Remedial Law Reviewer
Remedial Law Reviewer
Remedial Law Reviewer
CIVIL PROCEDURE
Rules 1 - 71
I. GENERAL PRINCIPLES
Concept of Remedial Law
Remedial Law is that branch of law which prescribes the method of enforcing rights or obtaining redress
for their invasion.
Substantive law creates, defines and regulates rights and duties regarding life, liberty or property which
when violated gives rise to a cause of action (Bustos v. Lucero, 81 Phil. 640).
Remedial law prescribes the methods of enforcing those rights and obligations created by substantive law
by providing a procedural system for obtaining redress for the invasion of rights and violations of duties
and by prescribing rules as to how suits are filed, tried and decided by the courts.
As applied to criminal law, substantive law is that which declares what acts are crimes and prescribes the
punishment for committing them, as distinguished from remedial law which provides or regulates the
steps by which one who commits a crime is to be punished.
Section 5 (5), Art. VIII of the Constitution provides that the Supreme Court shall have the power to
promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice,
and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance
to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speed
disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or
modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain
effective unless disapproved by the Supreme Court.
(1) The rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases
(2) They shall be uniform for all courts of the same grade
(3) They shall not diminish, increase, or modify substantive rights (Sec. 5[5], Art. VIII, Constitution).
(4) The power to admit attorneys to the Bar is not an arbitrary and despotic one, to be exercised at
the pleasure of the court, or from passion, prejudice or personal hostility, but is the duty of the
court to exercise and regulate it by a sound and judicial discretion. (Andres vs. Cabrera, 127
SCRA 802)
(1) When compelling reasons so warrant or when the purpose of justice requires it. What constitutes
and good and sufficient cause that would merit suspension of the rules is discretionary upon
courts. (CIR v. Migrant Pagbilao Corp., GR 159593, Oct. 12, 2006) . Reasons that would warrant
the suspension of the Rules: (a) the existence of special or compelling circumstances (b) merits of
the case (c) cause not entirely attributable to the fault or negligence of the party favored by the
suspension of rules (d) a lack of ay showing that the review sought is merely frivolous and dilatory
(e) the other party will not be unjustly prejudiced thereby (Sarmiento v. Zaratan, GR 167471, Feb.
5, 2007)
Philippine courts are both courts of law and equity. Hence, both legal and equitable jurisdiction is
dispensed with in the same tribunal. (US v. Tamparong, 31 Phil. 321)
What is a Court
(1) It is an organ of government belonging to the judicial department the function of which is the
application of the laws to the controversies brought before it as well as the public administration of
justice.
(2) It is a governmental body officially assembled under authority of law at the appropriate time and
place for the administration of justice through which the State enforces its sovereign rights and
powers (21 CJS 16).
(3) It is a board or tribunal which decides a litigation or contest (Hidalgo v. Manglapus, 64 OG 3189).
(1) A court is a tribunal officially assembled under authority of law; a judge is simply an officer of such
tribunal;
(2) A court is an organ of the government with a personality separate and distinct from the person or
judge who sits on it;
(3) A court is a being in imagination comparable to a corporation, whereas a judge is a physical
person ;
(4) A court may be considered an office; a judge is a public officer; and
(5) The circumstances of the court are not affected by the circumstances that would affect the judge.
(1) Regular courts engaged in the administration of justice are organized into four (4) levels:
(a) First Level (MTCs, MeTCs, MCTCs) which try and decide (1) criminal actions involving
violations of city or municipal ordinances committed within their respective territorial
jurisdiction and offenses punishable with imprisonment not exceeding six (6) years
irrespective of the amount of fine and regardless of other imposable accessory or other
penalties, and (2) civil actions including ejectment, recovery of personal property with a value
of not more than P300,000 outside MM or does not exceed P400,000 in MM;
(b) Second Level (RTCs, Family Courts) courts of general jurisdiction; among the civil actions
assigned to them by law are those in which the subject of litigation is incapable of pecuniary
estimation, or involving title to or possession of real property where the assessed value of the
property exceeds P20,000 outside MM or exceeds P50,000 in MM, except actions for
ejectment (forcible entry and unlawful detainer), or where the demand exclusive of interest,
damages of whatever kind, attorneys fees, litigation expenses, and cost, or the value of the
personal property or controversy exceeds P300,000 outside MM or exceeds P400,000 in MM.
RTCs also exercise appellate jurisdiction, to review cases appealed from courts of the first
level;
(1) A court is one with original jurisdiction when actions or proceedings are originally filed with it. A
court is one with appellate jurisdiction when it has the power of review over the decisions or
orders of a lower court
(2) MeTCs, MCTCs and MTCs are courts of original jurisdiction without appellate jurisdiction. RTC is
likewise a court of original jurisdiction with respect to cases originally filed with it; and appellate
court with respect to cases decided by MTCs within its territorial jurisdiction. (Sec. 22, BP 129)
(3) CA is primarily a court of appellate jurisdiction with competence to review judgments of the RTCs
and specified quasi-judicial agencies (Sec. 9[3], BP 129). It is also a court of original jurisdiction
with respect to cases filed before it involving issuance of writs of certiorari, mandamus, quo
warranto, habeas corpus, and prohibition. CA is a court of original and exclusive jurisdiction over
actions for annulment of judgments of RTCs (Sec. 9 [1],[2], BP 129).
(4) The SC is fundamentally a court of appellate jurisdiction but it may also be a court of original
jurisdiction over cases affecting ambassadors, public ministers and consuls, and in cases
involving petitions for certiorari, prohibition and mandamus (Sec. 5[1], Art. VIII, Constitution). The
Supreme Court en banc is not an appellate court to which decisions or resolutions of a division of
the Supreme Court may be appealed.
(1) Courts of general jurisdiction are those with competence to decide on their own jurisdiction and to
take cognizance of all cases, civil and criminal, of a particular nature. Courts of special (limited)
jurisdiction are those which have only a special jurisdiction for a particular purpose or are clothed
with special powers for the performance of specified duties beyond which they have no authority
of any kind.
(2) A court may also be considered general if it has the competence to exercise jurisdiction over
cases not falling within the jurisdiction of any court, tribunal, person or body exercising judicial or
quasi-judicial functions. It is in the context that the RTC is considered a court of general
jurisdiction.
(1) This is an ordained sequence of recourse to courts vested with concurrent jurisdiction, beginning
from the lowest, on to the next highest, and ultimately to the highest. This hierarchy is
(1) Courts of equal and coordinate jurisdiction cannot interfere with each others 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.
(2) This doctrine applies with equal force to administrative bodies. When the law provides for an
appeal from the decision of an administrative body to the SC or CA, it means that such body is co-
equal with the RTC in terms of rand and stature, and logically beyond the control of the latter.
II. JURISDICTION
Jurisdiction the power and authority of the court to hear, try and decide a case.
(1) The manner by which the court acquires jurisdiction over the parties depends on whether the
party is the plaintiff or the defendant
(2) Jurisdiction over the plaintiff is acquired by his filing of the complaint or petition. By doing so, he
submits himself to the jurisdiction of the court.
(3) Jurisdiction over the person of the defendant is obtained either by a valid service of summons
upon him or by his voluntary submission to the courts authority.
(4) The mode of acquisition of jurisdiction over the plaintiff and the defendant applies to both ordinary
and special civil actions like mandamus or unlawful detainer cases.
Jurisdiction over the person of the defendant is required only in an action in personam; it is not a
prerequisite in an action in rem and quasi in rem. In an action in personam, jurisdiction over the person is
necessary for the court to validly try and decide the case, while in a proceeding in rem or quasi in rem,
jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court,
provided the latter has jurisdiction over the res.
(1) 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 is question belongs.
(2) When a complaint is filed in court, the basic questions that ipso facto are to be immediately
resolved by the court on its own: (a) What is the subject matter of their complaint filed before the
court? (b) Does the court have jurisdiction over the said subject matter of the complaint before it?
Answering these questions inevitably requires looking into the applicable laws conferring
jurisdiction.
(1) Jurisdiction if the power or authority of the court. The exercise of this power or authority is the
exercise of jurisdiction.
(1) An error of jurisdiction is one where the act complained of was issued by the court without or in
excess of jurisdiction. It occurs when the court exercises a jurisdiction not conferred upon it by
law, or when the court or tribunal although with jurisdiction, acts in excess of its jurisdiction or with
grave abuse of discretion amounting to lack or jurisdiction.
(2) An error of judgment is one which the court may commit in the exercise of its jurisdiction. As long
as the court acts within its jurisdiction, any alleged errors committed in the exercise of its
discretion will amount to nothing more than mere errors of judgment. Errors of judgment include
errors of procedure or mistakes in the courts findings.
(3) Errors of judgment are correctible by appeal; errors of jurisdiction are correctible only by the
extraordinary writ of certiorari. Any judgment rendered without jurisdiction is a total nullity and
may be struck down at any time, even on appeal; the only exception is when the party raising the
issue is barred by estoppel.
(4) When a court, tribunal, or officer has jurisdiction over the person and the subject matter of the
dispute, the decision on all other questions arising in the case is an exercise of that jurisdiction.
Consequently, all errors committed in the exercise of said jurisdiction are merely errors of
judgment. Under prevailing procedural rules and jurisprudence, errors of judgment are not proper
subjects of a special civil action for certiorari.
(1) Jurisdiction is a matter of substantive law because it is conferred by law. This jurisdiction which is
a matter of substantive law should be construed to refer only to jurisdiction over the subject
matter. Jurisdiction over the parties, the issues and the res are matters of procedure. The test of
jurisdiction is whether the court has the power to enter into the inquiry and not whether the
decision is right or wrong.
(2) It is the duty of the court to consider the question of jurisdiction before it looks at other matters
involved in the case. If the court finds that it has jurisdiction, it is the duty of the court to exercise
the jurisdiction conferred upon it by law and to render a decision in a case properly submitted to it.
(1) Courts will not resolve a controversy involving a question which is within the jurisdiction of an
administrative tribunal, especially where the question demands the exercise of sound
administrative discretion requiring the special knowledge, experience and services of the
administrative tribunal to determine technical and intricate matters of fact.
(2) The objective is to guide a court in determining whether it should refrain from exercising its
jurisdiction until after an administrative agency has determined some question or some aspect of
some question arising in the proceeding before the court (Omictin vs. CA, GR 148004, January
22, 2007).
(1) In view of the principle that once a court has acquired jurisdiction, that jurisdiction continues until
the court has done all that it can do in the exercise of that jurisdiction. This principle also means
that once jurisdiction has attached, it cannot be ousted by subsequent happenings or events,
although of a character which would have prevented jurisdiction from attaching in the first
instance. The court, once jurisdiction has been acquired, retains that jurisdiction until it finally
disposes of the case.
(2) Even the finality of the judgment does not totally deprive the court of jurisdiction over the case.
What the court loses is the power to amend, modify or alter the judgment. Even after the judgment
has become final, the court retains jurisdiction to enforce and execute it (Echegaray vs. Secretary
of Justice, 301 SCRA 96).
(1) When it appears from the pleadings or evidence on record that the court has no jurisdiction over
the subject matter, the court shall dismiss the same. (Sec. 1, Rule 9). The court may on its own
initiative object to an erroneous jurisdiction and may ex mero motu take cognizance of lack of
jurisdiction at any point in the case and has a clearly recognized right to determine its own
jurisdiction.
(2) Jurisdiction over the subject matter may be raised at any stage of the proceedings, even for the
first time on appeal. When the court dismisses the complaint for lack of jurisdiction over the
subject matter, it is common reason that the court cannot remand the case to another court with
the proper jurisdiction. Its only power is to dismiss and not to make any other order.
(3) Under the omnibus motion rule, a motion attacking a pleading like a motion to dismiss shall
include all grounds then available and all objections not so included shall be deemed waived. The
defense of lack of jurisdiction over the subject matter is however, a defense not barred by the
failure to invoke the same in a motion to dismiss already filed. Even if a motion to dismiss was
filed and the issue of jurisdiction was not raised therein, a party may, when he files an answer,
raise the lack of jurisdiction as an affirmative defense because this defense is not barred under te
omnibus motion rule.
(1) The active participation of a party in a case is tantamount to recognition of that courts jurisdiction
and will bar a party from impugning the courts jurisdiction. Jurisprudence however, did not intend
this statement to lay down the general rule. (Lapanday Agricultural & Development Corp. v. Estita,
449 SCRA 240; Mangaiag v. Catubig-Pastoral, 474 SCRA 153). The Sibonghanoy applies only to
exceptional circumstances. The general rule remains: a courts lack of jurisdiction may be raised
at any stage of the proceedings even on appeal (Francel Realty Corp. v. Sycip, 469 SCRA 424;
Concepcion v. Regalado, GR 167988, Feb. 6, 2007).
(2) The doctrine of estoppels by laches in relation to objections to jurisdiction first appeared in the
landmark case of Tijam vs. Sibonghanoy, 23 SCRA 29, where the SC barred a belated objection
(1) It is the power of the court to try and decide issues raised in the pleadings of the parties.
(2) An issue is a disputed point or question to which parties to an action have narrowed down their
several allegations and upon which they are desirous of obtaining a decision. Where there is no
disputed point, there is no issue.
(3) Generally, jurisdiction over the issues is conferred and determined by the pleadings of the parties.
The pleadings present the issues to be tried and determine whether or not the issues are of fact
or law.
(4) Jurisdiction over the issues may also be determined and conferred by stipulation of the parties as
when in the pre-trial, the parties enter into stipulations of facts and documents or enter into
agreement simplifying the issues of the case.
(5) It may also be conferred by waiver or failure to object to the presentation of evidence on a matter
not raised in the pleadings. Here the parties try with their express or implied consent issues not
raised by the pleadings. The issues tried shall be treated in all respects as if they had been raised
in the pleadings.
(1) Jurisdiction over the res refers to the courts jurisdiction over the thing or the property which is the
subject of the action. Jurisdiction over the res may be acquired by the court by placing the
property of thing under its custody (custodia legis). Example: attachment of property. It may also
be acquired by the court through statutory authority conferring upon it the power to deal with the
property or thing within the courts territorial jurisdiction. Example: suits involving the status of the
parties or suits involving the property in the Philippines of non-resident defendants.
(2) Jurisdiction over the res is acquired by the seizure of the thing under legal process whereby it is
brought into actual custody of law, or it may result from the institution of a legal proceeding
wherein the power of the court over the thing is recognized and made effective (Banco Espaol
Filipino vs. Palanca, 37 Phil. 291).
(1) Exclusive original jurisdiction in petitions for certiorari, prohibition and mandamus against the CA,
COMELEC, COA, CTA, Sandiganbayan, NLRC
(2) Concurrent original jurisdiction
(a) With Court of Appeals in petitions for certiorari, prohibition and mandamus against the RTC,
CSC, Central Board of Assessment Appeals, Quasi-judicial agencies, and writ of kalikasan,
all subject to the doctrine of hierarchy of courts.
(b) With the CA and RTC in petitions for certiorari, prohibition and mandamus against lower
courts and bodies and in petitions for quo warranto, and writs of habeas corpus, all subject to
the doctrine of hierarchy of courts.
(c) With CA, RTC and Sandiganbayan for petitions for writs of amparo and habeas data
(d) Concurrent original jurisdiction with the RTC in cases affecting ambassadors, public ministers
and consuls.
(3) Appellate jurisdiction by way of petition for review on certiorari (appeal by certiorari under Rule
45) against CA, Sandiganbayan, RTC on pure questions of law; and in cases involving the
constitutionality or validity of a law or treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction, ordinance or regulation, legality of a tax,
(1) Exclusive original jurisdiction in actions for the annulment of the judgments of the RTC.
(2) Concurrent original jurisdiction
(a) With SC to issue writs of certiorari, prohibition and mandamus against the RTC, CSC, CBAA,
other quasi-judicial agencies mentioned in Rule 43, and the NLRC, and writ of kalikasan.
(b) With the SC and RTC to issue writs of certiorari, prohibition and mandamus against lower
courts and bodies and writs of quo warranto, habeas corpus, whether or not in aid of its
appellate jurisdiction, and writ of continuing mandamus on environmental cases.
(c) With SC, RTC and Sandiganbayan for petitions for writs of amparo and habeas data
(3) Exclusive appellate jurisdiction
(a) by way of ordinary appeal from the RTC and the Family Courts.
(b) by way of petition for review from the RTC rendered by the RTC in the exercise of its
appellate jurisdiction.
(c) by way of petition for review from the decisions, resolutions, orders or awards of the CSC,
CBAA and other bodies mentioned in Rule 43 and of the Office of the Ombudsman in
administrative disciplinary cases.
(d) over decisions of MTCs in cadastral or land registration cases pursuant to its delegated
jurisdiction; this is because decisions of MTCs in these cases are appealable in the same
manner as decisions of RTCs.
Jurisdiction of the Court of Tax Appeals (under RA 9282 and Rule 5, AM 05-11-07-CTA)
Under RA 8369, shall have exclusive original jurisdiction over the following cases:
(1) Petitions for guardianship, custody of children and habeas corpus involving children
(2) Petitions for adoption of children and the revocation thereof
(3) Complaints for annulment of marriage, declaration of nullity of marriage and those relating to
status and property relations of husband and wife or those living together under different status
and agreements, and petitions for dissolution of conjugal partnership of gains
(4) Petitions for support and/or acknowledgment
(5) Summary judicial proceedings brought under the provisions of EO 209 (Family Code)
(6) Petitions for declaration of status of children as abandoned, dependent or neglected children,
petitions for voluntary or involuntary commitment of children, the suspension, termination or
restoration of parental authority and other cases cognizable under PD 603, EO 56 (1986) and
other related laws
(7) Petitions for the constitution of the family home
(1) MTCs, MeTCs and MCTCs shall have jurisdiction over actions for payment of money where the
value of the claim does not exceed P100,000 exclusive of interest and costs (Sec. 2, AM 08-8-7-
SC, Oct. 27, 2009).
(2) Actions covered are (a) purely civil in nature where the claim or relief prayed for by the plaintiff is
soley for payment or reimbursement of sum of money, and (b) the civil aspect of criminal actions,
either filed before the institution of the criminal action, or reserved upon the filing of the criminal
action in court, pursuant to Rule 111 (Sec. 4, AM 08-8-7-SC). These claims may be:
(a) For money owed under the contracts of lease, loan, services, sale, or mortgage;
(b) For damages arising from fault or negligence, quasi-contract, or contract; and
(c) The enforcement of a barangay amicable settlement or an arbitration award involving a
money claim pursuant to Sec. 417 of RA 7160 (LGC).
(1) The Lupon of each barangay shall have the authority to bring together the parties actually residing
in the same municipality or city for amicable settlement of all disputes except:
(a) Where one party is the government or any subdivision or instrumentality thereof
(b) Where one party is a public officer or employee, and the dispute relates to the performance of
his official functions
(c) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding P5,000
(d) Offenses where there is no private offended party
(e) Where the dispute involves real properties located in different cities or municipalities unless
the parties thereto agree to submit their differences to amicable settlement by an appropriate
lupon
(f) Disputes involving parties who actually reside in barangays of different cities or municipalities,
except where such barangay units adjoin each other and the parties thereto agree to submit
their differences to amicable settlement by an appropriate lupon
(g) Such other classes of disputes which the President may determine in the interest of justice or
upon the recommendation of the Secretary of Justice
(h) Any complaint by or against corporations, partnerships, or juridical entities. The reason is that
only individuals shall be parties to barangay conciliation proceedings either as complainants
or respondents
(i) Disputes where urgent legal action is necessary to prevent injustice from being committed or
further continued, specifically:
1. A criminal case where the accused is under police custody or detention
2. A petition for habeas corpus by a person illegally detained or deprived of his liberty or one
acting in his behalf
3. Actions coupled with provisional remedies, such as preliminary injunction, attachment,
replevin and support pendente lite
4. Where the action may be barred by statute of limitations
(j) Labor disputes or controversies arising from employer-employee relationship
(k) Where the dispute arises from the CARL
(l) Actions to annul judgment upon a compromise which can be directly filed in court.
Totality Rule
(1) Where there are several claims or causes of actions between the same or different parties,
embodied in the same complaint, the amount of the demand shall be the totality of the claims in
all the claims of action, irrespective of whether the causes of action arose out of the same or
different transactions (Sec. 33[1], BP 129).
III. ACTIONS
Action (synonymous with suit) is the legal and formal demand of ones right from another person made
and insisted upon in a court of justice (Bouviers Law Dictionary). The kinds of actions are ordinary and
special, civil and criminal, ex contractu and ex delicto, penal and remedial, real, personal, and mixed
action, action in personam, in rem, and quasi in rem,
(1) Ordinary civil action is one by which one party sues another, based on a cause of action, to
enforce or protect a right, or to prevent or redress a wrong, whereby the defendant has performed
an act or omitted to do an act in violation of the rights of the plaintiff. (Sec. 3a) The purpose is
primarily compensatory.
(2) Special civil action is also one by which one party sues another to enforce or protect a right, or to
prevent or redress a wrong.
(3) A criminal action is one by which the State prosecutes a person for an act or omission punishable
by law (Sec. 3[b], Rule 1). The purpose is primarily punishment.
(1) The purpose of an action is either to protect a right or prevent or redress a wrong. The purpose of
special proceeding is to establish a status, a right or a particular fact.
(1) An action is real when it affects title to or possession of real property, or an interest therein. All
other actions are personal actions.
(2) An action is real when it is founded upon the privity of real estate, which means that the realty or
an interest therein is the subject matter of the action. The issues involved in real actions are title
to, ownership, possession, partition, foreclosure of mortgage or condemnation of real property.
(3) Not every action involving real property is a real action because the realty may only be incidental
to the subject matter of the suit. Example is an action for damages to real property, while involving
realty is a personal action because although it involves real property, it does not involve any of the
issues mentioned.
(4) Real actions are based on the privity of real estates; while personal actions are based on privity of
contracts or for the recovery of sums of money.
(5) The distinction between real action and personal action is important for the purpose of
determining the venue of the action. A real action is local, which means that its venue depends
upon the location of the property involved in the litigation. A personal action is transitory, which
means that its venue depends upon the residence of the plaintiff or the defendant at the option of
the plaintiff.
(1) A local action is one founded on privity of estates only and there is no privity of contracts. A real
action is a local action, its venue depends upon the location of the property involved in litigation.
Actions affecting title to or possession of real property, or interest therein, shall be commenced
and tried in the proper court which has jurisdiction over the area wherein the real property
involved, or a portion thereof is situated (Sec. 1, Rule 4).
(2) Transitory action is one founded on privity of contracts between the parties. A personal action is
transitory, its venue depends upon the residence of the plaintiff or the defendant at the option of
the plaintiff. A personal action may be commenced and tried where the plaintiff or any of the
principal plaintiffs resides or where the defendant or any of the principal defendants resides, or in
the case of non-resident defendant, where he may be found, at the election of the plaintiff (Sec.
2, Rule 4).
(1) An action in rem, one instituted and enforced against the whole world.
(2) An action in personam is one filed against a definite defendant. It is intended to subject the
interest of defendant on a property to an obligation or lien. Jurisdiction over the person
(defendant) is required. It is a proceeding to enforce personal rights and obligations brought
against the person, and is based on the jurisdiction of the person, although it may involve his right
The question of whether the trial court has jurisdiction depends on the nature of the action
whether the action is in personam, in rem, or quasi in rem. The rules on service of summons
under Rule 14 likewise apply according to the nature of the action.
An action in personam is an action against a person on the basis of his personal liability. And
action in rem is an action against the thing itself instead of against the person. An action quasi in
rem is one wherein an individual is named as defendant and the purpose of the proceeding is to
subject his interest therein to the obligation or lien burdening the property.
In an action in personam, jurisdiction over the person of the defendant is necessary for the court
to validly try and decide the case. In a proceeding in rem or quasi in rem, jurisdiction over the
person of the defendant is not a prerequisite to confer jurisdiction over the res. Jurisdiction over
the res is acquired either (1) by the seizure of the property under legal process, whereby it is
brought into actual custody of the law; or (2) as a result of the institution of legal proceedings, in
which the power of the court is recognized and made effective.
Nonetheless, summons must be served upon the defendant not for the purpose of vesting the
court with jurisdiction but merely for satisfying the due process requirements.
(1) A cause of action is the act or omission by which a party (defendant) violates the rights of another
(plaintiff).
(2) It is the delict or wrong by which the defendant violates the right or rights of the plaintiff (Ma-ao
Sugar Central v. Barrios, 76 Phil. 666).
(3) The elements are:
(1) A cause of action refers to the delict or wrong committed by the defendants, whereas right of
action refers to the right of the plaintiff to institute the action;
(2) A cause of action is determined by the pleadings; whereas a right of action is determined by the
substantive law;
(3) A right of action may be taken away by the running of the statute of limitations, by estoppels or
other circumstances which do not at all affect the cause of action (Marquez v. Varela, 92 Phil.
373).
(1) The mere existence of a cause of action is not sufficient for a complaint to prosper. Even if in
reality the plaintiff has a cause of action against the defendant, the complaint may be dismissed if
the complaint or the pleading asserting the claim states no cause of action. This means that the
cause of action must unmistakably be stated or alleged in the complaint or that all the elements of
the cause of action required by substantive law must clearly appear from the mere reading of the
complaint. To avoid an early dismissal of the complaint, the simple dictum to be followed is: If
you have a cause of action, then by all means, state it! Where there is a defect or an insufficiency
in the statement of the cause of action, a complaint may be dismissed not because of an absence
or a lack of cause of action by because the complaint states no cause of action. The dismissal will
therefore, be anchored on a failure to state a cause of action.
(2) It doesnt mean that the plaintiff has no cause of action. It only means that the plaintiffs
allegations are insufficient for the court to know that the rights of the plaintiff were violated by the
defendant. Thus, even if indeed the plaintiff suffered injury, if the same is not set forth in the
complaint, the pleading will state no cause of action even if in reality the plaintiff has a cause of
action against the defendant.
(1) The test is whether or not admitting the facts alleged, the court could render a valid verdict in
accordance with the prayer of the complaint (Misamis Occidental II Cooperative, Inc. vs. David,
468 SCRA 63; Santos v. de Leon, 470 SCRA 455).
(2) To be taken into account are only the material allegations in the complaint; extraneous facts and
circumstances or other matter aliunde are not considered but the court may consider in addition to
the complaint the appended annexes or documents, other pleadings of the plaintiff, or admissions
in the records (Zepeda v. China Banking Corp., GR 172175, Oct. 9, 2006) .
(3) In determining whether or not a cause of action is sufficiently stated in the complaint, the
statements in the complaint may be properly considered. It is error for the court to take
cognizance of external facts or to hold preliminary hearings to determine its existence (Diaz v.
Diaz, 331 SCRA 302). The sufficiency of the statement of the COA must appear on the face of the
complaint and its existence may be determined only by the allegations of the complaint,
(1) It is the act of instituting two or more suits for the same cause of action (Sec. 4, Rule 2). It is the
practice of dividing one cause of action into different parts and making each part the subject of a
separate complaint (Bachrach vs. Icaringal, 68 SCRA 287). In splitting a cause of action, the
pleader divides a single cause of action, claim or demand into two or more parts, brings a suit for
one of such parts with the intent to reserve the rest for another separate action (Quadra vs. CA,
GR 147593, July 31, 2006). This practice is not allowed by the Rules because it breeds
multiplicity of suits, clogs the court dockets, leads to vexatious litigation, operates as an
instrument of harassment, and generates unnecessary expenses to the parties.
(2) The filing of the first may be pleaded in abatement of the other or others and a judgment upon the
merits in any one is available as a bar to, or a ground for dismissal of, the others (Sec. 4, Rule 2;
Bacolod City vs. San Miguel, Inc., L-2513, Oct. 30, 1969). The remedy of the defendant is to file a
motion to dismiss. Hence, if the first action is pending when the second action is filed, the latter
may be dismissed based on litis pendencia, there is another action pending between the same
parties for the same cause. If a final judgment had been rendered in the first action when the
second action is filed, the latter may be dismissed based on res judicata, that the cause of action
is barred by prior judgment. As to which action should be dismissed would depend upon judicial
discretion and the prevailing circumstances of the case.
(1) Joinder of causes of action is the assertion of as many causes of action as a party may have
against another in one pleading alone (Sec. 5, Rule 2). It is the process of uniting two or more
demands or rights of action in one action, subject to the following conditions:
(a) The party joining the causes of action shall comply with the rules on joinder of parties;
(b) The joinder shall not include special civil actions governed by special rules;
(c) Where the cause of action are between the same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the RTC provided one of the causes of action falls
within the jurisdiction of said court and the venue lies therein; and
(d) Where the claims in all the causes of action are principally for recovery of money, the
aggregate amount claimed shall be the test of jurisdiction (totality rule).
(2) Restrictions on joinder of causes of action are: jurisdiction, venue, and joinder of parties. The
joinder shall not include special civil actions or actions governed by special rules.
(3) When there is a misjoinder of causes of action, the erroneously joined cause of action can be
severed or separated from the other cause of action upon motion by a party or upon the courts
own initiative. Misjoinder of causes of action is not a ground for the dismissal of the case.
(1) Real Party-in-Interest is the party who stands to be benefited or injured by the judgment in the
suit, or the party entitled to the avails of the suit (Sec. 2, Rule 3). The interest must be real, which
is a present substantial interest as distinguished from a mere expectancy or a future, contingent
subordinate or consequential interest (Fortich vs. Corona, 289 SCRA 624). It is an interest that is
material and direct, as distinguished from a mere incidental interest in question (Samaniego vs.
(1) Joinder of parties is compulsory if there are parties without whom no final determination can be
had of an action (Sec. 7, Rule 3).
(2) Joinder of parties is permissive when there is a right or relief in favor of or against the parties
joined in respect to or arising out of the same transaction or series of transactions, and there is a
question of law or fact common to the parties joined in the action (Sec. 6, Rule 3).
(1) A party is misjoined when he is made a party to the action although he should not be impleaded.
A party is not joined when he is supposed to be joined but is not impleaded in the action.
(2) Under the rules, neither misjoinder nor non-joinder of parties is a ground for the dismissal of an
action. Parties may be dropped or added by order of the court on motion of any party or on its own
initiative at any stage of the action and on such terms as are just (Sec. 11, Rule 3). Misjoinder of
parties does not involve questions of jurisdiction and not a ground for dismissal (Republic vs.
Herbieto, 459 SCRA 183).
(3) Even if neither misjoinder nor non-joinder of parties is a ground for dismissal of the action, the
failure to obey the order of the court to drop or add a party is a ground for the dismissal of the
complaint under Sec. 3, Rule 17.
(4) The rule does not comprehend whimsical and irrational dropping or adding of parties in a
complaint. What it really contemplates is erroneous or mistaken non-joinder and misjoinder of
parties. No one is free to join anybody in a complaint in court only to drop him unceremoniously
later at the option of the plaintiff. The rule presupposes that the original inclusion had been made
in the honest conviction that it was proper and the subsequent dropping is requested because it
has turned out that such inclusion was a mistake. And this is the reason why the rule ordains that
the dropping is on such terms as are just (Lim Tan Hu vs. Ramolete, 66 SCRA 425).
Class suit
(1) A class suit is an action where one or more may sue for the benefit of all if the requisites for said
action are complied with.
(2) An action does not become a class suit merely because it is designated as such in the pleadings.
Whether the suit is or is not a class suit depends upon the attendant facts. A class suit does not
require commonality of interest in the questions involved in the suit. What is required by the Rules
is a common or general interest in the subject matter of the litigation. The subject matter of the
action means the physical, the things real or personal, the money, lands, chattels, and the like, in
relation to the suit which is prosecuted and not the direct or wrong committed by the defendant. It
is not also a common question of law that sustains a class suit but a common interest in the
subject matter of the controversy. (Mathay vs. Consolidated Ban & Trust Co., 58 SCRA 559).
There is no class suit when interests are conflicting.
(3) For a class suit to prosper, the following requisites must concur:
(a) The subject matter of the controversy must be of common or general interest to may persons;
(1) A corporation being an entity separate and distinct from its members has no interest in the
individual property of its members unless transferred to the corporation. Absent any showing of
interests, a corporation has no personality to bring an action for the purpose of recovering the
property, which belongs to the members in their personal capacities.
(2) An entity without juridical personality may be sued under a common name by which it is
commonly known when it represents to the plaintiff under a common name, and the latter relies
on such representation (Lapanday vs. Estita, 449 SCRA 240).
(1) The death of the client extinguishes the attorney-client relationship and divests a counsel of his
authority to represent the client. Accordingly, a dead client has no personality and cannot be
represented by and attorney (Lavia vs. CA, 171 SCRA 691). Neither does he become the
counsel of the heirs of the deceased unless his services are engaged by said heirs (Lawas vs.
CA, 146 SCRA 173).
(2) Upon the receipt of the notice of death, the court shall order the legal representative or
representatives of the deceased to appear and be substituted for the deceased within thirty (30)
days from notice (Sec. 16, Rule 3). The substitution of the deceased would not be ordered by the
court in cases where the death of the party would extinguish the action because substitution is
proper only when the action survives (Aguas vs. Llamas, 5 SCRA 959).
(3) Where the deceased has no heirs, the court shall require the appointment of an executor or
administrator. This appointment is not required where the deceased left an heir because the heir
under the new rule, may be allowed to be substituted for the deceased. If there is an heir but the
heir is a minor, the court may appoint a guardian ad litem for said minor heir (Sec. 13, Rule 3).
(4) The court may appoint an executor or administrator when:
(a) the counsel for the deceased does not name a legal representative; or
(b) there is a representative named but he failed to appear within the specified period (Sec. 16,
Rule 3).
(1) Jurisdiction is the authority to hear and determine a case; venue is the place where the case is to
be heard or tried;
(2) Jurisdiction is a matter of substantive law; venue of procedural law;
(3) Jurisdiction establishes a relation between the court and the subject matter; venue, a relation
between plaintiff and defendant, or petitioner and respondent;
(4) Jurisdiction is fixed by law and cannot be conferred by the parties; venue may be conferred by the
act or agreement of the parties; and
(5) Lack of jurisdiction over the subject matter is a ground for a motu propio dismissal; venue is not a
ground for a motu propio dismissal except in cases subject to summary procedure.
(1) All other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs
resides, or where the defendant or any of the principal defendants resides, all at the option of the
plaintiff (Sec. 2, Rule 4).
(1) If any of the defendants does not reside and is not found in the Philippines, and the action affects
the personal status of the plaintiff, or any property of said defendant located in the Philippines, the
action may be commenced and tried in the court of the place where the plaintiff resides, or where
the property or any portion thereof is situated or found (Sec. 3, Rule 4), or at the place where the
defendant may be found, at the option of the plaintiff (Sec. 2).
(1) The Rules do not apply (a) in those cases where a specific rule or law provides otherwise; or (b)
where the parties have validly agreed in writing before the filing of the action on the exclusive
venue thereof (Sec. 4, Rule 4).
(1) The parties may stipulate on the venue as long as the agreement is (a) in writing, (b) made before
the filing of the action, and (3) exclusive as to the venue (Sec. 4[b], Rule 4).
(2) The settled rule on stipulations regarding venue is that while they are considered valid and
enforceable, venue stipulations in a contract do not, as a rule, supersede the general rule set forth
in Rule 4 in the absence of qualifying or restrictive words. They should be considered merely as
an agreement or additional forum, not as limiting venue to the specified place. They are not
exclusive by rather permissive. If the intention of the parties were to restrict venue, there must be
accompanying language clearly and categorically expressing their purpose and design that
actions between them be litigated only at the place named by them.
(3) In interpreting stipulations as to venue, there is a need to inquire as to whether or not the
agreement is restrictive or not. If the stipulation is restrictive, the suit may be filed only in the place
agreed upon by the parties. It must be reiterated and made clear that under Rule 4, the general
rules on venue of actions shall not apply where the parties, before the filing of the action, have
validly agreed in writing on an exclusive venue. The mere stipulation on the venue of an action,
however, is not enough to preclude parties from bringing a case in other venues. The parties must
be able to show that such stipulation is exclusive. In the absence of qualifying or restrictive words,
the stipulation should be deemed as merely an agreement on an additional forum, not as limiting
venue to the specified place (Spouses Lantin vs. Lantin, GR 160053, August 28, 2006).
(1) Complaint is the pleading alleging the plaintiffs cause or causes of action, stating therein the
names and residences of the plaintiff and defendant (Sec. 3, Rule 6).
Answer
(1) An answer is a pleading in which a defending party sets forth his defenses (Sec. 3, Rule 6). It may
allege legal provisions relied upon for defense (Sec. 1, Rule 8).
Negative Defenses
(1) Negative defenses are the specific denials of the material fact or facts alleged in the pleading of
the claimant essential to his cause or causes of action (Sec. 5[a], Rule 6).
(2) When the answer sets forth negative defenses, the burden of proof rests upon the plaintiff, and
when the answer alleges affirmative defenses, the burden of proof devolves upon the defendant.
Negative Pregnant
(1) Negative pregnant is an admission in avoidance which does not qualify as a specific denial.
(2) It is a form of negative expression which carries with it an affirmation or at least an implication of
some kind favorable to the adverse party. It is a denial pregnant with an admission of the
substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying
language and the words of the allegation as so qualified or modified are literally denied, the
qualifying circumstances alone are denied while the fact itself is admitted (Republic vs.
Sandiganbayan, GR 1512154, July 15, 2003).
Affirmative Defenses
(1) Negative defenses are allegations of new matters which, while hypothetically admitting the
material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by
him. Affirmative defenses include:
(a) Fraud
(b) Statute of limitations
(c) Release
(d) Payment
(e) Illegality
(f) Statute of frauds
(g) Estoppel
(h) Former recovery
(i) Discharge in bankruptcy
(j) Any other matter by way of confession and avoidance (Sec. 5[b], Rule 6)
Counterclaim
(1) A counterclaim is any claim which a defending party may have against an opposing party (Sec. 6,
Rule 6). It is in itself a claim or cause of action interposed in an answer. It is either compulsory or
permissive.
Compulsory Counterclaim
(1) A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises
out of or is connected with the transaction or occurrence constituting the subject matter of the
opposing partys claim and does not require for its adjudication, the presence of third parties of
whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of
Permissive Counterclaim
(1) Permissive counterclaim is a counterclaim which does not arise out of nor is it necessarily
connected with the subject matter of the opposing partys claim. It is not barred even if not set up
in the action.
(2) The requirements of a permissive counterclaim are:
(a) It does not require for its adjudication the presence of third parties of whom the court cannot
acquire jurisdiction;
(b) It must be within the jurisdiction of the court wherein the case is pending and is cognizable by
the regular courts of justice; and
(c) It does not arise out of the same transaction or series of transactions subject of the complaint.
(1) If a counterclaim has already been pleaded by the defendant prior to the service upon him of the
plaintiffs motion to dismiss, and the court grants the said motion to dismiss, the dismissal shall be
limited to the complaint (Sec. 2, Rule 17). The dismissal upon motion of plaintiff shall be without
prejudice to the right of the defendant to prosecute the counterclaim. The defendant if he so
desires may prosecute his counterclaim either in a separate action or in the same action. Should
he choose to have his counterclaim resolved in the same action, he must notify the court of his
preference within 15 days from notice of the plaintiffs motion to dismiss. Should he opt to
prosecute his counterclaim in a separate action, the court should render the corresponding order
granting and reserving his right to prosecute his claim in a separate complaint. A class suit shall
not be dismissed or compromised without the approval of the court.
(2) The dismissal of the complaint under Sec. 3 (due to fault of plaintiff) is without prejudice to the
right of the defendant to prosecute his counterclaim in the same action or in a separate action.
This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared
by the court. The dismissal of the main action does not carry with it the dismissal of the
counterclaim (Sec. 6, Rule 16).
Cross-claims
(1) A cross-claim is any claim by one party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original action or of a counterclaim therein.
Such cross-claim may include a claim that the party against whom it is asserted is or may be
liable to the cross-claimant for all of part of a claim asserted in the action against the cross-
claimant (Sec. 8, Rule 6).
Complaint-in-intervention
(1) Complaint-in-intervention is a pleading whereby a third party asserts a claim against either or all
of the original parties. If the pleading seeks to unite with the defending party in resisting a claim
against the latter, he shall file an answer-in-intervention.
(2) If at any time before judgment, a person not a party to the action believes that he has a legal
interest in the matter in litigation in a case in which he is not a party, he may, with leave of court,
file a complaint-in-intervention in the action if he asserts a claim against one or all of the parties.
Reply
(1) Reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance
of new matters alleged by way of defense in the answer and thereby join or make issue as to such
matters. It a party does not file such reply, all the new matters alleged in the answer are deemed
controverted (Sec. 10, Rule 6).
Pleadings allowed in small claim cases and cases covered by the rules on summary procedure
(1) The only pleadings allowed under the Rules on Summary Procedure are complaint, compulsory
counterclaim, cross-claim, pleaded in the answer, and answers thereto (Sec. 3[A]). These
pleadings must be verified (Sec. 3[B]).
(2) The only pleadings allowed under small claim cases are:
(1) The parts of a pleading under Rule 7 are: the caption (Sec. 1), the text or the body (Sec. 2), the
signature and address (Sec. 3), the verification (Sec. 4), and the certification against forum
shopping (Sec. 5).
Caption
(1) The caption must set forth the name of the court, the title of the action, and the docket number if
assigned. The title of the action indicates the names of the parties. They shall all e named in the
original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the
first party on each side be stated with an appropriate indication when there are other parties.
Their respective participation in the case shall be indicated.
(1) Every pleading must be signed by the party or counsel representing him, stating in either case his
address which should not be a post office box.
(2) The signature of counsel constitutes a certificate by him that he has read the pleading; that to the
best of his knowledge, information, and belief there is good ground to support it; and that it is not
interposed for delay.
(3) An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow
such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and
not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in
violation of the Rule, or alleges scandalous or indecent matter therein, or fails to promptly report
to the court a change of his address, shall be subject to appropriate disciplinary action.
(4) In every pleading, counsel has to indicate his professional tax receipt (PTR) and IBP receipt, the
purpose of which is to see to it that he pays his tax and membership due regularly
(1) A verification of a pleading is an affirmation under oath by the party making the pleading that he is
prepared to establish the truthfulness of the facts which he has pleaded based on his own
personal knowledge.
(2) The general rule under, Sec. 4. Rule 7 is that, pleading need not be under oath. This means that a
pleading need not be verified. A pleading will be verified only when a verification is required by a
law or by a rule.
(3) A pleading is verified by and affidavit, which declares that: (a) the affiant has read the pleading,
and (b) the allegations therein are true and correct to his personal knowledge or based on
authentic records.
(4) The verification requirement is significant, as it is intended to secure an assurance that the
allegations in a pleading are true and correct and not the product of the imagination or a matter of
speculation, and that the pleading is filed in good faith. The absence of proper verification is
cause to treat the pleading as unsigned and dismissable.
(5) It is, however, been held that the absence of a verification or the non-compliance with the
verification requirement does not necessarily render the pleading defective. It is only a formal and
not a jurisdictional requirement. The requirement is a condition affecting only the form of the
pleading (Sarmeinto vs. Zaratan, GR 167471, Feb. 5, 2007). The absence of a verification may be
corrected by requiring an oath. The rule is in keeping with the principle that rules of procedure are
established to secure substantial justice and that technical requirements may be dispensed with
in meritorious cases (Pampanga Development Sugar Co. vs. NLRC, 272 SCRA 737). The court
may order the correction of the pleading or act on an unverified pleading if the attending
circumstances are such that strict compliance would not fully serve substantial justice, which after
all, is the basic aim for the rules of procedure (Robert Development Corp. vs. Quitain, 315 SCRA
150).
(1) The certification against forum shopping is a sworn statement certifying to the following matters:
(a) That the party has not commenced or filed any claim involving the same issues in any court,
tribunal, or quasi-judicial agency and, to the best of his knowledge, no such other action or
claim is pending;
(b) That if there is such other pending action or claim, a complete statement of the present status
thereof; and
(c) That if he should therefore learn that the same or similar action or claim has been filed or is
pending, he shall report that fact within five (5) days therefrom to the court wherein his
aforesaid complaint or initiatory pleading has been filed.
(2) The certification is mandatory under Sec. 5, Rule 7, but nor jurisdictional (Robert Development
Corp. vs. Quitain, 315 SCRA 150).
(3) There is forum shopping when, as a result of an adverse opinion in one forum, a party seeks a
favorable opinion, other than by appeal or certiorari in another. There can also be forum shopping
when a party institutes two or more suits in different courts, either simultaneously or successively,
in order to ask the courts to rule on the same or related causes and/or to grant the same or
substantially the same reliefs on the supposition that one or the other court would make a
favorable disposition or increase a partys chances of obtaining a favorable decision or action
(Huibonhoa vs. Concepcion, GR 153785, Aug. 3, 2006) . It is an act of malpractice, as the litigants
trifle with the courts and abuse their processes. It is improper conduct and degrades the
administration of justice. If the act of the party or its counsel clearly constitutes willful and
deliberate forum-shopping, the same shall constitute direct contempt, and a cause for
administrative sanctions, as well as a ground for the summary dismissal of the case with prejudice
(Montes vs. CA, GR 143797, May 4, 2006). Forum shopping exists when the elements of litis
pendentia are present or where a final judgment in one case will amount to res judicata in
another.
(4) It is the plaintiff or principal party who executes the certification under oath, and not the attorney.
It must be signed by the party himself and cannot be signed by his counsels. As a general and
(1) A juridical entity, unlike a natural person, can only perform physical acts through properly
delegated individuals. The certification against forum shopping where the plaintiff or a principal
party is a juridical entity like a corporation may be executed by properly authorized persons. This
person may be the lawyer of a corporation. As long as he is duly authorized by the corporation
and has personal knowledge of the facts required to be disclosed in the certification against forum
shopping, the certification may be signed by the authorized lawyer (National Steel Corp. vs. CA,
388 SCRA 85).
(1) A certification signed by a counsel is a defective certification and is a valid cause for dismissal
(Far Eastern Shipping Company vs. CA, 297 SCRA 30). This is the general and prevailing rule. A
certification by counsel and not by the principal party himself is no certification at all. The reason
for requiring that it must be signed by the principal party himself is that he has actual knowledge,
or knows better than anyone else, whether he has initiated similar action/s in other courts,
agencies or tribunals. Their lawyers explanation that they were out of town at the time their
petition was filed with the CA is bereft of basis. That explanation is an afterthought as it was not
alleged by counsel in her certification against forum shopping (Go vs. Rico, GR 140682, April 25,
2006).
Allegations in a pleading
(1) Every pleading shall contain in a mathematical and logical form, a plain, concise and direct
statement of the ultimate facts on which the party relies for his claim and defense, as the case
may be, containing the statement of mere evidenciary facts (Sec. 1, Rule 8).
Condition precedent
(1) Conditions precedent are matters which must be complied with before a cause of action arises.
When a claim is subject to a condition precedent, the compliance of the same must be alleged in
the pleading.
(2) Failure to comply with a condition precedent is an independent ground for a motion to dismiss:
that a condition precedent for filing the claim has not been complied (Sec. 1[j], Rule 16).
Fraud, mistake, malice, intent, knowledge and other condition of the mind, judgments, official documents
or acts
(1) When making averments of fraud or mistake, the circumstances constituting such fraud or
mistake must be stated with particularity (Sec. 5, Rule 8). It is not enough therefore, for the
complaint to allege that he was defrauded by the defendant. Under this provision, the complaint
must state with particularity the fraudulent acts of the adverse party. These particulars would
necessarily include the time, place and specific acts of fraud committed against him.
(2) Malice, intent, knowledge or other conditions of the mind of a person may be averred generally
(Sec. 5, Rule 8). Unlike in fraud or mistake, they need not be stated with particularity. The rule is
borne out of human experience. It is difficult to state the particulars constituting these matters.
Hence, a general averment is sufficient.
Specific denials
(1) There are three modes of specific denial which are contemplated by the Rules, namely:
(a) By specifying each material allegation of the fact in the complaint, the truth of which the
defendant does not admit, and whenever practicable, setting forth the substance of the matter
which he will rely upon to support his denial;
(b) By specifying so much of the averment in the complaint as is true and material and denying
only the remainder;
(c) By stating that the defendant is without knowledge or information sufficient to form a belief as
to the truth of a material averment in the complaint, which has the effect of denial (Gaza vs
Lim, GR 126863, Jan. 16, 2003)
(2) The purpose of requiring the defendant to make a specific denial is to make him disclose the
matters alleged in the complaint which he succinctly intends to disprove at the trial, together with
the matter which he relied upon to support the denial. The parties are compelled to lay their cards
on the table (Aquintey vs. Tibong, GR 166704, Dec. 20, 2006).
(1) If there are material averments in the complaint other than those as to the amount of unliquidated
damages, these shall be deemed admitted when not specifically denied (Sec. 11, Rule 8).
(2) Material allegations, except unliquidated damages, not specifically denied are deemed admitted.
If the allegations are deemed admitted, there is no more triable issue between the parties and if
the admissions appear in the answer of the defendant, the plaintiff may file a motion for judgment
on the pleadings under Rule 34.
(3) An admission in a pleading cannot be controverted by the party making such admission because
the admission is conclusive as to him. All proofs submitted by him contrary thereto or inconsistent
therewith should be ignored whether an objection is interposed by a party or not (Republic vs.
Sarabia, GR 157847, Aug. 25, 2005). Said admission is a judicial admission, having been made
by a party in the course of the proceedings in the same case, and does not require proof. A party
who desires to contradict his own judicial admission may do so only be either of two ways: (a) by
showing that the admission was made through palpable mistake; or (b) that no such admission
was made (Sec. 4, Rule 129).
(4) The following are not deemed admitted by the failure to make a specific denial:
(a) The amount of unliquidated damages;
(b) Conclusions in a pleading which do not have to be denied at all because only ultimate facts
need be alleged in a pleading;
(c) Non-material allegations, because only material allegations need be denied.
(1) Defenses or objections no pleaded in either in a motion to dismiss or in the answer, they are
deemed waived. Except:
(a) When it appears from the pleading or the pieces of evidence on record that the court has no
jurisdiction over the subject matter;
(b) That there is another action pending between the same parties for the same cause;
(c) That the action is barred by the statute of limitations (same as Sec. 8, Rule 117);
(d) Res judicata. In all these cases, the court shall dismiss the claim (Sec. 1, Rule 9).
(1) A compulsory counterclaim or a cross-claim not set up shall be barred (Sec. 2, Rule 9).
Default
(1) Default is a procedural concept that occurs when the defending party fails to file his answer within
the reglementary period. It does not occur from the failure of the defendant to attend either the
pre-trial or the trial.
(1) If the defending party fails to answer within the time allowed therefor, the court shall, upon motion
of the claiming party with notice to the defending party, and proof of such failure, declare the
defending party in default (Sec. 3, Rule 9).
(1) A party in default shall be entitled to notice of subsequent proceedings but not to take part in the
trial (Sec. 3[a], Rule 9).
(1) When a pleading asserting a claim states a common cause of action against several defending
parties, some of whom answer and the others fail to do so, the court shall try the case against all
upon the answers thus filed and render judgment upon the evidence presented (Sec. 33[c], Rule
9).
(1) A judgment rendered against a party in default may not exceed the amount or be different from
that prayed for nor include unliquidated damages which are not awarded (Sec. 3[c], Rule 9). In
fact, there can be no automatic grant of relief as the court has to weigh the evidence.
Furthermore, there can be no award of unliquidated damages (Gajudo vs. Traders Royal Bank,
GR 151098, March 31, 2006).
The court shall order the prosecuting attorney to investigate whether or not a collusion between the
parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence
submitted is not fabricated (Sec. 3[e], Rule 9).
(1) On acquisition of jurisdiction. It is not simply the filing of the complaint or appropriate initiatory
pleading but the payments of the prescribed docket fee, that vests a trial court with jurisdiction
over the subject matter or nature of the action (Proton Pilipinas Corp. vs. Banque National de
Paris, 460 SCRA 260). In connection with the payment of docket fees, the court requires that all
complaints, petitions, answers and similar pleadings must specify the amount of damages being
prayed for both in the body of the pleading and in prayer therein and said damages shall be
considered in the assessment of the filing fees; otherwise such pleading shall not be accepted for
filing or shall be expunged from the record. Any defect in the original pleading resulting in
underpayment of the docket fee cannot be cured by amendment, such as by the reduction of the
claim as, for all legal purposes, there is no original complaint over which the court has acquired
jurisdiction (Manchester Development Corp. vs. CA, GR 75919, May 7, 1987).
(2) The rule on payment of docket fee has, in some instances, been subject to the rule on liberal
interpretation. Thus, in a case, it was held that while the payment of the required docket fee is a
jurisdictional requirement, even its nonpayment at the time of filing does not automatically cause
the dismissal of the case, as long as the fee is paid within the applicable prescriptive or
reglementary period (PGCOR vs. Lopez, 474 SCRA 76; Sun Insurance Office vs. Asuncion, 170
SCRA 272). Also, if the amount of docket fees is insufficient considering the amount of the claim,
the party filing the case will be required to pay the deficiency, but jurisdiction is not automatically
lost (Rivera vs. Del Rosario, GR 144934, Jan. 15, 2004).
(3) On appeal. The Rules now requires that appellate docket and other lawful fees must be paid
within the same period for taking an appeal. This is clear from the opening sentence of Sec. 4,
Rule 41 of the same rules that, Within the period for taking an appeal, the appellant shall pay to
the clerk of court which rendered the judgment or final order appealed from, the full amount of the
appellate court docket and other lawful fees.
(4) The Supreme Court has consistently held that payment of docket fee within the prescribed period
is mandatory for the perfection of an appeal. Without such payment, the appellate court does not
acquire jurisdiction over the subject matter of the action and the decision sought to be appealed
from becomes final and executor (Regalado vs. Go, GR 167988, Feb. 6, 2007) . Hence,
nonpayment is a valid ground for the dismissal of an appeal (MA Santander Construction vs.
Villanueva, GR 136477, Nov. 10, 2004). However, delay in the payment of the docket fees
confers upon the court a discretionary, not a mandatory power to dismiss an appeal (Villamor vs.
CA, GR 136858, Jan. 21, 2004).
(1) The date of the mailing of motions, pleadings, or any other papers or payments or deposits, as
shown by the post office stamp on the envelope or the registry receipt, shall be considered as the
date of their filing, payment, or deposit in court. The envelope shall be attached to the record of
the case (Sec. 3, Rule 13)
Manner of filing
(1) By personal service or by registered mail. The filing of pleadings, appearances, motions, notices,
orders, judgments and all other papers shall be made by presenting the original copies thereof,
plainly indicated as such, personally to the clerk of court or by sending them by registered mail. In
the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the
second case, the date of the mailing of motions, pleadings, or any other papers or payments or
deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be
considered as the date of their filing, payment, or deposit in court. The envelope shall be attached
to the record of the case (Sec. 3, Rule 13).
Modes of service
(1) There are two modes of service of pleadings, judgments, motions, notices, orders, judgments and
other papers: (a) personally, or (b) by mail. However, if personal service and serviced by mail
cannot be made, service shall be done by substituted service.
(2) Personal service is the preferred mode of service. If another mode of service is used other than
personal service, the service must be accompanied by a written explanation why the service of
filing was not done personally. Exempt from this explanation are papers emanating from the court.
A violation of this explanation requirement may be a cause for the paper to be considered as not
having been filed (Sec. 11, Rule 13).
(3) Personal service is made by: (a) delivering a copy of the papers served personally to the party or
his counsel, or (b) by leaving the papers in his office with his clerk or a person having charge
thereof. If no person is found in the office, or his office is not known or he has no office, then by
leaving a copy of the papers at the partys or counsels residence, if known, with a person of
sufficient age and discretion residing therein between eight in the morning and six in the evening
(Sec. 6, Rule 13).
Service by mail
(1) The preferred service by mail is by registered mail. Service by ordinary mail may be done only if
no registry service is available in the locality of either the sender or the addressee (Sec. 7, Rule
13). It shall be done by depositing the copy in the post office, in a sealed envelope, plainly
addressed to the party or his counsel at his office, if known, or otherwise at his residence, if
known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the
sender after ten (10) days if not delivered.
Substituted service
(1) This mode is availed of only when there is failure to effect service personally or by mail. This
failure occurs when the office and residence of the party or counsel is unknown. Substituted
service is effected by delivering the copy to the clerk of court, with proof of failure of both personal
service and service by mail (Sec. 8, Rule 13). Substituted service is complete at the time of
delivery of the copy to the clerk of court.
(1) Final orders or judgments shall be served either personally or by registered mail. When a party
summoned by publication has failed to appear in the action, final orders or judgments against him
shall be served upon him also by publication at the expense of the prevailing party (Sec. 9).
(1) Personal service is deemed complete upon the actual delivery following the above procedure
(Sec. 10, Rule 13).
(2) Service by ordinary mail is deemed complete upon the expiration of ten (10) days after mailing,
unless the court otherwise provides. On the other hand, service by registered mail is complete
upon actual receipt by the addressee, or after five (5) days from the date he received the first
notice of the postmaster, whichever is earlier (Sec. 8, Rule 13).
(3) Substituted service is complete at the time of delivery of the copy to the clerk of court.
(1) The filing of a pleading or paper shall be proved by its existence in the record of the case, if it is
not in the record, but is claimed to have been filed personally, the filing shall be proved by the
written or stamped acknowledgment of its filing by the clerk of court in a copy of the same (Sec.
12, Rule 13).
(2) If the filing or paper is filed by registered mail, proof of filing is by the registry receipt and by the
affidavit of the person who did the mailing, containing a full statement of the date and place of
depositing the mail in the post office in a sealed envelope addressed to the court, with postage
fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10)
days if not delivered (Sec. 12, Rule 13).
(3) Proof of personal service shall consist of the written admission of the party served. It may also be
proven by the official return of the server, or the affidavit of the party serving, containing full
information of the date, place and manner of service (Sec. 13, Rule 13). If the service is by
ordinary mail, proof thereof shall consist of the affidavit of the person mailing of the facts showing
compliance with Sec. 7, Rule 13. If the service is by registered mail, the proof shall consist of
such affidavit and the registry receipt issued by the mailing office. The registry return card is to be
filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together
with the certified or sworn copy of the notice given by the postmaster to the addressee (Sec. 13,
Rule 13).
(1) Leave of court is required for substantial amendment made after service of a responsive pleading
(Sec. 3, Rule 10). The plaintiff, for example, cannot amend his complaint by changing his cause of
action or adding a new one without leave of court (Calo and San Jose vs. Roldan, 76 Phil. 445;
Buenaventura vs. Buenaventura, 94 Phil. 193).
(2) After a responsive pleading is filed, an amendment to the complaint may be substantial and will
correspondingly require a substantial alteration in the defenses of the adverse party. The
amendment of the complaint is not only unfair to the defendant but will cause unnecessary delay
in the proceedings. Leave of court is thus, required. On the other hand, where no responsive
pleading has yet been served, no defenses would be altered. The amendment of the pleading will
not then require leave of court (Siasoco vs.CA, 303 SCRA 186).
Formal amendment
(1) A defect in the designation of the parties and other clearly clerical or typographical errors may be
summarily corrected by the court at any stage of the action, at its initiative or on motion, provided
no prejudice is caused thereby to the adverse party (Sec. 4, Rule 10).
(1) When issues not raised by the pleadings are tried with the express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the pleadings. Such
amendment of the pleadings as may be necessary to cause them to conform to the evidence and
to raise these issues may be made upon motion of any party at any time, even after judgment; but
failure to amend does not affect the result of the trial of these issues. If evidence is objected to at
the trial on the ground that it is not within the issues made by the pleadings, the court may allow
the pleadings to be amended and shall do so with liberality if the presentation of the merits of the
action and the ends of substantial justice will be subserved thereby. The court may grant a
continuance to enable the amendment to be made (Sec. 5, Rule 10).
(1) A supplemental pleading is one which sets forth transactions, occurrences, or events which have
happened since the date of the pleading sought to be supplemented. The filing of supplemental
pleadings requires leave of court. The court may allow the pleading only upon such terms as are
just. This leave is sought by the filing of a motion with notice to all parties (Sec. 6, Rule 10).
(2) A supplemental pleading does not extinguish the existence of the original pleading, while an
amended pleading takes the place of the original pleading. A supplemental pleading exists side
with the original; it does not replace that which it supplements it does not supersede the original
but assumes that the original pleading remain as the issues to be tried in the action. A
supplemental pleading supplies the deficiencies in aid of an original pleading, not to entirely
substitute the latter (Sps. Caoili vs. CA, GR 128325, Sept. 14, 1999).
(1) Summons is a writ or process issued and served upon the defendant in a civil action for the
purpose of securing his appearance therein.
(2) The service of summons enables the court to acquire jurisdiction over the person of the
defendant. If there is no service of summons, any judgment rendered or proceedings had in a
case are null and void, except in case of voluntary appearance (Echevarria vs. Parsons
Hardware, 51 Phil. 980). The law requiring the manner of service of summons in jurisdictional
(Toyota Cubao vs. CA, GR 126321, Oct. 23, 1997).
Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem
(1) In an action in personam, the purpose of summons is not only to notify the defendant of the action
against him but also to acquire jurisdiction over his person (Umandap vs. Sabio, Jr., 339 SCRA
243). The filing of the complaint does not enable the courts to acquire jurisdiction over the person
of the defendant. By the filing of the complaint and the payment of the required filing and docket
fees, the court acquires jurisdiction only over the person of the plaintiff, not over the person of the
defendant. Acquisition of jurisdiction over the latter is accomplished by a valid service of
summons upon him. Service of summons logically follows the filing of the complaint. Note further
that the filing of the complaint tolls the running of the prescriptive period of the cause of action in
accordance with Article 1155 of the Civil Code.
(2) In an action in rem or quasi in rem, jurisdiction over the defendant is not required and the court
acquires jurisdiction over an action as long as it acquires jurisdiction over the res. The purpose of
summons in these actions is not the acquisition of jurisdiction over the defendant but mainly to
satisfy the constitutional requirement of due process (Gomez vs. CA, 420 SCRA 98).
Voluntary appearance
(1) Voluntary appearance is any appearance of the defendant in court, provided he does not raise the
question of lack of jurisdiction of the court (Flores vs. Zurbito, 37 Phil. 746; Carballo vs.
Encarnacion, 92 Phil. 974). It is equivalent to service of summons (Sec. 20).
(2) An appearance is whatever form, without explicitly objecting to the jurisdiction of the court over
the person, is a submission to the jurisdiction of the court over the person. It may be made by
simply filing a formal motion, or plea or answer. If his motion is for any other purpose than to
object to the jurisdiction of the court over his person, he thereby submits himself to the jurisdiction
of the court (Busuego vs. CA, L-48955, June 30, 1987; La Naval Drug Corp. vs. CA, 54 SCAD
917).
(3) Voluntary appearance may be in form of:
(a) Voluntary appearance of attorney;
(b) A motion, by answer, or simple manifestation (Flores vs. Surbito);
(c) A telegraphic motion for postponement (Punzalan vs. Papica, Feb. 29, 1960);
(d) Filing a motion for dissolution of attachment;
(e) Failure to question the invalid service of summons (Navale vs. CA, GR 109957, Feb. 20,
1996);
(f) Filing a motion for extension of time to file an answer.
Personal service
Substituted service
(1) If the defendant cannot be served within a reasonable time, service may be effected:
(a) By leaving copies of the summons at the defendants dwelling house or residence with some
person of suitable age and discretion then residing therein; or
(b) By leaving copies at defendants office or regular place of business with some competent
person in charge thereof (Sec. 7).
(2) It may be resorted to if there are justifiable causes, where the defendant cannot be served within
a reasonable time (Sec. 7). An example is when the defendant is in hiding and resorted to it
intentionally to avoid service of summons, or when the defendant refuses without justifiable
reason to receive the summons (Navale vs. CA, 253 SCRA 705).
(3) In substituted service of summons, actual receipt of the summons by the defendant through the
person served must be shown (Millennium Industrial Commercial Corp. vs. Tan, 383 Phil. 468). It
further requires that where there is substituted service, there should be a report indicating that the
person who received the summons in defendants behalf was one with whom petitioner had a
relation of confidence ensuring that the latter would receive or would be notified of the summons
issued in his name (Ang Ping vs. CA, 369 Phil. 609; Casimina vs. Hon. Legaspi, GR 147530,
June 29, 2005).
(4) Substituted service is not allowed in service of summons on domestic corporations (Delta Motor
Sales Corp. vs. Mangosing, 70 SCRA 598).
(1) As a rule, summons by publication is available only in actions in rem or quasi in rem. It is not
available as a means of acquiring jurisdiction over the person of the defendant in an action in
personam.
(2) Against a resident, the recognized mode of service is service in person on the defendant under
Sec. 6 Rule 14. In a case where the defendant cannot be served within a reasonable time,
substituted service will apply (Sec. 7, Rule 14), but no summons by publication which is
permissible however, under the conditions set forth in Sec. 14, Rule 14.
(3) Against a non-resident, jurisdiction is acquired over the defendant by service upon his person
while said defendant is within the Philippines. As once held, when the defendant is a nonresident,
personal service of summons in the state is essential to the acquisition of jurisdiction over him
(Banco Do Brasil, supra). This is in fact the only way of acquiring jurisdiction over his person if he
does not voluntarily appear in the action. Summons by publication against a nonresident in an
action in personam is not a proper mode of service.
(4) Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all
who might be minded to make an objection of any sort against the right sought to be established.
It is the publication of such notice that brings the whole world as a party in the case and vests the
court with jurisdiction to hear and decide it (Alaban vs. CA, GR 156021, Sept. 23, 2005).
Service upon a defendant where his identity is unknown or where his whereabouts are unknown
(1) Where the defendant is designated as unknown, or whenever his whereabouts are unknown and
cannot be ascertained despite a diligent inquiry, service may, with prior leave of court, be effected
upon the defendant, by publication in a newspaper of general circulation. The place and the
frequency of the publication is a matter for the court to determine (Sec. 14, Rule 14). The rule
does not distinguish whether the action is in personam, in rem or quasi in rem. The tenor of the
rule authorizes summons by publication whatever the action may be as long as the identity of the
defendant is unknown or his whereabouts are unknown. Under the previous rulings, jurisdiction
over the defendant in an action in personam cannot be acquired by the summons by publication
(Pantaleon vs. Asuncion, 105 Phil. 761; Consolidated Plyware Industries vs. Breva, 166 SCRA
516).
(1) Resident
(a) Present in the Philippines
1. Personal service (Rule 14, Sec. 6)
2. Substituted service (Rule 14, Sec. 7)
3. Publication, but only if
a. his identity or whereabouts is unknown (Rule 14, Sec. 14); and
b. the action is in rem or quasi in rem (Citizen Surety v. Melencio-Herrera, 38 SCRA 369
[1971]).
(b) Absent from the Philippines
1. Substituted service (Rule 14, Sec. 7)
2. Extraterritorial service (Rule 14, Sec. 16 and 15); action need not be in rem or quasi in
rem (Valmonte v. CA, 252 SCRA 92 [1996])
(2) Non-resident
1. Present in the Philippines
a. Personal service (Sec. 6, Rule 14)
b. Substituted service (Sec. 7, Rule 14)
2. Absent from the Philippines
a. Action in rem or quasi in rem only Extraterritorial service (Rule 14, Sec. 15)
b. Action in personam, and judgment cannot be secured by attachment (e.g. action for
injunction)
i. Wait for the defendant to come to the Philippines and to serve summons then
ii. Bait the defendant to voluntarily appear in court (Rule 14, Sec. 20)
iii. Plaintiff cannot resort to extraterritorial service of summons (Kawasaki Port Services
vs. Amores, 199 SCRA 230 [1991]; Dial Corporation vs. Soriano, 161 SCRA 737
[1988]).
(1) Service of summons upon a resident of the Philippines who is temporarily out of the country, may,
by leave of court be effected out of the Philippines as under the rules on extraterritorial service in
Sec. 15, Rule 14 by any of the following modes: (a) by personal service as in Sec. 6, (b) by
publication in a news paper of general circulation together with a registered mailing of a copy of
the summons and the order of the court to the last known address of the defendant, or (c) by any
manner the court may deem sufficient under Sec. 16. Like in the case of an unknown defendant
or one whose whereabouts are unknown, the rule affecting residents who are temporarily out of
the Philippines applies in any action. Note also, that summons by publication may be effected
against the defendant.
(2) The defendant may however, also be served by substituted service (Montalban vs. Maximo, 22
SCRA 1070). This is because even if he is abroad, he has a residence in the Philippines or a
place of business and surely, because of his absence, he cannot be served in person within a
reasonable time.
(1) Under Sec. 15, Rule 14, extraterritorial service of summons is proper only in four (4) instances
namely:
(a) When the action affects the personal status of the plaintiffs;
(b) When the action relates to, or the subject of which is, property within the Philippines, in which
the defendant has or claims a lien or interest, actual or contingent;
(c) When the relief demanded in such action consists, wholly or in part, in excluding the
defendant from any interest in property located in the Philippines; and
(d) When the defendant non-residents property has been attached within the Philippines.
(2) Extraterritorial service of summons applies when the following requisites concur:
(1) On a minor. Service shall be made on him personally and on his legal guardian if he has one, or if
none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff, or upon
a person exercising parental authority over him, but the court may order that service made on a
minor of 15 or more years of age shall be sufficient (Sec. 10);
(2) On prisoners. It shall be made upon him by serving on the officer having the management of the
jail or institution who is deemed deputized as a special sheriff for said purpose (Sec. 9).
Proof of service
(1) When the service has been completed, the server shall, within five (5) days therefrom, serve a
copy of the return, personally or by registered mail, to the plaintiffs counsel, and shall return the
summons to the clerk who issued it, accompanied by proof of service (Sec. 4, Rule 14).
(2) After the completion of the service, a proof of service is required to be filed by the server of the
summons. The proof of service of summons shall be made in writing by the server and shall set
forth the manner, place and date of service; shall specify any papers which have been served
with the process and the name of the person who received the same; and shall be sworn to when
made by a person other than a sheriff or his deputy (Sec. 18).
Definition of Motion
(1) A motion is an application for relief other than by a pleading (Sec. 1, Rule 15).
(1) A pleading is a written statement of the respective claims and defenses of the parties submitted to
the court for appropriate judgment (Sec. 1, Rule 6). It may be in the form of a complaint,
counterclaim, cross-claim, third-party complaint, or complaint-in-intervention, answer or reply
(Sec. 2, Rule 6).
(2) A motion on the other hand is an application for relief other than a pleading (Sec. 1, Rule 15).
(3) A motion is not a pleading, even when reduced to writing; it relates generally to procedural
matters, unlike pleadings which generally states substantial questions (37 Am. Jur. 502).
Moreover, a motion is not an independent remedy, and thus cannot replace an action to enforce a
legal right (Lyon vs. Smith, 66 Mich. 676).
(1) A motion shall state the order sought to be obtained, and the grounds which it is based, and if
necessary shall be accompanied by supporting affidavits and other papers (Sec. 3).
(2) All motions must be in writing except those made in open court or in the course of a hearing or
trial (Sec. 2).
(1) The rule is a procedural principle which requires that every motion that attacks a pleading,
judgment, order or proceeding shall include all grounds then available, and all objections not so
included shall be deemed waived (Sec. 8). Since the rule is subject to the provisions of Sec. 1,
Rule 9, the objections mentioned therein are not deemed waived even if not included in the
motion. These objections are: (a) that the court has no jurisdiction over the subject matter, (b) that
there is another action pending between the same parties for the same cause (litis pendencia), (c)
that the action is barred by a prior judgment (res judicata), and (d) that the action is barred by the
statute of limitations (prescription) (Sec. 1, par. 2, Rule 9).
(2) A motion to dismiss is a typical example of a motion subject to omnibus motion rule, since a
motion to dismiss attacks a complaint which is a pleading. Following the omnibus motion rule, if a
motion to dismiss is filed, then the motion must invoke all objections which are available at the
time of the filing of said motion. If the objection which is available at the time is not included in the
motion, that ground is deemed waived. It can no longer be invoked as affirmative defense in the
answer which the movant may file following the denial of his motion to dismiss.
(1) A litigated motion is one which requires the parties to be heard before a ruling on the motion is
made by the court. Sec. 4 establishes the general rule that every written motion is deemed a
litigated motion. A motion to dismiss (Rule 16), a motion for judgment for the pleadings (Rule 34),
and a summary judgment (Rule 35), are litigated motions.
(2) An ex parte motion is one which does not require that the parties be heard, and which the court
may act upon without prejudicing the rights of the other party. This kind of motion is not covered
by the hearing requirement of the Rules (Sec. 2). An example of an ex parte motion is that one
filed by the plaintiff pursuant to Sec. 1, Rule 18, in which he moves promptly that the case be set
for pre-trial. A motion for extension of time is an ex parte motion made to the court in behalf of
one or the other of the parties to the action, in the absence and usually without the knowledge of
the other party or parties. Ex parte motions are frequently permissible in procedural matters, and
also in situations and under circumstances of emergency; and an exception to the rule requiring
Pro-forma motions
(1) The Court has consistently held that a motion which does not meet the requirements of Sections
4 and 5 of Rule 15 on hearing and notice of the hearing is a mere scrap of paper, which the clerk
of court has no right to receive and the trial court has no authority to act upon. Service of a copy of
a motion containing a notice of the time and the place of hearing of that motion is a mandatory
requirement, and the failure of movants to comply with these requirements renders their motions
fatally defective (Vette Industrial Sales vs. Cheng, GR 170232-170301, Dec. 5, 2006).
(2) A pro forma motion is one which does not satisfy the requirements of the rules and one which will
be treated as a motion intended to delay the proceedings (Marikina Development Corporatoin vs.
Flojo, 251 SCRA 87).
(1) A partys right to move for a bill of particulars in accordance with Sec. 1, Rule 12 (doesnt include
matters evidentiary in nature, which are covered by Modes of Discovery) when the allegations of
the complaint are vague and uncertain is intended to afford a party not only a chance to properly
prepare a responsive pleading but also an opportunity to prepare an intelligent answer. This is to
avert the danger where the opposing party will find difficulty in squarely meeting the issues raised
against him and plead the corresponding defenses which if not timely raised in the answer will be
deemed waived. The proper preparation of an intelligent answer requires information as to the
precise nature, character, scope and extent of the cause of action in order that the pleader may
be able to squarely meet the issues raised, thereby circumscribing them within determined
confines and preventing surprises during the trial, and in order that he may set forth his defenses
which may not be so readily availed of if the allegations controverted are vague, indefinite,
uncertain or are mere general conclusions. The latter task assumes significance because
defenses not pleaded (save those excepted in Sec. 2, Rule 9, and whenever appropriate, the
defenses of prescription) in a motion to dismiss or in the answer are deemed waived (Republic vs.
Sandiganbayan, GR 115748, Aug. 7, 1996).
(2) The purpose of the motion is to seek an order from the court directing the pleader to submit a bill
of particulars which avers matters with sufficient definitiveness or particularity to enable the
movant to prepare his responsive pleading (Sec. 1, Rule 12), not to enable the movant to prepare
for trial. The latter purpose is the ultimate objective of the discovery procedures from Rules 23 to
29 and ever of a pre-trial under Rule 18. In other words, the function of a bill of particulars is to
clarify the allegations in the pleading so an adverse party may be informed with certainty of the
exact character of a cause of action or a defense. Without the clarifications sought by the motion,
the movant may be deprived of the opportunity to submit an intelligent responsive pleading.
(3) A motion for a bill of particulars is to be filed before, not after responding to a pleading (Sec. 1,
Rule 12). The period to file a motion refers to the period for filing the responsive pleading in Rule
11. Thus, where the motion for bill of particulars is directed to a complaint, the motion should be
filed within fifteen (15) days after service of summons. If the motion is directed to a counterclaim,
then the same must be filed within ten (10) days from service of the counterclaim which is the
period provided for by Sec. 4, Rule 11 to answer a counterclaim.
(4) In case of a reply to which no responsive pleading is provided for by the Rules, the motion for bill
of particulars must be filed within ten (10) days of the service of said reply (Sec. 1, Rule 12).
(1) Upon receipt of the motion which the clerk of court must immediately bring to the attention of the
court, the latter has three possible options, namely: (a) to deny the motion outright, (b) to grant the
motion outright or (c) to hold a hearing on the motion.
(1) If a motion for bill of particulars is granted, the court shall order the pleader to submit a bill of
particulars to the pleading to which the motion is directed. The compliance shall be effected within
ten (10) days from notice of the order, or within the period fixed by the court (Sec. 3, Rule 12).
(2) In complying with the order, the pleader may file the bill of particulars either in a separate pleading
or in the form or an amended pleading (Sec. 3, Rule 12). The bill of particulars submitted
becomes part of the pleading for which it is intended (Sec. 6, Rule 12).
(3) If the order to file a bill of particulars is not obeyed, or in case of insufficient compliance therewith,
the court may order (a) the striking out of the pleading (b) or the portions thereof to which the
order was directed (c) or make such other order as it deems just (Sec. 4).
(1) A motion for bill of particulars is not a pleading hence, not a responsive pleading. Whether or not
his motion is granted, the movant may file his responsive pleading. When he files a motion for
BOP, the period to file the responsive pleading is stayed or interrupted. After service of the bill of
particulars upon him or after notice of the denial of his motion, he may file his responsive pleading
within the period to which he is entitled to at the time the motion for bill of particulars is filed. If he
has still eleven (11) days to file his pleading at the time the motion for BOP is filed, then he has
the same number of days to file his responsive pleading from the service upon him of the BOP. If
the motion is denied, then he has the same number of days within which to file his pleading
counted from his receipt of the notice of the order denying his motion. If the movant has less than
five (5) days to file his responsive pleading after service of the bill of particulars or after notice of
the denial of his motion, he nevertheless has five (5) days within which to file his responsive
pleading.(Sec.5, Rule 12).
(2) A seasonable motion for a bill of particulars interrupts the period within which to answer. After
service of the bill of particulars or of a more definite pleading, of after notice of denial of his
motion, the moving party shall have the same time to serve his responsive pleading, if any is
permitted by the rules, as that to which he was entitled at the time of serving his motion, but no
less than five (5) days in any event (Tan vs. Sandigabayan, GR 84195, Dec. 11, 1989; Sec. 5) .
(1) A motion to dismiss is not a pleading. It is merely a motion. It is an application for relief other than
by a pleading (Sec. 1, Rule 15). The pleadings allowed under the Rules are: (a) complaint, (b)
answer, (c) counterclaim, (d) cross-claim, (e) third (fourth, etc.) party complaint, (f) complaint in
intervention (Sec. 2, Rule 6), and reply (Sec. 10, Rule 6). A motion is not one of those specifically
designated as a pleading.
Grounds
(1) Under Sec. 1, Rule 16, a motion to dismiss may be filed on any of the following grounds:
(a) The court has no jurisdiction over the person of the defending party;
(b) The court has no jurisdiction over the subject matter of the claim;
(c) The venue is improperly laid;
(d) The plaintiff has no legal capacity to sue;
(e) There is another action pending between the same parties and for the same cause (lis
pendens);
(f) The cause of action is barred by a prior judgment ( res judicata) or by the statute of limitations
(prescription);
(g) The pleading asserting the claim states no cause of action;
(h) The claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned, or
otherwise extinguished;
(i) The claim on which the action is founded is unenforceable under the provisions of the statute
of frauds; and
(j) A condition precedent for filing the action has not been complied with.
Resolution of motion
(1) After the hearing, the court may dismiss the action or claim, deny the motion, or order the
amendment of the pleading. The court shall not defer the resolution of the motion for the reason
that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and
distinctly the reasons therefor (Sec. 3).
(2) Options of the court after hearing but not to defer the resolution of the motion for the reason that
the ground relied upon is not indubitable:
(a) dismiss the action or claim;
(b) deny the motion to dismiss; or
(c) order amendment of the pleading.
(1) If the motion is granted, the complaint is dismissed. Since the dismissal is final and not
interlocutory in character, the defendant has several options:
(a) Refile the complaint, depending upon the ground for the dismissal of the action. For instance,
if the ground for dismissal was anchored on improper venue, the defendant may file the action
in the proper venue.
(b) Appeal from the order of dismissal where the ground relied upon is one which bars the refiling
of the complaint like res judicata, prescription, extinguishment of the obligation or violation of
the statute of frauds (Sec. 5, Rule 16). Since the complaint cannot be refiled, the dismissal is
with prejudice. Under Sec. 1[h], Rule 41, it is an order dismissing an action without prejudice
which cannot be appealed from. Conversely, where the dismissal is with prejudice, an appeal
from the order of dismissal is not precluded. However, where the ground for dismissal for
instance, is the failure of the complaint to state cause of action, the plaintiff may simply file the
complaint anew; but since the dismissal is without prejudice to its refilling, the order of
dismissal cannot be appealed from under the terms of Sec. 1[h], Rule 41.
(c) Petition for certiorari is availed of if the court gravely abuses its discretion in a manner
amounting to lack of jurisdiction and is the appropriate remedy in those instances when the
dismissal is without prejudice (Sec. 1, Rule 41).
(1) File answer within the balance of the period prescribed by Rule 11 to which he was entitled at the
time of serving his motion, but not less than five (5) days in any event (Sec. 4, Rule 16). As a rule,
the filing of an answer, going through the usual trial process, and the filing of a timely appeal from
an adverse judgment are the proper remedies against a denial of a motion to dismiss. The filing of
an appeal from an order denying a motion to dismiss is not the remedy prescribed by existing
rules. The order of denial, being interlocutory is not appealable by express provision of Sec 1[c],
Rule 41.
(2) Civil action under Rule 65. This remedy however is predicated upon an allegation and a showing
that the denial of the motion was tainted with grave abuse of discretion amounting to lack of
jurisdiction. Without such showing, Rule 65 cannot be availed of as a remedy.
(3) The general rule is that the denial of a motion to dismiss cannot be questioned in a special civil
action for certiorari which is a remedy designed to correct errors of jurisdiction and not errors of
judgment. Neither can a denial of a motion to dismiss be the subject of an appeal unless and until
(1) Failure to state cause of action defendant hypothetically admits all the averments thereof. The
test of sufficiency of the facts found in a complaint as constituting a cause of action is whether or
not admitting the facts alleged, the court can render a valid judgment upon the same in
accordance with the prayer thereof. The hypothetical admission extends to the relevant and
material facts well pleaded in the complaint and inferences fairly deducible therefrom. Hence, if
the allegations in the complaint can be maintained, the same should not be dismissed regardless
of the defense that may be assessed by the defendant (Davao Light and Power Co. vs.Hon.
Judge, Davao City RTC, GR 147058, March 10, 2005) .
(2) When the complaint is dismissed on the grounds of prior judgment or by the statute of limitations,
or payment, waiver, abandonment or extinguishment of the claim or unenforceability of the cause
of action under the statute of frauds, the dismissal shall bar the refiling of the same action or
claim, but this is without prejudice to the right of the other party to appeal from the order of
dismissal because such dismissal is a final order, not merely interlocutory (Sec. 5).
(1) If no motion to dismiss has been filed, any of the grounds provided for dismissal may be pleaded
as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing
may be had thereon as if a motion to dismiss has been filed (Sec. 6, Rule 16).
(2) Implied under Sec. 6, Rule 16 is that the grounds for a motion to dismiss are not waived even if
the defendant fails to file a motion to dismiss because he may still avail of the defenses under
Rule 16 as affirmative defenses in his answer.
(3) The preliminary hearing authorized on the affirmative defenses raised in the answer, applies only
if no motion to dismiss has been filed. As a rule, a preliminary hearing is not authorized when a
motion to dismiss has been filed. An exception previously carved out as if the trial court had not
categorically resolved the motion to dismiss. Another exception would be justified under the
liberal construction rule as when it is evident that the action is barred by res judicata. A strict
application of Sec. 6 would accordingly lead to absurdity when an obviously barred complaint
continues to be litigated. The denial of a motion to dismiss does not preclude any future reliance
on the grounds relied thereupon (Sps. Rasdas vs. Sps. Villa, GR 157605, Dec. 13, 2005).
Bar by dismissal
(1) Demurrer to evidence is a motion to dismiss filed by the defendant after the plaintiff had rested his
case on the ground of insufficiency of evidence. It may be filed after the plaintiff has completed
the presentation of his evidence. It is an aid or instrument for the expeditious termination of an
action similar to a motion to dismiss, which the court or tribunal may either grant or deny.
(2) Distinctions:
(a) A motion to dismiss is usually filed before the service and filing of the answer; a demurrer to
evidence is made after the plaintiff rests his case;
(b) A motion to dismiss is anchored on many grounds; a demurrer is anchored on one ground
plaintiff has no right to relief; and
(c) If a motion to dismiss is denied, the defendant may file his responsive pleading; in a
demurrer, the defendant may present his evidence.
(1) Before the service of an answer or the service of a motion for summary judgment, a complaint
may be dismissed by the plaintiff by filing a notice of dismissal. Upon the filing of the notice of
dismissal, the court shall issue an order confirming the dismissal. (Sec. 1, Rule 17).
(2) it is not the order confirming the dismissal which operates to dismiss the complaint. As the name
of the order implies, said order merely confirms a dismissal already effected by the filing of the
notice of dismissal. The court does not have to approve the dismissal because it has no discretion
on the matter. Before an answer or a motion for summary judgment has been served upon the
plaintiff, the dismissal by the plaintiff by the filing of the notice is a matter of right. The dismissal
occurs as of the date of the notice is filed by the plaintiff and not the date the court issues the
order confirming the dismissal.
Two-dismissal rule
(1) The two-dismissal rule applies when the plaintiff has (a) twice dismissed actions, (b) based on or
including the same claim, (c) in a court of competent jurisdiction. The second notice of dismissal
will bar the refiling of the action because it will operate as an adjudication of the claim upon the
merits. In other words, the claim may only be filed twice, the first being the claim embodied in the
original complaint. Since as a rule, the dismissal is without prejudice, the same claim may be
filed. If the refilled claim or complaint is dismissed again through a second notice of dismissal,
that second notice triggers the application of the two-dismissal rule and the dismissal is to be
deemed one with prejudice because it is considered as an adjudication upon the merits.
(1) Once either an answer or motion for summary judgment has been served on the plaintiff, the
dismissal is no longer a matter of right and will require the filing of a motion to dismiss, not a mere
notice of dismissal. The motion to dismiss will now be subject to the approval of the court which
will decide on the motion upon such terms and conditions as are just (Sec. 2, Rule 17). The
dismissal under Sec. 2 is no longer a matter of right on the part of the plaintiff but a matter of
discretion upon the court.
(1) If a counterclaim has already been pleaded by the defendant prior to the service upon him of the
plaintiffs motion to dismiss, and the court grants said motion to dismiss, the dismissal shall be
limited to the complaint (Sec. 2, Rule 17). The phraseology of the provision is clear: the
counterclaim is not dismissed, whether it is a compulsory or a permissive counterclaim because
the rule makes no distinction. The defendant if he so desires may prosecute his counterclaim
either in a separate action or in the same action. Should he choose to have his counterclaim
resolved in the same action, he must notify the court of his preference within fifteen (15) days
from the notice of the plaintiffs motion to dismiss. Should he opt to prosecute his counterclaim in
a separate action, the court should render the corresponding order granting and reserving his
right to prosecute his claim in a separate complaint.
(2) A similar rule is adopted in Sec. 6, Rule 16 and Sec. 3, Rule 17, wherein the dismissal of the
counterclaim does not carry with it the dismissal of the counterclaim. The same provision also
grants the defendant a choice in the prosecution of his counterclaim.
(1) A complaint may be dismissed even if the plaintiff has no desire to have the same dismissed. The
dismissal is this case will be through reasons attributed to his fault. Sec. 2, Rule 17 provides the
following grounds for dismissal:
(a) Failure of the plaintiff, without justifiable reasons, to appear on the date on the date of the
presentation of his evidence in chief;
(b) Failure of the plaintiff to prosecute his action for an unreasonable length of time;
(c) Failure of the plaintiff to comply with the Rules of Court; or
(d) Failure of the plaintiff to obey any order of the court.
(2) The dismissal due to the fault of the plaintiff may be done by the court motu propio or upon a
motion filed by the defendant (Sec. 2, Rule 17). The court may dismiss an action motu propio:
(a) Failure to prosecute for unreasonable length of time;
(b) Failure to appear at the trial;
(1) The rule on the dismissal of a complaint applies to the dismissal of any counterclaim, cross-claim,
or third-party claim. A voluntary dismissal by the claimant alone by notice pursuant to Sec. 1, Rule
17 shall be made before a responsive pleading or a motion for summary judgment is served or, if
there is none, before the introduction of evidence at the trial or hearing (Sec. 4).
(1) After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly
move ex parte that the case be set for pre-trial.
(1) The conduct of a pre-trial is mandatory. Pre-trial is a procedural device intended to clarify and limit
the basic issues between the parties. It thus paves the way for a less cluttered trial and resolution
of the case. Its main objective is to simplify, abbreviate and expedite trial, or totally dispense with
it (Abubakar vs. Abubakar, 317 SCRA 264). It is a basic precept that the parties are bound to
honor the stipulations made during the pre-trial (Interlining Corp. vs. Phil. Trust Co., GR 144190,
March 6, 2002).
(2) Pre-trial is a procedural device held prior to the trial for the court to consider the following
purposes:
(a) The possibility of an amicable settlement or a submission to alternative modes of dispute
resolution;
(b) Simplification of issues;
(c) Necessity or desirability of amendments to the pleadings;
(d) Possibility of obtaining stipulations or admissions of facts and of documents to avoid
unnecessary proof;
(e) Limitation of the number of witnesses;
(f) Advisability of a preliminary reference of issues to a commissioner;
(g) Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the
action should a valid ground therefor be found to exist;
(h) Advisability or necessity of suspending the proceedings; and
(i) Other matters as may aid in the prompt disposition of the action (Sec. 2, Rule 18).
Notice of pre-trial
(1) The notice of pre-trial shall be served on the counsel of the party if the latter is represented by
counsel. Otherwise, the notice shall be served on the party himself. The counsel is charged with
the duty of notifying his client of the date, time and place of the pre-trial (Sec. 3, Rule 18).
(2) Notice of pre-trial is so important that it would be grave abuse of discretion for the court for
example, to allow the plaintiff to present his evidence ex parte for failure of the defendant to
appear before the pre-trial who did not receive through his counsel a notice of pre-trial.
Accordingly, there is no legal basis for a court to consider a party notified of the pre-trial and to
consider that there is no longer a need to send notice of pre-trial merely because it was his
counsel who suggested the date of pre-trail (Agulto vs. Tucson, 476 SCRA 395).
(1) It shall be the duty of both the parties and their counsels to appear at the pre-trial (Sec. 4, Rule
18).
(1) The parties shall file with the court their respective pre-trial briefs which shall be received at least
three (3) days before the date of the pre-trial. This pre-trial brief shall be served on the adverse
party (Sec. 6, Rule 18).
(2) The pre-trial brief shall contain the following matters:
(a) A statement of their willingness to enter into an amicable settlement or alternative modes of
dispute resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented, stating the purposes thereof;
(e) A manifestation of their having availed of or their intention to avail of discovery procedures or
referral to commissioners; and
(f) The number and names of the witnesses, and the substance of their respective testimonies
(Sec.6, Rule 18).
(3) Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial (Sec.
6, Rule 18). Hence, if it is the plaintiff who fails to file a pre-trial brief, such failure shall be cause
for dismissal of the action. If it is the defendant who fails to do so, such failure shall be cause to
allow the plaintiff to present his evidence ex parte. A pre-trial brief is not required in a criminal
case.
(1) The pre-trial in a civil case is set when the plaintiff moves ex parte to set the case for pre-trial
(Sec.1, Rule 18). The pre-trial in criminal case is ordered by the court and no motion to set the
case for pre-trial is required from either the prosecution or the defense (Sec. 1, Rule 118).
(2) The motion to set the case for pre-trial in a civil case is made after the last pleading has been
served and filed (Sec. 1, Rule 18). In a criminal case, the pre-trial is ordered by the court after
arraignment and within thirty (30) days from the date the court acquires jurisdiction over the
person of the accused (Sec. 1, Rule 118).
(3) The pre-trial in a civil case considers the possibility of an amicable settlement as an important
objective (Sec. 2[a], Rule 18). The pre-trial in a criminal case does not include the considering of
the possibility of amicable settlement of criminal liability as one of its purposes (Sec.1, Rule 118).
(4) In a civil case, the agreements and admissions made in the pre-trial are not required to be signed
by the parties and their counsels. They are to be contained in the record of pre-trial and the pre-
trial order (Sec. 7, Rule 18). In a criminal case, all agreements or admissions made or entered
during the pre-trial conference shall be reduced in writing and signed by the accused and counsel;
otherwise, they cannot be used against the accuse (Sec. 2, Rule 118).
(1) If the case has already filed a complaint with the trial court without prior recourse to arbitration,
the proper procedure to enable an arbitration panel to resolve the parties dispute pursuant to the
contract is for the trial court to stay the proceedings. After the arbitration proceeding has already
been pursued and completed, then the trial court may confirm the award made by the arbitration
panel (Fiesta World Mall Corp. vs. Linberg Phils. Inc., GR 152471, Aug. 18, 2006) .
(2) A party has several judicial remedies available at its disposal after the Arbitration Committee
denied its Motion for Reconsideration:
(a) It may petition the proper RTC to issue an order vacating the award on the grounds provided
for under Sec. 24 of the Arbitration Law;
(b) File a petition for review under Rule 43 with the Court of Appeals on questions of fact, of law,
or mixed questions of fact and law (Sec. 41, ADR);
(c) File a petition for certiorari under Rule 65 on the ground that the Arbitration Committee acted
without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction (Insular Savings Bank vs. Far East Bank and Trust Co., GR 141818,
June 22, 2006).
(1) The following requisites must be complied with before a non-party may intervene in a pending
action:
(a) There must be a motion for intervention filed before rendition of judgment by the trial court
(Sec. 1, Rule 19). A motion is necessary because leave of court is required before a person
may be allowed to intervene.
(b) The movant must show in his motion that he has:
Time to intervene
(1) The motion to intervene may be filed at any time before the rendition of judgment by the trial court
(Sec. 2, Rule 18). Intervention after trial and decision can no longer be permitted (Yau vs. Manila
Banking Corp., GR 126731, July 11, 2002).
(1) The remedy of the aggrieved party is appeal. Mandamus will not lie except in case of grave abuse
of discretion.
(1) Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or
the trial of an action, or at any investigation conducted under the laws of the Philippines, or for
taking of his deposition (Sec. 1, Rule 21).
(2) Subpoena duces tecum is a process directed to a person requiring him to bring with him at the
hearing or trial of an action any books, documents, or other things under his control.
(3) Subpoena ad testificandum is a process by which the court, at the instance of a party, commands
a witness who has in his possession or control some document or paper that is pertinent to the
th
issues of a pending controversy to produce it as the trial (Blacks Law Disctionary, 5 Ed.).
Service of subpoena
(1) It shall be made in the same manner as personal or substituted service of summons. The original
shall be exhibited and a copy thereof delivered to the person on whom it is served, tendering to
him the fees for one days attendance and the kilometrage allowed by the Rules, except that when
a subpoena is issued by or on behalf of the Republic, or an officer or agency thereof, the tender
need not be made. The service must be made so as to allow the witness a reasonable time for
preparation and travel to the place of attendance. If the subpoena is duces tecum, the reasonable
cost of producing the books, documents or things demanded shall alsp be tendered.
(2) Service of a subpoena shall be made by the sheriff, by his deputy, or by any other person
specially authorized, who is not a party and is not less than eighteen (18) years of age (Sec. 6,
Rule 21).
(1) In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of the
service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province,
or his deputy, to arrest the witness and bring him before the court or officer where his attendance
is required, and the cost of such warrant and seizure of such witness shall be paid by the witness
if the court issuing it shall determine that his failure to answer the subpoena was willful and
without just cause (Sec. 8).
(2) Failure by any person without adequate cause to obey a subpoena served upon him shall be
deemed a contempt of the court from which the subpoena is issued. If the subpoena was not
issued by a court, the disobedience thereto shall be punished in accordance with the applicable
law or Rule (Sec. 9).
(1) The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at
or before the time specified therein: (a) if it is unreasonable and oppressive, or (b) the relevancy
of the books, documents or things does not appear, or (c) if the person is whose behalf the
subpoena is issued fails to advance the reasonable cost of the production thereof (Sec. 4).
(2) Subpoena ad testificandum may be quashed on the ground that the witness is not bound thereby.
In either case, the subpoena may be quashed on the ground that the witness fees and
kilometrage allowed by the Rules were not tendered when the subpoena was served (Sec. 4).
Meaning of Deposition
(1) A deposition is the taking of the testimony of any person, whether he be a party or not, but at the
instance of a party to the action. This testimony is taken out of court. It may be either by oral
examination, or by a written interrogatory (Sec. 1, Rule 23).
(2) Kinds of depositions:
(a) Deposition de bene esse one taken pending action (Sec. 1, Rule 23); and
(b) Deposition in perpetua rei memoriam one taken prior to the institution of an apprehended or
intended action (Rule 134).
(1) A deposition may be sought for use in a future action (Rule 24), during a pending action (Rule 23),
or for use in a pending appeal (Rule 24). If the deposition is for use during a pending action, it is
commonly called a deposition benne esse and is governed by Rule 23. If it is to perpetuate a
testimony for use in future proceedings as when it is sought before the existence of an action, or
for cases on appeal, it is called a deposition in perpetuam rei memoriam. Any or all of the
deposition, so far as admissible under the rules of evidence, may be used (a) against any party
who was present or represented at the taking of the deposition, or (b) against one who had due
notice of the deposition (Sec. 4, Rule 23).
(2) The deposition may be used for the following purposes:
(a) For contradicting or impeaching the testimony of the deponent as a witness;
(b) For any purpose by the adverse party where the deponent is a party;
(c) For any purpose by any party, where the deponent is a witness if the court finds that:
(1) The witness is dead;
(2) The witness resides more than 100 kilometers from the place of trial or hearing, or is out
of the Philippines, unless it appears that his absence was procured by the party offering
the deposition;
(3) That the witness is unable to attend or testify because of age, sickness, infirmity, or
imprisonment; or
(4) That the party offering the deposition has been unable to procure the attendance of
witnesses by subpoena; or
(5) When exceptional circumstances exist (Sec. 4, Rule 23).
Scope of examination
(1) Unless otherwise ordered by the court as provided by Sec. 16 or 18, the deponent may be
examined regarding any matter not privileged, which is relevant to the pending action, whether
relating to the claim or defense of any other party, including the existence, description, nature,
custody, condition, and location of any books, documents, or other tangible things and the identity
and location of persons having knowledge of relevant facts (Sec. 2).
(1) Subject to the provisions of Sec. 29, objection may be made at the trial or hearing to receiving in
evidence any deposition or part thereof for any reason which would require the exclusion of the
evidence if the witness were then present and testifying (Sec. 6).
(1) At any time during the taking of the deposition, on motion or petition of any party or of the
deponent and upon showing that the examination is being conducted in bad faith or in such
manner as reasonably to annoy, embarrass, or oppress the deponent or party, the court in which
the action is pending or the RTC of the place where the deposition is being taken may order the
officer conducting the examination to cease forthwith from taking the deposition, or may limit the
scope and manner of the taking of the deposition, as provided in Sec. 16, Rule 23. If the order
made terminates the examination, 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
deposition shall be suspended for the time necessary to make a notice for an order. In granting or
refusing such order, the court may impose upon either party or upon the witness the requirement
to pay such costs or expenses as the court may deem reasonable (Sec. 18).
(1) A party not served with written interrogatories may not be compelled by the adverse party to give
testimony in open court, or to give deposition pending appeal, unless allowed by the court or to
prevent a failure of justice (Sec. 6, Rule 25). This provision encourages the use of written
interrogatories although a party is not compelled to use this discovery procedure, the rule imposes
sanctions for his failure to serve written interrogatories by depriving him of the privilege to call the
adverse party as a witness or to give a deposition pending appeal.
(1) A party, although not compelled by the Rules, is advised to file and serve a written request for
admission on the adverse party of those material and relevant facts at issue which are, or ought to
be, within the personal knowledge of said adverse party. The party who fails to file and serve the
request shall not be permitted to present evidence on such facts (Sec. 5, Rule 26).
(1) Each of the matters of which an admission is requested shall be deemed admitted unless, within
a period designated in the request, which shall not be less than fifteen (15) days after service
thereof, or within such further time as the court may allow on motion, the party to whom the
request is directed files and serves upon the party requesting the admission a sworn statement
either denying specifically the matters of which an admission is requested or setting forth in detail
the reasons why he cannot truthfully either admit or deny those matters (Sec. 2, par. 1).
(2) Objections to any request for admission shall be submitted to the court by the party requested
within the period for and prior to the filing of his sworn statement as contemplated in the
preceding paragraph and his compliance therewith shall be deferred until such objections are
resolved, which resolution shall be made as early as practicable (Sec. 2, par. 2).
(1) The facts or documents are deemed admitted. Under the Rules, each of the matters of which an
admission is requested shall be deemed admitted unless within a period designated in the
request which shall not be less than 15 days after service thereof, or within such further time as
the court may allow on motion, the party to whom the request is directed files and serves upon the
party requesting the admission a sworn statement either denying specifically the matter of which
an admission is requested or setting forth in detail the reason why he cannot truthfully either admit
or deny those matters.
Effect of admission
(1) Any admission made by a party pursuant to such request is for the purpose of the pending action
only and shall not constitute an admission by him for any other purpose nor may the same be
used against him in any other proceeding (Sec. 3).
(1) A party who fails to file and serve a request for admission on the adverse party of material and
relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall
not be permitted to present evidence on such facts (Sec. 5).
(1) Upon motion of any party showing good cause therefor, the court in which an action is pending
may:
(a) Order any party to produce and permit the inspection and copying or photographing, by or on
behalf of the moving party, of any designated documents, papers, books, accounts, letters,
photographs, objects or tangible things, not privileged, which constitute or contain evidence
material to any matter involved in the action and which are in his possession, custody or
control; or
(b) Order any party to permit entry upon designated land or other property in his possession or
control for the purpose of inspecting, measuring, surveying, or photographing the property or
any designated relevant object or operation thereon. The order shall specify the time, place
and manner of making the inspection and taking copies and photographs, and may prescribe
such terms and conditions as are just.
(2) Requirements for the production or inspection of documents or things:
(a) A motion must be filed by a party showing good cause therefor;
(b) The motion must sufficiently describe the document or thing sought to be produced or
inspected;
(c) The motion must be given to all the other parties;
(d) The document or thing sought to be produced or inspected must constitute or contain
evidence material to the pending action;
(1) The following are the consequences of a plaintiffs refusal to make discovery:
(a) The examining party may complete the examination on the other matters or adjourn to the
same (Sec. 1);
(b) Thereafter, on reasonable notice to all persons affected thereby, he may apply to the court of
the province where the deposition is being taken for an order compelling answer;
(c) If the court finds that the refusal was without substantial justification, it may order the refusing
party or the attorney advising him or both of them to pay the examining party the amount of
reasonable attorneys fees;
(d) The refusal to answer may be considered as contempt of court (Sec. 2);
(e) The court may order that the facts sought to be established by the examining party shall e
taken to be established for the purpose of the action in accordance with the claim of the party
obtaining the order (Sec. 3[a]);
(f) The court may issue an order refusing to allow the disobedient party to support or oppose
designated claims or defenses or prohibiting him from introducing in evidence designated
documents or things or items of testimony (Sec. 3[b]);
(g) The court may order the striking out of pleadings or party thereof (Sec. 3[c]);
(h) The court may stay further proceedings until the order is obeyed;
(i) The court may dismiss the action or proceeding or any party thereof, or render judgment by
default against the disobedient party (Sec. 5);
(j) The court may order the arrest of any party who refuses to admit the truth of any matter of fact
or the genuineness of any document to pay the party who made the request and who proves
the truth of any such matters or the genuineness of such document, reasonable expenses
incurred in making such proof, including reasonable attorneys fees (Sec. 4).
(1) The general rule is that a court may adjourn a trial from day to day, and to any stated time, as the
expeditious and convenient transaction of business may require (Sec. 2).
(2) The court has no power to adjourn a trial for a period longer than one month from each
adjournment, nor more than three (3) months in all, except when authorized in writing by the
Court Administrator. A motion for postponement should not be filed on the last hour especially
when there is no reason why it could not have been presented earlier (Republic vs.
Sandiganbayan, 301 SCRA 237).
(3) Postponement is not a matter of right. It is addressed to the sound discretion of the court (Garces
vs. Valenzuela, 170 SCRA 745).
(1) Trial may be postponed on the ground of absence of evidence upon compliance with the
following:
(a) A motion for postponement must be filed;
(b) The motion must be supported by an affidavit or sworn certification showing (1) the materiality
or relevancy of the evidence, and (2) that due diligence has been used to procure it (Sec. 3).
(2) If the adverse party admits the facts given in evidence, the trial shall not be postponed even if he
reserves the right to object to the admissibility of the evidence (Sec. 3).
(1) If the parties agree, in writing, on the facts involved in the action, they may then ask the court to
render judgment thereon without the introduction of evidence. If the agreement of facts is partial,
trial shall be held as to others (Sec. 6). The agreed statement of facts is conclusive on the parties,
as well as on the court. Neither of the parties may withdraw from the agreement, nor may the
court ignore the same (McGuire vs. Manufacturers Life Ins., 87 Phil. 370).
Order of trial
(1) Subject to the provisions of Sec. 2, Rule 31, and unless the court for special reasons otherwise
directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as
follows:
(a) The plaintiff shall adduce evidence in support of his complaint;
(b) The defendant shall then adduce evidence in support of his defense, counterclaim, cross-
claim and third party complaint;
(c) The third party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-
claim and fourth-party complaint;
(d) The fourth party, and so forth, if any, shall adduce evidence of the material facts pleaded by
them;
Reversal of order
(1) When the accused admits the act or omission charged in the complaint or information but
interposes a lawful defense, the order of trial may be modified Sec. 11, Rule 119).
(1) Consolidation. When actions involving a common question of law or facts are pending before the
court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may
order all the actions consolidated; and it may make such orders concerning proceedings therein
as may tend to avoid unnecessary costs or delay (Sec. 1).
(2) Severance (Separate) Trials. The court, in furtherance of convenience or to avoid prejudice, may
order a separate trial of any claim, cross-claim, counterclaim, or third party complaint, or of any
separate issue or of any number of claims, cross-claims, counterclaim, third party complaints or
issue (Sec. 2).
(1) The judge of the court where the case is pending shall personally receive the evidence to be
adduced by the parties. Reception of the evidence may nevertheless be delegated to the clerk of
court who is a member of the bar, in any of the following cases:
(a) In default hearings;
(b) In ex parte hearings; or
(c) In any case by written agreement of the parties (Sec. 9).
Reference by consent
(1) By written consent of both parties, the court may order any or all of the issues in a case to be
referred to a commissioner to be agreed upon by the parties or to be appointed by the court (Sec.
1).
(1) When the parties do not consent, the court may, upon the application of either or on its own
motion, direct a reference to a commissioner in the following cases:
(a) When the trial of an issue of fact requires the examination of a long account on either side, in
which case the commissioner may be directed to hear and report upon the whole issue or any
specific question involved therein;
(b) When the taking of an account is necessary for the information of the court before judgment,
or for carrying a judgment or order into effect;
Powers of commissioner
(1) Under the Rules, the courts order may specify or limit the powers of the commissioner. Hence,
the order may direct him to:
(a) Report only upon particular issues;
(b) Do or perform particular acts; or
(c) Receive and report evidence only.
(2) The order may also fix the date for beginning and closing of the hearings and for the filing of his
report.
(3) Subject to such limitations stated in the order, the commissioner:
(a) Shall exercise the power to regulate the proceedings in every hearing before him;
(b) Shall do all acts and take all measures necessary or proper for the efficient performance of
his duties under the order
(c) May issue subpoenas and subpoenas duces tecum, and swear witnesses; and
(d) Rule upon the admissibility of evidence, unless otherwise provided in the order of reference
(Sec. 3, Rule 32).
(1) Upon completion of the trial or hearing or proceeding before the commissioner, he shall file with
the court his report in writing upon the matters submitted to him by the order of reference. When
his powers are not specified or limited, he shall set forth his findings of fact and conclusions or law
in his report. He shall attach in his report all exhibits, affidavits, depositions, papers and the
transcript, if any, of the evidence presented before him (Sec. 9).
(2) The commissioners report is not binding upon the court which is free to adopt, modify, or reject,
in whole or in part, the report. The court may receive further evidence or recommit the report with
instructions (Sec. 11, Rule 32; Baltazar vs. Limpin, 49 Phil. 39).
(3) Notice of the filing of the report must be sent to the parties for the purpose of giving them an
opportunity to present their objections (Santos vs. Guzman, 45 Phil. 646). The failure to grant the
parties, in due form, this opportunity to object, may, in some instances, constitute a serious error
in violation of their substantial rights (Govt. vs. Osorio, 50 Phil. 864).
The rule, however, is not absolute. In Manila Trading and Supply Co. vs. Phil. Labor Union, 71 Phil. 539 , it
was ruled that although the parties were not notified of the filing of the commissioners reports, and the
court failed to set said report for hearing, if the parties who appeared before the commissioner were duly
represented by counsel and given an opportunity to be heard, the requirement of due process has been
satisfied, and a decision on the basis of such report, with the other evidence of the case is a decision
which meets the requirements of fair and open hearing.
(4) In the hearing to be conducted on the commissioners report, the court will review only so much
as may be drawn in question by proper objections. It is not expected to rehear the case upon the
entire record (Kreidt vs. McCullough and Co., 37 Phi. 474).
Ground
(1) In the event his motion is denied, the defendant does not waive his right to offer evidence. An
order denying a demurrer to evidence is interlocutory and is therefore, not appealable. It can
however be the subject of a petition for certiorari in case of grave abuse of discretion or an
oppressive exercise of judicial authority.
(2) If the motion is granted and the order of dismissal is reversed on appeal, the movants loses his
right to present the evidence on his behalf. In the case of reversal, the appellate court shall render
judgment for the plaintiff based on the evidence alone.
(3) It is not correct for the appellate court reversing the order granting the demurrer to remand the
case to the trial court for further proceedings. The appellate court should, instead of remanding
the case, render judgment on the basis of the evidence submitted by the plaintiff (Radiowealth
Finance Corp. vs. Del Rosario, 335 SCRA 288).
(1) If the demurrer is granted but on appeal the order of dismissal is reversed, the defendant is
deemed to have waived his right to present evidence.
(1) In a civil case, leave of court is not required before filing a demurrer. In a criminal case, leave of
court is filed with or without leave of court (Sec. 23, Rule 119).
(2) In a civil case, if the demurrer is granted, the order of dismissal is appealablesince the motion is
interlocutory. In a criminal case, the order of dismissal is not appealable because of the
constitutional policy against double jeopardydenial is tantamount to acquittal, final and
executory.
(3) In civil case, if the demurrer is denied, the defendant may proceed to present his evidence. In a
criminal case, the accused may adduce his evidence only if the demurrer is filed with leave of
court. He cannot present his evidence if he filed the demurrer without leave of court (Sec. 23,
Rule 119).
(1) The theory of summary judgment is that although an answer may on its face appear to tender
issuesrequiring trialyet if it is demonstrated by affidavits, depositions, or admissions that those
issues are not genuine, but sham or fictitious, the Court is justified in dispensing with the trial and
rendering summary judgment for plaintiff. The court is expected to act chiefly on the basis of the
affidavits, depositions, admissions submitted by the movants, and those of the other party in
opposition thereto. The hearing contemplated (with 10-day notice) is for the purpose of
determining whether the issues are genuine or not, not to receive evidence on the issues set up in
the pleadings. A hearing is not thus de riguer. The matter may be resolved, and usually is, on the
basis of affidavits, depositions, admissions. Under the circumstances of the case, a hearing would
serve no purpose, and clearly unnecessary. The summary judgment here was justified,
considering the absence of opposing affidavits to contradict the affidavits (Galicia vs. Polo, L-
49668, Nov. 14, 1989; Carcon Devt. Corp. vs. CA, GR 88218, Dec. 17, 1989) .
Contents of a judgment
(1) Judgment has two parts: (a) the body of the judgment or the ratio decidendi, and (b) the
dispositive portion of the judgment or fallo. The body of the decision (ratio decidendi) is not the
part of the judgment that is subject to execution but the fallo because it is the latter which is the
(1) Where an answer fails to tender an issue, or otherwise admits the material allegations of the
adverse partys pleading, the court may, on motion of that party, direct judgment on such
pleading. However, in actions for declaration of nullity or annulment of marriage or for legal
separation (or for unliquidated damages, or admission of the truth of allegation of adverse party),
the material facts alleged in the complaint shall always be proved (Sec. 1).
(1) A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory
relief may, at any time after the pleading in answer thereto has been served, move with
supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or
any part thereof (Sec. 1).
(1) A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is
sought may, at any time, move with supporting affidavits, depositions or admissions for a
summary judgment in his favor as to all or any part thereof (Sec. 2).
(1) If on motion, judgment is not rendered upon the whole case of for all the reliefs sought and a trail
is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence
before it and by interrogating counsel shall ascertain what material facts exist without substantial
controversy and what are actually and in good faith controverted. It shall thereupon make an
order specifying the facts that appear without substantial controversy, including the extent to
which the amount of damages or other relief is not in controversy, and directing such further
(1) Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Certified true copies of all papers or parts
thereof referred to in the affidavit shall be attached thereto or served therewith (Sec. 5).
(2) Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to the
Rules are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order
the offending party or counsel to pay to the other party the amount of the reasonable expenses
which the filing of the affidavits caused him to incur, including attorneys fees. It may, after
hearing, further adjudge the offending party or counsel guilty of contempt (Sec. 6).
(1) In the judgment on the pleadings, the answer does not tender an issue; in summary judgment,
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;
(2) In judgment on the pleadings, the movants must give a 3-day notice of hearing; while in summary
judgment, the opposing party is given 10 days notice;
(3) In judgment on the pleadings, the entire case may be terminated; while in summary judgment, it
may only be partial;
(4) In judgment on the pleadings, only the plaintiff or the defendants as far as the counterclaim,
cross-claim or third-party complaint is concerned can file the same; while in summary judgment,
either the plaintiff or the defendant may file it.
(1) Rendition of judgment is the filing of the same with the clerk of court. It is not the pronouncement
of the judgment in open court that constitutes the rendition. Even if the judgment has already
been put in writing and signed, it is still subject to amendment if it has not yet been filed with the
clerk of court and before its filing does not yet constitute the real judgment of the court (Ago vs.
CA, 6 SCRA 530). It is not the writing of the judgment or its signing which constitutes rendition of
the judgment (Castro vs. Malazo, 99 SCRA 164).
(2) A judgment or final order determining the merits of the case shall be in writing personally and
directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is
based, signed by him, and filed with the clerk of the court (Sec. 1, Rule 36).
(1) If no appeal or motion for new trial or reconsideration is filed within the time provided in the Rules,
the judgment or final order shall forthwith be entered by the clerk in the book of entries of
judgments. The date of finality of the judgment or final order shall be deemed the date of its entry.
The record shall contain the dispositive part of the judgment or final order and shall be signed by
the clerk, with a certificate that such judgment or final order has become final and executor (Sec.
2).
(2) The entry of judgment refers to the physical act performed by the clerk of court in entering the
dispositive portion of the judgment in the book of entries of judgment and after the same has
become final and executor. The record shall contain the dispositive portion of the judgment or
final order and shall be signed by the clerk of court, with a certificate by said clerk that the
judgment has already become final and executor (Sec. 2, Rule 36).
(3) There are some proceedings the filing of which is reckoned from the date of the entry of judgment:
(a) the execution of a judgment by motion is within five (5) years from the entry of the judgment
(a) Motion for reconsideration (prohibited in a case that falls under summary procedure) (Rules
37, 52);
(b) Motion for new trial (Rules 37, 53); and
(c) Appeal (Rules 40, 41, 42, 43, 45)
(1) Fraud (extrinsic), accident, mistake (of fact and not of law) or excusable negligence which
ordinary prudence could not have guarded against and by reason of which such aggrieved party
has probably been impaired in his rights;
(2) Newly discovered evidence (Berry Rule), which he could not, with reasonable diligence, have
discovered and produced at the trial, and which if presented would probably alter the result; and
(3) Award of excessive damages, or insufficiency of the evidence to justify the decision, or that the
decision is against the law (Sec. 1, Rule 37).
When to file
(1) A motion for new trial should be filed within the period for taking an appeal. Hence, it must be filed
before the finality of the judgment (Sec. 1). No motion for extension of time to file a motion for
reconsideration shall be allowed. In Distilleria Limtuaco 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.
(2) 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).
(1) If the motion is denied, the movants has a fresh period of fifteen days from receipt or notice of
the order denying or dismissing the motion for reconsideration within which to file a notice of
appeal.
(1) If a new trial be granted in accordance with the provisions of the rules, the original judgment shall
be vacated or set aside, and the action shall stand for trial de novo; but the recorded evidence
taken upon the former trial so far as the same is material and competent to establish the issues,
shall be used at the new trial without retaking the same (Sec. 6). The filing of the motion for new
trial or reconsideration interrupts the period to appeal (Sec. 2, Rule 40; Sec. 3, Rule 41).
(2) If the court grants the motion (e.g., it finds that excessive damages have been awarded or that the
judgment or final order is contrary to the evidence or law), it may amend such judgment or final
order accordingly (Sec. 3). The amended judgment is in the nature of a new judgment which
supersedes the original judgment. It is not a mere supplemental decision which does not supplant
the original but only serves to add something to it (Esquivel vs. Alegre, 172 SCRA 315). If the
court finds that a motion affects the issues of the case as to only a part, or less than all of the
matters in controversy, or only one, or less that all of the parties to it, the order may grant a
reconsideration as to such issues if severable without interfering with the judgment or final order
upon the rest (Sec. 7).
(1) The party aggrieved should appeal the judgment. This is so because a second motion for
reconsideration is expressly prohibited under the Interim Rules (Sec. 5).
(2) An order denying a motion for reconsideration or new trial is not appealable, the remedy being an
appeal from the judgment or final order under Rule 38. The remedy from an order denying a
motion for new trial is not to appeal from the order of denial. Again, the order is not appealable.
The remedy is to appeal from the judgment or final order itself subject of the motion for new trial
(Sec. 9, rule 37).
(1) If the motion is denied, the movants has a fresh period of 15 days from receipt or notice of the
order denying or dismissing the motion for reconsideration within which to file a notice to appeal.
This new period becomes significant if either a motion for reconsideration or a motion for new trial
has been filed but was denied or dismissed. This fresh period rule applies only to Rule 41
governing appeals from the RTC but also to Rule 40 governing appeals from MTC to RTC, Rule
42 on petitions for review from the RTC to the CA, Rule 43 on appeal from quasi-judicial agencies
to the CA, and Rule 45 governing appeals by certiorari to the SC. 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). The Neypes ruling shall not be applied where no motion for new trial or
motion for reconsideration has been filed in which case the 15-day period shall run from notice of
the judgment.
(2) The fresh period rule does not refer to the period within which to appeal from the order denying
the motion for new trial because the order is not appealable under Sec. 9, Rule 37. The non-
appealability of the order of denial is also confirmed by Sec. 1(a), Rule 41, which provides that no
appeal may be taken from an order denying a motion for new trial or a motion for reconsideration.
(1) An appeal may be taken only from judgments or final orders that completely dispose of the case
(Sec. 1, Rule 41). An interlocutory order is not appealable until after the rendition of the judgment
on the merits.
(1) In those instances where the judgment or final order is not appealable, the aggrieved party may
file the appropriate special civil action under Rule 65. Rule 65 refers to the special civil actions of
certiorari, prohibition and mandamus. Practically, it would be the special civil action of certiorari
that would be availed of under most circumstances. The most potent remedy against those
judgments and orders from which appeal cannot be taken is to allege and prove that the same
were issued without jurisdiction, with grave abuse of discretion or in excess of jurisdiction, all
amounting to lack of jurisdiction.
(a) Ordinary appeal. The appeal to the CA in cases decided by the RTC in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment
or final order appealed from and serving a copy thereof upon the adverse party. No record on
appeal shall be required except in special proceedings and other cases of multiple or separate
appeals where the law or the Rules so require. In such cases, the record on appeal shall be filed
and served in like manner.
(b) Petition for review. The appeal to the CA in cases decided by the RTC in the exercise of its
appellate jurisdiction shall be by petition for review in accordance with Rule 42.
(c) Petition for review on certiorari. In all cases where only questions of law are raised or involved,
the appeal shall be to the SC by petition for review on certiorari in accordance with Rule 45.
(1) Whether or not the appellant has filed a motion for new trial in the court below, he may include in
his assignment or errors any question of law or fact that has been raised in the court below and
which is within the issues framed by the parties (Sec. 15, Rule 44).
Period of appeal
(1) Period of Ordinary Appeal under Rule 40. An appeal may be taken (from MTC to RTC) 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 after notice of the judgment or final order. The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration. No motion for extension of time to file a motion for
new trial or reconsideration shall be allowed (Sec. 2).
(2) Period of Ordinary Appeal under Rule 41). The appeal shall be taken within 15 days from notice
of the judgment or final order appealed from. Where a record on appeal is required, the appellants
shall file a notice of appeal and a record on appeal within 30 days from notice of the judgment or
final order. However, on appeal in habeas corpus cases shall be taken within 48 hours from
(1) For Ordinary Appeals from MTC to the RTC (Rule 40) and from the RTC to the CA (Rule 41).
(a) A partys appeal by notice of appeal is deemed perfected as to him upon the filing of the
notice of appeal in due time;
(b) A partys appeal by record on appeal is deemed perfected as to him with respect to the
subject matter thereof upon the approval of the record on appeal filed in due time;
(c) In appeals by notice of appeal, the court loses jurisdiction only over the subject matter thereof
upon the approval of the records on appeal filed in due time and the expiration of the time to
appeal of the other parties;
(d) In either case, prior to the transmittal of the original record or the record on appeal, the court
may issue orders for the protection and preservation of the rights of the parties which do not
involve any matter litigated by the appeal, approve compromises, permit appeals of indigent
litigants, order execution pending appeal in accordance with Sec. 2, Rule 39, and allow
withdrawal of the appeal (Sec. 9, Rule 41).
(2) Perfection of Appeal by Petition for Review under Rule 42. (Sec.8)
(a) Upon the timely filing of a petition for review and the payment of the corresponding docket
and other lawful fees, the appeal is deemed perfected as to the petitioner. The RTC loses
jurisdiction over the case upon the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties.
However, before the CA give due course to the petition, the RTC may issue orders for the
protection and preservation of the rights of the parties which do not involve any matter
litigated by the appeal, approve compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with Sec. 2, Rule 39, and allow withdrawal of the
appeal.
(b) Except in civil cases decided under Rules on Summary Procedure, the appeal shall stay the
judgment or final order unless the CA, the law, or the Rules provide otherwise.
(c) A partys appeal by notice of appeal is deemed perfected as to him upon the filing thereof in
due time, and a partys appeal by record on appeal is deemed perfected as to him upon the
approval thereof. In the first case, the court loses jurisdiction over the whole case upon the
perfection of the appeals taken by the parties who have appealed and the expiration of the
time to appeal of the other parties. In the second case, the court loses jurisdiction over the
subject matter thereof upon the approval of all the records on appeal filed by the parties who
have appealed and the expiration of the time to appeal of the other parties; and retains
jurisdiction over the remaining subject matter not covered by the appeal.
(1) An appeal from a judgment or final order of a MTC may be taken to the RTC exercising
jurisdiction over the area to which the former pertains. The title of the case shall remain as it was
in the court of origin, but the party appealing the case shall be further referred to as the appellant
and the adverse party as the appellee (Sec. 1, Rule 40).
(2) The appeal is taken by filing a notice of appeal with the court that rendered the judgment or final
order appealed from. The notice of appeal shall indicate the parties to the appeal, the judgment or
final order or part thereof appealed from, and state the material dates showing the timeliness of
the appeal. A record on appeal shall be required only in special proceedings and in other cases of
multiple or separate appeals (Sec. 3).
(3) Procedure (Sec. 7):
(a) Upon receipt of the complete record or the record on appeal, the clerk of court of the RTC
shall notify the parties of such fact.
(b) Within 15 days from such notice, the appellant shall submit a memorandum which shall
briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him
to the adverse party. Within 15 days from receipt of appellants memorandum, the appellee
may file his memorandum. Failure of appellant to file a memorandum shall be a ground for
dismissal of the appeal.
(c) Once the filing of the memorandum of the appellee, or the expiration of the period to do so,
the case shall be considered submitted for decision. The RTC shall decide the case on the
(1) Rule 41 applies to appeals from the judgment or final order of the RTC in the exercise of its
original jurisdiction. This appeal is called an ordinary appeal. Rule 42 applies to an appeal from
the judgment or final order of the RTC to the CA in cases decided by the RTC in the exercise of
its appellate jurisdiction.
(1) Appeal by certiorari under Rule 45 shall be taken to the SC where the petitions shall raise only
questions of law distinctly set forth. The general rule is that the SC shall not entertain questions of
fact, except in the following cases:
(a) The conclusion of the CA is grounded entirely on speculations, surmises and conjectures;
(b) The inference made is manifestly mistaken, absurd or impossible;
(c) There is grave abuse of discretion;
(d) The judgment is based on misapprehension of facts;
(e) The findings of facts are conflicting;
(f) The CA in making its findings went beyond the issues of the case and the same is contrary to
the admissions of both appellant and appellee;
(g) The findings are contrary to those of the trial court;
(h) The facts set forth in the petition as well as in the petitioners main and reply briefs are not
disputed by the respondents;
(i) The findings of fact of the CA are premised on the supposed absence of evidence and
contradicted by the evidence on record; or
(j) Those filed under Writs of amparo, habeas data, or kalikasan.
(1) Under Sec. 11 of RA 9282, no civil proceeding involving matters arising under the NIRC, the TCC
or the Local Government Code shall be maintained, except as herein provided, until and unless
an appeal has been previously filed with the CTA and disposed of in accordance with the
provisions of the Act. A party adversely affected by a resolution of a Division of CTA on a motion
for reconsideration or new trial, may file a petition for review with the CTA en banc.
(2) Sec. 11 of RA 9282 further provides that a party adversely affected by a decision or ruling of the
CTA en banc may file with the SC a verified petition for review on certiorari pursuant to Rule 45.
(1) A judgment, resolution or final order of the COMELEC may be brought by the aggrieved party to
the SC on certiorari under Rule 45 by filing the petition within 30 days from notice (Sec. 3, Rule
64).
(1) A judgment, final order or resolution of the Civil Service Commission may be taken to the CA
under Rule 43. Note the difference between the mode of appeal from a judgment of the CSC and
the mode of appeal from the judgments of other constitutional commissions.
(1) A judgment, resolution or final order of the Commission on Audit may be brought by the aggrieved
party to the SC on certiorari under Rule 65 by filing the petition within 30 days from notice (Sec. 3,
Rule 64).
(1) In administrative disciplinary cases, the ruling of the Office of the Ombudsman are appealable to
the Court of Appeals. Sec. 27 of RA 6770 (Ombudsman Act of 1987) insofar as it allowed a direct
appeal to the SC was declared unconstitutional in Fabian vs. Desierto because the statute, being
one which increased the appellate jurisdiction of the SC was enacted without the advice and
concurrence of the Court. Instead, appeals from decisions of the Ombudsman in administrative
disciplinary actions should be brought to the CA under Rule 43 (Gonzales vs. Rosas, 423 SCRA
288).
(a) The CA has jurisdiction over orders, directives and decisions of the Office of the Ombudsman
in administrative cases only. If cannot, therefore, review the orders, directives or decisions of
the OO in criminal or non-administrative cases (Golangco vs. Fung, GR 147640-762, Oct. 12,
2006).
(b) Although as a consequence of Fabian appeals from the Ombudsman in administrative cases
are now cognizable by the CA, nevertheless in cases in which it is alleged that the
Ombudsman has acted with grave abuse of discretion amounting to lack or excess of
jurisdiction amounting to lack or excess of jurisdiction, a special civil action of certiorari under
Rule 65 may be filed with the SC to set aside the Ombudsmans order or resolution (Nava vs.
NBI, 455 SCRA 377).
(2) In criminal cases, the ruling of the Ombudsman shall be elevated to the SC by way of Rule 65.
The SCs power to review over resolutions and orders of the Office of the Ombudsman is
restricted on to determining whether grave abuse of discretion has been committed by it. The
Court is not authorized to correct every error or mistake of the Office of the Ombudsman other
than grave abuse of discretion (Villanueva vs. Ople, GR 165125, Nov. 18, 2005) . The remedy is
not a petition for review on certiorari under Rule 45.
(1) The remedy of a party aggrieved by the decision of the National Labor Relations Commission is to
promptly move for the reconsideration of the decision and if denied to timely file a special civil
action of certiorari under Rule 45 within 60 days from notice of the decision. In observance of the
doctrine of hierarchy of courts, the petition for certiorari should be filed in the CA (St. Martin
Funeral Homes vs. NLRC, GR 130866, Sept. 16, 1998).
(1) Appeals from judgments and final orders of quasi-judicial bodies/agencies are now required to be
brought to the CA under the requirements and conditions set forth in Rule 43. This rule was
adopted precisely to provide a uniform rule of appellate procedure from quasi-judicial bodies
(Carpio vs. Sulu Resource Devt. Corp., 387 SCRA 128) .
(2) The appeal under Rule 43 may be taken to the CA whether the appeal involves a question of fact,
a question of law, or mixed questions of fact and law. The appeal shall be taken by filing a verified
petition for review with the CA. The appeal shall not stay the award, judgment, final order or
resolution sought to be reviewed unless the CA shall direct otherwise upon such terms as it may
deem just.
(1) A petition for relief from judgment is an equitable remedy that is allowed only in exceptional cases
when there is no other available or adequate remedy. When a party has another remedy available
to him, which may be either a motion for new trial or appeal from an adverse decision of the trial
court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing
such motion or taking such appeal, he cannot avail himself of this petition (Trust International
Paper Corp. vs. Pelaez, GR 164871, Aug. 22, 2006).
(1) When a judgment or final order is entered, or any other proceeding is thereafter taken against a
party in any court through (a) fraud, (b) accident, (c) mistake, or (c) excusable negligence, he may
file a petition in such court and in the same case praying that the judgment, order or proceeding
be set aside (Sec. 1, Rule 38).
(2) When the petitioner has been prevented from taking an appeal by fraud, mistake, or excusable
negligence (Sec. 2).
(1) A petition for relief from judgment, order or other proceedings must be verified, filed within 60
days after the petitioner learns of the judgment, final order, or other proceeding to be set aside,
and not more than six (6) months after such judgment or final order was entered, or such
proceeding was taken; and must be accompanied with affidavits showing the fraud, accident,
mistake, or excusable negligence relied upon, and the facts constituting the petitioners good and
substantial cause of action or defense, as the case may be (Sec. 3, Rule 38).
Contents of petition
(1) The petition must be verified and must be accompanied with affidavits showing fraud, accident,
mistake or excusable negligence relied upon, and the facts constituting the petitioners good and
substantial cause of action or defense, as the case may be (Sec. 3).
(1) The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction.
Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a
motion for new trial or petition for relief (Sec. 2, Rule 47).
(1) If based on extrinsic fraud, the action must be filed within four (4) years from its discovery; and if
based on lack of jurisdiction, before it is barred by laches or estoppels (Sec. 3).
(1) A judgment of annulment shall set aside the questioned judgment or final order or resolution and
render the same null and void, without prejudice to the original action being refilled in the proper
court. However, where the judgment or final order or resolution is set aside on the ground of
extrinsic fraud, the court may on motion order the trial court to try the case as if a timely motion for
new trial had been granted therein (Sec. 7, Rule 47).
(1) A collateral attack is made when, in another action to obtain a different relief, an attack on the
judgment is made as an incident in said action. This is proper only when the judgment, on its face,
is null and void, as where it is patent that the court which rendered said judgment has no
jurisdiction (Co vs. CA, 196 SCRA 705). Examples: A petition for certiorari under Rule 65 is a
direct attack. It is filed primarily to have an order annulled. An action for annulment of a judgment
(1) The term final when used to describe a judgment may be used in two senses. In the first, it
refers to a judgment that disposes of a case in a manner that leaves nothing more to be done by
the court in respect thereto. In this sense, a final judgment is distinguished from an interlocutory
order which does not finally terminate or dispose of the case (Rudecon Management Corp. vs.
Singson, 4554 SCRA 612). Since the finality of a judgment has the effect of ending the litigation,
an aggrieved party may then appeal from the judgment. Under Sec. 1, Rule 41, an appeal may be
taken from a judgment or final order that completely disposes of the case. Under the same rule,
an appeal cannot be taken from an interlocutory order.
(2) In another sense, the word final may refer to a judgment that is no longer appealable and is
already capable of being executed because the period for appeal has elapsed without a party
having perfected an appeal or if there has been appeal, it has already been resolved by a highest
possible tribunal (PCGG vs. Sandiganbayan, 455 SCRA 526). In this sense, the judgment is
commonly referred to a s one that is final and executory.
(1) Execution is a matter of right upon the expiration of the period to appeal and no appeal was
perfected from a judgment or order that disposes of the action or proceeding (Sec. 1, Rule 39).
Once a judgment becomes final and executory, the prevailing party can have it executed as a
matter of right, and the issuance of a writ of execution becomes the ministerial duty of the court.
Once a decision becomes final and executory, it is the ministerial duty of the presiding judge to
issue a writ of execution except in certain cases, as when subsequent events would render
execution of judgment unjust (Mangahas vs. Paredes, GR 157866, Feb. 14, 2007) .
(2) The above principles have been consistently applied. Thus, in a subsequent ruling the Court
declared: Once a judgment becomes final, it is basic that the prevailing party is entitled as a
matter of right to a writ of execution the issuance of which is the trial courts ministerial duty,
compellable by mandamus (Greater Metropolitan Manila Solid Waste Management Committee
vs. Jancom Environmental Corp., GR 2163663, Jan. 30, 2006).
(3) Judgments and orders become final and executor by operation of law and not by judicial
declaration. The trial court need not even pronounce the finality of the order as the same
becomes final by operation of law. Its finality becomes a fact when the reglementary period for
appeal lapses, and no appeal is perfected within such period (Testate of Maria Manuel Vda. De
Biascan, 374 SCRA 621; Vlason Enterprises vs. CA, 310 SCRA 26).
(4) Execution is a matter or right after expiration of period to appeal and no appeal is perfected,
except in the following cases:
(a) Where judgment turns out to be incomplete or conditional;
(b) Judgment is novated by the parties;
(c) Equitable grounds (i.e., change in the situation of the partiessupervening fact doctrine)
(d) Execution is enjoined (i.e., petition for relief from judgment or annulment of judgment with
TRO or writ of preliminary injunction);
(e) Judgment has become dormant; or
(f) Execution is unjust or impossible.
(1) The concept of discretionary execution constitutes an exception to the general rule that a
judgment cannot be executed before the lapse of the period for appeal or during the pendency of
an appeal. Under Sec. 1, Rule 39, execution shall issue only as a matter of right upon a judgment
or final order that finally disposes of the action or proceeding upon the execution of the period to
appeal therefrom if no appeal has been duly perfected.
(2) A discretionary execution is called discretionary precisely because it is not a matter of right. The
execution of a judgment under this concept is addressed to the discretionary power of the court
(Bangkok Bank Public Company Ltd. vs. Lee, GR 159806, Jan. 29, 2006). Unlike judgments that
are final and executor, a judgment subject to discretionary execution cannot be insisted upon but
simply prayed and hoped for because a discretionary execution is not a matter of right.
(3) A discretionary execution like an execution pending appeal must be strictly construed because it
is an exception to the general rule. It is not meant to be availed of routinely because it applies
only in extraordinary circumstances. It should be interpreted only insofar as the language thereof
fairly warrants, and all doubts should be resolved in favor of the general rule (Planters Products,
Inc. vs. CA, GR 106052, Oct. 22, 1999). Where the execution is not in conformity with the rules,
the execution is null and void (Bangkok Bank vs. Lee, supra.).
(4) Requisites for discretionary execution:
(a) There must be a motion filed by the prevailing party with notice to the adverse party;
(b) There must be a hearing of the motion for discretionary execution;
(c) There must be good reasons to justify the discretionary execution; and
(d) The good reasons must be stated in a special order (Sec. 2, Rule 39).
(1) Judgments in actions for injunction, receivership, accounting and support, and such other
judgments as are now or may hereafter be declared to be immediately executory, shall be
enforceable after their rendition and shall not be stayed by an appeal taken therefrom, unless
otherwise ordered by the trial court. on appeal therefrom, the appellate court in its discretion may
make an order suspending, modifying, restoring or granting the injunction, receivership,
accounting, or award of support. The stay of execution shall be upon such terms as to bond or
otherwise as may be considered proper for the security or protection of the rights of the adverse
party.
(2) Judgments that may be altered or modified after becoming final and executory:
(a) Facts and circumstances transpire which render its execution impossible or unjust;
(b) Support;
(c) Interlocutory judgment.
(1) A final and executor judgment or order may be executed on motion within 5 years from the date of
its entry. After the lapse of such time, and before it is barred by the statute of limitations, a
judgment may be enforced by action. The revived judgment may also be enforced by motion
within 5 years from the date of its entry and thereafter by action before it is barred by the statute
of limitations.
(1) The writ of execution shall: (i) issue in the name of the Republic of the Philippines from the court
which granted the motion; (ii) state the name of the court, the case number and title, the
dispositive part of the subject judgment or order; and (iii) require the sheriff or other proper officer
to whom it is directed to enforce the writ according to its term, in the manner hereinafter provided:
(a) If the execution be against the property of the judgment obligor, to satisfy the judgment, with
interest, out of the real or personal property of such judgment obligor;
(1) In executing a judgment for money, the sheriff shall follow the following steps:
(a) Demand from the judgment obligor the immediate payment of the full amount stated in the
judgment including the lawful fees in cash, certified check payable to the judgment oblige or
any other form of payment acceptable to him (Sec. 9). In emphasizing this rule, the SC held
that in the execution of a money judgment, the sheriff is required to first make a demand on
the obligor for the immediate payment of the full amount stated in the writ of execution (Sibulo
vs. San Jose, 474 SCRA 464).
(b) If the judgment obligor cannot pay all or part of the obligation in cash, certified check or other
mode of payment, the officer shall levy upon the properties of the judgment obligor. The
judgment obligor shall have the option to choose which property or part thereof may be levied
upon. If the judgment obligor does not exercise the option, the officer shall first levy on the
personal properties, if any, and then on the real properties if the personal properties are
insufficient to answer for the personal judgment but the sheriff shall sell only so much of the
property that is sufficient to satisfy the judgment and lawful fees (Sec. 9[b]).
(1) If the judgment requires a person to perform a specific act, said act must be performed but if the
party fails to comply within the specified time, the court may direct the act to be done by someone
at the cost of the disobedient party and the act when so done shall have the effect as if done by
the party (Sec 10[a]). If the judgment directs a conveyance of real or personal property, and said
property is in the Philippines, the court in lieu of directing the conveyance thereof, may by an
order divest the title of any party and vest it in others, which shall have the force and effect of a
conveyance executed in due form of law (Sec. 10[a], Rule 39).
(1) When a judgment requires the performance of any act other than those mentioned in the two
preceding sections, a certified copy of the judgment shall be attached to the writ of execution and
shall be served by the officer upon the party against whom the same is rendered, or upon any
other person required thereby, or by law, to obey the same, and such party or person may be
punished for contempt if he disobeys such judgment.
(1) The levy on execution shall create a lien in favor of the judgment oblige over the right, title and
interest of the judgment obligor in such property at the time of the levy, subject to liens and
encumbrances then existing.
(1) There are certain properties exempt from execution enumerated under Sec. 13, Rule 39:
(a) The judgment obligors family home as provided by law, or the homestead in which he
resides, and the land necessarily used in connection therewith;
(b) Ordinary tools and implements personally used by him in his trade, employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or other beasts of burden, such as the
judgment obligor may select necessarily used by him in his ordinary occupation;
(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;
(e) Household furniture and utensils necessary for housekeeping, and used for that purpose by
the judgment obligor and his family, such as the judgment obligor may select, of a value not
exceeding 100,000 pesos.
(f) Provisions for individual or family use sufficient for four months;
(g) The professional libraries and equipment of judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding
300,000 pesos;
(h) One fishing boat and accessories not exceeding the total value of 100,000 pesos owned by a
fisherman and by the lawful use of which he earns his livelihood;
(i) So much of the salaries, wages, or earnings of the judgment obligor for his personal services
with 4 months preceding the levy as are necessary for the support of his family;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life
insurance;
(l) The right to receive legal support, or money or property obtained as such support, or any
pension or gratuity from the government; and
(m) Properties specially exempted by law (Sec. 13, Rule 39).
(2) If the property mentioned in Sec. 13 is the subject of execution because of a judgment for the
recovery of the price or upon judgment of foreclosure of a mortgage upon the property, the
property is not exempt from execution.
(1) If the property levied on is claimed by any person other than the judgment obligor or his agent,
and such person makes an affidavit of his title thereto or right to the possession thereof, stating
the grounds of such right or title, and serves the same upon the officer making the levy and a
copy thereof upon the judgment obligee, the officer shall not be bound to keep the property,
unless such judgment obligee, on demand of the officer, files a bond approved by the court to
indemnify the third-party claimant in a sum not less than the value of the property levied on. In
case of disagreement as to such value, the same shall be determined by the court issuing the writ
of execution. No claim for damages for the taking or keeping of the property may be enforced
against the bond unless the action therefor is filed within one hundred twenty (120) days from the
date of the filing of the bond.
The officer shall not be liable for damages for the taking or keeping of the property, to any third-
party claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any
third person from vindicating his claim to the property in a separate action, or prevent the
judgment obligee from claiming damages in the same or a separate action against a third-party
claimant who filed a frivolous or plainly spurious claim.
When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be required, and in case the sheriff or levying
officer is sued for damages as a result of the levy, he shall be represented by the Solicitor
General and if held liable therefor, the actual damages adjudged by the court shall be paid by the
National Treasurer out of such funds as may be appropriated for the purpose.
(2) Requisites for a claim by a third person:
(a) The property is levied;
(b) The claimant is a person other than the judgment obligor or his agent;
(1) Certain remedies available to a third person not party to the action but whose property is the
subject of execution:
(a) Terceria - By making an affidavit of his title thereto or his right to possession thereof, stating
the grounds of such right or title. The affidavit must be served upon the sheriff and 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 attachment except if the attaching party files a bond
approved by the court. the sheriff shall not be liable for damages for the taking or keeping of
the property, if such bond shall be filed.
(b) Exclusion or release of property Upon application of the third person through a motion to set
aside the levy on attachment, the court shall order a summary hearing for the purpose of
determining whether the sheriff has acted rightly or wrongly in the performance of his duties in
the execution of the writ of attachment. The court may order the sheriff to release the property
from the erroneous levy and to return the same to the third person. In resolving the
application, the court cannot pass upon the question of title to the property with any character
of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or
not (Ching vs. CA, 423 SCRA 356).
(c) Intervention This is possible because no judgment has yet been rendered and under the
rules, a motion for intervention may be filed any time before the rendition of the judgment by
the trial court (Sec. 2, Rule 19).
(d) Accion Reinvindicatoria - The third party claimant is not precluded by Sec. 14, Rule 57 from
vindicating his claim to the property in the same or in a separate action. He may file a
separate action to nullify the levy with damages resulting from the unlawful levy and seizure.
This action may be a totally distinct action from the former case.
Rules on Redemption
(1) Real property sold, or any part thereof sold separately, may be redeemed by the following
persons:
(a) Judgment obligor, or his successor in interest in the whole or any part of the property;
(b) Redemptioner a creditor having a lien by virtue of an attachment, judgment or mortgage on
the property sold, or on some part thereof, subsequent to the lien under which the property
was sold.
A mortgagee can be a redemptioner even if his mortgage has not yet matured, but his mortgage
contract must have been executed after the entry of judgment. Generally in judicial foreclosure
sale, there is no right of redemption, but only equity of redemption. In sale of estate property to
pay off debts of the estate, there is no redemption at all. Only in extrajudicial foreclosure sale and
sale on execution is there the right of redemption.
(2) The judgment obligor, or redemptioner, may redeem the property from the purchaser at any time
within 1 year from the date of the registration of the certificate of sale by paying the purchaser (a)
the amount of his purchase; (b) amount of any assessments or taxes which the purchaser may
have paid after purchase; (c) if the purchaser be also a creditor having a prior lien to that of the
redemptioner, other than the judgment under which such purchase was made, the amount of
such other lien; and (d) with 1 percent per month interest up to the time of redemption.
(3) Property redeemed may again be redeemed within 60 days after the last redemption by a
redemptioner, upon payment of: (a) the sum paid on the last redemption, with additional 2
percent; (b) the amount of any assessments or taxes which the last redemptioner may have paid
thereon after redemption by him, with interest; (c) the amount of any liens held by said last
redemptioner prior to his own, with interest.
(4) The property may be again, and as often as a redemptioner is so disposed, similarly redeemed
from any previous redemptioner within 60 days after the last redemption. Written notice of any
(1) When the return of a writ of execution issued against property of a judgment obligor, or any one of
several obligors in the same judgment, shows that the judgment remains unsatisfied, in whole or
in part, the judgment obligee, at any time after such return is made, shall be entitled to an order
from the court which rendered the said judgment, requiring such judgment obligor to appear and
be examined concerning his property and income before such court or before a commissioner
(1) When the return of a writ of execution against the property of a judgment obligor shows that the
judgment remains unsatisfied, in whole or in part, and upon proof to the satisfaction of the court
which issued the writ, that person, corporation, or other juridical entity has property of such
judgment obligor or is indebted to him, the court may, by an order, require such person,
corporation, or other juridical entity, or any officer or member thereof, to appear before the court
or a commissioner appointed by it, at a time and place within the province or city where such
debtor resides or is found, and be examined concerning the same. The service of the order shall
bind all credits due the judgment obligor and all money and property of the judgment obligor in the
possession or in control of such person, corporation, or juridical entity from the time of service;
and the court may also require notice of such proceedings to be given to any party to the action in
such manner as it may deem proper.
(1) In case of a judgment or final order against a specific thing, or in respect to the probate of a will,
or the administration of the estate of a deceased person, or in respect to the personal, political, or
legal condition or status of a particular person or his relationship to another, the judgment or final
order is conclusive upon the title to the thing, the will or administration, or the condition, status or
relationship of the person; however, the probate of a will or granting of letters of administration
shall only be prima facie evidence of the truth of the testator or intestate;
(2) In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to
any other matter that could have been raised in relation thereto, conclusive between the parties
and their successors in interest by title subsequent to the commencement of the action or special
proceeding, litigating for the same thing and under the same title and in the same capacity; and
(3) In any other litigation between the same parties or their successors in interest, that only is
deemed to have been adjudged in a former judgment or final order which appears upon its face to
have been so adjudged, or which was actually and necessarily included therein or necessary
thereto.
(1) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive
upon the title to the thing; and
(2) In case of a judgment or final order against a person, the judgment or final order is presumptive
evidence of a right as between the parties and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or clear mistake of law or fact.
(3) A foreign judgment on the mere strength of its promulgation is not yet conclusive, as it can be
annulled on the grounds of want of jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact. It is likewise recognized in Philippine jurisprudence and international
law that a foreign judgment may be barred from recognition if it runs counter to public policy
(Republic vs. Gingoyon, GR 166429, June 27, 2006).
(1) Provisional remedies are temporary, auxiliary, and ancillary remedies available to a litigant for the
protection and preservation of his rights while the main action is pending. They are writs and
processes which are not main actions and they presuppose the existence of a principal action.
(2) Provisional remedies are resorted to by litigants for any of the following reasons:
(a) To preserve or protect their rights or interests while the main action is pending;
(b) To secure the judgment;
(c) To preserve the status quo; or
(d) To preserve the subject matter of the action.
(3) Provisional remedies specified under the rules are:
(a) Preliminary attachment (Rule 57);
(b) Preliminary injunction (Rule 58);
(c) Receivership (Rule 59);
(d) Replevin (Rule 60); and
(e) Support pendent lite (Rule 61).
(1) The courts which grants or issues a provisional remedy is the court which has jurisdiction over the
main action. Even an inferior court may grant a provisional remedy in an action pending with it
and within its jurisdiction.
(1) Preliminary attachment is a provisional remedy issued upon order of the court where an action is
pending to be levied upon the property of the defendant so the property may be held by the sheriff
as security for the satisfaction of whatever judgment may be rendered in the case (Davao Light
and Power, Inc. vs. CA, 204 SCRA 343).
(2) When availed of and is granted in an action purely in personam, it converts the action to one that
is quasi in rem. In an action in rem or quasi in rem, jurisdiction over the res is sufficient.
Jurisdiction over the person of the defendant is not required (Villareal vs. CA, 295 SCRA 511).
(3) Preliminary attachment is designed to:
(a) Seize the property of the debtor before final judgment and put the same in custodial egis even
while the action is pending for the satisfaction of a later judgment (Insular Bank of Asia and
America vs. CA, 190 SCRA 629);
(b) To enable the court to acquire jurisdiction over the res or the property subject of the action in
cases where service in person or any other service to acquire jurisdiction over the defendant
cannot be affected.
(4) Preliminary attachment has three types:
(a) Preliminary attachment one issued at the commencement of the action or at any time before
entry of judgment as security for the satisfaction of any judgment that may be recovered. Here
the court takes custody of the property of the party against whom attachment is directed.
(b) Garnishment plaintiff seeks to subject either the property of defendant in the hands of a third
person (garnishee) to his claim or the money which said third person owes the defendant.
Garnishment does not involve actual seizure of property which remains in the hands of the
garnishee. It simply impounds the property in the garnishees possession and maintains the
status quo until the main action is finally decided. Garnishment proceedings are usually
directed against personal property, tangible or intangible and whether capable of manual
delivery or not.
(c) Levy on execution writ issued by the court after judgment by which the property of the
judgment obligor is taken into custody of the court before the sale of the property on
execution for the satisfaction of a final judgment. It is the preliminary step to the sale on
execution of the property of the judgment debtor.
(1) At the commencement of the action or at any time before entry of judgment, a plaintiff or any
proper party may have the property of the adverse party attached as security for the satisfaction
of any judgment that may be recovered in the following cases:
(a) In an action for the recovery of a specified amount of money or damages, other than moral
and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-
delict against a party who is about to depart from the Philippines with intent to defraud his
creditors;
(b) In an action for money or property embezzled or fraudulently misapplied or converted to his
own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent
or clerk, in the course of his employment as such, or by any other person in a fiduciary
capacity, or for a willful violation of duty;
(c) In an action to recover the possession of property unjustly or fraudulently taken, detained or
converted, when the property, or any party thereof, has been concealed, removed, or
disposed of to prevent its being found or taken by the applicant or an authorized person;
(d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring
the obligation upon which the action the action is brought, or in the performance thereof;
(e) In an action against a party who has removed or disposed of his property, or is about to do so,
with intent to defraud his creditors; or
(f) In an action against a party who does not reside and is not found in the Philippines, or on
whom summons may be served by publication (Sec. 1).
Requisites
(1) An order of attachment may be issued either ex parte or upon motion with notice and hearing by
the court in which the action is pending, or by the CA or the SC, and must require the sheriff of the
court to attach so much of the property in the Philippines of the party against whom it is issued,
not exempt from execution, as may be sufficient to satisfy the applicants demand, unless such
party makes deposit or gives a bond in an amount equal to that fixed in the order, which may be
the amount sufficient to satisfy the applicants demand or the value of the property to be attached
as stated by the applicant, exclusive of costs. Several writs may be issued at the same time to the
sheriffs of the courts of different judicial regions (Sec. 2).
(2) An order of attachment shall be granted only when it appears by the affidavit of the applicant, or of
some other person who personally knows the facts, that a sufficient cause of action exists, that
the case is one of those mentioned in Section1, that there is no other sufficient security for the
claim sought to be enforced by the action, and that the amount due to the applicant, or the value
of the property the possession of which he is entitled to recover, is as much as the sum for which
the order is granted above all legal counterclaims. The affidavit, and the bond must be filed with
the court before the order issues (Sec. 3).
(1) No levy on attachment pursuant to the writ of preliminary attachment shall be enforced unless it is
preceded, or contemporaneously accompanied, by the service of summons, together with a copy
of the complaint, the application for attachment, the applicants affidavit and bond, and the order
and writ of attachment, on the defendant within the Philippines.
(2) The requirement of prior or contemporaneous service of summons shall not apply in the following
instances:
(a) Where the summons could not be served personally or by substituted service despite diligent
efforts;
(b) The defendant is a resident of the Philippines who is temporarily out of the country;
(c) The defendant is a non-resident; or
(d) The action is one in rem or quasi in rem (Sec. 5).
Manner of attaching real and personal property; when property attached is claimed by third person
Sec. 7. Attachment of real and personal property; recording thereof. - Real and personal property
shall be attached by the sheriff executing the writ in the following manner:
(a) Real property, or growing crops thereon, or any interest therein, standing upon the record of
the registry of deeds of the province in the name of the party against whom attachment is issued,
or not appearing at all upon such records, or belonging to the party against whom attachment is
issued and held by any other person, or standing on the records of the registry of deeds in the
name of any other person, by filing with the registry of deeds a copy of the order, together with a
description of the property attached, and a notice that it is attached, or that such real property and
any interest therein held by or standing in the name of such other person are attached, and by
leaving a copy of such order, description, and notice with the occupant of the property, if any, or
with such other person or his agent if found within the province. Where the property has been
brought under the operation of either the Land Registration Act or the Property Registration
Decree, the notice shall contain a reference to the number of the certificate of title, the volume
and page in the registration book where the certificate is registered, and the registered owner or
owners thereof.
The registrar of deeds must index attachments filed under this section in the names of the
applicant, the adverse party, or the person by whom the property is held or in whose name it
stands in the records. If the attachment is not claimed on the entire area of the land covered by
the certificate of title, a description sufficiently accurate for the identification of the land or interest
to be affected shall be included in the registration of such attachment;
(b) Personal property capable of manual delivery, by taking and safely keeping it in his custody,
after issuing the corresponding receipt therefor;
(c) Stocks or shares, or an interest in stocks or shares, of any corporation or company, by leaving
with the president or managing agent thereof, a copy of the writ, and a notice stating that the
stock or interest of the party against whom the attachment is issued is attached in pursuance of
such writ;
(d) Debts and credits, including bank deposits, financial interest, royalties, commissions and other
personal property not capable of manual delivery, by leaving with the person owing such debts, or
having in his possession or under his control, such credits or other personal property, or with his
agent, a copy of the writ, and notice that the debts owing by him to the party against whom
attachment is issued, and the credits and other personal property in his possession, or under his
control, belonging to said party, are attached in pursuance of such writ;
(e) The interest of the party against whom attachment is issued in property belonging to the estate
of the decedent, whether as heir, legatee, or devisee, by serving the executor or administrator or
other personal representative of the decedent with a copy of the writ and notice that said interest
is attached. A copy of said writ of attachment and of said notice shall also be filed in the office of
the clerk of the court in which said estate is being settled and served upon the heir, legatee or
devisee concerned.
(10)Certain remedies available to a third person not party to the action but whose property is the
subject of execution:
(e) Terceria - by making an affidavit of his title thereto or his right to possession thereof, stating
the grounds of such right or title. The affidavit must be served upon the sheriff and the
attaching party (Sec. 14). Upon service of the affidavit upon him, the sheriff shall not be
bound to keep the property under attachment except if the attaching party files a bond
approved by the court. the sheriff shall not be liable for damages for the taking or keeping of
the property, if such bond shall be filed.
(f) Exclusion or release of property Upon application of the third person through a motion to set
aside the levy on attachment, the court shall order a summary hearing for the purpose of
determining whether the sheriff has acted rightly or wrongly in the performance of his duties in
the execution of the writ of attachment. The court may order the sheriff to release the property
from the erroneous levy and to return the same to the third person. In resolving the
application, the court cannot pass upon the question of title to the property with any character
of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or
not (Ching vs. CA, 423 SCRA 356).
(g) Intervention this is possible because no judgment has yet been rendered and under the
rules, a motion for intervention may be filed any time before the rendition of the judgment by
the trial court (Sec. 2, Rule 19).
(h) Accion Reinvindicatoria - The third party claimant is not precluded by Sec. 14, Rule 57 from
vindicating his claim to the property in the same or in a separate action. He may file a
separate action to nullify the levy with damages resulting from the unlawful levy and seizure.
This action may be a totally distinct action from the former case.
(1) If the attachment has already been enforced, the party whose property has been attached may file
a motion to discharge the attachment. This motion shall be with notice and hearing. After due
notice and hearing, the court shall discharge the attachment if the movants makes a cash deposit
or files a counter-bond executed to the attaching party with the clerk of court where the
application is made in an amount equal to that fixed by the court in the order of attachment,
exclusive of costs. Counter-bonds are replacements of the property formerly attached, and just as
the latter, may be levied upon after final judgment. Note that the mere posting of counterbond
does not automatically discharge the writ of attachment. It is only after the hearing and after the
judge has ordered the discharge of attachment that the same is properly discharged (Sec. 12).
(2) Attachment may likewise be discharged without the need for filing of a counter-bond. This is
possible when the party whose property has been attached files a motion to set aside or
discharge the attachment and during the hearing of the motion, he proves that:
(a) The attachment was improperly or irregularly issued or enforced; or
(b) The bond of the attaching creditor is insufficient; or
(c) The attachment is excessive and must be discharged as to the excess (Sec. 13); or
(d) The property is exempt from execution, and as such is also exempt from preliminary
attachment (Sec. 2).
(3) Grounds for discharge of an attachment
(a) Counterbond posted
(b) improperly issued
(c) irregularly issued or enforced
(d) insufficient applicants bond
Improperly (e.g. writ of attachment was not based on the grounds in Sec. 1)
Irregularly (e.g. writ of attachment was executed without previous or contemporaneous service
of summons
(1) If judgment be recovered by the attaching party and execution issue thereon, the sheriff may
cause the judgment to be satisfied out of the property attached, if it be sufficient for that purpose
in the following manner:
(a) By paying to the judgment obligee the proceeds of all sales of perishable or other property
sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the
judgment;
(b) If any balance remains due, by selling so much of the property, real or personal, as may be
necessary to satisfy the balance, if enough for that purpose remain in the sheriff's hands, or in
those of the clerk of the court;
(c) By collecting from all persons having in their possession credits belonging to the judgment
obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the
amounts of such credits and debts as determined by the court in the action, and stated in the
judgment, and paying the proceeds of such collection over to the judgment obligee (Sec. 15).
(2) Order of satisfaction of judgment of attached property
(1) Perishable or other property sold in pursuance of the order of the court;
(2) Property, real or personal, as may be necessary to satisfy the balance;
(3) collecting from debtors of the judgment obligor;
(4) ordinary execution.
(1) A preliminary injunction is an order granted at any stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court, agency or a person to refrain from a particular
act or acts. It may also require the performance of a particular act or acts, in which case it shall be
known as a preliminary mandatory injunction (Sec. 1).
(2) As a provisional remedy, preliminary injunction aims to preserve the status quo or to prevent
future wrongs in order to preserve and protect certain interests or rights during the pendency of
the action (Cortez-Estrada vs. Heirs of Domingo, 451 SCRA 275 [2005]). The status quo is the
last, actual, peaceable and uncontested situation which precedes a controversy. The injunction
should not establish a new relation between the parties, but merely should maintain or re-
establish the pre-existing relationship between them.
(3) A writ of preliminary injunction remains until it is dissolved; a temporary restraining order (TRO)
has a lifetime only of 20 days (RTC and MTC) or 60 days (Court of Appeals). A TRO issued by the
Supreme Court shall be effective until further orders. A TRO is issued to preserve the status quo
until the hearing of the application for preliminary injunction. The judge may issue a TRO with a
limited life of 20 days from date of issue. If before the expiration of the 20 day period, the
application for preliminary injunction is denied, the TRO would be deemed automatically vacated.
If no action is taken by the judge within the 20 day period, the TRO would automatically expire on
th
the 20 day by the sheer force of law, no judicial declaration to that effect being necessary
(Bacolod City Water District vs. Labayen, 446 SCRA 110).
(4) 1998 Bar: A TRO is an order to maintain the status quo between and among the parties until the
determination of the prayer for a writ of preliminary injunction. A writ of preliminary injunction
cannot be granted without notice and hearing. A TRO may be granted ex parte if it shall appear
from facts shown by affidavits or by the verified application that great or irreparable injury would
result to the applicant before the matter can be heard on notice, the court in which the application
for preliminary injunction was made my issue a TRO ex parte for a period not exceeding 20 days
from service to the party sought to be enjoined.
Kinds of Injunction
(1) Prohibitory its purpose is to prevent a person from the performance of a particular act which has
not yet been performed. Here, the status quo is preserved or restored and this refers to the last
peaceable, uncontested status prior to the controversy.
(a) Preliminary secured before the finality of judgment.
(a) Final issued as a judgment, making the injunction permanent. It perpetually restrains a
person from the continuance or commission of an act and confirms the previous preliminary
injunction. It is one included in the judgment as the relief or part of the relief granted as a
result of the action, hence, granted only after trial (Sec. 10), and no bond is required.
(2) Mandatory its purpose is to require a person to perform a particular positive act which has
already been performed and has violated the rights of another.
(a) Preliminary
(b) Final
(2a) Requisites for the issuance of mandatory preliminary injunction
(a) The invasion of the right is material and substantial;
(b) The right of a complainant is clear and unmistakable;
(c) There is an urgent and permanent necessity for the writ to prevent serious damage (Rivera
vs. Florendo, 144 SCRA 643).
(1) The complaint in the action is verified, and shows facts entitling the plaintiff to the relief
demanded; and
(2) The plaintiff files a bond which the court may fix, conditioned for the payment of damages to the
party enjoined, if the court finds that the plaintiff is not entitled thereto (Sec. 4).
(1) The applicant is entitled to the relief demanded, and the whole or part of such relief consists in
restraining the commission or continuance of the act or acts complained of, or in requiring the
performance of an act or acts either for a limited period or perpetually; or
(2) The commission, continuance or non-performance of the act or acts complained of during the
litigation would probably work injustice to the applicant; or
(3) A party, court, agency or a person is doing, threatening or is attempting to do, or is procuring or
suffering to be done, some act or acts probably in violation of the rights of the applicant respecting
the subject of the action or proceeding, and tending to render the judgment ineffectual (Sec. 3).
Grounds for objection to, or for the dissolution of injunction or restraining order
(1) The application for injunction or restraining order may be denied, upon a showing of its
insufficiency. The injunction or restraining order may also be denied, or, if granted, may be
dissolved, on other grounds upon affidavit of the party or person enjoined, which may be opposed
by the applicant also by affidavits. It may further be denied, or, if granted, may be dissolved, if it
appears after hearing that although the applicant is entitled to the injunction or restraining order,
the issuance or continuance thereof, as the case may be, would cause irreparable damage to the
party or person enjoined while the applicant can be fully compensated for such damages as he
may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay
all damages which the applicant may suffer by the denial or the dissolution of the injunction or
restraining order. If it appears that the extent of the preliminary injunction or restraining order
granted is too great, it may be modified (Sec. 6).
(3) (2) Grounds for objection to, or for motion of dissolution of, injunction or restraining order
(a) Upon showing of insufficiency of the application;
(b) Other grounds upon affidavit of the party or person enjoined;
(c) Appears after hearing that irreparable damage to the party or person enjoined will be caused
while the applicant can be fully compensated for such damages as he may suffer, and the
party enjoined files a counterbond;
(d) Insufficiency of the bond;
(e) Insufficiency of the surety or sureties.
Duration of TRO
In relation to RA 8975, Ban on issuance of TRO or Writ of Injunction in cases involving government
infrastructure projects
(1) Under PD 1818 and RA 8735, injunction is not available to stop infrastructure projects of the
government including arrastre and stevedoring operations (Malayan Integrated Industries vs. CA,
GR 101469, Sept. 4, 1992; PPA vs. vs. Pier 8 Arrastre and Stev edoring Services, 475 SCRA
426).
(1) It is not available where the summons could not be served personally or by substituted service
despite diligent efforts or where the adverse party is a resident of the Philippines temporarily
absent therefrom or is a non-resident thereof (Sec. 4).
Stages of Injunction
(1) Receivership is a provisional remedy wherein the court appoints a representative to preserve,
administer, dispose of and prevent the loss or dissipation of the real or personal property during
the pendency of an action.
(2) It may be the principal action itself or a mere provisional remedy; it can be availed of even after
the judgment has become final and executory as it may be applied for to aid execution or carry
judgment into effect.
(1) The party applying for the appointment of a receiver has an interest in the property or fund which
is the subject of the action or proceeding, and that such property or fund is in danger of being lost,
or materially injured unless a receiver be appointed to administer and preserve it;
(2) In an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of
being wasted or dissipated or materially injured, and that its value is probably insufficient to
discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage;
(3) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it
according to the judgment, or to aid execution when the execution has been returned unsatisfied
or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise
to carry the judgment into effect;
(4) Whenever in other cases it appears that the appointment of a receiver is the most convenient and
feasible means of preserving, administering, or disposing of the property in litigation (Sec. 1).
Requisites
(1) Before issuing the order appointing a receiver the court shall require the applicant to file a bond
executed to the party against whom the application is presented, in an amount to be fixed by the
court, to the effect that the applicant will pay such party all damages he may sustain by reason of
the appointment of such receiver in case the applicant shall have procured such appointment
without sufficient cause; and the court may, in its discretion, at any time after the appointment,
require an additional bond as further security for such damages (Sec. 2).
(1) To bring and defend, in such capacity, actions in his own name
(2) To take and keep possession of the property in controversy
(3) To receive rents
(4) To collect debts due to himself as receiver or to the fund, property, estate, person, or corporation
of which he is the receiver
(1) Applicants Bond (for appointment of receiver) To pay the damages the adverse party may
sustain by reason of appointment of receiver; and
(2) Receivers Bond (of the appointed receiver, aside from oath) To answer for receivers faithful
discharge of his duties (Sec. 2).
Termination of receivership
(1) Whenever the court, motu proprio or on motion of either party, shall determine that the necessity
for a receiver no longer exists, it shall, after due notice to all interested parties and hearing, settle
the accounts of the receiver, direct the delivery of the funds and other property in his possession
to the person adjudged to be entitled to receive them, and order the discharge of the receiver from
further duty as such. The court shall allow the receiver such reasonable compensation as the
circumstances of the case warrant, to be taxed as costs against the defeated party, or
apportioned, as justice requires (Sec. 8).
(2) Receivership shall also be terminated when (a) its continuance is not justified by the facts and
circumstances of the case (Samson vs. Araneta, 64 Phil. 549); or (b) then court is convinced that
the powers are abused (Duque vs. CFI, Manila, 13 SCRA 420).
(1) Replevin is a proceeding by which the owner or one who has a general or special property in the
thing taken or detained seeks to recover possession in specie, the recovery of damages being
only incidental (Am. Jur. 6).
(2) Replevin may be a main action or a provisional remedy. As a principal action its ultimate goal is to
recover personal property capable of manual delivery wrongfully detained by a person. Used in
this sense, it is a suit in itself.
(3) It is a provisional remedy in the nature of possessory action and the applicant who seeks
immediate possession of the property involved need not be the holder of the legal title thereto. It
is sufficient that he is entitled to possession thereof (Yang vs. Valdez, 177 SCRA 141).
(1) The provisional remedy of replevin can only be applied for before answer. A party praying for the
recovery of possession of personal property may, at the commencement of the action or at any
time before answer, apply for an order for the delivery of such property to him (Sec. 1).
Requisites
(1) A party praying for the provisional remedy must file an application for a writ of replevin. His
application must be filed at the commencement of the action or at any time before the defendant
answers, and must contain an affidavit particularly describing the property to which he entitled of
possession.
(2) The affidavit must state that the property is wrongfully detained by the adverse party, alleging
therein the cause of the detention. It must also state that the property has not been destrained or
Sheriffs duty in the implementation of the writ; when property is claimed by third party
(1) Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together
with a copy of the application, affidavit and bond, and must forthwith take the property, if it be in
the possession of the adverse party, or his agent, and retain it in his custody. If the property or
any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and
if it be not delivered, he must cause the building or enclosure to be broken open and take the
property into his possession. After the sheriff has taken possession of the property as herein
provided, he must keep it in a secure place and shall be responsible for its delivery to the party
entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same
(Sec. 4).
(2) If within five (5) days after the taking of the property by the sheriff, the adverse party does not
object to the sufficiency of the bond, or of the surety or sureties thereon; or if the adverse party so
objects and the court affirms its approval of the applicant's bond or approves a new bond, of if the
adverse party requires the return of the property but his bond is objected to and found insufficient
and he does not forthwith file an approved bond, the property shall be delivered to the applicant. If
for any reason the property is not delivered to the applicant, the sheriff must return it to the
adverse party (Sec. 6).
rd
(3) A 3 party claimant may vindicate his claim to the property, and the applicant may claim damages
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against such 3 party, in the same or separate action. A claim on the indemnity bond should be
filed within 120 days from posting of such bond.
(4) If the property taken is claimed by any person other than the party against whom the writ of
replevin had been issued or his agent, and such person makes an affidavit of his title thereto, or
right to the possession thereof, stating the grounds therefor, and serves such affidavit upon the
sheriff while the latter has possession of the property and a copy thereof upon the applicant, the
sheriff shall not be bound to keep the property under replevin or deliver it to the applicant unless
the applicant or his agent, on demand of said sheriff, shall file a bond approved by the court to
indemnify the third-party claimant in the sum not less than the value of the property under replevin
as provided in section 2 hereof. In case of disagreement as to such value, the court shall
determine the same. No claim for damages for taking or keeping of the property may be enforced
against the bond unless the action therefor is filed within one hundred twenty (120) days from the
date of the filing of the bond.
The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such
third-party claimant if such bond shall be filed. Nothing herein contained shall prevent such
claimant or any third person from vindicating his claim to the property, or prevent the applicant
(1) Special civil actions are basically ordinary civil proceedings; what makes them special are the
distinct peculiarities inherent in their very nature not found in ordinary civil actions. In De Fiesta
vs. Llorente, 25 Phil. 544, the Supreme Court observed that partition of real estate , quo warranto,
certiorari, prohibition and mandamus, eminent domain (expropriation) and foreclosure of
mortgage are actions in themselves, but possessing special matters that required special
procedures. For this reason, these proceedings are classified as special civil actions.
(2) Sec. 1, Rule 62 provides that rules provided for ordinary civil actions are applicable in special civil
proceedings, which are not inconsistent with or may serve to supplement the provisions of the
rules relating to such special civil actions.
(1) Although both types of actions are governed by the rules for ordinary civil actions, there are
certain rules that are applicable only to specific special civil actions (Sec. 3[a], Rule 1). The fact
that an action is subject to special rules other than those applicable to ordinary civil actions is
what makes a civil action special.
(2) An ordinary civil action must be based on a cause of action (Sec. 1, Rule 2). This means that the
defendant must have performed an act or omitted to do an act in violation of the rights of another
(Sec. 2, Rule 2). These definitions do not fit the requirements of a cause of action in certain
special civil actions. The cause of action as defined and required of an ordinary civil action finds
no application to the special civil action of declaratory declaratory relief. In finds no application
also in a complaint for interpleader. In this action, the plaintiff may file a complaint even if he has
sustained no actual transgression of his rights. In fact, he actually has no interest in the subject
matter of the action. This is not so in an ordinary civil action.
(3) Ordinary civil actions may be filed initially in either the MTC of the RTC depending upon the
jurisdictional amount or the nature of the action involved. On the other hand, there are special civil
actions which can only be filed in an MTC like the actions for forcible entry and unlawful detainer.
There are also special civil actions which cannot be commenced in the MTC, foremost of which
are the petitions for certiorari, prohibition, and mandamus.
(4) The venue in ordinary civil actions is determined by either the residence of the parties where the
action is personal or by the location of the property where the action is real. This dichotomy does
not always apply to a special civil action. For instance, the venue in a petition for quo warranto iw
where the Supreme Court or the Court of Appeals sits if the petition is commenced in any of these
courts and without taking into consideration where the parties reside. It is only when the petition is
lodged with the RTC that the residence is considered in venue analysis. While in ordinary civil
actions the residences of both the plaintiff and the defendant are factored in the determination, a
petition for quo warranto failed in the RTC merely looks into the residence of the respondent, not
that of the petitioner. But if it is the Solicitor General who commences the action, another special
rule is followed because the petition may only be commenced in the RTC in Manila, in the Court
of Appeals or in the Supreme Court.
(5) While ordinary civil actions when filed are denominated as complaints, some special civil actions
are not denominated as such but petitions.
(a) Special civil actions initiated by filing of a Petition:
1. Declaratory relief other than similar remedies;
2. Review of adjudication of the COMELEC and COA;
3. Certiorari, prohibition and mandamus;
4. Quo warranto; and
5. Contempt
(b) Special civil actions initiated by filing of a Complaint:
(1) The subject matter of a petition for declaratory relief raises issues which are not capable of
pecuniary estimation and must be filed with the Regional Trial Court (Sec. 19[1], BP 129; Sec.
1, Rule 63). It would be error to file the petition with the Supreme Court which has no original
jurisdiction to entertain a petition for declaratory relief (Untied Residents of Dominican Hill vs.
Commission on the Settlement of Land Problems, 353 SCRA 782; Ortega vs. Quezon City
Government, 469 SCRA 388).
(1) Interpleader is a person who has property in his possession or an obligation to render, wholly or
partially without claiming any right therein, or an interest in which in whole or in part is not
disputed by the claimants, comes to court and asks that the persons who consider themselves
entitled to demand compliance with the obligation be required to litigate among themselves in
order to determine finally who is entitled to the same.
(2) Interpleader is a special civil action filed by a person against whom two conflicting claims are
made upon the same subject matter and over which he claims no interest, to compel the
claimants to interplead and to litigate their conflicting claims among themselves (Sec. 1).
(1) There must be two or more claimants with adverse or conflicting interests to a property in the
custody or possession of the plaintiff;
(2) The plaintiff in an action for interpleader has no claim upon the subject matter of the adverse
claims or if he has an interest at all, such interest is not disputed by the claimants;
(3) The subject matter of the adverse claims must be one and the same; and
(4) The parties impleaded must make effective claims.
When to file
(1) Whenever conflicting claims upon the same subject matter are or may be made against a person
who claims no interest whatever in the subject matter, or an interest which in whole or in part is
not disputed by the claimants, he may bring an action against the conflicting claimants to compel
them to interplead and litigate their several claims among themselves (Sec. 1).
(1) An action for declaratory relief is brought to secure an authoritative statement of the rights and
obligations of the parties under a contract or a statute for their guidance in the enforcement or
compliance with the same (Meralco vs. Philippine Consumers Foundation, 374 SCRA 262). Thus,
the purpose is to seek for a judicial interpretation of an instrument or for a judicial declaration of a
persons rights under a statute and not to ask for affirmative reliefs like injunction, damages or any
other relief beyond the purpose of the petition as declared under the Rules.
(2) The subject matter in a petition for declaratory relief is any of the following:
(a) Deed;
(b) Will;
(c) Contract or other written instrument;
(d) Statute;
(1) Any person interested under a deed, will, contract or other written instrument or whose rights are
affected by a statute, executive order or regulation, ordinance or other governmental regulation
may before breach or violation thereof, bring an action in the RTC to determine any question of
construction or validity arising and for a declaration of his rights or duties, thereunder (Sec. 1).
(2) Those who may sue under the contract should be those with interest under the contract like the
parties, the assignees and the heirs as required by substantive law (Art. 1311, Civil Code).
(3) If it be a statute, executive order, regulation or ordinance, the petitioner is one whose rights are
affected by the same (Sec. 1, Rule 63). The other parties are all persons who have or claim any
interest which would be affected by the declaration. The rights of person not made parties to the
action do not stand to be prejudiced by the declaration (Sec. 2).
(1) The subject matter must be a deed, will, contract or other written instrument, statute, executive
order or regulation or ordinance;
(2) The terms of said document or the validity thereof are doubtful and require judicial construction;
(3) There must have been no breach of said document;
(4) There must be actual justiciable controversy or the ripening seeds of one( there is threatened
litigation the immediate future); there must be allegation of any threatened, imminent and
inevitable violation of petitioners right sought to be prevented by the declaratory relief sought;
(5) The controversy is between persons whose interests are adverse;
(6) The issue must be ripe for judicial determination e.g. administrative remedies already exhausted;
(7) The party seeking the relief has legal interest in the controversy; and
(8) Adequate relief is not available thru other means.
(9) Stated otherwise, the requisites are:
(a) There must be a justiciable controversy;
(b) The controversy must be between persons whose interests are adverse;
(c) The party seeking the relief must have legal interest in the controversy; and
(d) The issue is ripe for judicial determination (Republic vs. Orbecido III, 472 SCRA 114).
(4) (1) Grounds for the court to refuse to exercise declaratory relief;
(a) A decision would not terminate the uncertainty or controversy which gave rise to the action; or
(b) The declaration or construction is not necessary and proper under the circumstances as when
the instrument or the statute has already been breached (Sec. 5).
(4) In declaratory relief, the court is given the discretion to act or not to act on the petition. It may
therefore choose not to construe the instrument sought to be construed or could refrain from
declaring the rights of the petitioner under the deed or the law. A refusal of the court to declare
rights or construe an instrument is actually the functional equivalent of the dismissal of the
petition.
(5) On the other hand, the court does not have the discretion to refuse to act with respect to actions
described as similar remedies. Thus, in an action for reformation of an instrument, to quiet or to
consolidate ownership, the court cannot refuse to render a judgment (Sec. 5).
(1) If before final termination of the case, a breach should take place, the action may be converted
into ordinary action to avoid multiplicity of suits (Republic vs. Orbecido, G.R. No. 154380, Oct. 5,
2005).
(2) Ordinary civil action plaintiff alleges that his right has been violated by the defendant; judgment
rendered is coercive in character; a writ of execution may be executed against the defeated party.
(3) Special civil action of declaratory relief an impending violation is sufficient to file a declaratory
relief; no execution may be issued; the court merely makes a declaration.
Reformation of an instrument
(1) It is not an action brought to reform a contract but to reform the instrument evidencing the
contract. It presupposes that there is nothing wrong with the contract itself because there is a
meeting of minds between the parties. The contract is to be reformed because despite the
meeting of minds of the parties as to the object and cause of the contract, the instrument which is
supposed to embody the agreement of the parties does not reflect their true agreement by reason
of mistake, inequitable conduct or accident. The action is brought so the true intention of the
parties may be expressed in the instrument (Art. 1359, CC).
(2) The instrument may be reformed if it does not express the true intention of the parties because of
lack of skill of the person drafting the instrument (Art. 1363, CC). If the parties agree upon the
mortgage or pledge of property, but the instrument states that the property is sold absolutely or
with a right of repurchase, reformation of the instrument is proper (Art. 1365, CC).
(3) Where the consent of a party to a contract has been procured by fraud, inequitable conduct or
accident, and an instrument was executed by the parties in accordance with the contract, what is
defective is the contract itself because of vitiation of consent. The remedy is not to bring an action
for reformation of the instrument but to file an action for annulment of the contract (Art. 1359, CC).
(4) Reformation of the instrument cannot be brought to reform any of the following:
(a) Simple donation inter vivos wherein no condition is imposed;
(b) Wills; or
(c) When the agreement is void (Art. 1666, CC).
Consolidation of ownership
(1) The concept of consolidation of ownership under Art. 1607, Civil Code, has its origin in the
substantive provisions of the law on sales. Under the law, a contract of sale may be extinguished
either by legal redemption (Art. 1619) or conventional redemption (Art. 1601). Legal redemption
(retracto legal) is a statutory mandated redemption of a property previously sold. For instance, a
co-owner of a property may exercise the right of redemption in case the shares of all the other co-
owners or any of them are sold to a third person (Art. 1620). The owners of adjoining lands shall
have the right of redemption when a piece of rural land with a size of one hectare or less is
alienated (Art. 1621). Conventional redemption (pacto de retro) sale is one that is not mandated
by the statute but one which takes place because of the stipulation of the parties to the sale. The
period of redemption may be fixed by the parties in which case 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 date of the contract (Art. 1606). When the redemption is not made
within the period agreed upon, in case the subject matter of the sale is a real property, Art. 1607
provides that the consolidation of ownership in the vendee shall not be recorded in the Registry of
Property without a judicial order, after the vendor has been duly heard.
(1) This action is brought to remove a cloud on title to real property or any interest therein. The action
contemplates a situation where the instrument or a record is apparently valid or effective but is in
truth and in fact invalid, ineffective, voidable or unenforceable, and may be prejudicial to said title
to real property. This action is then brought to remove a cloud on title to real property or any
interest therein. It may also be brought as a preventive remedy to prevent a cloud from being cast
upon title to real property or any interest therein (Art. 476).
(2) The plaintiff need not be in possession of the real property before he may bring the action as long
as he can show that he has a legal or an equitable title to the property which is the subject matter
of the action (Art. 477).
Review of Judgments and Final Orders or Resolution of the COMELEC and COA (Rule 64)
(1) A judgment or final order or resolution of the Commission on Elections and the Commission on
Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65
(Sec. 2). The filing of a petition for certiorari shall not stay the execution of the judgment or final
order or resolution sought to be reviewed, unless the SC directs otherwise upon such terms as it
may deem just (Sec. 8). To prevent the execution of the judgment, the petitioner should obtain a
temporary restraining order or a writ of preliminary injunction because the mere filing of a petition
does not interrupt the course of the principal case.
(2) Decisions of the Civil Service Commission shall be appealed to the Court of Appeals which has
exclusive appellate jurisdiction over all judgments or final orders of such commission (RA 7902).
(3) The petition shall be filed within thirty (30) days from notice of the judgment or final order or
resolution sought to be reviewed. The filing of a motion for new trial or reconsideration of said
judgment or final order or resolution, if allowed under the procedural rules of the Commission
concerned, shall interrupt the period herein fixed. If the motion is denied, the aggrieved party may
file the petition within the remaining period, but which shall not be less than five (5) days in any
event, reckoned from notice of denial (Sec. 3).
(4) Note that petition for review from decisions of quasi-judicial agencies to the CA should be within
15 days and does not stay the decision appealed. Petition for review from decisions of the RTC
decided in its appellate jurisdiction filed to the CA should be filed within 15 days and stays
execution, unless the case is under the rules of Summary Procedure. Special civil actions of
certiorari, prohibition, and mandamus, from Comelec and COA should be filed within 30 days, and
does not stay the decision appealed. Bottomline: Decisions of quasi-judicial bodies are not stayed
by appeal alone. Decisions of regular courts are stayed on appeal. Although in petition for review
on certiorari to the SC via Rule 45, there is no express provision on effect of appeal on execution.
(5) The not less than 5 days provision for filing a pleading applies only to:
(a) filing an answer after a denial of a MtD;
(b) filing an answer after denial or service of a bill of particulars;
(c) filing an special civil action for certiorari from a decision of the Comelec or CoA after denial of
a MfR or MNT. It does not apply to filing appeal from decisions of other entities after denial of
a MfR or MNT. In such cases, either the parties have a fresh 15 days, or the balance.
(1) Sec. 7, Art. IX-A of the Constitution reads, unless otherwise provided by the Constitution or by
law, any decision, order or ruling of each commission may be brought to the Supreme Court on
Distinction in the application of Rule 65 to judgments of the COMELEC and COA and the application of
Rule 65 to other tribunals, persons and officers
Rule 64 Rule 65
Directed only to the judgments, final orders or resolutions of Directed to any tribunal, board or officers
the COMELEC and COA; exercising judicial or quasi-judicial
functions;
Filed within 30 days from notice of the judgment; Filed within 60 days from notice of the
judgment;
The filing of a motion for reconsideration or a motion for new The period within which to filed the
trial if allowed, interrupts the period for the filing of the petition petition if the motion for reconsideration
for certiorari. If the motion is denied, the aggrieved party may or new trial is denied, is 60 days from
file the petition within the remaining period, but which shall notice of the denial of the motion.
not be less than 5 days reckoned from the notice of denial.
Prohibition Injunction
Always the main action May be the main action or just a provisional remedy
Directed against a court, a tribunal exercising Directed against a party
judicial or quasi-judicial functions
Ground must be the court acted without or in Does not involve a question of jurisdiction
excess of jurisdiction
Prohibition Mandamus
To prevent an act by a respondent To compel an act desired
May be directed against entities exercising judicial May be directed against judicial and non-judicial
or quasi-judicial, or ministerial functions entities
Extends to discretionary functions Extends only to ministerial functions
Mandamus Quo warranto
Clarifies legal duties, not legal titles Clarifies who has legal title to the office, or
franchise
Respondent, without claiming any right to the office, Respondent usurps the office
excludes the petitioner
Injunctive relief
(1) The court in which the petition is filed may issue orders expediting the proceedings, and it may
also grant a temporary restraining order or a writ of preliminary injunction for the preservation of
the rights of the parties pending such proceedings. The petition shall not interrupt the course of
the principal case unless a temporary restraining order or a writ of preliminary injunction has been
issued against the public respondent from further proceeding in the case (Sec. 7).
(2) The public respondent shall proceed with the principal case within ten (10) days from the filing of
a petition for certiorari with a higher court or tribunal, absent a Temporary Restraining Order
(TRO) or a Writ of Preliminary Injunction, or upon its expiration. Failure of the public respondent to
proceed with the principal case may be a ground for an administrative charge (AM 07-7-12-SC,
Dec. 12, 2007).
Certiorari distinguished from Appeal by Certiorari; Prohibition and Mandamus distinguished from
Injunction; when and where to file petition
Certiorari as a Mode of Appeal (Rule 45) Certiorari as a Special Civil Action (Rule 65)
Called petition for review on certiorari, is a mode of A special civil action that is an original action and
appeal, which is but a continuation of the appellate not a mode of appeal, and not a part of the
process over the original case; appellate process but an independent action.
Seeks to review final judgments or final orders; May be directed against an interlocutory order of
the court or where not appeal or plain or speedy
remedy available in the ordinary course of law
Raises only questions of law; Raises questions of jurisdiction because a tribunal,
board or officer exercising judicial or quasi-judicial
functions has acted without jurisdiction or in excess
of jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction;
Filed within 15 days from notice of judgment or final Filed not later than 60 days from notice of
order appealed from, or of the denial of petitioners judgment, order or resolution sought to be assailed
motion for reconsideration or new trial; and in case a motion for reconsideration or new
trial is timely filed, whether such motion is required
or not, the 60 day period is counted from notice of
denial of said motion;
Extension of 30 days may be granted for justifiable Extension no longer allowed;
reasons
Does not require a prior motion for reconsideration; Motion for Reconsideration is a condition
precedent, subject to exceptions
Stays the judgment appealed from; Does not stay the judgment or order subject of the
petition unless enjoined or restrained;
Parties are the original parties with the appealing The tribunal, board, officer exercising judicial or
party as the petitioner and the adverse party as the quasi-judicial functions is impleaded as respondent
respondent without impleading the lower court or its
judge;
Filed with only the Supreme Court May be filed with the Supreme Court, Court of
Appeals, Sandiganbayan, or Regional Trial Court
SC may deny the decision motu propio on the
ground that the appeal is without merit, or is
(1) The remedies of appeal and certiorari are mutually exclusive and not alternative or successive.
The antithetic character of appeal and certiorari has been generally recognized and observed
save only on those rare instances when appeal is satisfactorily shown to be an inadequate
remedy. Thus, a petitioner must show valid reasons why the issues raised in his petition for
certiorari could not have been raised on appeal (Banco Filipino Savings and Mortgage Bank vs.
CA, 334 SCRA 305).
Prohibition and Mandamus distinguished from Injunction; when and where to file petition
(1) The primary relief will be annulment or modification of the judgment, order or resolution or
proceeding subject of the petition. It may also include such other incidental reliefs as law and
justice may require (Sec. 1). The court, in its judgment may also award damages and the
execution of the award for damages or costs shall follow the procedure in Sec. 1, Rule 39 (Sec.
9).
(1) Under Rule 65, the proper party who can file a petition for certiorari, prohibition or mandamus is
the person aggrieved by the action of a trial court or tribunal in a criminal case pending before it.
Ordinarily, the petition is filed in the name of the People of the Philippines by the Solicitor
General. However, there are cases when such petition may be filed by other parties who have
been aggrieved by the order or ruling of the trial courts. In the prosecution of election cases, the
aggrieved party is the Comelec, who may file the petition in its name through its legal officer or
through the Solicitor General if he agrees with the action of the Comelec (Comelec vs. Silva, Jr.,
286 SCRA 177 [1998]).
(1) A petition for certiorari must be based on jurisdictional grounds because as long as the
respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will
amount to nothing more than an error of judgment 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).
(1) The Court may impose motu propio, based on res ipsa loquitur, other disciplinary sanctions or
measures on erring lawyers for patently dilatory an unmeritorious petition for certiorari (AM 07-7-
12-SC, Dec. 12, 2007). The court may dismiss the petition if it finds the same patently without
merit or prosecuted manifestly for delay, or if the questions raised therein are too unsubstantial to
require consideration. In such event, the court may award in favor of the respondent treble costs
solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative
sanctions under Rules 139 and 139-B.
(2) It is a special civil action commenced by a verified petition against (a) a person who usurps a
public office, position or franchise; (b) a public officer who performs an act constituting forfeiture of
a public office; or (c) an association which acts as a corporation within the Philippines without
being legally incorporated or without lawful authority to do so (Sec. 1).
(1) Quo warranto is commenced by a verified petition brought in the name of the Government of the
Republic of the Philippines by the Solicitor General, or in some instances, by a public prosecutor
(Secs. 2 and 3). When the action is commenced by the Solicitor General, the petition may be
brought in the Regional Trial Court of the City of Manila, the Court of Appeals or the Supreme
Court (Sec. 7).
(2) An action for the usurpation of a public office, position or franchise may be commenced by a
verified petition brought in the name of the Republic of the Philippines thru the Solicitor General
against:
(1) The petition may be commenced by a private person in his own name where he claims to be
entitled to the public office or position alleged to have been usurped or unlawfully held or
exercised by another (Sec. 5). Accordingly, the private person may maintain the action without the
intervention of the Solicitor General and without need for any leave of court (Navarro vs.
Gimenez, 10 Phil. 226; Cui vs. Cui, 60 Phil. 37). In bringing a petition for quo warranto, he must
show that he has a clear right to the office allegedly being held by another (Cuevas vs. Bacal, 347
SCRA 338). It is not enough that he merely asserts the right to be appointed to the office.
(1) When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising
a public office, position or franchise, judgment shall be rendered that such respondent be ousted
and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover
his costs. Such further judgment may be rendered determining the respective rights in and to the
public office, position or franchise of the parties to the action as justice requires (Sec. 9).
(1) If the petitioner is adjudged to be entitled to the office, he may sue for damages against the
alleged usurper within one (1) year from the entry of judgment establishing his right to the office in
question (Sec. 11).
(1) Expropriation is an exercise of the States power of eminent domain wherein the government
takes a private property for public purpose upon payment of just compensation.
(1) An expropriation proceeding is commenced by the filing of a verified complaint which shall:
(a) State with certainty the right of the plaintiff to expropriation and the purpose thereof;
(b) Describe the real or personal property sought to be expropriated; and
(c) Join as defendants all persons owning or claiming to own, or occupying, any part of the
property or interest therein showing as far as practicable the interest of each defendant. If the
plaintiff cannot with accuracy identify the real owners, averment to that effect must be made in
the complaint (Sec. 1).
(1) Determination of the authority of the plaintiff to expropriate this includes an inquiry into the
propriety of the expropriation, its necessity and the public purpose. This stage will end in the
issuance of an order of expropriation if the court finds for the plaintiff or in the dismissal of the
complaint if it finds otherwise.
(2) Determination of just compensation through the court-appointed commissioners (National Power
Corporation vs. Joson, 206 SCRA 520).
(1) Except for the acquisition of right-of-way, site or location for any national government
infrastructure project through expropriation, the expropriator shall have the right to take or enter
upon the possession of the real property involved if he deposits with the authorized government
depositary an amount equivalent to the assessed value of the property for purposes of taxation to
be held by such bank subject to the orders of the court. such deposit shall be in money, unless in
lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the
Philippines payable on demand to the authorized government depositary (Sec. 2, Rule 67).
(1) For the acquisition of right-of-way, site or location for any national government infrastructure
project through expropriation, upon the filing of the filing of the complaint, and after due notice to
the defendant, the implementing agency shall immediately pay the owner of the property the
amount equivalent to the sum of (1) 100 percent of the value of the property based on the current
relevant zonal valuation of the BIR; and (2) the value of the improvements and/or structures as
determined under Sec. 7 of RA 8974 (Sec. 4, RA 8974).
(1) Omnibus Motion Rule Subject to the provisions of Sec. 1, Rule 9, a motion attacking a pleading,
order, judgment or proceeding shall include all objections then available, and all objections not so
included shall be deemed waived (Sec. 8, Rule 15).
(2) If a defendant has no objection or defense to the action or the taking of his property, he may file
and serve a notice of appearance and a manifestation to that effect, specifically designating or
identifying the property in which he claims to be interested, within the time stated in the summons.
Thereafter, he shall be entitled to notice of all proceedings affecting the same.
If a defendant has any objection to the filing of or the allegations in the complaint, or any objection
or defense to the taking of his property, he shall serve his answer within the time stated in the
summons. The answer shall specifically designate or identify the property in which he claims to
have an interest, state the nature and extent of the interest claimed, and adduce all his objections
and defenses to the taking of his property. No counterclaim, cross-claim or third-party complaint
shall be alleged or allowed in the answer or any subsequent pleading.
A defendant waives all defenses and objections not so alleged but the court, in the interest of
justice, may permit amendments to the answer to be made not later than ten (10) days from the
filing thereof. However, at the trial of the issue of just compensation, whether or not a defendant
has previously appeared or answered, he may present evidence as to the amount of the
compensation to be paid for his property, and he may share in the distribution of the award (Sec.
3)..
Order of Expropriation
(1) If the objections to and the defenses against the right of the plaintiff to expropriate the property
are overruled, or when no party appears to defend as required by this Rule, the court may issue
an order of expropriation declaring that the plaintiff has a lawful right to take the property sought
to be expropriated, for the public use or purpose described in the complaint, upon the payment of
just compensation to be determined as of the date of the taking of the property or the filing of the
complaint, whichever came first.
A final order sustaining the right to expropriate the property may be appealed by any party
aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just
compensation to be paid.
After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue
the proceeding except on such terms as the court deems just and equitable (Sec. 4).
(1) The order of expropriation merely declares that the plaintiff has the lawful to expropriate the
property but contains no ascertainment of the compensation to be paid to the owner of the
property. So upon the rendition of the order of expropriation, the court shall appoint not more than
three (3) commissioners to ascertain the just compensation for the property. Objections to the
appointment may be made within 10 days from service of the order of appointment (Sec. 5). The
commissioners are entitled to fees and their fees shall be taxed as part of the costs of the
proceedings, and all costs shall be paid by the plaintiff except those costs of rival claimants
litigating their claims (Sec. 12).
(2) Where the principal issue is the determination of just compensation, a hearing before the
commissioners is indispensable to allow the parties to present evidence on the issue of just
compensation. Although the findings of the commissioners may be disregarded and the trial court
may substitute its own estimate of the value, the latter may do so only for valid reasons, that is
where the commissioners have applied illegal principles to the evidence submitted to them, where
they have disregarded a clear preponderance of evidence, or where the amount allowed is either
grossly inadequate or excessive.
(1) Appointment. Upon the rendition of the order of expropriation, the court shall appoint not more
than three (3) competent and disinterested persons as commissioners to ascertain and report to
the court the just compensation for the property sought to be taken. The order of appointment
shall designate the time and place of the first session of the hearing to be held by the
commissioners and specify the time within which their report shall be submitted to the court.
Copies of the order shall be served on the parties. Objections to the appointment of any of the
commissioners shall be filed with the court within ten (10) days from service, and shall be
resolved within thirty (30) days after all the commissioners shall have received copies of the
objections (Sec. 5).
(2) Proceedings. Before entering upon the performance of their duties, the commissioners shall take
and subscribe an oath that they will faithfully perform their duties as commissioners, which oath
shall be filed in court with the other proceedings in the case. Evidence may be introduced by
either party before the commissioners who are authorized to administer oaths on hearings before
them, and the commissioners shall, unless the parties consent to the contrary, after due notice to
the parties to attend, view and examine the property sought to be expropriated and its
surroundings, and may measure the same, after which either party may, by himself or counsel,
argue the case. The commissioners shall assess the consequential damages to the property not
taken and deduct from such consequential damages the consequential benefits to be derived by
the owner from the public use or purpose of the property taken, the operation of its franchise by
the corporation or the carrying on of the business of the corporation or person taking the property.
But in no case shall the consequential benefits assessed exceed the consequential damages
assessed, or the owner be deprived of the actual value of his property so taken (Sec. 6).
(3) Report. The court may order the commissioners to report when any particular portion of the real
estate shall have been passed upon by them, and may render judgment upon such partial report,
and direct the commissioners to proceed with their work as to subsequent portions of the property
sought to be expropriated, and may from time to time so deal with such property. The
commissioners shall make a full and accurate report to the court of all their proceedings, and such
proceedings shall not be effectual until the court shall have accepted their report and rendered
judgment in accordance with their recommendations. Except as otherwise expressly ordered by
the court, such report shall be filed within sixty (60) days from the date the commissioners were
notified of their appointment, which time may be extended in the discretion of the court. Upon the
filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with
notice that they are allowed ten (10) days within which to file objections to the findings of the
report, if they so desire (Sec. 7).
(1) After payment of the just compensation as determined in the judgment, the plaintiff shall have the
right to enter upon the property expropriated and to appropriate the same for the public use or
purpose defined in the judgment or to retain possession already previously made in accordance
with Sec. 2, Rule 67.
(2) Title to the property expropriated passes from the owner to the expropriator upon full payment of
just compensation (Federated Realty Corp. vs. CA, 477 SCRA 707).
(1) The judgment entered in expropriation proceedings shall state definitely, by an adequate
description, the particular property or interest therein expropriated, and the nature of the public
use or purpose for which it is expropriated. When real estate is expropriated, a certified copy of
such judgment shall be recorded in the registry of deeds of the place in which the property is
situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for
such public use or purpose (Sec. 13).
(1) A real estate mortgage is an accessory contract executed by a debtor in favor of a creditor as
security for the principal obligation. This principal obligation is a simple loan or mutuum described
in Art. 1953, Civil Code. To be a real estate mortgage, the contract must be constituted on either
immovables (real property) or inalienable real rights. If constituted on movables, the contract is a
chattel mortgage (Art. 2124, CC).
(2) A mortgage contract may have a provision in which the mortgage is a security for past, present
and future indebtedness. This clause known as a dragnet clause or blanket mortgage clause has
its origins in American jurisprudence. The Supreme Court ruled that mortgages given to secure
future advancements are valid and legal contracts (Prudential Bank vs. Alviar, 464 SCRA 353).
(1) If after the trial, the court finds that the matters set forth in the complaint are true, it shall render a
judgment containing the following matters:
(a) An ascertainment of the amount due to the plaintiff upon the mortgage debt or obligation,
including interest and other charges as approved by the court, as well as costs;
(b) A judgment of the sum found due;
(c) An order that the amount found due be paid to the court or to the judgment obligee within the
period of not less than 90 days nor more than 120 days from the entry of judgment; and
(d) An admonition that in default of such payment the property shall be sold at public auction to
satisfy the judgment (Sec. 2).
(2) The judgment of the court on the above matters is considered a final adjudication of the case and
hence, is subject to challenge by the aggrieved party by appeal or by other post-judgment
remedies.
(3) The period granted to the mortgagor for the payment of the amount found due by the court is not
just a procedural requirement but s substantive right given by law to the mortgagee as his first
(1) The confirmation of the sale shall divest the rights in the property of all parties to the action and
shall vest their rights in the purchaser, subject to such rights of redemption as may be allowed by
law (Sec. 3). The title vests in the purchaser upon a valid confirmation of the sale and retroacts to
the date of sale (Grimalt vs. Vasquez, 36 Phil. 396).
(2) The import of Sec. 3 includes one vital effect: The equity of redemption of the mortgagor or
redemptioner is cut-off and there will be no further redemption, unless allowed by law (as in the
case of banks as mortgagees). The equity of redemption starts from the ninety-day period set in
the judgment of the court up to the time before the sale is confirmed by an order of the court. once
confirmed, no equity of redemption may further be exercised.
(3) The order of confirmation is appealable and if not appealed within the period for appeal becomes
final. Upon the finality of the order of confirmation or upon the expiration of the period of
redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any,
shall be entitled to the possession of the property and he may secure a writ of possession, upon,
motion, from the court which ordered the foreclosure unless a third party is actually holding the
same adversely to the judgment obligor (Sec. 3).
(1) The proceeds of the sale of the mortgaged property shall, after deducting the costs of the sale, be
paid to the person foreclosing the mortgage, and when there shall be any balance or residue after
paying off the mortgage debt due, the same shall be paid to junior encumbrancers in the order of
their priority. If there be any further balance after paying them or if there be no junior
encumbrancers, the same shall be paid to the mortgagor or any person entitled thereto (Sec. 4).
Deficiency judgment
(1) If there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon
motion, shall render judgment against the defendant for any such balance. Execution may issue
immediately if the balance is all due the plaintiff shall be entitled to execution at such time as the
remaining balance shall become due and such due date shall be stated in the judgment (Sec. 6).
Note that the deficiency judgment is in itself a judgment hence, also appealable.
(2) No independent action need be filed to recover the deficiency from the mortgagor. The deficiency
judgment shall be rendered upon motion of the mortgagee. The motion must be made only after
the sale and after it is known that a deficiency exists. Before that, any court order to recover the
deficiency is void (Govt. of PI vs. Torralba, 61 Phil. 689). It has been held that the mortgagor who
is not the debtor and who merely executed the mortgage to secure the principal debtors
obligation, is not liable for the deficiency unless he assumed liability for the same in the contract
(Philippine Trust Co. vs. Echaus Tan Siua, 52 Phil. 852). Since a deficiency judgment cannot be
obtained against the mortgagore who is not the debtor in the principal obligation, mortgagee may
have to file a separate suit against the principal debtor.
(1) Where the debtor-mortgagor is a non-resident and who at the time of the filing of the action for
foreclosure and during the pendency of the proceedings was outside the Philippines, it is believed
that a deficiency judgment under Sec. 6 would not be procedurally feasible. A deficiency judgment
is by nature in personam and jurisdiction over the person is mandatory. Having been outside the
country, jurisdiction over his person could not have been acquired.
(1) Partition is the separation, division and assignment of a thing held in common among those to
whom it may belong (Cruz vs. CA, 456 SCRA 165). It presupposes the existence of a co-
ownership over a property between two or more persons. The rule allowing partition originates
from a well-known principle embodied in the Civil Code, that no co-owner shall be obliged to
remain the co-ownership. Because of this rule, he may demand at any time the partition of the
property owned in common (Art. 494).
(2) Instances when a co-owner may not demand partition at any time:
(a) There is an agreement among the co-owners to keep the property undivided for a certain
period of time but not exceeding ten years (Arft. 494);
(b) When partition is prohibited by the donor or testator for a period not exceeding 20 years (Art.
494);
(c) When partition is prohibited by law (Art. 494);
(d) When the property is not subject to a physical division and to do so would render it
unserviceable for the use for which it is intended (Art. 495);
(e) When the condition imposed upon voluntary heirs before they can demand partition has not
yet been fulfilled (Art. 1084).
(1) The action shall be brought by the person who has a right to compel the partition of real estate
(Sec. 1) or of an estate composed of personal property, or both real and personal property (Sec.
13). The plaintiff is a person who is supposed to be a co-owner of the property or estate sought to
be partitioned. The defendants are all the co-owners. All the co-owners must be joined.
Accordingly, an action will not lie without the joinder of all co-owners and other persons having
interest in the property (Reyes vs. Cordero, 46 Phil. 658). All the co-owners, therefore, are
indispensable parties.
(1) The plaintiff shall state in his complaint, the nature and extent of his title, an adequate description
of the real estate of which partition is demanded, and shall join as defendants all other persons
interested in the property (Sec. 1). He must also include a demand for the accounting of the rents,
profits and other income from the property which he may be entitled to (Sec. 8). These cannot be
demanded in another action because they are parts of the cause of action for partition. They will
be barred if not set up in the same action pursuant to the rule against splitting a single cause of
action.
(1) A reading of the Rules will reveal that there are actually three (3) stages in the action, each of
which could be the subject of appeal: (a) the order of partition where the property of the partition is
determined; (b) the judgment as to the accounting of the fruits and income of the property; and (c)
the judgment of partition (Riano, Civil Procedure (A Restatement for the Bar), 2007).
(1) During the trial, the court shall determine whether or not the plaintiff is truly a co-owner of the
property, that there is indeed a co-ownership among the parties, and that a partition is not legally
proscribed thus may be allowed. If the court so finds that the facts are such that a partition would
be in order, and that the plaintiff has a right to demand partition, the court will issue an order of
partition.
(2) The court shall order the partition of the property among all the parties in interest, if after trial it
finds that the plaintiff has the right to partition (Sec. 2). It was held that this order of partition
including an order directing an accounting is final and not interlocutory and hence, appealable;
Sec. 3. Commissioners to make partition when parties fail to agree. If the parties are unable to
agree upon the partition, the court shall appoint not more than three (3) competent and
disinterested persons as commissioners to make the partition, commanding them to set off to the
plaintiff and to each party in interest such part and proportion of the property as the court shall
direct.
Sec. 4. Oath and duties of commissioners. Before making such partition, the commissioners shall
take and subscribe an oath that they will faithfully perform their duties as commissioners, which
oath shall be filed in court with the other proceedings in the case. In making the partition, the
commissioners shall view and examine the real estate, after due notice to the parties to attend at
such view and examination, and shall hear the parties as to their preference in the portion of the
property to be set apart to them and the comparative value thereof, and shall set apart the same
to the parties in lots or parcels as will be most advantageous and equitable, having due regard to
the improvements, situation and quality of the different parts thereof.
Sec. 5. Assignment or sale of real estate by commissioners. When it is made to appear to the
commissioners that the real estate, or a portion thereof, cannot be divided without prejudice to the
interests of the parties, the court may order it assigned to one of the parties willing to take the
same, provided he pays to the other parties such amounts as the commissioners deem equitable,
unless one of the interested parties asks that the property be sold instead of being so assigned, in
which case the court shall order the commissioners to sell the real estate at public sale under
such conditions and within such time as the court may determine.
Sec. 6. Report of commissioners; proceedings not binding until confirmed. The commissioners shall
make a full and accurate report to the court of all their proceedings as to the partition, or the
assignment of real estate to one of the parties, or the sale of the same. Upon the filing of such
report, the clerk of court shall serve copies thereof on all the interested parties with notice that
they are allowed ten (10) days within which to file objections to the findings of the report, if they so
desire. No proceeding had before or conducted by the commissioners shall pass the title to the
property or bind the parties until the court shall have accepted the report of the commissioners
and rendered judgment thereon.
Sec. 7. Action of the court upon commissioners report. Upon the expiration of the period of ten (10)
days referred to in the preceding section, or even before the expiration of such period but after the
interested parties have filed their objections to the report or their statement of agreement
therewith, the court may, upon hearing, accept the report and render judgment in accordance
therewith; or, for cause shown, recommit the same to the commissioners for further report of
facts; or set aside the report and appoint new commissioners; or accept the report in part and
reject it in part; and may make such order and render such judgment as shall effectuate a fair and
just partition of the real estate, or of its value, if assigned or sold as above provided, between the
several owners thereof.
(1) The provisions of this Rule shall apply to partitions of estates composed of personal property, or
of both real and personal property, in so far as the same may be applicable (Sec. 13).
Prescription of action
(1) Prescription of action does not run in favor of a co-owner or co-heir against his co-owner or co-
heirs as long as there is a recognition of the co-ownership expressly or impliedly (Art. 494).
(2) The action for partition cannot be barred by prescription as long as the co-ownership exists
(Aguirre vs. CA, 421 SCRA 310).
(3) But while the action to demand partition of a co-owned property does not prescribe, a co-owner
may acquire ownership thereof by prescription where there exists a clear repudiation of the co-
ownership and the co-owners are apprised of the claim of adverse and exclusive ownership.
(b) The actions for forcible entry and unlawful detainer belong to the class of actions known by the
generic name accion interdictal (ejectment) where the issue is the right of physical or material
possession of the subject real property independent of any claim of ownership by the parties involved
(Mendoza vs. CA, 452 SCRA 117 [2005]).
(c) Accion Interdictal comprises two distinct causes of action:
(a) Forcible entry (detentacion), where one is deprived of physical possession of real property by
means of force, intimidation, strategy, threats or stealth;
(b) Unlawful Detainer (desahuico), where one illegally withholds possession after the expiration
or termination of his right to hold possession under any contract, express or implied.
(1) The actions of forcible entry and unlawful detainer are within the exclusive and original jurisdiction
of the MTC, MeTC and MCTC (Sec. 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 recovered
(Sec. 3, Rule 70).
(2) In actions for forcible entry, two allegations are mandatory for the MTC to acquire jurisdiction: (a)
plaintiff must allege his prior physical possession of the property; and (b) he must also allege that
he was deprived of his possession by force, intimidation, strategy, threat or stealth. If the alleged
dispossession did not occur by any of these means, the proper recourse is to file not an action for
forcible entry but a plenary action to recover possession (Benguet Corp. Cordillera Caraballo
Mission, GR 155343, Sept. 2, 2005).
(3) Both actions must be brought within one year from the date of actual entry on the land, in case of
forcible entry, and from the date of last demand, in case of unlawful detainer (Valdez vs. CA, GR
132424, May 2, 2006).
(4) Jurisdiction is determined by the allegations of the complaint. The mere raising of the issue of
tenancy does not automatically divest the court of jurisdiction because the jurisdiction of the court
is determined by the allegations of the complaint and is not dependent upon the defenses set up
by the defendant (Marino, Jr. vs. Alamis, 450 SCRA 198 [2005]).
Who may institute the action and when; against whom the action may be maintained
(1) Subject to the provisions of the next succeeding section, a person deprived of the possession of
any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee,
or other person against whom the possession of any land or building is unlawfully withheld after
the expiration or termination of the right to hold possession, by virtue of any contract, express or
implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other
person, may, at any time within one (1) year after such unlawful deprivation or withholding of
possession, bring an action in the proper Municipal Trial Court against the person or persons
unlawfully withholding or depriving of possession, or any person or persons claiming under them,
for the restitution of such possession, together with damages and costs (Sec. 1).
(2) Unless otherwise stipulated, such action by the lessor shall be commenced only after demand to
pay or comply with the conditions of the lease and to vacate is made upon the lessee, or by
Pleadings allowed
(1) The only pleadings allowed to be filed are the complaint, compulsory counterclaim and cross-
claim pleaded in the answer, and the answers thereto. All pleadings shall be verified (Sec. 4).
(1) The court may, from an examination of the allegations in the complaint and such evidence as may
be attached thereto, dismiss the case outright on any of the grounds for the dismissal of a civil
action which are apparent therein. If no ground for dismissal is found, it shall forthwith issue
summons (Sec. 5).
(1) Unless there exists a stipulation to the contrary, 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 the lessee (Sec. 2). The requirement for a demand implies that the mere failure of the
occupant to pay rentals or his failure to comply with the conditions of the lease does not ipso facto
render his possession of the premises unlawful. It is the failure to comply with the demand that
vests upon the lessor a cause of action.
(2) The demand may be in the form of a written notice served upon the person found in the premises.
The demand may also be made by posting a written notice on the premises if no person can be
found thereon (Sec. 2). It has been ruled, however, that the demand upon a tenant may be oral
(Jakihaca vs. Aquino, 181 SCRA 67). Sufficient evidence must be adduced to show that there
was indeed a demand like testimonies from disinterested and unbiased witnesses.
(1) The court may grant preliminary injunction, in accordance with the provisions of Rule 58, to
prevent the defendant from committing further acts of dispossession against the plaintiff. A
possessor deprived of his possession through forcible entry or unlawful detainer may, within five
(5) days from the filing of the complaint, present a motion in the action for forcible entry or
unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in
his possession. The court shall decide the motion within thirty (30) days from the filing thereof
(Sec. 15).
(1) The assertion by the defendant of ownership over the disputed property does not serve to divest
the inferior court of its jurisdiction. The defendant cannot deprive the court of jurisdiction by
merely claiming ownership of the property involved (Rural Bank of Sta. Ignacia vs. Dimatulac, 401
SCRA 742; Perez vs. Cruz, 404 SCRA 487). If the defendant raises the question of ownership
and the issue of possession cannot be resolved without deciding the question of ownership, the
issue of ownership shall be resolved only to determine the issue of possession (Sec. 3, RA 7691).
(2) When the defendant raises the issue of ownership, the court may resolve the issue of ownership
only under the following conditions:
(a) When the issue of possession cannot be resolved without resolving the issue of ownership;
and
(b) The issue of ownership shall be resolved only to determine the issue of possession (Sec. 16).
Such judgment would not bar an action between the same parties respecting title to the land or building.
The resolution of the MeTC on the ownership of the property is merely provisional or interlocutory. Any
question involving the issue of ownership should be raised and resolved in a separate action brought
specifically to settle the question with finality (Roberts vs. Papio, GR 166714, Feb. 9, 2007).
(1) Defendant must take the following steps to stay the execution of the judgment:
(a) Perfect an appeal;
(b) File a supersedeas bond to pay for the rents, damages and costs accruing down to the time of
the judgment appealed from; and
(c) Deposit periodically with the RTC, during the pendency of the appeal, the adjudged amount of
rent due under the contract or if there be no contract, the reasonable value of the use and
occupation of the premises (Sec. 19).
(2) Exceptions to the rule:
(a) Where delay in the deposit is due to fraud, accident, mistake, or excusable negligence;
(b) Where supervening events occur subsequent to the judgment bringing about a material
change in the situation of the parties which makes execution inequitable; and
(c) Where there is no compelling urgency for the execution because it is not justified by the
circumstances.
(1) Forcible entry and unlawful detainer actions are summary in nature designed to provide for an
expeditious means of protecting actual possession or the right to possession of the property
involved (Tubiano vs. Riazo, 335 SCRA 531). These action shall both fall under the coverage of
the Rules of Summary Procedure irrespective of the amount of damages or unpaid rental sought
to be recovered (Sec. 3).
(2) Prohibited pleadings and motions:
(a) Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject
matter, or failure to comply with section 12;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings, affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the
court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints;
(l) Interventions
(1) Contempt is a disregard of, or disobedience to the rules or orders of a judicial body, or an
interruption of its proceedings by disorderly behavior or insolent language, in its presence or so
near thereto as to disturb the proceedings or to impair the respect due to such body (17 C.J.S. 4).
(2) Contempt of court is disobedience to the court by acting in opposition to its authority, justice and
dignity. It signifies not only a willful disregard or disobedience of the courts orders but also
conduct tending to bring the authority of the court and the administration of law into disrepute or,
in some manner to impede the due administration of justice (Siy vs. NLRC, GR 158971, Ausg. 25,
2005).
(3) The reason for the power to punish for contempt is that respect of the courts guarantees the
stability of their institution. Without such guarantee, said institution would be resting on shaky
foundation (Cornejo vs.Tan, 85 Phil. 772).
(4) It is inherent in all courts; its existence is essential to the preservation of order in judicial
proceedings and to the enforcement of judgments, orders and mandates of the courts, and
consequently, to the due administration of justice (Perkins vs. Director of Prisons, 58 Phil. 271).
(5) Contempt proceedings has dual function:
(a) Vindication of public interest by punishment of contemptuous conduct; and
(1) Civil or Criminal, depending on the nature and effect of the contemptuous act.
(2) Direct or indirect, according to the manner of commission.
(1) The penalty for direct contempt depends upon the court which the act was committed;
(1) The punishment for indirect contempt depends upon the level of the court against which the act
was committed;
(a) Where the act was committed against an RTC or a court of equivalent or higher rank, he may
be punished by a fine not exceeding 30,000 pesos or imprisonment not exceeding 6 months,
or both;
(b) Where the act was committed against a lower court, he may be punished by a fine not
exceeding 5,000 pesos or imprisonment not exceeding one month, or both. Aside from the
applicable penalties, if the contempt consists in the violation of a writ of injunction, TRO or
status quo order, he may also be ordered to make complete restitution to the party injured by
such violation of the property involved or such amount as may be alleged and proved (Sec.
7);
(c) Where the act was committed against a person or entity exercising quasi-judicial functions,
the penalty imposed shall depend upon the provisions of the law which authorizes a penalty
for contempt against such persons or entities.
(2) The person adjudged in indirect contempt may appeal from the judgment or final order of the
court in the same manner as in criminal cases. The appeal will not however have the effect of
suspending the judgment if the person adjudged in contempt does not file a bond in an amount
fixed by the court from which the appeal is taken. This bond is conditioned upon his performance
of the judgment or final order if the appeal is decided against (Sec. 11).
(1) Proceedings for indirect contempt may be initiated motu proprio by the court against which the
contempt was committed by an order or any other formal charge requiring the respondent to show
cause why he should not be punished for contempt.
In all other cases, charges for indirect contempt shall be commenced by a verified petition with
supporting particulars and certified true copies of documents or papers involved therein, and upon
full compliance with the requirements for filing initiatory pleadings for civil actions in the court
concerned. If the contempt charges arose out of or are related to a principal action pending in the
court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and
decided separately, unless the court in its discretion orders the consolidation of the contempt
charge and the principal action for joint hearing and decision (Sec. 4).
(1) After a charge in writing has been filed, and an opportunity given to the respondent to comment
thereon within such period as may be fixed by the court and to be heard by himself or counsel, a
person guilty of any of the following acts may be punished for indirect contempt:
(b) Misbehavior an officer of a court in the performance of his official duties or in his official
transactions;
(1) When the contempt consists in the refusal or omission to do an act which is yet in the power of
the respondent to perform, he may be imprisoned by order of the court concerned until he
performs it (Sec. 8). Indefinite incarceration may be resorted to where the attendant
circumstances are such that the non-compliance with the court order is an utter disregard of the
authority of the court which has then no other recourse but to use its coercive power. When a
person or party is legally and validly 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 bring
the person or party before it.
(2) The punishment is imposed for the benefit of a complainant or a party to a suit who has been
injured aside from the need to compel performance of the orders or decrees of the court, which
the contemnor refuses to obey although able to do so. In effect, it is within the power of the
person adjudged guilty of contempt to set himself free.
(1) The rules on contempt apply to contempt committed against persons or entities exercising quasi-
judicial functions or in case there are rules for contempt adopted for such bodies or entities
pursuant to law, Rule 71 shall apply suppletorily (Sec. 12).
(2) Quasi-judicial bodies that have the power to cite persons for indirect contempt can only do so by
initiating them in the proper RTC. It is not within their jurisdiction and competence to decide the
indirect contempt cases. The RTC of the place where contempt has been committed shall have
jurisdiction over the charges for indirect contempt that may be filed (Sec. 12).
(1) If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen of an
alien, his will shall be proved, or letters of administration granted, and his estate settled, in the
RTC in the province in which he resides at the time of his death, and if he is an inhabitant of a
foreign country, the RTC of any province in which he had his estate. The court first taking
cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts (Sec. 1).
(2) Under RA 7691, the law expanding the jurisdiction of the inferior courts, MTC, MeTC and MCTC
shall exercise exclusive original jurisdiction over probate proceedings, testate and intestate,
where the value of the estate does not exceed P200,000 (outside Metro Manila) or where such
estate does not exceed P400,000 (in Metro Manila).
(3) The jurisdiction of the RTC is limited to the settlement and adjudication of properties of the
deceased and cannot extend to collateral matters.
(1) The residence of the decedent at the time of his death is determinative of the venue of the
proceeding. If he was a resident (inhabitant) of the Philippines, venue is laid exclusively in the
province of his residence, the jurisdiction being vested in the Regional Trial Court thereof.
Residence means his personal, actual, or physical habitation, his actual residence or place of
abode.
(2) It is only where the decedent was a nonresident of the Philippines at the time of his death that
venue lies in any province in which he had estate, and then CFI thereof first taking cognizance of
the proceeding for settlement acquires jurisdiction to the exclusion of other courts. The question
of residence is determinative only of the venue and does not affect the jurisdiction of the court.
(1) The main function of a probate court is to settle and liquidate the estates of deceased person
either summarily or through the process of administration. The RTC acting a s a probate court
exercises but limited jurisdiction, thus it has no power to take cognizance of and determine the
issue of title to property claimed by a third person adversely to the decedent unless the claimant
and all other parties have legal interest in the property consent, expressly or impliedly, to the
submission of the question to the probate court. In that case, if the probate court allows the
introduction of evidence on ownership it is for the sole purpose of determining whether the subject
properties should be included in the inventory, which is within the probate courts competence.
The determination is only provisional subject to a proper action at the RTC in a separate action to
resolve the title.
(2) The jurisdiction of the probate court merely relates to matters having to do with the settlement of
the estate and the probate of wills, the appointment and removal of administrators, executors,
guardians and trustees. The question of ownership is, as a rule, an extraneous matter which the
probate court cannot resolve with finality (Intestate Estate of Ismael Reyes, Heirs of Reyes vs.
Reyes, GR 139587, Nov. 2, 2000).
(1) Summary settlement of estate is a judicial proceeding wherein, without the appointment of
executor or administrator, and without delay, the competent court summarily proceeds to value
the estate of the decedent; ascertain his debts and order payment thereof; allow his will if any;
declare his heirs, devisee and legatees; and distribute his net estate among his known heirs,
devisees, and legatees, who shall thereupon be entitled to receive and enter into the possession
of the parts of the estate so awarded to them, respectively (Sec. 2).
(1) If the decedent left no will and no debts and the heirs are all of age, or the minors are represented
by their judicial or legal representatives duly authorized for the purpose, the parties may, without
securing letters of administration, divide the estate among themselves as they see fit by means of
a public instrument filed in the office of the register of deeds, and should they disagree, they may
do so in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the
entire estate by means of an affidavit filed in the office of the register of deeds. The parties to an
extrajudicial settlement, whether by public instrument or by stipulation in a pending action for
partition, or the sole heir who adjudicates the entire estate to himself by means of an affidavit
shall file, simultaneously with and as a condition precedent to the filing of the public instrument, or
stipulation in the action for partition, or of the affidavit in the office of the register of deeds, a bond
with the said register of deeds, in an amount equivalent to the value of the personal property
involved as certified to under oath by the parties concerned and conditioned upon the payment of
any just claim that may be filed under section 4 of this rule. It shall be presumed that the decedent
left no debts if no creditor files a petition for letters of administration within two (2) years after the
death of the decedent.
The fact of the extrajudicial settlement or administration shall be published in a newspaper of
general circulation in the manner provided in the next succeeding section; but no extrajudicial
settlement shall be binding upon any person who has not participated therein or had no notice
thereof (Sec. 1).
(2) Extrajudicial partition of the estate shall be valid when the following conditions concur:
(a) The decedent left no will;
(b) The decedent left no debts, or if there were debts left, all had been paid;
(c) The heirs are all of age or if they are minors, the latter are represented by their judicial
guardian or legal representative;
(d) The partition was made by means of a public instrument or affidavit duly filed with the
Register of Deeds; and
(e) The fact of the extrajudicial settlement or administration shall be published in a newspaper of
general circulation.
(1) It shall be presumed that the decedent left no debts if no creditor files a petition for letters of
administration within two (2) years after the death of the decedent (Sec. 1).
(2) If it shall appear at any time within two (2) years after the settlement and distribution of an estate
in accordance with the provisions of either of the first two sections of this rule, that an heir or other
person has been unduly deprived of his lawful participation in the estate, such heir or such other
person may compel the settlement of the estate in the courts in the manner hereinafter provided
for the purpose of satisfying such lawful participation. And if within the same time of two (2) years,
it shall appear that there are debts outstanding against the estate which have not been paid, or
that an heir or other person has been unduly deprived of his lawful participation payable in
money, the court having jurisdiction of the estate may, by order for that purpose, after hearing,
settle the amount of such debts or lawful participation and order how much and in what manner
each distributee shall contribute in the payment thereof, and may issue execution, if
circumstances require, against the bond provided in the preceding section or against the real
estate belonging to the deceased, or both. Such bond and such real estate shall remain charged
with a liability to creditors, heirs, or other persons for the full period of two (2) years after such
distribution, notwithstanding any transfers of real estate that may have been made (Sec. 4).
(1) If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit
filed in the office of the register of deeds (Sec. 1).
(1) Whenever the gross value of the estate of a deceased person, whether he died testate or
intestate, does not exceed ten thousand pesos, and that fact is made to appear to the Court of
First Instance having jurisdiction of the estate by the petition of an interested person and upon
hearing, which shall be held not less than (1) month nor more than three (3) months from the date
of the last publication of a notice which shall be published once a week for three (3) consecutive
weeks in a newspaper of general circulation in the province, and after such other notice to
interested persons as the court may direct, the court may proceed summarily, without the
appointment of an executor or administrator, and without delay, to grant, if proper, allowance of
the will, if any there be, to determine who are the persons legally entitled to participate in the
estate, and to apportion and divide it among them after the payment of such debts of the estate as
the court shall then find to be due; and such persons, in their own right, if they are of lawful age
and legal capacity, or by their guardians or trustees legally appointed and qualified, if otherwise,
shall thereupon be entitled to receive and enter into the possession of the portions of the estate
so awarded to them respectively. The court shall make such order as may be just respecting the
costs of the proceedings, and all orders and judgments made or rendered in the course thereof
shall be recorded in the office of the clerk, and the order of partition or award, if it involves real
estate, shall be recorded in the proper register's office (Sec. 2).
(2) The court, before allowing a partition, may require the distributees, if property other than real is to
be distributed, to file a bond in an amount to be fixed by court, conditioned for the payment of any
just claim (Sec. 3).
(1) The creditor may ask for administration of enough property of the estate sufficient to pay the debt,
but the heirs cannot prevent such administration by paying the obligation (McMicking vs. Sy
Conbieng, 21 Phil. 211);
(2) Where the estate has been summarily settled, the unpaid creditor may, within the two-year period,
file a motion in the court wherein such summary settlement was had for the payment of his credit.
After the lapse of the two-year period, an ordinary action may be instituted against the distributees
within the statute of limitations, but not against the bond.
(3) The action to annul a deed of extrajudicial settlement on the ground of fraud should be filed within
four years from the discovery of the fraud (Gerona vs. De Guzman, L-19060, May 29, 1964).
(1) Probate of a will is a proceeding in rem. It cannot be dispensed with and substituted by another
proceeding, judicial or extrajudicial, without offending public policy. It is mandatory as no will shall
pass either real or personal property unless proved and allowed in accordance with the Rules. It
is imprescriptible, because it is required by public policy and the state could not have intended to
defeat the same by applying thereto the statute of limitation of actions (Guevara vs. Guevara, 74
Phil. 479).
(1) Any executor, devisee, or legatee named in a will, or any other person interested in the estate,
may, at any time after the death of the testator, petition the court having jurisdiction to have the
will allowed, whether the same be in his possession or not, or is lost or destroyed. The testator
himself may, during his lifetime, petition the court for the allowance of his will (Sec. 1, Rule 76).
(2) The court shall also cause copies of the notice of the time and place fixed for proving the will to be
addressed to the designated or other known heirs, legatees, and devisees of the testator resident
in the Philippines at their places of residence, and deposited in the post office with the postage
thereon prepaid at least twenty (20) days before the hearing, if such places of residence be
(1) A petition for the allowance of a will must show, so far as known to the petitioner:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs, legatees, and devisees of the testator or
decedent;
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters are prayed;
(e) If the will has not been delivered to the court, the name of the person having custody of it.
But no defect in the petition shall render void the allowance of the will, or the issuance of letters
testamentary or of administration with the will annexed (Sec. 2, Rule 76).
Reprobate; Requisites before will proved outside allowed in the Philippines; effects of probate
(1) Will proved outside Philippines may be allowed here. Wills proved and allowed in a foreign
country, according to the laws of such country, may be allowed, filed, and recorded by the proper
Court of First Instance in the Philippines (Sec. 1, Rule 77).
(2) When will allowed, and effect thereof. If it appears at the hearing that the will should be allowed in
the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the judge,
and attested by the seal of the court, to which shall be attached a copy of the will, shall be filed
and recorded by the clerk, and the will shall have the same effect as if originally proved and
allowed in such court (Sec. 3, Rule 77).
(3) When a will is thus allowed, the court shall grant letters testamentary, or letters of administration
with the will annexed, and such letters testamentary or of administration, shall extend to all the
estate of the testator in the Philippines. Such estate, after the payment of just debts and expenses
of administration, shall be disposed of according to such will, so far as such will may operate upon
it; and the residue, if any, shall be disposed of as is provided by law in cases of estates in the
(1) Letters testamentary is the appointment issued by a probate court, after the will has been
admitted to probate, to the executor named in the will to administer the estate of the deceased
testator, provided the executor named in the will is competent, accepts the trust and gives a bond
(Sec. 4).
Order of preference
(a) Any person interested in a will may state in writing the grounds why letters testamentary should
not issue to the persons named therein executors, or any of them, and the court, after hearing
upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time, be
filed for letters of administration with the will annexed (Sec. 1, Rule 79).
Powers and duties of Executors and Administrators; restrictions on the powers (Rule 84)
(1) An executor is the person nominated by a testator to carry out the directions and requests in his
will and to dispose of his property according to his testamentary provisions after his death (21 Am.
Jur. 369).
(2) An administrator is person appointed by the court, in accordance with the governing statute, to
administer and settle intestate estate and such testate estate as no competent executor was
designated by the testator.
(3) Executor or administrator to have access to partnership books and property. How right enforced.
The executor or administrator of the estate of a deceased partner shall at all times have access
to, and may examine and take copies of, books and papers relating to the partnership business,
and may examine and make invoices of the property belonging to such partnership; and the
surviving partner or partners, on request, shall exhibit to him all such books, papers, and property
in their hands or control. On the written application of such executor or administrator, the court
having jurisdiction of the estate may order any such surviving partner or partners to freely permit
the exercise of the rights, and to exhibit the books, papers, and property, as in this section
provided, and may punish any partner failing to do so for contempt (Sec. 1, Rule 84).
(4) Executor or administrator to keep buildings in repair. An executor or administrator shall maintain
in tenantable repair the houses and other structures and fences belonging to the estate, and
deliver the same in such repair to the heirs or devisees when directed so to do by the court (Sec.
2, Rule 84).
(5) Executor or administrator to retain whole estate to pay debts, and to administer estate not willed.
An executor or administrator shall have the right to the possession and management of the real
as well as the personal estate of the deceased so long as it is necessary for the payment of the
debts and the expenses of administration (Sec. 3, Rule 84).
(6) An administrator of an intestate cannot exercise the right of legal redemption over a portion of the
property owned in common sold by one of the other co-owners since this is not within the powers
of administration (Caro vs. CA, 113 SCRA 10). Where the estate of a deceased person is already
the subject of a testate or intestate proceeding, the administrator cannot enter into any transaction
involving it without any prior approval of the Court (Estate of Olave vs. Reyes, 123 SCRA 767).
The right of an executor or administrator to the possession and management of the real and
personal properties of the deceased is not absolute and can only be exercised so long as it is
necessary for the payment of the debts and expenses of administration (Manaquil vs. Villegas,
189 SCRA 335).
(1) When there is delay in granting letters testamentary or of administration by any cause including
an appeal from the allowance or disallowance of a will, the court may appoint a special
administrator to take possession and charge of the estate of the deceased until the questions
causing the delay are decided and executors or administrators appointed (Sec. 1, Rule 80).
(1) Administration revoked if will discovered. Proceedings thereupon. If after letters of administration
have been granted on the estate of a decedent as if he had died intestate, his will is proved and
allowed by the court, the letters of administration shall be revoked and all powers thereunder
cease, and the administrator shall forthwith surrender the letters to the court, and render his
account within such time as the court directs. Proceedings for the issuance of letters testamentary
or of administration under the will shall be as hereinbefore provided (Sec. 1, Rule 82).
(2) Court may remove or accept resignation of executor or administrator. Proceedings upon death,
resignation, or removal. If an executor or administrator neglects to render his account and settle
the estate according to law, or to perform an order or judgment of the court, or a duty expressly
provided by these rules, or absconds, or becomes insane, or otherwise incapable or unsuitable to
discharge the trust, the court may remove him, or, in its discretion, may permit him to resign.
When an executor or administrator dies, resigns, or is removed the remaining executor or
administrator may administer the trust alone, unless the court grants letters to someone to act
with him. If there is no remaining executor or administrator, administration may be granted to any
suitable person (Sec. 2, Rule 82).
(1) Administration is for the purpose of liquidation of the estate and distribution of the residue among
the heirs and legatees. Liquidation means the determination of all the assets of the estate and
payment of all debts and expenses.
(2) The purpose of presentation of claims against decedents of the estate in the probate court is to
protect the estate of deceased persons. That way, the executor or administrator will be able to
examine each claim and determine whether it is a proper one which should be allowed. Further,
the primary object of the provisions requiring presentation is to apprise the administrator and the
probate court of the existence of the claim so that a proper and timely arrangement may be made
for its payment in full or by pro rata portion in the due course of the administration, inasmuch as
upon the death of a person, his entire estate is burdened with the payment of all his debts and no
creditor shall enjoy any preference or priority; all of them shall share pro rata in the liquidation of
the estate of the deceased.
(1) In the notice provided in the preceding section, the court shall state the time for the filing of claims
against the estate, which shall not be more than twelve (12) nor less than six (6) months after the
date of the first publication of the notice. However, at any time before an order of distribution is
entered, on application of a creditor who has failed to file his claim within the time previously
limited, the court may, for cause shown and on such terms as are equitable, allow such claim to
be filed within a time not exceeding one (1) month (Sec. 2).
Statute of Non-claims
(1) The rule requires certain creditors of a deceased person to present their claims for examination
and allowance within a specified period, the purpose thereof being to settle the estate with
dispatch, so that the residue may be delivered to the persons entitled thereto without their being
afterwards called upon to respond in actions for claims, which, under the ordinary statute of
limitations, have not yet prescribed (Santos vs. Manarang, 27 Phil. 213).
(1) If the executor or administrator has a claim against the estate he represents, he shall give notice
thereof, in writing, to the court, and the court shall appoint a special administrator, who shall, in
the adjustment of such claim, have the same power and be subject to the same liability as the
general administrator or executor in the settlement of other claims. The court may order the
executor or administrator to pay to the special administrator necessary funds to defend such claim
(Sec. 8).
(1) If there are sufficient properties, the debts shall be paid, thus:
(a) All debts shall be paid in full within the time limited for the purpose (Sec. 1);
(b) If the testator makes provision by his will, or designates the estate to be appropriated for the
payment of debts they shall be paid according to the provisions of the will, which must be
respected (Sec. 2);
(c) If the estate designated in the will is not sufficient, such part of the estate as is not disposed of
by will shall be appropriated for the purpose (Sec. 2);
(d) The personal estate not disposed of by will shall be first chargeable with payment of debts
and expenses (Sec. 3);
(e) If the personal estate is not sufficient, or its sale would be detrimental to the participants of the
estate, the real estate not disposed of by will shall be sold or encumbered for that purpose
(Sec. 3);
(f) Any deficiency shall be met by contributions from devisees, legatees and heirs who have
entered into possession of portions of the estate before debts and expenses have been paid
(Sec. 6);
(g) The executor or administrator shall retain sufficient estate to pay contingent claims when the
same becomes absolute (Sec. 4).
(2) If the estate is insolvent, the debts shall be paid in the following manner:
(a) The executor or administrator shall pay the debts in accordance with the preference of credits
established by the Civil Code (Sec. 7);
(b) No creditor of any one class shall receive any payment until those of the preceding class are
paid (Sec. 8);
(c) If there are no assets sufficient to pay the credits of any one class of creditors, each creditor
within such class shall be paid a dividend in proportion to his claim (Sec. 8);
(d) Where the deceased was a nonresident, his estate in the Philippines shall be disposed of in
such a way that creditors in the Philippines and elsewhere may receive an equal share in
proportion to their respective credits (Sec. 9);
(e) Claims duly proved against the estate of an insolvent resident of the Philippines, the executor
or administrator, having had the opportunity to contest such claims, shall e included in the
certified list of claims proved against the deceased. The owner of such claims shall be entitled
to a just distribution of the estate in accordance with the preceding rules if the property of
such deceased person in another country is likewise equally apportioned to the creditors
residing in the Philippines and other creditors, according to their respective claims (Sec. 10);
(f) It must be noted that the payments of debts of the decedent shall be made pursuant to the
order of the probate court (Sec. 11).
(3) Time for paying debts and legacies fixed, or extended after notice, within what periods. On
granting letters testamentary or administration the court shall allow to the executor or
administrator a time for disposing of the estate and paying the debts and legacies of the
deceased, which shall not, in the first instance, exceed one (1) year; but the court may, on
application of the executor or administrator and after hearing on such notice of the time and place
therefor given to all persons interested as it shall direct, extend the time as the circumstances of
the estate require not exceeding six (6) months for a single extension nor so that the whole period
allowed to the original executor or administrator shall exceed two (2) years (Sec. 15).
Art. 2241. With reference to specific movable property of the debtor, the following claims or liens shall
be preferred:
(1) Duties, taxes and fees due thereon to the State or any subdivision thereof;
(2) Claims arising from misappropriation, breach of trust, or malfeasance by public officials
committed in the performance of their duties, on the movables, money or securities obtained by
them;
(3) Claims for the unpaid price of movables sold, on said movables, so long as they are in the
possession of the debtor, up to the value of the same; and if the movable has been resold by
the debtor and the price is still unpaid, the lien may be enforced on the price; this right is not
lost by the immobilization of the thing by destination, provided it has not lost its form, substance
and identity; neither is the right lost by the sale of the thing together with other property for a
lump sum, when the price thereof can be determined proportionally;
(4) Credits guaranteed with a pledge so long as the things pledged are in the hands of the creditor,
or those guaranteed by a chattel mortgage, upon the things pledged or mortgaged, up to the
value thereof;
(5) Credits for the making, repair, safekeeping or preservation of personal property, on the movable
thus made, repaired, kept or possessed;
(6) Claims for laborers' wages, on the goods manufactured or the work done;
(7) For expenses of salvage, upon the goods salvaged;
(8) Credits between the landlord and the tenant, arising from the contract of tenancy on shares, on
the share of each in the fruits or harvest;
(9) Credits for transportation, upon the goods carried, for the price of the contract and incidental
expenses, until their delivery and for thirty days thereafter;
(10) Credits for lodging and supplies usually furnished to travellers by hotel keepers, on the
movables belonging to the guest as long as such movables are in the hotel, but not for money
loaned to the guests;
(11) Credits for seeds and expenses for cultivation and harvest advanced to the debtor, upon the
fruits harvested;
(12) Credits for rent for one year, upon the personal property of the lessee existing on the
immovable leased and on the fruits of the same, but not on money or instruments of credit;
(13) Claims in favor of the depositor if the depositary has wrongfully sold the thing deposited, upon
the price of the sale.
In the foregoing cases, if the movables to which the lien or preference attaches have been
wrongfully taken, the creditor may demand them from any possessor, within thirty days from the
unlawful seizure.
Art. 2242. With reference to specific immovable property and real rights of the debtor, the following
claims, mortgages and liens shall be preferred, and shall constitute an encumbrance on the
immovable or real right:
(1) Taxes due upon the land or building;
(2) For the unpaid price of real property sold, upon the immovable sold;
(3) Claims of laborers, masons, mechanics and other workmen, as well as of architects, engineers
and contractors, engaged in the construction, reconstruction or repair of buildings, canals or
other works, upon said buildings, canals or other works;
(4) Claims of furnishers of materials used in the construction, reconstruction, or repair of buildings,
canals or other works, upon said buildings, canals or other works;
(5) Mortgage credits recorded in the Registry of Property, upon the real estate mortgaged;
(6) Expenses for the preservation or improvement of real property when the law authorizes
reimbursement, upon the immovable preserved or improved;
(7) Credits annotated in the Registry of Property, in virtue of a judicial order, by attachments or
executions, upon the property affected, and only as to later credits;
(8) Claims of co-heirs for warranty in the partition of an immovable among them, upon the real
property thus divided;
(9) Claims of donors or real property for pecuniary charges or other conditions imposed upon the
donee, upon the immovable donated;
(10) Credits of insurers, upon the property insured, for the insurance premium for two years.
Art. 2243. The claims or credits enumerated in the two preceding articles shall be considered as
mortgages or pledges of real or personal property, or liens within the purview of legal provisions
governing insolvency. Taxes mentioned in No. 1, article 2241, and No. 1, article 2242, shall first be
satisfied.
(1) No action upon a claim for the recovery of money or debts or interest thereon shall be
commenced against the executor or administrator (Sec. 1).
(1) An action to recover real or personal property, or an interest therein, from the estate, or to enforce
a lien thereon, and actions to recover damages for an injury to person or property, real or
personal, may be commenced against the executor or administrator (Sec. 1).
(2) Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be
the duty of his counsel to inform the court within thirty (30) days after such death of the fact
thereof, and to give the name and address of his legal representative or representatives. Failure
of counsel to comply with this duty shall be a ground for disciplinary action. The heirs of the
deceased may be allowed to be substituted for the deceased, without requiring the appointment
of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice. If no legal representative is named by
the counsel for the deceased party, or if the one so named shall fail to appear within the specified
period, the court may order the opposing party, within a specified time, to procure the
appointment of an executor or administrator for the estate of the deceased and the latter shall
immediately appear for and on behalf of the deceased. The court charges in procuring such
appointment, if defrayed by the opposing party, may be recovered as costs (Sec. 16, Rule 3).
(3) When the action is for recovery of money arising from contract, express or implied, and the
defendant dies before entry of final judgment in the court in which the action was pending at the
time of such death, it shall not be dismissed but shall instead be allowed to continue until entry of
final judgment. A favorable judgment obtained by the plaintiff therein shall be enforced in the
manner especially provided in these Rules for prosecuting claims against the estate of a
deceased person (Sec. 20, Rule 3).
Requisites before creditor may bring an action for recovery of property fraudulently conveyed by the
deceased
(1) For the creditor to file and action to recover property fraudulently conveyed by the deceased, the
following requisites must be present:
(a) There is a deficiency of assets in the hands of an executor or administrator for the payment of
debts and expenses of administration;
(b) The deceased in his lifetime had made or attempted to make a fraudulent conveyance of his
real or personal property, or a right or interest therein, or a debt or credit, with intent to
defraud his creditors or to avoid any right, debt or duty; or had so conveyed such property,
right, debt, or credit that by law the conveyance would be void as against his creditors;
(c) The subject of the attempted conveyance would be liable to attachment by any of them in his
lifetime;
(d) The executor or administrator has shown to have no desire to file the action or failed to
institute the same within a reasonable time;
(e) Leave is granted by the court to the creditor to file the action;
(f) A bond is filed by the creditor as prescribed in the Rules;
(g) The action by the creditor is in the name of the executor or administrator (Sec. 10).
(1) Before there could be a distribution of the estate, the following two stages must be followed:
(a) Payment of obligations (liquidation of estate) under the Rules, the distribution of a
decedents assets may only be ordered under any of the following three circumstances: (1)
when the inheritance tax, among other is paid; (2) when a sufficient bond is given to meet the
payment of the inheritance tax and all other obligations; and (3) when the payment of the said
tax and all other obligations has been provided for; and
(b) Declaration of heirs there must first be declaration of heirs to determine to whom the residue
of the estate should e distributed. A separate action for the declaration of heirs is not proper.
Liquidation
Sec. 1. When order for distribution of residue made. When the debts, funeral charges, and expenses
of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate
in accordance with law, have been paid, the court, on the application of the executor or
administrator, or of a person interested in the estate, and after hearing upon notice, shall assign
the residue of the estate to the persons entitled to the same, naming them and the proportions, or
parts, to which each is entitled, and such person may demand and recover their respective shares
from the executor or administrator, or any other person having the same in his possession. If
there is a controversy before the court as to who are the lawful heirs of the deceased person or as
to the distributive shares to which each person is entitled under the law, the controversy shall be
heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations above mentioned has been
made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by
the court, conditioned for the payment of said obligations within such time as the court directs.
Sec. 2. Questions as to advancement to be determined. Questions as to advancement made, or
alleged to have been made, by the deceased to any heir may be heard and determined by the
court having jurisdiction of the estate proceedings; and the final order of the court thereon shall be
binding on the person raising the questions and on the heir.
Sec. 3. By whom expenses of partition paid. If at the time of the distribution the executor or
administrator has retained sufficient effects in his hands which may lawfully be applied for the
expenses of partition of the properties distributed, such expenses of partition may be paid by such
executor or administrator when it appears equitable to the court and not inconsistent with the
intention of the testator; otherwise, they shall be paid by the parties in proportion to their
respective shares or interest in the premises, and the apportionment shall be settled and allowed
by the court, and, if any person interested in the partition does not pay his proportion or share, the
court may issue an execution in the name of the executor or administrator against the party not
paying for the sum assessed.
Project of Partition
(1) Project of partition is a document prepared by the executor or administrator setting forth the
manner in which the estate of the deceased is to be distributed among the heirs. If the estate is a
testate estate, the project of partition must conform to the terms of the will; if intestate, the project
of partition must be in accordance with the provisions of the Civil Code (Camia de Reyes vs.
Reyes de Ilano, 63 Phil. 629).
(1) If there is a controversy before the court as to who are the lawful heirs of the deceased person or
as to the distributive shares to which each person is entitled under the law, the controversy shall
be heard and decided as in ordinary cases (Sec. 1).
(2) The better practice for the heir who has not received his share is to demand his share through a
proper motion in the same probate or administration proceedings, or for reopening of the probate
or administrative proceedings if it had already been closed, and not through an independent
action, which would be tried by another court or judge (Ramos vs. Octuzar, 89 Phil. 730).
(1) The only instances when the probate court may issue a writ of execution are as follows:
(a) To satisfy the contributive shares of devisees, legatees and heirs in possession of the
decedents assets (Sec. 6, Rule 88);
(b) To enforce payment of expenses of partition (Sec. 3, Rule 90); and
(c) To satisfy the costs when a person is cited for examination in probate proceedings (Sec. 13,
Rule 132).
(1) A trustee appointed by the court is required to furnish a bond and the terms of the trust or a
statute may provide that a trustee appointed by a court shall be required to furnish a bond in order
to qualify him to administer the trust (54 Am. Jur. 425). However, the court may until further order
exempt a trustee under a will from giving a bond when the testator has directed or requested such
exemption or when all persons beneficially interested in the trust, being of full age, request the
exemption. Such exemption may be cancelled by the court at any time, and the trustee required to
forthwith file a bond (Sec. 5). If the trustee fails to furnish a bond as required by the court, he fails
to qualify as such. Nonetheless the trust is not defeated by such a failure to give bond.
(2) The following conditions shall be deemed to be a part of the bond whether written therein or not:
(a) That the trustee will make and return to the court, at such time as it may order, a true
inventory of all the real and personal estate belonging to him as trustee, which at the time of
the making of such inventory shall have come to his possession or knowledge;
(b) That he will manage and dispose of all such estate, and faithfully discharge his trust in
relation thereto, according to law and the will of the testator or the provisions of the instrument
or order under which he is appointed;
(c) That he will render upon oath at least once a year until his trust is fulfilled, unless he is
excused therefrom in any year by the court, a true account of the property in his hands and of
the management and disposition thereof, and will render such other accounts as the court
may order;
(d) That at the expiration of his trust he will settle his accounts in court and pay over and deliver
all the estate remaining in his hands, or due from him on such settlement, to the person or
persons entitled thereto.
But when the trustee is appointed as a successor to a prior trustee, the court may dispense
with the making and return of an inventory, if one has already been filed, and in such case the
condition of the bond shall be deemed to be altered accordingly (Sec. 6).
(1) A trustee may be removed upon petition to the proper RTC of the parties beneficially interested,
after due notice to the trustee and hearing, if it appears essential in the interests of the petitioners.
The court may also, after due notice to all persons interested, remove a trustee who is insane or
otherwise incapable of discharging his trust or evidently unsuitable therefor. A trustee, whether
appointed by the court or under a written instrument, may resign his trust if it appears to the court
proper to allow such resignation (Sec. 8).
(2) A trustee whose acts or omissions are such as to show a want of reasonable fidelity will be
removed by the court and where trust funds are to be invested by the trustee, neglect to invest
constitutes of itself a breach of trust, and is a ground for removal (Gisborn vs. Cavende, 114 US
464).
(1) The proper Regional Trial Court may, upon petition of the parties beneficially interested and after
due notice to the trustee and hearing, remove a trustee if such removal appears essential in the
interests of the petitioners. The court may also, after due notice to all persons interested, remove
a trustee who is insane or otherwise incapable of discharging his trust or evidently unsuitable
(1) A trustee appointed by the RTC shall have the same rights, powers, and duties as if he had been
appointed by the testator. No person succeeding to a trust as executor or administrator of a
former trustee shall be required to accept such trust (Sec. 2).
(2) Such new trustee shall have and exercise the same powers, rights, and duties as if he had been
originally appointed, and the trust estate shall vest in him in like manner as it had vested or would
have vested, in the trustee in whose place he is substituted; and the court may order such
conveyance to be made by the former trustee or his representatives, or by the other remaining
trustees, as may be necessary or proper to vest the trust estate in the new trustee, either alone or
jointly with the others (Sec. 3).
(1) Escheat is a proceeding whereby the real and personal property of a deceased person in the
Philippines, become the property of the state upon his death, without leaving any will or legal
heirs (21 CJS, Sec. 1, p. 848).
When to file
(1) When a person dies intestate, seized of real or personal property in the Philippines, leaving no
heir or person by law entitled to the same, the Solicitor General or his representative in behalf of
the Republic of the Philippines, may file a petition in the Court of First Instance of the province
where the deceased last resided or in which he had estate, if he resided out of the Philippines,
setting forth the facts, and praying that the estate of the deceased be declared escheated (Sec.
1).
(1) In order that a proceeding for escheat may prosper, the following requisites must be present:
(a) That a person died intestate;
(b) That he left no heirs or person by law entitled to the same; and
(c) That the deceased left properties (City of Manila vs. Archbishop of Manila, 36 Phil. 815).
(1) When a petition for escheat does not state facts which entitle the petitioner to the remedy prayed
for, and even admitting them hypothetically, it is clear that there is no ground for the court to
proceed to the inquisition provided by law, an interested party should not be disallowed from filing
a motion to dismiss the petition which is untenable from all standpoints. And when the motion to
dismiss is entertained upon this ground, the petition may be dismissed unconditionally and the
petitioner is not entitled to be afforded an opportunity to amend his petition (Go Poco Grocery vs.
Pacific Biscuit Co., 65 Phil. 443).
(2) While the Rules do not in fact authorize the filing of a motion to dismiss the petition presented for
that purpose, and the Rules permitting the interposition of a motion to dismiss to the complaint
and answer, respectively, are not applicable to special proceedings, nevertheless, there is no
reason of a procedural nature which prevents the filing of a motion to dismiss based upon any of
the grounds provided for by law for a motion to dismiss the complaint. In such a case, the motion
to dismiss plays the role of a demurrer and the court should resolve the legal questions raised
therein (Municipal Council of San Pedro, Laugna vs. Colegio de San Jose, 65 Phil. 318) .
(1) Guardianship is the power of protective authority given by law and imposed on an individual who
is free and in the enjoyment of his rights, over one whose weakness on account of his age or
other infirmity renders him unable to protect himself (Cyclopedic Law Dictionary, 908).
Guardianship may also describe the relation subsisting between the guardian and the ward. It
involves the taking of possession of an management of, the estate of another unable to act for
himself.
(2) A guardian is a person lawfully invested with power and charged with the duty of taking care of a
person who for some peculiarity or status or defect of age, understanding or self-control is
considered incapable of administering his own affairs (Blacks Law Dictionary, Fifth Editoin).
(3) Kinds of guardians:
(a) According to scope or extent
a) Guardian of the person one who has been lawfully invested with the care of the person
of minor whose father is dead. His authority is derived out of that of the parent;
b) Guardian of the property that appointed by the court to have the management of the
estate of a minor or incompetent person;
c) General guardians those appointed by the court to have the care and custody of the
person and of all the property of the ward.
(b) According to constitution
1) Legal those deemed as guardians without need of a court appointment (Art. 225,
Family Court);
2) Guardian ad litem those appointed by courts of justice to prosecute or defend a
minor, insane or person declared to be incompetent, in an action in court; and
3) Judicial those who are appointed by the court in pursuance to law, as guardian for
insane persons, prodigals, minor heirs or deceased was veterans and other
incompetent persons.
(4) Under the Family Courts Act of 1997 (RA 8369), the Family Courts are vested with exclusive
original jurisdiction over the following cases:
(a) Criminal case where one or more of the accused is below 18 years of age but less than 9
years of age, or where one or more of the victims is a minor at the time of the commission of
the offense;
(b) Petitions for guardianship, custody of children, habeas corpus in relation to the latter;
(c) Petitions for adoption of children and the revocation thereof;
(d) Complaints for annulment of marriage, declaration of nullity of marriage and those relating to
marital status and property relations of husband and wife or those living together under
different status and agreements, and petitions for dissolution of conjugal partnership of gains;
(e) Actions for support and acknowledgment;
(f) Summary judicial proceedings brought under the provisions of EO 209, the Family Code;
(g) Petitions for declaration of status of children as abandoned, dependent or neglected children,
petitions for voluntary or involuntary commitment of children; the suspension, termination, or
restoration of parental authority and other cases cognizable under PD 603, EO 56 (s. 1986),
and other related laws;
(h) Petitions for the constitution of family home;
(i) Cases against minors cognizable under the Dangerous Drugs Act, as amended;
(j) Violations of RA 7610, the Anti-Child Abuse Law, as amended by RA 7658;
(k) Cases of domestic violence against women and children;
(1) Under Sec. 1, Rule 94, the conditions for the bond of a guardian are:
(a) To file with the court complete inventory of the estate of the ward within 3 months;
(b) To faithfully execute the duties of his trust to manage and dispose of the estate according to
the Rules for the best interests of the ward, and to provide for the proper use, custody, and
education of the ward;
(c) To render a true account of all the estate, and of the management and disposition of the
same;
(d) To settle his accounts with the court and deliver over all the estate remaining in his hands to
the person entitled thereto;
(e) To perform all orders of the court by him to be performed (Sec. 1; Sec. 14, AM 03-02-05-SC).
(1) The father and mother shall jointly exercise legal guardianship over the person and property of
their unemancipated common child without the necessity of a court appointment. The Rule shall
be suppletory to the provisions of the Family Code on guardianship (Sec. 1).
(2) On grounds authorized by law, any relative or other person on behalf of a minor, or the minor
himself if 14 years of age or over, may petition the Family Court for the appointment of a general
guardian over the person or property, or both, of such minor. The petition may also be filed by the
Secretary of DSWD and of the DOH in the case of an insane minor who needs to be hospitalized
(Sec. 1).
(3) Grounds of petition (Sec. 4):
(a) Death, continued absence, or incapacity of his parents;
(b) Suspension, deprivation or termination of parental authority;
(c) Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental
authority; or
(d) When the best interest of the minor so require.
(4) Qualifications of guardians (Sec. 4);
(a) Moral character;
(b) Physical, mental and psychological condition;
(c) Financial status;
(d) Relationship of trust with the minor;
(e) Availability to exercise the powers and duties of a guardian for the full period of the
guardianship;
(f) Lack of conflict of interest with the minor; and
(g) Ability to manage the property of the minor.
(5) Order of preference in the appointment of guardian or the person and/or property of minor (Sec.
6):
(a) The surviving grandparent and in case several grandparents survive, the court shall select
any of them taking into account all relevant considerations;
(b) The oldest brother or sister of the minor over 21 years of age, unless unfit or disqualified;
(c) The actual custodian of the minor over 21 years of age, unless unfit or disqualified; and
(d) Any other person, who in the sound discretion of the court, would serve the best interests of
the minor.
(6) Factors to consider in determining custody:
(a) Any extrajudicial agreement which the parties may have bound themselves to comply with
respecting the rights of the minor to maintain direct contact with the non-custodial parent on a
(1) Adoption is a juridical act which creates between two persons a relationship similar to that which
results from legitimate paternity (Prasnick vs. Republic, 98 Phil. 669).
(2) Adoption is a juridical act, a proceeding in rem, which creates between the two persons a
relationship similar to that which results from legitimate paternity and filiation.
(3) Adoption is not an adversarial proceeding. An adversarial proceeding is one having opposing
parties, contested, as distinguished from an ex parte application, one of which the party seeking
relief has given legal warning to the other party and afforded the latter an opportunity to contest it
excludes an adoption proceeding. In adoption, there is no particular defendant to speak of since
the proceeding involves the status of a person it being an action in rem.
Decree of Adoption: Issued by Philippine Family Decree of Adoption: Issued by a foreign court.
Court.
Effects of adoption
(1) Transfer of parental authority except in cases where the biological parent is the spouse of the
adopter, the parental authority of the biological parents shall terminate and the same shall be
vested in the adopters (Sec. 16).
(2) Legitimacy the adoptee shall be considered the legitimate son/daughter of the adopter(s) for all
intents and purposes and as such is entitled to all the rights and obligations provided by law to
legitimate sons/daughters born to them without discrimination of any kind (Sec. 17).
(3) Successional rights
(a) In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights
of succession without distinction from legitimate filiation (Sec. 18);
(b) However, if the adoptee and his/her biological parent(s) had left a will, the law on
testamentary succession shall govern (Sec. 18);
(c) Art. 18(3) of the Family Code and Sec. 18, Art V of RA 8552 provide that the adoptee remains
an intestate heir of his/her biological parent (Obiter Dictum in In re In the Matter of Adoption of
Stephanie Naty Astorga Garcia, 454 SCRA 541).
(4) Issuance of new certificate and first name and surname of adoptee
(a) The adoption decree shall state the name by which the child is to be known (Sec. 13). An
amended certificate of birth shall be issued by the Civil Registry attesting to the fact that the
adoptee is the child of the adopter(s) by being registered with his/her surname (Sec. 14);
(b) The original certificate of birth shall be stamped cancelled with the annotation of the
issuance of an amended birth certificate in its place and shall be sealed in the civil registry
records. The new birth certificate to be issued to the adoptee shall not bear any notation that
it is an amended issue (Sec. 14);
(c) All records, books, and papers relating to the adoption cases in the files of the court, the
DSWD, or any other agency or institution participating in the adoption proceedings shall be
kept strictly confidential and the court may order its release under the following conditions
only: (1) the disclosure of the information to a third person is necessary for purposes
connected with or arising out of the adoption; (2) the disclosure will be for the best interest of
the adoptee; and (3) the court may restrict the purposes for which it may be used (Sec. 15).
(1) Parental authority of the adoptees biological parent(s), if known, or the legal custody of the
DSWD shall be restored if the adoptee is still a minor or incapacitated;
(2) Reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be
extinguished;
(3) Cancellation of the amended certificate of birth of the adoptee and restoration of his/her original
birth certificate; and
(4) Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of
judicial rescission. Vested rights acquired prior to judicial rescission shall be respected (Sec. 20).
(1) Inter-Country Adoption refers to the socio-legal process of adopting a Filipino child by a foreigner
or a Filipino citizen permanently residing abroad where the petition is filed, the supervised trial
custody is undertaken, and the decree of adoption is issued in the Philippines (Sec. 3[a]).
When allowed
(1) Inter-country adoptions are allowed when the same shall prove beneficial to the childs best
interests, and shall serve and protect his/her fundamental rights (Sec. 2).
(2) It is allowed when all the requirements and standards set forth under RA 8043 are complied with.
(1) An application to adopt a Filipino child shall be filed either with the Philippine Regional Trial Court
having jurisdiction over the child, or with the Board, through an intermediate agency, whether
governmental or an authorized and accredited agency, in the country of the prospective adoptive
parents, which application shall be in accordance with the requirements as set forth in the
implementing rules and regulations (Sec. 10).
(1) In case of custody cases of minor children, the court after hearing and bearing in mind the best
interest of the minor, shall award the custody as will be for the minors best interests.
(2) Best interests of the child means the totality of the circumstances and conditions as are most
congenial to the survival, protection, and feelings of security of the child and most encouraging to
his physical, psychological, and emotional development. It also means the least detrimental
available alternative for safeguarding the growth and development of the child (Sec. 4[g], AM 004-
07-SC).
(1) Writ of habeas corpus is a writ which has been esteemed to the best and only sufficient defense
of personal freedom having for its object the speedy release by judicial decree of persons who are
illegally restrained of their liberty, or illegally detained from the control of those who are entitled to
nd
their custody (Ballentines Law Dictionary, 2 Edition; Nava vs. Gatmaitan, 90 Phil. 172).
(1) Application for the writ shall be by petition signed and verified either by the party for whose relief it
is intended, or by some person on his behalf, and shall set forth:
(a) That the person in whose behalf the application is made is imprisoned or restrained of his
liberty;
(1) When the person to be produced is imprisoned or restrained by an officer, the person who makes
the return shall state therein, and in other cases the person in whose custody the prisoner is
found shall state, in writing to the court or judge before whom the writ is returnable, plainly and
unequivocably:
(a) Whether he has or has not the party in his custody or power, or under restraint;
(b) If he has the party in his custody or power, or under restraint, the authority and the true and
whole cause thereof, set forth at large, with a copy of the writ, order, execution, or other
process, if any, upon which the party is held;
(c) If the party is in his custody or power or is restrained by him, and is not produced, particularly
the nature and gravity of the sickness or infirmity of such party by reason of which he cannot,
without danger, be brought before the court or judge;
(d) If he has had the party in his custody or power, or under restraint, and has transferred such
custody or restraint to another, particularly to whom, at what time, for what cause, and by
what authority such transfer was made (Sec. 10).
(1) Instances when the writ of habeas corpus is not proper are:
(a) For asserting or vindicating denial of right to bail (Galvez vs. CA, 237 SCRA 685);
(b) For correcting errors in appreciation of facts or appreciation of law where the trial court had
no jurisdiction over the cause, over the person of the accused, and to impose the penalty
provided for by law, the mistake committed by the trial court, in the appreciation of the facts
and/or in the appreciation of the law cannot be corrected by habeas corpus (Sotto vs. Director
of Prisons, May 30, 1962);
(c) Once a person detained is duly charged in court, he may no longer file a petition for habeas
corpus. His remedy would be to quash the information or warrant (Rodriguez vs. Judge
Bonifacio, Nov. 26, 2000).
(1) If it appears that the person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge or by virtue of a judgment or order of a court of record,
and that the court or judge had jurisdiction to issue the process, render the judgment, or make the
order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the
person shall not be discharged by reason of any informality or defect in the process, judgment, or
order. Nor shall anything in this rule be held to authorize the discharge of a person charged with
or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful
judgment (Sec. 4).
Rules on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (AM No.
03-04-04-SC)
(1) The Family Court has exclusive original jurisdiction to hear petitions for custody of minors and the
issuance of the writ of habeas corpus in relation to custody of minors. The Court is tasked with the
duty of promulgating special rules or procedure for the disposition of family cases with the best
interests of the minor as primary consideration, taking into account the United Nations Convention
on the Rights of the Child. It should be clarified that the writ is issued by the Family Court only in
relation to custody of minors. An ordinary petition for habeas corpus should be filed in the regular
Court. The issue of child custody may be tackled by the Family Court without need of a separate
petition for custody being filed.
(2) The Committee chose the phrase any person claiming custody as it is broad enough to cover
the following: (a) the unlawful deprivation of the custody of a minor; or (b) which parent shall have
the care and custody of a minor, when such parent is in the midst of nullity, annulment or legal
separation proceedings (Sec. 2).
(3) The hearings on custody of minors may, at the discretion of the court, be closed to the public and
the records of the case shall not be released to non-parties without its approval (Sec. 21).
(4) A motion to dismiss the petition is not allowed except on the ground of lack of jurisdiction over the
subject matter or over the parties. Any other ground that might warrant the dismissal of the
petition shall be raised as an affirmative defense in the answer (Sec. 6).
(5) Upon the filing of the verified answer of the expiration of the period to file it, the court may order a
social worker to make a case study of the minor and the parties and to submit a report and
recommendation to the court at least three days before the scheduled pre-trial (Sec. 8).
(6) Hold Departure Order The minor child subject of the petition shall not be brought out of the
country without prior order from the court while the petition is pending. The court motu propio or
upon application under oath may issue ex parte a hold departure order addressed to the BID of
the DOJ a copy of the hold departure order within 24 hours from its issuance and through the
fastest available means of transmittal (Sec.16).
Coverage; Distinguish from habeas corpus and habeas data; Who may file; Contents of return; Effects of
failure to file return; Procedure for hearing; Institution of separate action; Effect of filing of a criminal
action; Consolidation; Interim reliefs available to petitioner and respondent; Quantum of proof in
application for issuance of writ of Amparo
Defenses Not Pleaded Deemed Waived. All defenses shall be raised in the return, otherwise, they
shall be deemed waived (Sec. 10).
Scope of writ; Availability of writ; Distinguish from Habeas Corpus and Amparo; Who may file; Contents of
the petition; Consolidation; Effect of filing of a criminal action; Institution of separate action
(1) A hearing in chambers may be conducted where the respondent invokes the defense that the
release of the data or information in question shall compromise national security or state secrets,
or when the data or information cannot be divulged to the public due to its nature or privileged
character (Sec. 12).
(g) When the name is ridiculous, dishonorable or extremely difficult to write or pronounce;
(h) When the change is a legal consequence of legitimation or adoption;
(i) When the change will avoid confusion;
(j) When one has continuously used and been known since childhood by a Filipino name and was
unaware of alien parentage;
(k) When the change is based on a sincere desire to adopt a Filipino name to erase signs of former
alienage, all in good faith and without prejudice to anybody; and
(l) 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 would prejudice public interest
(Republic vs. Hernandez, 68 SCAD 279); Republic vs. Avila, 122 SCRA 483).
(a) The purpose of the Rule is to allow the court to appoint an administrator or representative to take care
of the property of the person who is sought to be judicially declared absent. It also aims to have the
court appoint the present spouse as administrator or administratrix of the absent spouses properties,
or for the separation of properties of the spouses.
Who may file; when to file
(1) The following may file an application for the declaration of absence of a person:
(a) Spouse present;
(b) Heirs instituted in a will, who may present an authentic copy of the same;
(1) Upon good and valid grounds, the following entries in the civil register may be cancelled or
corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments
of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h)
adoptions; (i) acknowledgments of natural children; (j) naturalization (k) election, loss or recovery
of citizenship (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation
of a minor; and (a) changes of name (Sec. 2, Rule 108).
(2) The petition for change of first names or nicknames may be allowed when such names or
nicknames are ridiculous, tainted with dishonor or extremely difficult to write or pronounce; or the
new name or nickname has been used habitually and continuously petitioner and has been
publicly known by that first name or nickname in the community; or the change will avoid
confusion (Sec. 4, RA 9048).
(1) An interested person may appeal in special proceedings from an order or judgment rendered by a
Court of First Instance or a Juvenile and Domestic Relations Court, where such order or
judgment:
(a) Allows or disallows a will;
(b) Determines who are the lawful heirs of a deceased person, or the distributive share of the
estate to which such person is entitled;
(c) Allows or disallows, in whole or in part, any claim against the estate of a deceased person, or
any claim presented on behalf of the estate in offset to a claim against it;
(d) Settles the account of an executor, administrator, trustee or guardian;
(e) Constitutes, in proceedings relating to the settlement of the estate of a deceased person, or
the administration of a trustee or guardian, a final determination in the lower court of the rights
of the party appealing, except that no appeal shall be allowed from the appointment of a
special administrator; and
(f) Is the final order or judgment rendered in the case, and affects the substantial rights of the
person appealing, unless it be an order granting or denying a motion for a new trial or for
reconsideration (Sec. 1).
When to appeal
(1) Appeals in special proceedings necessitate a record on appeal as the original record should
remain with the trial court, hence the reglementary period of thirty (30) days is provided for the
perfection of appeals in special proceedings.
(1) While under the concept in ordinary civil actions some of the orders stated in Sec. 1 may be
considered interlocutory, the nature of special proceedings declares them as appealable orders,
as exceptions to the provisions of Sec., Rule 41. Thus:
(a) Ordinary appeal. The appeal to the CA in cases decided by the RTC in the exercise of its
original jurisdiction shall be taken by filing a notice of appeal with the court which rendered
the judgment or final order appealed from and serving a copy thereof upon the adverse party.
No record on appeal shall be required except in special proceedings and other cases of
multiple or separate appeals where the law or the Rules so require. In such cases, the record
on appeal shall be filed and served in like manner.
(b) Petition for review. The appeal to the CA in cases decided by the RTC in the exercise of its
appellate jurisdiction shall be by petition for review in accordance with Rule 42.
(c) Petition for review on certiorari. In all cases where only questions of law are raised or
involved, the appeal shall be to the SC by petition for review on certiorari in accordance with
Rule 45.
General Matters
Distinguish Jurisdiction over subject matter from jurisdiction over person of the accused
(1) Jurisdiction over the subject matter is determined upon the allegations made in the complaint,
irrespective of whether the plaintiff is entitled or not, to recover upon the claim asserted therein, a
matter resolved only after and as a result of the trial (Magay vs. Estiandan, 69 SCRA 456).
(2) Jurisdiction over the person of the accused by voluntary appearance or surrender of the accused
or by his arrest (Choc vs. Vera, 64 Phil. 1066).
(1) The offense if one which the court is by law authorized to take cognizance of;
(2) The offense must have been committed within its territorial jurisdiction; and
(3) The person charged with the offense must have been brought into its forum for trial, forcibly or by
warrant of arrest or upon his voluntary submission to the court (Arula vs. Espino)
(1) General Rule: Criminal prosecution may not be restrained or stayed by injunction.
(2) Exceptions:
(a) To afford adequate protection to the constitutional rights of the accused;
(b) Then necessary for the orderly administration of justice or to avoid oppression or multiplicity
of actions;
(c) When there is a pre-judicial question which is sub judice;
(d) When the acts of the officer are without or in excess of authority;
(e) Where the prosecution is under an invalid law, ordinance or regulation;
(f) When double jeopardy is clearly apparent;
(g) Where the court has no jurisdiction over the offense;
(h) Where it is a case of persecution rather than prosecution;
(i) Where the charges are manifestly false and motivated by the lust for vengeance;
(j) When there is clearly no prima facie case against the accused and a motion to quash on that
ground has been denied; and
(k) To prevent the threatened unlawful arrest of petitioners (Brocka v. Enrile, 192 SCRA 183
(1990).
(a) All criminal actions commenced by complaint or information shall be prosecuted under the
direction and control of the prosecutor. However, in the Municipal Trial Courts or Municipal Circuit
Trial Courts when the prosecutor assigned thereto or to the case is not available, the offended
party, any peace officer, or public officer charged with the enforcement of the law violated may
prosecute the case. This authority shall cease upon actual intervention of the prosecutor or upon
elevation of the case to the Regional Trial Court.
The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by
the offended spouse. The offended party cannot institute criminal prosecution without including
the guilty parties, if they are both alive, nor, in any case, if the offended party has consented to the
offense or pardoned the offenders.
Control of prosecution
(1) Whenever a criminal case is prosecuted and the State is the offended party, the case must
always be prosecuted under control and guidance of the State through the government
prosecutors. Whenever there is acquittal or dismissal of the case and the private complainant
intends to question such acquittal or dismissal, the same must likewise be undertaken by the
State through the Solicitor General. Only the Solicitor General may represent the People of the
Philippines on appeal. The private offended party or complainant may question such acquittal or
dismissal or appeal therefrom only insofar as the civil aspect is concerned, in the name of the
petitioner or appellant and not in the name of the People of the Philippines (Metropolitan Bank
and Trust Co. vs. Veridiano II, 360 SCRA 359).
(2) The prosecution determines the charges to be filed and how the legal and factual elements in the
case shall be utilized as components of the information. It is basically the prosecutors function to
determine what degree of complicity to the commission of a crime a person should be charged
with, whether as principal, accomplice or accessory (People vs. Pajo, 348 SCRA 493).
(3) The rule that the Solicitor General is the lawyer of the People in appellate courts admits an
exception, namely, that which is provided for in RA 8249, which states in part that in all cases
elevated to the Sandiganbayan and fro the Sandiganbayan to the Supreme Court, the Office of
the Ombudsman, through its special prosecutor, shall represent the People of the Philippines,
except in cases filed pursuant to EO 1, 2, 14 and 14-A, issued in 1986.
Designation of Offense
(1) The complaint or information shall state the designation of the offense given by the statute, aver
the acts or omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made to the section or
subsection of the statute punishing it (Sec. 8).
(1) The acts or omissions complained of as constituting the offense and the qualifying and
aggravating circumstances must be stated in ordinary and concise language and not necessarily
in the language used in the statute but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment (Sec. 9).
(1) A complaint or information must charge only one offense, except when the law prescribes a single
punishment for various offenses (Sec. 13).
(2) Exception: The law prescribes a single punishment for various offenses, such as in continuing
and complex crimes.
(1) A complaint or information may be amended, in form or in substance, without leave of court, at
any time before the accused enters his plea. After the plea and during the trial, a formal
amendment may only be made with leave of court and when it can be done without causing
prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of the offense charged in or
excludes any accused from the complaint or information, can be made only upon motion by the
prosecutor, with notice to the offended party and with leave of court. The court shall state its
reasons in resolving the motion and copies of its order shall be furnished all parties, especially the
offended party.
If it appears at any time before judgment that a mistake has been made in charging the proper
offense, the court shall dismiss the original complaint or information upon the filing of a new one
charging the proper offense in accordance with Section 19, Rule 119, provided the accused would
not be placed in double jeopardy. The court may require the witnesses to give bail for their
appearance at the trial (Sec. 14).
(2) The test as to whether the rights of an accused are prejudiced by the amendment of a complaint
or information is when a defense under the complaint or information, as it originally stood, would
no longer be available after the amendment is made, and when any evidence the accused might
have, would be inapplicable to the complaint or information (People vs. Montenegro, 159 SCRA
236).
(3) Amendment and substitution distinguished:
(a) Amendment may involve either formal or substantial changes; substitution necessarily
involves a substantial change from the original charge;
(b) Amendment before plea has been entered can be effected without leave of court; substitution
of information must be with leave of court, as the original information has to be dismissed;
(1) Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to
Rule 111, the offended party may intervene by counsel in the prosecution of the offense (Sec. 16).
(1) The general rule is that the institution or filing of the criminal action includes the institution therein
of the civil action for recovery of civil liability arising from the offense charged, except in the
following cases:
(a) The offended party waives the civil action;
(b) He reserves his right to institute the civil action separately; or
(c) He institutes the civil action prior to the criminal action.
(2) The exception to the reservation requirement is a claim arising out of a dishonored check under
BP 22, where no reservation to file such civil action separately shall be allowed, which means that
the filing of the criminal action for violation of BP 22 shall be deemed to include the corresponding
civil action and that unless a separate civil action has been filed before the institution of the
criminal action, no such civil action can be instituted after the criminal action has been filed as the
same has been included therein.
(1) In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the
independent civil action may be brought by the offended party. It shall proceed independently of
the criminal action and shall require only a preponderance of evidence. In no case, however, may
the offended party recover damages twice for the same act or omission charged in the criminal
action (Sec. 3).
(2) Civil Code provisions on the matter:
Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs,
defeats, violates or in any manner impedes or impairs any of the following rights and liberties of
another person shall be liable to the latter for damages:
In any of the cases referred to in this article, whether or not the defendant's act or omission
constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate
and distinct civil action for damages, and for other relief. Such civil action shall proceed
independently of any criminal prosecution (if the latter be instituted), and may be proved by a
preponderance of evidence.
The indemnity shall include moral damages. Exemplary damages may also be adjudicated.
The responsibility herein set forth is not demandable from a judge unless his act or omission
constitutes a violation of the Penal Code or other penal statute.
Art. 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely
separate and distinct from the criminal action, may be brought by the injured party. Such civil action
shall proceed independently of the criminal prosecution, and shall require only a preponderance of
evidence.
Art. 34. When a member of a city or municipal police force refuses or fails to render aid or
protection to any person in case of danger to life or property, such peace officer shall be primarily
liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil
action herein recognized shall be independent of any criminal proceedings, and a preponderance of
evidence shall suffice to support such action.
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and is governed by the provisions of
this Chapter.
Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and
distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot
recover damages twice for the same act or omission of the defendant
(1) After the criminal action has been commenced, the separate civil action arising therefrom cannot
be instituted until final judgment has been entered in the criminal action.
If the criminal action is filed after the said civil action has already been instituted, the latter shall
be suspended in whatever stage it may be found before judgment on the merits. The suspension
shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on
the merits is rendered in the civil action, the same may, upon motion of the offended party, be
consolidated with the criminal action in the court trying the criminal action. In case of
consolidation, the evidence already adduced in the civil action shall be deemed automatically
reproduced in the criminal action without prejudice to the right of the prosecution to cross-
examine the witnesses presented by the offended party in the criminal case and of the parties to
present additional evidence. The consolidated criminal and civil actions shall be tried and decided
jointly.
(1) The death of the accused after arraignment and during the pendency of the criminal action shall
extinguish the civil liability arising from the delict. However, the independent civil action instituted
under section 3 of this Rule or which thereafter is instituted to enforce liability arising from other
sources of obligation may be continued against the estate or legal representative of the accused
after proper substitution or against said estate, as the case may be. The heirs of the accused may
be substituted for the deceased without requiring the appointment of an executor or administrator
and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice.
A final judgment entered in favor of the offended party shall be enforced in the manner especially
provided in these Rules for prosecuting claims against the estate of the deceased.
If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil
action the offended party may file against the estate of the deceased (Sec. 4).
Rule 3, Sec. 16. Death of party; duty of counsel. Whenever a party to a pending action dies, and
the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court
within thirty (30) days after such death of the fact thereof, and to give the name and address of
his legal representative or representatives. Failure of counsel to comply with this duty shall be
a ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased, without requiring
the appointment of an executor or administrator and the court may appoint a guardian ad litem
for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party, or if the one so
named shall fail to appear within the specified period, the court may order the opposing party,
within a specified time, to procure the appointment of an executor or administrator for the
estate of the deceased and the latter shall immediately appear for and on behalf of the
deceased. The court charges in procuring such appointment, if defrayed by the opposing party,
may be recovered as costs.
Rule 3, Sec. 20. Action on contractual money claims. When the action is for recovery of money
arising from contract, express or implied, and the defendant dies before entry of final judgment
in the court in which the action was pending at the time of such death, it shall not be dismissed
Prejudicial Question
(1) A petition for suspension of the criminal action based upon the pendency of a prejudicial question
in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary
investigation. When the criminal action has been filed in court for trial, the petition to suspend
shall be filed in the same criminal action at any time before the prosecution rests (Sec. 6).
(2) The elements of a prejudicial question are: (a) the previously instituted civil action involves an
issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the
resolution of such issue determines whether or not the criminal action may proceed (Sec. 7).
(3) General Rule: Criminal action takes precedence of civil actions.
Exceptions:
(a) independent civil actions
(b) prejudicial question
Even a preliminary investigation may be suspended by a prejudicial question.
To suspend a criminal action, the move to suspend should be filed before the prosecution rests.
(4) Prejudicial question which arises in a case the resolution of which is a logical antecedent of the
issues involved in said cases, and the cognizance of which pertains to another tribunal (Lu Hayco
vs. CA, Aug. 26, 1985).
(5) The test in determining the existence of a prejudicial question: It must appear not only that the
civil case involves the same facts upon which the criminal prosecution is based, but also that the
resolution of the issues in said civil action would be necessarily determinative of the guilt or
innocence of the accused (Yap vs. Paras, GR 101236, Jan. 30, 1992).
(6) A prejudicial question can be interposed at the Office of the Prosecutor, but;
(a) The question can also be raised in court;
(b) If raised, the court should merely suspend the criminal case;
(c) The court must wait for a motion, otherwise, that is a waiver;
(d) The court cannot motu propio suspend the criminal case (Yap vs. Paras, supra).
(7) A prejudicial question does not conclusively resolve the guilt or innocence of the accused but
simply tests the sufficiency of the allegations in the information in order to sustain the further
prosecution of the criminal case. A party who raises a prejudicial question is deemed to have
hypothetically admitted that all the elements of a crime have been adequately alleged in the
information, considering that the prosecution has not yet presented a single evidence on the
indictment or may not yet have rested its case. A challenge of the allegations is in effect a
Rule on Filing Fees in civil action deemed instituted with the criminal action
(1) When the offended party seeks to enforce civil liability against the accused by way of moral,
nominal, temperate or exemplary damages without specifying the amount thereof in the complaint
or information, the filing fees therefor shall constitute a first lien on the judgment awarding such
damages. Where the amount of damages, other than actual, is specified in the complaint or
information, the corresponding filing fees shall be paid by the offended party upon filing thereof in
court. Except as otherwise provided in these Rules, no filing fees shall be required for actual
damages (Sec. 1).
Nature of right
(1) The preliminary investigation as defined in Sec. 1 is the preliminary investigation proper, which is
not a judicial function, but a part of the prosecutions job, a function of the executive. Preliminary
investigation is generally inquisitorial, and it is often the only means of discovering the persons
who may be reasonably charged with a crime, to enable the prosecutor to prepare his complaint
or information (Paderanga vs. Drilon, 196 SCRA 86).
(2) The right to preliminary investigation is not a constitutional grant; it is merely statutory and may be
invoked only when specifically created by statute (People vs. Carlos, 78 Phili. 535). While the
right to preliminary investigation is statutory rather than constitutional in its fundament, since it
has in fact been established by statute, it is a component part of due process in criminal justice.
The right to have a preliminary investigation conducted before being bound over to trial of a
criminal offense and hence formally at risk of incarceration of some other penalty is not a mere
formal or technical right; it is a substantive rightto deny petitioners claim to a preliminary
investigation would be to deprive him of the full measure of his right to due process (Go vs. CA,
206 SCRA 138).
(3) Preliminary investigation is a function that belongs to the public prosecutor. It is an executive
function, although the prosecutor, in the discharge of such function, is a quasi-judicial authority
tasked to determine whether or not a criminal case must be filed in court.
(4) The right to preliminary investigation may be waived by the accused either expressly or impliedly.
The posting of a bond by the accused constitutes such a waiver, such that even if the warrant was
irregularly issued, any infirmity attached to it is cured when the accused submits himself to the
jurisdiction of the court by applying for bail (In Re: Letter of Freddie Manuel, 54 SCAD 97, Aug. 4,
1994). It is also cured by submitting himself to arraignment (People vs. Hubilo, 220 SCRA 389).
(1) Preliminary investigation is an inquiry or proceeding for the purpose of determining whether there
is sufficient ground to engender a well-founded belief that a crime has been committed and that
the respondent is probably guilty thereof, and should be held for trial (Sec. 1).
(2) The basic purpose of preliminary investigation is to determine whether a crime has been
committed and whether there is probable cause to believe that the accused is guilty thereof (Cruz,
Jr. vs. People, 52 SCAD 516 , June 17, 1994).
(3) Generally, preliminary investigation has a three-fold purpose:
(a) To inquire concerning the commission of crime and the connection of accused with it, in order
that he may be informed of the nature and character of the crime charged against him, and if
there is probable cause for believing him guilty, that the state may take the necessary steps to
bring him to trial;
(b) To preserve the evidence and keep the witnesses within the control of the state; and
(c) To determine the amount of bail, if the offense is bailable (Arula vs. Espino, 28 SCRA 540
[1969]).
(1) On basis of the evidence before him, the investigating office must decide whether to dismiss the
case or to file the information in court. This involves the determination of probable cause.
Although there is no general formula or fixed rule for the determination of probable cause since
the same must be decided in the light of the conditions obtaining in given situations and its
existence depends to a large degree upon the finding or opinion of the municipal trial judge or
prosecutor conducting the examination, such a finding should not disregard the facts before him
nor run counter to the clear dictates of reasons (Ortiz vs. Palaypayon, 234 SCRA 391).
(2) The Court has maintained the policy of non-interference in the determination of the existence of
probable cause, provided there is no grave abuse in the exercise of such discretion. The rule is
based not only upon respect for the investigatory and prosecutor powers of prosecutors upon
practicality as well (Rodrigo, Jr. vs. Sandiganbayan, 303 SCRA 309).
(3) Officers authorized to conduct preliminary investigation:
(a) Provincial or city prosecutors and their assistants:
(b) National and Regional State Prosecutors; and
(c) Other officers as may be authorized by law (COMELEC, PCGG, Ombudsman)
Their authority to conduct preliminary investigation shall include all crimes cognizable by the
proper court in their respective territorial jurisdictions (Sec. 2, as amended by AM 05-8-26-SC,
Oct. 3, 2005).
(1) If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the
resolution and information. He shall certify under oath in the information that he, or as shown by
the record, an authorized officer, has personally examined the complainant and his witnesses;
that there is reasonable ground to believe that a crime has been committed and that the accused
is probably guilty thereof; that the accused was informed of the complaint and of the evidence
submitted against him; and that he was given an opportunity to submit controverting evidence.
Otherwise, he shall recommend the dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to the
provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases
of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall
act on the resolution within ten (10) days from their receipt thereof and shall immediately inform
the parties of such action.
No complaint or information may be filed or dismissed by an investigating prosecutor without
the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor
or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or
the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by
himself, file the information against the respondent, or direct another assistant prosecutor or state
prosecutor to do so without conducting another preliminary investigation.
If, upon petition by a proper party under such Rules as the Department of Justice may
prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the
provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned
either to file the corresponding information without conducting another preliminary investigation,
or to dismiss or move for dismissal of the complaint or information with notice to the parties. The
same Rule shall apply in the preliminary investigations conducted by the officers of the Office of
the Ombudsman (Sec. 4).
Review
(1) A preliminary investigation falls under the authority of the state prosecutor who is given by law the
power to direct and control criminal actions. He is, however, subject to the control of the Secretary
of Justice, which the latter may exercise motu propio or upon petition of the proper party. In
reviewing resolutions of state prosecutors, the Secretary of Justice is not precluded from
(1) (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or
information, the judge shall personally evaluate the resolution of the prosecutor and its supporting
evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment
order if the accused has already been arrested pursuant to a warrant issued by the judge who
conducted the preliminary investigation or when the complaint or information was filed pursuant to
section 6 of this Rule. In case of doubt on the existence of probable cause, the judge may order
the prosecutor to present additional evidence within five (5) days from notice and the issue must
be resolved by the court within thirty (30) days from the filing of the complaint or information.
(b) By the Municipal Trial Court. When required pursuant to the second paragraph of section 1 of
this Rule, the preliminary investigation of cases falling under the original jurisdiction of the
Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit
Trial Court shall be conducted by the prosecutor. The procedure for the issuance of a warrant of
arrest by the judge shall be governed by paragraph (a) of this section.
(c) When warrant of arrest not necessary. A warrant of arrest shall not issue if the accused is
already under detention pursuant to a warrant issued by the Municipal Trial Court in accordance
with paragraph (b) of this section, or if the complaint or information was filed pursuant to section 6
of this Rule or is for an offense penalized by fine only. The court shall then proceed in the
exercise of its original jurisdiction (Sec. 5, as amended by AM 05-8-26-SC).
(1) One remedy if there was no preliminary investigation is to hold in abeyance the proceedings and
order the prosecutor to hold preliminary investigation (Pilapil vs. Sandiganbayan, April 7, 1993).
(2) Section 7, last paragraph thereof, provides that if the case has been conducted, the accused may
within five (5) days from the time he learns of its filing ask for a preliminary investigation. The five-
day period to file the motion for preliminary investigation is mandatory, and an accused is entitled
to ask for preliminary investigation by filing the motion within the said period. The failure to file the
motion within the five-day period amounts to a waiver of the right to ask for preliminary
investigation. Apart from such waiver, posting bail without previously or simultaneously
demanding for a preliminary investigation justifies denial of the motion for investigation (People
vs. CA, 242 SCRA 645).
(1) Arrest is the taking of a person into custody in order that he may be bound to answer for the
commission of an offense (Sec 1).
(1) An arrest is made by an actual restraint of a person to be arrested, or by his submission to the
custody of the person making the arrest. No violence or unnecessary force shall he used in
making an arrest. The person arrested shall not be subject to a greater restraint than is necessary
for his detention (Sec. 2).
(1) A peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it;
and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or is temporarily confined while his case is pending,
or has escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant
shall be forthwith delivered to the nearest police station or jail and shall be proceeded against
in accordance with Section 7 of Rule 112 (Sec. 5).
Method of arrest
(1) Method of arrest by officer by virtue of warrant. When making an arrest by virtue of a warrant,
the officer shall inform the person to be arrested of the cause of the arrest and the fact that a
warrant has been issued for his arrest, except when he flees or forcibly resists before the officer
has opportunity to so inform him, or when the giving of such information will imperil the arrest. The
officer need not have the warrant in his possession at the time of the arrest but after the arrest, if
the person arrested so requires, the warrant shall be shown to him as soon as practicable (Sec.
7).
(2) Method of arrest by officer without warrant. When making an arrest without a warrant, the officer
shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter
is either engaged in the commission of an offense, is pursued immediately after its commission,
(3) Method of arrest by private person. When making an arrest, a private person shall inform the
person to be arrested of the intention to arrest him and cause of the arrest, unless the latter is
either engaged in the commission of an offense, is pursued immediately after its commission, or
has escaped, flees or forcibly resists before the person making the arrest has opportunity to so
inform him, or when the giving of such information will imperil the arrest (Sec. 9).
(1) Requisites for arrest warrant issued by a RTC judge under Sec. 5, Rule 112:
(a) Within 10 days from the filing of the complaint or information
(b) The judge shall personally evaluate the resolution of the prosecutor and its supporting
evidence.
(c) If he finds probable cause, he shall issue a warrant of arrest
(d) In case of doubt on the existence of probable cause
1) The judge may order the prosecutor to present additional evidence within 5 days from
notice; and
2) The issue must be resolved by the court within 30 days from the filing of the complaint of
information.
(2) Requisites for issuing search warrant under Sec. 4, Rule 126:
(a) It must be issued upon probable cause in connection with one specific offense;
(b) The probable cause must be determined by the judge himself and not by the applicant or any
other person;
(c) In the determination of probable cause, the judge must examine under oath or affirmation, the
complainant and the witness he may produce; and
(d) The warrant issued must particularly describe the place to be searched and the things to be
seized which may be anywhere in the Philippines.
(1) It is the judge alone who determines the probable cause for the issuance of warrant of arrest. It is
not for the provincial fiscal or prosecutor to ascertain (People vs. Inting, 187 SCRA 788).
(1) The determination by the prosecutor of probable cause is for the purpose of either filing an
information in court or dismissing the charges against the respondent, which is an executive
function. The determination by the judge of probable cause begins only after the prosecutor has
filed the information in court and the latters determination of probable cause is for the purpose of
issuing an arrest warrant against the accused, which is judicial function (People vs. CA, 301
SCRA 475).
(2) Probable cause to hold a person for trial refers to the finding of the investigating prosecutor after
the conduct of a preliminary investigation, that there is sufficient ground to hold a well-founded
belief that a crime has been committed and that the respondent is probably guilty thereof and
should be held for trial. Based on such finding, the investigating prosecutor files the
corresponding complaint or information in the competent court against the accused. The
determination of probable cause to issue a warrant of arrest is a judicial function. A judge cannot
be compelled to issue a warrant of arrest if he or she believes honestly that there is no probable
cause for doing so (People vs. CA, 102 SCAD 375, Jan. 21, 1999).
Nature
(1) All persons, except those charged with offenses punishable by reclusion perpetua when evidence
of guilt is strong, shall before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required (Sec. 13,
Art. III, The Constitution).
(2) Bail is the security given for the release of a person in custody of the law, furnished by him or a
bondsman, to guarantee his appearance before any court as required under the conditions
hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash
deposit, or recognizance (Sec. 1).
(3) Bail is the security required by the court and given by the accused to ensure that the accused
appear before the proper court at the scheduled time and place to answer the charges brought
against him. It is awarded to the accused to honor the presumption of innocence until his guilt is
proven beyond reasonable doubt, and to enable him to prepare his defense without being subject
to punishment prior to conviction (Cortes vs. Catral, 279 SCRA 1. Its main purpose is to relieve an
accused from the rigors of imprisonment until his conviction and secure his appearance at the trial
(Paderanga vs. CA, 247 SCRA 741).
(4) The person seeking provisional release need not wait for a formal complaint or information to be
filed against him as it is available to all persons where the offense is bailable, so long as the
applicant is in the custody of the law (Paderanga vs. CA, 247 SCRA 741).
(5) Kinds of bail:
(a) Corporate bond one issued by a corporation licensed to provide bail subscribed jointly by
the accused and an officer duly authorized by its board of directors (Sec. 10).
(b) Property bond an undertaking constituted as a lien on the real property given as security for
the amount of the bond (Sec. 11).
(c) Recognizance an obligation of record entered into usually by the responsible members of
the community before some court or magistrate duly authorized to take it, with the condition to
do some particular act, the most usual act being to assure the appearance of the accused for
trial (People vs. Abner, 87 Phil. 566).
(d) Cash deposit the money deposited by the accused or any person acting on his behalf, with
the nearest collector of internal revenue, or provincial, city or municipal treasurer. Considered
as bail, it may be applied to the payment of any fees and costs, and the excess, if any, shall
be returned to the accused or to whoever made the deposit (Sec. 14).
(1) All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or
released on recognizance as prescribed by law or this Rule (a) before or after conviction by the
Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit
Trial Court, and (b) before conviction by the Regional Trial Court of an offense not punishable by
death, reclusion perpetua, or life imprisonment (Sec. 4, Rule 114).
(2) If bail can be granted in deportation cases, we see no justification why it should not also be
allowed in extradition cases. After all, both are administrative proccedings where the innocence or
guilt of the person detained is not in issue (Govt. of Hongkong vs. Olalia, GR 153675, April 19,
2007).
(3) Bail is a matter of right before final conviction, but the rule is not absolute. The exception is when
a person is charged with a capital offense when the evidence of guilt is strong, or when the
offense for which on is charged is punishable by reclusion perpetua. The exception to this rule,
however, is even if a person is charged with a capital offense where the evidence of guilt is
strong, if the accused has failing health, hence, for humanitarian reasons, he may be admitted to
bail, but that is discretionary on the part of the court (De La Ramos vs. Peoples Court, 77 Phil.
461; Catiis vs. CA, 487 SCRA 71).
(1) Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion
perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be
filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not
transmitted the original record to the appellate court. However, if the decision of the trial court
convicting the accused changed the nature of the offense from non-bailable to bailable, the
application for bail can only be filed with and resolved by the appellate court.
Should the court grant the application, the accused may be allowed to continue on provisional
liberty during the pendency of the appeal under the same bail subject to the consent of the
bondsman.
If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused
shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice
to the accused, of the following or other similar circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime
aggravated by the circumstance of reiteration;
(b) That he has previously escaped from legal confinement, evaded sentence, or violated the
conditions of his bail without valid justification;
(c) That he committed the offense while under probation, parole, or under conditional pardon;
(d) That the circumstances of his case indicate the probability of flight if released on bail; or
(e) That there is undue risk that he may commit another crime during the pendency of the appeal.
The appellate court may, motu proprio or on motion of any party, review the resolution of the
Regional Trial Court after notice to the adverse party in either case (Sec. 5, Rule 114).
(2) Where the grant of bail is a matter of discretion, or the accused seeks to be released on
recognizance, the application may only be filed in the court where the case is pending, whether
on preliminary investigation, trial, or on appeal (Sec. 17[a]).
(3) The discretion lies in the determination of whether the evidence of guilt is strong. If it is
determined that it is not strong, then bail is a matter of right. There is no more discretion of the
court in denying the bail, the moment there is a determination that the evidence of guilt is not
strong.
(1) A bail application in capital offense does not only involve the right of the accused to temporary
liberty, but likewise the right of the State to protect the people and the peace of the community
from dangerous elements. Accordingly, the prosecution must be given ample opportunity to show
that the evidence of guilt is strong, because, by the very nature of deciding applications for bail, it
is on the basis of such evidence that judicial discretion is exercised in determining whether the
evidence of guilt is strong is a matter of judicial discretion. Though not absolute nor beyond
control, the discretion within reasonable bounds (People vs. Antona, GR 137681, Jan. 31, 2002).
(2) A hearing in an application for bail is absolutely indispensable before a judge can properly
determine whether the prosecutions evidence is weak or strong. In receiving evidence on bail,
while a court is not required to try the merits of the case, he must nevertheless conduct a
summary hearing which is such brief and speedy method of receiving and considering the
evidence of guilt as is practicable and consistent with the purpose of the hearing which is to
determine the weight of the evidence for purposes of the bail (In re complaint against Judge Elma,
AM RTJ-94-1183, Feb. 8, 1994).
(3) A judge should not hear a petition for bail in capital offenses on the same day that the petition was
filed. He should give the prosecution a reasonable time within which to oppose the same. Neither
is he supposed to grant bail solely on the belief that the accused will not flee during the pendency
of the case by reason of the fact that he had even voluntarily surrendered to the authorities.
Voluntary surrender is merely a mitigating circumstance in decreasing the penalty that may
eventually be imposed upon the accused in case of conviction but is not a ground for granting bail
to an accused charged with a capital offense (Sule vs. Judge Bitgeng, 60 SCAD 341,April 18,
1995).
(1) The judge who issued the warrant or granted the application shall fix a reasonable amount of bail
considering primarily, but not limited to, the following factors:
(a) Financial ability of the accused to give bail;
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail.
Excessive bail shall not be required (Sec. 9).
(1) No bail shall be required when the law or these Rules so provide.
When a person has been in custody for a period equal to or more than the possible maximum
imprisonment prescribed for the offense charged, he shall be released immediately, without
prejudice to the continuation of the trial or the proceedings on appeal. If the maximum penalty to
which the accused may be sentenced is destierro, he shall be released after thirty (30) days of
preventive imprisonment.
A person in custody for a period equal to or more than the minimum of the principal penalty
prescribed for the offense charged, without application of the Indeterminate Sentence Law or any
modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the
discretion of the court (Sec. 16).
(1) After the accused is admitted to bail, the court may, upon good cause, either increase or reduce
its amount. When increased, the accused may be committed to custody if he does not give bail in
the increased amount within a reasonable period. An accused held to answer a criminal charge,
who is released without bail upon filing of the complaint or information, may, at any subsequent
stage of the proceedings whenever a strong showing of guilt appears to the court, be required to
give bail in the amount fixed, or in lieu thereof, committed to custody (Sec. 20).
(1) When the presence of the accused is required by the court or these Rules, his bondsmen shall be
notified to produce him before the court on a given date and time. If the accused fails to appear in
person as required, his bail shall be declared forfeited and the bondsmen given thirty (30) days
within which to produce their principal and to show cause why no judgment should be rendered
against them for the amount of their bail. Within the said period, the bondsmen must:
(a) produce the body of their principal or give the reason for his non-production; and
(b) explain why the accused did not appear before the court when first required to do so.
Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and
severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the
liability of the bondsmen, unless the accused has been surrendered or is acquitted (Sec. 21).
(2) Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled
upon surrender of the accused or proof of his death. The bail shall be deemed automatically
cancelled upon acquittal of the accused, dismissal of the case, or execution of the judgment of
conviction. In all instances, the cancellation shall be without prejudice to any liability on the bail
(Sec. 22).
(1) The posting of the bail does not constitute a waiver of any question on the irregularity attending
the arrest of person. He can still question the same before arraignment, otherwise, the right to
question it is deeme3d waived. It was also said that posting bail is deemed to be a forfeiture of a
habeas corpus petition which becomes moot and academic (Arriba vs. People. `07 SCRA 191;
Bagcal vs. Villaroza, 120 SCRA 525).
(2) An application for or admission to bail shall not bar the accused from challenging the validity of his
arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning
the absence of a preliminary investigation of the charge against him, provided that he raises them
before entering his plea. The court shall resolve the matter as early as practicable but not later
than the start of the trial of the case (Sec. 26).
(3) The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for
bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his
arrest or voluntary surrender (Mendoza vs. CFI of Quezon, 51 SCAD 369). an accused need not
wait for his arraignment before filing a petition for bail. In Lavides vs. CA, 324 SCRA 321, it was
held that in cases where it is authorized, bail should be granted before arraignment, otherwise the
accused may be precluded from filing a motion to quash. This pronouncement should be
understood in the light of the fact that the accused in said case filed a petition for bail as well as a
motion to quash the informations filed against him. It was explained that to condition the grant of
bail to an accused on his arraignment would be to place him in a position where he has to choose
between: (1) filing a motion to quash and thus delay his release on bail because until his motion
to quash can be resolved, his arraignment cannot be held; and (2) foregoing the filing of a motion
to quash so that he can be arraigned at once and thereafter be released on bail. This would
undermine his constitutional right not to be put on trial except upon a valid complaint or
information sufficient to charge him with a crime and his right to bail. It is therefore not necessary
that an accused be first arraigned before the conduct of hearings on his application for bail. For
when bail is a matter of right, an accused may apply for and be granted bail even prior to
arraignment (Serapio vs. Sandiganbayan, GR Nos. 148468-69, 149116, Jan. 28, 2003).
(1) Supreme Court Cir. No. 39-97 dated June 19, 1997 limits the authority to issue hold departure
orders to the RTCs in criminal cases within their exclusive jurisdiction. Consequently, MTC judges
have no authority to issue hold-departure orders, following the maxim, express mention implies
the exclusion. Neither does he have authority to cancel one which he issued (Huggland vs.
Lantin, AM MTJ-98-1153, Feb. 29, 2000).
(2) A court has the power to prohibit a person admitted to bail from leaving the Philippines. This is
necessary consequence of the nature and function of a bail bond. Where it appears that the
accused had the propensity to evade or disobey lawful orders, the issuance of a hold departure
order is warranted (Santos vs. CA, 116 SCAD 575, Dec. 3, 1999).
(3) The fact that the accused surreptitiously left for Hongkong, after getting a clearance for purposes
of leaving the country but without permission of the trial court, and thereafter could not return for
trial as she was imprisoned in Hongkong for a criminal offense, does not relieve the bondsman of
liability.
(1) In all criminal prosecutions, the accused shall be entitled to the following rights:
(a) To be presumed innocent until the contrary is proved beyond reasonable doubt.
(b) To be informed of the nature and cause of the accusation against him.
(c) To be present and defend in person and by counsel at every stage of the proceedings, from
arraignment to promulgation of the judgment. The accused may, however, waive his
presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is
specifically ordered by the court for purposes of identification. The absence of the accused
(1) The rights of an accused person under in-custody investigation are expressly enumerated in Sec.
12, Art. III of the Constitution, viz:
(a) Any person under investigation for the commission of an offense shall have the right to be
informed of his rights to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of
counsel;
(b) No torture, force, violence, intimidation or any other means which vitiate the free will shall be
used against him. Secret detention places, solitary, incommunicado, or other similar forms of
detention are prohibited;
(c) Any confession or admission in violation of this or Sec. 17 (Self-Incrimination Clause) hereof
shall be inadmissible in evidence against him;
(d) The law shall provide for penal and civil sanctions for violation of this section as well as
compensation to aid rehabilitation of victims of torture or similar practice, and their families.
(2) Under RA 7834, the following are the rights of persons arrested, detained or under custodial
investigation:
(a) Any person arrested, detained or under custodial investigation shall at all times be assisted
by counsel;
(b) Any public officer or employee, or anyone acting under his order or in his place, who arrests,
detains or investigates any person for the commission of an offense shall inform the latter, in
a language known to and understood by him, of his right to remain silent and to have
competent and independent counsel, preferably of his own choice, who shall at all times be
allowed to confer privately with the person arrested, detained or under custodial investigation.
If such person cannot afford the services of his own counsel, he must be provided with a
competent and independent counsel by the investigating officer;
(c) The custodial investigation report shall be reduced to writing by investigating officer, provided
that before such report is signed, or thumbmarked if the person arrested or detained does not
know how to read and write, it shall be read and adequately explained to him by his counsel
or by the assisting counsel provided by the investigating officer in the language or dialect
known to such arrested or detained person, otherwise, such investigation report shall be null
and void and of no effect whatsoever;
(d) Any extrajudicial confession made by a person arrested, detained or under custodial
investigation shall be in writing and signed by such person in the presence of his counsel or in
the latters absence, upon a valid waiver, and in the presence of any of the parents, older
brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school
(1) Arraignment is the formal mode of implementing the constitutional right of the accused to be
informed of the nature of the accusation against him.
(2) Some rules on arraignment:
(a) Trial in absentia is allowed only after arraignment;
(b) Judgment is generally void if the accused has not been arraigned;
(c) There can be no arraignment in absentia;
(d) If the accused went to trial without arraignment, but his counsel had the opportunity to cross-
examine the witnesses of the prosecution and after prosecution, he was arraigned, the defect
was cured (People vs. Atienza, 86 Phil. 576).
(3) Arraignment is important because it is the mode of implementing the constitutional right to be
informed of the nature of the accusation against him, and to fix the identity of the accused. It is not
a mere formality, but an integral part of due process, it implements the constitutional right of the
accused to be informed and the right to speedy trial (Lumanlaw vs. Peralta, 482 SCRA 396).
(1) At any time before the judgment of conviction becomes final, the court may permit an improvident
plea of guilty to be withdrawn and be substituted by a plea of not guilty (Sec. 5).
(2) A plea of not guilty should be entered where
(a) The accused so pleaded;
(b) When he refuses to plead;
(c) Where in admitting the act charged, he sets up matters of defense or with a lawful
justification;
(d) When he enters a conditional plea of guilt;
(e) Where, after a plea of guilt, he introduces evidence of self-defense or other exculpatory
circumstances ; and
(f) When the plea is indefinite or ambiguous (US vs. Kelly, 35 Phil 419; People vs. Sabilul, 93
Phil. 567; People vs. Balisacan; People vs. Stron, L-38626, Mar. 14, 1975).
(1) At arraignment, the accused, with the consent of the offended party and the prosecutor, may be
allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the
offense charged. After arraignment but before trial, the accused may still be allowed to plead
guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the
complaint or information is necessary (Sec. 2).
(2) An accused can enter a plea to a lesser offense if there is consent of the other party and the
prosecutor. If he did so without the consent of the offended party and the prosecutor and he was
convicted, his subsequent conviction in the crime charged would not place him in dhouble
Searching Inquiry
(1) Searching question means more than informing cursorily the accused that he faces a jail term. It
also includes the exact lengthy of imprisonment under the law and the certainty that he will serve
at the national penitentiary or a penal colony (People vs. Pastor, GR 140208, Mar. 12, 2002) . It is
intended to undermine the degree of culpability of the accused in order that the court may be
guided in determining the proper penalty.
Improvident plea
(1) Conviction based on an improvident plea of guilty may set aside only when such plea is the sole
basis of the judgment. But if the trial court relied on the evidence of the prosecution and
convincing evidence to convict beyond reasonable doubt, not on his plea of guilty, such conviction
must be sustained (People vs. Lunia, GR 128289, April 23, 2002).
(2) Courts must be careful to avoid improvident pleas of guilt and, where grave crimes are involved,
the proper course is to take down evidence to determine guilt and avoid doubts (People vs.
Siabilul, supra).
(3) The withdrawal of an improvident plea of guilty, to be substituted by a plea of not guilty, is
permitted even after judgment has been promulgated but before the same becomes final. While
this Rule is silent on the matter, a plea of not guilty can likewise be withdrawn so that the accused
may instead plead guilty to the same offense, but for obvious reasons, this must be done before
promulgation of judgment. In either case, however, if the prosecution had already presented its
witnesses, the accused will generally not be entitled to the mitigating circumstance based on a
plea of guilty (People vs. Lumague, GR 53586, Jan. 31, 1982).
(1) Upon motion by the proper party, the arraignment shall be suspended in the following cases:
(a) The accused appears to be suffering from an unsound mental condition which effectively
renders him unable to fully understand the charge against him and to plead intelligently
thereto. In such case, the court shall order his mental examination and, if necessary, his
confinement for such purpose.
(b) There exists a prejudicial question; and
(c) A petition for review of the resolution of the prosecutor is pending at either the Department of
Justice, or the Office of the President; provided, that the period of suspension shall not
exceed sixty (60) days counted from the filing of the petition with the reviewing office (Sec.
11).
(1) A motion to quash is a hypothetical admission of the facts alleged in the information, hence the
court in resolving the motion cannot consider facts contrary to those alleged in the information or
Grounds
(1) The accused may move to quash the complaint or information on any of the following grounds:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the court trying the case has no jurisdiction over the person of the accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment for various offenses
is prescribed by law;
(g) That the criminal action or liability has been extinguished;
1) By the death of the convict, as to the personal penalties; as to pecuniary penalties,
liability therefor is extinguished only when the death of the offender occurs before final
judgment.
2) By service of the sentence;
3) By amnesty, which completely extinguishes the penalty and all its effects;
4) By absolute pardon;
5) By prescription of the crime;
6) By prescription of the penalty;
7) By the marriage of the offended woman in
a) Seduction
b) abduction or
c) acts of lasciviousness (Art. 344 RPC)
(h) That it contains averments which, if true, would constitute a legal excuse or justification; and
(i) That the accused has been previously convicted or acquitted of the offense charged, or the
case against him was dismissed or otherwise terminated without his express consent (Sec.
3).
(2) Grounds that are not waived even if not alleged:
(a) Failure to charge an offense;
(b) Lack of jurisdiction;
(c) Extinction of criminal action or liability;
(d) Double jeopardy (People vs. Leoparte, 187 SCRA 190).
(1) A special civil action may lie against an order of denial of a motion to quash, as an exception to
the general rule, in any of the following instances:
(a) Where there is necessity to afford protection to the constitutional rights of the accused;
(b) When necessary for the orderly administration of justice or to avoid oppression or multiplicity
of actions;
(1) If the motion to quash is sustained, the court may order that another complaint or information be
filed except as provided in section 6 of this rule. If the order is made, the accused, if in custody,
shall not be discharged unless admitted to bail. If no order is made or if having been made, no
(2) new information is filed within the time specified in the order or within such further time as the
court may allow for good cause, the accused, if in custody, shall be discharged unless he is also
in custody of another charge (Sec. 5).
Exception to the rule that sustaining the motion is not a bar to another prosecution
(1) An order sustaining the motion to quash is not a bar to another prosecution for the same offense
unless the motion was based on the grounds specified in Sec. 3(g) and (i) that the criminal
action or liability has been extinguished and that the accused has been previously convicted or in
jeopardy of being convicted, or acquitted of the offense charged (Sec. 6).
(2) An order denying a motion to quash is interlocutory and not appealable (People vs. Macandog, L-
18601, Jan. 31, 1963) and generally, such denial cannot be controlled by certiorari (Ricafort vs.
Fernan, 101 Phil. 575); and the denial of a motion to quash grounded on double jeopardy is not
controllable by mandamus (Tiongson vs. Villacete, 55 OG 7017).
Double Jeopardy
(1) No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished
by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another
prosecution for the same act (Sec. 21, Art. III, Constitution).
(2) The requirements of double jeopardy are:
(a) Valid indictment;
(b) Competent court;
(c) Valid arraignment;
(d) Valid plea entered;
(e) Case is dismissed or terminated without the express consent of the accused (People vs.
Bocar, Aug. 10, 1985; Navallo vs. Sandiganbayan, 53 SCAD 294, July 18, 1994) .
(1) When an accused has been convicted or acquitted, or the case against him dismissed or
otherwise terminated without his express consent by a court of competent jurisdiction, upon a
valid complaint or information or other formal charge sufficient in form and substance to sustain a
conviction and after the accused had pleaded to the charge, the conviction or acquittal of the
accused or the dismissal of the case shall be a bar to another prosecution for the offense
charged, or for any attempt to commit the same or frustration thereof, or for any offense which
necessarily includes or is necessarily included in the offense charged in the former complaint or
information.
However, the conviction of the accused shall not be a bar to another prosecution for an offense
which necessarily includes the offense charged in the former complaint or information under any
of the following instances:
(a) the graver offense developed due to supervening facts arising from the same act or omission
constituting the former charge;
(b) the facts constituting the graver charge became known or were discovered only after a plea
was entered in the former complaint or information; or
Provisional Dismissal
(1) A case shall not be provisionally dismissed except with the express consent of the accused and
with notice to the offended party.
The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a
fine of any amount, or both, shall become permanent one (1) year after issuance of the order
without the case having been revived. With respect to offenses punishable by imprisonment of
more than six (6) years, their provisional dismissal shall become permanent two (2) years after
issuance of the order without the case having been revived (Sec. 8).
(2) Requisites for Sec. 8 to apply:
(a) The prosecution with the express conformity of the accused or the accused moves for a
provisional (sin perjuicio) dismissal of the case; or both the prosecution and the accused
moves for a provisional dismissal of the case;
(b) The offended party is notified of the motion for a provisional dismissal of the case;
(c) The court issues an order granting the motion and dismissing the case provisionally;
(d) The public prosecutor is served with a copy of the order or provisional dismissal of the case.
(3) The foregoing requirements are conditions sine qua non to the application of the time-bar in the
second paragraph of the Rule. The raison detre for the requirement of the express consent of the
accused to a provisional dismissal of a criminal case is to bar him from subsequently asserting
that the revival of the criminal case will place him in double jeopardy for the same offense or for
an offense necessarily included therein (People vs. Bellosillo, 8 SCRA 835).
(4) The order of dismissal shall become permanent one year after service of the order of the
prosecution (Sec. 5, Rule 112), without the criminal case having been revived. The public
prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the
order of dismissal (People vs. Lacosn, GR 149453, April 1, 2003).
(1) The process whereby the accused and the prosecutor in a criminal case work out a mutually
satisfactory disposition of the case subject to court approval. It usually involves the defendants
pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment
th
in return for a lighter sentence than that for the graver charge (Blacks Law Dictionary, 5 Ed.).
(1) In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial
Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court, the
court shall, after arraignment and within thirty (30) days from the date the court acquires
jurisdiction over the person of the accused, unless a shorter period is provided for in special laws
or circulars of the Supreme Court, order a pre-trial conference to consider the following:
(a) plea bargaining;
(b) stipulation of facts;
(c) marking for identification of evidence of the parties;
(d) waiver of objections to admissibility of evidence;
(e) modification of the order of trial if the accused admits the charge but interposes a lawful
defense; and
(f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the
case (Sec. 1).
(1) The agreements covering the matters referred to in section 1 of this Rule shall be approved by the
court (Sec. 2).
Pre-trial agreement
(1) All agreements or admissions made or entered during the pre-trial conference shall be reduced in
writing and signed by the accused and counsel, otherwise, they cannot be used against the
accused. The agreements covering the matters referred to in section 1 of this Rule shall be
approved by the court (Sec. 2).
(1) If the counsel for the accused or the prosecutor does not appear at the pre-trial conference and
does not offer an acceptable excuse for his lack of cooperation, the court may impose proper
sanctions or penalties (Sec. 3).
(2) The rule is intended to discourage dilatory moves or strategies as these would run counter to the
purposes of pre-trial in criminal cases, more specifically those intended to protect the right of the
accused to fair and speedy trial.
Pre-trial order
(1) After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts
stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not
disposed of, and control the course of the action during the trial, unless modified by the court to
prevent manifest injustice (Sec. 4).
The following cases shall be 1) referred to Court-Annexed Mediation (CAM) and 2) be the subject of
Judicial Dispute Resolution (JDR) proceedings:
(1) All civil cases and the civil liability of criminal cases covered by the Rule on Summary
Procedure, including the civil liability for violation of B.P. 22, except those which by law may
not be compromised;
(2) Special proceedings for the settlement of estates;
(3) All civil and criminal cases filed with a certificate to file action issued by the Punong Barangay
or the Pangkat ng Tagapagkasundo under the Revised Katarungang Pambarangay Law
(Chapter 7, RA 7160);
(4) The civil aspect of Quasi-Offenses under Title 14 of the Revised Penal Code;
Procedure:
Pre-trial Proper:
Where no settlement or only a partial settlement was reached, and there being no joint written
motion submitted by the parties, as stated in the last preceding paragraphs, the JDR judge shall
turn over the case to the trial judge, determined by re-raffle in multiple sala courts or to the
originating court in single sala courts, as the case may be, to conduct pre-trial proper, as
mandated by Rules 18 and 118 of the Rules of Court.
Trial (Rule119)
(1) Continuous trial is one where the courts are called upon to conduct the trial with utmost dispatch,
with judicial exercise of the courts power to control the trial to avoid delay and for each party to
complete the presentation of evidence with the trial dates assigned to him (Admin. Cir. 4 dated
Sept. 22, 1988).
(1) The only instances when the presence of the accused is required by law and when the law may
forfeit the bond if he fails to appear are:
(a) On arraignment;
(b) On promulgation of judgment except for light offenses;
(c) For identification purposes;
(d) When the court with due notice requires so (Marcos vs. Ruiz, Sept. 1, 1992).
(1) The following periods of delay shall be excluded in computing the time within which trial must
commence: Any period of delay resulting from the absence or unavailability of an essential
witness (Sec. 3[b]).
(2) To warrant postponement due to absence of a witness, it must appear:
(a) That the witness is really material and appears to the court to be so;
(b) That the party who applies for postponement has not been guilty of neglect;
(c) That the witness can be had at the time to which the trial has been deferred; and
(d) That no similar evidence could be obtained (US vs. Ramirez, 39 (Phil. 738).
(3) The non-appearance of the prosecution at the trial, despite due notice, justifies a provisional
dismissal (Jaca vs. Blanco, 86 Phil. 452), or an absolute dismissal (People vs. Robles, 105 Phil.
1016), depending on the circumstances. Sec. 3, Rule 22 does not apply to criminal cases.
Trial in Absentia
(1) The Constitution permits trial in absentia of an accused after his arraignment who unjustifiably
fails to appear during the trial notwithstanding due notice. The purpose of trial in absentia is to
speed up the disposition of criminal cases. The requisites of trial in absentia are:
(a) The accused has been arraigned;
(b) He has been duly notified of the trial; and
Remedy when accused is not brought to trial within the prescribed period
(1) If the accused is not brought to trial within the time limit required by Section 1(g), Rule 116 and
Section 1, as extended by Section 6 of this rule, the information may be dismissed on motion of
the accused on the ground of denial of his right to speedy trial. The accused shall have the
burden of proving the motion but the prosecution shall have the burden of going forward with the
evidence to establish the exclusion of time under section 3 of this rule. The dismissal shall be
subject to the rules on double jeopardy.
Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to
dismiss under this section (Sec. 9).
(2) Unless a shorter period is provided by special law or Supreme Court circular, the arraignment
shall be held within thirty (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 a bill of particulars or other
causes justifying suspension of the arraignment shall be excluded in computing the period (Sec.
1[g], Rule 116).
(1) When two or more persons are jointly charged with the commission of any offense, upon motion
of the prosecution before resting its case, the court may direct one or more of the accused to be
discharged with their consent so that they may be witnesses for the state when, after requiring the
prosecution to present evidence and the sworn statement of each proposed state witness at a
hearing in support of the discharge, the court is satisfied that:
(a) There is absolute necessity for the testimony of the accused whose discharge is requested;
(b) There is no other direct evidence available for the proper prosecution of the offense
committed, except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its material points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense involving moral turpitude.
Evidence adduced in support of the discharge shall automatically form part of the trial. If the court
denies the motion for discharge of the accused as state witness, his sworn statement shall be
inadmissible in evidence (Sec. 17).
(2) Any person who has participated in the commission of a crime and desires to be a witness for the
State, can apply and, if qualified as determined in this Act and by the Department, shall be
admitted into the program (to be a state witness) whenever the following circumstances are
present:
(a) 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;
(b) There is absolute necessity for his testimony;
(c) There is no other direct evidence available for the proper prosecution of the offense
committed;
(d) His testimony can be substantially corroborated on its material points;
(e) He does not appear to be most guilty; and
(f) He has not at any time been convicted of any crime involving moral turpitude (Sec. 10, RA
6981, the Witness Protection Law).
(1) The order indicated in the preceding section shall amount to an acquittal of the discharged
accused and shall be a bar to future prosecution for the same offense, unless:
(a) The accused fails or refuses to testify against his co-accused in accordance with his sworn
statement constituting the basis for his discharge (Sec. 18);
(b) If he was granted immunity and fails to keep his part of the agreement, his confession of his
participation in the commission of the offense is admissible in evidence against him (People
vs. Berberino, 79 SCRA 694).
(2) The court shall order the discharge and exclusion of the said accused from the information.
Admission into such Program shall entitle such State Witness to immunity from criminal
prosecution for the offense or offenses in which his testimony will be given or used (Sec. 12, RA
6981).
Demurrer to Evidence
(1) After the prosecution rests its case, the court may dismiss the action on the ground of
insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be
heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.
If the court denies the demurrer to evidence filed with leave of court, the accused may adduce
evidence in his defense. When the demurrer to evidence is filed without leave of court, the
accused waives the right to present evidence and submits the case for judgment on the basis of
the evidence for the prosecution. (15a)
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and
shall be filed within a non-extendible period of five (5) days after the prosecution rests its case.
The prosecution may oppose the motion within a non-extendible period of five (5) days from its
receipt.
If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible
period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within
a similar period from its receipt.
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself
shall not be reviewable by appeal or by certiorari before judgment (Sec. 23).
(1) Judgment means the adjudication by the court that the accused is guilty or is not guilty of the
offense charged, and the imposition of the proper penalty and civil liability provided for by law on
the accused (Sec. 1).
(2) Memorandum decision is one in which the appellate court may adopt by reference, the findings of
facts and conclusions of law contained in the decision appealed from (Sec. 24, Interim Rules and
Guidelines).
Requisites of a judgment
(1) It must be written in the official language, personally and directly prepared by the judge and
signed by him and shall contain clearly and distinctly a statement of the facts and the law upon
which it is based (Sec. 1).
Contents of Judgment
(1) If the judgment is of conviction, it shall state (1) the legal qualification of the offense constituted by
the acts committed by the accused and the aggravating or mitigating circumstances which
attended its commission; (2) the participation of the accused in the offense, whether as principal,
accomplice, or accessory after the fact; (3) the penalty imposed upon the accused; and (4) the
civil liability or damages caused by his wrongful act or omission to be recovered from the accused
by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil
action has been reserved or waived.
(1) The judgment is promulgated by reading it in the presence of the accused and any judge of the
court in which it was rendered. However, if the conviction is for a light offense, the judgment may
be pronounced in the presence of his counsel or representative. When the judge is absent or
outside the province or city, the judgment may be promulgated by the clerk of court.
If the accused is confined or detained in another province or city, the judgment may be
promulgated by the executive judge of the Regional Trial Court having jurisdiction over the place
of confinement or detention upon request of the court which rendered the judgment. The court
promulgating the judgment shall have authority to accept the notice of appeal and to approve the
bail bond pending appeal; provided, that if the decision of the trial court convicting the accused
changed the nature of the offense from non-bailable to bailable, the application for bail can only
be filed and resolved by the appellate court.
The proper clerk of court shall give notice to the accused personally or through his bondsman or
warden and counsel, requiring him to be present at the promulgation of the decision. If the
accused was tried in absentia because he jumped bail or escaped from prison, the notice to him
shall be served at his last known address.
(2) In case the accused fails to appear at the scheduled date of promulgation of judgment despite
notice, the promulgation shall be made by recording the judgment in the criminal docket and
serving him a copy thereof at his last known address or thru his counsel.
If the judgment is for conviction and the failure of the accused to appear was without justifiable
cause, he shall lose the remedies available in these rules against the judgment and the court shall
order his arrest. Within fifteen (15) days from promulgation of judgment, however, the accused
may surrender and file a motion for leave of court to avail of these remedies. He shall state the
reasons for his absence at the scheduled promulgation and if he proves that his absence was for
a justifiable cause, he shall be allowed to avail of said remedies within fifteen (15) days from
notice (Sec. 6).
(1) Except where the death penalty is imposed, a judgment becomes final:
(a) After the lapse of the period for perfecting an appeal;
(b) When the sentence has been partially or totally satisfied or served;
(c) When the accused has waived in writing his right to appeal; or
(d) Has applied for probation (Sec. 7).
(1) The court shall grant a new trial on any of the following grounds:
(a) That errors of law or irregularities prejudicial to the substantial rights of the accused have been
committed during the trial;
(b) That new and material evidence has been discovered which the accused could not with
reasonable diligence have discovered and produced at the trial and which if introduced and
admitted would probably change the judgment (Sec. 2).
(1) The court shall grant reconsideration on the ground of errors of law or fact in the judgment, which
requires no further proceedings (Sec. 3).
Requisites before a new trial may be granted on ground of newly discovered evidence
(1) The effects of granting a new trial or reconsideration are the following:
(a) When a new trial is granted on the ground of errors of law or irregularities committed during
the trial, all the proceedings and evidence affected thereby shall be set aside and taken anew.
The court may, in the interest of justice, allow the introduction of additional evidence.
(b) When a new trial is granted on the ground of newly-discovered evidence, the evidence already
adduced shall stand and the newly-discovered and such other evidence as the court may, in
the interest of justice, allow to be introduced shall be taken and considered together with the
evidence already in the record.
(c) In all cases, when the court grants new trial or reconsideration, the original judgment shall be
set aside or vacated and a new judgment rendered accordingly (Sec. 6).
(1) If the motion is denied, the movants has a fresh period of 15 days from receipt or notice of the
order denying or dismissing the motion for reconsideration within which to file a notice to appeal.
This new period becomes significant if either a motion for reconsideration or a motion for new trial
has been filed but was denied or dismissed. This fresh period rule applies only to Rule 41
governing appeals from the RTC but also to Rule 40 governing appeals from MTC to RTC, Rule
42 on petitions for review from the RTC to the CA, Rule 43 on appeal from quasi-judicial agencies
to the CA, and Rule 45 governing appeals by certiorari to the SC. 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). The Neypes ruling shall not be applied where no motion for new trial or
(1) An appeal opens the whole case for review and this includes the review of the penalty, indemnity
and the damages involved (Quemuel vs. CA, 22 SCRA 44).
Effect of an Appeal
(1) Upon perfection of the appeal, the execution of the judgment or order appealed from is stayed as
to the appealing party (Sec. 11[c]). The civil appeal of the offended party does not affect the
criminal aspect of the judgment or order appealed from.
(2) Upon perfection of the appeal, the trial court loses jurisdiction over the case (Syquia vs.
Concepcion, 60 Phil. 186), except:
(a) To issue orders for the protection and preservation of the rights of the parties which do not
involve any matter litigated by the appeal;
(b) To approve compromises offered by the parties prior to the transmission of the records on
appeal to the appellate court (Sec. 9, Rule 41).
Where to appeal
(1) The court, however, may dismiss the petition if it finds the same to be:
(a) Patently without merit;
(b) Prosecuted manifestly for delay; or
(c) The questions raised therein are too unsubstantial to require consideration (Sec. 8, Rule 65).
(1) The constitutional right against unreasonable search and seizure refers to the immunity of ones
person, whether a citizen or alien, from interference by government, included in whish is his
residence, his papers and other possession (Villanueva vs. Querubin, 48 SCRA 345). The
overriding function of the constitutional guarantee is to protect personal privacy and human
dignity against unwarranted intrusion by the State. It is deference to ones personality that lies at
the core of his right, but it could also be looked upon as a recognition of a constitutionally
protected area primarily ones house, but not necessarily thereto confined. What is sought to be
guarded is a mans prerogative to choose who is allowed entry to his residence. In that haven of
refuge, his individuality can assert itself not only in the choice of who shall be welcome but
likewise in the kind of objects he wants around him. Thus is outlawed any unwarranted intrusion
by government, which is called upon to refrain from any intrusion of his dwelling and to respect
the privacies of his life (Schmerber vs. California, 384 US 757).
(2) The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched and the
persons or things to be seized (Sec. 2, Art. III, Constitution).
(1) An application for search warrant shall be filed with the following:
(a) Any court within whose territorial jurisdiction a crime was committed.
(b) For compelling reasons stated in the application, any court within the judicial region where the
crime was committed if the place of the commission of the crime is known, or any court within
the judicial region where the warrant shall be enforced.
However, if the criminal action has already been filed, the application shall only be made in the
court where the criminal action is pending (Sec, 2).
Probable Cause
(1) Probable cause is defined as such facts and circumstances which could lead a reasonably
discreet and prudent man to believe that an offense has been committed and that the objects
th
sought in connection with the offense are in the place sought to be searched (20 Century Fox
Film Corp. vs. CA, GR 76649-51, 08/19/88). Although probable cause eludes exact and concrete
definition, it generally signifies a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man to believe that a person accused is
guilty of the offense with which he is charged (People vs. Aruta, 288 SCRA 626).
(2) Requisites for issuing search warrant. A search warrant shall not issue except upon probable
cause in connection with one specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witness he may produce, and
particularly describing the place to be searched and the things to be seized which may be
anywhere in the Philippines (Sec. 4).
(3) Issuance and form of search warrant. If the judge is satisfied of the existence of facts upon which
the application is based or that there is probable cause to believe that they exist, he shall issue
the warrant, which must be substantially in the form prescribed by these Rules (Sec. 6).
(1) The judge must, before issuing the warrant, personally examine in the form of searching
questions and answers, in writing and under oath, the complainant and the witnesses he may
produce on facts personally known to them and attach to the record their sworn statements,
together with the affidavits submitted (Sec. 5).
(1) The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched and the
persons or things to be seized (Sec. 2, Art. III, Constitution).
(2) The place specified in the search warrant, and not the place the police officers who applied for the
search warrant had in mind, controls. For the police officers cannot amplify nor modify the place
stated in the search warrant (People vs. CA, 291 SCRA 400). The rule is that a description of the
place to be searched is sufficient if the officer with the warrant can, with reasonable effort,
ascertain and identify the place intended to be searched. Where there are several apartments in
the place to be searched, a description of the specific place can be determined by reference to
the affidavits supporting the warrant that the apartment to be searched is the one occupied by the
accused. The searching party cannot go from one apartment to the other as the warrant will then
become a general warrant (People vs. Salanguit, 356 SCRA 683).
(1) Personal property to be seized. A search warrant may be issued for the search and seizure of
personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the offense; or
(c) Used or intended to be used as the means of committing an offense (Sec. 3).
(2) It is not necessary that the property to be searched or seized should be owned by the person
against whom the search is issued; it is sufficient that the property is under his control or
possession (People vs. Dichoso, 223 SCRA 174).
(1) In a case (People vs. Abriol, 367 SCRA 327), the Court added other exceptions to the prohibition
against warrantless search, thus:
(a) Consented search;
(b) As an incident to a lawful arrest;
(c) Searches of vessels and aircrafts for violation of immigration, customs and drug laws;
(d) Searches of moving vehicles;
(e) Searches of automobiles at borders or constructive borders;
(f) Where the prohibited articles are in plain view;
(g) Searches of buildings and premises to enforce fire, sanitary and building regulations;
(h) Stop and frisk operations;
(i) Exigent and emergency circumstances (People vs. Valez, 304 SCRA 140).
a. Search incidental to lawful arrest A person lawfully arrested may be searched for dangerous
weapons or anything which may have been used or constitute proof in the commission of an offense
without a search warrant (Sec. 13, Rule 126). The law requires that there first be a lawful arrest before
a search can be made. The process cannot be reversed (People vs. Malmstedt, 198 SCRA 40). Thus,
in a buy-bust operation conducted to entrap a drug pusher, the law enforcement agents may seize the
marked money found on the person of the pusher immediately after the arrest even without arrest and
search warrants (People vs. Paco, 170 SCRA 681).
b. Consented Search Rights may be waived, unless the waiver is contrary to law, public order,
morals, or good customs, or prejudicial to a third person with a right recognized by law (Art. 6, Civil
Code). To constitute a valid waiver of a constitutional right, it must appear: (1) that the right exists, (2)
the person involved had knowledge either actual or constructive, of the existence of such right, and
(3) said person has an actual intention to relinquish the right (People vs. Salangga, GR 100910,
07/25/94).
As the constitutional guarantee is not dependent upon any affirmative act of the citizen, the courts do
not place the citizen in the position of either contesting an officers authority by force, or waiving his
constitutional rights, but instead they hold that a peaceful submission and silence of the accused in a
search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard to
the supremacy of the law (People vs. Barros, 231 SCRA 557).
c. Search of moving vehicle This is justified on the ground that the mobility of motor vehicles makes
it possible for the vehicles to move out of the locality or jurisdiction in which the warrant must be
sought. This, however, does not give the police officers unlimited discretion to conduct warrantless
searches of automobiles in the absence of probable cause People vs. Bagista, 214 SCRA 63).
In carrying out warrantless searches of moving vehicles, peace officers are limited to routine checks,
that is, the vehicles are neither really searched nor their occupants subjected to physical or body
searches, the examination of the vehicles being limited to visual inspection (People vs. Barros, 231
SCRA 557). Warrantless search o moving vehicle is justified on the ground that it is not practicable to
secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which
the warrant must be sought (People vs. Lo Ho Wong, 193 SCRA 122).
d. Check points; body checks in airport In Aniag, Jr. vs. COMELEC, 237 SCRA 424, a warrantless
search conducted at police or military checkpoints has been upheld for as long as the vehicle is
neither searched nor its occupants subjected to body search, and the inspection of the vehicle is
merely limited to visual search.
Routine inspections are not regarded as violative of an individuals right against unreasonable search.
The search which is normally permissible is this instance is limited to the following instances: (1)
where the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair
grounds; (2) simply looks into a vehicle; (3) flashes a light therein without opening the cars doors; (4)
where the occupants are not subjected to a physical or body search; (5) where the inspection of the
vehicles is limited to a visual search or visual inspection; and (6) where the routine check is
conducted in a fixed area (Caballes vs. CA, GR 136292, 01/15/02).
e. Plain view situation The plain view doctrine recognizes that objects inadvertently falling in plain
view of an officer who has the right to be in the position to have that view, are subject to seizure
without warrant (Harris vs. US, 390 US 324). It may not, however, be used to launch unbridled
searches and indiscriminate seizures, nor to extend a general exploratory search made solely to find
evidence of a defendants guilt. It is usually applied where a police officer is not searching for
evidence against the accused, but nonetheless inadvertently comes across an incriminating object
(Coolidge vs. New Hampshire, 403 US 443). It is also been suggested that even if an object is
observed in plain view, the seizure of the subject will not be justified where the incriminating nature of
the object is not apparent. Stated differently, it must be immediately apparent to the police that the
items that they observe may be evidence of a crime, contraband or otherwise subject to seizure
(People vs. Musa, 217 SCRA 597).
(1) A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in
and acted upon only by the court where the action has been instituted. If no criminal action has
been instituted, the motion may be filed in and resolved by the court that issued search warrant.
However, if such court failed to resolve the motion and a criminal case is subsequently filed in
another court, the motion shall be resolved by the latter court (Sec. 14).
(2) If a search warrant is issued and it is attacked, a motion quash is the remedy or a motion to
suppress the evidence seized pursuant to the search warrant would be available. Replevin may
also be proper if the objects are legally possessed.
(3) Alternative remedies of the accused adversely affected by a search warrant are the following:
(a) Motion to quash the search warrant with the issuing court; or
(b) Motion suppress evidence with the court trying the criminal case.
The remedies are alternative, not cumulative. If the motion to quash is denied, a motion to
suppress cannot be availed of subsequently.
(1) The provisional remedies in civil actions, insofar as they are applicable, may be availed of in
connection with the civil action deemed instituted with the criminal action (Sec. 1).
(2) The requisites and procedure for availing of these provisional remedies shall be the same as
those for civil cases. Consequently, an application for recovery of damages on the bond posted
for purposes of said provisional remedies shall be made in the same action and, generally, cannot
be the subject of a separate action (Sec. 14, Rule 57; Sec. 8, Rule 58; Sec. 9, Rule 59; Sec. 10,
Rule 60). For this reason, the order of trial now specifically provides that the accused may present
evidence, not only to prove his defense, but also such damages as he may have sustained and
arising from the issuance of any provisional remedy in the case (Sec. 11[b], Rule 119; Sec. 12,
Rule 124).
(3) The provisional remedies under this Rule are proper only where the civil action for the recovery of
civil liability ex delicto has not been expressly waived or the right to institute such civil action
separately is not reserved, in those cases where such reservation may be made. A fortiori, where
the civil action has actually been instituted, whether such action has been suspended by the
subsequent institution of the criminal action (Se3c. 2, Rule 111) or may proceed independently of
the criminal action but may be applied for in the separate civil action.
(1) Attachment. - When the civil action is properly instituted in the criminal action as provided in Rule
111, the offended party may have the property of the accused attached as security for the
satisfaction of any judgment that may be recovered from the accused in the following cases:
(a) When the accused is about to abscond from the Philippines;
(b) When the criminal action is based on a claim for money or property embezzled or fraudulently
misapplied or converted to the use of the accused who is a public officer, officer of a
corporation, attorney, factor, broker, agent or clerk, in the course of his employment as such,
or by any other person in a fiduciary capacity, or for a willful violation of duty;
(c) When the accused has concealed, removed, or disposed of his property, or is about to do so;
and
(d) When the accused resides outside the Philippines (Sec. 2).
(2) Rule 57 on preliminary attachment applies on the procedure to secure an attachment in the cases
authorize3d under Rule 127.
Grounds upon which attachment may issue. -- At the commencement of the action or
at any time before entry of judgment, a plaintiff or any proper party may have the
property of the adverse party attached as security for the satisfaction of any judgment
that may be recovered in the following cases:
(a) In an action for the recovery of a specified amount of money or damages,
other than moral and exemplary, on a cause of action arising from law,
contract, quasi-contract, delict or quasi-delict against a party who is about to
depart from the Philippines with intent to defraud his creditors;
(b) In an action for money or property embezzled or fraudulently misapplied or
converted to his own use by a public officer, or an officer or a corporation, or
an attorney, factor, broker, agent, or clerk, in the course of his employment
as such, or by any other person in a fiduciary capacity, or for a willful violation
of duty;
(c) In an action to recover the possession of property unjustly or fraudulently
taken, detained or converted, when the property, or any part thereof, has
been concealed, removed, or disposed of to prevent its being found or taken
by the applicant or an authorized person;
(d) In an action against a party who has been guilty of a fraud in contracting the
debt or incurring the obligation upon which the action is brought, or in the
performance thereof;
(e) In an action against a party who has removed or disposed of his property, or
is about to do so, with intent to defraud his creditors; or
PART IV.
EVIDENCE
(Rules 128 134)
I. General Principles (Rule 128)
Concept of Evidence
(1) Evidence is the means, sanctioned by the Rules of Court, of ascertaining in a judicial proceeding
the truth respecting a matter of fact (Sec. 1, Rule 128).
(2) Generally, the mode or manner of proving factual allegations in a complaint, information or
petition is through witnesses who are placed in the witness stand to testify on what they
personally know of the case and/or to identify relevant documents. They are presented voluntarily
or through the coercive process of subpoena suces tecum. Evidence is also secured by resorting
to modes of discoveries, such as:
(a) Taking of depositions of any person, oral or written (Rule 23);
(b) Serving of interrogatories to parties (Rule 25);
(c) Serving of requests for admission by the adverse party (Rule 25);
(d) Production and inspection of documents (Rule 27); and
(e) Examination of physical and mental conditions of persons (Rule 28).
A matter may also be proved by means of affidavit, such as in motions based on facts not
appearing on record, in cased covered by the Rules on Summary Procedure, and those filed in
administrative or quasi-judicial bodies.
The basis of evidence is the adaptation to the successful development of the truth; and a rule
of evidence at one time though necessary to the ascertainment of truth should yield to the
experience of a succeeding generation whenever that experience has clearly demonstrated
the fallacy or unwisdom of the old rule (Funk vs. US, 391).
(1) As used in judicial proceedings, the rules of evidence shall be the same in all courts and in all
trials and hearings, except as otherwise provided by law or the Rules of Court (Sec. 2, Rule 128).
Evidence Proof
Medium of proof Effect and result of evidence
Means to the end End result
Admissibility of Evidence
(1) In order that evidence may be admissible, two requisites must concur, namely:
(a) That it is relevant to the issue; and
(b) That it is competent, that is, that it does not belong to that class of evidence which is excluded
by the law or the rules.
(2) Admissibility is determined, first, by relevancyan affair of logic and not of law; second, but only
indirectly, by the law of evidence which, in strictness, only declares whether matter which is
logically probative is excluded (Presumptions and the Law of Evidence, 3 Harv. L. Rev. 13-14).
(1) Evidence must have such a relation to the fact in issue as to induce belief in its existence or non-
existence. Evidence on collateral matters shall not be allowed, except when it tends in any
reasonable degree to establish the probability or improbability of the fact in issue (Sec. 4, Rule
128).
(2) Evidence is relevant when it has a relation to the fact in issue as to induce belief in its existence or
non-existence. Relevant evidence is one which tends in any reasonable degree to establish the
probability or improbability of the fact in issue.
(3) Tests of Relevancy:
(a) Every fact or circumstance tending to throw light on the issue is relevant;
(b) Evidence is relevant from which the fact in issue is logically inferable;
(c) Any circumstance is relevant which tends to make the proposition at issue more or less
probable, or which is calculated to explain or establish facts pertinent to the inquiry;
(d) The test is whether the evidence conduces to the proof of a pertinent hypothesis, such
hypothesis being one which, if sustained, would logically influence the issue;
(e) The facts are relevant if they fairly tend to prove the offense charged (Underhills Criminal
Evidence, 5th Ed., Vol. I).
(4) Collateral matters are those other than the facts in issue and which are offered as basis for
inference as to the existence or non-existence of the facts in issue (1 Wigmore 432).
(a) Prospectant collateral matters those preceding of the fact in issue but pointing forward to it,
like moral character, motive, conspiracy;
(b) Concomitant collateral matters those accompanying the fact in issue and pointing to it, like
alibi, or opportunity and incompatibility;
(c) Retrospectant collateral matters those succeeding the fact in issue but pointing backward to
it, like flight and concealment, behavior of the accused upon being arrested, fingerprints or
footprints, articles left at the scene of the crime which may identify the culprit (1 Wigmore 442-
43).
Multiple admissibility
(1) When a fact is offered for one purpose, and is admissible in so far as it satisfies all rules
applicable to it when offered for that purpose, its failure to satisfy some other rule which would be
applicable to it if offered for another purpose does not exclude it (Wigmores Code of Evidence,
3rd Ed., p. 18).
Conditional admissibility
(1) Where two or more evidentiary facts are so connected under the issues that the relevancy of one
depends upon another not yet evidenced, and the party is unable to introduce them both at the
same moment, the offering counsel may be required by the court, as a condition precedent (a) to
state the supposed connecting facts; and (b) to promise to evidence them later. If a promise thus
made is not fulfilled, the court may strike out the evidence thus conditionally admitted, if a motion
is made by the opposite party. Thus, evidence of facts and declarations may not become material
or admissible until shown to be those of an agent of the other party, and a copy of a writing may
not become competent evidence until the original is proven to be lost or destroyed (Wigmore on
Evidence).
Curative admissibility
(1) Where an inadmissible fact has been offered by one party and received without objection, and the
opponents afterwards, for the purpose of negativing or examining or otherwise counteracting it,
offers a fact similarly inadmissible, such fact is admissible if it serves to remove an unfair effect
upon the court which might otherwise ensue from the original fact. If the opponent made a timely
objection at the time the inadmissible evidence was offered, and his objection was erroneously
overruled in the first instance, the claim to present similar inadmissible facts would be untenable
since his objection would save him, on appeal, from any harm which may accrue (McCormick on
Evidence, p. 35).
(2) Evidence, otherwise improper, is admitted to contradict improper evidence introduced by the
other party (1 Wigmore 304-309).
(1) Direct evidence is that which proves the fact in dispute without the aid of any inference or
presumption.
(2) Circumstantial evidence is the proof of facts from which, taken collectively, the existence of the
particular fact in dispute may be inferred as a necessary or probable consequence.
(1) Testimony is positive when the witness affirms that a fact did or did not exist; and it is negative
when he says that he did not see or know of the factual occurrence (Tanala vs. NLRC, 252 SCRA
314). Positive evidence is entitled to greater weight, the reason being that he who denies a
certain fact may not remember exactly the circumstances on which he bases his denial (People
vs. Mendoza, 236 SCRA 666).
(1) Competent evidence is one that is not excluded by law or the rules. In the law of evidence,
competency means the presence of those characteristics, or the absence of those disabilities,
which render a witness legally fit and qualified to give testimony in a court of justice; which is
applied, in the same sense, to documents or other written evidence (Balcks Law Dictionary).
Exclusionary rule makes evidence illegally obtained as inadmissible in evidence, hence, not
competent.
(2) A witness may be competent, and yet give incredible testimony; he may be incompetent, and yet
his evidence, if received, be perfectly credible.
(3) Trial courts may allow a person to testify as a witness upon a given matter because he is
competent, but may thereafter decide whether to believe or not to believe his testimony.
Credibility depends on the appreciation of his testimony and arises from the brief conclusion of
the court that said witness is telling the truth (Gonzales vs. CA, 90 SCRA 183).
(1) 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 required by law (Sec. 1, Rule 131).
Presumptions
(1) Presumptions are species of evidence which may prove certain issues in dispute. Presumptions
are either conclusive or disputable.
(2) A conclusive presumption is an inference which the law makes so peremptory that it will not allow
it to be overturned by a contrary proof however strong. It is an artificially compelling force which
requires the trier of facts to find such fact as conclusively presumed and which renders evidence
to the contrary inadmissible. It is sometimes referred to as irrebuttable presumption.
(3) A disputable presumption is an inference as to the existence of fact not actually known which
arises from its usual connection with another fact is known, which may be overcome by contrary
proof. Between a proven fact and a presumption pro tanto, the former stands and the latter falls
(Ledesma vs. Realubin, 8 SCRA 608).
b. Disputable presumptions (Juris tantum) -- The following presumptions are satisfactory if uncontradicted,
but may be contradicted and overcome by other evidence (Sec. 3, Rule 131):
(a) That a person is innocent of crime or wrong;
(b) That an unlawful act was done with an unlawful intent;
(c) That a person intends the ordinary consequences of his voluntary act;
(d) That a person takes ordinary care of his concerns;
(e) That evidence willfully suppressed would be adverse if produced;
(f) That money paid by one to another was due to the latter;
(g) That a thing delivered by one to another belonged to the latter;
(h) That an obligation delivered up to the debtor has been paid;
(i) That prior rents or installments had been paid when a receipt for the later ones is produced;
(j) That a person found in possession of a thing taken in the doing of a recent wrongful act is the
taker and the doer of the whole act; otherwise, that things which a person possesses, or
exercises acts of ownership over, are owned by him;
(k) That a person in possession of an order on himself for the payment of the money, or the
delivery of anything, has paid the money or delivered the thing accordingly;
(1) That a person acting in a public office was regularly appointed or elected to it;
(m) That official duty has been regularly performed;
(n) That a court, or judge acting as such, whether in the Philippines or elsewhere, was acting in
the lawful exercise of jurisdiction;
(o) That all the matters within an issue raised in a case were laid before the court and passed
upon by it; and in like manner that all matters within an issue raised in a dispute submitted for
arbitration were laid before the arbitrators and passed upon by them;
(p) That private transactions have been fair and regular;
(q) That the ordinary course of business has been followed;
(r) That there was a sufficient consideration for a contract;
(1) Court litigations are primarily for the search of truth, and a liberal interpretation of the rules by
which both parties are given the fullest opportunity to adduce proofs is the best way to ferret out
the truth (People vs. Ebias, 342 SCRA 675).
(2) Liberal interpretation means such equitable construction as will enlarge the letter of rule to
accomplish its intended purpose, carry out its intent, or promote justice. It is that construction
which expands the meaning of the rule to meet cases which are clearly within the spirit or reason
thereof or which gives a rule its generally accepted meaning to the end that the most
comprehensive application thereof may be accorded, without doing violence to any of its terms. In
short, liberal construction means that the words should receive a fair and reasonable
interpretation, so as to secure a just, speedy and inexpensive disposition of every action or
proceeding (Agpalo, Statutory Construction, p. 287 [1998]).
(1) In the hierarchy of evidentiary values, the highest is proof beyond reasonable doubt, followed by
clear and convincing evidence, preponderance of evidence, and substantial evidence, in that
order (Manalo vs. Roldan-Confessor, 215 SCRA 808; ERB vs. CA, 357 SCRA 30 [2001]).
a. Proof beyond reasonable doubt which is required for conviction of an accused in criminal case, means
that which is the logical and inevitable result of the evidence on record, exclusive of any other
consideration, of the moral certainty of the guilt of the accused or that degree of proof which produces
conviction in an unprejudiced mind. Proof beyond reasonable doubt does not mean such degree of
proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required
(People vs. Bacalso, 191 SCRA 557 [1991]).
b. Preponderance of evidence which is the degree of evidence required in civil cases, means that which
is of greater weight or more convincing than that which is offered in opposition to it. It is considered as
synonymous with the terms greater weight of evidence or greater weight of credible evidence. It
means probably the truth. It is evidence which is more convincing to the court as worthy of belief than
that which is offered in opposition thereto (Republic vs. CA, 204 SCRA 160 [1991]).
d. Clear and convincing evidence refers to that measure or degree of proof which will produce in the
mind of the trier of facts a firm belief or conviction as to the allegations sought to be established; it is
more than preponderance but not to the extent of such moral certainty as is required beyond
th
reasonable doubt as in criminal cases (Blacks Law Dictionary, 5 Ed., 1979). It is often said that to
overcome a disputable presumption of law, clear and convincing evidence is required. For instance, to
contradict the presumption of validity and regularity in favor of a notarial or public document, there
must be evidence that is clear, convincing and more than preponderant (Yturalde vs. Azurin, 28
SCRA 407 [1969]). The presumption that law enforcers have regularly performed their duties requires
that proof of frame-up, which can be made with ease, must be strong, clear and convincing (People
vs. Tranca, 235 SCRA 455 [1994]). An accused who invokes self-defense must prove it by clear and
convincing evidence (People vs. Sazon, 189 SCRA 700 [1990]).
a. Mandatory -- A court shall take judicial notice, without the introduction of evidence, of the existence and
territorial extent of states, their political history, forms of government and symbols of nationality, the
law of nations, the admiralty and maritime courts of the world and their seals, the political constitution
and history of the Philippines, the official acts of the legislative, executive and judicial departments of
the Philippines, the laws of nature, the measure of time, and the geographical divisions (Sec. 1, Rule
129).
b. Discretionary -- A court may take judicial notice of matters which are of public knowledge, or are
capable of unquestionable demonstration, or ought to be known to judges because of their judicial
functions (Sec. 2, Rule 129).
Judicial Admissions -- An admission, verbal or written, made by a party in the course of the proceedings in
the same case, does not require proof. The admission may be contradicted only by showing that it was
made through palpable mistake or that no such admission was made (Sec. 4, Rule 129).
(1) Judicial admissions are those so made in the pleadings filed or in the progress of a trial (Jones on
Evidence, Sec. 894).
(2) Judicial admissions are conclusive upon the party making them, while extrajudicial admissions or
other admissions are, as a rule, and where the elements of estoppels are not present, disputable.
(3) Judicial admissions may be verbal or those verbally made in the course of the trial or they may be
written, such as those stated in a pleading. They may be express or implied, implied admissions
by a defendant of material facts alleged in a complaint include (a) keeping silent on such material
facts, (b) denying such material facts without setting forth the matters upon which he relies to
support his denial, and (c) asserting lack of knowledge or information of the truth of the material
allegations when the same is plainly and necessarily within the knowledge of defendant.
a. Effect of judicial admissions Under the Rules, a judicial admission cannot be contradicted unless
previously shown to have been made thru palpable mistake or that no such admission was made. An
admission in a pleading on which a party goes to trial is conclusive against him unless the court in its
reasonable discretion allows the pleader to withdraw, explain or modify it if it appears to have been
made by improvidence or mistake or that no such admission was made.
b. How judicial admissions may be contradicted Judicial admissions can be contradicted: (1) when it is
shown that the admission was made through palpable mistake; or (2) when it is shown that no such
admission was in fact made. These exceptions may negate the admission. But before the court may
(1) The question as to what are the laws of a foreign state is one of fact, not of law. Foreign laws may
not be taken judicial notice of and have to be proved like any other fact (In re Estate of Johnson,
39 Phil. 156), except where said laws are within the actual knowledge of the court such as when
they are well and generally known or they have been actually ruled upon in other cases before it
and none of the parties claim otherwise (Phil. Commercial & Industrial Bank vs. Escolin, L-27936,
03/29/74).
(2) To prove the foreign law, the requirements of Secs. 24 and 25, Rule 132 must be complied with,
that is, by an official publication or by a duly attested and authenticated copy thereof. The
provisions of the foreign law may also be the subject of judicial admission under Sec. 4, Rule 129.
Absent any of the foregoing evidence or admission, the foreign law is presumed to the same as
that in the Philippines, under the so-called doctrine of processual presumption (Collector of
Internal Revenue vs. Fisher, L-11622, 01/28/61).
(3) When a foreign law is part of a published treatise, periodical or pamphlet and the writer is
recognized in his profession or calling as expert in the subject, the court may take judicial notice
of the treatise containing the foreign law (Sec. 46, Rule 130).
(4) When a foreign law refers to the law of nations, said law is subject to mandatory judicial notice
under Sec. 1, Rule 129. Under the Philippine Constitution, the Philippines adopts the generally
accepted principles of international law as part of the law of the land (Sec. 2, Art. II). They are
therefore technically in the nature of local laws and hence, are subject to a mandatory judicial
notice.
(5) MTCs must take judicial notice of municipal ordinances in force in the municipality in which they
sit (US vs. Blanco, 37 Phil. 126). RTCs should also take judicial notice of municipal ordinances in
force in the municipalities within their jurisdiction but only when so required by law. For instance,
the charter of City of Manila requires all courts sitting therein to take judicial notice of all
ordinances passed by the city council (City of Manila vs. Garcia, 19 SCRA 413). Such court must
take judicial notice also of municipal ordinances on appeal to it from the inferior court in which the
latter took judicial notice (US vs. Hernandez, 31 Phil. 542). The Court of Appeals may take judicial
notice of municipal ordinances because nothing in the Rules prohibits it from taking cognizance of
an ordinance which is capable of unquestionable demonstration (Gallego vs. People, 8 SCRA
813).
(1) Objects as evidence are those addressed to the senses of the court. When an object is relevant to
the fact in issue, it may be exhibited to, examined or viewed by the court (Sec. 1, Rule 130).
(2) Real evidence refers to the thing or fact or material or corporate object or human body parts
thereof, which can be viewed or inspected by the court and which a party may present in
evidence. Real evidence is also called autoptic preference, which is inspection by the court of a
thing itself and its conditions, to enable the court to effectively exercise its judicial power of
receiving and weighing the evidence (Tiglao vs. Comelec, 34 SCRA 456). It is knowledge
acquired by the court from inspection or by direct self-perception or autopsy of the evidence
(Calde vs. CA, 233 SCRA 376).
(3) The evidence of ones own senses, furnishes the strongest probability and indeed the only perfect
and indubitable certainty of the existence of any sensible fact. Physical evidence is evidence of
the highest order. It speaks more eloquently than a hundred witnesses.
(1) The requisites for admissibility of object (real) evidence are as follows:
(a) The object must be relevant to the fact in issue There must be a logical connection between
the evidence and the point at which it is offered;
(b) The object must be competent It should not be excluded by law or the rules;
(c) The object must be authenticated before it is admitted Authentication normally consists of
showing that the object is the object that was involved in the underlying event;
(d) The authentication must be made by a competent witness; and
(e) The object must be formally offered in evidence.
(1) For purposes of authentication of an object or for laying the foundation for the exhibit, object
evidence may be classified into the following:
(a) Object that have readily identifiable marks (unique objects);
(b) Objects that are made readily identifiable (objects made unique); and
(c) Objects with no identifying marks and cannot be marked (non-unique objects).
Demonstrative Evidence
(1) Demonstrative evidence is tangible evidence that merely illustrates a matter of importance in the
litigation. Common types of demonstrative evidence include photographs, motion pictures and
recordings, x-ray pictures, scientific tests, demonstrations and experiments, maps, diagrams,
models, summaries, and other materials created especially for the litigation.
(2) In contrast to demonstrative evidence, object evidence is a tangible object that played some
actual role in the matter that gave rise to the litigation. For instance, the knife used in the
altercation that forms the basis for the lawsuit. The distinction between object and demonstrative
evidence is important because it helps determine the standards that the evidence must meet to
be admissible. In particular, the foundation that must be laid for object evidence is generally
somewhat different from that needed for demonstrative evidence.
(3) The foundation for demonstrative evidence does not involve showing that the object was the one
used in the underlying event. Rather, the foundation generally involves showing that the
demonstrative object fairly represents or illustrates what it is alleged to illustrate.
(1) Objects as evidence are those addressed to the senses of the court. When an object is relevant to
the fact in issue, it may be exhibited to, examined or viewed by the court (Sec. 1, Rule 130).
(2) The inspection may be made inside or outside the courtroom. An inspection or view outside the
courtroom should be made in the presence of the parties or at least with previous notice to them.
It is error for the judge for example, to go alone to the land in question, or to the place where the
crime was committed and take a view without the previous knowledge of the parties. Such
inspection or view is part of the trial since evidence is thereby being received (Moran, Comments
on the Rules of Court, Vols. 5, 78-79).
Chain of Custody in Relation to Section 21 of the Comprehensive Dangerous Drugs Act of 2002
The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous
drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following
manner:
(1) The apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
(1) DNA means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell
of the body. The totality of an individuals DNA is unique for the individual, except identical twins
(Sec. 3).
(2) DNA evidence constitutes the totality of the DNA profiles, results and other genetic information
directly generated from DNA testing of biological samples.
(3) DNA profile means genetic information derived from DNA testing of a biological sample obtained
from a person, which biological sample is clearly identifiable as originating from that person;
(4) DNA testing means verified and credible scientific methods which include the extraction of DNA
from biological samples, the generation of DNA profiles and the comparison of the information
obtained from the DNA testing of biological samples for the purpose of determining, with
reasonable certainty, whether or not the DNA obtained from two or more distinct biological
(1) The appropriate court may, at any time, either motu propio or on application of any person who
has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due
hearing and notice to the parties upon a showing of the following:
(a) A biological sample exists that is relevant to the case;
(b) The biological sample:
1) Was not previously subjected to the type of DNA testing now requested; or
2) Was previously subjected to DNA testing but the results may require confirmation for good
reasons;
(c) The DNA testing uses a scientifically valid technique;
(d) The DNA testing has the scientific potential to produce new information that is relevant to the
proper resolution of the case; and
(e) The existence of other factors, if any, which the court may consider as potentially affecting the
accuracy of integrity of the DNA testing.
This rule shall not preclude a DNA testing, without need of prior court order, at the behest of
any party, including law enforcement agencies, before a suit or proceeding is commenced
(Sec. 4).
(1) Post-conviction DNA testing may be available, without need of prior court order, to the
prosecution or any person convicted by final and executory judgment provided that (a) a biological
sample exists, (b) such sample is relevant to the case, and (c) the testing would probably result in
the reversal or modification of the judgment of conviction (Sec. 6).
(2) Remedy if the results are favorable to the convict. The convict or the prosecution may file for a
writ of habeas corpus in the court of origin if the results of the post-conviction DNA testing are
favorable to the convict. In the case the court, after due hearing finds the petition to be
meritorious, it shall reverse or modify the judgment of conviction and order the release of the
convict, unless continued detention is justified for a lawful cause (Sec. 10).
(1) In assessing the probative value of the DNA evidence presented, the court shall consider the
following:
(a) The chair of custody, including how the biological samples were collected, how they were
handled, and the possibility of contamination of the samples;
(b) The DNA testing methodology, including the procedure followed in analyzing the samples, the
advantages and disadvantages of the procedure, and compliance with the scientifically valid
standards in conducting the tests;
(c) The forensic DNA laboratory, including accreditation by any reputable standards-setting
institution and the qualification of the analyst who conducted the tests. If the laboratory is not
accredited, the relevant experience of the laboratory in forensic casework and credibility shall
be properly established; and
(d) The reliability of the testing result, as herein after provided.
The provisions of the Rules of Court concerning the appreciation of evidence shall apply
suppletorily (Sec. 7).
(1) In evaluating whether the DNA testing methodology is reliable, the court shall consider the
following:
(a) The falsifiability of the principles or methods used, that is, whether the theory or technique
can be and has been tested;
B. Documentary Evidence
(1) A document is defined as a deed, instrument or other duly notarized paper by which something is
proved, evidenced or set forth. Any instrument notarized by a notary public or a competent public
official, with the solemnities required by law, is a public document. Pleadings filed in a case and in
the custody of the clerk of court are public documents. All other documents are private documents
(Bermejo vs. Barrios, 31 SCRA 764).
(1) Documentary evidence is evidence supplied by written instruments, or derived from conventional
symbols, such as letters, by which ideas are represented on material substances; documents
produced for the inspection of the court or judge. It includes books, papers accounts and the like
(22 CJ 791).
(2) Documents as evidence consist of writings or any material containing letters, words, numbers,
figures, symbols or other modes of written expressions offered as proof of their contents (Sec. 2,
Rule 130).
(1) The best evidence rule is that rule which requires the highest grade of evidence obtainable to
th
prove a disputed fact (Whartons Criminal Evidence, 11 Ed.). It cannot be invoked unless the
contents of a writing is the subject of judicial inquiry, in which case the best evidence is the
original writing itself.
(2) The best evidence refers to that which the law or the rules consider as the best evidence to prove
the fact in dispute. The best evidence is the evidence which the case in its nature is susceptible
and which is within the power of the party to produce. Evidence cannot be received which
indicates on its face that it is secondary, that is, merely substitutionary in its nature, and that the
original source of information is in existence and accessible. The underlying purpose is the
prevention of fraud (29 Am. Jur. 508).
b. When applicable When the subject of inquiry is the contents of a document, no evidence shall be
admissible other than the original document itself, except in the following cases:
c. Meaning of original
(1) Wigmore states that the original does not necessarily mean the one first written; its meaning is
relative only to the particular issue. The original is the document whose contents are to be proved.
(2) Sec. 4, Rule 130 has clarified what constitutes the original of a document:
(a) The original of a document is one the contents of which are the subject of inquiry;
(b) When a document is in two or more copies executed at or about the same time, with identical
contents, all such copies are equally regarded as originals; and
(c) When an entry is repeated in the regular course of business, one being copied from another
at or near the time of the transaction, all the entries are likewise equally regarded as originals.
(1) Before the contents of the original may be proved by secondary evidence satisfactory proof must
be made of the following:
(a) The execution or existence of the original;
(b) The loss and destruction of the original or its nonproduction in court;
(c) Unavailability of the original is not due to bad faith on the part of the offeror (Bautista vs. CA,
165 SCRA 507).
(2) Requisites for introduction of secondary evidence are stated under Sec. 3:
(a) When the original has been lost or destroyed, or cannot be produced in court, without bad
faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from them
is only the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is recorded in a public
office (Sec. 3, Rule 130).
(4) When original document is unavailable. When the original document has been lost or destroyed,
or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause
of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital
of its contents in some authentic document, or by the testimony of witnesses in the order stated
(Sec. 5)
(5) When original document is in adverse party's custody or control. If the document is in the
custody or under the control of the adverse party, he must have reasonable notice to produce it. If
(1) Electronic evidence is that which use of electronic data message as evidence.
(2) Electronic data message refers to information generated, sent, received or stored by electronic,
optical or similar means (Sec. 1(g), Rule 2).
(1) Burden of proving authenticity. The person seeking to introduce an electronic document in any
legal proceeding has the burden of proving its authenticity in the manner provided in this Rule
(Sec. 1, Rule 5).
(2) Manner of authentication. Before any private electronic document offered as authentic is received
in evidence, its authenticity must be proved by any of the following means:
(a) By evidence that it had been digitally signed by the person purported to have signed the
same;
(1) Electronic document refers to information or the representation of information, data, figures,
symbols or other modes of written expression, described or however represented, by which a
right is established or an obligation extinguished, or by which a fact may be proved and affirmed,
which is received, recorded, transmitted, stored, processed, retrieved or produced electronically.
It includes digitally signed documents and any print-out or output, readable by sight or other
means, which accurately reflects the electronic data message or electronic document. For
purposes of these Rules, the term electronic document may be used interchangeably with
electronic data message (Sec. 1(h), Rule 2).
(2) Original of an electronic document. An electronic document shall be regarded as the equivalent of
an original document under the Best Evidence Rule if it is a printout or output readable by sight or
other means, shown to reflect the data accurately (Sec. 1, Rule 4).
(3) Copies as equivalent to the originals. When a document is in two or more copies executed at or
about the same time with identical contents, or is a counterpart produced by the same impression
as the original, or from the same matrix, or by mechanical or electronic re-recording, or by
chemical reproduction, or by other equivalent techniques which accurately reproduces the
original, such copies or duplicates shall be regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as
the original if:
(a) A genuine question is raised as to the authenticity of the original; or
(1) Audio, photographic and video evidence of events, acts or transactions shall be admissible
provided it shall be shown, presented or displayed to the court and shall be identified, explained
or authenticated by the person who made the recording or by some other person competent to
testify on the accuracy thereof (Sec. 1, Rule 11).
(2) Ephemeral electronic communications shall be proven by the testimony of a person who was a
party to the same or has personal knowledge thereof. In the absence or unavailability of such
witnesses, other competent evidence may be admitted.
A recording of the telephone conversation or ephemeral electronic communication shall be
covered by the immediately preceding section.
If the foregoing communications are recorded or embodied in an electronic document, then the
provisions of Rule 5 (authentication of electronic documents) shall apply (Sec. 2, Rule 11).
(3) Ephemeral electronic communication refers to telephone conversations, text messages, chatroom
sessions, streaming audio, streaming video, and other electronic forms of communication the
evidence of which is not recorded or retained (Sec. 1(k), Rule 2).
(1) The parol evidence rule is arule which states that when the terms of an agreement have been
reduced to writing, it is considered as containing all the terms agreed upon, and there can be
between the parties and their successors in interest, no evidence of such terms other than the
contents of the written agreement. It seeks to preserve what the parties have reduced in writing
and probibits evidence alliunde or oral testimonial evidence from being presented to vary the
terms of, or add stipulations to, the written agreement (Gaw vs. IAC, 220 SCRA 405). In other
words, any oral evidence of an agreement should be excluded when the existing agreement is
already in writing (Congregations of the Religious of the Virgin Mary vs. CA, 291 SCRA 385) .
(2) Parol evidence forbids any addition to or contradiction of the terms of a written instrument by
testimony purporting to show that, at or before the signing of the document, other or different
terms were orally agreed upon by the parties (Goldband vs. Allen, 245 Mass. 143). Oral testimony
cannot prevail over a written agreement of the parties, the purpose being to give stability to
written agreements and to remove the temptation and possibility of perjury, which would be
afforded if parol evidence were admissible.
(3) The rule is based on the presumption that the parties have made the written instrument the only
repository and memorial of the truth and whatever is not found in the instrument must have been
waived and abandoned by the parties. Hence, parol evidence cannot serve the purpose of
incorporation into the contract additional contemporaneous conditions which are not mentioned at
all in the writing, unless the case falls under any of the exceptions to the rule (Cu vs. CA, 195
SCRA 647).
c. Distinctions between the best evidence rule and parol evidence rule
a. Meaning of authentication
(1) Authentication is the process of evidencing the due execution and genuineness of a document.
(1) Proof of private document. Before any private document offered as authentic is received in
evidence, its due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the maker
Any other private document need only be identified as that which it is claimed to be (Sec. 20).
(2) A private document or writing is one which is executed by the parties without the intervention of a
public notary or a duly authorized public official, by which some disposition or agreement is
proved, evidenced or set forth. Being a private document, its due execution and authenticity must
first be established, by one of the parties thereto, by the testimony of any one who saw the writing
executed, by evidence of the genuineness of the handwriting of the maker thereof i(Ong vs.
People, 342 SCRA 372).
(1) When evidence of authenticity of private document not necessary. Where a private document is
more than thirty years old, is produced from a custody in which it would naturally be found if
genuine, and is unblemished by any alterations or circumstances of suspicion, no other evidence
of its authenticity need be given (Sec. 21).
(2) Private documents whose due execution and authenticity need not be proved, and may thus be
presented in evidence like public documents, include the following:
(a) Ancient documents as provided for in Sec. 21; and
(b) Documents admitted by the adverse party (Chua vs. CA, 206 SCRA 339).
(3) An ancient document is one that is:
(a) More than thirty (30) years old;
(b) Found in the proper custody;
(c) Unblemished by any alteration or by any circumstance of suspicion; and
(d) It must on its face appear to be genuine (Cequena vs. Bolante, 330 SCRA 216).
(1) How genuineness of handwriting proved. The handwriting of a person may be proved by any
witness who believes it to be the handwriting of such person because he has seen the person
write, or has seen writing purporting to be his upon which the witness has acted or been charged,
and has thus acquired knowledge of the handwriting of such person. Evidence respecting the
handwriting may also be given by a comparison, made by the witness or the court, with writings
admitted or treated as genuine by the party against whom the evidence is offered, or proved to be
genuine to the satisfaction of the judge (Sec. 22, Rule 132).
(2) The genuineness of a handwriting may be proved By any witness who believes it to be the
handwriting of a person because:
(a) He has seen the person write; or
(b) He has seen the writing purporting to be his upon which the witness has acted or been
charged, and has thus acquired knowledge of the handwriting of such person;
(c) By a comparison made by the witness or the court, with writings admitted or treated as
genuine by the party against whom the document is offered, or proved to be genuine to the
satisfaction of the judge (Heirs of Amado Celestial vs. Heirs of Editha Celestial, GR 142691,
08/05/03).
(3) The test of genuineness ought to be the resemblance, not the formation of letters in some other
specimens but to the general character of writing, which is impressed on it as the involuntary and
unconscious result of constitution, habit or other permanent course, and is, therefore, itself
permanent. The identification of handwriting should not rest, therefore, on the apparent similarity
or dissimilarity of one feature but should be based on the examination of all the basic
characteristics of the handwriting under study (People vs. Agresor, 320 SCRA 302).
(4) Public documents as evidence. Documents consisting of entries in public records made in the
performance of a duty by a public officer are prima facie evidence of the facts therein stated. All
other public documents are evidence, even against a third person, of the fact which gave rise to
their execution and of the date of the latter (Sec. 23). Public documents are of two classes:
(a) Those issued by competent public officials by reason of their office, and
(b) Those executed by private individuals which are authenticated by notaries public (Intestate
Estate of Pareja vs. Pareja, 95 Phil. 167).
(5) Proof of official record. The record of public documents referred to in paragraph (a) of Section 19
(official acts), when admissible for any purpose, may be evidenced (a) by an official publication
thereof or (b) by a copy attested by the officer having the legal custody of the record, or by his
deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such
officer has the custody. If the office in which the record is kept is in a foreign country, the
certificate may be made by a secretary of the embassy or legation, consul general, consul, vice
consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the
foreign country in which the record is kept, and authenticated by the seal of his office (Sec. 24).
g. Attestation of a copy
(1) What attestation of copy must state. Whenever a copy of a document or record is attested for the
purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of
the original, or a specific part thereof, as the case may be. The attestation must be under the
official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal,
under the seal of such court (Sec. 25).
(1) Public record of a private document. An authorized public record of a private document may be
proved by the original record, or by a copy thereof, attested by the legal custodian of the record,
with an appropriate certificate that such officer has the custody (Sec. 27).
(1) Proof of lack of record. A written statement signed by an officer having the custody of an official
record or by his deputy that after diligent search no record or entry of a specified tenor is found to
exist in the records of his office, accompanied by a certificate as above provided, is admissible as
evidence that the records of his office contain no such record or entry (Sec. 28).
(1) How judicial record impeached. Any judicial record may be impeached by evidence of: (a) want
of jurisdiction in the court or judicial officer, (b) collusion between the parties, or (c) fraud in the
party offering the record, in respect to the proceedings (Sec. 29).
(2) Judicial proceedings are presumed to be regular and should be given full faith and credit, and that
all steps required by law had been taken. It is also presumed that a court or judge acting as such,
whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction. To
impeach judicial record, there must therefore be evidence of want of jurisdiction, collusion
between the parties or fraud on the part of the party offering the record, which must be clear,
convincing and more than merely preponderant, in order to overcome the presumption of
regularity in the performance of official duties and the presumption of regularity of judicial
(1) Proof of notarial documents. Every instrument duly acknowledged or proved and certified as
provided by law, may be presented in evidence without further proof, the certificate of
acknowledgment being prima facie evidence of the execution of the instrument or document
involved (Sec. 30).
(2) Notarization is not an empty routine. It converts a private document into a public document and
renders it admissible in court without further proof of its authenticity. A notarial document is by law
entitled to full faith and credit upon its face and, for this reason, notaries public must observe with
utmost care the basic requirements in the performance of their duties. Otherwise, the confidence
of the public in the integrity of this form of conveyance would be undermined (Coronado vs.
Felonco, 344 SCRA 565).
(1) Alterations in document, how to explain. The party producing a document as genuine which has
been altered and appears to have been altered after its execution, in a part material to the
question in dispute, must account for the alteration. He may show that the alteration was made by
another, without his concurrence, or was made with the consent of the parties affected by it, or
was otherwise properly or innocently made, or that the alteration did not change the meaning or
language of the instrument. If he fails to do that the document shall not be admissible in evidence
(Sec. 31).
C. Testimonial Evidence
1. Qualifications of a Witness
(1) Except as provided in the next succeeding section, all persons who can perceive, and perceiving,
can make known their perception to others, may be witnesses. Religious or political belief,
interest in the outcome of the case, or conviction of a crime unless otherwise provided by law,
shall not be a ground for disqualification (Sec. 20, Rule 130).
(2) A person is qualified or is competent to be a witness, if (a) he is capable of perceiving, and (b) he
can make his perception known. It should be noted however, that loss of the perceptive sense
after the occurrence of the fact does not affect the admissibility of the testimony. Hence, a blind
man can testify to what he saw prior to his blindness or a deaf man, to what he heard prior to his
deafness. But a person incapable of perception is pro tanto incapable of testifying (Whartons
Criminal Evidence).
(3) A witness may have been capable of perceiving, yet incapable of narration. He may have no
powers of speech, and have no means of expressing himself by signs. He may have become
insane since the occurrence he is called upon to relate. A person incapable of narration is pro
tanto incapable of testifying (ibid.).
Disqualifications of Witnesses
(1) During their marriage, neither the husband nor the wife may testify for or against the other without
the consent of the affected spouse, except in a civil case by one against the other, or in a criminal
Disqualification by reason of death or insanity of adverse party (Survivorship or Dead Mans Statute)
(1) This rule applies only to a civil case or a special proceeding. The following are the elements for
the application of the rule:
(a) The plaintiff is the person who has a claim against the estate of the decedent or person of
unsound mind;
(b) The defendant in the case is the executor or administrator or a representative of the
deceased or the person of unsound mind;
(c) The suit is upon a claim by the plaintiff against the estate of said deceased or person of
unsound mind;
(d) The witness is the plaintiff, or an assignor of that party, or a person in whose behalf the case
is prosecuted; and
(e) The subject of the testimony is as to any matter of fact occurring before the death (ante litem
motam) of such deceased person or before such person became of unsound mind (Sec. 23).
(1) The husband or the wife, during or after the marriage, cannot be examined without the consent of
the other as to any communication received in confidence by one from the other during the
marriage except in a civil case by one against the other, or in a criminal case for a crime
committed by one against the other or the latter's direct descendants or ascendants (Sec. 24).
(2) The application of the rule requires the presence of the following elements:
(a) There must be a valid marriage between the husband and the wife;
(b) There is a communication made in confidence by one to the other; and
(c) The confidential communication must have been made during the marriage.
(1) An attorney cannot, without the consent of his client, be examined as to any communication made
by the client to him, or his advice given thereon in the course of, or with a view to, professional
employment, nor can an attorney's secretary, stenographer, or clerk be examined, without the
(1) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the
consent of the patient, be examined as to any advice or treatment given by him or any information
which he may have acquired in attending such patient in a professional capacity, which
information was necessary to enable him to act in that capacity, and which would blacken the
reputation of the patient (Sec. 24).
(2) For the disqualification to apply, it is necessary that:
(a) The physician is authorized to practice medicine, surgery or obstetrics;
(b) The information was acquired or the advice or treatment was given by him in his professional
capacity for the purpose of treating and curing the patient;
(c) The information, advice or treatment, if revealed, would blacken the reputation of the patient;
and
(d) The privilege is invoked in a civil case, whether the patient is a party thereto or not.
(3) The privilege does not apply where:
(a) The communication was not given in confidence;
(b) The communication is irrelevant to the professional employment;
(c) The communication was made for an unlawful purpose, as when it is intended for the
commission or concealment of a crime;
(d) The information was intended to be made public; or
(e) There was a waiver of the privilege either by the provisions of contract or law.
(4) The privilege survives the death of the patient (Bassil vs. Ford Motor Co., 278 Mich. 173).
(1) A minister or priest cannot, without the consent of the person making the confession, be
examined as to any confession made to or any advice given by him in his professional character
in the course of discipline enjoined by the church to which the minister or priest belongs (Sec. 24).
(2) The communication must be made pursuant to confessions of sin (Wigmore, 848). Where the
penitent discussed business arrangements with the priest, the privilege does not apply (US vs.
Gordon, 493 F. Supp. 822).
(1) A public officer cannot be examined during his term of office or afterwards, as to communications
made to him in official confidence, when the court finds that the public interest would suffer by the
disclosure (Sec. 24).
(2) The disqualification because of privileged communications to public officers requires that:
(a) It was made to the public officer in official confidence; and
(b) Public interest would suffer by the disclosure of such communications, as in the case of State
secrets. Where no public interest would be prejudiced, this rule does not apply (Banco Filipino
vs. Monetary Board, GR 70054, 07/08/86).
(3) Public interest means more than a mere curiosity; it means something in which the public, the
community at large, has some pecuniary interest by which their legal rights or liabilities are
affected (State vs. Crockett, 206 P. 816).
(4) Exceptions to the rule:
(a) What is asked is useful evidence to vindicate the innocence of an accused person;
(b) Disclosure would lessen the risk of false testimony;
(c) Disclosure is essential to the proper disposition of the case;
(d) The benefit to be gained by a correct disposition of the litigation was greater than any injury
which could inure to the relation by a disclosure of the information (70 CJ 453).
(1) No person may be compelled to testify against his parents, other direct ascendants, children or
other direct descendants (Sec. 25).
(2) Under Art. 215 of the Family Code, the descendant may be compelled to testify against his
parents and grandparents if such testimony is indispensable in prosecuting a crime against the
descendant or by one parent against the other.
(1) The examination of witnesses presented in a trial or hearing shall be done in open court, and
under oath or affirmation. Unless the witness is incapacitated to speak, or the question calls for a
different mode of answer, the answers of the witness shall be given orally (Sec. 1).
(2) The entire proceedings of a trial or hearing, including the questions propounded to a witness and
his answers thereto, the statements made by the judge or any of the parties, counsel, or
witnesses with reference to the case, shall be recorded by means of shorthand or stenotype or by
other means of recording found suitable by the court. A transcript of the record of the proceedings
made by the official stenographer, stenotypist or recorder and certified as correct by him shall be
deemed prima facie a correct statement of such proceedings (Sec. 2).
(1) A witness must answer questions, although his answer may tend to establish a claim against him.
However, it is the right of a witness:
(a) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting
demeanor;
(b) Not to be detained longer than the interests of justice require;
(c) Not to be examined except only as to matters pertinent to the issue;
(d) Not to give an answer which will tend to subject him to a penalty for an offense unless
otherwise provided by law; or
(e) Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at
issue or to a fact from which the fact in issue would be presumed. But a witness must answer
to the fact of his previous final conviction for an offense (Sec. 3).
Direct examination Direct examination is the examination- Purpose is to build up the theory of
in-chief of a witness by the party the case by eliciting facts about the
presenting him on the facts relevant to clients cause of action or defense.
the issue (Sec. 5).
Cross examination Upon the termination of the direct Cross-examination aims to: (a) Test
examination, the witness may be cross- the accuracy and truthfulness of the
examined by the adverse party as to witness and his freedom from interest
any matters stated in the direct or bias or the reverse; and (b) Elicit all
examination, or connected therewith, important facts bearing upon the
with sufficient fullness and freedom to issue, not only of those covered in the
test his accuracy and truthfulness and direct examination but also on all
freedom from interest or bias, or the other matters relevant to the issue/s
reverse, and to elicit all important facts pleaded.
bearing upon the issue (Sec. 6).
Re-direct examination After the cross-examination of the Principal objects are (a) to prevent
witness has been concluded, he may be injustice to the witness and the party
re-examined by the party calling him, to who has called him by affording an
explain or supplement his answers opportunity to the witness to explain
given during the cross-examination. On the testimony given on cross-
re-direct examination, questions on examination, (b) to explain any
matters not dealt with during the cross- apparent contradiction or
examination, may be allowed by the inconsistency in his statements, and
court in its discretion (Sec. 7). (c) complete the answer of a witness,
or add a new matter which has been
omitted, or correct a possible
misinterpretation of testimony.
Re-cross examination Upon the conclusion of the re-direct A witness cannot be recalled without
examination, the adverse party may re- leave of court, which may be granted
cross-examine the witness on matters only upon showing of concrete,
stated in his re-direct examination, and substantial grounds.
also on such other matters as may be
allowed by the court in its discretion
(Sec. 8).
Recalling the witness After the examination of a witness by Aims to correct or explain his prior
both sides has been concluded, the testimony; or lay the proper
witness cannot be recalled without foundation for his impeachment, but
leave of the court. The court will grant or this is permitted only with the
withhold leave in its discretion, as the discretion of the court.
interests of justice may require (Sec. 9).
(1) Cross-examination of a witness is the absolute right, not a mere privilege, of the party against
whom he is called; and with regard to the accused, it is a right granted by the Constitution. Sec.
14(2), Art. III thereof provides that the accused shall enjoy the right to meet the witnesses face to
face.
(1) A question which suggests to the witness the answer which the examining party desires is a
leading question. It is not allowed, except:
(a) On cross examination;
(b) On Preliminary matters;
(2) A misleading question is one which assumes as true a fact not yet testified to by the witness, or
contrary to that which he has previously stated. It is not allowed (Sec. 10). The adverse party
should object thereto or ask the court to expunge the answer from the records, if he has already
given his answer.
(1) To impeach means to call into question the veracity of the witnesss testimony by means of
evidence offered for that purpose, or by showing that the witness is unworthy of belief.
Impeachment is an allegation, supported by proof, that a witness who has been examined is
unworthy of credit (98 CJS 353).
(2) A witness be impeached by the party against whom he was called:
(a) By contradictory evidence;
(b) By evidence that his general reputation for truth, honesty, or integrity is bad; or
(c) By evidence that he has made at other times statements inconsistent with his present
testimony;
(d) But not by evidence of particular wrongful acts, except that it may be shown by the
examination of the witness, or the record of the judgment, that he has been convicted of an
offense (Sec. 11).
(3) Other modes of impeachment aside from those provided by the Rules are:
(a) By producing the record of his conviction of an offense;
(b) By showing improbability or unreasonableness of testimony;
(c) By showing bias, prejudice or hostility;
(d) By prior acts or conduct inconsistent with his testimony;
(e) By showing social connections, occupation and manner of living (Underhills Criminal
Evidence, 5th Ed., Vol I);
(f) By showing interest (Wigmore on Evidence);
(g) By showing intent and motive (US vs. Lamb, 26 Phil. 423).
(4) The credibility of a witness may be attacked by proof of his bias, interest or hostility; by
contradictory evidence; by evidence that his general reputation for truth, honesty or integrity is
bad; by evidence that he has made at other times statements inconsistent with his present
testimony; and by the testimony of other witness that the facts about which he has testified are
otherwise than he as stated (58 Am. Jur. 370).
(5) Party may not impeach his own witness. Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his
credibility. A witness may be considered as unwilling or hostile only if so declared by the court
upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having
misled the party into calling him to the witness stand. The unwilling or hostile witness so declared,
or the witness who is an adverse party, may be impeached by the party presenting him in all
respects as if he had been called by the adverse party, except by evidence of his bad character.
He may also be impeached and cross-examined by the adverse party, but such cross
examination must only be on the subject matter of his examination-in-chief (Sec. 12).
How the witness is impeached by evidence of inconsistent statements (Laying the Predicate)
(1) Before a witness can be impeached by evidence that he has made at other times statements
inconsistent with his present testimony, (a) the statements must be related to him, with the
circumstances of the times and places and the persons present, and (b) he must be asked
whether he made such statements, and if so, allowed to explain them. If the statements be in
(1) Evidence of the good character of a witness is not admissible until such character has been
impeached (Sec. 14, Rule 132). This rule that evidence of a good character of a witness is not
admissible until such character has been impeached is the logical result of the other one, that the
law presumes every person to be reputedly truthful until evidence shall have been produced to
the contrary (Johnson vs. State, 129 Wis. 146).
Admission Confession
An act, declaration or omission of a party as to a The declaration of an accused acknowledging his
relevant fact (Sec. 26, Rule 130). guilt of the offense charged, or of any offense
necessarily included therein (Sec. 33, Rule 130).
It is a voluntary acknowledgment made by a party It is a statement by the accused that he engaged in
of the existence of the truth of certain facts which conduct which constitutes a crime (29 Am. Jur.
are inconsistent with his claims in an action (Blacks 708).
Law Dictionary, 5th Ed.).
Broader than confession. Specific type of admission which refers only to an
acknowledgment of guilt
May be implied like admission by silence. Cannot be implied, but should be a direct and
positive acknowledgment of guilt.
(1) Res inter alios acta alteri nocere debt means that things done to strangers ought not to injure
th
those who are not parties to them (Blacks Law Dictionary, 5 Ed.). It has two branches, namely:
(a) The rule that the rights of a party cannot be prejudiced by an act, declaration, or omission of
another (sec. 28, Rule 130); and
(b) The rule that evidence of previous conduct or similar acts at one time is not admissible to
prove that one did or did not do the same act at another time (sec. 34, Rule 132).
(2) The rule has reference to extrajudicial declarations. Hence, statements made in open court by a
witness implicating persons aside from his own judicial admissions are admissible as declarations
from one who has personal knowledge of the facts testified to.
(3) Exceptions to the first branch of the rule:
(a) Admission by a co-partner or agent (Sec. 29, Rule 130);
(b) Admission by a co-conspirator (Sec. 30, Rule 130); and
(c) Admission by privies (Sec. 31, Rule 130).
Admission by a party
(1) The act, declaration or omission of a party as to a relevant fact may be given in evidence against
him (Sec. 26).
(1) The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except
as hereinafter provided (Sec. 28).
(1) The act or declaration of a partner or agent of the party within the scope of his authority and
during the existence of the partnership or agency, may be given in evidence against such party
after the partnership or agency is shown by evidence other than such act or declaration. The
same rule applies to the act or declaration of a joint owner, joint debtor, or other person jointly
interested with the party (Sec. 29).
(2) For the admission of a co-partner or agent to be admissible, the following requisites must concur:
(a) The declaration or act of the partner and agent must have been made or done within the
scope of his authority;
(b) The declaration or act of the partner and agent must have been made or done during the
existence of the partnership or agency, and the person making the declaration still a partner
or an agent; and
(c) The existence of the partnership or agency is proven by evidence other than the declaration
or act of the partner and agent.
Admission by a conspirator
(1) The act or declaration of a conspirator relating to the conspiracy and during its existence, may be
given in evidence against the co-conspirator after the conspiracy is shown by evidence other than
such act of declaration (Sec. 30).
(2) Conspiracy exists when two or more persons come to an agreement concerning the commission
of a felony and decide to commit it (Art. 8, RPC). Once conspiracy is proven, the act of one is the
act of all. The statement therefore of one may be admitted against the other co-conspirators as an
exception to the rule of res inter alios acta.
Admission by privies
(1) Where one derives title to property from another, the act, declaration, or omission of the latter,
while holding the title, in relation to the property, is evidence against the former (Sec. 31).
(2) Privity means mutual succession of relationship to the same rights of property. Privies are those
who have mutual or successive relationship to the same right of property or subject matter, such
as personal representatives, heirs, devisees, legatees, assigns, voluntary grantees or judgment
creditors or purchasers from them with notice of the facts.
(3) Three exceptions are recognized to the rule that declarations of the transferor, made subsequent
to the transfer, are inadmissible:
(a) Where the declarations are made in the presence of the transferee, and he acquiesces in the
statements, or asserts no rights where he ought to speak;
(b) Where there has been a prima facie case of fraud established, as where the thing after the
sale or transfer, remains with the seller or transferor;
(c) Where the evidence establishes a continuing conspiracy to defraud, which conspiracy exists
between the vendor and the vendee (Jones on Evidence, Sec. 912).
Admission by silence
(1) An act or declaration made in the presence and within the hearing or observation of a party who
does or says nothing when the act or declaration is such as naturally to call for action or comment
if not true, and when proper and possible for him to do so, may be given in evidence against him
(Sec. 32).
(2) The rule that the silence of a party against whom a claim or right is asserted may be construed as
an admission of the truth of the assertion rests on that instinct of our nature, which leads us to
resist an unfounded demand. The common sense of mankind is expressed in the popular phrase,
silence gives consent which is but another form of expressing the maxim of the law, qui tacet
cosentire videtur (Perry vs. Johnson, 59 Ala. 648).
(3) Before the silence of a party can be taken as an admission of what is said, the following requisites
must concur:
(a) Hearing and understanding of the statement by the party;
(b) Opportunity and necessity of denying the statements;
(c) Statement must refer to a matter affecting his right;
(d) Facts were within the knowledge of the party; and
(e) Facts admitted or the inference to be drawn from his silence would be material to the issue.
Confessions
(1) The declaration of an accused acknowledging his guilt of the offense charged, or of any offense
necessarily included therein, may be given in evidence against him (Sec. 33).
(2) Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the presence of counsel.
(a) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will
shall be used against him. Secret detention places, solitary, incommunicado, or other similar
forms of detention are prohibited;
(b) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him (Sec. 12, Art. III, Constitution).
(3) Confession is an acknowledgment in express words, by the accused in a criminal case, of the
truth of the offense charged, or of some essential parts thereof (Wigmore). To be valid,
confessions must be voluntarily and freely made.
(1) Evidence that one did or did not do a certain thing at one time is not admissible to prove that he
did or did not do the same or a similar thing at another time; but it may be received to prove a
specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the like
(Sec. 34).
(2) Reason for the rule: It is clear that evidence of other crimes compels the defendant to meet
charges of which the indictment gives him no information, confuses him in his defense, raises a
variety of issue, and thus diverts the attention of the court from the charge immediately before it.
The rule may be said to be an application of the principle that the evidence must be confined to
the point in issue in the case on trial. In other words, evidence of collateral offenses must not be
received as substantive evidence of the offenses on trial (20 Am. Jur. 288).
Hearsay Rule
Testimony generally confined to personal knowledge; hearsay excluded. A witness can testify only to
those facts which he knows of his personal knowledge; that is, which are derived from his own perception,
except as otherwise provided in these rules (Sec. 36 Rule 130).
Meaning of hearsay
(1) Evidence is called hearsay when its probative force depends in whole or in part on the
competency and credibility of some persons other than the witness by whom it is sought to
produce it (31 CJS 919). It also means the evidence not of what the witness himself knows but of
th
what he has heard from others (Woodroffes Law on Evidence, 9 Ed.).
(1) Hearsay evidence is inadmissible according to the general rule. The real basis for the exclusion
appears to lie in the fact that hearsay testimony is not subject to the tests which can ordinarily be
applied for the ascertainment of the truth of testimony, since the declarant is not present and
available for cross-examination. In criminal cases the admission of hearsay evidence would be a
violation of the constitutional provision that the accused shall enjoy the right of being confronted
Dying declaration
(1) The declaration of a dying person, made under the consciousness of an impending death, may be
received in any case wherein his death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death (Sec. 37).
(2) Dying declarations are the statements made by a person after the mortal wounds have been
inflicted, under the belief that death is certain, stating the facts concerning the cause of, and the
circumstances surrounding the homicide (Whartons Criminal Evidence).
(3) Requisites:
(a) That death is imminent and the declarant is conscious of that fact;
(b) That the declaration refers to the cause and surrounding circumstances of such death;
(c) That the declaration relates to facts which the victim is competent to testify to; and
(d) That the declaration is offered in a case wherein the declarants death is the subject of the
inquiry.
(1) The declaration made by a person deceased, or unable to testify, against the interest of the
declarant, if the fact asserted in the declaration was at the time it was made so far contrary to
declarant's own interest, that a reasonable man in his position would not have made the
declaration unless he believed it to be true, may be received in evidence against himself or his
successors in interest and against third persons (Sec. 38).
(1) The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of
another person related to him by birth or marriage, may be received in evidence where it occurred
before the controversy, and the relationship between the two persons is shown by evidence other
than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth,
marriage, death, the dates when and the places where these facts occurred, and the names of the
relatives. It embraces also facts of family history intimately connected with pedigree (Sec. 39).
(2) Pedigree is the history of family descent which is transmitted from one generation to another by
both oral and written declarations and by traditions (Jones on Evidence).
(3) Requisites for applicability:
(a) Declarant is dead or unable to testify;
(b) Necessity that pedigree be in issue;
(c) Declarant must be a relative of the person whose pedigree is in question;
(d) Declaration must be made before the controversy occurred; and
(e) The relationship between the declarant and the person whose pedigree is in question must be
shown by evidence other than such act or declaration.
(1) The reputation or tradition existing in a family previous to the controversy, in respect to the
pedigree of any one of its members, may be received in evidence if the witness testifying thereon
be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other
family books or charts, engravings on rings, family portraits and the like, may be received as
evidence of pedigree (Sec. 40).
(2) Requisites for the exception to apply:
(a) There is a controversy in respect to the pedigree of any members of a family;
(b) The reputation or tradition of the pedigree of the person concerned existed ante litem motam
or pervious to the controversy; and
(c) The witness testifying to the reputation or tradition regarding the pedigree of the person
concerned must be a member of the family of said person, either by consanguinity or affinity.
Common reputation
(1) Common reputation existing previous to the controversy, respecting facts of public or general
interest more than thirty years old, or respecting marriage or moral character, may be given in
evidence. Monuments and inscriptions in public places may be received as evidence of common
reputation (Sec. 41).
(2) Requisites for the admissibility of the exception:
(1) Statements made by a person while a startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of
the res gestae. So, also, statements accompanying an equivocal act material to the issue, and
giving it a legal significance, may be received as part of the res gestae (Sec. 42).
(2) Res gestae is from the Latin meaning things done and includes the circumstances, facts and
declarations incidental to the main fact or transaction, necessary to illustrate its character, and
also includes acts, words and declarations which are so closely connected therewith as to
constitute a part of the transaction. As applied to a crime, res gestae means the complete criminal
transaction from its beginning or starting point in the act of the accused until the end is reached.
(3) The test for the admissibility of evidence as part of the res gestae is whether the act, declaration
or exclamation is so intimately interwoven or connected with the principal fact or event which it
characterizes as to be regarded as a part of the transaction itself, and also whether it clearly
negative any premeditation or purpose to manufacture testimony (32 CJS 21).
(4) The general classes of declarations to which the term res gestae is usually applied are (a)
spontaneous statements, and (b) verbal acts.
(1) Entries made at, or near the time of the transactions to which they refer, by a person deceased, or
unable to testify, who was in a position to know the facts therein stated, may be received as prima
facie evidence, if such person made the entries in his professional capacity or in the performance
of duty and in the ordinary or regular course of business or duty (Sec. 43).
(2) Requisites for admissibility:
(a) Entries must have been made at or near the time of the transaction to which they refer;
(b) Entrant must have been in a position to know the facts stated in the entries;
(c) Entries must have been made by entrant in his professional capacity or in the performance of
his duty;
(d) Entries were made in the ordinary or regular course of business of duties;
(e) Entrant must be deceased or unable to testify.
(1) Entries in official records made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie
evidence of the facts therein stated (Sec. 44).
(2) Requisites for admissibility:
(a) That it was made by a public officer, or by another persons specially enjoined by law to do so;
(b) It was made by a public officer in the performance of his duty, of by another person in the
performance of a duty specially enjoined by law;
(c) The public officer or the other person had sufficient knowledge of the facts by him stated,
which must have been acquired by him personally or through official information.
(1) A published treatise, periodical or pamphlet on a subject of history, law, science or art is
admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice,
or a witness expert in the subject testifies that the writer of the statement in the treatise, periodical
or pamphlet is recognized in his profession or calling as expert in the subject (Sec. 46).
(2) Requisites for admissibility:
(a) The court takes judicial notice that the writer of the statement in the treatise, periodical or
pamphlet, is recognized in his profession or calling as expert in the subject; or
(b) A witness, expert in the subject testifies that the writer of the statement in the treatise,
periodical or pamphlet is recognized in his profession or calling as expert in the subject
(Wigmore on Evidence).
(1) The testimony or deposition of a witness deceased or unable to testify, given in a former case or
proceeding, judicial or administrative, involving the same parties and subject matter, may be
given in evidence against the adverse party who had the opportunity to cross-examine him (Sec.
47).
(2) Requisites for admissibility:
(a) The witness whose testimony is offered in evidence is either dead, unable to testify, insane,
mentally incapacitated, lost his memory through old age or disease, physically disabled, kept
away by contrivance of the opposite party and despite diligent search cannot be found;
(b) Identity of parties in the previous and the present case or proceeding;
(c) Identity of issues;
(d) Opportunity of cross-examination of witness.
(3) If the witness has been subjected to cross-examination in a former trial, the rule is satisfied, and
the former testimony may now be used. In applying this proposition, the following details may
arise for settlement:
(a) Was the testimony given before a court allowing cross-examination by adverse parties and
having power to compel answer? If not, the testimony cannot be used.
(b) If the testimony was given as a deposition, was the opponent given reasonable notice and
opportunity to attend and cross-examine?
(c) Whether at a former trial or before a deposition officer, were the then issues and parties so
nearly the same as now that the opportunity to cross-examine on the present issues was
inadequate? If not, the testimony cannot be used.
(d) Was cross-examination prevented by the death or illness or refusal of the witness, after giving
his direct testimony? If it was, the direct examination cannot be used (Wigmore on Evidence).
Opinion Rule
(1) General rule: the opinion of a witness is not admissible. Upon the question of the existence or
non-existence of any fact in issue, whether a main fact or evidentiary fact, opinion evicence as to
its existence or nonexistence is inadmissible. The witness must testify to facts within their
knowledge and may not state their opinion, even on their cross-examination.
(2) Exceptions: opinion of expert witness under Sec. 49, and opinion of ordinary witnesses under
Sec. 50 (Sec. 48, Rule 130):
(a) On a matter requiring special knowledge, skill, experience or training which he possesses,
that is, when he is an expert thereon;
(b) Regarding the identity or the handwriting of a person, when he has knowledge of the person
or handwriting, whether he is an ordinary or expert witness (Sec. 22, Rule 132);
(c) On the mental sanity or a person, if the witness is sufficiently acquainted with the former or if
the latter is an expert witness;
(d) On the emotion, behavior, condition or appearance of a person which he has observed; and
(e) On ordinary matters known to all men of common perception, such as the value of ordinary
household articles (Galian vs. State Assurance Co., 29 Phil. 413).
(1) The opinion of a witness on a matter requiring special knowledge, skill, experience or training
which he is shown to possess, may be received in evidence (Sec. 49).
(2) An expert is a person who is so qualified, either by actual experience or by careful study, as to
enable him to form a definite opinion of his own respecting any division of science, branch of art,
or department of trade about which persons having no particular training or special study are
incapable of forming accurate opinions or of deducing correct conclusions 920 Am. Jur. 634). It is
sufficient that the following factors are present:
(a) Training and education;
(b) Particular, first-hand familiarity with the facts of the case; and
(c) Presentation of the authorities or standards upon which his opinion is based.
(3) Before one may be allowed to testify as an expert witness, his qualification must first be
established by the party presenting him, i.e., he must be shown to possess the special skill or
knowledge relevant to the question to which he is to express an opinion (People vs. Fundano, 291
SCRA 356).
(4) Requisites for admissibility of expert testimony:
(a) The subject under examination must be one that requires that the court has the aid of
knowledge or experience as cannot be obtained from the ordinary witnesses;
(b) The witness called an expert must possess the knowledge, skill, or experience needed to
inform the court in the particular case under consideration;
(c) Like other evidence, expert testimony is not admissible as to a matter not in issue (Whartons
Criminal Evidence, 11th Ed,).
(5) Form of the question on direct examination of an expert witness:
(a) Opinion based on facts known personally by the expert;
(b) Opinion based on facts of which he has personal knowledge.
(6) How may the opinion of an expert witness be impeached:
(a) He may be contradicted by others in his own class or by any competent witness, or by use of
exhibits; or
(b) The weight of his testimony may be impaired by showing that he is interested or biased;
(c) That he made inconsistent statement at another time, provided a proper foundation is laid
therefor;
(d) That he formed a different opinion at another time;
(e) That he did not express the opinion testified to at a time when such expression might
reasonably have been expected; or
(f) That he changed sides in the case 932 CJS 411).
(7) Common subjects of expert testimony: handwriting, typewritten documents, fingerprints, ballistics,
medicine, value of properties and services,
(1) The opinion of a witness for which proper basis is given, may be received in evidence regarding -
(a) the identity of a person about whom he has adequate knowledge;
(b) A handwriting with which he has sufficient familiarity; and
(c) The mental sanity of a person with whom he is sufficiently acquainted.
The witness may also testify on his impressions of the emotion, behavior, condition or
appearance of a person (Sec. 50).
(2) The rules on the admissibility of character evidence may be summarized as follows:
(a) In criminal cases, the prosecution may not at the outset prove the bad moral character of the
accused which is pertinent to the moral trait involved in the offense charged. If the accused,
however, in his defense attempts to prove his good moral character then the prosecution can
introduce evidence of such bad moral character at the rebuttal stage.
(b) Also in criminal case, the good or bad moral character of the offended party may always be
proved by either party as long as such evidence tends to establish the probability or
improbability of the offense charged.
(c) In civil cases, the moral character of either party thereto cannot be proved unless it is
pertinent to the issue of character involved in the case.
(d) In both civil and criminal cases, the bad moral character of a witness may always be proved
by either party (Sec. 11, Rule 132), but not evidence of his good character, unless it has been
impeached (Sec. 14, Rule 132).
(3) With respect to the nature or substance of the character evidence which may be admissible, the
rules require that:
(a) With respect to the accused, such character evidence must be pertinent to the moral trait
involved in the offense charged;
(b) With respect to the offended person, it is sufficient that such character evidence may
establish in any reasonable degree the probability or improbability of the offense charged, as
in prosecutions for rape or consented abduction wherein the victims chastity may be
questioned, and in prosecution for homicide wherein the pugnacious, quarrelsome or trouble-
seeking character of the victim is a proper subject of inquiry; and
(c) With respect to witnesses, such character evidence must refer to his general reputation for
truth, honesty or integrity, that is, as affecting his credibility (Regalado, Remedial Law
Compendium, Vol. II).
(1) Unless otherwise provided, this Rule shall govern the examination of child witnesses who are
victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal
proceedings and non-criminal proceedings involving child witnesses (Sec. 1).
(1) A child witness is any person who at the time of giving testimony is below the age of 18 years. In
child abuse cases, a child includes one over 18 years but is found by the court as unable to fully
(1) Every child is presumed qualified to be a witness. However, the court shall conduct a competency
examination of a child, motu propio or on motion of a party, when it finds that substantial doubt
exists regarding the stability of the child to perceive, remember, communicate, distinguish truth
from falsehood, or appreciate the duty to tell the truth in court (Sec. 6).
(2) Proof of necessity. A party seeking a competency examination must present proof of necessity of
competency examination. The age of the child by itself is not a sufficient basis for a competency
examination (Sec. 6[a]).
(3) Burden of proof. To rebut the presumption of competence enjoyed by a child, the burden of proof
lies on the party challenging his competence (Sec. 6[b]).
(4) Persons allowed at competency examination. Only the following are allowed to attend a
competency examination:
(a) The judge and necessary court personnel;
(b) The counsel for the parties;
(c) The guardian ad litem;
(d) One or more support persons for the child; and
(e) The defendant, unless the court determines that competence can be fully evaluated in his
absence (Sec. 6[c]).
(5) Conduct of examination. Examination of a child as to his competence shall be conducted only by
the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his
discretion, ask the child (Sec. 6[d]).
(6) Developmentally appropriate questions. The questions asked at the competency examination
shall be appropriate to the age and developmental level of the child; shall not be related to the
issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish
between truth and falsehood, and appreciate the duty to testify truthfully (Sec. 6[e]).
(7) Continuing duty to assess competence. The court has the duty of continuously assessing the
competence of the child throughout his testimony (Sec. 6[f]).
(1) The examination of a child witness presented in a hearing or any proceeding shall be done in
open court. Unless the witness is incapacitated to speak, or the question calls for a different mode
of answer, the answers of the witness shall be given orally. The party who presents a child
witness or the guardian ad litem of such child witness may, however, move the court to allow him
to testify in the manner provided in this Rule (Sec. 8).
(a) The prosecutor, counsel or the guardian ad litem may apply for an order that the testimony of the
child be taken in a room outside the courtroom and be televised to the courtroom by live-link
television.
Before the guardian ad litem applies for an order under this section, he shall consult the
prosecutor or counsel and shall defer to the judgment of the prosecutor or counsel regarding the
necessity of applying for an order. In case the guardian ad litem is convinced that the decision of
the prosecutor or counsel not to apply will cause the child serious emotional trauma, he himself
may apply for the order.
The person seeking such an order shall apply at least five (5) days before the trial date, unless
the court finds on the record that the need for such an order was not reasonably foreseeable.
(b) The court may motu propio hear and determine, with notice to the parties, the need for taking the
testimony of the child through live-link television.
(c) The judge may question the child in chambers or in some comfortable place other than the
courtroom, in the presence of the support person, guardian ad litem, prosecutor, and counsel for
(a) The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of
the testimony of the child and that it be recorded and preserved on videotape. Before the
guardian ad litem applies for an order under this section, he shall consult with the prosecutor or
counsel subject to the second and third paragraphs of section 25(a).
(b) If the court finds that the child will not be able to testify in open court at trial, it shall issue an order
that the deposition of the child be taken and preserved by videotape.
(c) The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony
or evidence, or parts thereof, and the grounds for the objection shall be stated and shall ruled
upon at the time of the taking of the deposition. The other persons who may be permitted to be
present at the proceeding are:
(1) The prosecutor;
(2) The defense counsel;
A statement made by a child describing any act or attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal
proceeding subject to the following rules:
(a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse
party the intention to offer such statement and its particulars to provide him a fair opportunity to
object. If the child is available, the court shall, upon motion of the adverse party, require the child to
be present at the presentation of the hearsay statement for cross-examination by the adverse
party. When the child is unavailable, the fact of such circumstance must be proved by the
proponent.
(b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content
and circumstances thereof which provide sufficient indicia of reliability. It shall consider the
following factors:
(1) Whether there is a motive to lie;
(2) The general character of the declarant child;
(3) Whether more than one person heard the statement;
(4) Whether the statement was spontaneous;
(5) The timing of the statement and the relationship between the declarant child and witness;
(6) Cross-examination could not show the lack of knowledge of the declarant child;
(7) The possibility of faulty recollection of the declarant child is remote; and
(8) The circumstances surrounding the statement are such that there is no reason to suppose the
declarant child misrepresented the involvement of the accused.
(c) The child witness shall be considered unavailable under the following situations:
(1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed
to sever psychological injury; or
(a) Inadmissible evidence. The following evidence is not admissible in any criminal proceeding
involving alleged child sexual abuse:
(1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and
(2) Evidence offered to prove the sexual pre-disposition of the alleged victim.
(b) Exception. Evidence of specific instances of sexual behavior by the alleged victim to prove that a
person other than the accused was the source of semen, injury, or other physical evidence shall
be admissible. A party intending to offer such evidence must:
(1) File a written motion at least fifteen (5) days before trial, specifically describing the evidence
and stating the purpose for which it is offered, unless the court, for good cause, requires a
different time for filing or permits filing during trial; and
(2) Serve the motion on all parties and the guardian ad litem at least three (3) days before the
hearing of the motion.
Before admitting such evidence, the court must conduct a hearing in chambers and afford the
child, his guardian ad litem, the parties, and their counsel a right to attend and be heard. The
motion and the record of the hearing must be sealed and remain under seal and protected by a
protected order set forth in section 31(b). The child shall not be required to testify at the hearing in
chambers except with his consent (Sec. 30).
i. Protective orders
(a) Protection of privacy and safety. Protective order. Any videotape or audiotape of a child that is
part of the court record shall be under a protective order that provides as follows:
(1) Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad
litem.
(2) No tape, or any portion thereof, shall be divulged by any person mentioned in subsection (a)
to any other person, except as necessary for the trial.
(3) No person shall be granted access to the tape, its transcription or any part thereof unless he
signs a written affirmation that he has received and read a copy of the protective order; that
he submits to the jurisdiction of the court with respect to the protective order; and that in case
of violation thereof, he will be subject to the contempt power of the court.
(4) Each of the tape cassettes and transcripts thereof made available to the parties, their
counsel, and respective agents shall bear the following cautionary notice:
This object or document and the contents thereof are subject to a protective order issued
by the court in (case title), (case number). They shall not be examined, inspected, read,
viewed, or copied by any person, or disclosed to any person, except as provided in the
protective order. No additional copies of the tape or any of its portion shall be made,
given, sold, or shown to any person without prior court order. Any person violating such
protective order is subject to the contempt power of the court and other penalties
prescribed by law.
(5) No tape shall be given, loaned, sold, or shown to any person except as ordered by the court.
(6) Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be
returned to the clerk of court for safekeeping unless the period is extended by the court on
motion of a party.
(7) This protective order shall remain in full force and effect until further order of the court (Sec.
31(b).
(b) Additional protective orders. The court may, motu propio or on motion of any party, the child, his
parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of
the child (Sec. 31(c).
(1) The court shall consider no evidence which has not been formally offered. The purpose for which
the evidence is offered must be specified (Sec. 34).
(1) As regards the testimony of a witness, the offer must be made at the time the witness is called to
testify. Documentary and object evidence shall be offered after the presentation of a party's
testimonial evidence. Such offer shall be done orally unless allowed by the court to be done in
writing (Sec. 35).
Objection
(1) Objection to evidence offered orally must be made immediately after the offer is made. Objection
to a question propounded in the course of the oral examination of a witness shall be made as
soon as the grounds therefor shall become reasonably apparent. An offer of evidence in writing
shall be objected to within three (3) days after notice of the offer unless a different period is
allowed by the court. In any case, the grounds for the objections must be specified (Sec. 36).
(2) Grounds for objection:
(a) Hearsay
(b) Argumentative
(c) Leading
(d) Misleading
(e) Incompetent
(f) Irrelevant
(g) Best evidence rule
(h) Parole evidence rule
(i) Question has no basis
Repetition of an Objection
(1) When repetition of objection unnecessary. When it becomes reasonably apparent in the
course of the examination of a witness that the questions being propounded are of the same
class as those to which objection has been made, whether such objection was sustained or
overruled, it shall not be necessary to repeat the objection, it being sufficient for the adverse
party to record his continuing objection to such class of questions (Sec. 37).
Ruling
(1) The ruling of the court must be given immediately after the objection is made, unless the court
desires to take a reasonable time to inform itself on the question presented; but the ruling shall
always be made during the trial and at such time as will give the party against whom it is made an
opportunity to meet the situation presented by the ruling. The reason for sustaining or overruling
an objection need not be stated. However, if the objection is based on two or more grounds, a
ruling sustaining the objection on one or some of them must specify the ground or grounds relied
upon (Sec. 38).
(1) Should a witness answer the question before the adverse party had the opportunity to voice fully
its objection to the same, and such objection is found to be meritorious, the court shall sustain the
objection and order the answer given to be stricken off the record. On proper motion, the court
may also order the striking out of answers which are incompetent, irrelevant, or otherwise
improper (Sec. 39).
(1) If documents or things offered in evidence are excluded by the court, the offeror may have the
same attached to or made part of the record. If the evidence excluded is oral, the offeror may
state for the record the name and other personal circumstances of the witness and the substance
of the proposed testimony (Sec. 40).
PART V.
REVISED RULES ON SUMMARY PROCEDURE
A. Cases covered by the Rule
The Rules shall govern the summary procedure in the MeTC, MTC and MCTC in the following
cases falling within their jurisdiction:
(1) Civil cases
(a) All cases of forcible entry and unlawful detainer irrespective of the amount of damages or
unpaid rentals sought to be recovered, and where attorneys fees awarded do not exceed
P20,000;
(b) All other cases, except probate proceedings where the total amount of the plaintiffs claim
does not exceed P100,000 outside, or P200,000 in Metro Manila (as amended by AM 02-11-
09-SC).
(2) Criminal cases
(a) Violation of traffic laws, rules and regulations;
(b) Violations of rental laws;
(c) All other criminal cases where the penalty prescribed by law for the offense charged is
imprisonment not exceeding 6 months or a fine not exceeding P1,000 or both, irrespective of
other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom;
and in offenses involving damages to property through criminal negligence, where the
imposable fine does not exceed P1,000.
(d) The Rule shall not apply in a civil case where the cause of action is pleaded with another
cause of action subject to the ordinary procedure, nor to criminal case where the offense
charged is necessary related to another criminal case subject to the ordinary procedure (Sec.
1).
(1) Should the defendant fail to answer the complaint within 10 days from service of summons, the
court shall motu propio or on motion of the plaintiff, shall render judgment as may be warranted by
the facts alleged in the complaint and limited to what is prayed for therein; Provided, that the court
may in its discretion reduce the amount of damages and attorneys fees claimed for being
excessive or otherwise unconscionable (Sec. 6). This is without prejudice to the applicability of
Sec. 4, Rule 18 if there are two or more defendants, (Sec. 4, Rule 18: It shall be the duty of the
parties and their counsel to appear at the pre-trial. The non-appearance of a party may be
excused only if a valid cause is shown therefor or if a representative shall appear in his behalf
fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of
dispute resolution, and to enter into stipulations or admissions of facts and of documents).
PART VI.
KATARUNGANG PAMBARANGAY
(Secs. 399-422, LGC)
A. Cases covered
(1) Except those enumerated as exceptions under Sec. 408, RA 7160, the following cases are
cognizable with the Katarungang Pambarangay:
(a) Disputes between persons actually residing in the same barangay;
(b) Those involving actual residents of different barangays within the same city or municipality;
(c) All disputes involving real property or any interest therein where the real property or the larger
portion thereof is situated;
(d) Those arising at the workplace where the contending parties are employed or at the institution
where such parties are enrolled for study, where such workplace or institution is located.
(1) The lupon of each barangay shall have authority to bring together the parties actually residing in
the same municipality or city for amicable settlement of all disputes except:
(a) Where one party is the government or any subdivision or instrumentality thereof;
(b) Where one party is a public officer or employee, and the dispute relates to the performance of
his official functions;
(c) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding P5,000;
(d) Offenses where there is no private offended party;
(e) Where the dispute involves real properties located in different cities or municipalities unless
the parties thereto agree to submit their differences to amicable settlement by an appropriate
lupon;
(f) Disputes involving parties who actually reside in barangays of different cities or municipalities,
except where such barangay units adjoin each other and the parties thereto agree to submit
their differences to amicable settlement by an appropriate lupon;
(g) Such other classes of disputes which the President may determine in the interest of justice or
upon the recommendation of the Secretary of Justice;
(h) Any complaint by or against corporations, partnerships, or juridical entities. The reason is that
only individuals shall be parties to barangay conciliation proceedings either as complainants
or respondents;
(i) Disputes where urgent legal action is necessary to prevent injustice from being committed or
further continued, specially the following:
a) A criminal case where the accused is under police custody or detention;
b) A petition for habeas corpus by a person illegally detained or deprived of his liberty or one
acting in his behalf;
c) Actions coupled with provisional remedies, such as preliminary injunction, attachment,
replevin and support pendente litem;
d) Where the action may be barred by the statute of limitations;
C. Venue
E. Execution
(1) The amicable settlement or arbitration award may be enforced by execution by the lupon within
six (6) months from the date of the settlement. After the lapse of such time, the settlement may be
enforced by action in the appropriate city or municipal court (Sec. 417, RA 7160).
F. Repudiation
(1) Any party to the dispute may, within ten (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
PART VII.
RULE OF PROCEDURE FOR SMALL CLAIMS CASES
(AM No. 08-8-7-SC, as amended)
A. Scope and applicability of the Rule
(1) SEC. 2. Scope.This Rule shall govern the procedure in actions before the Metropolitan Trial
Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts
for payment of money where the value of the claim does not exceed One Hundred Thousand
Pesos (P100,000.00) exclusive of interest and costs.
(2) SEC. 4. Applicability.The Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal
Trial Courts, and Municipal Circuit Trial Courts shall apply this Rule in all actions which are: (a)
purely civil in nature where the claim or relief prayed for by the plaintiff is solely for payment or
reimbursement of sum of money, and (b) the civil aspect of criminal actions, either filed before the
institution of the criminal action, or reserved upon the filing of the criminal action in court, pursuant
to Rule 111 of the Revised Rules of Criminal Procedure.
These claims or demands may be:
(a) For money owed under any of the following:
1. Contract of Lease;
2. Contract of Loan;
3. Contract of Services;
4. Contract of Sale; or
5. Contract of Mortgage;
(b) For damages arising from any of the following:
1. Fault or negligence;
2. Quasi-contract; or
3. Contract;
(c) The enforcement of a barangay amicable settlement or an arbitration award involving a money
claim covered by this Rule pursuant to Sec. 417 of Republic Act 7160, otherwise known as
the Local Government Code of 1991.
(1) Commencement of Small Claims Action.A small claims action is commenced by filing with the
court an accomplished and verified Statement of Claim (Form 1-SCC) in duplicate, accompanied
by a Certification of Non-forum Shopping (Form 1-A, SCC), and two (2) duly certified photocopies
of the actionable document/s subject of the claim, as well as the affidavits of witnesses and other
evidence to support the claim. No evidence shall be allowed during the hearing which was not
attached to or submitted together with the Claim, unless good cause is shown for the admission of
additional evidence. No formal pleading, other than the Statement of Claim described in this Rule,
is necessary to initiate a small claims action (Sec. 5).
(2) Response. The defendant shall file with the court and serve on the plaintiff a duly accomplished
and verified Response within a non-extendible period of ten (10) days from receipt of summons.
The response shall be accompanied by certified photocopies of documents, as well as affidavits
of witnesses and other evidence in support thereof. No evidence shall be allowed during the
hearing which was not attached to or submitted together with the Response, unless good cause is
shown for the admission of additional evidence. The grounds for the dismissal of the claim, under
Rule 16 of the Rules of Court, should be pleaded (Sec. 11).
(1) Prohibited Pleadings and Motions. The following pleadings, motions, or petitions shall not be
allowed in the cases covered by this Rule:
(a) Motion to dismiss the complaint;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings, affidavits, or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the
court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints; and
(l) Interventions (Sec. 14).
D. Appearances
(1) Appearance. The parties shall appear at the designated date of hearing personally. Appearance
through a representative must be for a valid cause. The representative of an individual-party must
not be a lawyer, and must be related to or next-of-kin of the individual-party. Juridical entities shall
not be represented by a lawyer in any capacity. The representative must be authorized under a
Special Power of Attorney (Form 5-SCC) to enter into an amicable settlement of the dispute and
to enter into stipulations or admissions of facts and of documentary exhibits (Sec. 16).
(2) Appearance of Attorneys Not Allowed. No attorney shall appear in behalf of or represent a party
at the hearing, unless the attorney is the plaintiff or defendant. If the court determines that a party
cannot properly present his/her claim or defense and needs assistance, the court may, in its
discretion, allow another individual who is not an attorney to assist that party upon the latters
consent (Sec. 17).
(3) Non-appearance of Parties. Failure of the plaintiff to appear shall be cause for the dismissal of
the claim without prejudice. The defendant who appears shall be entitled to judgment on a
permissive counterclaim. Failure of the defendant to appear shall have the same effect as failure
to file a Response under Section 12 of this Rule. This shall not apply where one of two or more
defendants who are sued under a common cause of action and have pleaded a common defense
appears at the hearing. Failure of both parties to appear shall cause the dismissal with prejudice
of both the claim and counterclaim (Sec. 18).
(1) Duty of the Court. 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).
(2) Hearing. At the hearing, the judge shall exert efforts to bring the parties to an amicable
settlement of their dispute. Any settlement (Form 7-SCC) or resolution (Form 8-SCC) of the
dispute shall be reduced into writing, signed by the parties and submitted to the court for approval
F. Finality of judgment
(1) Decision . After the hearing, the court shall render its decision on the same day, based on the
facts established by the evidence (Form 13-SCC). The decision shall immediately be entered by
the Clerk of Court in the court docket for civil cases and a copy thereof forthwith served on the
parties. The decision shall be final and unappealable (Sec. 23).
PART VIII.
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
(AM No. 09-6-8-SC)
A. Scope and applicability of the Rule
(1) These Rules shall govern the procedure in civil, criminal and special civil actions before the
Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial
Courts and Municipal Circuit Trial Courts involving enforcement or violations of environmental and
other related laws, rules and regulations such as but not limited to the following:
(a) Act 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees;
(b) PD 705, Revised Forestry Code;
(c) PD 856, Sanitation Code;
(d) PD 979, Marine Pollution Decree;
(e) PD 1067, Water Code;
(f) PD1151, Philippine Environmental Policy of 1977;
(g) PD 1433, Plant Quarantine Law of 1978;
(h) PD 1586, Establishing an Environmental Impact Statement System Including Other
Environmental Management Related Measures and for Other Purposes;
(i) RA 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing Trees,
Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks,
School Premises or in any Other Public Ground;
(j) RA 4850, Laguna Lake Development Authority Act;
(k) RA 6969, Toxic Substances and Hazardous Waste Act;
(l) RA 7076, Peoples Small-Scale Mining Act;
(m) RA 7586, National Integrated Protected Areas System Act including all laws, decrees, orders,
proclamations and issuances establishing protected areas;
(n) RA 7611, Strategic Environmental Plan for Palawan Act;
(o) RA 7942, Philippine Mining Act;
(p) RA 8371, Indigenous Peoples Rights Act;
(q) RA 8550, Philippine Fisheries Code;
(r) RA 8749, Clean Air Act;
(s) RA 9003, Ecological Solid Waste Management Act;
(t) RA 9072, National Caves and Cave Resource Management Act;
(u) RA 9147, Wildlife Conservation and Protection Act;
(v) RA 9175, Chainsaw Act;
(w) RA 9275, Clean Water Act;
(x) RA 9483, Oil Spill Compensation Act of 2007; and
(y) Provisions in CA 141, The Public Land Act;
(z) R.A. No. 6657, Comprehensive Agrarian Reform Law of 1988;
(aa) RA 7160, Local Government Code of 1991;
B. Civil Procedure
Prohibition against Temporary Restraining Order and Preliminary Injunction (Sec. 10, Part 2, Rule 2)
(1) Except the Supreme Court, no court can issue a TRO or writ of preliminary injunction against
lawful actions of government agencies that enforce environmental laws or prevent violations
thereof (Sec. 10, Part 2, Rule 2).
(2) The formulation of this section is derived from the provisions of PD 605 and likewise covers the
provisions of PD 1818. To obviate future conflict between the present provision and these two
laws, the prohibition on the issuance of TRO remains the general rule while its issuance is the
exception. In availing of the exception, the movants must overcome the presumption of regularity
in the performance of a duty by the respondent government agency or official. The judge must
then require a higher standard and heavier burden of proof. This section is formulated to support
government and its agencies in their responsibilities and tasks. Therefore, in the absence of
evidence overcoming this presumption of regularity, no court can issue a TRO or injunctive writ. It
is only the SC which can issue a TRO or an injunctive writ in exceptional cases.
(1) The judge shall put the parties and their counsels under oath, and they shall remain under oath in
all pre-trial conferences. The judge shall exert best efforts to persuade the parties to arrive at a
settlement of the dispute. The judge may issue a consent decree approving the agreement
between the parties in accordance with law, morals, public order and public policy to protect the
right of the people to a balanced and healthful ecology. Evidence not presented during the pre-
trial, except newly discovered evidence, shall be deemed waived.
(2) Consent Decree refers to a judicially-approved settlement between concerned parties based on
public interest aspect in environmental cases and encourages the parties to expedite the
resolution of litigation (Sec. 4[b], Rule 1, Part 1).
(3) Sec. 5, Rule 3 encourages parties to reach an agreement regarding settlement through a consent
decree, which gives emphasis to the public interest aspect in the assertion of the right to a
balances and healthful ecology.
(1) Issuance of Temporary Environmental Protection Order (TEPO). If it appears from the verified
complaint with a prayer for the issuance of an Environmental Protection Order (EPO) that the
matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the
executive judge of the multiple sala court before raffle or the presiding judge of a single-sala court
as the case may be, may issue ex parte a TEPO effective for only seventy-two (72) hours from
date of the receipt of the TEPO by the party or person enjoined. Within said period, the court
where the case is assigned, shall conduct a summary hearing to determine whether the TEPO
may be extended until the termination of the case. The court where the case is assigned, shall
periodically monitor the existence of acts that are the subject matter of the TEPO even if issued
by the executive judge, and may lift the same at any time as circumstances may warrant. The
applicant shall be exempted from the posting of a bond for the issuance of a TEPO (Sec. 8, Rule
2).
(2) The Rules provide that an applicant who files for the issuance of a TEPO is exempt from the
posting of a bond, but the Rules also provide for safeguards for the possible pernicious effects
upon the party or person sought to be enjoined by the TEPO:
(a) A TEPO may only be issued in matters of extreme urgency and the applicant will suffer grave
injustice and irreparable injury, the TEPO effective for only 72 hours; and
(b) The court should periodically monitor the existence of acts which are the subject matter of the
TEPO, the TEPO can be lifted anytime as the circumstances may warrant.
(3) While the TEPO may be issued ex parte, this is more of the exception. The general rule on the
conduct of a hearing pursuant to due process remains.
(1) Any judgment directing the performance of acts for the protection, preservation or rehabilitation of
the environment shall be executory pending appeal unless restrained by the appellate court (Sec.
(2) A judgment rendered pursuant to these Rules is immediately executor. It may not be stayed by
the posting of a bond under Rule 39 of the Rules of Court and the sole remedy lies with the
appellate court. the appellate court can issue a TRO to restrain the execution of the judgment and
should the appellate court act with grave abuse of discretion in refusing to act on the application
for a TRO, a petition for certiorari under Rule 65 can be brought before the Supreme Court.
(1) Permanent EPO; writ of continuing mandamus. In the judgment, the court may convert the
TEPO to a permanent EPO or issue a writ of continuing mandamus directing the performance of
acts which shall be effective until the judgment is fully satisfied. The court may, by itself or through
the appropriate government agency, monitor the execution of the judgment and require the party
concerned to submit written reports on a quarterly basis or sooner as may be necessary, detailing
the progress of the execution and satisfaction of the judgment. The other party may, at its option,
submit its comments or observations on the execution of the judgment.
(2) In this provision, continuing mandamus is made available as a final relief. As a remedy,
continuing mandamus is decidedly an attractive relief. Nevertheless, the monitoring function
attached to the writ is decidedly taxing upon the court. Thus, it is meant to be an exceptional
remedy. Among others, the nature of the case in which the judgment is issued will be a decisive
factor in determining whether to issue a writ of continuing mandamus. A TEPO may be converted
into a writ of continuing mandamus should the circumstances warrant.
(1) Continuing mandamus is a writ issued by a court in an environmental case directing any agency
or instrumentality of the government or officer thereof to perform an act or series of acts decreed
by final judgment which shall remain effective until judgment is fully satisfied (Sec. 4[c], Rule 1,
Part1).
(2) The concept of continuing mandamus was originally enunciated in the case of Concerned
Residents of Manila Bay vs. MMDA, GR 171947-98, Dec. 18, 2008. The Rules now codify the
Writ of Continuing Mandamus as one of the principal remedies which may be availed of in
environmental cases.
(1) Strategic lawsuit against public participation (SLAPP) refers to an action whether civil, criminal or
administrative, brought against any person, institution or any government agency or local
government unit or its officials and employees, with the intent to harass, vex, exert undue
pressure or stifle any legal recourse that such person, institution or government agency has taken
or may take in the enforcement of environmental laws, protection of the environment or assertion
of environmental rights (Sec. 4[g], Rule 1).
(2) A legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that any
person, institution or the government has taken or may take in the enforcement of environmental
laws, protection of the environment or assertion of environmental rights shall be treated as a
SLAPP and shall be governed by these Rules (Sec. 1, Rule 6).
C. Special Procedure
(1) The writ is a remedy available to a natural or juridical person, entity authorized by law, peoples
organization, non-governmental organization, or any public interest group accredited by or
registered with any government agency, on behalf of persons whose constitutional right to a
balanced and healthful ecology is violated, or threatened with violation by an unlawful act or
omission of a public official or employee, or private individual or entity, involving environmental
damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more
cities or provinces (Sec. 1, Rule 7).
(2) Extraordinary remedy. The underlying emphasis in the Writ of Kalikasan is magnitude as it deals
with damage that transcends political and territorial boundaries. Magnitude is thus measured
according to the qualification set forth in this Rulewhen there is environmental damage that
prejudices the life, health or property of inhabitants in two or more cities or provinces.
(3) Who may avail of the writ. The petition for the issuance of a WOK can be filed by any of the
following: (a) a natural or juridical person; (b) entity authorized by law; (c) peoples organization,
non-government organization, or any public interest group accredited by or registered with any
government agency on behalf of persons whose constitutional right to a balanced and healthful
ecology is violatedinvolving environmental damage of such magnitude as to prejudice life,
health, or property of inhabitants in two or more cities or provinces. Those who may file for this
remedy must represent the inhabitants prejudiced by the environmental damage subject of the
(4) Acts covered by the writ. The WOK is a special remedy available against an unlawful act or
omission of a public official or employee, or private individual or entity, involving environmental
damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more
cities or provinces.
(6) Exemption from payment of docket fees. The exemption from payment of docket fees is
consistent with the character of the reliefs available under the writ, which excludes damages for
personal injuries. This exemption also encourages public participation in availing of the remedy.
(1) A party may file a verified motion for the following reliefs:
(a) Ocular Inspection; order. The motion must show that an ocular inspection order is necessary
to establish the magnitude of the violation or the threat as to prejudice the life, health or
property of inhabitants in two or more cities or provinces. It shall state in detail the place or
places to be inspected. It shall be supported by affidavits of witnesses having personal
knowledge of the violation or threatened violation of environmental law.
After hearing, the court may order any person in possession or control of a designated land or
other property to permit entry for the purpose of inspecting or photographing the property or
any relevant object or operation thereon. The order shall specify the person or persons
authorized to make the inspection and the date, time, place and manner of making the
inspection and may prescribe other conditions to protect the constitutional rights of all parties.
(b) Production or inspection of documents or things; order. The motion must show that a
production order is necessary to establish the magnitude of the violation or the threat as to
prejudice the life, health or property of inhabitants in two or more cities or provinces.
After hearing, the court may order any person in possession, custody or control of any
designated documents, papers, books, accounts, letters, photographs, objects or tangible
things, or objects in digitized or electronic form, which constitute or contain evidence relevant
to the petition or the return, to produce and permit their inspection, copying or photographing
by or on behalf of the movant. The production order shall specify the person or persons
authorized to make the production and the date, time, place and manner of making the
inspection or production and may prescribe other conditions to protect the constitutional rights
of all parties.
(1) Petition. When any agency or instrumentality of the government or officer thereof unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an
office, trust or station in connection with the enforcement or violation of an environmental law rule
or regulation or a right therein, or unlawfully excludes another from the use or enjoyment of such
right and there is no other plain, speedy and adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty, attaching thereto supporting evidence, specifying that the petition concerns an
environmental law, rule or regulation, and praying that judgment be rendered commanding the
respondent to do an act or series of acts until the judgment is fully satisfied, and to pay damages
sustained by the petitioner by reason of the malicious neglect to perform the duties of the
respondent, under the law, rules or regulations. The petition shall also contain a sworn
certification of non-forum shopping.
(2) Where to file the petition. The petition shall be filed with the Regional Trial Court exercising
jurisdiction over the territory where the actionable neglect or omission occurred or with the Court
of Appeals or the Supreme Court.
(3) No docket fees. The petitioner shall be exempt from the payment of docket fees.
(4) Order to comment. If the petition is sufficient in form and substance, the court shall issue the writ
and require the respondent to comment on the petition within ten (10) days from receipt of a copy
thereof. Such order shall be served on the respondents in such manner as the court may direct,
together with a copy of the petition and any annexes thereto.
(5) Expediting proceedings; TEPO. The court in which the petition is filed may issue such orders to
expedite the proceedings, and it may also grant a TEPO for the preservation of the rights of the
parties pending such proceedings.
(6) Proceedings after comment is filed. After the comment is filed or the time for the filing thereof has
expired, the court may hear the case which shall be summary in nature or require the parties to
submit memoranda. The petition shall be resolved without delay within sixty (60) days from the
date of the submission of the petition for resolution.
(7) Judgment. If warranted, the court shall grant the privilege of the writ of continuing mandamus
requiring respondent to perform an act or series of acts until the judgment is fully satisfied and to
grant such other reliefs as may be warranted resulting from the wrongful or illegal acts of the
respondent. The court shall require the respondent to submit periodic reports detailing the
progress and execution of the judgment, and the court may, by itself or through a commissioner or
the appropriate government agency, evaluate and monitor compliance. The petitioner may submit
its comments or observations on the execution of the judgment.
(8) Return of the writ. The periodic reports submitted by the respondent detailing compliance with the
judgment shall be contained in partial returns of the writ. Upon full satisfaction of the judgment, a
final return of the writ shall be made to the court by the respondent. If the court finds that the
judgment has been fully implemented, the satisfaction of judgment shall be entered in the court
docket.
(9) Procedurally, its filing before the courts is similar to the filing of an ordinary writ of mandamus.
However, the issuance of a TEPO is made available as an auxillary remedy prior to the issuance
of the writ itself. As a special civil action, the WoCMa may be availed of to compel the
performance of an act specifically enjoined by law. It permits the court to retain jurisdiction after
judgment in order to ensure the successful implementation of the reliefs mandated under the
courts decision. For this purpose, the court may compel the submission of compliance reports
from the respondent government agencies as well as avail of other means to monitor compliance
with its decision. Its availability as a special civil action likewise complements its role as a final
(1) Subject matter. WoCMa is directed against the unlawful neglect in the performance of an act
which the law specifically enjoins as a duty resulting from an office, trust or station in connection
with the enforcement or violation of an environmental law rule or regulation or a right therein; or
(a) the unlawful exclusion of another from the use or enjoyment of such right and in both
instances, there is no other plain, speedy and adequate remedy in the ordinary course of law. A
writ of kalikasan is available against unlawful act or omission of a public official or employee, or
private individual or entity, involving environmental damage of such magnitude as to prejudice the
life, health or property of inhabitants in two or more cities or provinces. In addition, magnitude of
environmental damage is a condition sine qua non in a petition for the issuance of a writ of
kalikasan and must be contained in the verified petition.
(2) Who may file. A writ of continuing mandamus is available to a broad range of persons such as
natural or juridical person, entity authorized by law, peoples organization, NGO, or any public
interest group accredited by or registered with any government agency, on behalf of persons
whose right to a balanced and healthful ecology is violated or threatened to be violated.
(3) Respondent. The respondent in a petition for continuing mandamus is only the government or its
officers, unlike in a petition for writ of kalikasan, where the respondent may be a private individual
or entity.
(4) Exemption from docket fees. The application for either petition is exempted from the payment of
docket fees.
(5) Venue. A petition for the issuance of a writ of continuing mandamus may be filed in the following:
(a) the RTC exercising jurisdiction over the territory where the actionable neglect or omission
occurred; (b) the CA; or (c) the SC. Given the magnitude of the damage, the application for the
issuance of a writ of kalikasan can only be filed with the SC or any station of the CA.
(6) Discovery measures. The Rule on the WCM does not contain any provision for discovery
measures, unlike the Rule on WOK which incorporates the procedural environmental right of
access to information through the use of discovery measures such as ocular inspection order and
production order.
(7) Damages for personal injury. The WCM allows damages for the malicious neglect of the
performance of the legal duty of the respondent, identical Rule 65. In contrast, no damages may
be awarded in a petition for the issuance of a WOK consistent with the public interest character of
the petition. A party who avails of this petition but who also wishes to be indemnified for injuries
suffered may file another suit for the recovery of damages since the Rule on WOK allows for the
institution of separate actions.
D. Criminal Procedure
(1) Any offended party, peace officer or any public officer charged with the enforcement of an
environmental law may file a complaint before the proper officer in accordance with the Rules of
Court (Sec. 1, Rule 9).
(1) A peace officer or an individual deputized by the proper government agency may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing or is
attempting to commit an offense; or
(b) When an offense has just been committed, and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it.
Individuals deputized by the proper government agency who are enforcing environmental
laws shall enjoy the presumption of regularity under Section 3(m), Rule 131 of the Rules of
Court when effecting arrests for violations of environmental laws.
(2) Warrant of arrest. All warrants of arrest issued by the court shall be accompanied by a certified
true copy of the information filed with the issuing court.
Procedure in the Custody and Disposition of Seized Items (Sec. 2, Rule 12)
(1) In the absence of applicable laws or rules promulgated by the concerned government agency, the
following procedure shall be observed:
(a) The apprehending officer having initial custody and control of the seized items, equipment,
paraphernalia, conveyances and instruments shall physically inventory and whenever
practicable, photograph the same in the presence of the person from whom such items were
seized.
(b) Thereafter, the apprehending officer shall submit to the issuing court the return of the search
warrant within five (5) days from date of seizure or in case of warrantless arrest, submit within
five (5) days from date of seizure, the inventory report, compliance report, photographs,
representative samples and other pertinent documents to the public prosecutor for
appropriate action.
(c) Upon motion by any interested party, the court may direct the auction sale of seized items,
equipment, paraphernalia, tools or instruments of the crime. The court shall, after hearing, fix
the minimum bid price based on the recommendation of the concerned government agency.
The sheriff shall conduct the auction.
(d) The auction sale shall be with notice to the accused, the person from whom the items were
seized, or the owner thereof and the concerned government agency.
(e) The notice of auction shall be posted in three conspicuous places in the city or municipality
where the items, equipment, paraphernalia, tools or instruments of the crime were seized.
(f) The proceeds shall be held in trust and deposited with the government depository bank for
disposition according to the judgment.
(2) The foregoing provisions concern two aspects of seizure. The first aspect concerns the chain of
custody of the seized items, equipment, paraphernalia, conveyances, and instruments.
(1) Bail, where filed. Bail in the amount fixed may be filed with the court where the case is pending, or
in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial
judge, municipal trial judge or municipal circuit trial judge in the province, city or municipality. If
the accused is arrested in a province, city or municipality other than where the case is pending,
bail may also be filed with any Regional Trial Court of said place, or if no judge thereof is
available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge
therein. If the court grants bail, the court may issue a hold-departure order in appropriate cases.
(2) Duties of the court. Before granting the application for bail, the judge must read the information in
a language known to and understood by the accused and require the accused to sign a written
undertaking, as follows:
(a) To appear before the court that issued the warrant of arrest for arraignment purposes on the
date scheduled, and if the accused fails to appear without justification on the date of
arraignment, accused waives the reading of the information and authorizes the court to enter
a plea of not guilty on behalf of the accused and to set the case for trial;
(b) To appear whenever required by the court where the case is pending; and
(c) To waive the right of the accused to be present at the trial, and upon failure of the accused to
appear without justification and despite due notice, the trial may proceed in absentia.
(3) A key innovation in this section is the execution of an undertaking by the accused and counsel,
empowering the judge to enter a plea of not guilty, in the event the accused fails to appear at the
arraignment. This authorization permits the court to try the case in absentia, within the period
provided under these Rules. This addresses a fundamental concern surrounding the prosecution
of criminal cases in general, where the accused jumps bail and the court unable to proceed with
the disposition of the case in view of the absence of the accused and the failure to arraign the
latter.
(1) Arraignment. The court shall set the arraignment of the accused within fifteen (15) days from the
time it acquires jurisdiction over the accused, with notice to the public prosecutor and offended
party or concerned government agency that it will entertain plea-bargaining on the date of the
arraignment.
(2) Plea-bargaining. On the scheduled date of arraignment, the court shall consider plea-bargaining
arrangements. Where the prosecution and offended party or concerned government agency
agree to the plea offered by the accused, the court shall:
(a) Issue an order which contains the plea-bargaining arrived at;
(b) Proceed to receive evidence on the civil aspect of the case, if any; and
(c) Render and promulgate judgment of conviction, including the civil liability for damages.
(3) This provision requires the consent of the prosecutor, the offended party or concerned
government agency in order to successfully arrive at a valid plea-bargaining agreement. Plea-
(1) Setting of pre-trial conference. After the arraignment, the court shall set the pre-trial conference
within thirty (30) days. It may refer the case to the branch clerk of court, if warranted, for a
preliminary conference to be set at least three (3) days prior to the pre-trial.
(2) Preliminary conference.The preliminary conference shall be for the following purposes:
(a) To assist the parties in reaching a settlement of the civil aspect of the case;
(b) To mark the documents to be presented as exhibits;
(c) To attach copies thereof to the records after comparison with the originals;
(d) To ascertain from the parties the undisputed facts and admissions on the genuineness and
due execution of documents marked as exhibits;
(e) To consider such other matters as may aid in the prompt disposition of the case;
(f) To record the proceedings during the preliminary conference in the Minutes of Preliminary
Conference to be signed by the parties and counsel;
(g) To mark the affidavits of witnesses which shall be in question and answer form and shall
constitute the direct examination of the witnesses; and
(h) To attach the Minutes and marked exhibits to the case record before the pre-trial proper.
The parties or their counsel must submit to the branch clerk of court the names, addresses and
contact numbers of the affiants.
(3) Pre-trial duty of the judge. During the pre-trial, the court shall:
(a) Place the parties and their counsels under oath;
(b) Adopt the minutes of the preliminary conference as part of the pre-trial proceedings, confirm
markings of exhibits or substituted photocopies and admissions on the genuineness and due
execution of documents, and list object and testimonial evidence;
(c) Scrutinize the information and the statements in the affidavits and other documents which
form part of the record of the preliminary investigation together with other documents
identified and marked as exhibits to determine further admissions of facts as to:
1. The courts territorial jurisdiction relative to the offense(s) charged;
2. Qualification of expert witnesses; and
3. Amount of damages;
(d) Define factual and legal issues;
(e) Ask parties to agree on the specific trial dates and adhere to the flow chart determined by the
court which shall contain the time frames for the different stages of the proceeding up to
promulgation of decision;
(f) Require the parties to submit to the branch clerk of court the names, addresses and contact
numbers of witnesses that need to be summoned by subpoena; and
(g) Consider modification of order of trial if the accused admits the charge but interposes a lawful
defense.
(4) Manner of questioning. All questions or statements must be directed to the court.
(5) Agreements or admissions. All agreements or admissions made or entered during the pre-trial
conference shall be reduced in writing and signed by the accused and counsel; otherwise, they
cannot be used against the accused. The agreements covering the matters referred to in Section
1, Rule 118 of the Rules of Court shall be approved by the court.
(6) Record of proceedings. All proceedings during the pre-trial shall be recorded, the transcripts
prepared and the minutes signed by the parties or their counsels.
(2) In case of conviction of the accused and subsidiary liability is allowed by law, the court may, by
motion of the person entitled to recover under judgment, enforce such subsidiary liability against a
person or corporation subsidiarily liable under Article 102 and Article 103 of the Revised Penal
Code.
(1) Motion to dismiss. Upon the filing of an information in court and before arraignment, the accused
may file a motion to dismiss on the ground that the criminal action is a SLAPP.
(2) Summary hearing The hearing on the defense of a SLAPP shall be summary in nature. The
parties must submit all the available evidence in support of their respective positions. The party
seeking the dismissal of the case must prove by substantial evidence that his acts for the
enforcement of environmental law are a legitimate action for the protection, preservation and
rehabilitation of the environment. The party filing the action assailed as a SLAPP shall prove by
preponderance of evidence that the action is not a SLAPP.
(3) Resolution. The court shall grant the motion if the accused establishes in the summary hearing
that the criminal case has been filed with intent to harass, vex, exert undue pressure or stifle any
legal recourse that any person, institution or the government has taken or may take in the
enforcement of environmental laws, protection of the environment or assertion of environmental
rights. If the court denies the motion, the court shall immediately proceed with the arraignment of
the accused.
E. Evidence
(1) Definition. Precautionary principle states that when human activities may lead to threats of
serious and irreversible damage to the environment that is scientifically plausible but uncertain,
actions shall be taken to avoid or diminish that threat (Sec. 4[f], Rule 1, Part 1).
(2) The adoption of the precautionary principle as part of these Rules, specifically relating to
evidence, recognizes that exceptional cases may require its application. the inclusion of a
definition of this principle is an integral part of Part V, Rule on Evidence in environmental cases in
order to ease the burden of the part of ordinary plaintiffs to prove their cause of action. In its
essence, precautionary principle calls for the exercise of caution in the face of risk and
uncertainty. While the principle can be applied in any setting in which risk and uncertainty are
found, it has evolved predominantly in and today remains most closely associated with the
environmental arena.
(3) Applicability. When there is a lack of full scientific certainty in establishing a casual link between
human activity and environmental effect, the court shall apply the precautionary principle in
resolving the case before it. The constitutional right of the people to a balanced and healthful
ecology shall be given the benefit of the doubt (Sec. 1, Rule 20, Part V).
(4) The precautionary principle bridges the gap in cases where scientific certainty in factual findings
cannot be achieved. By applying this principle, the court may construe a set of facts as warranting
either judicial action or inaction, with the goal of preserving and protecting the environment. This
may be further evinced from the second paragraph of Sec. 1, Rule 20, where bias is created in
favor of constitutional right of the people to a balanced and healthful ecology. In effect, this
principle shifts the burden of evidence of harm away from those likely to suffer harm and onto
(1) Photographic, video and similar evidence of events, acts, transaction 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).
(2) Entries in official records made in the performance of his duty by a public officer of the
Philippines, or by a person in performance of a duty especially enjoined by law, are prima facie
evidence of the facts therein stated (Sec. 2).
(3) These provisions seek to address specific evidentiary concerns in environmental litigation, where
evidence is often difficult to obtain and preserve. They supplement the main Rules on Evidence,
which shall have full applicability to environmental cases.
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REFERENCES
The foregoing is a compilation of reviewers by the following authors, to whom this bar examinee is
exceedingly grateful:
1. Albano, et al., Remedial Law Reviewer, 2007 Edition, Rex Printing Co., Inc.
2. Agpalo, Ruben E., Handbook on Criminal Procedure, 2004 Edition, Rex Printing Co., Inc.
3. Francisco, Ricardo J., Evidence Rules, Third Edition.
4. Herrera, Oscar M., Remedial Law, Vol. III-A, 2005 Edition, Rex Printing Co., Inc.
5. Paras, Edgardo L., Rules of Court Annotated, Rex Printing Co., Inc.
6. Regalado, Florenz D., Remedial Law Compendium, Ninth Printing Edition, Philippine Graphic
Arts, Inc.
7. Reyes, Leonardo P., The Peoples Constitutional and Statutory Rights, 2000 Edition, National
Book Store.
8. Riano, Willard B., Civil Procedure (A Restatement for the Bar), 2007 Edition, Rex Printing Co.,
Inc.
9. Riano, Willard B., Evidence (A Restatement for the Bar), 2006 Edition, Rex Printing Co., Inc.