for the execution of the written agreement.
the reason that there is no contract in existence. (Sec. 9)
There is nothing in which to apply the excluding
rule. Conditions subsequent may not be established c. DISTINCTIONS BETWEEN THE BEST EVIDENCE
by parol evidence since a written contract already RULE AND PAROL EVIDENCE RULE
exists.
Q: Distinguish parol evidence rule from best
a. APPLICATION OF THE PAROL EVIDENCE RULE evidence rule.
Q: What are the requisites for the application of A:

the parol evidence rule? PAROL EVIDENCE RULE BEST EVIDENCE RULE
The original document is
Presupposes that the
A: not available or there is a
original document is
1. There must be a valid contract; dispute as to whether said
available in court
2. The terms of the agreement must be writing is original
reduced to writing; Prohibits the introduction
3. The dispute is between the parties or their of secondary evidence in
Prohibits the varying of
successors-in-interest; and lieu of the original
the terms of a written
document regardless of
4. There is dispute as to the terms of the agreement
whether or not it varies
agreement.
the contents of the
original
b. WHEN PAROLE EVIDENCE CAN BE INTRODUCED Applies only to documents
Applies to all kinds of
which are contractual in
Q: What is Parol Evidence Rule? writings
nature except wills
Can be invoked only when
A: It states that when the terms of an agreement the controversy is Can be invoked by any
have been reduced to writing, it is considered as between the parties to the party to an action whether
containing all the terms agreed upon and there can written agreement, their he has participated or not
be, between the parties and their successors-in- privies, or any party in the writing involved
interest, no evidence of such terms other than the affected thereby like a
contents of the written agreement (Sec. 9). cestui que trust
Note: Parol evidence rule does not apply, and may not 6. AUTHENTICATION AND PROOF OF DOCUMENTS
properly be invoked by either party to the litigation (RULE 132)
against the other, where at least one party to the suit
is not a party or privy of a party to the written Q: When is authentication of documents not
instrument in question and does not base a claim or required?
assert a right originating in the instrument of the
relation established thereby. Thus, if one of the parties A:
to the case is a complete stranger to the contract 1. The writing is an ancient document (Sec.
involved therein, he is not bound by this rule and can
21);
introduce extrinsic evidence against the efficacy of the
2. GR: The writing is a public document or
writing. (Lechugas v. CA et.al., G.R. Nos. L-39972 & L-
40300, Aug. 6, 1986)
record (Sec. 19);
Q: What are the exceptions to the parol evidence XPN: A private document required by law to
rule? be recorded – while they are public
documents, the public writing is not the
A: A party may present evidence to modify, explain writing itself but the “public record”
or add to the terms of the written agreement if he thereof. Such recording does not make the
puts in issue in his pleadings the following: private writing itself a public document so
1. An intrinsic ambiguity, mistake or as to make it admissible without
imperfection in the written agreement; authentication.
2. Failure of the written agreement to express
the true intent of the parties thereto; 3. The writing is a notarial document
3. Validity of the written agreement; or acknowledged, proved or certified (Sec. 30);
4. Existence of other terms agreed to by the 4. The authenticity and due execution of the
parties or their successors in interest after document has been expressly admitted or
impliedly admitted by failure to deny the
same under oath; or

EVIDENCE
5. When such genuineness and due execution of its genuineness and due authentic is received
are immaterial to the issue. execution in evidence, its due
execution and
a. MEANING OF AUTHENTICATION authenticity must be
proved either:
Q: What is authentication?
1. By anyone who saw
the document
A: It is proving the due execution and genuineness
executed or written;
of the document.
or
2. By evidence of the
Q: What is document? genuineness of the
A: It is a deed, instrument or other duly authorized signature or
paper by which something is proved, evidenced or handwriting of the
set forth. (Bermejo v. Barrios, G.R. No. L-23614, Feb. maker.
27, 1970)
Any other private
b. PUBLIC AND PRIVATE DOCUMENTS document need only
be identified as that
Q: What are public and private documents. which it is claimed to
be (Sec. 20).
A: Public documents are: As to persons bound
1. The written official acts, or records of the Binds only the parties
official acts of the sovereign authority, who executed them
Evidence even against third
official bodies and tribunals, and public or their privies,
persons, of the fact which
officers, whether of the Philippines, or of a insofar as due
gave rise to its due execution
foreign country; execution and date
and to the date of the latter
of the document are
2. Documents acknowledge before a notary
concerned
public except last wills and testaments; and
As to validity of certain transactions
3. Public records, kept in the Philippines, of
Certain transactions must be
private documents required by law to the
contained in a public
entered therein. document; otherwise they
Note: All other writings are private. (Sec. 19)
will not be given any validity.
Q: Distinguish the classes of documents.

Q: What are the rules in interpreting documents?
A:
A:
PUBLIC DOCUMENT PRIVATE DOCUMENT
1. The language of a writing is to be
What comprises it
interpreted according to the legal meaning
1. The written official acts,
it bears in the place of its execution, unless
or records of the official
acts of the sovereign the parties intended otherwise.
authority, official bodies 2. Where there are several provisions or
and tribunals, and particulars, such a construction is, if
public officers, whether possible, to be adopted as will give effect to
of the Philippines, or of all.
a foreign country; 3. The intention of the parties is to be pursued;
2. Documents and when a general and a particular
All other writings are
acknowledged before a provision are inconsistent, the latter is
private (Sec. 19).
notary public except last paramount to the former. So a particular
wills and testaments; intent will control a general one that is
and inconsistent with it.
3. Public records, kept in 4. The circumstances under which it was
the Philippines, of made, including the situation of the subject
private documents thereof and of the parties to it, may be
required by law to be
shown, so that the judge may be placed in
entered therein (Sec.
the position of those whose language he is
19).
to interpret.
As to authenticity and admissibility as evidence
5. The terms of a writing are presumed to
Admissible as evidence Before any private
without need of further proof document offered as
have been used in their primary and general
325
acceptation, but evidence is admissible to specimens of the questioned signatures with those
show that they have a local, technical, or of the currently existing ones (Pontaoe v. Pontaoe,
otherwise peculiar signification, and were G.R. No. 15958, Apr. 22, 2008).
so used and understood in the particular
instance, in which case the agreement must d. WHEN EVIDENCE OF AUTHENTICITY OF A
be construed accordingly. PRIVATE WRITING IS NOT REQUIRED (ANCIENT
6. When an instrument consists partly of DOCUMENTS)
written words and partly of a printed form,
and the two are inconsistent, the former Q: What are the requisites for an ancient
controls the latter. document to be exempt from proof of due
7. When the characters in which an execution and authenticity (rule on ancient
instrument is written are difficult to be document/authentic document rule)?
deciphered, or the language is not
understood by the court, the evidence of A:
persons skilled in deciphering the 1. The private document be more than 30
characters, or who understand the years old;
language, is admissible to declare the 2. That it be produced from a custody in which
characters or the meaning of the language. it would naturally be found if genuine; and
8. When the terms of an agreement have been 3. That it is unblemished by any alteration or
intended in a different sense by the circumstances of suspicion (Sec. 21).
different parties to it, that sense is to
prevail against either party in which he Note: Ancient document rule applies only if there are
supposed the other understood it, and no other witnesses to determine authenticity.
when different constructions of a provision
are otherwise equally proper, that is to be e. HOW TO PROVE GENUINENESS OF A
taken which is the most favorable to the HANDWRITING
party in whose favor the provision was
made. Q: How is the genuineness of a person’s
9. When an instrument is equally susceptible handwriting proved?
of two interpretations, one in favor of
natural right and the other against it, the A:
former is to be adopted. 1. It may be proved by any witness who actually
10. An instrument may be construed according saw the person writing the instrument;
to usage, in order to determine its true 2. By any person who is familiar or has acquired
character (Secs. 10-19). knowledge of the handwriting of such person,
his opinion as to the handwriting being an
c. WHEN A PRIVATE WRITING REQUIRES exception to the opinion rule under Secs. 48
AUTHENTICATION; PROOF OF A PRIVATE WRITING & 50 of Rule 130;
3. By a comparison of the questioned
Q: Is the testimony of a handwriting expert handwriting from the admitted genuine
indispensable to the examination or the specimens thereof; or
comparison of handwritings in cases of forgery? 4. By expert witness (Secs. 20 & 22, Rule 132;
Sec. 49, Rule 130).
A: No. Handwriting experts are usually helpful in
the examination of forged documents because of f. PUBLIC DOCUMENTS AS EVIDENCE; PROOF OF
the technical procedure involved in analyzing them, OFFICIAL RECORD
but resort to these experts is not mandatory or
indispensable. Q: How are public records proved?
A finding of forgery does not depend entirely on the A: Written official acts, or records of the official acts
testimonies of handwriting experts, because the of the sovereign authority, official bodies and
judge must conduct an examination of the tribunals, and public officers, e.g. a written foreign
questioned signature in order to arrive at a law, may be evidenced by:
reasonable conclusion as to its authenticity. The 1. If it is within the Philippines
opinions of handwriting experts are not binding a. an official publication thereof; or
upon courts, especially when the question involved b. by a copy attested by the officer having
is mere handwriting similarity or dissimilarity, which the legal custody of the record, or by his
can be determined by a visual comparison of deputy.
2. If it is kept in a foreign country

EVIDENCE
a. an official publication thereof; or license to carry any firearm. The certifying officer,
b. by a copy attested by the officer having however, was not presented as a witness. Is the
the legal custody of the record, or by his certification of the PNP Firearm and Explosives
deputy and accompanied with a Office without the certifying officer testifying on it
certificate that such officer has the admissible in evidence against Lino?
custody. The certificate may be made by
a secretary of the embassy or legation, A: Yes. Section 28, Rule 130 of the Rules of Court
consul general, consul, vice consul, or provides that “a written statement signed by an
consular agent or by any officer in the officer having the custody of an official record or by
foreign service of the Philippines his deputy that after diligent search, no record or
stationed in the foreign country in entry of a specified tenor is found to exist in the
which the record is kept, and records of his office, accompanied by a certificate
authenticated by the seal of his office as above provided, is admissible as evidence that
(Sec. 24, Rule 132). the records of his office contain no such record or
entry.”
Q: Is a special power of attorney executed and The records of the PNP Firearm and Explosives
acknowledged before a notary public in a foreign Office are a public record. Hence, notwithstanding
country authorizing a person to file a suit against that the certifying officer was not presented as a
certain persons in the Philippines admissible in witness for the prosecution, the certification he
evidence? made is admissible in evidence against Lino. (2003
Bar Question)
A: No, because a notary public in a foreign country
is not one of those who can issue the certificate g. ATTESTATION OF A COPY
mentioned in Sec. 24, Rule 132 of Rules of Court.
Non-compliance with the said rule will render the Q: What must the attestation of a copy state?
SPA inadmissible in evidence. Not being duly
established in evidence, the SPA cannot be used to A: Whenever a copy of a document or record is
file a suit in representation of another. The failure attested for the purpose of evidence, the
to have the SPA authenticated is not a mere attestation must state, in substance:
technicality but a question of jurisdiction. (Heirs of 1. That the copy is a correct copy of the original,
Medina v. Natividad, G.R. No. 177505, Nov. 27, or a specific part thereof, as the case may be;
2008) 2. It must be under the official seal of the
attesting officer, if there be any, or if he be the
Q: May a public record be removed from its office? clerk of a court having a seal, under the seal of
such court.
A:
GR: No. Any public record must not be removed h. PUBLIC RECORD OF A PUBLIC DOCUMENT
from the office in which it is kept.
. Q: How may a public record of a private document
XPN: Upon order of a court where the be proved?
inspection of the record is essential to the just
determination of a pending case (Sec. 26, Rule A: Any of the following:
132). 1. By the original record; or
2. By a copy thereof, attested by the legal
Q: What is the probative value of documents custodian of the record, with an
consisting of entries in public records? appropriate certificate that such officer has
the custody (Sec. 27, Rule 132).
A: They are prima facie evidence of the facts stated
therein if entered by a public officer in the i. PROOF OF LACK OF RECORD
performance of a duty. All other public documents
are evidence, even against a third person, of the Q: How may the absence of a record be proven?
fact which gave rise to their execution and of the
date of the latter (Sec. 23, Rule 132). A: Proof of lack of record of a document consists of
written statement signed by an officer having
Q: Lino was charged with illegal possession of custody of an official record or by his deputy. The
firearm. During trial, the prosecution presented in written statement must contain the following
evidence a certification of the PNP Firearms and matters:
Explosives Office attesting that the accused had no 1. There has been a diligent search of the record;
327
2. That despite the diligent search, no record of cards, Overseas Workers Welfare Administration
entry of a specified tenor is found to exist in (OWWA) IDs, OFW IDs, seaman’s books, alien
the records of his office. certificate of registrations/immigrant certificate of
registrations, government office IDs, certifications
Note: The written statement must be accompanied by from the National Council for the Welfare of Disabled
a certificate that such officer has the custody of official Persons (NCWDP), and DSWD certifications.
records (Sec. 28, Rule 132).
Notaries public are prohibited from notarizing
j. HOW A JUDICIAL RECORD IS IMPEACHED documents or instruments of signatories who are not
personally known to them or who otherwise fail to
present competent evidence of their respective
Q: How may a judicial record be impeached?
identities (A.M. No. 02-8-13-SC, Re: 2004 Rules on
Notarial Practice, Feb. 19, 2008).
A: It may be impeached by evidence of:
1. Want of jurisdiction in the court or judicial
l. HOW TO EXPLAIN ALTERATIONS IN A
officer;
DOCUMENT
2. Collusion between the parties; or
3. Fraud in the party offering the record, in
Q: How should documents with alterations be
respect to the proceedings (Sec. 29).
presented as evidence for it to be admissible?
k. PROOF OF NOTARIAL DOCUMENTS
A: A party producing a document as genuine which
has been altered and appears to have been altered
Q: What is the evidentiary weight given to a
after its execution must account for the alteration.
notarial document?
He may show that the alteration:
1. was made by another, without his
A: Notarial documents celebrated with all the legal
concurrence;
requisites under a notarial certificate is evidence of
2. was made with the consent of the parties
a high character, and to overcome its recitals, it is
affected by it;
incumbent upon the party challenging it to prove
3. was otherwise properly or innocently made; or
his claim with clear, convincing and more than mere
4. that the alteration did not change the meaning
preponderant evidence.
or language of the instrument.
Note: Failure to do any of the above will make the
A notarized document carries the evidentiary document inadmissible in evidence (Sec. 31).
weight conferred upon it with respect to its due
execution, and it has in its favor the presumption of m. DOCUMENTARY EVIDENCE IN AN UNOFFICIAL
regularity which may only be rebutted by evidence LANGUAGE
so strong and convincing as to exclude all
controversy as to the falsity of the certificate. Q: May a document be admitted into evidence if it
Absent such, the presumption must be upheld. The is written in an unofficial language?
burden of proof to overcome the presumption of
due execution of a notarial document lies on the A: Documents written in an unofficial language shall
one contesting the same (Pan Pacific Industrial not be admitted as evidence unless accompanied
Sales Co. v. CA, G.R. No.125283, Aug. 9, 2005). with a translation into English or Filipino (Sec. 32).
Q: How are notarial documents proved? E. TESTIMONIAL EVIDENCE
A: The document may be presented in evidence 1. QUALIFICATIONS OF A WITNESS

without further proof, the certificate of
acknowledgment being prima facie evidence of the Q: Who are qualified to be witnesses?
execution of the instrument or document involved
(Sec. 30). A: All persons who:
1. can perceive and perceiving;
Note: The identification documents which may be 2. can make known their perception to
presented as “competent evidence of identity” by
others (Sec. 20, Rule 130);
signatories to documents or instruments to be
3. must take either an oath or an affirmation
notarized include, but are not limited to, passports,
driver’s licenses, Professional Regulations Commission
(Sec. 1, Rule 132; Riano, Evidence: A
identification cards, NBI clearances, police clearances, Restatement for the Bar, p. 245, 2009
postal IDs, voter’s IDs, Barangay certifications, GSIS e- ed.); and
cards, SSS cards, Philhealth cards, senior citizen’s

EVIDENCE
4. must not possess the disqualifications capacity to

imposed by law or the rules (Riano, communicate his
Evidence: A Restatement for the Bar, p. perception to others.
246, 2009 ed.) (Riano, 2009, p.250)
NOTE: The ability to make known the perception of the Q: What is the rule on competency of witness?
witness to the court involves two factors: (a) the ability
to remember what has been perceived; and (b) the A: GR: A person who takes the witness stand is
ability to communicate the remembered perception. presumed to possess the qualifications of a
Consider a witness who has taken the oath and who witness. (Presumption of competency)
has personal knowledge of the event which he is going XPN: There is prima facie evidence of
to testify (Riano, Evidence: A Restatement for the Bar, incompetency in the following:
p. 248, 2009 ed). 1. The fact that a person has been recently
found of unsound mind by a court of
Q: What are the qualifications of a witness? competent jurisdiction; or
2. That one is an inmate of an asylum for the
A: A prospective witness must show that he has the insane.
following abilities:
1. To Observe – the testimonial quality of Q: What is the void dire examination?
perception;
2. To Remember – the testimonial quality of A: A preliminary examination conducted by the trial
memory; judge where the witness is duly sworn to answer as
3. To Relate – the testimonial quality of to his competency (Competency Examination).
narration; and
4. To Recognize a duty to tell the truth – the 3. DISQUALIFICATIONS OF WITNESSES
testimonial quality of sincerity.
Q: Who are disqualified to be witnesses under the
Q: What cannot be considered as grounds for rules?
disqualification?
A: Those who are:
A: GR: 1. Disqualified by reason of mental incapacity or
1. Religious or political belief; immaturity;
2. Interest in the outcome of the case; or 2. Disqualified by reason of marriage;
3. Conviction of a crime (Sec. 20). 3. Disqualified by reason of death or insanity of
XPN: Unless otherwise provided by law like the adverse party; and
following: 4. Disqualified on the ground of privileged
1. Those convicted of falsification of communication:
document, perjury or false testimony is a. Marital privilege;
prohibited from being witnesses to a will b. Attorney-client privilege;
(Art. 821, NCC). c. Doctor-patient privilege;
2. Those convicted of an offense involving d. Minister-penitent privilege; or
moral turpitude cannot be discharged to e. Public officer as regards communications
become a State witness (Sec. 17, Rule made in official confidence.
119; Sec. 10, R.A. 6981).
3. Those who fall under the disqualification Note: The qualifications and disqualifications of
provided under Secs. 21-24, Rule 130. witnesses are determined as of the time they are
produced for examination in court or at the taking of
2. COMPETENCY VS CREDIBILITY OF A WITNESS the depositions.
Q: Distinguish competency of a witness from a. DISQUALIFIED BY REASON OF MENTAL

credibility of a witness. INCAPACITY OR IMMATURITY
A: Q: What are the requisites for a witness to be

Competency of a disqualified under this rule?
Credibility of a Witness
Witness
Has reference to the Refers to the believability A:
basic qualifications of a of the witness and has 1. The proposed witness must be incapable
witness as his capacity nothing to do with the law of making known his perception to
to perceive and his or the rules. (Ibid). others; and
329
2. The incapacity must exist as of the time of presentation of the testimony of Cyrus on the
his production for examination (Riano, ground that, being a deaf-mute, he was not a
Evidence: A Restatement for the Bar, p. competent witness. Is the contention of the
254, 2009 ed.). accused correct?
Q: Who are disqualified by reason of mental A: No. A deaf-mute is not incompetent as a witness.
incapacity or immaturity? Deaf-mutes are competent witnesses where they
can:
A: 1. understand and appreciate the sanctity of
1. Mental incapacity – those whose mental an oath;
condition, at the time of their production 2. comprehend facts they are going to
for examination, is such that they are testify on; and
incapable of intelligently making known 3. communicate their ideas through a
their perception to others; he can still be qualified interpreter (People v. Tuangco,
a witness during his lucid interval. The G.R. No. 130331, Nov. 22, 2001).
disqualification is only absolute if the
insane person is publicly known to be b. DISQUALIFICATION BY REASON OF
insane and does not have lucid intervals. MARRIAGE/SPOUSAL IMMUNITY
2. Mental immaturity – children whose Q: What is purpose of this disqualification?

mental maturity is such as to render them
incapable of perceiving the facts A: The rule forbidding one spouse to testify for or
respecting which they are examined and against the other is based on principles which are
of relating them truthfully. (Sec. 21) deemed important to preserve the marriage
relation as one of full confidence and affection, and
Q: When must the incompetence of the witness by that this is regarded as more important to the
reason of mental incapacity or immaturity exist? public welfare than that the exigencies of the
lawsuits should authorize domestic peace to be
A: disregarded for the sake of ferreting out facts
Mental Incapacity Mental Immaturity within the knowledge of strangers.
The incompetence of the
witness must exist not at Q: What are the requisites in order for the spousal
the time of his perception The incompetence of immunity to apply?
of the facts but at the time the witness must occur
he is produced for at the time the witness A:
examination, and consists perceives the event 1. That the spouse for or against whom the
in his inability to including his testimony is offered is a party to the case;
intelligently make known incapability to relate his 2. That the spouses are validly married;
what he has perceived. perceptions truthfully. 3. The testimony is one that is offered
(Riano, Evidence: A (Ibid.) during the existence of the marriage
Restatement for the Bar, p.
(Riano, Evidence: A Restatement for the
255, 2009 ed.)
Bar, p. 266, 2009 ed.); and
4. The case is not one of the exceptions
Q: Does mental unsoundness of the witness at the
provided in the rule. (Herrera, Vol. V, p.
time the fact to be testified occurred affect his
302, 1999 ed.)
competency?
Q: What kind of testimony is covered by the
A: No, it only affects his credibility. Nevertheless, as
prohibition?
long as the witness can convey ideas by words or
signs and can give sufficiently intelligent answers to
A: The prohibition extends not only to testimony
questions propounded, she is a competent witness
adverse to the spouse but also to a testimony in
even if she is feeble-minded (People v. De Jesus,
favor of the spouse. (Sec. 22, Rule 130; Riano,
G.R. No. L-39087, Apr. 27, 1984) or is mental
Evidence: A Restatement for the Bar, p. 265, 2009
retardate (People v. Gerones, G.R. No. 91116, Jan.
ed.)
24, 1991) or is a schizophrenic (People v. Baid, G.R.
No. 129667, July 31, 2000).
Note: It does not apply in the case of estranged
spouses, where the marital and domestic relations are
Q: Cyrus, a deaf-mute, was presented as a witness so strained that there is no more harmony to be
in a criminal case. The accused objected to the

EVIDENCE
preserved nor peace and tranquility which may be Q: Who can claim spousal immunity?
disturbed (Alvarez vs Ramirez, October 14, 2005)
A: The spouse who can object is the spouse-party
Q: What are the exceptions to the spousal and not the spouse-witness.
immunity?
A: Q: Gizelle was estranged from her husband Mico
1. In a civil case by one against the other; or for more than a year. Gizelle was temporarily
2. In a criminal case for a crime committed living with her sister in Pasig City. For unknown
by one against the other or the latter’s reasons, the house of Ivy’s sister was burned,
direct descendants or ascendants (Sec. killing the latter. Gizelle survived.
22), or Gizelle saw her Mico in the vicinity during the
3. Where the testimony was made outside incident. Later, Mico was charged with arson.
the marriage. During the trial, the prosecutor called Gizelle to
the witness stand and offered her testimony to
Q: Can this be waived? prove that her husband committed arson. Can
Gizelle testify over the objection of her husband
A: This can be waived just like any other objection on the ground of marital privilege?
to the competency of other witnesses. It can be
waived through failure to interpose timely A: Yes. The marital disqualification rule is aimed at
objection of by calling the other spouse as a protecting the harmony and confidences of marital
witness. relations. Hence, where the marital and domestic
relations are so strained that there is no more
Q: If an accused marries the prosecution witness harmony to be preserved nor peace and tranquillity
for the sole purpose of sealing the lips of the which may be disturbed, the marital disqualification
witness, will the prohibition apply? no longer applies.
A: Yes. As long as a valid marriage exists at the time The act of Mico in setting fire to the house of his
of the trial, the witness-spouse cannot be sister-in-law, knowing that his wife was there, is an
compelled to testify even where the crime charged act totally alien to the harmony and confidences of
is against the witness’ person, and even though the marital relation which the disqualification primarily
marriage was entered into for the express purpose seeks to protect. The criminal act complained of
of suppressing the testimony. had the effect of directly and vitally impairing the
conjugal relation. (Alvarez v. Ramirez, G.R. No.
Q: Distinguish spousal immunity from marital 143439, Oct. 14, 2005). (2006 Bar Question)
privilege.
c. DISQUALIFICATION BY REASON OF DEATH OR
A: INSANITY OF THE ADVERSE PARTY (DEAD MAN
Disqualification By STATUTE/SURVIVING PARTIES RULE)
Disqualification By Reason
Reason Of Marital
Of Marriage (Sec. 22)
Privilege (Sec. 24) Q: What are the elements for the application of
Can be claimed the rule?
Can be invoked only if one
whether or not the
of the spouses is a party to
other spouse is a party A:
the action
to the action
1. The defendant in the case is the executor
Applies only if the marriage Can be claimed even
or the administrator or a representative
is existing at the time the after the marriage is
testimony is offered dissolved of the deceased or the person of unsound
Applies only to mind;
Constitutes an absolute 2. The case is against the executor or the
confidential
prohibition for or against administrator or a representative of the
communications
the spouse of the witness deceased or the person of unsound mind;
between the spouses
The married person is 3. The subject matter of the action is a claim
The married witness would
on the stand but the or demand against the estate of a
not be allowed to take the
objection of privilege is deceased person or a person of unsound
stand at all because of the
raised when mind; and
disqualification. Even if the
confidential marital 4. The testimony is as to any matter of fact
testimony is, for or against
communication is occurring before the death of such
the objecting spouse.
inquired into deceased person or before such person
331
became of unsound mind. (Sec. 23, Rule 8. Negative testimony, that is, testimony
130) that a fact did not occur during the
lifetime of the deceased;
Q: What is covered by the disqualification by 9. Testimony on the present possession by
reason of death or insanity of the adverse party? the witness of a written document signed
by the deceased because such fact exists
A: It constitutes a partial disqualification of a even after the death of decedent;
witness wherein he is prohibited from testifying as 10. When the defendant/s, though heirs of
to any matter of fact occurring before the death or the deceased, are sued in their personal
insanity of a party to the transaction. and individual capacities; and
11. In actions against a partnership.
Note: The witness cannot testify on matters which
occurred in the presence and within the hearing of the Q: Can this be waived?
decedent to which he might testify on his personal
knowledge if he were alive. Facts favorable to the A: The disqualification under this rule is waived if
deceased or insane person or their representatives are the defendant does not timely object to the
not prohibited. admission of such evidence or testifies on the
prohibited matters or cross-examines thereon.
Q: What is the reason underlying the adoption of
the dead man statute? Q: Distinguish dead man’s statute from marital
disqualification rule.
A: To guard against the temptation to give false
testimony in regard of the transaction in question A:
on the part of the surviving party and to discourage Marital Disqualification
perjury. Dead Man’s Statute
Rule
Only a partial
Q: What are the cases not covered by the dead disqualification as the
man statute? witness is not completely
A complete and absolute
disqualified but is only
disqualification
A: prohibited from testifying
1. Testimony of mere witnesses who are on the matters therein
neither party plaintiffs, nor their specified
assignors, nor persons in whose behalf a GR: Applies to a civil or
case is prosecuted, nor to a nominal criminal case.
party, nor to officers and stockholders of XPN: In a civil case by one
Applies only to a civil
a plaintiff corporation; spouse against the other
case or special
2. If the person or persons mentioned under or in a criminal case for a
proceeding over the
the rule file a counterclaim ; crime committed by one
estate of a deceased or
spouse against the other
3. Where the deceased contracted with the insane person
or the latter’s direct
plaintiff through an agent and said agent
descendants or
is alive and can testify, but the testimony
ascendants
of the plaintiff should be limited to acts
performed by the agent;
d. DISQUALIFICATION BY REASON OF PRIVILEGED
4. Land registration cases instituted by the
COMMUNICATION
deceased’s representative, where the
oppositor is considered as defendant or in
Q: Who may assert the privilege?
cadastral cases where there are no
oppositors;
A: The holder of the privilege, authorized persons
5. When there is waiver;
and persons to whom privileged communication
6. If the plaintiff is the executor or
were made can assert the privilege.
administrator or other representative of a
deceased person, or the person of
Note: The disqualification applies to both civil and
unsound mind; criminal cases except as to the doctor-patient privilege,
7. When the testimony refers to fraudulent which is applicable only in civil cases. Unless waived,
transactions committed by the persons the disqualification under Sec. 24 remains even after
mentioned in the rule, provided such the various relationships therein have ceased to exist.
fraud is first established by other The privilege cannot be invoked where confidential
evidence; information are made in contemplation of death or in
furtherance or perpetuation of fraud. Unless waived,

EVIDENCE
the disqualification under Sec. 24 remains even after A:

the various relationships therein have ceased to exist. 1. Attorney-client relation;
2. The privilege is invoked with respect to a
(1) HUSBAND AND WIFE confidential communication between
them in the course of professional
Q: What are the requisites for the application of employment; and
this privilege? 3. The client has not given his consent to the
attorney’s testimony; or if the attorney’s
A: secretary, stenographer or clerk is sought
1. There was a valid marriage; to be examined, that both the client and
2. The privilege is invoked with respect to a the attorney have not given their consent.
confidential communication between the (Regalado, Vol. II, p. 749, 2008 ed.)
spouses during the said marriage; and
3. The spouse against whom such evidence Q: What is the purpose of this privilege?
is being offered has not given his consent
to such testimony. A: To encourage full disclosure by client to his
attorney of all pertinent matters as to further the
Q: When is the privilege inapplicable? administration of justice.
A: Q: When is the privilege inapplicable?

1. In a civil case by one against the other; or
2. In a criminal case for a crime committed A: It does not apply to communications which are:
by one against the other or the latter’s 1. intended to be made public;
direct ascendants or descendants. 2. intended to be communicated to others;
3. intended for an unlawful purpose;
Q: Are third persons who overhear the 4. received from third persons not acting in
communication between the spouses bound by behalf or as agents of the client; or
the privilege? 5. made in the presence of third parties who
are strangers to the attorney-client
A: relationship. (Regalado, Vol. II, p. 750,
GR: Third persons who, without the knowledge 2008 ed.)
of the spouses, overhear the communication
are not disqualified to testify. Q: What is the test in applying the attorney-client
XPN: When there is collusion and voluntary privilege?
disclosure to a third party, that third party
becomes an agent and cannot testify. A: The test is whether the communication made is
with the view of obtaining from the lawyer his
Q: Distinguish marital privilege from professional assistance or advice regardless of the
disqualification by reason of marriage. existence or absence of a pending litigation.
A: Q: May a lawyer refuse to divulge the identity of

Disqualification by reason his clients?
Marital privilege
of marriage
Can be invoked only if one Can be claimed whether or A:
of the spouses is a party to not the spouse is a party to GR: Lawyers may not invoke the privilege and
the action the action refuse to divulge the name or identity of their
Can be claimed even after client.
Applies only if the marriage
the marriage has been XPNs:
is existing at the time the
dissolved 3. Where a strong possibility exists that
testimony is offered
revealing client’s name would implicate
Constitutes a total Applies only to confidential
the client in the very activity for which he
prohibition against the communications between
spouse of the witness the spouses sought the lawyer’s advice;
4. Where disclosure would open the client
(2) ATTORNEY AND CLIENT to civil liability; or
5. Where the prosecutors have no case
Q: What are the requisites for the application of against the client unless by revealing the
the privilege? client’s name, the said name would
furnish the only link that would form the
333
chain of testimony necessary to convict A: The privilege is intended to facilitate and make
an individual for a crime. safe, full and confidential disclosure by patient to
doctor of all facts, circumstances, and symptoms,
Q: A tugboat owned by Speedy Port Service, Inc. untrammeled by apprehension of their subsequent
(SPS) sank in Manila Bay while helping to tow and enforced disclosure and publication on the
another vessel, drowning 5 of the crew in the witness stand, to the end that the physician may
resulting shipwreck. At the maritime board form a correct opinion, and be enabled safely and
inquiry, the 4 survivors testified. SPS engaged Atty. efficaciously to treat his patient.
Ely to defend against potential claims and to sue
the company owning the other vessel for damages Q: When is the privilege inapplicable?
to the tug. Ely obtained signed statements from
the survivors. He also interviewed other persons, A: It does not apply to communications which are:
in some instance making memoranda. The heirs of 1. Not given in confidence;
the 5 victims filed an action for damages against 2. Irrelevant to the professional
SPS. employment;
The counsel of the heirs of the 5 victims sent 3. Made for an unlawful purpose;
written interrogatories to Ely, asking whether 4. Intended to be made public; or
statements of the witnesses may be obtained. Ely 5. Waived either by contract or law.
refused to comply, arguing that the documents (Regalado, Vol. II, p. 751, 2008 ed.)
and information asked are privileged
communication. Is the contention tenable? Q: What are the pieces of information which
Explain. cannot be disclosed?
A:
A: Yes, the contention of counsel for SPS is tenable 1. Any advice or treat given to the client;
considering that he was acting in his professional 2. Any information acquired in attending
capacity in bringing about the statement he such patient provided that the advice,
obtained from the witnesses and the memoranda treatment or information was made or
he made. The notes, memoranda, and writings acquired in a professional capacity and
made by the counsel in pursuance of his was necessary to enable him to act in that
professional duty, form part of his private and capacity; and
confidential files in the cases handled by him; hence 3. That the information sought to be
privileged (Air Philippines Corp v. Penswell, Inc., G.R. disclosed would tend to blacken the
No. 172835, Dec. 13, 2007). reputation of the patient. (Sec. 24c, Rule
130)
(3) PHYSICIAN AND PATIENT
Q: Can such privilege be waived?
Q: What are the requisites for the application of
the privilege? A: Yes. The waiver may be made expressly or
impliedly. The waiver may be by a contract as in
A: medical or life insurance. When there is disclosure
1. The action involves a civil case; by the patient of the information, there is
2. The relation of physician and patient necessarily, a waiver. When the patient answers
existed between the person claiming the questions on cross on matters which are
privilege or his legal representative and supposedly privileged, the waiver also exists. There
the physician; could also be waiver by operation of law (sec4, Rule
3. The advice or treatment given by him or 28 of the Rules of Court) (Riano, p.292).
any information was acquired by the
physician while professionally attending Q: Is it necessary that the professional relationship
to the patient; exists between the doctor and patient when the
4. The information was necessary for the communication was made?
performance of his professional duty; and
5. The disclosure of the information would A: Yes. It is essential that while the doctor was
tend to blacken the reputation of the attending to the patient for curative, preventive or
patient. palliative treatment. It is not however necessary
that the relationship was created through the
Q: What is the purpose of this privilege? voluntary act of the patient. The treatment may
have been given at the behest of another. (Ibid.)

EVIDENCE
Q: Aimee sought to offer as evidence the privilege is claimed is not one duly authorized to
testimony of Dr. Naval to prove that Bob is not the practice medicine, surgery obstetrics.
illegitimate son of Yuring as the latter was sterile. Xavier is simply Ysa's husband who wishes to testify
Bob objected to the admissibility of the said on a document executed by medical practitioners.
testimony arguing that the same is covered by the This does not fall within the claimed prohibition.
physician-patient privilege because the testimony Neither can his testimony be considered a
would blacken the reputation of Yuring. It was circumvention of the prohibition because his
alleged that Yuring became sterile because he testimony cannot have the force and effect of the
contracted gonorrhea. Aimee argues that Yuring is testimony of the physician who examined the
long dead and, as such, the privilege may not be patient and executed the report (Krohn v. CA, G.R.
invoked. No. 108854, June 14, 1994).
1. Is the testimony of Dr. Naval covered by
the physician-patient privilege? (4) PRIEST AND PENITENT
2. Does the fact that Yuring is long dead bar
the application of the physician-patient Q: What are the requisites for its application?
privilege?
A:
A: 1. The confession must have been made to
1. Yes. Yuring's sterility arose when he the priest in his professional character
contracted gonorrhea, a fact which most according to the discipline of the church
assuredly blackens his reputation. In fact, to which the priest or minister belongs
given that society holds virility at a [Sec. 24(d)]; and
premium, sterility alone, without the 2. Communications made must be
attendant embarrassment of contracting confidential and must be penitential in
a sexually-transmitted disease, would be character e.g., under the seal of the
sufficient to blacken the reputation of any confessional (Regalado, Vol. II, p. 752,
patient (Gonzales v. CA, G.R. No. 117740, 2008 ed.)
Oct. 30, 1998).
Q: What is the purpose of this privilege?
2. No. The privilege of secrecy is not
abolished or terminated because of A: To allow and encourage individuals to fulfill their
death. The purpose of the law would be religious, emotional or other needs by protecting
thwarted and the policy intended to be confidential disclosures to religious practitioners.
promoted thereby would be defeated, if
death removed the seal of secrecy, from Q: When is the privilege inapplicable?
the communications and disclosures
which a patient should make to his A: When the communication is not penitential in
physician. After one has gone to his grave, character as when what is divulged is the plan to
the living are not permitted to impair his commit a crime.
name and disgrace his memory by
dragging to light communications and Q: What is the rationale behind the privilege
disclosures made under the seal of the granted to communications between
statute (Gonzales v. CA, G.R. No. 117740, minister/priest and the penitent?
Oct. 30, 1998).
A: It is to allow and encourage individuals to fulfill
Q: Xavier filed a complaint for declaration of their religious, emotional or other needs by
nullity of his marriage with Ysa on the ground of protecting confidential disclosures to religious
psychological incapacity. Xavier sought to testify practitioners (Peralta, Jr., p. 220, 2005 ed.).
on a confidential psychiatric evaluation report on
his wife. Ysa objected to Xavier’s testimony on the (5) PUBLIC OFFICERS
ground that it violates the physician-patient
privilege. Is the objection of Ysa correct? Q: What are the requisites for its application?
A: No. One of the requisites before the physician- A:

patient privilege may be invoked is that the person 1. The communication must have been
against whom the privilege is claimed is one duly made to a public officer;
authorized to practice medicine, surgery or 2. The communication was given to the
obstetrics. Here, the person against whom the public officer in official confidence; and
335
3. The public interest would suffer by the e. PARENTAL AND FILIAL PRIVILEGE RULE
disclosure of the communication.
(Regalado, Vol. II, p. 752, 2008 ed.) Q: May a descendant be compelled to testify
against his parents in a criminal case?
Q: When is the privilege inapplicable?
A: No, because no person may be compelled to
A: If what is asked: testify against his parents, other direct ascendants,
1. is useful evidence to vindicate the children or other direct descendants (Sec. 25).
innocence of an accused; A descendant may not be compelled to testify
2. lessen the risk of false testimony; against his parents notwithstanding Article 215 of
3. is essential to the proper disposition of the Family Code which allows the compulsion of a
the litigation; or descendant to testify against his parents when such
4. the benefit to be gained by a correct testimony is indispensable in a crime against the
disposition of the litigation was greater descendant or by one against the other. Any
than any injury which could inure to the conflict between the two provisions should be
relation by a disclosure of the resolved in favor of the Rules of Court provision
information. (Francisco, p. 171, 1992 ed.) because although found in a substantive law, the
aforesaid Family Code provision is essentially
Q: Is the privilege applicable to public officer in procedural in nature.
general?
Alternative Answer:
A: No. The privilege only applies to communications Yes. Article 215 of the Family Code provides that
to such officers who have a responsibility or duty to “No descendant shall be compelled, in a criminal
investigate or to prevent public wrongs, and not to case, to testify against his parents and
officials in general (Francisco, p. 139, 1992 ed.). grandparents, except when such testimony is
indispensable in a crime against the descendant or
Note: The court, not the witness, will determine the by one against the other”. The parental and filial
necessity of regarding the communication as privileged privilege under the Rules of Court notwithstanding,
(Francisco, p. 143, 1992 ed.). it is submitted that the Family Code is superior to
the former since a procedural rule of evidence
Q: What is the concept of executive privilege? cannot impair a substantive law. Hence, a
descendant may be compelled to testify against his
A: Certain types of information like military, parents if such testimony is indispensable in a crime
diplomatic and other national security matters may against the descendant or by one against the other.
be withheld from the public.
Q: Which should be applied between Rule 130,
Q: Secretary of Fisheries Nenito Abesamis received Sec. 25 of the Rules of Court and Art. 215 of the
an invitation for questioning in a hearing from the Family Code in case of conflict?
Senate of the Philippines regarding Fish Feeds
Scam. During the hearing, Abesamis didn’t answer A: It was suggested that the Rules of Court should
the questions propounded to him by Senator apply because it took effect in 1989 as compared
Renato Pamintuan claiming that his position to the Family Code which took effect in 1988. It
entitles him to invoke the executive privilege. Is may be argued that the former is procedural and
his contention correct? the latter is substantive; however, it was further
suggested that although the Family Code provision
A: No. As held in the case of Senate of the is substantive, it is procedural in character. So, of
Philippines vs. Ermita, (G.R. No. 169777, April 25, these two provisions, the Rules of Court,
2006). The Court upheld the doctrine of executive promulgated by the Supreme Court, should
privilege; it found the executive order partly prevail.
constitutionally defective, specifically Secs. 2(b) and
3 which required government officials below the OTHER PRIVILEGED MATTERS
heads of executive departments to secure consent
from the President before appearing in Q: What other matters are considered privileged?
congressional hearings and investigations. The
Court noted that E.O. 464 covers persons which are A:
a misuse of the doctrine because the privilege is to 1. The guardian ad litem shall not testify in
be properly invoked in relation to specific any proceeding concerning any
categories of information and not categories of information, statement, or opinion
persons. (Riano, 2009 ed., p. 298)

EVIDENCE
received from the child in the course of admitted in his testimony, e.g. under Sec. 8,
serving as a guardian ad litem, unless the R.A. 1379, the law providing for the
court finds it necessary to promote the forfeiture of unlawfully acquired property;
best interests of the child [Sec. 5 (e), Rule and under P.D. 749, in prosecutions for
on Examination of a Child Witness]; bribery and graft.
2. Editors, publisher, or duly accredited 5. Not to give an answer, which will tend to
reporter of any newspaper, magazine or degrade his reputation, unless it be to the
periodical of general circulation cannot be very fact at issue or to a fact from which
compelled to reveal the source of any the fact in issue would be presumed. But
news report or any information given to a witness must answer to the fact of his
him in confidence, unless a court or a previous final conviction for an offense
House or a committee of Congress finds (Sec. 3).
that such revelation is demanded for
State security (R.A. 1477); Q: What are the classifications of immunity
3. Voters may not be compelled to disclose statutes?
for whom they voted;
4. Trade secrets cannot be disclosed A:
although this is not absolute as the court Use Immunity Transactional Immunity
may compel disclosure where it is Prohibits the use of the Grants immunity to the
indispensable for doing justice (Francisco, witness' compelled witness from
p. 335, 1992 ed.); testimony and its fruits in prosecution for an
5. Bank deposits are absolutely confidential any manner in connection offense to which his
with the criminal compelled testimony
in nature except upon written permission
prosecution of the witness relates
of the depositor, or in cases of
impeachment, or upon lawful order of a
Q: May a witness refuse to answer questions
competent court (R.A. 1405; Francisco, p.
material to the inquiry?
335, 1992 ed.);
6. Conciliators and similar officials shall not
A:
testify in any court or body regarding any
GR: A witness cannot refuse to answer
matter taken up at the conciliation
questions. The witness has the obligation to
proceedings conducted by them (Art. 233,
answer questions, although his answer may
Labor Code); and
tend to establish a claim against him (Sec. 3).
7. Informers, for the protection of their
identity, cannot be compelled to testify
XPN: A witness may validly refuse to answer
by the prosecutor when their testimony
under the:
would merely be cumulative and
1. Right against self-incrimination – if his
corroborative (Herrera, Vol. V, p. 353,
answer will tend to subject him to
1999 ed.).
punishment for an offense; or
2. Right against self-degradation – if his
4. EXAMINATION OF A WITNESSES
answer will have a direct tendency to
degrade his character.
a. RIGHTS AND OBLIGATIONS OF A WITNESS
XPN to the XPN: A witness may not invoke the
Q: What are the rights of a witness?
right against self-incrimination nor the right
A:
against self-degradation if:
1. To be protected from irrelevant,
1. Such question is directed to the very fact
improper, or insulting questions, and
at issue or to a fact from which the fact at
from harsh or insulting demeanor;
issue would be presumed; or
2. Not to be detained longer than the
2. If it refers to his previous final conviction
interests of justice require;
for an offense. (Regalado, Vol. II, pp. 841-
3. Not to be examined except only as to
842, 2008 ed.)
matters pertinent to the issue;
4. Not to give an answer which will tend to
Note: Right against self-incrimination pertains only to
subject him to a penalty for an offense
natural persons and with respect to testimonial
unless otherwise provided by law (right compulsion only. This right may be invoked in all kinds
against self-incrimination) of proceedings where testimony is to be taken,
Note: This refers to immunity statutes including investigation by legislative bodies.
wherein the witness is granted immunity
from criminal prosecution for offenses
337
The constitutional assurance of the right against self- committees their power of inquiry. (In Re: Sabio,
incrimination is a prohibition against the use of G.R. No. 174340, Oct. 17, 2006).
physical or moral compulsion to extort
communications from the accused. It is simply a Q: Is the right against self-incrimination available
prohibition against legal process to extract from the to a witness who has been admitted to the
accused’s own lips, against his will, admission of his Witness Protection Program?
guilt (Ong v. Sandiganbayan & Office of the
Ombudsman, G.R. No. 126858, Sept. 16, 2005).
A: Any witness admitted into the program of the
Witness Protection, Security and Benefit Act cannot
Q: Distinguish the right against self-incrimination
refuse to testify or give evidence or produce books,
of the accused from that of an ordinary witness.
documents, records or writings necessary for the
prosecution of the offense or offenses for which he
A:
has been admitted into the Program on the ground
Accused Ordinary Witness
of the constitutional right against self-incrimination
Cannot be compelled to
but he shall enjoy immunity from criminal
testify or produce evidence
May be compelled to prosecution and cannot be subjected to any penalty
in the criminal case in which
testify by subpoena, or forfeiture for any transaction, matter or thing
he is the accused or one of
having only the right concerning his compelled testimony or books,
the accused, he cannot be
to refuse to answer a documents, records and writings produced (Sec. 14,
compelled to do so even by
particular R.A. 6981).
subpoena or other process
incriminating question
or order of the court. He
at the time it is put to
cannot be required either Q: Who may be admitted to the Witness
him.
for the prosecution, for co- Protection, Security and Benefit Program?
accused or even for himself.
A: Any person who has witnessed or has knowledge
Q: May a witness refuse to take the witness stand? or information on the commission of a crime and
has testified or is testifying or about to testify
A: before any judicial or quasi-judicial body, or before
GR: A witness may not refuse to take the any investigating authority may be admitted
witness stand. provided that:
XPNs: 1. the offense in which his testimony will be
1. An accused in a criminal case; or used is a grave felony as defined under
2. In civil and administrative cases that the Revised Penal Code, or its equivalent
partake the nature of or analogous to a under special laws;
criminal proceeding. As long as the suit is 2. his testimony can be substantially
criminal in nature, the party thereto can corroborated in its material points;
decline to take the witness stand. It is not 3. he or any member of his family within the
the character of the suit involved but the second civil degree of consanguinity or
nature of the proceedings that controls affinity is subjected to threats to life or
(Rosete, et. al. v. Lim, et. al., G.R. No. bodily injury or there is a likelihood that
136051, June 8, 2006). he will be killed, forced, intimidated,
harassed or corrupted to prevent him
Q: Mr. Talisman, a government official, was invited from testifying, or to testify falsely, or
by the Senate to be one of the resource persons in evasively, because or on account of his
the public hearing in one of its committees. When testimony; and
Mr. Talisman declined the invitation, the Senate 4. he is not a law enforcement officer, even
directed its sergeant-at-arms to place him under if he would be testifying against the other
arrest for contempt. He was arrested and brought law enforcement officers. In such a case,
to the Senate where he was detained. He filed a only the immediate members of his family
petition for certiorari and prohibition alleging that may avail themselves of the protection
his right against self-incrimination was violated. Is provided for under the Act (Sec. 3, R.A.
his contention correct? 6981).
A: No. The right against self-incrimination may only Q: Who is a State witness?
be invoked when the incriminating question is
being asked, since he has no way of knowing in A: Any person who has participated in the
advance the nature or effect of the questions to be commission of a crime and desires to be a witness
asked. That this right may possibly be violated or for the State, can apply and shall be admitted into
abused is no ground for denying respondent senate

EVIDENCE
the Program if the following circumstances are A:

present:
1. the offense in which his testimony will be

used is a grave felony as defined under
the Revised Penal Code or its equivalent
under special laws;
2. there is absolute necessity for his
testimony;
3. there is no other direct evidence available
for the proper prosecution of the offense
committed;
4. his testimony can be substantially
corroborated on its material points;
5. he does not appear to be most guilty; and
6. he has not at any time been convicted of
any crime involving moral turpitude.
Note: An accused discharged from an information or

criminal complaint by the court in order that he may
be a State Witness pursuant to Section 9 and 10 of
Rule 119 of the Revised Rules of Court may upon his
petition be admitted to the Program under R.A. 6981 if
he complies with the other requirements of the said
law. R.A. 6981 does not prevent the discharge of an
accused, so that he can be used as a State Witness
under Rule 119 of the Rules of Court (Sec. 10, R.A.
6981).
Q: Can a State witness be liable for contempt or

criminal prosecution?
A: Yes, if he fails or refuses to testify or to continue

to testify without just cause when lawfully obliged
to do so, he shall be prosecuted for contempt. If he
testifies falsely or evasively, he shall be liable to
prosecution for perjury. If a State witness fails or Q: What are the purposes of each stage of the
refuses to testify, or testifies falsely or evasively, or examination?
violates any condition accompanying such immunity
without just cause, as determined in a hearing by A:
the proper court, his immunity shall be removed 1. Direct examination – To establish the case
and he shall be subject to contempt or criminal of the proponent of the witness. The
prosecution. Moreover, the enjoyment of all rights purpose is to elicit facts about the client’s
and benefits under R.A. 6981 shall be deemed cause of action or defense.
terminated. The witness may, however, purge
himself of the contumacious acts by testifying at 2. Cross examination – As a rule, the scope
any appropriate stage of the proceedings (Sec. 13, of this is not confined to the matters
R.A. 6981). stated by the witness in the direct
examination. (Riano, p. 318). The purpose
b. ORDER IN THE EXAMINATION OF A WITNESS of which is:
(1) DIRECT EXAMINATION a. To impeach the credibility of the
(2) CROSS EXAMINATION testimony;
(3) RE-DIRECT EXAMINATION b. To impeach the credibility of the
(4) RE-CROSS EXAMINATION witness;
c. To elicit admissions; and
Q: What is the order in the examination of an d. To clarify certain matters.
individual witness?
3. Redirect examination – The counsel may
elicit testimony to correct or repel any
339
wrong impression or inferences that may XPN: Where the prosecution witness was
have been created. It may also be an extensively cross-examined on the material points
opportunity to rehabilitate a witness and thereafter failed to appear and cannot be
whose credibility has been damaged produced despite a warrant of his arrest. (People vs
(Riano, p.319). Its purposes are: Gorospe, gr. 51513, May 15, 1984)
a. To afford opportunity to the witness
to explain or amplify his testimony Q: What is the effect of death or absence of a
during cross-examination; and witness after the direct examination by the
b. To explain any apparent proponent?
contradiction or inconsistency in his
statements. A:
1. If the witness was not cross-examined
4. Re-cross examination – It is limited to the because of causes attributable to the
new matters brought out on the redirect cross-examining party and the witness
examination of the witness and also on had always made himself available for
such other matters as may be allowed by cross-examination, the direct testimony
the court in its discretion. The purposes of the witness shall remain on record and
are: cannot be stricken off because the cross-
a. To overcome the proponent’s examiner is deemed to have waived his
attempt to rehabilitate the witness; right to cross-examine (Dela Paz v. IAC,
and G.R. No. 75860, Sept. 17, 1987).
b. To rebut damaging evidence brought 2. If the witness was partially cross-
out during cross-examination. examined but died before the completion
of his cross-examination, his testimony on
Q: What is the scope of a cross-examination? direct may be stricken out but only with
A: respect to the testimony not covered by
1. English rule – Where a witness is called to the cross-examination (People v. Señeris,
testify to a particular fact, he becomes a G.R. No. L-48883, Aug. 6, 1980).
witness for all purposes and may be fully 3. The absence of a witness is not sufficient
cross-examined upon all matters material to warrant the striking out of his
to the issue, the examination not being testimony for failure to appear for further
confined to the matters inquired about in cross-examination where the witness has
the direct examination. already been sufficiently cross-examined,
and the matter on which cross-
2. American rule – Cross-examination is examination is sought is not in
restricted to facts and circumstances controversy (Ibid.).
which are connected with the matters
that have been stated in the direct Q: Is the party who offered the testimony of a
examination of the witness. witness bound by such testimony?
Q: What rule is observed in our jurisdiction? A:

GR: Yes, he is bound by the testimony.
A:
GR: The English rule is observed in our XPN: When the witness is the:
jurisdiction. 1. adverse party;
XPN: The American rule is observed with 2. hostile witness;
respect to cross-examination of an accused or a 3. unwilling witness; or
hostile witness. 4. a witness required by law to be presented
(forced witness)
Q: What is the Doctrine of Incomplete Testimony?
Q: Who is a hostile witness?
A:
GR: When cross-examination cannot be done or A: A witness may be considered as unwilling or
completed due to causes attributable to the party hostile only if so declared by the court upon
who offered the witness, the incomplete testimony adequate showing of his adverse interest,
is rendered incompetent and should be stricken unjustified reluctance to testify or his having misled
from the record. the party into calling him to the witness stand (Sec.
12).

EVIDENCE
(5) RECALLING THE WITNESS he has previously stated. It is not allowed (Sec. 10)
unless waived or when asking hypothetical
Q: What is the rule on recalling of a witness? questions to an expert witness. It is not allowed in
any type of examination.
A:
GR: A witness cannot be recalled without leave d. METHODS OF IMPEACHMENT OF ADVERSE
of court as the recalling of a witness is a matter PARTY
of judicial discretion. (Sec. 9, Rule 132)
XPN: Q: What is impeachment of a witness?
1. The examination has not been concluded;
2. If the recall of the witness was expressly A: It is a technique employed usually as part of
reserved by a party with the approval of cross-examination to discredit a witness’ testimony
the court. In these two cases the recall of by attacking his credibility. (Riano, Evidence: A
a witness is a matter of right. (Regalado, Restatement for the Bar, p. 323, 2009 ed.)
Vol. II, p. 848, 2008 ed.)
Note: Something more than the bare assertion of the Q: What is meant by impeachment of the adverse
need to propound additional questions is essential party as a witness?
before the court's discretion may rightfully be
exercised to grant or deny recall. There must be a A: That the witness is the adverse party does not
satisfactory showing of some concrete, substantial necessarily mean that the calling party will not be
ground for the recall. bound by the former’s testimony. The fact remains
that it was at his instance that his adversary was
c. LEADING AND MISLEADING QUESTIONS put on the witness stand. He is not bound only in
the sense that he may contradict him by
Q: What is leading question? introducing other evidence to prove a state of facts
contrary to what the witness testifies. Unlike an
A: It is one which suggests to the witness the ordinary witness, the calling party may impeach an
answer which the examining party desires. It is not adverse witness in all respects as if he had been
allowed except: called by the adverse party, except by evidence of
1. On cross-examination; his bad character. Under a rule permitting the
2. On preliminary matters; impeachment of an adverse witness, although the
3. When there is difficulty in getting direct and calling party does not vouch for the witness’
intelligible answers from a witness who is veracity, he is nonetheless bound by his testimony
ignorant, or a child of tender years, or is of if it is not contradicted or remains unrebutted (Gaw
feeble mind or a deaf-mute; v. Chua, G.R. No. 160855, April 16, 2008)
4. To unwilling witness or hostile witness; or
5. Witness is an adverse party or an officer, Q: What are the methods to impeach the adverse
director, or managing agent of a public or party’s witness?
private corporation or of a partnership or
association which is an adverse party. (Sec. A:
10). BY EVIDENCE THAT
BY PRIOR
HIS GENERAL
Q: Why are leading questions allowed during BY INCONSISTEN
REPUTATION FOR
cross-examination? CONTRADICT T
TRUTH, HONESTY,
ORY STATEMENTS
OR INTEGRITY OF
A: The witness is not the cross-examining party’s EVIDENCE “LAYING THE
THE WITNESS IS
PREDICATE"
witness. He is expected to be adverse or hostile to BAD
the cross-examiner. He is not expected to Refers to the Since the weight of Refer to
cooperate. prior the witness’ statements,
Note: A question that merely suggests a subject testimony of testimony depends oral or
without suggesting an answer or a specific thing is not the same on his credibility, he documentary,
a leading question. E.g. “State whether anything witness or may be impeached made by the
transpired between you and the defendants on the other by impairing his witness
17th of May 2008.” evidence credibility by sought to be
presented by showing his not impeached on
Q: What is misleading question? him in the pleasing reputation occasions
same case, but only as regards other than
A: It is one which assumes as true a fact not yet but not the his reputation for the trial in
testified to by the witness, or contrary to that which testimony of truth, honesty or which he is
other witness integrity testifying
341
Q: May a witness be impeached by evidence of not merely to impeach him, the rule on laying the
particular wrongful acts? predicate does not apply.
A: Q: What are the elements of laying the predicate?

GR: A witness may not be impeached by
evidence of particular wrongful acts. A:
XPN: If it may be shown by the examination of 1. The alleged statements must be related
the witness, or the record of the judgment, that to the witness including the
he has been convicted of an offense (Sec. 11). circumstances of the times and places and
the persons present. If the statements are
Q: What are the other modes of impeachment? in writing they must beshown to him;
2. He must be asked whether he made such
A: statements and also to explain them if he
1. By showing improbability or admits making those statements (Riano,
unreasonableness of testimony; p. 327).
2. By showing bias, prejudice, and hostility;
3. By prior inconsistent acts or conduct; Q: When is the rule on laying the predicate
4. By showing social connections, inapplicable?
occupation and manner of living; or
5. By showing interest. (Francisco, pp. 480- A: It is inapplicable if the prior inconsistent
481, 1992 ed.) statement appears in a deposition of the adverse
party, and not a mere witness, that adverse party
Q: May a party impeach his own witness? who testifies may be impeached without laying the
predicate as such prior statements are in the nature
A: GR: A party may not impeach his own witness. of admissions of said adverse party. (Regalado, Vol.
XPN: The witness is an: II, p. 852, 2008 ed.)
1. unwilling or adverse witness so declared
by the court; Q: What is the purpose of laying the predicate?
2. adverse party; or
3. officer of the adverse party who is a A: The purpose of which is to allow the witness to
juridical person (Sec. 12). admit or deny the prior statement and afford him
an opportunity to explain the same. Non-
Note: In these instances, such witnesses may be compliance with the foundational elements for this
impeached by the party presenting him in all respects mode of impeachment will be a ground for an
as if he had been called by the adverse party, except objection based on “improper impeachment.” Over
by evidence of his bad character. a timely objection, extrinsic evidence of a prior
inconsistent statement without the required
e. HOW THE WITNESS IS IMPEACHED BY EVIDENCE foundation is not admissible. (ibid)
OF INCONSISTENT STATEMENTS (LAYING THE
PREDICATE) Q: Distinguish laying the predicate from laying the
foundation or basis.
Q: What is the procedure for impeaching a witness
by evidence of prior inconsistent statements? A:
LAYING THE LAYING THE FOUNDATION OR
A: PREDICATE BASIS
1. The witness must be confronted with Refers to a situation where
such statements with the circumstances evidence which is otherwise
of the times, places and the persons incompetent will be introduced
present in which they were made; into evidence because it falls
2. The witness must be asked whether he Refers only to under the rules of exclusion.
made such statements, and if so, allowed impeachment of a E.g. under the best evidence
to explain them; and witness through rule, a party must first prove
prior inconsistent that a writing was duly executed
3. If the statement be in writing it must be
statements and that the original has been
shown to the witness before any question
lost or destroyed. Without first
is put to him concerning them (Sec. 13).
laying the foundation,
secondary evidence will not be
Note: This procedure is also called the rule on laying admitted by the court.
the predicate. Where the previous statements of a
witness are offered as evidence of an admission, and

EVIDENCE
f. EVIDENCE OF THE GOOD CHARACTER OF A Q: What are the exceptions to the res inter alios
WITNESS acta rule (first branch)?
Q: Is evidence of good character of a witness A:

admissible? 1. Admission by a co-partner or agent (Sec.
29, Rule 130);
A: 2. Admission by a co-conspirator (Sec. 30,
GR: No. Rule 130); and
XPN: When such character has been 3. Admission by privies (Sec. 31, Rule 130)
impeached. (Sec. 14)
Q: What does the rule prohibit? (2nd Branch of the
Q: When can evidence of bad moral character of Res Inter Alios Acta Rule)
the accused be presented?
A: It prohibits the admission of the so-called
A: In a criminal case, the prosecution cannot prove “propensity evidence” which is evidence that one
the bad moral character of the accused in its did or did not do a certain thing at one time is not
evidence-in-chief. It can only do so in rebuttal (Sec. admissible to prove that he did or did not do the
51 [a][2], Rule 130, Rules of Court). same or similar thing at another time.
Q: When can evidence of good moral character of Evidence of similar acts or occurrences compels the
the accused be presented? defendant to meet allegations that are not
mentioned in the complaint, confuses him in his
A: The accused may prove his good moral character defense, raises a variety of relevant issues, and
when pertinent to the moral trait involved in the diverts the attention of the court from the issues
offense charged (Sec.51 [a][1], Rule 130, Rules of immediately before it. Hence, the evidentiary rule
Court). guards the practical inconvenience of trying
collateral issues and protracting the trial and
Q: When can evidence of character of the prevents surprise or other mischief prejudicial to
offended party may be proved? litigants. (Cruz v. CA, G.R. No. 126713, July 27,
1998).
A: The good or bad moral character of the offended
party may be proved by the accused if it tends to b. ADMISSION BY A PARTY
establish in any reasonable degree the probability
or improbability of the offense charged (Sec. 51 Q: What is admission?
[a][3], Rule 130, Rules of Court). Also, not every
good or bad moral character of the offended party A: It is an act, declaration or omission of a party as
may be proved under this provision but only those to a relevant fact which may be given in evidence
which would establish the probability or against him (Sec. 26, Rule 130). It is any statement
improbability of the offense charged. of fact made by a party against his interest or
unfavorable to the conclusion for which he
5.ADMISSIONS AND CONFESSIONS contends or is inconsistent with the facts alleged by
him. (Regalado, Vol. II, p. 754, 2008 ed.)
a. RES INTER ALIOS ACTA RULE
Note: Sections 26 and 32 of Rule 130 refer to
Q: What is the principle of res inter alios acta alteri extrajudicial admissions.
nocere non debet?
Q: What are the requisites for an admission to be
A: This principle literally means “things done admissible?
between strangers ought not to injure those who
are not parties to it”. It has two branches: A:
1. The rights of a party cannot be prejudiced 1. Must involve matters of fact and not of
by an act, declaration, or omission of law;
another (Sec. 28). 2. Must be categorical and definite;
2. Evidence that one did or did not do a 3. Must be knowingly and voluntarily made;
certain thing at one time is not admissible and
to prove that he did or did not do the 4. Must be adverse to the admitter’s
same or similar thing at another time interests (Ibid.).
(Sec. 34).
343
Q: What are the classifications of admissions? admissions by him. (Estrada v. Desierto, G.R. Nos.
146710-15, Apr. 3, 2001)
A:
1. Express – it is a positive statement or act. Q: Distinguish admission from confession.
2. Implied – it is one which may be inferred
from the declarations or acts of a person. A:
3. Judicial – when made in the course of a ADMISSION CONFESSION
judicial proceeding. A statement of fact which A statement of fact which
4. Extrajudicial – when made out of court or does not involve an involves an
even in a proceeding other than the one acknowledgment of guilt acknowledgment of guilt
under consideration. (Riano, Evidence: A or liability or liability
Restatement for the Bar, p. 117, 2009 ed.) Can be made only by the
May be made by third
5. Adoptive – It is a party’s reaction to a party himself and, in
persons and in certain
statement or action by another person some instances, are
cases, are admissible
admissible against his co-
when it is reasonable to treat the party’s against a party
accused
reaction as an admission of something
May be express or
stated or implied by the other person. A Always express
implied
third person’s statement becomes the
admission of the party embracing or
Q: What is self-serving declaration?
espousing it. Adoptive admission may
occur when a party:
A: It is one which has been made extrajudicially by
a. Expressly agrees to or concurs in an
the party to favor his interest. It is not admissible in
oral statement made by another;
evidence because they are inherently
b. Hears a statement and later on
untrustworthy, and would open the door to fraud
essentially repeats it;
and fabrication of testimony.
c. Utters an acceptance or builds upon
the assertion of another;
Q: Distinguish declaration against interest from
d. Replies by way of rebuttal to some
admissions.
specific points raised by another but
ignores further points which he or
A:
she has heard the other make; or
DECLARATION AGAINST
e. Reads and signs a written statement ADMISSIONS
INTEREST
made by another. (Republic v. Must have been made Need not be made
Kendrick Development Corp., G.R. against the proprietary or against the proprietary
No. 149576, Aug. 8, 2006) pecuniary interest of the or pecuniary interest
party of the party
Q: What is meant by the principle of adoptive Made by a party
admission? Must have been made by a himself, and is a
person who is either primary evidence and
A: It states that a party may, by his words or deceased or unable to competent though he
conduct, voluntarily adopt or ratify another’s testify be present in court and
statement. Where it appears that a party clearly ready to testify
and unambiguously assented to or adopted the Must be made ante litem
May be made at any
statements of another, evidence of those motam. (Regalado, Vol. II,
time. (Ibid)
statements is admissible against him. (Riano, p. 755, 2008 ed.)
Evidence: A Restatement for the Bar, p. 117, 2009 Admissible only against
Admissible even against
ed.) the party making the
third persons.
admission.
Note: One good example of adoptive admission is the It is an exception to the
It is NOT an exception
alleged admissions made by President Estrada when hearsay rule. (Riano,
to the hearsay rule.
his options had dwindled when, according to the Evidence: A Restatement for
(Ibid.)
Angara Diary, the Armed Forces withdrew its support the Bar, p. 116, 2009 ed.)
from him as President and Commander-in-Chief. Thus,
Angara had to allegedly ask Senate President Pimentel c. ADMISSION BY A THIRD PARTY
to advise Estrada to consider the option of “dignified
exit or resignation.” Estrada did not object to the Q: What are admissions by a third person?
suggested option but simply said he could never leave
the country. According to the court, his silence on this A: Admissions that is receivable in evidence against
and other related suggestions can be taken as adoptive the party who has expressly referred another to

EVIDENCE
him for information in regard to an uncertain or

disputed matter. But such a reference does not A: No, except in the following cases:
make a person referred to an agent for the purpose 1. If made in the presence of the co-
of making general admissions. The declarations are conspirator who expressly or impliedly
not evidence, unless strictly within the subject agreed therein;
matter relation to which reference is made. 2. Where the facts in said admission are
confirmed in the individual extrajudicial
When the reference was not made to any particular confessions made by the co-conspirator
person but in general, the rule above-stated is not after their apprehension;
applicable. 3. As a circumstance to determine the
credibility of the witness; or
d. ADMISSION BY A CO-PARTNER OR AGENT 4. As circumstantial evidence to show the
probability of the co-conspirator’s
Q: What are the requisites of an admission by a co- participation in the offense. (Regalado,
partner or agent? Vol. II, p. 761, 2008 ed.)
A: f. ADMISSION BY PRIVIES
1. The act or declaration of a partner or
agent of the party must be within the Q: What are the requisites of an admission by
scope of his authority; privies?
2. During the existence of the partnership or
agency; and A:
3. After the partnership or agency is shown 1. There must be privity between the party
by evidence other than such act or and the declarant;
declaration (Sec. 29). 2. The declarant as predecessor-in-interest
made the declaration while holding the
Q: Are admissions made after a partnership has title to the property; and
been dissolved fall within the exception? 3. The admission relates to the property
(Sec. 31).
A:
GR: No, because such are made when the g. ADMISSION BY SILENCE
partnership ceased to exist.
Q: When is there an admission by silence?
XPN: Where the admissions are made in
connection with the winding up of the A: There is admission by silence when a party does
partnership affairs, said admissions are still or says nothing when he hears or observes an act or
admissible as the partner is acting as an agent declaration made in his presence when such act or
of his co-partner in said winding up. (Regalado, declaration is such as naturally to call for action or
Vol. II, p. 759, 2008 ed.) comment if not true, and when proper and possible
for him to do so. Such may be given in evidence
e. ADMISSION BY A CO-CONSPIRATOR against him. (Sec. 32, Rule 130)
Q: What are the requisites of an admission by a co- Q: What are the requisites of an admission by
conspirator? silence?
A: A:
1. The declaration or act be made or done 1. He must have heard or observed the act
during the existence of the conspiracy; or declaration of the other person;
2. The declaration or act must relate to the 2. He must have had the opportunity to
conspiracy; and deny it;
3. The conspiracy must be shown by 3. He must have understood the statement;
evidence other than the declaration or act 4. He must have an interest to object, such
(evidence aliunde) (Sec. 30) that he would naturally have done so, if
the statement was not true;
Q: Are extrajudicial admissions made by a 5. The facts were within his knowledge; and
conspirator after the conspiracy has terminated 6. The fact admitted or the inference to be
and even before trial admissible against the co- drawn from his silence is material to the
conspirator?
345
issue (Sec. 32, Rule 130; People v. Q: May the extra-judicial confession of an accused
Paragsa, G.R. No. L-44060, July 20, 1978). be admitted in evidence against his co-accused?
Q: When is the rule on admission by silence A:

inapplicable? GR: An extrajudicial confession is not admissible
against the confessor’s co-accused. Said
A: The rule does not apply when a person is under confession is hearsay evidence and violative of
an official investigation. For the silence of a person the res inter alios acta rule.
under a custodial investigation for the commission
of an offense has the right to remain silent and to XPN: It may be admitted in evidence against his
be informed of that right. (Sec. 12, Art. III, 1987 co-accused in the following cases:
Constitution; Riano, Evidence: A Restatement for 1. In case of implied acquiescence of the co-
the Bar, p. 126, 2009 ed.) accused to the extrajudicial confession;
2. In case of interlocking confessions;
h. CONFESSIONS 3. Where the accused admitted the facts
stated by the confessant after being
Q: Define confession. apprised of such confession;
4. If they are charged as co-conspirators of
A: It is a categorical acknowledgment of guilt made the crime which was confessed by one of
by an accused of the offense charged or of any the accused and said confession is used
offense necessarily included therein, without any only as corroborating evidence;
exculpatory statement or explanation (Sec. 33; 5. Where the confession is used as
Regalado, Vol. II, p. 764, 2008 ed.). circumstantial evidence to show the
probability of participation by the co-
Note: If the accused admits having committed the act conspirator;
in question but alleges a justification therefor, the 6. When the confessant testified for his co-
same is merely an admission. (Ibid.) defendant; and
7. Where the co-conspirator’s extrajudicial
Q: What are the classifications of confession? confession is corroborated by other
evidence of record (Regalado, Vol. II, pp.
A: 772-773, 2008 ed.).
1. Judicial confession – is one made by the
accused before a court in which the case Q: Atty. Franklin V. Tamargo and his eight-year-old
is pending and in the course of legal daughter, Gail, were shot and killed. A certain
proceedings therein and, by itself, can Reynaldo Geron surfaced and executed an
sustain conviction. It is governed by Secs., affidavit stating that a certain Lucio Columna told
1, 3 & 4 of Rule 116. him that he was ordered to kill Atty. Tamargo by
2. Extrajudicial confession – is one made in Lloyd Antiporda. Columna during his detention
any other place or occasion and cannot executed an extrajudicial confession where he
sustain a conviction unless corroborated implicated Antiporda to the crime.
by evidence of corpus delicti. It is
governed by Sec. 33 of Rule 130. However, in a letter, Columna disowned the
contents of his affidavit and narrated how he had
Q: What are the requisites for a confession to be been tortured until he signed the extrajudicial
admissible as evidence? confession. He stated that Antiporda had no
participation in the killings. The prosecutor
A: dismissed the charges. On appeal, DOJ, initially
1. It must involve an express and categorical reversed the dismissal but on MR subsequently
acknowledgement of guilt; ordered the withdrawal of the information. On the
2. Facts admitted must be constitutive of a contrary, the RTC held that there was probable
criminal offense; cause to hold the Antiporda for trial. CA held that
3. It must have been given voluntarily; the RTC judge gravely abused her discretion. Was
4. It must have been intelligently made, the the extrajudicial confession of Columna admissible
accused realizing the importance or legal as evidence?
significance of his act; and
5. There must have been no violation of Sec, A: Columna’s extrajudicial confession affidavit was
12 (Miranda rights), Art. III (Bill of Rights) not admissible as evidence against Antiporda in
of the 1987 Constitution (Regalado, Vol. view of the rule on res inter alios acta. The rule on
II, p. 765, 2008 ed.).

EVIDENCE
res inter alios acta provides that the rights of a 6. Scheme;

party cannot be prejudiced by an act, declaration, 7. Habit;
or omission of another. Consequently, an 8. Custom;
extrajudicial confession is binding only on the 9. Usage; and
confessant, is not admissible against his or her co- 10. The like (Sec. 34, Rule 130)
accused and is considered as hearsay against them.
An exception to the res inter alios acta rule is an 6. HEARSAY RULE

admission made by a conspirator under Sec. 30,
Rule 130 of the Rules of Court. This rule prescribes a. MEANING OF HEARSAY
that the act or declaration of the conspirator
relating to the conspiracy and during its existence Q: Define hearsay evidence.
may be given in evidence against co-conspirators
provided that the conspiracy is shown by A: Any evidence, whether oral or documentary, and
independent evidence aside from the extrajudicial its probative value is not based on personal
confession. knowledge of the witness but on the knowledge of
some other person not on the witness stand. It also
Considering the paucity and inadmissibility of the includes all assertions where, though derived from
evidence presented against the Antiporda, it would personal knowledge, the adverse party is not given
be unfair to hold them for trial (Tamargo v. an opportunity to cross-examine. (1999 Bar
Awingan, G.R. No. 177727, Jan. 19, 2010). Question)
Q: What is the doctrine of interlocking Q: What are the elements of hearsay evidence?
confessions?
A:
A: It states that extrajudicial confessions 1. There must be an out-of-court statement;
independently made without collusion which are and
identical with each other in their essential details 2. That the statement made out of court, is
and corroborated by other evidence against the repeated and offered by the witness in
persons implicated, are admissible to show the court to prove the truth of the matters
probability of the latter’s actual participation in the asserted by the statement. (Riano,
commission of the crime. Evidence: A Restatement for the Bar, p.
348, 2009 ed.)
i. SIMILAR ACTS AS EVIDENCE
Q: What are the two concepts of hearsay
Q: What do similar acts of evidence prohibit? evidence?
A: The rule prohibits the admission of the so-called A:

“propensity evidence” which is evidence that tends 1. Any evidence, whether oral or
to show that what a person has done at one time is documentary, is hearsay if its probative
probative of the contention that he has done a value is not based on the personal
similar act at another time. Evidence of similar acts knowledge of the witness but on the
or occurrences compels the defendant to meet knowledge of some other person not on
allegations that are not mentioned in the the witness stand. (Regalado, Vol. II, p.
complaint, confuses him in his defense, raises a 776, 2008 ed.)
variety of relevant issues, and diverts the attention 2. It also includes all assertions which have
of the court from the issues immediately before it. not been subjected to cross-examination
(Cruz v. Court of Appeals, 293 SCRA 239). by the adverse party at the trial in which
they are being offered against him.
Q: When is evidence of similar acts or previous (Herrera, Vol. V, p. 581, 1999 ed.)
conduct admissible?
b. REASON FOR EXCLUSION OF HEARSAY
A: It is admissible where such evidence may prove: EVIDENCE
1. Specific intent;
2. Knowledge; Q: What is the hearsay rule?
3. Identity;
4. Plan; A: It states that a witness can testify only to those
5. System; facts which he knows of based on his personal
347
knowledge or those which are derived from his own statement may be shown where the fact that it is
perception. (2007 Bar Question) made is relevant. Evidence as to the making of such
statement is not secondary but primary, for the
Q: What is the rationale of excluding hearsay statement itself may constitute a fact in issue or be
evidence? circumstantially relevant as to the existence of such
fact (Gotesco Investment Corp. v. Chatto, G.R. No.
A: There is no opportunity for cross-examination 87584, June 16, 1992). (2003 Bar Question)
hence it is not subject to the test of truth.
Q: What are the classifications of out-of-court
Q: Brothers Billy & Luis were charged with murder statements?
for killing Vhong’s father. Vhong, however, was
charged with parricide for being a co-principal to A:
the crime. The two cases were tried jointly not 1. Hearsay – Its probative force depends, in
until the two brothers withdrew their not guilty whole or in part, on the competency and
plea for murder. Thus, only Vhong’s case was tried credibility of some persons other that the
on the merits. The prosecution offered in evidence witness by whom it is sought to produce it
the affidavits of Billy & Luis containing their extra- (Estrada v. Desierto, G.R. Nos. 146710-15
judicial confessions. The two brothers were, & 146738, Apr. 3, 2001). It is inadmissible
however, not presented by the prosecution on the as evidence.
witness stand. Thereafter, the trial court convicted 2. Non-hearsay – This occurs when the
the accused. Is the trial court correct? purpose for introducing the statement is
not to prove the truth of the facts
A: No. The failure to present Billy and Luis gives the asserted therein but only the making of
affidavits the character of hearsay. It is hornbook the statements and are admissible in
doctrine that unless the affiants themselves take evidence when the making of the
the witness stand to affirm the averments in their statement is relevant. These are the so-
affidavits must be excluded from the judicial called independently relevant statements.
proceeding, being inadmissible hearsay. The 3. Exceptions to the hearsay rule – Those
voluntary admission of an accused made which are hearsay but are considered as
extrajudicially is not admissible in evidence against exceptions to the hearsay rule and are
his co-accused when the latter had not been given therefore admissible. (Secs. 37-47, Rule
an opportunity to hear him testify and cross- 130)
examine him (People v. Quidato, Jr., G.R. No.
117401. Oct. 1, 1998) Q: What are independently relevant statements?
Q: Distinguish hearsay evidence and opinion A: These are statements which are relevant
evidence. (2004 Bar Question) independently of whether they are true or not.
They are neither hearsay nor an exception to the
A: hearsay rule as the purpose thereof is not to prove
HEARSAY EVIDENCE OPINION EVIDENCE the truth of the declaration or document (Estrada v.
Expert evidence based on Desierto, G.R. Nos. 146710-15 & 146738, Apr. 3,
Consists of testimony the personal knowledge, 2001).
that is not based on skill, experience or training
personal knowledge of of the person testifying and They are relevant since they are the facts in issue or
the person testifying evidence of an ordinary are circumstantial evidence of the facts in issue.
witness on limited matters
Q: What are the classifications of independently
Q: Ben was charged with robbery and was arrested relevant statements?
by police operatives by virtue of a warrant of
arrest. In a press conference called by the police, A:
Ben admitted that he had robbed the victim. The 1. Those statements which are the very facts
prosecution presented in evidence a newspaper in issue;
clipping of the report of the reporter who was 2. Those statements which are
present during the press conference stating that circumstantial evidence of the fact in
Ben admitted the robbery. Is the newspaper issue. It includes the following:
clipping admissible in evidence against Ben? a. Statements of a person showing his
state of mind, that is, his mental
A: Yes. Regardless of the truth or falsity of a
statement, the hearsay rule does not apply and the

EVIDENCE
condition, knowledge, belief, 5. The declarant is competent as a witness

intention, ill-will and other emotions; had he survived. (Geraldo v. People, G.R.
b. Statements of a person which show No. 173608, Nov. 20, 2008; Riano,
his physical condition, as illness and Evidence: A Restatement for the Bar, p.
the like; 370, 2009 ed.)
c. Statements of a person from which
an inference may be made as to the Q: What factors should be considered in
state of mind of another, i.e., the determining whether the declarant is conscious of
knowledge, belief, motive, good or his impending death?
bad faith, etc. of the latter; A:
d. Statements which may identify the 1. Utterances;
date, place and person in question; 2. Actual character and seriousness of his
and wounds; and
e. Statements showing the lack of 3. By the declarant’s conduct and the
credibility of a witness. circumstances at the time he made the
declaration, whether he expected to
c. EXCEPTIONS TO THE HEARSAY RULE survive his injury.
Q: What are the exceptions to the hearsay rule? Note: A dying declaration may be oral or written. If
oral, the witness who heard it may testify thereto
A: without the necessity of reproducing the word of the
1. Dying declaration; decedent, if he is able to give the substance thereof.
2. Declaration against interest; An unsigned dying declaration may be used as a
3. Act or declaration about pedigree; memorandum by the witness who took it down
4. Family reputation or tradition regarding (People v. Boller, G.R. Nos. 144222-24, Apr. 3, 2002).
pedigree;
5. Common reputation; (2) DECLARATION AGAINST INTEREST (SEC. 38)
6. Part of the res gestae;
7. Entries in the course of business; Q: What are the requisites for the admissibility of
8. Entries in official records; declaration against interest?
9. Commercial lists and the like;
10. Learned treaties; A:
11. Testimony or deposition at a former trial. 1. That the declaration is one made by a
dying person;
(1) DYING DECLARATION (SEC. 37) 2. That the declaration was made by said
dying person under a consciousness of his
Q: Define dying declaration. imminent death;
3. That the declaration refers to the cause
A: The ante mortem statements made by a person and circumstances surrounding the death
after the mortal wound has been inflicted under the of the declarant and not of anyone else;
belief that the death is certain, stating the fact 4. That the declaration is offered in a case
concerning the cause of and the circumstances where the declarant’s death is the subject
surrounding the attack. of the inquiry;
5. The delcarant is competent as a witness
Q: What are the requisites of dying declaration to had he survived;
be considered as an exception to the hearsay rule? 6. The declarant should have died. (Riano,
p.379)
A:
1. The declaration is one made by a dying person; Q: Distinguish declaration against interest from
2. The declaration was made by said dying person admission against interest.
under a consciousness of his impending death;
3. The declaration refers to the cause and A:
circumstances surrounding the death of the DECLARATION AGAINST ADMISSION AGAINST
INTEREST INTEREST
declarant and not of anyone else;
Made by a person who is Made by a party to a
4. The declaration is offered in a case wherein
neither a party nor in litigation or by one in
the declarant’s death is the subject of the privity with a party to the privity with or identified
inquiry; and suit and are secondary in legal interest with
evidence but constitute an such party.
349
exception to the hearsay Q: What does “pedigree” include?

rule.
A: It includes:
Admissible only when the Admissible whether or 1. Relationship;
declarant is unavailable as not the declarant is 2. Family genealogy;
a witness. available as a witness. 3. Birth;
4. Marriage;
Q: Harry Pattinson was charged with the crime of 5. Death;
kidnapping of Edward Radcliffe. One of the 6. Dates when and the place where these
testimonies presented by the prosecution was that facts occurred;
of Emma Granger, she testified that Edward 7. Names of the relatives; and
confided to her that he and Harry’s wife Bella 8. Facts of family history intimately
were having an affair. Undoubtedly, his wife's connected with pedigree. (Sec. 39, Rule
infidelity was ample reason for Harry to 130)
contemplate revenge. Consequently, the trial
court convicted Harry based on the testimonies of (4) FAMILY REPUTATION OR TRADITION
the witnesses. Was the testimony of Emma REGARDING PEDIGREE (SEC. 40)
admissible as evidence?
Q: What are the requisites for the admissibility of
A: Yes. Edward’s revelation to Emma regarding his family reputation or tradition regarding pedigree?
illicit relationship with Harry’s wife is admissible in
evidence, pursuant to Section 38, Rule 130 of the A:
Revised Rules on Evidence. With the deletion of the 1. There is controversy in respect to the
phrase "pecuniary or moral interest" from the pedigree of any member of the family;
present provision, it is safe to assume that 2. The reputation or tradition of the
"declaration against interest" has been expanded to pedigree of the person concerned existed
include all kinds of interest, that is, pecuniary, previous to the controversy; and
proprietary, moral or even penal. Hector having 3. The witness testifying to the reputation or
been missing since his abduction, cannot be called tradition regarding pedigree of the person
upon to testify. His confession to Emma, definitely a concerned must be a member of the
declaration against his own interest, since his affair family of said person either by
with Bella was a crime, is admissible in evidence consanguinity or affinity.
because no sane person will be presumed to tell a
falsehood to his own detriment. (People v. Q: What are the ways to establish family
Theodore Bernal, G.R. No. 113685, June 19, 1997) reputation or tradition in respect to one’s
pedigree?
(3) ACT OR DECLARATION ABOUT PEDIGREE (SEC.
39) A:
1. Through testimony in open court of a
Q: What are the requisites for the admissibility of witness who must be a member of the
acts or declarations about pedigree? family either by consanguinity or affinity;
2. Through entries in:
A: a. Family bible;
1. The declarant is dead or unable to testify; b. Family books or charts;
2. The pedigree should be in issue; c. Engravings on rings; or
3. The declarant must be a relative of the d. Family portraits and the like.
person whose pedigree is in question;
4. The declaration must be made before the Q: Distinguish Sec. 39 from Sec. 40.
controversy occurred; and
5. The relationship between the declarant A:
and the person whose pedigree is in SECTION 39 SECTION 40
question must be shown by evidence Family reputation or
Act or declaration about
other than such act or declaration. tradition regarding
pedigree
(Tecson v. COMELEC, G.R. No. 161434, pedigree
Mar. 3, 2004) Witness need not be a Witness is a member of
member of the family the family

EVIDENCE
The witness is the one to Q: What are the reasons for the admissibility of
whom the fact relates, it common reputation?
Relation of the declarant
is not necessary for him
and the person subject of
to establish by A:
the inquiry must be
independent evidence his 1. Necessity arising from the inherent
established by
relationship to the family difficulty of obtaining any other evidence
independent evidence
(Francisco, p. 292, 1992 than that in the nature of common
ed.)
reputation; and
Testimony is about what
Testimony is about family 2. Trustworthiness of the evidence arising
declarant, who is dead or
reputation or tradition from:
unable to testify, has said
covering matters of
concerning the pedigree
pedigree a. The supposition that the public is
of the family
conversant with the subject to be
proved because of their general
(5) COMMON REPUTATION (SEC. 41)
interest therein; and
b. The fact that the falsity or error of
Q: What is common reputation?
such evidence could be exposed or
corrected by other testimony since
A: It is the definite opinion of the community in
the public are interested in the
which the fact to be proved is known or exists. It
same. (Francisco, pp. 296-297, 1992
means the general or substantially undivided
ed.)
reputation, as distinguished from a partial or
qualified one, although it need not be unanimous.
(6) RES GESTAE (SEC.42)
(Regalado, Vol. II, p. 787, 2008 ed.)
Note: As a general rule, the reputation of a person Q: What is res gestae?

should be that existing in the place of his residence; it
may also be that existing in the place where he is best A: It is a Latin phrase which literally means "things
known. (Ibid.) done." As an exception to the hearsay rule, it refers
to those exclamations and statements by either the
Q: What are the requisites for the admissibility of participants, victims, or spectators to a crime
common reputation? immediately before, during or immediately after
the commission of the crime, when the
A: circumstances are such that the statements were
1. The facts must be of public or general made as spontaneous reactions or utterances
interest and more than 30 years old; inspired by the excitement of the occasion, and
2. The common reputation must have been there was no opportunity for the declarant to
ancient, i.e. 30 years old; deliberate and fabricate a false statement (Capila v.
3. The reputation must have been one People, G.R. No. 146161, July 17, 2006).
formed among a class of persons who
were in a position to have some sources Q: What are the requisites for the admissibility of
of information and to contribute res gestae?
intelligently to the formation of the
opinion; and A:
4. The common reputation must have been 1. The principal act or the res gestae is a
existing previous to the controversy. startling occurrence;
2. The statement is spontaneous or was
Q: What can be established by common made before the declarant had time to
reputation? contrive or devise, and the statement is
made during the occurrence or
A: immediately prior or subsequent thereto;
1. Matters of public interest more than 30 and
years old; 3. The statement made must concern the
2. Matters of general interest more than 30 occurrence in question and it’s
years old; immediately attending circumstances
3. Matters respecting marriage or moral (Capila v. People, G.R. No. 146161, July
character and related facts; 17, 2006).
4. Individual moral character.
351
Q: Distinguish res gestae from dying declaration. iii. The equivocal act must be relevant
to the issue; and
A: iv. The verbal acts must be
RES GESTAE DYING DECLARATION contemporaneous with the equivocal
A sense of impending act.
death takes the place of
It is the event itself
an oath and the law 2. Spontaneous Statements - Statements or
which speaks
regards the declarant as exclamations made immediately after
testifying some exciting occasion by a participant or
May be made by the spectator and asserting the circumstances
killer after or during the Can be made by the of that occasion as it is observed by him.
killing or that of a third victim only The res gestae is the startling occurrence.
person
It may be prior to or simultaneously with,
May precede, or Confined to matters
or subsequent with the startling
accompany or follow the occurring after the
occurrence.
principal act homicidal act
Justification is the
Justification is the trustworthiness, being
Requisites:
spontaneity of the given by the person who i. There must be a startling occurrence;
statement was aware of his ii. The statement must relate to the
impending death circumstances of the startling
occurrence;
Q: What is the reason for the rule on res gestae? iii. The statement must be spontaneous.
A: The reason for the rule is human experience. It Q: Anthony raped Melissa. After raping Melissa,
has been shown that under certain external Anthony fled. Melissa then rushed to the police
circumstances of physical or mental shock, the state station and told Police Officer Gilbert what had
of nervous excitement which occurs in a spectator happened. Anhthony was charged with rape.
may produce a spontaneous and sincere response During the trial, Melissa can no longer be located.
to the actual sensations and perceptions produced If the prosecution presents Gilbert to testify on
by the external shock. what Melissa had told him, would such testimony
As the statements or utterances are made under of Gilbert be hearsay? Explain.
the immediate and uncontrolled domination of the
senses, rather than reason and reflection, such A: No. It is part of res gestae. It is also an
statements or utterances may be taken as independently relevant statement. Buloy testified
expressing the real belief of the speaker as to the based on his personal knowledge; that is, he was
facts he just observed. The spontaneity of the testifying to the fact that Reyna told him that she
declaration is such that the declaration itself may was raped by Sam and not to the truth of Reyna’s
be regarded as the event speaking through the statement (People v. Gaddi, G.R. No. 74065, Feb.
declarant rather than the declarant speaking for 27, 1989). (2005 Bar Question)
himself (Ibid.).
(7) ENTRIES IN THE ORDINARY COURSE OF
Q: What are the two types of res gestae? BUSINESS/SHOP-BOOK RULE (SEC. 43)
A: Q: What are the requisites for the admissibility of

1. Verbal Acts – Utterances which entries in the course of business?
accompany some act or conduct to which
it is desired to give legal effect. The res A:
gestae is the equivocal act material to the 1. The person who made the entry must be
issue, and giving it legal significance. It dead or unable to testify;
must be contemporaneous with or must 2. The entries were made at or near the
accompany the equivocal act in order to time of the transactions to which they
be admissible. refer;
3. The entrant was in a position to know the
Requisites: facts stated in the entries;
i. The fact or occurrence characterized 4. The entries were made in his professional
must be equivocal; capacity or in the performance of a duty,
ii. The verbal acts must characterize or whether legal, contractual, moral or
explain the equivocal act; religious; and

EVIDENCE
5. The entries were made in the ordinary or Q: Should entries in the police blotter be given
regular course of business or duty. probative value?
(Regalado, Vol. II, pp. 791-792, 2008 ed.)
A: No, as they are not conclusive evidence of the
Q: How is regularity of the entries proved? truth of the contents but merely of the fact that
they were recorded. (People v. Cabrera, Jr., G.R. No.
A: It may be proved by the form in which they 138266, Apr. 30, 2003)
appear as entries in the books/ledgers. There is no Q: Distinguish entries in the course of business
need to present for testimony the clerk who from entries in official record.
manually made the entries. The person who
supervised such clerk is competent to testify that: A:
1. The account was prepared under his ENTRIES IN THE COURSE ENTRIES IN OFFICIAL
supervision; and OF BUSINESS RECORD
2. That the entries were regularly entered in It is sufficient that the The entrant, if a private
the ordinary course of business entrant made the entries individual, must have
(Regalado, Vol. II, p. 792, 2008 ed.). pursuant to a duty be it acted pursuant to a
legal, contractual, moral specific legal duty
Q: Is there an instance where business entries may or religious. specially enjoined by law.
be admitted in evidence even when the declarant Entrant must be dead or
No such requirement
is alive? unable to testify.
A: The entries will not be admitted as an exception (9) COMMERCIAL LIST AND THE LIKE (SEC. 45)
to the hearsay rule, but they may nevertheless be
availed of by said entrant as a memorandum to Q: What are the requisites for the admissibility of
refresh his memory while testifying on the commercial list and the like?
transactions reflected therein. (Ibid.)
A:
(8) ENTRIES IN OFFICIAL RECORDS (SEC. 44) 1. Statements of matters of interest to
persons engaged in an occupation;
Q: What is an official record? 2. Statements must be contained in a list,
register, periodical, or other published
A: It may be a: compilation;
1. Register; 3. Compilation is published for use by
2. Cash book; or persons engaged in that occupation; and
3. An official return or certificate (Regalado, 4. Such is generally relied upon by them.
Vol. II, p. 793, 2008 ed.)
Q: What are the examples of commercial lists and
Q: What are the requisites for the admissibility of the like?
entries in official records?
A:
A: 1. Trade journals reporting current prices
1. Entries were made by a public officer in and other market data;
the performance of his duties or by a 2. Mortality tables compiled for life
person in the performance of a duty insurance;
especially enjoined by law; 3. Abstracts of title compiled by reputable
2. Entrant had personal knowledge of the title examining institutions or individuals;
facts stated by him or such facts were or
acquired by him from reports made by 4. Business directories, animal pedigree
persons under a legal duty to submit the registers, and the like. (Francisco, p. 339,
same; and 1992 ed.)
3. Such entries were duly entered in a
regular manner in the official records. (10) LEARNED TREATIES (SEC. 46)
(Ibid.)
Q: When are learned treatises admissible?
Q: What is the probative value of these entries?
A:
A: It is only prima facie evidence of the fact stated 1. When the court can take judicial notice of
therein. them; or
353
2. When an expert witness testifies that the relates and who possesses special knowledge on
author of such is recognized as expert in questions on which he proposes special knowledge
that profession. (Sec. 46) to express an opinion. (Regalado, Vol. II, p. 802,
2008 ed.)
Q: What are the examples of learned treatises?
Q: Is there a definite standard of determining the
A: degree of skill or knowledge that a witness must
1. Historical works; possess in order to testify as an expert?
2. Scientific treatises; or
3. Law (Francisco, pp. 340-341, 1992 ed.) A: None. It is sufficient that the following factors
are present:
(11) TESTIMONY OR DEPOSITION AT A FORMER 1. Training and education;
PROCEEDING (SEC. 47) 2. Particularity, first-hand familiarity with
the facts of the case; and
Q: What are the requisites for the admissibility of 3. Presentation of authorities or standards
testimony or deposition at a former proceeding? upon which his opinion is based. (People
A: v. Abriol, G.R. No. 123137, Oct. 17, 2001)
1. Witness whose testimony is offered in
evidence is dead or unable to testify; Q: What is expert evidence?
2. The testimony or deposition was given in
a former case or proceeding, judicial or A: It is the testimony of a person (expert witness)
administrative, between the same parties possessing knowledge not usually acquired by other
or those representing the same interests; persons in a particular subject matter.
3. Former case involved the same subject as Note: It is admissible when the matter to be
that in the present case, although on established requires expertise and the witness have
different causes of action; been qualified as an expert.
4. Issue testified to by the witness in the
former trial is the same issue involved in Q: What is the test in determining whether there
the present case; and is need to resort to expert evidence?
5. Adverse party had an opportunity to
cross-examine the witness in the former A: The test is whether the opinion called for will aid
case. the court in resolving an issue.
Q: What are the grounds, aside from death, which b. OPINION OF ORDINARY WITNESS
make a witness unable to testify in a subsequent
case? Q: What is an opinion?
A: A: It is an inference or conclusion based or drawn

1. Insanity or mental incapacity or the from the facts established.
former witness’ loss of memory through
old age or disease; Q: Is the opinion of a witness admissible in
2. Physical disability by reason of sickness or evidence?
advanced age;
3. The fact that the witness has been kept A:
away by contrivance of the opposite GR: The opinion of a witness is not admissible.
party; or The witness must testify to facts within their
4. The fact that after diligent search the knowledge and may not state their opinion
former witness cannot be found. even on their examination.
(Francisco, p. 342, 1992 ed.)
XPN:
7. OPINION RULE 1. Opinion of an expert witness (Sec.
49);
a. OPINION OF EXPERT WITNESS 2. Opinion of an ordinary witness as to:
a. The identity of a person about
Q: Who is an expert witness? whom he has adequate
knowledge;
A: He is one who belongs to the profession or b. A handwriting with which he
calling to which the subject matter of the inquiry has sufficient familiarity;

EVIDENCE
c. The mental sanity of a person is pertinent to the issue of character

with whom he is sufficiently involved in the case (Sec. 51).
acquainted; and
d. The witness’ impressions of the Note: As to witnesses to both criminal and civil actions,
emotion, behavior, condition or the bad moral character of a witness may always be
appearance of a person (Sec. proved by either party but not evidence of his good
50). moral character, unless such character has been
impeached (Sec. 14, Rule 132).
8. CHARACTER EVIDENCE
a. CRIMINAL CASES Q: What are the requirements provided by the
b. CIVIL CASES rules with respect to the nature or substance of
the character evidence which may be admissible?
Q: When may character evidence be admitted in
evidence? A:
1. With respect to the accused, such
A: character evidence must be “pertinent to
GR: Character evidence is not admissible in the moral trait involved in the offense
evidence. charged.”
2. With respect to the offended person, it is
XPN: sufficient that such character evidence
1. Criminal cases: “may establish in any reasonable degree
a. The accused may prove his good the probability or improbability of the
moral character which is pertinent to offense charged.”
the moral trait involved in the 3. With respect to the witness, such
offense charged; character evidence must refer to his
b. The prosecution may not prove the “general reputation for truth, honesty or
bad moral character of the accused integrity,” that is affecting his credibility.
which is pertinent to the moral trait (Regalado, Vol. II, p. 814, 2008 ed.)
involved in the offense charged,
unless in rebuttal when the latter 9. RULE ON EXAMINATION OF A CHILD WITNESS
opens the issue by introducing
evidence of his good moral a. APPLICABILITY OF THE RULE
character; or
c. As to the offended party, his good or Q: In what cases is the Rule on Examination of a
bad moral character may be proved Child Witness applicable?
as long as it tends to establish in any
reasonable degree the probability or A: It shall apply in all criminal and non-criminal
improbability of the offense charged. proceedings involving child witnesses. This Rule
shall govern the examination of child witnesses who
XPN to the XPN: are victims of crime, accused of a crime, and
i. In rebuttal, proof of the bad witnesses of a crime (Sec. 1).
character of the victim is not
admissible if the crime was Q: When are the provisions of the Rules of Court
committed through treachery and applicable in the examination of a child witness?
premeditation; and
ii. In rape cases, the evidence of A: The provisions of the Rules of Court on
complainant’s past sexual deposition, conditional examination of witnesses,
conduct, or reputation or opinion and evidence shall be applied in a suppletory
thereof shall not be admitted character (Sec. 32).
unless and only to the extent that
the court finds that such evidence b. MEANING OF “CHILD WITNESS”
is material and relevant to the
case (Rape shield, Sec. 6, R.A. Q: Who is a child witness?
8505).
A: A child witness is any person who at the time of
2. Civil cases – The moral character of either giving testimony is below the age of 18 years. In
party thereto cannot be proved unless it child abuse cases, a child includes one over 18 years
but is found by the court as unable to fully take care
of himself or protect himself from abuse, neglect,
355
cruelty, exploitation, or discrimination because of a A: It is determined by the totality of the

physical or mental disability or condition [Sec. 4(a)]. circumstances and conditions as are most congenial
to the survival, protection and feelings of security
Q: What is the difference between a child witness of the child and most encouraging to his physical,
and an ordinary witness? psychological and emotional development. It also
A: means the least detrimental available alternative
CHILD WITNESS ORDINARY WITNESS for safeguarding the growth and development of
Only the judge is allowed the child [Sec. 4(g)].
Opposing counsels are
to ask questions to a
allowed to ask questions
child c. COMPETENCY OF A CHILD WITNESS
during preliminary
witness during
examination
preliminary examination Q: What is the rule on the competency of a child
Testimony in a narrative Testimony in a narrative witness?
form is allowed form is not allowed
Leading questions are Leading questions are
A: Every child is presumed qualified to be a witness.
allowed generally not allowed
However, the court shall conduct a competency
The child witness is An ordinary witness is not
examination of a child, motu proprio or on motion
assisted by a support assisted by a support
person person
of a party, when it finds that substantial doubt
exists regarding the ability of the child to perceive,
remember, communicate, distinguish truth from
Q: Who is a facilitator?
falsehood, or appreciate the duty to tell the truth in
court.
A: He is a person appointed by the court to pose
questions to a child. [Sec. 4(c)] The facilitator may
Q: What must a party seeking competency
be a child psychologist, psychiatrist, social worker,
examination present?
guidance counselor, teacher, religious leader,
parent or relative.
A: He must present proof of necessity of
competency examination. The age of the child by
Q: Who is a support person?
itself is not a sufficient basis for a competency
examination. [Sec. 6(a)]
A: He is a person chosen by the child to accompany
him to testify at or attend a judicial proceeding or
Q: Where does the burden of proof lie?
deposition to provide emotional support for him.
[Sec. 4(f)]
A: It lies on the party challenging the competency
of the child [Sec. 6(b)].
Q: What is an in-depth investigative interview or
disclosure interview?
Q: Who are the persons allowed at a competency
examination?
A: It is an inquiry or proceeding conducted by duly
trained members of a multidisciplinary team or
A: Only the following are allowed at a competency
representatives of law enforcement or child
examination:
protective services for the purpose of determining
1. The judge and necessary court personnel;
whether child abuse has been committed. [Sec. 4(i)]
2. The counsel for the parties;
3. The guardian ad litem, if any;
Q: When may the court appoint a guardian ad
4. One or more support persons for the
litem for a child?
child; and
5. The defendant, unless the court
A: The court may appoint a guardian ad litem for a
determines that competence can be fully
child who is a victim of, accused of, or a witness to a
evaluated in his absence. [Sec. 6(c)]
crime to promote the best interests of the child. In
making the appointment, the court shall consider
Q: Who shall conduct the competency
the background of the guardian ad litem and his
examination?
familiarity with the judicial process, social service
programs, and child development, giving
A: It shall be conducted only by the judge but the
preference to the parents of the child, if qualified
counsel for the parties can submit questions to the
[Sec. 5(a)].
judge that he may, in his discretion, ask the child.
[Sec. 6(d)]
Q: What determines the best interests of the
child?

EVIDENCE
Q: What are the appropriate questions to be asked necessary to show that rape has indeed been
to the child during competency examination? committed. The silence of a rape victim or failure to
immediately disclose her plight to the authorities is no
A: The questions to be asked are: proof at all that the charges are baseless or fabricated.
1. Appropriate to the age and More often than not, a victim would bear the ignominy
developmental level of the child; and pain in private rather than reveal her shame to the
2. Not related to the issues at trial; and whole world or risk the danger of physical harm by the
rapist (People v. Pioquinto, G.R. No. 168326, Apr. 11,
3. Shall focus on the ability of the child to
2007).
remember, communicate, distinguish
between truth and falsehood, and
Q: Boy was charged with rape of his 10 year old
appreciate the duty to testify truthfully.
stepdaughter, Angie, to which he pleaded not
[Sec. 6(e)]
guilty. For the prosecution, it presented as
witnesses the victim and a Medico Legal
Q: What is meant by developmental level?
Certificate issued by Dr. Luna, the results of which
showed that the victim suffered hymenal
A: It refers to the specific growth phase in which
laceration. For the defense, he vehemently denied
most individuals are expected to behave and
the charges and presented an alibi. RTC, affirmed
function in relation to the advancement of their
with modification by the CA convicted the
physical, socio-emotional, cognitive, and moral
accused. Should the testimony of the child be
abilities. [Sec. 4(h)]
given full weight and credit?
Q: What is the duty of the court regarding the
A: Testimonies of child victims are given full weight
competency of the child?
and credit, for when a woman or a girl-child says
that she has been raped; she says in effect all that is
A: It has the duty of continuously assessing the
necessary to show that rape was indeed
competence of the child throughout his testimony.
committed. Youth and immaturity are generally
[Sec. 6(f)]
badges of truth and sincerity.
Q: In case of a child witness, what should the court
Angie’s testimony that she was raped by the
consider in determining his competency?
accused is highly trustworthy not only because of
the fact that she was merely a young lass below
A: The court must consider his capacity:
twelve years of age at the time she testified before
1. At the time the fact to be testified to
the trial court who would not concoct a sordid tale
occurred such that he could receive
against his stepfather whom she endearingly calls
correct impressions thereof;
“papa” but more so because of her candid, positive,
2. To comprehend the obligation of an oath;
direct, and consistent narration of how her
and
stepfather sexually abused her.
3. To relate those facts truly at the time he
is offered as a witness. The court should
She vividly recounted that she was awakened one
take into account his capacity for
night when she felt someone touching her body.
observation, recollection and
Angie identified the aggressor as the accused who
communication. (Regalado, Vol. II, pp.
immediately covered her mouth with his hand
739-740, 2008 ed.)
(People v. Sobusa, G.R. No. 181083, Jan. 21, 2010).
d. EXAMINATION OF A CHILD WITNESS
Q: When may the public be excluded from the
courtroom in which a child testifies?
Q: Does the testimony of child witness need
corroboration?
A: When a child testifies, the court may order the
exclusion from the courtroom of all persons,
A: Corroboration shall not be required of a
including members of the press, who do not have a
testimony of a child. His testimony, if credible by
direct interest in the case. Such an order may be
itself, shall be sufficient to support a finding of fact,
made to protect the right to privacy of the child or
conclusion, or judgment subject to the standard of
if the court determines on the record that requiring
proof required in criminal and non-criminal cases
the child to testify in open court would cause
(Sec. 22).
psychological harm to him, hinder the
ascertainment of truth, or result in his inability to
Note: The straightforward testimony of a child witness
can be given full weight and credit. When a child says
effectively communicate due to embarrassment,
that she has been raped, she says in effect all that is fear, or timidity.
357
The court may, motu proprio, exclude the public Q: Who are the persons allowed to preside and be
from the courtroom if the evidence to be produced present in the videotaped deposition?
during trial is of such character as to be offensive to
decency or public morals. The court may also, on A: The judge shall preside at the videotaped
motion of the accused, exclude the public from deposition of a child. Objections to deposition
trial, except court personnel and the counsel of the testimony or evidence, or parts thereof, and the
parties (Sec. 23). grounds for the objection shall be stated and shall
be ruled upon at the time of the taking of the
e. LIVE-LINK TV TESTIMONY OF A CHILD WITNESS deposition. The other persons who may be
permitted to be present at the proceeding are:
Q: When may the court order that the testimony (1) The prosecutor;
of the child be taken by live-link television? (2) The defense counsel;
Explain. (3) The guardian ad litem;
(4) The accused, subject to sub-section (e);
A: The court may order that the testimony of the (5) Other persons whose presence is
child be taken by live-link television if there is a determined by the court to be necessary to the
substantial likelihood that the child would suffer welfare and well-being of the child;
trauma from testifying in the presence of the (6) One or both of his support persons, the
accused, his counsel or the prosecutor as the case facilitator and interpreter, if any;
may be. The trauma must be of a kind which would (7) The court stenographer; and
impair the completeness or truthfulness of the (8) Persons necessary to operate the videotape
testimony of the child (Sec. 25). (2005 Bar equipment.
Question)
g. HEARSAY EXCEPTION IN CHILD ABUSE CASES
f. VIDEOTAPED DEPOSITION OF A CHILD WITNESS
Q: Does the hearsay rule apply in child abuse
Q: When may the court order that the testimony cases?
of the child be taken by videotaped deposition?
Explain. A: A statement made by a child describing any act
or attempted act of child abuse, not otherwise
A: If the court finds that the child will not be able to admissible under the hearsay rule, may be admitted
testify in open court at trial, it shall issue an order in evidence in any criminal or non-criminal
that the deposition of the child be taken and proceeding subject to the following rules:
preserved by videotape. (Sec.27[b])
1. Before such hearsay statement maybe
If the order of the court is based on evidence that admitted, its proponent shall make
the child is unable to testify in the physical known to the adverse party the intention
presence of the accused, the court may direct the to offer such statement and its particulars
latter to be excluded from the room in which the to provide him a fair opportunity to
deposition is conducted. If the accused is excluded object.
from the deposition, it is not necessary that the
child be able to view an image of the accused. a. If the child is available, the court
(Sec.27[e]) shall, upon motion of the adverse
party, require the child to be present
Note: The rights of the accused during trial, especially at the presentation of the hearsay
the right to counsel and to confront and cross-examine statement for cross-examination by
the child, shall not be violated during the deposition. the adverse party.
(Sec.27[d]) b. When the child is unavailable, the
fact of such circumstance must be
Note: After the original videotaping but before or proved by the proponent.
during trial, any party may file any motion for
additional videotaping on the ground of newly
2. In ruling on the admissibility of such
discovered evidence. The court may order an
hearsay statement, the court shall
additional videotaped deposition to receive the newly
discovered evidence. (Sec.27[j])
consider the time, content and
circumstances thereof, based on various
factors provided by the law, which
provide sufficient indicia of reliability (Sec.
28).

EVIDENCE
h. SEXUAL ABUSE SHIELD RULE thereof unless he signs a written

affirmation that he has received and
Q: What is sexual abuse shield rule? read a copy of the protective order;
that he submits to the jurisdiction of
A: the court with respect to the
GR: It states that the following evidence is not protective order; and that in case of
admissible in any criminal proceeding involving violation thereof, he will be subject
alleged child sexual abuse: to the contempt power of the court;
1. Evidence offered to prove that the alleged d. Each of the tape cassettes and
victim engaged in other sexual behavior; transcripts thereof made available to
and the parties, their counsel, and
2. Evidence offered to prove the sexual respective agents shall bear the
predisposition of the alleged victim [Sec. following cautionary notice:
30(a)].
"This object or document and the
XPN: Evidence of specific instances of sexual contents thereof are subject to a
behavior by the alleged victim to prove that a protective order issued by the court in
person other than the accused was the source (case title), (case number). They shall
of semen, injury, or other physical evidence not be examined, inspected, read,
shall be admissible [Sec. 30(b)]. viewed, or copied by any person, or
disclosed to any person, except as
provided in the protective order. No
i. PROTECTIVE ORDERS
additional copies of the tape or any of
its portion shall be made, given, sold,
Q: What are the other measures provided under or shown to any person without prior
the rule for the protection of the privacy and court order. Any person violating such
safety of a child witness? protective order is subject to the
contempt power of the court and other
A: penalties prescribed by law."
1. Confidentiality of records
e. No tape shall be given, loaned, sold,
GR: The records may be released only to or shown to any person except as
the ff: ordered by the court.
a. Members of the court staff for f. Within thirty (30) days from receipt,
administrative use; all copies of the tape and any
b. The prosecuting attorney; transcripts thereof shall be returned
c. Defense counsel; to the clerk of court for safekeeping
d. The guardian ad litem; unless the period is extended by the
e. Agents of investigating law court on motion of a party.
enforcement agencies; and g. This protective order shall remain in
f. Other persons as determined by the full force and effect until further
court order of the court. [Sec. 31(b)].
XPN: Upon written request and order of
the court [Sec. 31(a)]. 3. Additional protective orders – The court
may, motu proprio or on motion of any
2. Protective order – Any videotape or party, the child, his parents, legal
audiotape of a child that is part of the guardian, or the guardian ad litem, issue
court record shall be under a protective additional orders to protect the privacy of
order that provides as follows: the child [Sec. 31(c)].
a. Tapes may be viewed only by parties,
their counsel, their expert witness, 4. Publication of identity contemptuous:
and the guardian ad litem; Whoever publishes or causes to be
b. No tape, or any portion thereof, shall published in any format the name,
be divulged by any person address, telephone number, school, or
mentioned in sub-section (a) to any other identifying information of a child
other person, except as necessary for who is or is alleged to be a victim or
the trial; accused of a crime or a witness thereof,
c. No person shall be granted access to or an immediate family of the child shall
the tape, its transcription or any part
359
be liable to the contempt power of the apparently waiting for Maximo Gwapito. They
court. (Sec. 31[d]) dragged him to a nearby warehouse. Thereafter, a
gunshot was heard from the warehouse. Maximo
5. Physical safety of child; exclusion of Gwapito was seen running out of the warehouse
evidence followed by the four malefactors.
GR: A child has a right at any court
proceeding not to testify regarding He fell on the ground near the street corner, Angas
personal identifying information, shot him four or five times. The tragic occurence
including his name, address, telephone was witnessed by the victim's son and wife. It was
number, school, and other information only after 8 years when two of the four culprits
that could endanger his physical safety or were convicted by the trial court. On appeal, they
his family. impugned the testimony of the child that he was
XPN: The court may, however, require the only 7 years old when he witnessed the shooting,
child to testify regarding personal and that he testified eight years later or long after
identifying information in the interest of that extraordinary event. Is the contention
justice [Sec. 31(e)]. tenable?
6. Destruction of videotapes and audiotapes A: No. The court in several cases had given
Videotapes and audiotapes produced credence to the testimony of children who had
under the provisions of this Rule or witnessed the death of their parents. In the case of
otherwise made part of the court record Maximo, Jr., the horrible manner in which his father
shall be destroyed after 5 years have was killed must have been indelibly engraved in his
elapsed from the date of entry of uncluttered memory so much so that the passage
judgment [Sec. 31(f)]. of time could not efface it. When he testified, he
was already fifteen years old and a third year high
7. Records of youthful offender: confidential school student. He was certainly a competent
a. Where he has been charged before witness. (People v. Sabater, G.R. No. L-38169, Feb.
any prosecutor or before any 23, 1978)
municipal judge and the charges
have been ordered dropped, all the F. OFFER AND OBJECTION
records of the case shall be
considered as privileged and may not Q: What evidence shall be considered by the
be disclosed directly or indirectly to court?
anyone for any purpose whatsoever.
b. Where he has been charged and the A:
court acquits him, or dismisses the GR: The court shall consider only the evidence
case or commits him to an institution which has been formally offered. The purpose
and subsequently releases him, all for which the evidence is offered must be
the records of his case shall also be specified (Sec. 34).
considered as privileged and may not
be disclosed except: XPN:
i. To determine if a defendant 1. Marked exhibits not formally offered may
may have his sentence be admitted provided it complies with the
suspended under Art. 192 of following requisites:
P.D. 603 or if he may be granted a. must be duly identified by testimony
probation under the provisions duly recorded; and
of P.D. 968; or b. must have been incorporated in the
ii. To enforce his civil liability, if records of the case (Ramos v. Dizon,
said liability has been imposed G.R. No. 137247, Aug. 6, 2006);
in the criminal action [Sec. 2. Under the Rule on Summary Procedure,
31(g)]. where no full blown trial is held in the
interest of speedy administration of
Q: Maximo Gwapito, a 25-year old jeepney driver, justice;
and his 7-year old son, Maximo Gwapito, Jr., 3. In summary judgments under Rule 35
stepped out of their house in order to buy food. where the judge based his decisions on
Upon reaching the street, father and son the pleadings, depositions, admissions,
encountered Richard Sputnik, Ron Sputnik, Jeric affidavits and documents filed with the
Angas and Mark Bayawak. The four were court;

EVIDENCE
4. Documents whose contents are taken A:

judicial notice of by the court;
5. Documents whose contents are judicially
admitted; or
6. Object evidence which could not be
formally offered because they have
disappeared or have become lost after
they have been marked, identified and
testified on and described in the record
and became the subject of cross-
examination of the witness who testified
on them during the trial.
1. OFFER OF EVIDENCE
Q: What are the rationales in stating the purpose

for which the evidence is being offered?
A:
1. For the court to determine whether that
piece of evidence should be admitted or
not;
2. Evidence submitted for one purpose may
not be considered for any other purpose;
and
3. For the adverse party to interpose the
proper objection.
Q: Noelle filed a complaint for recovery of

possession and damages against Kristina. In the
course of the trial, Noelle marked his evidence but
his counsel failed to file a formal offer of evidence.
Kristina then presented in evidence tax
declarations in the name of his father to establish
that his father is a co-owner of the property. The
court ruled in favor of Kristina, saying that Noelle
failed to prove sole ownership of the property in
the face of Kristina’s evidence. Was the court
correct? Explain briefly.
2. WHEN TO MAKE AN OFFER
A: Yes. The court shall consider no evidence which
has not been formally offered. The trial court
Q: How and when should a party make the offer of
rendered judgment considering only the evidence
evidence?
offered by Kristina. The offer is necessary because it
is the duty of the judge to rest his findings of fact
A:
and his judgment only and strictly upon the
Documentary and
evidence offered by the parties at the trial (People Testimonial Evidence
Object Evidence
v. Pecardal, G.R. No. 71381, Nov. 24, 1986). (2007
Must be made after the
Bar Question) Offer must be made at the presentation of party’s
time the witness is called testimonial evidence,
Q: What are the stages in the presentation of to testify. and before resting his
documentary evidence? case.
Every time a question is The evidence is only
propounded to a witness, offered once, after all
there is an implied offer of the testimonial evidence
the evidence sought to be and prior to the resting
elicited by the question. of the case for a party.
Note: The offer shall be done orally unless allowed by

the court to be in writing.
361
3. OBJECTION 2. Incompetent – The evidence is excluded

by law or rules (Sec. 3, Rule 138) (e.g.
Q: What are the purposes of objections? evidence obtained in violation of the
Constitutional prohibition against
A: unreasonable searches and seizures).
1. To keep out inadmissible evidence that
would cause harm to a client’s cause; Alternative Answers:
2. To protect the record, i.e. to present the 1. Specific objections – e.g. parole evidence
issue of inadmissibility of the offered and best evidence rule
evidence in a way that if the trial court General objections – e.g. continuing
rules erroneously, the error can be relied objections (Sec. 37).
upon as a ground for a future appeal; 2. a. objection to a question propounded in
3. To protect a witness from being the course of the oral examination of the
embarrassed by the adverse counsel; witness; and
4. To expose the adversary’s unfair tactics b. objection to an offer of evidence in
like his consistently asking obviously writing. (1997 Bar Question)
leading questions; and
5. To give the trial court an opportunity to 4. REPETITION OF AN OBJECTION
correct its own errors and at the same
time warn the court that a ruling adverse Q: What is the rule on continuing objections?
to the objector may supply a reason to
invoke a higher court’s appellate A:
jurisdiction. (Riano, Evidence: A GR: When it becomes reasonably apparent in
Restatement for the Bar, p. 462, 2009 ed.) the course of the examination that the
questions asked are of the same class as those
Q: When should an objection be made? to which objection has been made (whether
sustained or overruled), it shall not be necessary
A: Objection to evidence offered orally must be to repeat the objection, it being sufficient for
made immediately after the offer is made. the adverse party to record his continuing
Objection to a question propounded in the course objection to such class of questions (Sec. 37).
of the oral examination of a witness shall be made
as soon as the grounds therefore shall become XPNs:
reasonably apparent. An offer of evidence in 1. Where the question has not been
writing shall be objected to within 3 days after answered, it is necessary to repeat the
notice of the offer unless a different period is objection when the evidence is again
allowed by the court. In any case, the grounds for offered or the question is again asked;
objection must be specified (Sec. 36). 2. Incompetency is shown later;
3. Where objection refers to preliminary
Q: What is the difference between a "broadside" question, objection must be repeated
objection and a specific objection to the admission when the same question is again asked
of documentary evidence? during the introduction of actual
evidence;
A: A broadside objection is a general objection such 4. Objection to evidence was sustained but
as incompetent, irrelevant and immaterial and does reoffered at a later stage of the trial;
not specify any ground; while a specific objection is 5. Evidence is admitted on condition that its
limited to a particular ground. (1994 Bar Question) competency or relevance be shown by
further evidence and the condition is not
Q: What are the two kinds of objections? Give an fulfilled, the objection formerly
example of each. interposed must be repeated or a motion
to strike out the evidence must be made;
A: and
1. Irrelevant – The evidence being presented 6. Where the court reserves the ruling on
is not relevant to the issue (e.g. when the objection, the objecting party must
prosecution offers as evidence the alleged request a ruling or repeat the objection.
offer of an insurance company to pay for
the damages suffered by the victim in a
homicide case); and

EVIDENCE
5. RULING the offering party. (Riano, Evidence: A Restatement

for the Bar, p. 471, 2009 ed.)
Q: When should the court make its ruling on the
objection? Q: May a direct testimony given and allowed
without a prior formal offer be expunged from the
A: It must be given immediately after the objection record?
is made, unless the court desires to take a
reasonable time to inform itself on the question A: No. When such testimony is allowed without any
presented; but the ruling shall always be made objection from the adverse party, the latter is
during the trial and at such time as will give the estopped from questioning the non-compliance
party against whom it is made an opportunity to with the requirement.
meet the situation presented by the ruling (Sec. 38).
Q: What is the remedy if a court improperly
6. STRIKING OUT OF AN ANSWER excludes an otherwise admissible evidence?
Q: What are the modes of excluding inadmissible A: The party’s remedy is to tender the excluded
evidence? evidence by:
1. Testimonial evidence – State for the
A: record the name and other personal
1. Objection – when the evidence is offered. circumstances of the witness and the
2. Motion to strike out or expunge: nature and substance of the proposed
a. When the witness answers prematurely testimony.
before there is reasonable opportunity 2. Object/documentary evidence – Attach to
for the adverse party to object, and or make it a part of the record (Sec. 40).
such objection is found to be
meritorious; 7. TENDER OF EXCLUDED EVIDENCE
b. When the answers are incompetent,
irrelevant, or improper (Sec. 39); Q: What is tender of excluded evidence or offer of
c. When the witness becomes unavailable proof?
for cross-examination through no fault
of the cross-examining party; A: When an attorney is not allowed by the court to
d. When the answer is unresponsive; present testimony which he thinks is competent,
e. When the testimony was allowed material and necessary to prove his case, he must
conditionally and the condition for its make an offer of proof. This is the method properly
admissibility was not fulfilled (Riano, preserving the record to the end that the question
Evidence: A Restatement for the Bar, p. may be saved for purposes of review. (Caraig,
467, 2009 ed.); Revised Rules of Evidence 2004 ed., p. 337)
f. When a witness has volunteered
statements in such a way that the party Q: How is tender of excluded evidence made?
has not been able to object thereto;
g. When a witness testifies without a A:
question being addressed to him; or 1. As to documentary or object evidence: It
h. When a witness testifies beyond the may have the same attached to or made
ruling of the court prescribing the limits part of the record.
within which he may answer. 2. As to oral evidence: It may state for the
record the name and other personal
Q: May objections be waived? circumstances of the witness and the
substance of the proposed testimony.
A: Yes, because the right to object is merely a
privilege which the party may waive. (People v. Q: What are the purposes of tender of excluded
Martin, G.R. No. 172069, Jan. 30, 2008) evidence?
Q: What is the extent of the waiver for failure to A:

object? 1. To allow the court to know the nature of
the testimony or the documentary
A: It only extends to the admissibility of the evidence and convince the trial judge to
evidence. It does not involve an admission that the permit the evidence or testimony; and
evidence possesses the weight attributed to it by
363
2. To create and preserve a record for Q: Distinguish English Exchequer rule from
appeal. (Riano, Evidence: A Restatement harmless error rule.
for the Bar, p. 477, 2009 ed.)
A:
Q: Distinguish offer of proof from offer of ENGLISH EXCHEQUER
HARMLESS ERROR RULE
evidence. RULE
It provides that a trial
The appellate court will
A: court's error as to the
disregard an error in the
OFFER OF admission of evidence
admission of evidence
PROOF/TENDER OF OFFER OF EVIDENCE was presumed to have
unless in its opinion, some
EXCLUDED EVIDENCE caused prejudice and
substantial wrong or
Refers to testimonial, therefore, almost
miscarriage of justice has
documentary or object automatically required
Only resorted to if been occasioned.
evidence that are presented new trial.
admission is refused by
or offered in court by a
the court for purposes Note: We follow the harmless error rule, for in dealing
party so that the court can
of with evidence improperly admitted in the trial, courts
consider his evidence when
review on appeal examine its damaging quality and its impact to the
it comes to the preparation
of the decision substantive rights of the litigant. If the impact is slight
and insignificant, appellate courts disregard the error
Q: How is an offer of evidence made? as it will not overcome the weight of the properly
admitted evidence against the prejudiced part (People
A: v. Garcia, G.R. No. 105805, Aug. 16, 1994).
1. Before the court has ruled on the
objection, in which case its function is to G. SUPREME COURT RULINGS AS OF DECEMBER
persuade the court to overrule the 2010
objection or deny the privilege invoked;
EMMA K. LEE v. COURT OF APPEALS and RITA K. LEE, et
2. After the court has sustained the
al. G.R. No. 177861, July 13, 2010 (ABAD, J.)
objection, in which case its function is to
preserve for the appeal the evidence Spouses Lee Tek Sheng (Lee) and Keh Shiok Cheng (Keh)
excluded by the privilege invoked; entered the Philippines as immigrants and they had
3. Where the offer of proof includes the 11children (respondents herein). Subsequently, a woman
introduction of documents, or any of the named Tiu Chuan (Tiu) served as the housemaid and upon
physical evidence, the same should be Keh’s death, the respondent children found out that the
marked for identification so that they may Tiu children claims that they are also Lee and Keh’s
children. Respondent children then filed before the RTC a
become part of the record. (Herrera, Vol.
special proceeding for the deletion from the certificate of
VI, p. 344) live birth of Emma Lee, one of Lee’s other children, the
name Keh and replace the same with the name Tiu to
Q: When is offer or proof not required? indicate her true mother’s name. Respondent children
then filed an ex parte request for the issuance of a
A: subpoena ad testificandum to compel Tiu, Emma Lee’s
1. When the question to which an objection presumed mother, to testify in the case. The RTC granted
has been sustained clearly reveals on its the motion but Tiu moved to quash the subpoena,
claiming that it was oppressive and violated Section 25,
face the substance, purpose and
Rule 130 of the Rules of Court, the rule on parental
relevancy of the excluded evidence; privilege, she being Emma Lee’s stepmother. The RTC
2. When the substance, purpose and quashed the subpoena it issued for being unreasonable
relevancy of the excluded evidence were and oppressive considering that Tiu was already very old
made known to the court either in the and that the obvious object of the subpoena was to
court proceedings and such parts appears badger her into admitting that she was Emma Lee’s
on record; mother.
3. Where evidence is inadmissible when
ISSUE: Can Tiu, as the stepmother, be compelled to testify
offered and excluded, but thereafter
in said proceeding? (Yes)
becomes, it must, be re-offered, unless
the court indicates that a second offer HELD: As the CA correctly ruled, the grounds cited—
would be useless. (Herrera, Vol. VI, p. unreasonable and oppressive—are proper for subpoena
344-345) ad duces tecum or for the production of documents and
things in the possession of the witness, a command that
has a tendency to infringe on the right against invasion of

EVIDENCE
privacy. Section 4, Rule 21 of the Rules of Civil Procedure, HELD:

thus provides: The parol evidence rule, embodied in Section 9, Rule 130
SECTION 4. Quashing a subpoena. — The court may of the Rules of Court holds that when the terms of an
quash a subpoena duces tecum upon motion promptly agreement have been reduced into writing, it is
made and, in any event, at or before the time specified considered as containing all the terms agreed upon and
therein if it is unreasonable and oppressive, or the there can be, between the parties and their successors in
relevancy of the books, documents or things does not interest, no evidence of such terms other than the
appear, or if the person in whose behalf the subpoena contents of the written agreement. It, however, admits of
is issued fails to advance the reasonable cost of the exceptions such as when the parties subsequently modify
production thereof. the terms of their original agreement Nevertheless,
respondent contends that when Bennett signed the
Taking in mind the ultimate purpose of respondent August 12, 1997 progress report, petitioner approved the
children’s action, obviously, they would want Tiu to testify additional cost estimates, in effect modifying the original
or admit that she is the mother of Lee’s other children, agreement in the subcontract. Respondent therefore
including petitioner Emma Lee. Keh had died and so could claims an exception to the parole evidence rule. In
not give testimony that Lee’s other children were not contracts for a stipulated price like fixed lump-sum
hers. The respondent children have, therefore, a contracts, the recovery of additional costs is governed by
legitimate reason for seeking Tiu’s testimony and, Article 1724 of the Civil Code. Settled is the rule that a
normally, the RTC cannot deprive them of their right to claim for the cost of additional work arising from changes
compel the attendance of such a material witness. in the scope of work can only be allowed upon the:
SECTION 25. Parental and filial privilege.- No person (1) Written authority from the developer or project
may be compelled to testify against his parents, other owner ordering or allowing the written changes in work
direct ascendants, children or other direct descendants. and
(2) Written agreement of parties with regard to the
The above is an adaptation from a similar provision in increase in price or cost due to the change in work or
Article 315 of the Civil Code that applies only in criminal design modification.
cases. But those who revised the Rules of Civil Procedure
chose to extend the prohibition to all kinds of actions, Furthermore, compliance with the two requisites of
whether civil, criminal, or administrative, filed against Article 1724, a specific provision governing additional
parents and other direct ascendants or descendants. But works, is a condition precedent for the recovery. The
here Tiu, who invokes the filial privilege, claims that she is absence of one or the other condition bars the recovery of
the stepmother of petitioner Emma Lee. The privilege additional costs. Neither the authority for the changes
cannot apply to them because the rule applies only to made nor the additional price to be paid therefor may be
"direct" ascendants and descendants, a family tie proved by any other evidence.
connected by a common ancestry. A stepdaughter has no
common ancestry by her stepmother. Article 965 thus OFFICE OF THE OMBUDSMAN (VISAYAS) v. RODOLFO
provides: ZALDARRIAGA G.R. No. 175349, June 22, 2010 (PERALTA,
Art. 965. The direct line is either descending or J.)
ascending. The former unites the head of the family
with those who descend from him. The latter binds a Respondent Rodolfo Zaldarriaga was the Municipal
person with those from whom he descends. Treasurer of the Municipality of Lemery, Iloilo. Upon audit
of Zaldarriaga’s cash and accounts, it was discovered that
Consequently, Tiu can be compelled to testify against he had a deficiency which he failed to restitute despite
petitioner Emma Lee. notice. Instead, Zaldarriaga sent letters to State Auditor
Garachico requesting for a bill of particulars on his alleged
LEIGHTON CONTRACTORS PHILIPPINES, INC. v. CNP accountability. The COA, however, failed to clarify the
INDUSTRIES INC. G.R. No. 160972, March 9, 2010 basis of the shortage and filed a complaint against him.
(CORONA, J.) When the Office of the Provincial Treasurer conducted its
own investigation as to the shortage, it was found out that
Respondent CNP Industries, Inc. is the subcontractor of there really is no shortage. The COA then conducted a
petitioner Leighton Contractors Philippines, Inc. in a second audit and concluded that there is no shortage.
construction project. The subcontract was based on a Zaldarriage then moved for the dismissal of the complaint
Fixed Lump Sum of P44,223,909. However, due to some against him, however, the Office of the Ombudsman
revisions made by CNP in its designs, it incurred an rendered a decision dismissing him from service. Said
additional amount of P13,442,882 which was not re- decision was reversed on appeal, hence, the present case.
negotiated with Leighton. CNP now claims for the
payment of the additional expenses, contending that it HELD: Basic is the rule that, in administrative cases, the
was not part of the sub-contract price. Leighton however quantum of evidence necessary to find an individual
refused the same, reiterating that the sub-contract is for a administratively liable is substantial evidence. Section 5,
fixed lump sum price. The Construction Industry Rule 133 of the Rules of Court is explicit, to wit:
Arbitration Commission (CIAC) ruled in favor of CNP. This Sec. 5. Substantial evidence. – In cases filed before
decision was affirmed by the CA. Hence this petition. administrative or quasi-judicial bodies, a fact may be
deemed established if it is supported by substantial
ISSUE: Is Leighton liable to pay the additional cost based evidence, or that amount of relevant evidence which a
on the parol evidence presented by CNP? (NO) reasonable mind might accept as adequate to justify a
conclusion.
365
However, a party may present evidence to

Substantial evidence does not necessarily mean modify, explain or add to the terms of the written
preponderant proof as required in ordinary civil cases, but agreement if he puts in issue in his pleading:
such kind of relevant evidence as a reasonable mind might (a) An intrinsic ambiguity, mistake or
accept as adequate to support a conclusion or evidence imperfection in the written agreement;
commonly accepted by reasonably prudent men in the (b) The failure of the written agreement to
conduct of their affairs. In the present case, the evidence express the true intent and agreement of the parties
upon which respondent’s administrative liability would be thereto;
anchored lacked that degree of certainty required in (c) The validity of the written agreement; or
administrative cases, because the entries found in the two (d) The existence of other terms agreed to by
separate audit conducted by the COA yielded conflicting the parties or their successors-in-interest after the
results. Evidence of shortage is imperative in order for the execution of the written agreement.
respondent to be held liable. In the case at bar, the The term “agreement” includes wills.
evidence could not be relied upon. The second audit
report necessarily puts into question the reliability of the Rudlin cannot invoke the exception under (a) or (b) of the
initial audit findings. Whether the zero balance as above provision. Such exception obtains only where “the
appearing in the second audit report was correct or written contract is so ambiguous or obscure in terms that
inadvertently indicated, the credibility and accuracy of the the contractual intention of the parties cannot be
two audit reports were already tarnished. understood from a mere reading of the instrument. Under
the fourth exception, however, Rudlin’s evidence is
FINANCIAL BUILDING CORPORATION v. RUDLIN admissible to show the existence of such other terms
INTERNATIONAL CORPORATION G.R. No. 164186 & agreed to by the parties after the execution of the
164347, October 4, 2010 (VILLARAMA, JR., J.) contract. But apart from the Bar Chart and Cash Flow
Chart prepared by FBC, and the testimony of Rodolfo J.
Rudlin International Corporation (Rudlin) invited Lagera, no competent evidence was adduced by Rudlin to
proposals from several contractors to undertake the prove that the amount stated in the contract was the
construction of a three-storey school building and actual decreased amount that FBC and Rudlin found
other appurtenances and the contract was eventually mutually acceptable. As to the affidavits executed by
awarded to Financial Building Corporation (FBC). The Architect Quezon and his associate Roberto R. Antonio,
project was completed, however, the balance of the the same do not serve as competent proof of the
adjusted contract price was not paid. FBC instituted a purported actual contract price as they did not testify
complaint against Rudlin and while the RTC dismissed thereon. Likewise, there is nothing in the various letters
said complaint, the CA held that FBC did not sent by Rudlin to FBC while construction was in progress
substantiate its claim against Rudlin. and even subsequent to the execution of the said Letter-
Agreement indicating that Rudlin corrected the contract
ISSUE: Is evidence of a prior or contemporaneous price which FBC had repeatedly mentioned in its letters
verbal agreement admissible to vary, contradict or and documents.
defeat the operation of a valid contract? (No)
THE HEIRS OF ROMANA SAVES, et al. v. HEIRS OF
HELD:On the issue of the correct total contract price, ECOLASTICO SAVES, et al. G.R. No. 152866, October 6,
we hold that Rudlin failed to substantiate its claim 2010 (LEONARDO-DE CASTRO, J.)
that the contract price stated in the Construction
Agreement was not the true contract price because it Several persons filed their respective claims before the
had an understanding with FBC’s Jaime B. Lo that they Court of First for the titling of the respective lots they
would decrease said amount to a mutually acceptable occupy, among them were Escolastico Saves and Romana
amount. Rudlin argues that under Section 9, Rule 130, Saves. A Decision was rendered by the court, adjudicating
a party may present evidence to modify, explain or several parcels of land to different claimants.
add to the terms of the written agreement if it is put Subsequently, the heirs of Escolastico and Romana sold
in issue in the pleading. Assuming as true Rudlin’s said property to Gaudencia Valencia. A case for
claim that the contract failed to accurately reflect an Reconveyance, Partition, and Damages was filed before
intent of the parties to fix the total contract price, the RTC on the ground that Valencia fraudulently acquired
Rudlin failed to avail of its right to seek the the properties. RTC declared the sale null and void while
reformation of the instrument to the end that such the CA reversed said decision.
true intention may be expressed. Evidence of a prior
or contemporaneous verbal agreement is generally ISSUE: Can the CA consider evidence not formally offered
not admissible to vary, contradict or defeat the before the trial court?
operation of a valid contract. Section 9 of Rule 130 of
the Rules of Court states: HELD:A formal offer is necessary because judges are
SEC. 9. Evidence of written agreements.—When the mandated to rest their findings of facts and their
terms of an agreement have been reduced to judgment only and strictly upon the evidence offered by
writing, it is considered as containing all the terms the parties at the trial. Its function is to enable the trial
agreed upon and there can be, between the parties judge to know the purpose or purposes for which the
and their successors-in-interest, no evidence of such proponent is presenting the evidence. On the other hand,
terms other than the contents of the written this allows opposing parties to examine the evidence and
agreement. object to its admissibility. Moreover, it facilitates review
as the appellate court will not be required to review

EVIDENCE
documents not previously scrutinized by the trial court. documents cannot be admitted in evidence by the court
However, in People v. Napat-a, citing People v. Mate, we as the original copies were neither offered nor presented
relaxed the foregoing rule and allowed evidence not for comparison and verification during the trial. Mere
formally offered to be admitted and considered by the identification of the documents and the markings thereof
trial court provided the following requirements are as exhibits do not confer any evidentiary weight on them
present, viz: first, the same must have been duly identified as said documents have not been formally offered by
by testimony duly recorded and, second, the same must petitioner and have been denied admission in evidence by
have been incorporated in the records of the case.With the CTA. Neither could it be said that petitioner’s SEC
regard to a document entitled “Motion for the Issuance of Registration and operating permits from the CAB are
Transfer Certificate of Title” filed by Valencia in the same documents which are of public knowledge, capable of
trial court that led to the issuance of his Title, the records unquestionable demonstration, or ought to be known to
would show that it is the same document that the heirs’ the judges because of their judicial functions, in order to
witness Fruto Rosario identified in his testimony and allow the CTA to take discretionary judicial notice of the
marked as Exhibit “I”. That only the heirs were able to said documents.
formally offer the said motion as Exhibit “I” most certainly
does not mean that it can only be considered by the HEIRS OF JOSE LIM v. JULIET VILLA LIM G.R. No. 172690,
courts for the evidentiary purpose. It is well within the March 3, 2010 (NACHURA, J.)
discretion of the courts to determine whether an exhibit
indeed serves the probative purpose for which it is The heirs of the late Jose Lim filed a Complaint for
offered. It is likewise worth emphasizing that under the Partition, Accounting and Damages against Juliet Villa Lim
Revised Rules on Evidence, an admission, verbal or (Juliet), widow of the late Elfredo Lim (Elfredo), alleging
written, made by a party in the course of the proceedings that their predecessor formed a partnership with his
in the same case, does not require proof – such admission friends Jimmy Yu (Jimmy) and Norberto Uy (Norberto) to
may be contradicted only by showing that it is made engage in a trucking business. That the partners
through palpable mistake or that no such admission was purchased a truck to be used in the hauling and
made. transporting of lumber and that Jose managed the
operations of this trucking business until his death. The
SILKAIR (SINGAPORE) PTE., LTD. v. COMMISSIONER OF business was continued and the shares in the partnership
INTERNAL REVENUE G.R. No. 184398, February 25, 2010 profits and income that formed part of the estate of Jose
(LEONARDO-DE CASTRO, J.) were held in trust by one of the Elfredo, with the other
heirs’ authority for Elfledo to use, purchase or acquire
Silkair Singapore Pte., Ltd. (corporation) applied for a properties using said funds. The heirs contend that Elfredo
refund of excise taxes erroneously paid by it on its served as a driver in the business but was never an
purchase of aviation jet fuel from Petron. Since no action investor or a partner of the business. When the
was taken by the CIR, the corporation filed a petition for partnership ceased operations, nine trucks were
review before the CTA which held that its purchase is registered under Elfredo’s name. The heirs further claims
exempt from excise tax. The CTA, however, held that the that it was through the profits derived from the
corporation is not entitled to a refund for the partnership that Elfredo was able to acquire real
corporation’s failure to present proof that it was properties and 5 motor vehicles. When Elfredo passed
authorized to do business in the Philippines due to the away, the heirs claimed that they are co-owners of the
non-admission of some of its exhibits for being mere properties, hence, the present case. Juliet claims that
photocopies of original documents. Elfredo was a partner per testimony of Cresencia (Jose’s
wife), Elfredo contributed to the capital of the
ISSUE: Was Silkair able to prove its authority to do partnership, hence, an informal partnership was formed.
business in the Philippines? (No) That Other than the trucking business, Elfledo, together
with respondent, engaged in other business ventures.
HELD:Petitioner’s assertion that the CTA may take judicial Thus, they were able to buy real properties and to put up
notice of its SEC Registration, previously offered and their own car assembly and repair business. Juliet further
admitted in evidence in similar cases before the CTA, is stated that when Jose died, he left no properties that
untenable. Evidence already presented and admitted by Elfredo could have held in trust. The heirs argue that
the court in a previous case cannot be adopted in a according to the testimony of Jimmy, the sole surviving
separate case pending before the same court without the partner, Elfledo was not a partner; and that he and
same being offered and identified anew. A court is not Norberto entered into a partnership with Jose. Thus, the
compelled to take judicial notice of pieces of evidence CA erred in not giving that testimony greater weight than
offered and admitted in a previous case unless the same that of Cresencia, who was merely the spouse of Jose and
are properly offered or have accordingly complied with not a party to the partnership.
the requirements on the rules of evidence. It is an
elementary rule in law that documents shall not be ISSUE:Can the testimony of one of the heirs be given
admissible in evidence unless and until the original copies greater weight than that by a former partner on the issue
itself are offered or presented for verification in cases of the identity of the other partners in the partnership?
where mere copies are offered, save for the exceptions (No)
provided for by law. Silkair thus cannot hide behind the
veil of judicial notice so as to evade its responsibility of HELD: Undoubtedly, the best evidence would have been
properly complying with the rules of evidence. For its the contract of partnership or the articles of partnership.
failure to compare the subject documents with its Unfortunately, there is none in this case, because the
originals, the same may not be admitted. Evidently, said alleged partnership was never formally organized.
367
Nonetheless, we are asked to determine who between of evidence that between documentary and oral evidence,
Jose and Elfledo was the “partner” in the trucking the former carries more weight.
business. A careful review of the records persuades us to
affirm the CA decision. The evidence presented by the PEOPLE OF THE PHILIPPINES v. ALBERT SANCHEZ y
heirs falls short of the quantum of proof required to GALERA G.R. No. 188610, June 29, 2010 (VELASCO, JR., J.)
establish that: (1) Jose was the partner and not Elfledo;
and (2) all the properties acquired by Elfledo and Albert Sanchez y Galera stealthily entered the residence of
respondent form part of the estate of Jose, having been the De Leon family where he stabbed and succeeded in
derived from the alleged partnership. The heirs heavily killing some of the family members. The records
rely on Jimmy's testimony. But that testimony is just one established that when the mother discovered that her son
piece of evidence against Juliet. In civil cases, the party was bathed in blood the son uttered that, "Mama, si Kuya
having the burden of proof must establish his case by a Albert sinaksak ako". The RTC convicted Sanchez of two
preponderance of evidence. "Preponderance of evidence" counts of murder and two counts of frustrated murder.
is the weight, credit, and value of the aggregate evidence
on either side and is usually considered synonymous with ISSUE:Is the son’s final words to his mother admissible as
the term "greater weight of the evidence" or "greater evidence?
weight of the credible evidence." "Preponderance of
evidence" is a phrase that, in the last analysis, means HELD: What Jufer uttered just before he expired - "Mama,
probability of the truth. It is evidence that is more si Kuya Albert, sinaksak ako"- is admissible in evidence
convincing to the court as worthy of belief than that which against the appellant pursuant to Section 37, Rule 130 of
is offered in opposition thereto. Rule 133, Section 1 of the the Rules of Court.
Rules of Court provides the guidelines in determining Sec. 37. Dying declaration. — The declaration of a dying
preponderance of evidence, thus: person, made under the consciousness of an impending
SECTION I. Preponderance of evidence, how death, may be received in any case wherein his death is
determined. In civil cases, the party having burden of the subject of inquiry, as evidence of the cause and
proof must establish his case by a preponderance of surrounding circumstances of such death.
evidence. In determining where the preponderance or
superior weight of evidence on the issues involved lies, A dying declaration is an evidence of the highest order; it
the court may consider all the facts and circumstances is entitled to the utmost credence on the premise that no
of the case, the witnesses' manner of testifying, their one person who knows of his impending death would
intelligence, their means and opportunity of knowing make a careless and false accusation. At the brink of
the facts to which they are testifying, the nature of the death, all thoughts of concocting lies disappear.
facts to which they testify, the probability or
improbability of their testimony, their interest or want SPOUSES MANUEL and VICTORIA SALIMBANGON v.
of interest, and also their personal credibility so far as SPOUSES SANTOS AND ERLINDA TAN G.R. No. 185240,
the same may legitimately appear upon the trial. The January 20, 2010 (ABAD, J.)
court may also consider the number of witnesses,
though the preponderance is not necessarily with the Guillermo Ceniza died intestate and his children, including
greater number. herein petitioner Victoria Salimbangon, executed an
extrajudicial declaration of heirs and partition,
Applying the legal provision to the facts of this case, the adjudicating and dividing the land among themselves. To
following circumstances tend to prove that Elfledo was give the interior lots access to the street, the heirs
himself the partner of Jimmy and Norberto: 1) Cresencia annotated an easement of right of way consisting of a 3-
testified that Jose gave Elfledo money, as share in the meter wide alley across the property. But, realizing that
partnership, on a date that coincided with the payment of the partition resulted in an unequal division of the
the initial capital in the partnership; (2) Elfledo ran the property, the heirs modified their agreement by
affairs of the partnership, wielding absolute control, eliminating the easement of right of way and in its place,
power and authority, without any intervention or imposed a 3-meter wide alley, an easement of right of
opposition whatsoever from any of the heirs; (3) all of the way, that ran exclusively along the southwest boundary of
properties, particularly the nine trucks of the partnership, the property. Victoria and her husband constructed a
were registered in the name of Elfledo; (4) Jimmy testified residential house on this lot and built two garages on it.
that Elfledo did not receive wages or salaries from the One garage abutted the street while the other used the
partnership, indicating that what he actually received alley or easement of right of way which was cemented
were shares of the profits of the business; and (5) none of and gated by Victoria. The remaining lots were brought by
the heirs, the alleged partner, demanded periodic Spouses Santos and Erlinda Tan who also built
accounting from Elfledo during his lifetime. As repeatedly improvements on the easement and closed the gate that
stressed in Heirs of Tan Eng Kee v. CA, a demand for Victoria built. Unable to use the old right of way, the
periodic accounting is evidence of a partnership. Victoria lodged a complaint with the City Engineer against
Furthermore, the heirs failed to adduce any evidence to the Tans. On the other hand, the Tans filed an action with
show that the real and personal properties acquired and the RTC against Victoria for the extinguishment of the
registered in the names of Elfledo and Juliet formed part easement with preliminary injunction. RTC upheld
of the estate of Jose, having been derived from Jose's Victoria’s easement of right of way over the property
alleged partnership with Jimmy and Norberto. They failed belong to the Tans. The CA reversed said ruling and
to refute Juliet's claim that Elfledo and Juliet were extinguished the easement based on the testimony of one
engaged in other businesses. Thus, we apply the basic rule of the previous owners, Eduardo Ceniza, the true intent of

EVIDENCE
the parties was to establish that easement of right of way In 1991, Estrellita Vizconde and her daughters Carmela,
for the benefit of the interior lots. nineteen years old, and Jennifer, seven, were brutally slain
at their home in Parañaque City. Four years later, the NBI
ISSUE:Can parole evidence be admitted in an action for announced that it had solved the crime. It presented star-
extinguishment of easement of right of way? witness Jessica M. Alfaro, one of its informers, who
claimed that she witnesses the crime. She pointed to the
HELD:The parole evidence rule, said the Victoria, accused Hubert Jeffrey P. Webb, Antonio “Tony Boy”
precluded the parties from introducing testimony that Lejano, Artemio “Dong” Ventura, Michael A. Gatchalian,
tended to alter or modify what the parties had agreed on Hospicio “Pyke” Fernandez, Peter Estrada, Miguel “Ging”
above. But the exclusionary provision of the parole Rodriguez, and Joey Filart as the culprits. She also tagged
evidence rule admits of exceptions. Section 9, Rule 130 of accused police officer, Gerardo Biong, as an accessory
the Revised Rules on Evidence states: after the fact. Relying primarily on Alfaro’s testimony, on
Sec. 9. Evidence of written agreements. - When the August 10, 1995, the public prosecutors filed information
terms of an agreement have been reduced to writing, for rape with homicide against Webb, et al.
it is considered as containing all the terms agreed upon
and there can be, between the parties and their The RTC of Parañaque presided over by Judge Amelita G.
successors in interest, no evidence of such terms other Tolentino tried only seven of the accused since Artemio
than the contents of the written agreement. However, Ventura and Joey Filart remained at large. The
a party may present evidence to modify, explain or add prosecution presented Alfaro as its main witness with the
to the terms of the written agreement if he puts in others corroborating her testimony. These included the
issue in his pleading: medico-legal officer who autopsied the bodies of the
(a) An intrinsic ambiguity, mistake or imperfection victims, the security guards of Pitong Daan Subdivision,
in the written agreement; the former laundrywoman of Webb’s household, police
(b) The failure of the written agreement to officer Biong’s former girlfriend, and Lauro G. Vizconde,
express the true intent and agreement of the parties Estrellita’s husband.
thereto;
(c) The validity of the written agreement; or For their part, some of the accused testified, denying any
(d) The existence of other terms agreed to by the part in the crime and saying they were elsewhere when it
parties or their successors in interest after the took place. Webb’s alibi appeared the strongest since he
execution of the written agreement. claimed that he was then in the United States of America.
He presented the testimonies of witnesses as well as
The term “agreement” includes wills. Here, the Tans had documentary and object evidence to prove this. In
put in issue the true intent and agreement of the parties addition, the defense presented witnesses to show
to the partition when they alleged that the easement was Alfaro’s bad reputation for truth and the incredible nature
actually for both Victoria and Eduardo Ceniza’s benefit. of her testimony.
Consequently, with the above averment, the Tans were
entitled to introduce evidence to establish the true intent The trial court found a credible witness in Alfaro. It noted
and agreement of the parties although this may depart her categorical straightforward, spontaneous and frank
from what the partition agreement literally provided. At testimony, undamaged by grueling cross-examinations.
any rate, as the CA said, the Victoria did not object at the
hearing to admission of Eduardo Ceniza’s testimony even The RTC rendered judgment, finding all the accused guilty
when this seemed at variance, as far as they were as charged and imposing on Webb, Lejano, Gatchalian,
concerned, with the partition agreement among the heirs. Fernandez, Estrada and Rodriguez the penalty of reclusion
Consequently, the Victoria may also be deemed to have perpetua and on Biong, an indeterminate prison term of
waived their right to now question such testimony on eleven years, four months and one day to twelve years.
appeal. The point is that, obviously, in establishing the On appeal, the Court of Appeals affirmed RTC’s decision.
new easement of right of way, the heirs intended to
abandon the old one. And, with the ownership of the In 2010, as a result of its initial deliberation in this case,
property now consolidated in a common owner, namely, the Court issued a Resolution granting the request of
the Tans, then the easement of right of way may be said Webb to submit for DNA Analysis the semen specimen
to have been extinguished by operation of law. taken from Carmela’s cadaver, which specimen was then
believed still under the safekeeping of NBI.
ANTONIO LEJANO v. PEOPE OF THE PHILIPPINES G.R. No.
176389, 14 December 2010 (Abad, J.) Unfortunately, the NBI informed the Court that it no
longer has custody of the specimen, the same having been
Alfaro was the NBI’s star witness, their badge of excellent turned over to the trial court. The trial court record
investigative work. After claiming that they had solved the shows, however, that the specimen was not among the
crime of the decade, the NBI people had a stake in making object evidence that the prosecution offered in evidence
her sound credible, and obviously, they gave her all the in the case. This outcome prompted the accused Webb to
preparations she needed for the job of becoming a fairly file an urgent motion to acquit on the ground that the
good substitute witness. She was their “darling” of an government’s failure to preserve such vital evidence has
asset. And this is not pure speculation. As pointed out resulted in the denial of his right to due process.
above, Sacaguing of the NBI, a lawyer and a ranking
official confirmed this to be a cold fact. Why the trial court ISSUES:
and Court of Appeals failed to see this is mystifying. 1. Whether or not Alfaro’s testimony as
eyewitness is entitled to belief
369
2. Whether or not Webb’s pieces of evidence are Gatchalian, Fernandez, Estrada, and Rodriguez supposedly
proven sufficient enough to rebut Alfaro’s stayed around Alfaro’s car, which was parked on the
testimony street between Carmela’s house and the next. Some of
these men sat on top of the car’s lid while others milled
HELD: CA Decision REVERSED and SET ASIDE. on the sidewalk, visible under the street light to anyone
who cared to watch them, particularly to the people who
Alfaro’s testimony as eyewitness were having a drinking party in a nearby house. Obviously,
the behavior of Webb’s companions out on the street did
But was it possible for Alfaro to lie with such abundant not figure in a planned gang-rape of Carmela.
details some of which even tallied with the physical
evidence at the scene of the crime? No doubt, yes. Two. Ventura, Alfaro’s dope supplier, introduced her for
the first time in her life to Webb and his friends in a
The Vizconde massacre had been reported in the media parking lot by a mall. So why would she agree to act as
with dizzying details. Everybody was talking about what Webb’s messenger, using her gas, to bring his message to
the police found at the crime scene and there were lots of Carmela at her home. More inexplicably, what motivated
speculations about them. Alfaro to stick it out the whole night with Webb and his
friends?
Alfaro was the NBI’s star witness, their badge of excellent
investigative work.lavvphil After claiming that they had They were practically strangers to her and her boyfriend
solved the crime of the decade, the NBI people had a Estrada. When it came to a point that Webb decided with
stake in making her sound credible and, obviously, they his friends to gang-rape Carmela, clearly, there was
gave her all the preparations she needed for the job of nothing in it for Alfaro. Yet, she stuck it out with them, as
becoming a fairly good substitute witness. She was their a police asset would, hanging in there until she had a
"darling" of an asset. And this is not pure speculation. As crime to report, only she was not yet an "asset" then. If,
pointed out above, Sacaguing of the NBI, a lawyer and a on the other hand, Alfaro had been too soaked in drugs to
ranking official, confirmed this to be a cold fact. Why the think clearly and just followed along where the group took
trial court and the Court of Appeals failed to see this is her, how could she remember so much details that only a
mystifying. drug-free mind can?
At any rate, did Alfaro at least have a fine memory for Three. When Alfaro went to see Carmela at her house for
faces that had a strong effect on her, given the the second time, Carmella told her that she still had to go
circumstances? Not likely. She named Miguel "Ging" out and that Webb and his friends should come back
Rodriguez as one of the culprits in the Vizconde killings. around midnight. Alfaro returned to her car and waited
But when the NBI found a certain Michael Rodriguez, a for Carmela to drive out in her own car. And she trailed
drug dependent from the Bicutan Rehabilitation Center, her up to Aguirre Avenue where she supposedly dropped
initially suspected to be Alfaro’s Miguel Rodriguez and off a man whom she thought was Carmela’s boyfriend.
showed him to Alfaro at the NBI office, she ran berserk, Alfaro’s trailing Carmela to spy on her unfaithfulness to
slapping and kicking Michael, exclaiming: "How can I Webb did not make sense since she was on limited errand.
forget your face. We just saw each other in a disco one But, as a critical witness, Alfaro had to provide a reason
month ago and you told me then that you will kill me." As for Webb to freak out and decide to come with his friends
it turned out, he was not Miguel Rodriguez, the accused in and harm Carmela.
this case.
Four. According to Alfaro, when they returned to
Two possibilities exist: Michael was really the one Alfaro Carmela’s house the third time around midnight, she led
wanted to implicate to settle some score with him but it Webb, Lejano, and Ventura through the pedestrian gate
was too late to change the name she already gave or she that Carmela had left open. Now, this is weird. Webb was
had myopic vision, tagging the wrong people for what the gang leader who decided what they were going to do.
they did not do. He decided and his friends agreed with him to go to
Carmela’s house and gang-rape her. Why would Alfaro, a
There is another thing about a lying witness: her story woman, a stranger to Webb before that night, and
lacks sense or suffers from inherent inconsistencies. An obviously with no role to play in the gang-rape of Carmela,
understanding of the nature of things and the common lead him and the others into her house? It made no sense.
behavior of people will help expose a lie. And it has an It would only make sense if Alfaro wanted to feign being a
abundant presence in this case. witness to something she did not see.
One. In her desire to implicate Gatchalian, Fernandez, Five. Alfaro went out of the house to smoke at the garden.
Estrada, Rodriguez, and Filart, who were supposed to be After about twenty minutes, a woman exclaimed, "Sino
Webb’s co-principals in the crime, Alfaro made it a point yan?" On hearing this, Alfaro immediately walked out of
to testify that Webb proposed twice to his friends the the garden and went to her car. Apparently, she did this
gang-rape of Carmela who had hurt him. And twice, they because she knew they came on a sly. Someone other
(including, if one believes Alfaro, her own boyfriend than Carmela became conscious of the presence of Webb
Estrada) agreed in a chorus to his proposal. But when they and others in the house. Alfaro walked away because,
got to Carmela’s house, only Webb, Lejano, Ventura, and obviously, she did not want to get involved in a potential
Alfaro entered the house. confrontation. This was supposedly her frame of mind:
fear of getting involved in what was not her business.

EVIDENCE
But if that were the case, how could she testify based on possibilities, but whether it entertains a reasonable,
personal knowledge of what went on in the house? Alfaro lingering doubt as to his guilt. For, it would be a serious
had to change that frame of mind to one of boldness and mistake to send an innocent man to jail where such kind
reckless curiosity. So that is what she next claimed. She of doubt hangs on to one’s inner being, like a piece of
went back into the house to watch as Webb raped meat lodged immovable between teeth.
Carmela on the floor of the master’s bedroom. He had
apparently stabbed to death Carmela’s mom and her Will the Court send the accused to spend the rest of their
young sister whose bloodied bodies were sprawled on the lives in prison on the testimony of an NBI asset who
bed. Now, Alfaro testified that she got scared (another proposed to her handlers that she take the role of the
shift to fear) for she hurriedly got out of the house after witness to the Vizconde massacre that she could not
Webb supposedly gave her a meaningful look. produce?
Alfaro quickly went to her car, not minding Gatchalian,

Fernandez, Estrada, Rodriguez, and Filart who sat on the
car or milled on the sidewalk. She did not speak to them,
even to Estrada, her boyfriend. She entered her car and
turned on the engine but she testified that she did not
know where to go. This woman who a few minutes back
led Webb, Lejano, and Ventura into the house, knowing
that they were decided to rape and harm Carmela, was
suddenly too shocked to know where to go! This
emotional pendulum swing indicates a witness who was
confused with her own lies.
Webb’s Alibis to Rebut Alfaro’s Testimony
Among the accused, it was Webb who presented the

strongest alibi. His travel preparations were confirmed by
Rajah Tours and the Philippine immigration, confirming
that he indeed left for San Francisco, California with his
Aunt Gloria on March 9, 1991 on board the United Airlines
Flight 808. His passport was stamped and his name was
listed on the United Airlines Flight’s Passenger Manifest.
Upon reaching US, the US immigration recorded his entry
to the country. Moreover, details of his very stay there,
including his logs and paychecks when he worked,
documents when he purchased a car and his license were
presented as additional evidence, and he left for
Philippines on October 26, 1992. Supreme Court accused
the trial court and the Court of Appeals as having a mind
that is made cynical by the rule drilled into his head that a
defense of alibi is a hangman’s noose in the faces of a
witness squeaking “I saw him do it”. A judge, according to
the Court, must keep an open mind, and must guard
against slipping into hasty conclusions arising from a
desire to quickly finish the job of deciding a case.
For positive identification to be credible, two criteria must

be met: 1.) the positive identification of the offender must
come from a credible witness 2.) the witness’ story of
what she personally saw must be believable, not
inherently contrived.
For alibi to be credible and established on the other hand,

it must be positive, clear and documented. It must show
that it was physically impossible for him to be at the scene
of the crime. Webb was able to establish his alibi’s
credibility with his documents. It is impossible for Webb,
despite his so called power and connections to fix a
foreign airlines’ passenger manifest. Webb’s departure
and arrival were authenticated by the Office of the US
Attorney General and the State Department.
In our criminal justice system, what is important is, not

whether the court entertains doubts about the innocence
of the accused since an open mind is willing to explore all
371
VII. REVISED RULES ON SUMMARY PROCEDURE Note: This is without prejudice to the applicability of
Sec. 4, Rule 18 of the Rules of Court, stating that the
A. CASES COVERED BY THE RULE non-appearance of the party in a pre-trial may be
excused if valid cause is shown or a representative
Q: In what cases do the Revised Rules on Summary authorized in writing appears in his behalf.
Procedure apply?
C. PRELIMINARY CONFERENCE AND APPEARANCES
A: OF THE PARTIES
1. Civil cases:
a. All cases of forcible entry and Q: Is preliminary conference in civil cases
unlawful detainer, irrespective of mandatory?
amount of damages or unpaid
rentals sought to be recovered A: Yes. Not later than 30 days after the last answer
provided when attorney’s fees are is filed, a preliminary conference shall be held. The
awarded, the same shall not exceed rules on pre-trial in ordinary cases shall be
P20,000.00; and applicable to the preliminary conference unless
b. All other civil cases, except probate inconsistent with the provisions of this Rule.
proceedings, where the total amount
of the plaintiff’s claim does not Q: What is the effect of the plaintiff’s failure to
exceed P100,000 or P200,000 in appear?
Metropolitan Manila, exclusive of
interest and costs (As amended by A: The failure of the plaintiff to appear in the
A.M. No. 02-11-09-SC effective Nov. preliminary conference shall be a cause for the
5, 2002) dismissal of his complaint. The defendant who
appears in the absence of the plaintiff shall be
2. Criminal cases: entitled to judgment on his counterclaim in
a. Violations of traffic laws, rules and accordance with Sec. 6.
regulations;
b. Violations of rental law; Note: All cross-claims shall be dismissed.
c. Violations of municipal or city
ordinances; Q: What is the effect of the defendant’s failure to
d. All other criminal cases where the appear during the preliminary conference?
penalty prescribed by law for the
offense charged is imprisonment not A: If a sole defendant shall fail to appear, the
exceeding 6 months or a fine not plaintiff shall be entitled to judgment in accordance
exceeding P1,000.00, or both, with Sec. 6. This Rule shall not apply where one of
irrespective of other imposable two or more defendants sued under a common
penalties, accessory or otherwise, or cause of action who had pleaded a common
of the civil liability arising there from. defense shall appear at the preliminary conference
Provided however, that in offenses (Sec. 7).
involving damage to property
through criminal negligence, this Q: Is preliminary conference in criminal cases
Rule shall govern where the mandatory?
imposable fine does not exceed
P10,000.00; and A: Yes. Before conducting the trial, the court shall
call the parties to a preliminary conference during
3. Violation of bouncing checks law (Sec. 1). which a stipulation of facts may be entered into, or
the propriety of allowing the accused to enter a
B. EFFECT OF FAILURE TO ANSWER plea of guilty to a lesser offense may be considered,
or such other matters may be taken up to clarify
Q: What is the effect of failure of the defendant to the issues and to ensure a speedy disposition of the
answer? case.
A: The court, motu proprio or on motion of the However, no admission by the accused shall be
plaintiff, shall render judgment as may be used against him unless reduced in writing and
warranted by the facts alleged in the complaint and signed by the accused and his counsel. A refusal or
limited to what is prayed for (Sec 6). failure to stipulate shall not prejudice the accused
(Sec. 14).

KATARUNGANG PAMBARANGAY
VIII. KATARUNGANG PAMBARANGAY C. VENUE
A. CASES COVERED Q: What are the rules on venue under the law on
Katarungang Pambarangay?
Q: What is the object of the Katarungang
Pambarangay Law? A:
1. For disputes between residents of the
A: Its object is to effect an amicable settlement of same barangay, the dispute must be
disputes among family and barangay members at brought for settlement in the said
the barangay level without judicial recourse and barangay;
consequently help relieve the courts of docket 2. For disputes between residents of
congestion (Preamble of P.D. 1508, the former and different barangays within the same city
the first Katarungang Pambarangay Law). (1999 or municipality or any of the respondents
Bar Question) reside at the election of the complainant;
3. For disputes involving real property or
B. SUBJECT MATTER OF AMICABLE SETTLEMENT any interest therein shall be brought in
the barangay where the real property or
Q: What is the subject matter for amicable larger portion thereof is situated; and
settlement? 4. For disputes arising at the workplace
where the contending parties are
A: employed or at the institution where such
GR: The Lupon of each barangay shall have parties are enrolled for study shall be
authority to bring together the parties actually brought in the barangay where such
residing in the same city or municipality for workplace or institution is located.
amicable settlement of all disputes. (Sec. 2)
D. WHEN PARTIES MAY DIRECTLY GO TO COURT
XPN:
1. Where one party is the government or Q: When may a party directly file an action in
any subdivision or instrumentality court notwithstanding that said action falls within
thereof; the authority of the lupon ng tagapamayapa?
2. Where one party is a public officer or
employee, and the dispute relates to the A: A party may directly file an action in court in the
performance of his official functions; following instances:
3. Offenses punishable by imprisonment
exceeding 1 year or a fine exceeding 1. Where the accused is under police
P5,000.00; custody or detention;
4. Offenses where there are no private 2. Where the person has otherwise been
offended party; deprived of personal liberty calling for
5. Where the dispute involves real habeas corpus proceeding;
properties located in different cities or 3. Where the actions are coupled with
municipalities unless the parties agree to provisional remedies such as preliminary
submit the dispute to amicable injunction, attachment, delivery of
settlement by an appropriate lupon; personal property, and support pendente
6. Disputes involving parties who actually lite;
reside in barangays of different cities or 4. Where the action may otherwise be
municipalities, except: barred by the statute of limitations;
a. Where the barangay units 5. Labor disputes;
adjoin each other; and 6. CARL disputes;
b. The parties submit their dispute 7. Any class of dispute which the President
to amicable settlement by an may determine in the interest of justice or
appropriate lupon. upon recommendation of the Secretary of
7. Disputes which the President may Justice;
determine in the interest of justice; and 8. Disputes involving the traditions of
8. Where one of the parties is a juridical indigenous cultural communities; and
entity. 9. Actions to annul judgment upon a
compromise.
373
E. EXECUTION
Q: What is the effect of amicable settlement and

arbitration award?
A:
GR: The amicable settlement and arbitration
award shall have force and effect of a final
judgment of a court upon the expiration of 10
days from the date thereof, unless repudiation
of the settlement has been made or a petition
to nullify the award has been filed before the
proper city or municipal court.
XPN: the compromise settlement agreed upon

by the parties before the lupon chairman or the
pangkat chairman involving court cases which
fall under the last paragraph of Sec. 408 shall be
submitted to the court and upon approval
thereof, have the force and effect of a judgment
of said court (Sec. 416).
Q: How is the arbitration award complied with?
A: The parties, may, at any stage of the arbitration

proceedings, agree in writing that they shall abide
by the arbitration award of the lupon chairman or
the pangkat chairman. Such agreement to arbitrate
may be repudiated within 5 days from the date
thereof on the grounds stated in Sec. 418. The
arbitration award shall be made after the lapse of
the period of repudiation and 10 days thereafter.
Q: Within what period shall the arbitration award

be enforced?
A: It may be enforced by execution by the lupon

within 6 months from date of settlement. After the
lapse of such time, the settlement may be enforced
by action in the appropriate city or municipal court
(Sec. 417).
F. REPUDIATION
Q: What may be the grounds for repudiating the

amicable settlement?
A: Any party to the dispute may within 10 days

from the date of the settlement, repudiate the
same by filing with the lupon chairman a statement
to that effect sworn to before him, where the
consent is vitiated by fraud, violence, or
intimidation. Such repudiation shall be sufficient
basis for the issuance of the certification for filing a
complaint as hereinabove provided (Sec. 418).

RULE OF PROCEDURE FOR SMALL CLAIM CASES
IX. RULE OF PROCEDURE FOR SMALL CLAIM CASES 2. For damages arising from any of the
(AM No. 08-8-7-SC) following:
a. Fault or negligence;
Q: What is the “Rule of Procedure for Small Claims b. Quasi-contracts; and
Cases”? c. Contracts.
A: It is a special rule of procedure adopted by the 3. The enforcement of a barangay amicable

Supreme Court pursuant to its rule-making power settlement or an arbitration award
under Sec. 5(5), Art. VIII of the 1987 Constitution, to involving a money claim covered by this
govern small claims cases and is to be piloted in rule pursuant to Sec. 417 of the Local
designated first level courts (MTC, MTCC, and Government Code of 1991 (Sec. 4).
MCTC). This rule allows a plaintiff to sue a
defendant without the need of a lawyer. Q: What is the jurisdictional amount for small
claims?
A. SCOPE AND APPLICABILITY OF THE RULE
A: The value of the claim prayed for must not
Q: What is the scope of this Rule? exceed one hundred thousand pesos (P100,000.00)
exclusive of interest and costs (Sec. 2).
A: The Rule governs the procedure in actions for
money claims before the Metropolitan Trial Courts, B. COMMENCEMENT OF SMALL CLAIMS ACTION;
Municipal Trial Courts in Cities, Municipal Trial RESPONSE
Courts and Municipal Circuit Trial Courts where the
value of the claim does not exceed One Hundred Q: How does one start a small claims case?
Thousand Pesos (P100,000.00), exclusive of interest
and costs. A: The plaintiff must first accomplish a verified
Statement of Claim and certify the information
Q: In what actions does the rule on small claims provided, stating that he has not filed any action
apply? (Applicability) involving the very same issue in any other court,
tribunal or agency through a verification and
A: certification of non-forum shopping.
1. Those which are purely civil in nature
where the claim or relief prayed for by The Statement of Claim must be accompanied by
the plaintiff is solely for payment or certified duplicate photocopies of all supporting
reimbursement of sum of money; documents.
2. The civil aspect of criminal actions either The plaintiff then files the Statement of Claim with
filed before the institution of the criminal its accompanying documents with the office of the
action or reserved upon the filing of a clerk of court of the small claims court, personally
criminal action in court, pursuant to Rule or through mail, and pays the correct docket and
111 of the Revised Rules of Criminal filing fees prescribed under Rule 141 of the Revised
Procedure (Sec. 4); and Rules of Court (Sec. 5).
3. The enforcement of a barangay amicable
settlement or an arbitration award If one is an indigent, he may apply to the small
involving money claims covered by the claims court to qualify as an indigent, and once
Rule, pursuant to Sec. 417 of the Local qualified, he is exempt from payment of such fees
Government Code of 1991. (Sec. 8).
Q: What should the claims or demands consist of? Note: In no case shall a party, even if declared an
indigent, be exempt from the payment of P1,000.00
A: The claims or demands may be: fee for service of summons and processes in civil cases
(Sec. 8).
1. For money owed under any of following:
a. Contract of lease; Plaintiff may join in a single statement of claim one
b. Contract of loan; or more separate small claims against a defendant
c. Contract of services; provided that the total amount claimed, exclusive
d. Contract of sale; or of interest and costs, does not exceed 100,000 (Sec.
e. Contract of mortgage. 6).
375
Q: When should the defendant file a response? raised in the same case. Otherwise, it will be barred
(Sec.13).
A: The defendant shall file with the court and serve
on the plaintiff a duly accomplished and verified C. PROHIBITED PLEADINGS AND MOTIONS
response within a non-extendible period of ten (10)
days from receipt of summons. Q: What are the prohibited pleadings, motions and
petitions?
The response shall be accompanied by certified
photocopies of documents, as well as affidavits of A:
witnesses and other evidence in support thereof. 1. Motion to dismiss the complaint except
No evidence shall be allowed during the hearing on the ground of lack of jurisdiction;
which was not attached to or submitted together 2. Motion for a bill of particulars;
with the Response, unless good cause is shown for 3. Motion for new trial, or for
the admission of additional evidence (Sec. 11). reconsideration of a judgment, or for
reopening of trial;
Q: Instead of filing a response, can a defendant file 4. Petition for relief from judgment;
a motion to dismiss the claim? 5. Motion for extension of time to file
pleadings, affidavits, or any other paper;
A: No. The filing of a motion to dismiss instead of a 6. Memoranda;
response is prohibited, except on ground of lack of 7. Petition for certiorari, mandamus, or
jurisdiction. prohibition against any interlocutory
order issued by the court;
Q: What is the effect if the defendant failed to file 8. Motion to declare the defendant in
a response within the required period? default;
9. Dilatory motions for postponement;
A: The court by itself shall render judgment as may 10. Reply;
be warranted by the facts alleged in the Statement 11. Third-party complaints; and
of Claims limited to what is prayed for. The court 12. Interventions (Sec. 14).
however, may, in its discretion reduce the amount
of damages for being excessive or unconscionable D. APPEARANCES
(Sec. 12).
Q: Who are required to appear at the hearing?
Q: Are counterclaims allowed under this rule?
A: The parties shall appear at the hearing personally
A: Yes. If at the time the action is commenced, the or through a representative they may authorize
defendant in his Response may file as counterclaim under a Special Power of Attorney to enter into an
a claim against the plaintiff that: amicable settlement, to submit to Judicial Dispute
Resolution (JDR) and to enter into stipulations or
1. is within the coverage of this Rule, admissions of facts and of documentary exhibits
exclusive of interest and costs; (Sec. 16).
2. arises out of the same transaction or
event that is the subject matter of the Note: Appearance through a representative must be
plaintiff’s claim; for a valid cause. The representative of an individual-
3. does not require for its adjudication the party must not be a lawyer, and must be related to or
joinder of third parties; and next-of-kin of the individual-party. Juridical entities
4. is not a subject of another pending action shall not be represented by a lawyer in any capacity
(Sec. 13). (Sec. 16).
Note: The defendant may also elect to file a Q: What is the effect of non-appearance of a
counterclaim against the plaintiff that does not arise party?
out of the same transaction or occurrence, provided
that the amount and nature thereof are within the A:
coverage of this Rule and the prescribed docket and 1. If the plaintiff does not appear, the claim
other legal fees are paid. shall be dismissed without prejudice.
2. If the defendant does not appear, the
Q: What happens when a defendant fails to effect will be the same as failure to file a
include a counterclaim in his/her Response? Response.
A: If the counterclaim is compulsory, it must be

RULE OF PROCEDURE FOR SMALL CLAIM CASES
3. If both parties do not appear, the claim A: The rule does not preclude a party from filing a
and counterclaim shall be dismissed with petition for certiorari under Rule 65 when there is
prejudice (Sec. 18). grave abuse of discretion amounting to lack or
excess of jurisdiction in relation to a judgment in a
Note: This shall not apply where one of two or more small claims action (such a petition is prohibited
defendants who are sued under a common cause of with regard to interlocutory orders).
action and have pleaded a common defense appears
at the hearing. Further, the aggrieved party can also file an action
for annulment of judgment when the requirements
Q: Are lawyers allowed at the hearing? under the Rules of Civil Procedure are complied
with.
A: No, lawyers are not allowed to appear at the
hearing unless they are the plaintiff or the
defendant. However, since the process is still a legal
process, the parties and their authorized
representatives can still consult with a lawyer to
assist them to prepare for the hearing or for other
matters outside the hearing (Sec. 17).
Q: Who is allowed to assist a party who cannot

properly present his claim or defense?
A: The court, in its discretion, may allow another

individual who is not a lawyer to assist the party
(Sec. 17).
E. HEARING; DUTY OF THE JUDGE
Q: When is postponement of a hearing allowed?
A: It may be granted only upon proof of the physical

inability of the party to appear before the court on
the scheduled date and time. A party may avail of
only 1 postponement (Sec. 19).
Q: What is the duty of the Judge?
A: At the beginning of the court session, the judge

shall read aloud a short statement explaining the
nature, purpose and the rule of procedure of small
claims cases. (Sec. 20)
F. FINALITY OF JUDGMENT
Q: Is an appeal of a decision allowed?
A: No. A decision in small claims cases is final and

unappealable (Sec. 23). The declaration that the
decision is final and unappealable is in line with the
nature of small claims which is designed to preclude
unmeritorious appeals that result in long drawn
litigation for cases of this nature, pursuant to the
Supreme Court’s constitutional mandate to enact
rules of procedure.
Q: What then is the remedy of a party when the

decision is final and unappealable?
377
X. RULES OF PROCEDURE FOR ENVIRONMENTAL (t) R.A. No. 9072, National Caves and Cave
CASES (AM No. 09-6-78-SC) Resource Management Act;
(u) R.A. No. 9147, Wildlife Conservation and
A. SCOPE AND APPLICABILITY OF THE RULE Protection Act;
(v) R.A. No. 9175, Chainsaw Act;
Q: What is the scope of the Rule on Environmental (w) R.A. No. 9275, Clean Water Act;
Cases? (x) R.A. No. 9483, Oil Spill Compensation Act
of 2007; and
A: These Rules shall govern the procedure in civil, (y) Provisions in C.A. No. 141, The Public Land
criminal and special civil actions before the Regional Act; R.A. No. 6657, Comprehensive
Trial Courts, Metropolitan Trial Courts, Municipal Agrarian Reform Law of 1988; R.A. No.
Trial Courts in Cities, Municipal Trial Courts and 7160, Local Government Code of 1991;
Municipal Circuit Trial Courts involving enforcement R.A. No. 7161, Tax Laws Incorporated in
or violations of environmental and other related the Revised Forestry Code and Other
laws, rules and regulations such as but not limited Environmental Laws (Amending the
to the following: NIRC); R.A. No. 7308, Seed Industry
Development Act of 1992; R.A. No. 7900,
(a) Act No. 3572, Prohibition Against Cutting High-Value Crops Development Act; R.A.
of Tindalo, Akli, and Molave Trees; No. 8048, Coconut Preservation Act; R.A.
(b) P.D. No. 705, Revised Forestry Code; No. 8435, Agriculture and Fisheries
(c) P.D. No. 856, Sanitation Code; Modernization Act of 1997; R.A. No. 9522,
(d) P.D. No. 979, Marine Pollution Decree; The Philippine Archipelagic Baselines Law;
(e) P.D. No. 1067, Water Code; R.A. No. 9593, Renewable Energy Act of
(f) P.D. No. 1151, Philippine Environmental 2008; R.A. No. 9637, Philippine Biofuels
Policy of 1977; Act; and other existing laws that relate to
(g) P.D. No. 1433, Plant Quarantine Law of the conservation, development,
1978; preservation, protection and utilization of
(h) P.D. No. 1586, Establishing an the environment and natural resources.
Environmental Impact Statement System (Sec. 2, Rule 1)
Including Other Environmental
Management Related Measures and for B. CIVIL PROCEDURE
Other Purposes;
(i) R.A. No. 3571, Prohibition Against the 1. PROHIBITION AGAINST TEMPORARY
Cutting, Destroying or Injuring of Planted RESTRAINING ORDER AND PRELIMINARY
or Growing Trees, Flowering Plants and INJUNCTION
Shrubs or Plants of Scenic Value along
Public Roads, in Plazas, Parks, School Q: Can a court issue a writ of preliminary
Premises or in any Other Public Ground; injunction or temporary restraining order preclude
(j) R.A. No. 4850, Laguna Lake Development the government from enforcing environmental
Authority Act; laws or prevent violations thereof?
(k) R.A. No. 6969, Toxic Substances and
Hazardous Waste Act; A: As a general rule, no court can issue a TRO or
(l) R.A. No. 7076, People’s Small-Scale writ of preliminary injunction against lawful actions
Mining Act; of government agencies that enforce
(m) R.A. No. 7586, National Integrated environmental laws or prevent violations thereof.
Protected Areas System Act including all The Supreme Court is the only court which can
laws, decrees, orders, proclamations and issue such orders. (Sec. 10, Rule 2)
issuances establishing protected areas;
(n) R.A. No. 7611, Strategic Environmental Q: Can a court issue a writ of preliminary
Plan for Palawan Act; injunction or temporary restraining order preclude
(o) R.A. No. 7942, Philippine Mining Act; the government from enforcing environmental
(p) R.A. No. 8371, Indigenous Peoples Rights laws or prevent violations thereof?
Act;
(q) R.A. No. 8550, Philippine Fisheries Code; A: As a general rule, no court can issue a TRO or
(r) R.A. No. 8749, Clean Air Act; writ of preliminary injunction against lawful actions
(s) R.A. No. 9003, Ecological Solid Waste of government agencies that enforce
Management Act; environmental laws or prevent violations thereof.

RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
The Supreme Court is the only court which can receipt of the TEPO by the party or person
issue such orders. (Sec. 10, Rule 2) enjoined. Within said period, the court where the
case is assigned, shall conduct a summary hearing
2. PRE-TRIAL CONFERENCE; CONSENT DECREE to determine whether the TEPO may be extended
until the termination of the case.
Q: When may a judge issue a consent decree?
NOTE: The court where the case is assigned, shall
A: The judge may issue a consent decree approving periodically monitor the existence of acts that are the
the agreement between the parties in accordance subject matter of the TEPO even if issued by the
with law, morals, public order and public policy to executive judge, and may lift the same at any time as
protect the right of the people to a balanced and circumstances may warrant. (Sec. 8, Rule 2)
healthful ecology. (Sec. 5, Rule 3)
Q: Is the applicant required to post a bond?
Note: Evidence not presented during the pre-trial,
except newly discovered evidence, shall be deemed A: No. The applicant shall be exempted from the
waived. (Section 5, Rule3) posting of a bond for the issuance of a TEPO. (Sec.
8, Rule 2)
Q: What is the duty of the judge during the pre-
trial conference? 5. JUDGMENT AND EXECUTION; RELIEFS IN A
CITIZEN’S SUIT
A:
1. Put the parties and their counseld under Q: What are the reliefs in a citizen suit?
oath and they shall remain under oath in all
pre-trial conferences. A: If warranted, the court may grant to the plaintiff
2. Exert best efforts to persuade parties to proper reliefs which shall include the protection,
arrive at an amicable settlement. preservation or rehabilitation of the environment
3. Issue a consent decree and the payment of attorney’s fees, costs of suit
and other litigation expenses.
3. PROHIBITED PLEADINGS AND MOTIONS It may also require the violator to submit a program
of rehabilitation or restoration of the environment,
Q: What are the prohibited pleadings and motions the costs of which shall be borne by the violator, or
under this Rule’s Civil Procedure? to contribute to a special trust fund for that
purpose subject to the control of the court. (Sec. 1,
A: Rule 5)
1. Motion to dismiss the complaint;
2. Motion for a bill of particulars; Q: Can a judgment be stayed by appeal?
3. Motion for extension of time to file
pleadings, except to file answer, the A: As a general rule, no. Any judgment directing the
extension not to exceed fifteen (15) days; performance of acts for the protection,
4. Motion to declare the defendant in preservation or rehabilitation of the environment
default; shall be executory pending appeal unless restrained
5. Reply and rejoinder; and by the appellate court. (Sec. 2, Rule 5)
6. Third party complaint. (Sec. 2, Rule 2)
Q: When is there a need to refer to a
4. TEMPORARY ENVIRONMENTAL PROTECTION commissioner?
ORDER (TEPO)
A; The court may motu proprio, or upon motion of
Q: When should a Temporary Environmental the prevailing party, order that the enforcement of
Protection order be issued? the judgment or order be referred to a
commissioner to be appointed by the court. The
A: If it appears from the verified complaint with a commissioner shall file with the court written
prayer for the issuance of an Environmental progress reports on a quarterly basis or more
Protection Order (EPO) that the matter is of frequently when necessary. (Sec. 4, Rule 5)
extreme urgency and the applicant will suffer grave
injustice and irreparable injury, the executive judge Q: When shall the judgment be deemed executed?
of the multiple sala court before raffle or the
presiding judge of a single-sala court as the case A: The process of execution shall terminate upon a
may be, may issue ex parte a TEPO effective for sufficient showing that the decision or order has
only seventy-two (72) hours from date of the been implemented to the satisfaction of the court
379
in accordance with Section 14, Rule 39 of the Rules A: It is summary. The parties must submit all
of Court. (Sec. 5, Rule 5) available evidence in support of their respective
positions. (Sec. 3, Rule 6)
6. PERMANENT ENVIRONMENTAL PROTECTION
ORDER; WRIT OF CONTINUING MANDAMUS Q: What is the quantum of proof required?
Q: When may the court convert a TEPO to a A: The party seeking the dismissal of the case must
permanent EPO? When may the court issue a writ prove by substantial evidence that his acts for the
of continuing mandamus? enforcement of environmental law is a legitimate
action for the protection, preservation and
A: In the judgment, the court may convert the TEPO rehabilitation of the environment. The party filing
to a permanent EPO or issue a writ of continuing the action assailed as a SLAPP shall prove by
mandamus directing the performance of acts which preponderance of evidence that the action is not a
shall be effective until the judgment is fully SLAPP and is a valid claim. (Sec. 3, Rule 6)
satisfied.
Q: How many days does the court have to resolve
Note: The court may, by itself or through the the issue?
appropriate government agency, monitor the
execution of the judgment and require the party A: Within 30 days, the court shall resolve the
concerned to submit written reports on a quarterly question of SLAPP. (Sec. 3, Rule 6)
basis or sooner as may be necessary, detailing the
progress of the execution and satisfaction of the Q: What is the effect of the dismissal of the
judgment. The other party may, at its option, submit action?
its comments or observations on the execution of the
judgment. (Sec. 3, Rule 5)
A: If the court dismisses the action, the court may
award damages, attorney’s fees and costs of suit
7. STRATEGIC LAWSUIT AGAINST PUBLIC
under a counterclaim if such has been filed. The
PARTICIPATION
dismissal shall be with prejudice. (Sec 4)
Q: What is a Strategic Lawsuit Against Public
Q: What happens to the evidenced adduced during
Participation (SLAPP)?
the summary hearing on the defense of SLAPP in
case the court rejects such defense?
A: It is a legal action filed to harass, vex, exert
undue pressure or stifle any legal recourse that any
A: It shall be treated as evidence of the parties on
person, institution or the government has taken or
the merits of the case. (Sec. 4)
may take in the enforcement of environmental
laws, protection of the environment or assertion of
Q: Can SLAPP be raised as a defense in criminal
environmental rights. (Sec. 1, Rule 6)
cases?
Q: Can the defendant raise SLAPP as a legal
A: Yes. The accused may file a motion to dismiss
defense?
based on SLAPP upon the filing of an information in
court and before arraignment. (Sec. 1, Rule 19)
A: Yes, the defendant may file an answer
interposing as a defense that the case is a SLAPP
Q: When may a court grant the motion of the
and shall be supported by documents, affidavits,
accused?
papers and other evidence; and, by way of
counterclaim, pray for damages, attorney’s fees and
A: The court shall grant the motion if the accused
costs of suit. (Sec. 1, Rule 6)
establishes in the summary hearing that the
criminal case has been filed with intent to harass,
NOTE: The plaintiff has 5 days (non-extendible) from
receipt of notice that an answer has been filed to
vex, exert undue pressure or stifle any legal
refute such defense. The court will then set a hearing recourse that any person, institution or the
after issuance of the order to file an opposition within government has taken or may take in the
fifteen (15) days from filing of the comment or the enforcement of environmental laws, protection of
lapse of the period. (Sec. 1, Rule 6) the environment or assertion of environmental
rights. (Sec. 3, Rule 19)
Q: What is the nature of the hearing on the
defense of a SLAPP?

Q: What if the court denies the motion? cities or provinces. It shall state in detail the place
or places to be inspected.
A: The court shall immediately proceed with the
arraignment of the accused. (Sec. 3, Rule 19) Note: witnesses having personal knowledge of the
violation or threatened violation of environmental law.
C. SPECIAL PROCEEDINGS (Sec. 12 (a), Rule 7)
1. WRIT OF KALIKASAN Q: What does the ocular inspection order contain?
Q: What is the Writ of Kalikasan? A: The order shall specify the person or persons
authorized to make the inspection and the date,
A: It is a special remedy available to a natural or time, place and manner of making the inspection
juridical person, entity authorized by law, people’s and may prescribe other conditions to protect the
organization, non-governmental organization, or constitutional rights of all parties. (Sec. 12(a), Rule
any public interest group accredited by or 7)
registered with any government agency, on behalf
of persons whose constitutional right to a balanced Q: What must the motion asking for the issuance
and healthful ecology is violated, or threatened of a production order or inspection of documents
with violation by an unlawful act or omission of a
public official or employee, or private individual or A: The motion must show that a production order is
entity, involving environmental damage of such necessary to establish the magnitude of the
magnitude as to prejudice the life, health or violation or the threat as to prejudice the life,
property of inhabitants in two or more cities or health or property of inhabitants in two or more
provinces. (Sec. 1, Rule 7) cities or provinces.
2. PROHIBITED PLEADINGS AND MOTIONS Q: What must the production order state?
Q: What are the prohibited pleadings and A: The production order shall specify the person or
motions? persons authorized to make the production and the
date, time, place and manner of making the
A: inspection or production and may prescribe other
1. Motion to dismiss; conditions to protect the constitutional rights of all
2. Motion for extension of time to file parties.
return;
3. Motion for postponement; Note: After hearing, the court may order any person in
4. Motion for a bill of particulars; possession, custody or control of any designated
5. Counterclaim or cross-claim; documents, papers, books, accounts, letters,
6. Third-party complaint; photographs, objects or tangible things, or objects in
digitized or electronic form, which constitute or
7. Reply; and
contain evidence relevant to the petition or the return,
8. Motion to declare respondent in default.
to produce and permit their inspection, copying or
(Sec. 9, Rule 7) photographing by or on behalf of the movant. (Sec.
12(b), Rule 7)
3. DISCOVERY MEASURES
4. WRIT OF CONTINUING MANDAMUS
Q: What are the interim reliefs available to the
petitioner upon verified motion? Q: When may an aggrieved party file a verified
petition for the issuance of a writ of continuing
A: mandamus?
1. Ocular inspection; or
2. Production or inspection of documents or A:
things. (Sec. 12, Rule 7) 1. When any agency or instrumentality of
the government or officer thereof to
Q: How is an ocular inspection order granted? perform such actswho unlawfully neglects
the performance of an act which the law
A: The motion must show that an ocular inspection specifically enjoins as a duty resulting
order is necessary to establish the magnitude of the from an office, trust or station in
violation or the threat as to prejudice the life, connection with the enforcement or
health or property of inhabitants in two or more violation of an environmental law rule or
381
regulation or a right therein, or unlawfully 2. Grant a TEPO for the preservation of the
excludes another from the use or rights of the parties pending such
enjoyment of such right. proceedings. (Sec. 5, Rule 8)
2. When there is no other plain, speedy and
adequate remedy in the ordinary course Q: What is the nature of the hearing?
of law. (Sec. 1, Rule 8)
A: It is summary in nature. The court, after the
Q: What should the verified petition contain? comment is filed or the time for the filing thereof
has expired, shall require the parties to submit
A: memoranda. (Sec. 6, Rule 8)
1. Allegation of facts
2. Specific allegation that it concerns an Q: When should the petition be resolved?
environmental law, rule or regulation
3. Prayer that judgment be rendered A: The petition shall be resolved without delay
commanding the respondent to do an act within sixty (60) days from the date of the
or series of acts until the judgment is fully submission of the petition for resolution. (Sec. 6,
satisfied Rule 8)
4. Prayer for damages sustained due to
malicious neglect to perform legal duties Q: Can the court still grant the privilege of the writ
5. Sworn certification of non-forum of continuing mandamus?
shopping.
A: Yes, if warranted, the court shall grant the
Note: Supporting documents mush be attached. privilege of the writ of continuing mandamus
(Sec. 1, Rule 8) requiring respondent to perform an act or series of
acts until the judgment is fully satisfied and to grant
Q: Where should the petition be filed? such other reliefs as may be warranted resulting
from the wrongful or illegal acts of the respondent.
A: The petition shall be filed with the Regional Trial (Sec. 7, Rule 8)
Court exercising jurisdiction over the territory
where the actionable neglect or omission occurred Q: What shall the court do to ensure compliance
or with the Court of Appeals or the Supreme Court. with the judgment?
(Section 2, Rule 8)
A: The court shall require the respondent to submit
Q: Are docket fees required to be paid? periodic reports detailing the progress and
execution of the judgment, and the court may, by
A: No, the petitioner is exempt from payment of itself or through a commissioner or the appropriate
docket fees. (Sec. 3, Rule 8) government agency, evaluate and monitor
compliance. (Sec. 7, Rule 8)
Q: What does the court do if the petition is
sufficient in form and substance? Q: Can the petitioner intervene even after
promulgation of judgment?
A: The court shall issue the writ and require the
respondent to comment on the petition within 10 A: Yes, the petitioner may submit its comments or
days from receipt of a copy thereof. (Sec. 4, Rule 8) observations on the execution of the judgment.
(Sec. 7, Rule 8)
Q: How shall the order to comment be served?
Q: What must the respondent do to evidence
A: The order shall be served on the respondents in compliance with the judgment?
such manner as the court may direct, together with
a copy of the petition and any annexes thereto. A: Submit periodic reports detailing such
(Sec. 4, Rule 8) compliance. It shall be contained in partial returns
of the writ. (Sec. 8, Rule 8)
Q: How may the court expedite the proceedings?
Q: When must a final return of the writ be made to
A: the court?
1. Issue such orders to expedite the
proceedings; and A: Upon full satisfaction of judgment. (Sec. 8, Rule
8)

A:
Note: If the court finds that judgment has been fully 1. When, in his presence, the person to be
implemented, the satisfaction of judgment shall be arrested has committed, is actually
entered in the court docket. (Sec. 8, Rule 8) committing or is attempting to commit an
offense; or
D. CRIMINAL PROCEDURE 2. When an offense has just been
committed, and he has probable cause to
1. WHO MAY FILE believe based on personal knowledge of
facts or circumstances that the person to
Q: Who may file a criminal complaint under this be arrested has committed it.
Rule?
Individuals deputized by the proper government
A: Any offended party, peace officer or any public agency who are enforcing environmental laws shall
officer charged with the enforcement of an enjoy the presumption of regularity under Section
environmental law. (Sec. 1, Rule 9) 3(m), Rule 131 of the Rules of Court when effecting
arrests for violations of environmental laws. (Sec. 1,
2. INSTITUTION OF CRIMINAL AND CRIMINAL Rule 11)
ACTION
4. PROCEDURE IN THE CUSTODY AND DISPOSITION
Q: Can the complainant institute a civil action for OF SEIZED ITEMS
recovery of damages separately from the criminal
action? Q: What procedure takes place in the absence of
applicable laws or rules promulgated by the
A: Yes. concerned government agency?
1. Complainant can institute civil action for
recovery of damages before the criminal A:
action. 1. The apprehending officer having initial
2. Complainant can reserve right to custody and control of the seized items,
separately institute the civil action from equipment, paraphernalia, conveyances
the criminal action. and instruments shall physically inventory
and whenever practicable, photograph
NOTE: Complainant may waive this right. the same in the presence of the person
(Sec 1, Rule 10) from whom such items were seized.
2. Thereafter, the apprehending officer shall
Q: When should the reservation be made? submit to the issuing court the return of
the search warrant within five (5) days
A: During arraignment except when the civil action from date of seizure or in case of
has been instituted prior to the criminal action. (Sec warrantless arrest, submit within five (5)
1, Rule 10) days from date of seizure, the inventory
report, compliance report, photographs,
Q: To whom are the damages awarded? representative samples and other
pertinent documents to the public
A: The private offended party. If there is none, the prosecutor for appropriate action.
damages less the filing fees, shall accrue to the 3. Upon motion by any interested party, the
funds of the agency charged with the court may direct the auction sale of seized
implementation of the environmental law violated. items, equipment, paraphernalia, tools or
(Sec. 1, Rule 10) instruments of the crime. The court shall,
after hearing, fix the minimum bid price
Q: What is the purpose of the award for damages? based on the recommendation of the
concerned government agency. The
A: It shall be used for the restoration and sheriff shall conduct the auction.
rehabilitation of the environment adversely 4. The auction sale shall be with notice to
affected. (Sec. 1, Rule 10) the accused, the person from whom the
items were seized, or the owner thereof
3. ARREST WITHOUT WARRANT, WHEN VALID and the concerned government agency.
5. The notice of auction shall be posted in
Q: When is an arrest without a warrant lawful? three conspicuous places in the city or
municipality where the items, equipment,
383
paraphernalia, tools or instruments of the 6. ARRAIGNMENT AND PLEA

crime were seized.
6. The proceeds shall be held in trust and Q: When shall the court set the arraignment of the
deposited with the government accused?
depository bank for disposition according
to the judgment. (Sec. 2, Rule 12) A: Within 15 days from the time it acquires
jurisdiction over the accused. (Sec. 1, Rule 15)
5. BAIL
NOTE: Notice that plea bargaining will be entertained
Q: Where must bail be filed? on the date of arraignment must be sent to the public
prosecutor, the offended party and the government
A: It is filed with the court where the case is agency concerned.
pending, or in the absence or unavailability of the
judge thereof, with any regional trial judge, Q: What is the duty of the court when the
metropolitan trial judge, municipal trial judge or prosecution and offended party or concerned
municipal circuit trial judge in the province, city or government agency agree to the plea offered by
municipality. the accused?
If the accused is arrested in a province, city or A:

municipality other than where the case is pending, 1. Issue an order which contains the plea-
bail may also be filed with any Regional Trial Court bargaining arrived at;
of said place, or if no judge thereof is available, with 2. Proceed to receive evidence on the civil
any metropolitan trial judge, municipal trial judge aspect of the case, if any; and
or municipal circuit trial judge therein. If the court 3. Render and promulgate judgment of
grants bail, the court may issue a hold-departure conviction, including the civil liability for
order in appropriate cases. (Sec. 1, Rule 14) damages. (Sec. 2, Rule 15)
Q: What must the court do before granting the bail 7. PRE-TRIAL

application?
Q: When should the pre-trial conference take
A: The judge must read the information to the place?
accused in a language known to and understood by
the accused. (Sec. 2, Rule 14) A: It shall take place within 30 days from
arraignment. The court may also refer the case to
Q: What are the contents of the written the branch clerk of court for preliminary conference
undertaking which the accused must sign? at least 3 days before the pre-trial conference. (Sec.
1, Rule 16)
A:
1. To appear before the court that issued Q: What are the purposes of the preliminary
the warrant of arrest for arraignment conference?
purposes on the date scheduled, and if
the accused fails to appear without A:
justification on the date of arraignment, 1. To assist the parties in reaching a
accused waives the reading of the settlement of the civil aspect of the case;
information and authorizes the court to 2. To mark the documents to be presented
enter a plea of not guilty on behalf of the as exhibits;
accused and to set the case for trial; 3. To attach copies thereof to the records
2. To appear whenever required by the after comparison with the originals;
court where the case is pending; and 4. To ascertain from the parties the
3. To waive the right of the accused to be undisputed facts and admissions on the
present at the trial, and upon failure of genuineness and due execution of
the accused to appear without documents marked as exhibits;
justification and despite due notice, the 5. To consider such other matters as may aid
trial may proceed in absentia. (Sec. 2, Rule in the prompt disposition of the case;
14) 6. To record the proceedings during the
preliminary conference in the Minutes of
Preliminary Conference to be signed by
the parties and counsel;

7. To mark the affidavits of witnesses which Q: Can an agreement or admission made or

shall be in question and answer form and entered during the pre-trial conference not
shall constitute the direct examination of reduced into writing and signed by the accused
the witnesses; and and counsel be used against the accused?
8. To attach the Minutes and marked
exhibits to the case record before the pre- A: No. (Sec. 5, Rule 16)
trial proper.
Note: The agreements covering the matters referred
Note: The parties or their counsel must submit to the to in Section 1, Rule 118 of the Rules of Court shall be
branch clerk of court the names, addresses and approved by the court.
contact numbers of the affiants. (Sec. 2, Rule 16)
Q: Should the proceedings be recorded?
Q: What is the duty of the court during pre-trial?
A: All proceedings during the pre-trial shall be
A: recorded, the transcripts prepared and the minutes
1. Place the parties and their counsels under signed by the parties or their counsels. (Sec. 6, Rule
oath; 16)
2. Adopt the minutes of the preliminary
conference as part of the pre-trial Q: What does the pre-trial order contain?
proceedings, confirm markings of exhibits
or substituted photocopies and A: Within 10 days after termination of the pre-trial,
admissions on the genuineness and due the court shall issue a pre-trial order containing:
execution of documents, and list object
and testimonial evidence; 1. The actions taken during the pre-trial
3. Scrutinize the information and the conference;
statements in the affidavits and other 2. The facts stipulated;
documents which form part of the record 3. The admissions made;
of the preliminary investigation together 4. Evidence marked;
with other documents identified and 5. Number of witnesses to be presented;
marked as exhibits to determine further and
admissions of facts as to: 6. Schedule of trial. (Sec. 7, Rule 16)
i. The court’s territorial
jurisdiction relative to the Note: The order shall bind the parties and control
offense(s) charged; the course of action during the trial.
ii. Qualification of expert
witnesses; and 8. SUBSIDIARY LIABILITIES
iii. Amount of damages;
4. Define factual and legal issues; Q: When may subsidiary liability be recovered?
5. Ask parties to agree on the specific trial
dates and adhere to the flow chart A: Under Art. 102 and 103 of the RPC, liability may
determined by the court which shall be enforced the person or corporation subsidiarily
contain the time frames for the different liable upon motion of the person entitled to recover
stages of the proceeding up to such award in case of conviction of the acused. (Sec
promulgation of decision; 1, Rule 18)
6. Require the parties to submit to the
branch clerk of court the names, E. EVIDENCE
addresses and contact numbers of
witnesses that need to be summoned by 1. PRECAUTIONARY PRINCIPLE
subpoena; and
7. Consider modification of order of trial if Q: What is the precautionary principle?
the accused admits the charge but
interposes a lawful defense. (Sec. 13, Rule A: The court in upholding the constitutional right of
16) the people to a balanced and healthful ecology shall
give the evidence presented the benefit of the
Q: To whom should the questions be directed? doubt even when there is a lack of full scientific
certainty in establishing a causal link between
A: The court. (Sec 14, Rule 16) human activity and the environmental effect. (Sec.
1, Rule 20)
385
Q: What are the factors that the courts may

consider in applying the precautionary principle?
A:
1. Threats to human life or health;
2. Inequity to present or future generations;
or
3. Prejudice to the environment without
legal consideration of the environmental
rights of those affected. (Sec. 2, Rule 20)
2. DOCUMENTARY EVIDENCE
Q: When are photographs, videos and other

similar evidence admissible under this Rule?
A: Photographs, videos and similar evidence of

events, acts, transactions of wildlife, wildlife by-
products or derivatives, forest products or mineral
resources subject of a case shall be admissible
when authenticated by the person who took the
same, by some other person present when said
evidence was taken, or by any other person
competent to testify on the accuracy thereof. (Sec.
1, Rule 21)
Q: Are entries in official records prima facie

evidence of the facts stated therein?
A: Yes. (Sec 2, Rule 21)


Remedial PDF

Uploaded by

Document Information

Original Title

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

Remedial PDF

Uploaded by

Copyright:

Available Formats

GENERAL PRINCIPLES

I. GENERAL PRINCIPLES 7. Court decisions (Herrera, Vol. I, p. 2, 2007

A: 1. LIMITATIONS ON THE RULE-MAKING POWER OF

D. NATURE OF PHILIPPINE COURTS 5. COURTS OF GENERAL AND SPECIAL

Q: What is a court? Q: Distinguish Courts of general jurisdiction from

3. CLASSIFICATION OF PHILIPPINE COURTS A:

2 REMEDIAL LAW TEAM:

Q: What are courts of record?

A: These are courts whose proceedings are enrolled

8. PRINCIPLE OF JUDICIAL HIERARCHY

Q: What is the policy of Judicial Hierarchy or

A: A higher court will not entertain direct resort to

Q: What is Doctrine of Non-Interference or Judicial

A: Courts of equal and coordinate jurisdiction

Note: GR: No court has the authority to interfere by

XPN: The doctrine does not apply where a third party

II. JURISDICTION Q: Distinguish jurisdiction over the subject matter

A: It is acquired from the moment of filing the Note: Tenancy relationship is

4 REMEDIAL LAW TEAM:

2. JURISDICTION VERSUS THE EXERCISE OF

Q: Distinguish jurisdiction from exercise of Q: What is Doctrine of Primary Jurisdiction?

Q: Distinguish error of jurisdiction from error of Q: What is Doctrine of Ancillary Jurisdiction?

5. When the proceedings in the court because it cannot be tolerated by reason

6 REMEDIAL LAW TEAM:

Civil Cases Criminal Cases

8 REMEDIAL LAW TEAM:

b. Civil Service Commission

2. Petitions for issuance of writ of kalikasan (Sec. 3, Rule 7,

Note: g. P.D. No. 1433 - Plant Quarantine Law

r. R.A. 8749 - Clean Air Act; of directors, business associates, its

Civil Cases Criminal Cases

10 REMEDIAL LAW TEAM:

jurisdiction (R.A. 7691).

3. COURT OF TAX APPEALS

Tax Cases Criminal Cases

With Commissioner of Customs

Civil Cases Criminal Cases

12 REMEDIAL LAW TEAM:

Sandiganbayan, after going over the information,

5. REGIONAL TRIAL COURTS

Civil Cases Criminal Cases

Civil Cases Criminal Cases

7. METROPOLITAN TRIAL COURTS/MUNICIPAL TRIAL COURTS

Civil Cases Criminal Cases

14 REMEDIAL LAW TEAM:

Note: The value shall be ascertained by the affidavit of the

16 REMEDIAL LAW TEAM:

These claims or demands may be:

thereto agree to submit their obligation which is not purely

Q: What is the Aggregate or Totality Rule?

A: Where there are several claims or causes of

18 REMEDIAL LAW TEAM:

III. CIVIL PROCEDURE

6. LOCAL AND TRANSITORY ACTIONS

7. ACTIONS IN REM, IN PERSONAM AND QUASI IN REM

Q: Distinguish actions in rem, in personam and quasi in rem

20 REMEDIAL LAW TEAM:

B. CAUSE OF ACTION 3. FAILURE TO STATE A CAUSE OF ACTION

1. MEANING OF CAUSE OF ACTION Q: Distinguish failure to state cause of action from

22 REMEDIAL LAW TEAM:

24 REMEDIAL LAW TEAM:

D. VENUE A: The venue is transitory, hence the venue is the

Q: Distinguish venue from jurisdiction. 4. VENUE OF ACTIONS AGAINST NON-RESIDENTS