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Remedial Law Memaid 2016
Remedial Law Memaid 2016
REMEDIAL LAW is that branch of law which provides for the jurisdiction of courts and the
rules concerning pleading, practice, and procedure before the courts. ( Primer-Reviewer on
Remedial Law, Vol.I, Civil Procedure, Riguera, 3rd ed., 2015).
Q: What is the nature of remedial law?
A: Remedial law are promulgated by
authority of law, as such, they have the
force and effect of law if not in conflict
with substantive law (Ateneo v. De La
Rosa, G.R. No. L-286, March 28, 1946).
Q: How are remedial laws implemented
in our system of government?
(BAR 2006)
A:Remedial laws are implemented in our
system of government through the pillars
of the judicial system, including the
prosecutory service, our courts of justice
and quasi-judicial agencies.
SUBSTANTIVE
LAW
REMEDIAL LAW
As to definition
It
creates,
defines
and It
prescribes
the
regulates rights method of enforcing
and duties that rights and obtaining
give rise to a redress
for
their
cause of action. invasions.
(Bustos
v.
Lucero,
G.R.
No.
L-2086,
March 8, 1949)
As to establishment of vested rights
It makes vested No vested rights.
rights.
As to Application
It is prospective It is retroactive.
in application.
It is applicable to
actions pending and
undetermined at the
The SC is expressly
empowered
to
promulgateprocedural
rules by Art VIII. Sec.
5(5)
of
the
Constitution.
2
speedy disposition of cases;
2. The rules shall be uniform for all
courts of the same grade; and
3. The rules shall not diminish,
increase or modify substantive
rights(Art. VIII Sec. 5[5], 1987 Phil.
Constitution).
POWER OF THE SUPREME COURT TO
AMEND AND SUSPEND PROCEDURAL
RULES
The courts have the power to relax or
suspend technical or procedural rules or
to except a case from their operation
when compelling reasons so warrant or
when the purpose of justice requires it.
What constitutes good and sufficient
cause that would merit suspension of the
rules is discretionary upon the court.
(Commissioner of Internal Revenue v.
Migrant Pagbilao Corporation, G.R. No.
159593. October 12, 2006).
Q: May the Supreme Court overturn
judicial precedents in the exercise of
its rule making power?
A: Yes.The constitutional power of the
Supreme Court to promulgate rules of
practice and procedure to amend or
repeal the same, necessarily carries with
it the power to overturn judicial
precedents on points of remedial law
through the amendment of the Rules of
Court. (Pinga v. Heirs of Santiago, G.R No.
170354, June 30, 2006).
Q: What is the primary objective of the
suspension of the rules?
A: In the interest of just and expeditious
proceedings, the Supreme Court may
suspend the application of the Rules of
Court and except a case from its
A
court
is
a
tribunal officially
assembled under
authority of law.
A court is an
organ
of
the
government with a
personality
separate
and
distinct from the
person
judge
A
judge isora public
officer.
A court is a being
in
imagination
comparable to a
corporation.
The existence of
the
court
is
continuous and is
not affected by the
death, resignation,
or cessation from
the service of the
judge
presiding
over it.
A judge is simply
an officer of such
tribunal
(Wagen Horst v.
Philadelphia
Insurance
Company 358pa.
The judge has no
separate
and
distinct
personality from
the court.
A court is an
office.
A judge is a
physical person.
4
Example: Supreme Court. (Sec 1, Art.
VIII, Constitution)
Statutory Court is one created by a
law other than the constitution. It
owes its creation from statutory
enactments. All courts in the
Philippines, except the Supreme
Court, are statutory courts.
Example: Sandiganbayan.
3. Superior Court vs. Inferior Court
Superior
Court
is
one
with
controlling authority over other courts
and with an original jurisdiction of its
own.
Inferior Court is one which is
subordinate to another court, the
judgment of which may be reviewed by
a higher tribunal (The Bar Lecture
Series, VOL.I, Civil Procedure, RIANO,
2014 ,p.61).
4. Civil Court vs. Criminal Court
Civil Courts are those which
determine
controversies
between
private persons.
Criminal Courts are those which
adjudicate offenses alleged to have
been committed against the State (The
Bar Lecture Series, VOL.I, Civil
Procedure,,RIANO, 2014,p.61)
5. As to Level
a. First Level - Metropolitan Trial
Courts, Municipal Trial Courts in
Cities, Municipal Trial Courts,
Municipal Circuit Trial Courts.
b. Second Level - Regional Trial
Courts
c. Third Level - Court of Appeals,
Court
of
Tax
Appeals,
Sandiganbayan
d.
Fourth
LevelSupreme
Court(HERRERA, REMEDIAL LAW
VOL.I 2007 P.118).
JURISDICTION IN GENERAL
the
effect
of
lack
of
ERROR OF
JUDGMENT
Error
of
jurisdiction
is
one where the act
complained of was
issued
by
the
court without or
in
excess
of
jurisdiction
(Cabrera vs. Lapid,
510 SCRA 55, 66)
Error
of
judgment
presupposes that
the court is vested
with jurisdiction
over the subject
matter
of
the
action but, in the
process
of
exercising
that
A
judgment
rendered without
a jurisdiction is
void.
Correctible only by
certiorari.
LACK OF
JURISDICTION
There is lack of
jurisdiction when
the court is not
vested by law with
authority or power
to take cognizance
of a case.
jurisdiction,
it
committed
mistakes in the
appreciation of the
facts
and
the
evidence
leading
to an erroneous
judgment
An
Erroneous
judgment is not a
void judgment.
Reviewable only by
appeal.
EXCESS OF
JURISDICTION
Excess
of
jurisdiction
presupposes
the
existence of an
authority for the
court to assume
jurisdiction over a
case but, in the
exercise of that
authority, it acted
beyond the power
conferred upon it.
(RIANO
supra,
2014, p. 74)
6
by Mr. Joseph Brown, Esq., a notary
public in the State of New York. Brigod
filed a motion to dismiss the complaint on
the following grounds:
(a)
The
court
cannot
acquire
jurisdiction
over
the
person
of
Amorsolo because he is not a resident
of the Philippines;BAR QUESTION (2009)
Example:
Land
registration
proceedings or suits involving civil status
or real property in the Philippines.
Q: Distinguish jurisdiction from venue.
(BAR 2006)
A: JURISDICTION treats of the power of
the Court to decide a case on the merits,
while VENUE refers to the place where
the suit may be filed. . Jurisdiction is a
matter of substantive law; venue, of
procedural law. Jurisdiction may be not
be conferred by consent through waiver
upon a court, but venue may be waived,
except in criminal cases
In criminal actions, however, venue is
jurisdictional. (Nocum et al. v. Tan, G.R.
No. 145022, September 23, 2005; Santos
III v. Northwest Airlines, G.R. No. 101538,
June 23, 1992).
JURISDICTION
VENUE
Matter of substantive
law.
Matter of procedural
law
Establishes a relation
between the court
and
the
subject
matter
Establishes a relation
between plaintiff and
defendant,
or
petitioner
and
respondent.
May be conferred by
the act or agreement
of the parties.
Lack of jurisdiction
over
the
subject
matter is a ground for
a
motu
proprio
dismissal.
CLASSIFICATION OF JURISDICTION
a. As to
Cases Tried
b. As to
Nature of the
Cause
c. As to.
Nature and
Extent of
Exercise
It is exercised by a court
or body to the exclusion
of all other courts.
6.Concurrent
Jurisdiction
It is exercised over a case
or subject matter by two
or more courts or bodies.
1. General Jurisdiction
d. As to Situs
7.Territorial
Jurisdiction
8
It is exercised within the
limits of the place where
the court is located.
I.
8.
Extra-Territorial
Jurisdiction
It is exercised beyond the
the confines of the
territory where the court
is located.
CONCEPT OF RESIDUAL
JURISDICTION
This is the power of the trial court to
issue
protective
orders,
approve
compromises,
permit
appeals
of
indigent litigants, order execution
pending
appeal,
and
allow
the
withdrawal of appeal where the court is
normally
deemed
to
have
lost
jurisdiction over the case or the subject
matter involved in the appeal (Katon vs.
Palanca,G.R. No. 151149, September 7,
2004).
This stage is reached upon the
perfection of appeal but prior to the
transmittal of the original records or
records on appeal (Sec. 9, Rule 41).
RESIDUAL
JURISDICTION
That which would
remain with the
trial
court
notwithstanding
that the trial court
has
lost
jurisdiction
over
the subject matter
of the case.
RESIDUAL
PREROGATIVE
This is the power
of the courts to
dismiss an action
motu propio upon
the
grounds
mentioned
in
Section 1, Rule 9
FUNDAMENTAL PRINCIPLES
LIBERAL CONSTRUCTION
PRINCIPLE
PRINCIPLE
HIERARCHY
OF
JUDICIAL
DOCTRINE OF JUDICIAL
STABILITY/DOCTRINE OF NONINTERFERENCE
DOCTRINE OF PRIMARY
JURISDICTION
General rule:
The doctrine of primary jurisdiction
means that court cannot or will not
determine a controversy involving a
question which is within the jurisdiction
of an administrative tribunal prior to
resolving the same, where the question
demands
the
exercise
of
sound
administrative discretion requiring special
knowledge, experience and services in
determining technical or intricate matters
of fact. (Omictin vs. Court of Appeals, G.R.
No. 148004, January 22, 2007)
Exceptions:
1. Where the findings are not supported
by evidence.
2. Where the findings are vitiated by
fraud, imposition, or collusion.
3. Where the procedure which lead to the
factual findings are irregular.
4. When palpable errors are committed.
5. When grave abuse of discretion,
arbitrariness
or
capriciousness
is
manifested.
MEMORANDUM
OF
AGREEMENT
BETWEEN THE DOJ AND OFFICE OF
THE OMBUDSMAN
Effective 29 April 2012, under a
Memorandum of Agreement between the
10
DOJ and the Office of the Ombudsman
(OMB), both offices agreed on the
following for jurisdiction:
1. The OMB has the primary jurisdiction
in
the
conduct
of
preliminary
investigation and inquest proceedings
over complaints for crimes cognizable by
the Sandiganbayan.
2. If, upon the filing of a complaint, the
prosecution office of the DOJ determines
that the same is for a crime falling under
the
exclusive
jurisdiction
of
the
Sandiganbayan, it shall advise the
complainant to file it directly with the
OMB: Provided, That in case a
prosecution office of the DOJ receives a
complaint that is cognizable by the
Sandiganbayan, it shall immediately
endorse the same to the OMB: Provided
further, That in cases where there are
multiple
respondents
in
a
single
complaint and at least one respondent
falls within the jurisdiction of the
Sandiganbayan, the entire records of the
complaint shall be endorsed to the OMB.
3. The OMB and the prosecution offices
of the DOJ shall have concurrent
jurisdiction over complaints for crimes
involving public officers and employees
falling outside the exclusive jurisdiction of
the Sandiganbayan: Provided, That the
office where such a complaint is filed for
preliminary investigation shall acquire
jurisdiction over the complaint to the
exclusion of the other: Provided further,
That the OMB may refer/endorse any
complaint filed before it to any
prosecution office of the DOJ having
jurisdiction over the complaint.
4.
The
Prosecutor
General
or
provincial/city prosecutors shall resolve
cases referred by the OMB to the DOJ for
preliminary investigation without need of
approval from the OMB.
DOCTRINE OF ADHERENCE TO
JURISDICTION OR PRINCIPLE OF
CONTINUITY OF JURISDICTION
The doctrine means that once jurisdiction
has attached to the court, it cannot be
ousted by the happening of subsequent
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
finally disposes of the case (Baritua vs.
Mercader, G.R No. 136048, January 23,
2001).
CIVIL CASES
JURISDICTION OF
1. Exclusive
Original
a. personal property
b. probate proceedings (intestate or
testate)
c. admiralty and maritime cases
d. sums of money
a. personal property
b. probate proceedings (intestate or
testate)
c. admiralty and maritime cases
d. sums of money
11
12
issue of possession; (PROVISIONAL DETERMINATION)
3. Cases falling under the 1991 Rules
on Summary Procedure:
a. Forcible entry and unlawful
detainer, irrespective of the amount of
damages or unpaid rentals sought to be
recovered;
NOTE: Where attorneys fees are
awarded, the same shall not exceed
P20,000;
b. All other cases, except probate
proceedings, where total claim does
not exceed P200,000.00 in Metro
Manila, or P100,000 outside Metro
Manila, exclusive of interest and costs.
4. Cases falling under the 1991 Rules
on Summary Procedure:
Value of claim does not exceed Two
Hundred Thousand Pesos (P200,000.00)
exclusive of interest and costs (Sec. 2
A.M. NO. 08-8-7-SC Feb. 1, 2016 ).
Claim or demand may be:
(a) For money owed under any of the
ff:
1.
2.
3.
4.
5.
Contract
Contract
Contract
Contract
Contract
of
of
of
of
of
Lease;
Loan;
Services;
Sale; or
Mortgage;
of
2.Delegated
3.
Special
A. with RTC:
4.Concurrent
Jurisdiction:
13
14
C. with the SC, CA and
Sandiganbayan
Petition for writ of amparo and habeas
data
D. with the Insurance Commisioner
Single claim not exceeding
5,000,000(Insurance Code as
amended by R.A 10607,Sec. 439 )
5. Appellant
JURISDICTIONOFFAMILYCOURTS
In areas where there are no family courts, the ff. cases shall be adjudicated by the RTC.
1. Petitions for guardianship, custody of children, habeas
corpus in relation to the latter;
2. Petitions for adoption of children and the revocation thereof;
Exclusive Original
under
the
2. Concurrent with
EXISTING CIVIL COURTS
15
16
3. APPELLATE
NOTE: The decisions of the Sharia District Courts whether on appeal from the Sharia
Circuit Courts or not, shall be final. The Supreme Court shall, however, continue to
exercise original and appellate jurisdiction over certain issues as provided by the
Constitution (Art. 145).
1. Over all criminal cases arising from violation of NIRC of the TCC
and other laws, part of laws, or special laws administered by the
BIR or the BOC where the principal amount of taxes and fees,
exclusive of charges and penalties claimed is less than P1M or
where there is no specified amount claimed;
2. In tax collection cases involving final and executor assessments of
taxes, fees, charges and penalties where the principal amount of
taxes and fees, exclusive of charges and penalties claimed is less
than P1M tried by the proper MTC, MeTC and RTC.
2. APPELLATE
Exclusive
original or
appellate to
review by appeal
SANDIGANBAYAN
17
18
1. Civil cases filed pursuant to E. O. Nos. 1, 2, 14 and 14
-A (PCGG cases for recovery of ill-gotten wealth)
Three conditions:
Sandiganbayan
a. with the SC
2. Concurrent
APPELLATE
mandamus, habeas
writs in aid of its
warranto arising in
-A (PCGG cases for
2. Concurrent
a. with the SC
c. with SC,
Sandiganbayan and RTC
APPELLATE
SUPREME COURT
1. Exclusive ORIGINAL
2. Concurrent
a. with the CA
19
20
c. with RTC
d. with CA, RTC and
Sandiganbayan
APPELLATE
5. Reformation of contract
6. Action for revival of judgment
7. Citizen suit (Sec. 41, Clean Air Act
of 1999)
8. Support
9. Actions questioning the validity of
a mortgage
10. Annulling a deed of sale or
conveyance
BARANGAY CONCILIATION
Q: What disputes are required to
undergo amicable settlement before
the lupon of a barangay?
A: Disputes between parties actually
residing in the same city or municipality.
EXCEPT: (GPO-NBD-PCE-ACW)
1. Where one party is the government, or
any subdivision or instrumentality
thereof; where the government is just
one of three or more parties, referral to
the lupon is still mandatory (Gegare v.
CAG.R. No.83907, September 13,
1989) .
2. Where one party is a public officer or
employee, and the dispute relates to
the performance of his official
functions;
3. Offenses punishable by imprisonment
exceeding 1 year or a fine exceeding
P5,000;
4. Offenses where there is no private
offended party;
5. Where
the
dispute
involves
real
21
22
Where the
detention
accused
is
under
(Flores
v.
Mallare-Philips,
September24, 1986).
L-66620,
CIVIL PROCEDURE
RULE 1
GENERAL PROVISIONS
1.Election cases;
2.Land registration;
3.Cadastral;
4.Naturalization;
23
24
27 5.Insolvency proceedings; and
28 6.Other cases not herein
provided for (Rule 1, Sec. 4)
These rules will be applied in the
aforementioned cases by analogy or in a
suppletory character and whenever
practicable or convenient.
Q: What is an action?
A: Action is the legal and formal demand
of one's right from another person made
and insisted upon in a court of justice
(The Bar Lecture Series, VOL.I, Civil
Procedure, RIANO, 2014,p.212).
COMMENCEMENT OF ACTION
(Rule 1, Sec. 5)
A civil action is commenced by:
Filing of the original complaint in court
and must be accompanied with the
payment of correct docket fees.
Q: When is
commenced?
an
action
deemed
litigant(Sec.
19,
Rule
IN GENERAL
1. Ordinary Civil Actions
25
26
1. It is one by which a party sues
another for:
a. The
enforcement
or
protection of a right, or
b. The prevention or redress
of a wrong
2. It may be ordinary or special
3. It is governed by ordinary rules.
2. Special Civil Actions
It is one which is also governed by the
rules of ordinary civil actions, but
subject
to
the
specific
rules
prescribed for such particular special
civil action.
SPECIAL CIVIL ACTIONS
COMMENCED/ INITIATED BY
COMPLAINTS
(FUF PIE)
1) Interpleader
2) Expropriation
3) Foreclosure of
Real Estate
Mortgage 4)
Partition
5) Forcible Entry /
Unlawful Detainer.
PETITIONS
(DQ ICE CREFP)
1) Declaratory Relief
and Similar Remedies
2) Review of
Adjudication of the
Constitutional
Commissions (COA
and COMELEC)
3) Certiorari,
prohibition and
mandamus
4) Ejectment
5) Expropriation
6) Partition
7) Foreclosure
8) Interpleader
9) Quo Warranto
10)Contempt.
3. Criminal Actions
It is one by which a party seeks to
establish for an act or omission
punishable by law.
4. Special Proceeding
1. It is a remedy by which a party
seeks to establish a status, a
right or a particular facts.
2. It is also governed by ordinary
rules but subject to specific
rules prescribed (R62-R71).
Ordinary Civil
Action
1. An ordinary suit in
court, by which one
party
prosecutes
another
for
the
enforcement
or
protection of a right,
or the prevention or
redress of a wrong.
Special Proceedings
1. An application or a
petition to establish
the status or a right
of a party or a
particular fact.
2. Governed by Rules
2-71 of ROC
2. Governed by Rules
72-109 of ROC and
other special laws.
3. Initiated by:
a. an action or
b. complaint;
requires the filing of
formal pleadings
3. Initiated by:
a. application or
b. petition or
c.
by
filing
motion.
4.
Two
adverse
Plaintiff
Defendant.
4.
definite
party/petitioner but
no definite adverse
party
(in
rem
proceeding)
5. Oppositor files an
Opposition.
definite
partiesand
5. Defendant files an
Answer.
6. A right is alleged to
exist and have been
violated
right,
status,
particular fact
7. Court of General
Jurisdiction
or
7. Court of Limited
Jurisdiction
them.
REAL ACTION
PERSONAL
ACTION
A real action is
local,
i.e.,
its
venue
depends
upon the location
of
the
property
involved
in
the
litigation
A personal action is
transitory, i.e., its
venue
depends
upon the residence
of the plaintiff or
the defendant at
the option of the
plaintiff (Riano).
27
28
It is a proceeding where 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.
2. Transitory Actions
The venue of which is generally
dependent upon the residence of
the parties regardless of where the
cause of action arise.
ACTIONS AS TO THE BINDING EFFECT
OF RELIEF SOUGHT
1. Actions In Personam
One which is directed against a
particular person and the relief
sought is binding upon such person.
Ex. Action for sum of money or for
specific performance.
2. Actions In Rem
One which is not directed against a
particular person but on the thing or
res itself and the relief sought is
binding upon the whole world.
The thing or res may be personal or
real property or it may be a status,
right or a particular fact (Riguera,
Primer-Reviewer on Remedial Law,
2009).
The object is to bar indifferently all
who might be minded to make any
objection against the right sought to
be enforced, hence the judgment
therein is binding theoretically upon
the whole world.
Quasi In Rem
1.
Action
against a
person on
the basis of
his personal
liability
2.
Jurisdiction
is over the
person
Action
against the
thing or
property
itself
Jurisdiction
is over the
res through
service of
summons
by:
a.
publication,
or
Action to subject
a partys interest
to the obligation
or lien burdening
the property
Jurisdiction over
the party is not
necessary; it is
enough that due
process is
observed
b. posting of
notices.
In Rem
3.
It is
Summons is
Summons is
served
either:
a. personally,
or
b.
substituted
service
4. An
individual is
named as
defendant
sufficient
that
summons is
served by:
a.
publication,
and/or
b. posting of
notices
served
extraterritorially
if defendant is an
absent non
resident;
4. No
named
defendant
4. An individual
is named as
defendant
5.
Judgment is
conclusive
against the
whole world
5.
Judgment is
conclusive
between the
parties
in case of an
absent resident,
same as above or
by substituted
service
RULE 2
CAUSE OF ACTION
Cause of Action.
It is an act or omission by which a party
violates the right of another (Rule 2, Sec.
2 ROC).
Q:A contracted the services of B to
overhaul two aircrafts engines. Due to its
technical capability, B contracted the
services of C to do the work. A accepted
the overhauled engines and released the
amount to B but C was not paid for the
remaining balances despite the demands.
C filed a complaint before the RTC against
B and A to pay the balance plus interest.
CA dismissed the case against A because
the complaint does not state a cause of
action against A but granted its complaint
against B. Does C failed to sufficiently
state a cause of action?
Right of Action
29
30
Act or mission by
which a party violates
the right of another
The delict or wrong
committed
by
the
defendant
The reason
action.
for the
31
32
term of years, the recovery of a judgment
for damages by reason of the breach is a
bar to another action on the same
contract for and on account of the
continuous breach (Blossom & Co. v
Manila Gas Corp., GR No. L-32958, Nov 8
1930).
Effects:
The remedy of the defendant is to move
for its dismissal under Rule 16 when a
single cause of action is split on the
ground that:
1. There is another action pending
between the same parties for the
same cause, or litis pendentia
2. If the first action has already been
finally terminated on the ground of
res judicata
( Rule 2, Sec. 5)
The assertion in the alternative or
otherwise, of as many causes of action as
a party may have against another in one
pleading alone is valid.
Q: What are the rules governing joinder
of causes of action?
A: (JISM)
1. The party joining the causes of
action shall comply with the rules
on joinder of parties under Section
6, Rule 3.
2. The joinder shall NOT include
special civil actions governed by
special rules
3. Where the causes of action are
between the same parties but
pertain to different venues or
jurisdiction, the joinder may be
allowed in the RTC, provided that:
a. One of the causes of action
falls within the jurisdiction of
the RTC; AND
b. The venue lies therein
4. Where the claims in all the causes
of action are principally for
recovery of money, the aggregate
amount claimed shall be the rest of
jurisdiction (Totality Rule, Sec. 33
(1), BP 129).
Elements for Joinder of Parties:
1. There must be a right to relief in
respect to or arising from the same
transaction
or
series
of
transactions
of
action
DEFENDANT
refers
to
the
original defending
party, defendant in
a
counter-claim,
cross-defendant,
or third (fourth,
etc.)
party
defendant.
RULE 3
33
34
3. The estate of a deceased person
(Limjoco v Intestate Estate of
Fragante, 8 Phil 776).
4. A legitimate labor organization (Art.
242 (e) of Labor Code).
5. The Roman Catholic Church and
the archbishop or diocese to which
they belong (Barlin v Ramirez, 7 Phil
47).
6. A dissolved corporation may prosecute
and defend suits by or against it
provided that the suits:
a. Occur within 3 years after its
dissolution, and
b. The suits are in connection with
the settlement and closure of its
affairs (Sec 122 of Corporation
Code).
7. A political party incorporated under
Act 1459 (now BP 68, Corporation
Code).
Under Sec.15 of this Rule, an entity,
which is not registered as a juridical
person
and
without
requisite
personality required of parties to a
suit, may at least be sued as a
defendant in the first instance so that
the members thereof shall be
disclosed by being required to be
individually named in the answer.
This exception is dedicated by the
need to identify its members since it is
from them that the plaintiff may seek
relief on his claim (Regalado).
As to properties of the Roman
Catholic Church, the Archbishop of
the diocese to which they belong may
be a party (Versoza v Fernandez, GR
No. L-25254, Nov 22 1926).
REAL PARTIES IN INTEREST (RPII),
INDISPENSABLE PARTIES,
REPRESENTATIVES,
NECESSARY PARTIES,
INDIGENT PARTIES,
ALTERNATIVE DEFENDANTS
Real Party In Interest (RPII)
(Rule 3, Sec.2)
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.
To be a real party in interest, 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 v Corona, 289 SCRA 624).
It is an interest that is material and direct
as distinguished from a mere incidental
interest in the question (Samaniego v
Aguila, 334 SCRA 438).
General Rule: Every action must be
prosecuted and defended in the name of
the real party in interest.
Exception: An exception to the rule that
every action must be prosecuted or
defended in the name of the real party in
interest is in the case of representatives
as parties under Rule 3, Sec,3.
Lack of Legal
Capacity to Sue
Refers to plaintiffs
general disability
to sue on account
of
minority,
insanity, lack of
juridical
personality
and
other
similar
disqualifications
Lack of Legal
Personality to Sue
A ground for a
motion to dismiss
pursuant
to
A ground for a
motion to dismiss
on the ground that
the
complaint
states no cause of
action (Rule 16, Sec
1 [g]).
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36
Q: What is the effect of failure to
include Indispensable Parties?
A: The court cannot proceed without their
presence. Any judgment rendered by the
court would be null and void.
No
final
determination may
be had of an
action
if
an
indispensable
party
is
not
impleaded
Necessary Party
A
final
determination may
be had of an
action even if a
necessary [arty is
not impleaded, but
is such a case
complete
relief
cannot
be
accorded, or there
will
be
an
incomplete
determination or
settlement of the
claim subject of
the action.
The failure by the
plaintiff
to
implead
a
necessary
party
despite
court
order,
will
not
result
in
the
dismissal of the
case but simply
the
waiver
of
plaintiffs
claim
against
such
necessary
party
(Rule 3, Sec.9).
Examples:
1. A joint obligor in a joint obligation.
2. A transferee pendent lite (Rule 3,
Sec.1).
The failure to implead the transferee
pendent lite would not affect the
validity of the judgment.
Notes:
1. In case of Pro forma parties who are
neither indispensable nor necessary,
the general rule under Rule 3, Sec.11
must be followed.
2. Non-joinder is not a ground for
dismissal.
In a case concerning an action to recover
a sum of money, the SC held that the
failure to join the spouse in that case was
not a jurisdictional defect. The nonjoinder of a spouse does not warrant
dismissal as it is merely a formal
requirement which may be cured by
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38
1. Party must have a gross income and
that of their immediate family do not
exceed an amount double the monthly
minimum wage of an employee, and
2. Party do not own real property with a
fair market value as stated in the
current tax declaration of more than
P300,000
Conditions:
1. If the applicant for exemption meets
the salary and property requirements
under Rule 141, Sec.19 then the
grant of the application is mandatory.
2. If the applicant does NOT satisfy one
or both requirements, then the
application should not be out rightly
dismissed; instead, the court should
apply the indigency test under Rule
3, Sec.21 and use its sound discretion
in determining the merits of the
prayer for exemption (Algura v LGU,
GR No. 150135, Oct 30 2006).
Section 13. Alternative Defendants
Where the plaintiff is uncertain against
who of several persons he is entitled to
relief, he may join any or all of then as
defendant in the alternative, although a
right to relief against one may be
inconsistent with a right to relief against
the other.
TYPES OF JOINDER OF PARTIES
A. Permissive - Sec. 6
B. Compulsory - Indispensable Parties
(Sec. 7)
C. Proper or Necessary -Sec. 8
A. Permissive Joinder of Parties
(Rule 3, Sec.6)
Requisites:
1. There must be a right to relief in
respect to or arises out of the
separate
of which
with the
the suit
Joinder of Parties
There are various
causes of action
that accrue in favor
of one or against
one
or
more
defendants.
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40
The dismissal under Rule 17, sec.3 shall
not be ordered where the plaintiff fails to
comply with the order of the court for the
joinder of the necessary part under this
rule, in line with Sec.11 which provides
that non-joinder of parties should not be
a ground for dismissal of an action
(Regalado).
Requisites: (BINC)
1. The subject matter of controversy is of
common or general interest to may
persons
2. Persons are so numerous that it is
impracticable to join all as parties
3. Parties actually before the court are
sufficiently
numerous
that
all
interests concerned are fully protected
4. The representatives sue or defended
for the benefit of all.
Not Joined
Parties
When
he
is
supposed to be
joined bit is not
impleaded in the
action.
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42
extinguished, it shall be the duty of his
counsel:
1. To inform the court within 30 days
after such death of the fact
2. To give the name and address of
the
deceased
partys
legal
representative
Failure to comply by the counsel shall be
a ground for disciplinary action.
No summons are required to be served on
substitute defendants. Instead, the order
of substitution shall be served upon the
parties substituted in the action;
otherwise, the court does not acquire
jurisdiction over the substitute party
(Ferreria et al. v Vda. De Gonzales et.
al.104 Phil. 143). Proceedings conducted
by the trial court after the death of the
defendant and without such substitution,
are null and void (Lawas v CA et al., GR
No.L-45809, 1986; Regalado, 2010).
Rule: The substitution of the deceased,
priority
is
given
to
his
legal
representatives. The court may allow the
substitution by the heirs instead, if there
is unreasonable delay in the appointment
of an executor or administrator or when
the estate was extrajudicially settled
(Regalado, 2010).
Effect of Death
Relationship
to
General
Rule:
The
relationship is terminated.
Client-Lawyer
lawyer-client
Exceptions:
1. When there is a contract for the
lawyers service up to the final
judgment
2. When the lawyers fees are on a
contingent basis
3. When the lawyers appearance is
coupled with interest.
Action which
does NOT Survive
The
injury
complained of is to
person
or
the
action is to the
person,
the
property
and
rights
affected
being
merely
incidental.
Ex.
Separation,
annulment
marriage.
Legal
of
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44
resentatives.However,afavorablejudgment
shallnotentitlethewinningparty
toanexecution,asthesamemustbefiledasac
laimagainsttheestateofthedeceased
but
without the need of proving the claim.
Requisites:
1. Action must primarily be for the
recovery of money, debt or interest
2. The claim subject of the action arose
from the contract express or implied
3. Defendant dies before the entry of
the final judgment in the court where
his case was pending at that time.
Theimplied
contractsmentionedinthis
sectionandinRule 86, Sec.5may properly
includequasi-contracts
allpurelypersonalobligationsthatarenotbas
edonadelictoratort (Regalado).
Section 22. Notice to the Solicitor
General.
Whereanactioninvolvesthevalidityofanytre
aty,law,ordinance,executiveorder,presiden
tialdecrees,rulesorregulations,thecourtma
y,initsdiscretion,requiretheappearanceoft
heSolicitorGeneral.
FailuretonotifytheSolicitorGeneralaboutth
e petitionisNOTajurisdictionaldefect.
RULE 4
VENUE
Q: What is the definition of venue?
A: The place or geographical area where
an action must be instituted and tried.
General Rule: The venue of an action is
that which is provided by law. (Rule 4,
Sec.4 (a)).
Jurisdiction
1. Authority to
hear
and
determine a case
2.
Matter
procedural law
of
2.
Matter
or
substantive law
3. Establishes a
relation
between
plaintiff
and
defendant,
or
petitioner
or
respondent
3. Establishes a
relation
between
court
and
the
subject matter
4. May be conferred
by
the
act
or
agreement of the
parties
4. Fixed by law
and cannot be
conferred
by
agreement of the
parties
5. Not a ground
motu
proprio
dismissal (except in
cases subject to
summary
procedure)
5.
Lack
of
jurisdiction
over
the subject matter
is a ground for a
motu
proprio
dismissal
NOTE:
Venue is not jurisdictional in civil cases
as oppose to criminal cases.
Section 1. Venue of Real Actions
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46
2. Property of the defendant located in
the Philippines, venue is where the
property or a portion thereof is
situated. (Rule 4, Sec.3)
Where
there
is
more
than
on
defendant/plaintiff in the case, the
residences of the principal parties should
be the basis for determining the proper
venue (Regalado, 2010).
An exception to the general rules on
venue is found in civil actions for
damages in case of liber whether a
criminal case therefor has been files or
not, as special rules of venue are provided
in Art.360 of RPC, as last amended by RA
4364. Said venue applies to both
residents and nonresidents, assuming
that jurisdiction over the latter has been
acquired (Regalado, 2010).
Section 4: Rules on Venue
Do Not Apply
Q: When is Rule 4 ON VENUE OF
ACTIONS NOT APPLICABLE?
A:In those cases:
1. Where a specific rule or law provides
otherwise.
2. The parties have validly agreed in
writing before the filing of the action
on the exclusive venue thereof
(Principle of Stipulations on Venue).
Requisites for venue to be exclusive:
1. There is a valid written agreement
2. Executed by the parties before the
filing of the action
3. Venue is of exclusive or restrictive
nature (qualifying words such as only,
solely, exclusively in this court, in no
other place, to the exclusion of must be
used).
RULE 5
UNIFORM PROCEDURE IN
TRIAL COURTS
Section 1: UNIFORM PROCEDURE
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48
RULE 6
KINDS OF PLEADINGS
Section 1. Pleadings
These are written statements of the
respective claims and defenses of the
parties submitted to the court for
appropriate judgments.
Section 2. Kinds of Pleadings.
Kinds of Defenses
I. Negative Defenses
The specific denial (Rule 9, Sec.10)
of the material fact/s alleged in
the pleading of the claimant
essential to his cause/s of action
Sec.5 (a)).
Modes:
1. Absolute
Denial
the
defendant must specify each
materialallegation of fact the
truth of which he does not
admit and setting forth the
substance of the matters upon
which he relies to support his
denial, whenever practicable.
2. Partial Denial the defendant
shall specify so much of it as is
true and material and shall
deny the remainder.
A. Complaint (Section 3)
It is the pleading alleging the plaintiff
cause/s of action. The names and
residences of the plaintiff and
defendant must be stated in the
complaint.
It should contain a concise statement
of the ultimate facts constituting the
plaintiffs cause of action, not
evidentiary
facts
or
legal
consequences.
Test of Sufficiency of the Facts Alleged
In the Complaint
Whether upon the averment of facts, a
valid judgment may be properly rendered.
B. Answer (Section 4)
It is the pleading in
defending party sets
defenses.
which
forth
the
his
way
of
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50
Q: How is counterclaim set up or
pleaded? May a counterclaim be set up
in a motion to dismiss?
A: While technically a separate and
independent pleading, a counterclaim by
common practice is pleaded or set up in
an answer (Section 6, Rule 16).Thus, the
practice of denominating such an answer
as "Answer with Compulsory/Permissive
Counterclaim/s."
A counterclaim cannot however be set up
in a motion to dismiss. The reason is that
while a counterclaim is a pleading, a
motion is not.
Kinds of Counterclaim
I. Compulsory Counterclaim
is one which arises out of or is
connected with the transaction or
occurrence constituting the subject
matter of the opposing party'sclaim
and
complies
with
the
other
requirements set forth in Section 7,
Rule 6.
Requisites:
1. It must arise out of, or be
necessarily connected with the
transaction or occurrence that
is the subject matter if the
opposing partys claim
2. It does not require for its
adjudication the presence of
third parties of whom the court
cannot acquire jurisdiction
3. It must be cognizable by the
regular courts
4. The trial court has jurisdiction
to entertain the claim both as to
the amount and the nature
thereof.
Except that in an original action
before the RTC, the counter claim
may be considered compulsory
regardless of the amount.
compulsory
permissive
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52
1. If no motion to dismiss has been
filed, any of the grounds for dismissal
provided for in Rule 16 may be
pleaded as an affirmative defense in
the answer and, in the discretion of
the court, a preliminary hearing mat
be had thereon as if a motion to
dismiss had been filed.
Note: The dismissal of the complaint
under this section shall be without
prejudice to the prosecution in the same
or separate action of a counterclaim
pleaded in the answer (Rule 16, Sec.6.)
2. Where the plaintiff himself files a
motion to dismiss his complaint after
the defendant has pleaded his answer
with a counterclaim, the dismissal
shall be limited to the complaint and
is without prejudice to the right of the
defendant
to
prosecute
his
counterclaim in a separate action.
Unless within 15 days from notice of the
motion he manifests his preference to
have his counterclaim resolved in the
same action. (Rule 17, Sec.2)
3. If the dismissal is due to the fault of
the plaintiff and a counterclaim has
been set up by the defendant, the
latter
may
prosecute
such
counterclaim in the same or in a
separate action. (Rule 17, Sec.3).
Counterclaim
Cross-claim
As to whom Directed
1.
Directed 1.
Directed
against
the against a co-party
opposing party
As to Connection with the Main
Action
2. May or may 2. Always arise
not arise out of out
of
the
the transaction transaction
or
constituting the occurrence that is
subject matter of the subject matter
the
opposing of the original
partys claim
action or of a
counterclaim
As to compulsoriness
3. May or may 3.
Always
not
be compulsory
compulsory
(Riguera, Primer-Reviewer on Remedial
Law, Civil Procedure, Vol.I, 2015,page 182)
Section 12. Bringing New Parties.
When the presence of parties other than
those to the original action is required for
the granting of complete relief in the
determination of a counterclaim or crossclaim, the court shall order then to be
brought in as defendants, if jurisdiction
over them can be obtained.
Section 9. Counter-Counterclaims and
Counter Cross-claims.
1. An affidavit
2. Filed by a
party to a case
2.
Filed
by
a
stranger to the case
3. The purpose
is
for
the
defendant
to
bring
in
a
stranger as a
party to the case
Complaint-InIntervention
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54
Person
who
initiates
is
the
defending party
Person
who
initiates is not a
party
to
the
original
complaint
E. Reply
It is a pleading, the office or function of
which is to deny, or allege facts in denial
or avoidance alleged by way of defense in
the answer and thereby join or make
issue as to such new matters (Rule 6,
Sec.10).
General Rule:
Filing a reply is optional.
Exceptions:
1. The answer is based on actionable
document (Rule 8, Sec.8).
2. To set up affirmative defenses on
the counterclaim
3. The answer alleged the defense of
usury.
Actionable Document: The action or
defense is based or founded upon a
written instrument or document (Riano,
2011).
Q: What is the effect of Failure to File
a Reply?
A: All the new matters alleged in the
answer are deemed controverted.
Pleadings Allowed in Small Claim Cases
and Cases Covered By the Rules on
Summary Procedure
Pleadings allowed under the Rule on
Summary Procedure (CCCA)
1. Complaint
2. Compulsory
Counterclaim
3. Cross-claim
4. Answer
Note: All pleadings must be verified.
Q:
What
are
the
Prohibited
Pleadings/Motions under the Rule on
Summary Procedure?
A:(6M [dbp red] TM PIRC)
1. Motion to dismiss the complaint
Except on the ground of lack of
jurisdiction over the subject
matter or failure to comply with
the requirement of prior referral
to the Lupon.
2. Motion for bill of particulars
3. Motion for new trial or for
reconsideration of a judgment for
reopening of trial
4. Petition for relief from judgment
5. Motion for extension of time to file
pleadings, affidavit or any other
papers
6. Memoranda
7. Petition for certiorari, mandamus
or
prohibition
against
any
interlocutory order issued by the
court
8. Motion to declare the defendant in
default
9. Dilatory motions for postponement
10. Reply
11. Third party complaint
12. Intervention
Notes:
1. The defense of lack of jurisdiction
may be raised in a motion to
dismiss as an exception to the rule
on prohibited pleadings.
2. The filing of a motion to dismiss
after the answer had already been
submitted does not constitute
prohibited pleading (Heirs of
the
prohibited
in Small Claim
RULE 7
PARTS OF A PLEADING
A. Caption. (Sec.1)
1. Title of the Action - indicates the
names of the parties.
They shall all be named in the
original complaint or petition.
In subsequent pleadings, it shall
be sufficient if the name of the
first part is indicated on each side
with a proper indicator that there
are other parties.
2. Docket Number if assigned.
Variance between caption and
allegations in the pleading
It is not the caption of the
pleading but the allegations which
determines the nature of the
action and the court shall grant
the relief warranted by the
allegations and proof even if no
such relief is prayed for (Regalado,
2010).
B. Body. (Sec.2)
(DARD)
1. Designation
2. The allegations of
claims and defenses
3. The relief prayed for
4. Date of the pleading
the
parties
Notes:
1. The court may grant a relief not
prayed for as long as the relief is
warranted
based
on
the
allegations of the complaint and
the proof. The docket fees on such
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56
award shall constitute a lien on
the judgment. (Rule 141, Sec.2)
2. The
question
of
jurisdiction
depends upon the determination
of the true nature of the action
filed by a party which involves the
consideration of the ultimate facts
alleged as constitutive of the cause
of action therein. The prayer for
relief, although part of the
complaint, cannot create a cause
of action (Regalado).
C. Signature and Address (Sec.3)
The pleading must be signed by:
1. The party; or
2. Counsel representing him
Stating in either case his
address which should not be
a post office box.
Exceptions:
1. Failure to sign was die to mere
inadvertence; and
2. Not intended for delay
12. Petitionforhabeascorpus(R102,S3);
13. Petitionforchangeofname(R103,S2)
;
14. Petition for voluntary dissolution
of a corporation(R104,S1);
15. Petitionforcancellationorcorrection
ofentriesinthecivilregistry(R108,R
1);
16. Petitiontotakedepositioninperpetu
amreimemoriam(beforeactionorpen
dingappeal)(R24,S2);
17. Motiontosetasideadefaultorderofan
inferiorcourt;
18. Motionfordissolutionofpreliminaryi
njunctiononthegroundofirreparabl
edamagetothemovantwhiletheadve
rsepartycanbefullycompensated;
19. Petition
for
appointment
of
receiver (R59,S1);
20. Petitionforreviewofthedecisionofan
RTCincaseswithintheexclusiveorigi
naljurisdictionoftheinferiorcourt,b
yandelevatedtotheCA(R42,S1);
21. PetitionforreviewfromthequasijudicialagenciestotheCourtofAppea
ls(R43,S1)
22. Appealbycertiorarifrom
theCourtofTaxAppealstotheSupre
meCourt(Sec.12,RA9282amending
Sec.19,RA1125);
23. Petition
for
annulmentofjudgmentsor
finalordersandresolutions(R47,S1)
;
24. Applicationforsupportpendentelite
(R69,S1)
Q: Who may make a verification?
A: A verification may be made by the
party, his lawyer or his representative or
any person who personally knows the
truth of the facts alleged in the pleading
(Tanjuatco vs. Judge Gako, RTJ-06-2016,
23 March 2009).
Q: How is a pleading verified?
Forum
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58
contempt of court, without prejudice to
the corresponding administrative and
criminal actions.
If the acts of the party or his counsel
clearly constitute willful and deliberate
forum shopping, the same shall be:
1. Ground for summary dismissal with
prejudice and
2. Shall constitute direct contempt
3. Cause for administrative sanctions
A. Whether the several actions filed
involve:
1. Same transactions
2. Same essential facts and
circumstances
3. Identity of parties, rights or
causes of action and relief
sought in two or more cases
pending.
B. Forum shopping exists where:
1. The elements of litis pendentia
are present, or
2. A final judgment in one case
will amount to res judicata in
the other.
Q: When to invoke?
Requirements of a Corporation
Executing the
Verification/Certification Against NonForum Shopping
The requirement that a petitioner or
principal party should sign the certificate
of non-forum shopping applies even to
corporations
considering
that
the
mandatory directives of the ROC make no
distinction between natural and juridical
persons.
A corporation, however, exercises its
powers through its board of directors
and/or its duly authorized officers and
agents. Physical acts, like the signing of
documents, can be performed only by
natural persons duly authorized for the
purpose by corporate by-laws or by a
specific act of the board of directors
(Pascual and Santos Inc. v The Members of
the Tramo Wakas Neighborhood Assoc.
Inc., GR No. 144880, 2004).
Counsel
shall
be
subjected
to
appropriate disciplinary action if he:
1. Deliberately files an unsigned
pleading
2. Signs a pleading in violation of the
rules
3. Alleges scandalous or indecent
matter
4. Fails to promptly report to the court
the change of his address.
RULE 8
MANNER OF MAKING
ALLEGATIONS IN THE
PLEADINGS
A. Manner
(Sec.1)
of
Making
Allegations.
of
A:
Apartymaysetforthtwoormorestatementsof
a
claimordefensealternativelyorhypothetical
ly,EITHERin
onecauseofactionordefenseorinseparateca
usesofactionordefense.(Rule 8, Sec. 2)
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60
Malice, Intent, Knowledge or Other
condition of the mind (MIKO) of the
person may be averred generally.
4. Judgment. (Sec.6)
A judgment or decision of a domestic
or foreign court, judicial or quasijudicial tribunal, or of a board or
officer may be averred generally
without setting forth matter showing
jurisdiction to render it.
General Averment
Facts which may
be averred
generally
Particular Averment
Facts which must
be averred with
particularity
1. Conditions
precedent
2. Capacity to sue
or be sued
3. Malice, Intent,
knowledge or other
conditions of the
mind.(MIKO)
4. Judgment
5. Official
document or act
Circumstances
constituting Fraud or
Mistake
document was
signed; it was
not in words
and figures as
set out in the
pleadings.
Defenses
BARRED by
Admission of
Genuineness and
Due Execution
Defenses NOT
WAIVED Despite
Failure to
Specifically
Deny Under Oath
1. Signature is a
forgery
2. Signature is
unauthorized
3. The
corporation is
not authorized
under its
charter to sign
the instrument
4. The party
charged signed
the instrument
in some other
capacity than
that alleged in
the pleading
5. The document
was never
delivered
6. That at the
time the
1. Payment
2. Want or
illegality of
consideration
3. Fraud
4. Mistake
5. Compromise
6. Statute of
Limitations
7. Estoppel
8. Duress
9. Minority or
Imbecility
Effect of Failure
Denials
to Make Specific
Exceptions:
1. Allegations as to the amount of
unliquidated damages
2. Immaterial allegations in the complain
3. Conclusions of law
4. Grounds for legal separation or
annulment of marriage
5. General averment contradicted bu
specific averment
6. Default.
Specific Denial Requires An Oath,
when:
1. Contesting an actionable document
2. Denial of allegations of usury (Riano,
2011).
Requisites in Striking out of pleading
or matter contained (Sec.12)
. Upon motion made by a party
B. Before responding to a pleading, or
a. within 20 days after service of
pleading
upon
him
(if
no
responsive pleading is allowed), or
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62
b. upon courts own initiative at any
time.
C. Court may order any pleading to be
stricken out, or
a. That any sham, false, redundant,
immaterial,
impertinent
or
scandalous matter be stricken out.
RULE 9
EFFECT OF FAILURE TO PLEAD
A. Failure To Plead
Objections. (Sec.1)
Defenses
and
Compulsory
Cross-claim
General
Rule:
A
compulsory
counterclaim or cross-claim which is not
set up is deemed barred.
Exceptions:
1. If the counterclaim or cross-claim
matured or was acquired by a party
after serving his answer, he may, with
the permission of the court, be
allowed to present his counterclaim or
cross-claim by filling a supplemental
answer or pleading before judgment.
Refer to Rule 11, Sec.9.
2. When a pleader fails to set up a
counterclaim or a cross-claim through
oversight, inadvertence, or excusable
neglect, or when justice requires, by
leave of court, set up the counterclaim
or cross-claim by amendment before
judgment. Refer to Rule 11, Sec.10.
AFTER
ORDER OF
DEFAULT BUT
File a motion to
admit answer giving
a justifiable cause
for the delay in the
filing of the answer
File a motion under
oath to set aside the
default order upon
proper showing that
his failure to answer
was due to fraud,
accident, mistake or
63
64
BEFORE
JUDGMENT.
AFTER
JUDGMENT
BUT BEFORE
IT BECOMES
FINAL.
excusable
negligence and that
he has meritorious
defense.
File a motion for
new trial on the
ground of FAME, if
denied,
it
is
appealable
within
15 days from such
denial.
File a petition for
relief under Rule 38.
AFTER
JUDGMENT
BECOMES
FINAL.
AFTER
PERIOD TO
FILE A
PETITION
FOR RELIEF
HAS LAPSED.
Default
Are
Not
1.
2.
3.
4.
Annulment of marriage
Declaration of nullity of marriage
Legal separation
Special civil actions of certiorari,
prohibition and mandamus.
RULE 10
AMENDED AND SUPPLEMENTAL
PLEADINGS
Section 1. Amendments
Q: How pleadings are Amended?
A:
1. Adding or striking out an allegation
of any party
2. Adding or striking out the name of
any party
3. Correcting a mistake in the name
of a party
4. Correcting a mistake or inadequate
allegation in any other respect.
KINDS OF AMENDMENTS
A. Amendment as A Matter Of Right
(Sec.2)
1. Before an answer is filed
2. Before a reply is file or before the
period of filing a reply expires
Court
65
66
2. Responsive pleading has already
been served
Requisites: (MNO)
1. Party must file a motion in court
2. Adverse party must be notified
3. Adverse party must be given
opportunity to be heard.
Amendment By Leave of Court NOT
Allowed:
1. Cause of action, defense or theory
of the case is changed
2. Amendment is intended to confer
jurisdiction to the court
3. Amendment seeks to cure the
defect in the cause of action
4. Amendment is made with intent to
delay
Amendment may be made despite
substantial change in the cause or
defense if such will serve the higher
interest of justice or prevent delay and
promote a just, speedy and inexpsenive
disposition of the case (Valenzuela v CA).
Lack Of Cause Of Action
Not Amendable
1. The cause of
action has not yet
accrued when the
action
was
commenced.
2.
Cannot
be
cured
by
amendment since
cause of action
must exist at the
time
of
the
commencement of
the action.
Amendable
1. The cause of
action has already
accrued
but
was
imperfectly stated
2.
Curable
amendment.
by
typographical
errors
may
be
summarily corrected by:
1. The court motu proprio
2. On motion by the party
Provided no prejudice is caused
to the adverse party.
D. Amendments To Conform To Or
Authorize
Presentation
Of
Evidence. Refer to (Sec.5)
1. Amendment to conform to
evidence
May be granted upon motion of
any party at any time or even
before judgment when issues not
raised by the pleadings are tried
with express or implied consent of
the parties.
2. Amendment
to
authorize
presentation of evidence
When issues not raised by the
pleadings are tried with express or
implied consent of the parties,
amendment may be allowed by the
court if the presentation of the
merits of the action and ends of
substantial justice will be served.
E. Amendment v Supplemental
Pleading
Supplemental Pleadings. (Sec.6)
Those which aver facts occurring after the
filing of the original pleadings and which
is material to the mature claims and/or
defenses alleged therein.
Amended
Pleadings
Supplemental
Pleadings
AS TO ALLEGATIONS
Refer
to Refer
transaction,
transactions,
occurrences or occurrences
to
or
events
already events which have
existing at the happened since the
time of the filing date of the pleading
of the original sought
to
be
action.
supplemented.
AS TO RIGHT
Can be a matter
of right.
Always with leave of
Ex. when made court.
before
a
responsive
pleading
is
served.
AS TO FORM
A new copy of
the
entire
pleading
must No need to file but
be
filed must serve a copy to
incorporating
the court and the
the amendments adverse party.
and indicated by
appropriate
marks.
AS TO EFFECT
An
amended Original
pleading
pleading
stands.
supersedes the
original one.
F. Effect
of
Amended
Pleadings.
(Sec.8)
1. Amended pleading supersedes the
pleading which it amends.
2. Admissions in the superseded
pleading can still be received in
evidence against the pleader.
Claims or defenses alleged therein but not
incorporated or reiterated in the amended
pleading are deemed waived.
RULE 11
1.
ANSWER TO
COMPLAINT/TH
IRD PARTY
COMPLAINT
2.
ANSWER OF A
DEFENDANT
FOREIGN
PRIVATE
JURIDICAL
ENTITY
PPERIOD
General Rule: 15 DAYS
AFTER SERVICE OF
SUMMONS (Sec.1 , Rule
11)
RULE ON SUMMARY
PROCEDURE: 10 DAYS
AFTER SERVICE OF
SUMMONS (Section 5,
Rule 14).
1. RESIDENT AGENT :
15
DAYS
AFTER
SERVICE OF SUMMONS
2.
GOVERNMENT
OFFICIAL DESIGNATED
BY LAW TO RECEIVE
SUMMONS:
30 DAYS AFTER THE
RECEIPT OF SUMMONS
BY FOREIGN PRIVATE
JURIDICAL ENTITY
3.
OFFICERS
OF
AGENTS WITHIN THE
PHILIPPINES:
15 DAYS AFTER THE
SERVICE OF SUMMONS
4.
NON-RESIDENT
DEFENDANT ON WHOM
EXTRATERRITORIAL
SERVICE OF SUMMONS
IS MADE:
THE
PERIOD
TO
67
68
ANSWER SHOULD
AT LEAST 60 DAYS.
BE
PARTICULARS
DENIED
8.
REPLY
3.
AMENDED
COMPLAINT
1.
Amended
as
a
matter of right:
15
DAYS
AFTER
SERVICE OF AMENDED
COMPLAINT.
2. Amended not as a
matter of right:
10 DAYS FROM NOTICE
OF ORDER ADMITTING
AMENDED COMPLAINT.
3.Complaint amended
pursuant to court order
after denial of motion
to dismiss:
4.
COUNTERCLAIM
AND CROlSSCLAIM
5.
SUPPLEMENTAL
COMPLAINT
6.
COMPLAINT-ININTERVENTION
7.
MOTION TO
DISMISS /
MOTION FOR
BILL OF
10
DAYS
FROM
SERVICE
OF
THE
ANSWER (Sec.6, Rule
11)
RULE 12
BILL OF PARTICULARS
69
70
a bill of particulars be filed?
A: The motion for bill of particulars shall
be filed before responding to a pleading.
Hence, it must be filed within the period
granted by the Rules (Rule 11) for the
filing of a responsive pleading.
THE MOTION SHALL POINT OUT:
1. The defects complained of;
2. The paragraphs wherein they are
contained; and
3. The details desired.
The motion must comply with the
requirements for motions under Sec. 4, 5
and 6 of Rule 15. Otherwise the motion
will not suspend the period to answer
(Filipino Fabricator v. Magsino, G.R. No.
47574, Jan. 29, 1988).
Q: What is the remedy of a party if the
adverse
party's
pleading
contain
allegations which are not averred with
sufficient definiteness or particularly
so that he cannot properly prepare his
responsive pleading?
A:
He may file a motion for bill of
particulars. However, if the pleading is not
only indefinite or ambiguous but fails to
state a cause of action, the remedy of the
party is to file a motion to dismiss on the
ground that the pleading states no cause
of action.
RULE 13
FILING AND SERVICE OF
PLEADINGS
CONDITIONS PRECEDENT TO FILING A
COMPLAINT
1. Barangay Conciliation (Secs. 399422, Local Government Code)
2. Intra-Family Dispute
3. Investigation by a fiscal is a
prerequisite to annulment of
marriage when defendant defaults
(Art. 151, Family Code);
4. No suit shall be filed between
members of the same family
unless it should appear that
earnest efforts at compromise
have been made but that the same
have failed (Art. 2035, Civil Code).
Citizens Suit (Sec. 41, Clean Air
Act);
5. Doctrine
of
Exhaustion
of
Administrative Remedies (DEAR);
71
72
pleading or other paper to the clerk of
court.
Proof of Filing
General Rule: The filing of the
pleading shall be proved by its
existence in the record of the case.
(Rule 13, Sec.12.)
Exceptions:
1. Filed Personally the filing shall be
proved by the written or stamped
acknowledgment of its filing by the
clerk of court on a copy of the same.
2. Filed by Registered Mail the registry
receipt and the affidavit of the person
who did the mailing, containing a full
statement of:
a. The date and place of depositing
the mail in the post office in a
sealed envelope addressed to the
court
b. With stamped fully prepaid
c. With instructions to return the
mail to the sender after 10 days if
undelivered.
Service the act of providing a party
with a copy of the pleading or paper
concerned.
General Rule:
If the party appeared by counsel, the
service shall be through his counsel or
one of them unless otherwise ordered by
the court.
Exceptions:
1. Doubtful as to the counsel of such
party
2. When counsel cannot be found
3. Party is directed to do something
personally as when he is ordered to
show cause
2. Service By Mail.
(Rule 13, Sec.7)
b. Ordinary Mail
if no registry
service is available
in the locality of
either the sender
or the addressee.
MODES OF SERVICES
1. Personal Service
(Rule 13, Sec.6)
1. By delivering
personally a copy
to the party or his
counsel.
2. By leaving it in
his office with his
clerk or with a
person
having
charge thereof.
If no person is
found in his office,
or his office is
unknown, or he
has no office.
3. By leaving a
a.
Registered
Mail made by
depositing a copy
in the post office,
addressed to the
party
or
his
counsel
at
his
office, if known,
with instructions
to the postmaster
to return the mail
to the sender after
10
days
if
undelivered.
3.
Substituted
Service. (Rule 13,
Sec.8)
If service cannot
be made personal
or by mail, service
may be made by:
a. Delivering a
copy to the clerk
of court
b. With proof of
failure of both
personal service
and service by
73
74
mail.
a. Personal
Service
b. Registered
mail
c. Publication, if
the party is
summoned by
publication
and has failed
to appear in
the action.
MODES OF SERVICE
1. Personal Service
WHEN DEEMED
COMPLETE
complete upon actual
delivery
PROOF OF FILING
Proved by written or
stamped
acknowledgment of
its filing by the clerk
or court on a copy.
PROOF OF
SERVICE
1.Written
admission of the
party served
2.Official return
of the server
3.Affidavit of the
party
serving
containing a full
statement of the
date, place and
manner
of
service.
2. Service by
Ordinary Mail
complete
upon
expiration of 10 days
after mailing
Unless
otherwise
provided
Proved by written or
stamped
acknowledgment of
its filing by the clerk
or court on a copy.
Affidavit of the
person
mailing
stating the facts
showing
compliance with
Rule 13, Sec. 7.
75
76
3. Service by
Registered Mail
1. By registry receipt
;and
2. By affidavit of the
person who did the
mailing with a full
statement of:
Affidavit showing
compliance with
Rule 13, Sec. 7
and the registry
receipt issued by
the
mailing
office.
4. Substituted
Service
_____________
A: To serve as constructivenotice to those
not parties to the case that the real
property is the subject of a pending
litigation.
G. Section
PENDENS
14.
NOTICE
OF
LIS
The
Notice
Following:
Shall
Contain
The
Summons
It is a writ by which the defendant is
notified of the action brought against him.
CONSTRUCTIVE NOTICE
Only from the time of filing such notice
for record shall a purchaser, or
encumbrancer of the property affected
thereby, be deemed to have constructive
notice of the pendency of the action, and
only of its pendency against the parties
designated by their real names.
RULE 14
SUMMONS
77
78
2. Present Rule: states that it is applied
to any action where the defendant is
designated as unknown owner, or the
like, or whenever his whereabouts are
unknown and cannot be ascertained
by diligent inquiry.
It is now applied to any action in
personam, in rem or quasi in rem.
SERVICE
OF
PLEADING,
JUDGMENT
ORDERS
RULE 13
1.
Failure
of
personal service or
service
by
registered
mail
allows service to
the clerk of court
(Substituted
Service).
2. There is service
by registered mail.
SERVICE
SUMMONS
RULE 14
OF
1. In case of failure
of personal service,
summons
should
be:
a. served at the
residence of the
defendant
with
some person of
suitable age and
discretion residing
therein, or
b. by leaving copies
at the defendants
office or regular
place of business
(Substituted
Service).
2. No Service by
registered mail.
NOTES:
1. Simply sending a copy of the
amended
complaint
to
the
defendant by registered mail is not
equivalent to service of summons
(Ong v Custodio, GR No.L-14911,
1961).
ForA
Valid
Substituted
79
80
attempts by the sheriff to personally
serve
the
summons
within
a
reasonable period of one month which
eventually resulted in failure to prove
impossibility of prompt service.
in
BE
1.SERVICE UPON
ENTITY
W/O
JURIDICAL
PERSONALITY
(SEC.8)
2.SERVICE UPON
PRISONERS
(SEC.9)
TO
WHOM
SERVICE
SHOULD
BE
MADE
1. All defendants
by serving any of
them; or
2. The person in
charge
of
the
office or place of
business
Upon the officer
having
the
management
of
such
jail
or
81
82
3.SERVICE UPON
MINORS
AND
INCOMPETENTS
(SEC.10)
institution (special
sheriff or warden)
In
case
of
minors:
upon
such
minor
personally and on
his legal guardian,
if he has any or
guardian ad litem,
if applied for by
the plaintiff. The
minors father or
mother may also
be served.
In
case
of
incompetents:
upon
such
incompetent
personally and his
legal
guardian,
but
not
his
parents,
unless
they are also his
legal guardians.
4.SERVICE UPON
DOMESTIC
PRIVATE
JURIDICAL
ENTITY (SEC.11)
In either case: if
the
minor
or
incompetent has
no legal guardian,
plaintiff
must
obtain
the
appointment
of
guardian ad litem.
1. President;
2.
Managing
partner;
3.
General
manager;
4.
Corporate
secretary;
5. Treasurer; or
6.
In-house
counsel.
NOTE:
The
5.
SERVICE
UPON FOREIGN
PRIVATE
JURIDICAL
ENTITY (SEC.12)
6.
SERVICE
UPON
PUBLIC
CORPORATIONS.
(SEC.13)
7.
SERVICE
UPON
DEFENDANT
WHOSE
IDENTITY
OR
WHEREABOUTS
ARE
UNKNOWN
(SEC.14)
8.
EXTRATERRITO
RIAL
SERVICE
(SEC.15)
enumeration
is
exclusive.
1. Resident agent
(appointed by the
entity to receive
legal processes);
2. In the absence
thereof, on the
government
official designated
by law; or
3. Any of its
officers or agents
within
the
Philippines.
If the defendant
is the Republic of
the Philippines:
Solicitor General
If defendant is a
province, city or
municipality or
other
public
corporations:
Executive head or
such
other
officer/s
designated under
the law or directed
by the court.
Service may, with
leave of court, be
effected upon the
defendant
by
publication in a
newspaper
of
general
circulation.
1. With leave of
court, by personal
service
outside
the Philippines;
2. With leave of
court,
by
publication in a
9.
SERVICE
UPON
RESIDENTS
TEMPORARILY
OUT
OF
THE
PHILIPPINES
(SEC. 16)
newspaper
of
general
circulation.
In
such case, a copy
of the summons
and order of the
court shall be sent
by registered mail
to the last known
address of the
defendant; or
3.
Any
other
manner the court
may
deem
sufficient.
1.
By
extraterritorial
service; or
2. By substituted
service (Montalban
v. Maximo, G.R.
No.
L-22997,
March 15, 1968)
TO
83
84
1. Filing a motion for extension to the file
a responsive pleading
2. The
filing
of
affirmative relief.
motions
seeking
RULE 15
OF
VOLUNTARY
Exceptions:
1. Those made in open court
2. Those made in the course of hearing
or trial
REQUISITES FOR A VALID MOTION:
1. Must be in writing .(Section 2)
2. Shall state the relief sought to be
obtained and the grounds upon which
it is based
3. Shall be set for hearing by the
applicant and shall contain a notice of
hearing
4. The date of the hearing must not be
later than 10 days after the filing of
the motion
5. The motion and notice of hearing
must be served at least 3 days before
the date of hearing
6. There must be proof of service
Section 3. Contents
1. The relief sought to be obtained
2. The grounds upon which it is based
3. If required by the rules or necessary
to prove facts alleged therein, shall
be accompanied by supporting
affidavits and other papers.
85
86
RULE 16
MOTION TO DISMISS
Section 1. Grounds.
1. Lack of jurisdiction over the
person of the defendant
2. Lack of jurisdiction over the
subject matter of the claim
3. Venue is improperly laid
4. Plaintiff has no legal capacity to
sue.
5. There is another action pending
between the same parties for the
same cause (Litis Pendentia)
6. Cause of action is barred by a
prior judgment or by statute of
limitations
(Res
judicata/
Prescription)
7. Lack of Cause of action.
Section
(Failure
to
Exception:
1.Lack of jurisdiction over the subject
matter
2.The pleading asserting the claim states
no cause of action
1. Grant
2. Deny
3. Order of Amendment
1.Grant remedy of the plaintiff is to file
a motion for reconsideration, to appeal
from the order of dismissal or re-file the
complaint
2.Deny NOT appealable; but defendant
may file a motion for reconsideration or
petition for certiorari, or prohibition if the
court acts without or in excess of
jurisdiction or with grave abuse of
discretion amounting to lack or excess of
jurisdiction.
If motion to dismiss isDenied: The
movant shall file his answer within the
balance of the period under Rule 11, but
such period shall not be less than 5 days
in any event.
REMEDIES OF THE DEFENDANT WHEN
THE MOTION IS DENIED
The defendant may:
a. File a motion for reconsideration; or
b. File a petition for certiorari; or
c. Prohibition
Lack Of Legal
Personality to
Sue
Plaintiff is not a
real
party
in
interest.
87
88
Insane, who are
incapable
to
exercise in full
their civil rights.
2. Plaintiff does
not have the
character
or
representation
which he claims.
LITIS PENDENTIA(PAR. E)
That there is another action pending
between the same parties for the same
cause.
REQUISITES OF LITIS PENDENTIA:
1. Identity of parties;
2. Substantial identity in the cause of
action and relief sought; and
3. Identity of both cases such that any
judgment that will be rendered in one
case (regardless which party succeeds),
will amount to res judicata in the other
case.
NOTE: The rule will apply once the
complaint is filed and there is a pending
action, lack of knowledge of filing if is of
no moment.
In case of litis pendentia, which one
should be dismissed?
General rule: The later case should be
dismissed based on priority in time rule
and comity with a co-equal court.
Exceptions:
1. The more appropriate action rule
the query is which the more appropriate
action is or which court would be in a
better position to serve the interests of
justice.
1.
BAR BY A PRIOR
JUDGMENT
2.
CONCLUSIVENESS
OF JUDGMENT
Bar By Prior
a
former
judgment
bars
the prosecution
of
a
second
action upon the
same
claim,
demand or cause
of action
issues
actually
and
directly
resolved
in
a
former
suit
cannot again be
raised
in
any
future
case
between the same
parties involving
a different cause
of action (also
known
as
preclusion
of
issues
or
collateral
estoppel) (Tan
v. CA, G.R. No.
14240,
August
20, 2001).
Conclusiveness
Judgment
Prior
case
is
conclusive not only
as to the matters
directly adjudge but
also to any other
matter that could
have been raised in
relation thereto.
There is identity in
the cause of action
in
both
cases
involved
of Judgment
Prior
case
is
conclusive only in
respect
of
the
matter
actually
raised
and
adjudged in the
prior case.
(Claim Preclusion) it
precludes
the
prosecution of a
second
cause
of
action
upon
the
same claim, demand
or cause of action.
(Issue Preclusion)
it precludes the
relitigation of a
particular fact or
issue in another
action between the
same parties on a
different cause of
action.
It
bars
relitiagtion of
case.
the
the
A ground for a
motion to dismiss.
The
cause
of
action in the first
case is different
from that in the
second case
89
90
Failure To State
Cause Of Action
1. Relates to the
failure
of
the
allegations of the
pleading to state a
cause of action.
2. Dismissal of
the complaint on
the
ground
of
failure to state a
cause of action
would not bar the
re-filing of the
complaint.
Lack Of Cause Of
Action
1. Relates to a
failure of proof or
the
plaintiffs
failure to prove by
evidence
his
allegations relating
to his cause of
action.
BAR BY DISMISSAL
Q: If a motion to dismiss is granted,
may the plaintiff still refile the
complaint?
A: Yes, except if the ground for the
dismissal is prescription, unenforceability
of
the
claim,
res
judicata,
and
extinguishment of the claim (Keyword:
PURE. S5 R16. Plaintiff also has to pay
anew the docket and filing fees (PrimerReviewer on REMEDIAL LAW, Manuel R.
Riguera).
2. A judgment for
defendant on the
ground of lack of
cause of action
would amount to
res judicata.
of
MOTION TO
DISMISS
RULE 16
1. Filed before the
service and filing of
the answer
DEMURRER TO
EVIDENCE
RULE 33
1. Made after the
plaintiff rests his
case
2. Anchored on many
grounds
2. Anchored on one
ground plaintiff
has no right to
relief
3. If a motion to
dismiss is denied,
the defendant may
file his responsive
pleading
3. The defendant
may present his
evidence
RULE 17
DISMISSAL OF ACTIONS
General Rule:
A complaint shall not be dismissed at the
plaintiffs instance save upon approval of
the court and on such terms and
conditions as the court deems proper.
REQUISITES:
1. Filing of Notice of Dismissal
2. It must be made at any time before
the service of an answer or a motion
for summary judgment
Upon such notice being filed, the court
shall issue an order confirming the
dismissal. The withdrawal does not take
effect until confirmed by the court.
The two-dismissal rule requires that both
dismissals are granted by a court of
competent jurisdiction.
Effect of Dismissal
General Rule:
prejudice.
Dismissal
is
without
Exceptions:
1. When in the notice of dismissal itself,
the plaintiff himself stated it is
dismissal with prejudice
2. Two-Dismissal Rule - Notice serves as
adjudication upon the merits when
filed by the
plaintiff who has once dismissed in a
competent court an
action based
on or including the same claim
3. Even where the notice of dismissal
does not provide that it is with
prejudice but it is premised on the
fact of payment by the defendant of
the claim involved (Regalado).
91
92
Where the plaintiff moves for the
dismissal of his complaint to which a
counterclaim has been interposed, the
dismissal shall be limited to the
complaint.
Dismissal shall be without prejudice to
the right of the defendant to:
1. Prosecute his counterclaim in a
separate action
2. Have the same resolved in the same
action
Should the defendant opt for first
alternative, the court should render
the corresponding order granting and
reserving his right to prosecute his
claim in a separate complaint.
Should he choose to have his
counterclaim disposed of in the same
action wherein the complaint had
been dismissed, he must manifest
such preference to the trial court
within 15 days from notice to him of
plaintiffs motion to dismiss.
These alternative remedies of the
defendant are available to him
regardless if whether his counterclaim
is
compulsory
or
permissive
(Regalado).
EFFECT OF DISMISSAL TO
COMPULSORY COUNTERCLAIM
THE
RULE 18
PRE-TRIAL
CONCEPT OF PRE-TRIAL
PRE-TRIAL is a mandatory procedural
device by which the court is called upon,
after the filing of the last pleading, to
compel the parties and their lawyers to
appear before it for the purposes
enumerated under Rule 18, Sec.2.
Q: Petitioners were charged of the crime
of estafa by the respondents. One of the
respondents filed a motion to inhibit
against judge A. The case was re-raffled to
judge B. Judge B nullified and set aside
previous proceedings and set the case a
new for pre-trial conference. Can Judge B
nullify the proceedings previously
conducted and ordered a new pre-trial
of the case?
A:No. It cannot simply set aside the
proceedings that have been previously
conducted.
Pre-trial is a procedural
device intended to clarify and limit the
basic issues between the parties and to
take the trial of cases out of the realm of
surprise and maneuvering. Its chief
objective is to simplify, abbreviate and
expedite or dispense with the trial. Absent
any palpable explanation as to why and
how said proceedings were conducted in
93
94
trialandproceedwiththetrialofthecase(Filoil
MarketingCorp.v.DyPac&Co.,G.R.No.2963
6,Sept.30,1982).
PLAINTIFFS
DEFENDANTS
FAILURE TO
FAILURE TO
APPEAR
APPEAR
Dismissal of the
The plaintiff will be
action with
allowed to present
prejudice, unless
evidence ex parte
otherwise
and for the court to
ordered by the
render judgment on
court
the basis thereof
REMEDY
File a motion for reconsideration stating
the reason for failure to appear, the
order be considered and judgment be
set aside.
e. Limitationofnumberofwitnesses;
f. Theadvisability
ofpreliminaryreferenceof
issuestoacommissioner;
g. Propriety of rendering judgment on
the pleadings, summaryjudgments, or
of
dismissingtheactionshouldavalidgrou
ndforitsdismissalexist;
h. The
advisability
ornecessityofsuspendingtheproceedin
gs;and
i. Other matter that may aid the prompt
disposition of the action.
Section 3. Notice of Pre-trial.
Towhomserved:
1. Counsel;or
2.
Party,ifhehasnocounsel.
Itshallbetheduty
ofthecounselservedwiththenoticeofpretrialtonotifyhisclientofthedateof
thereof;hence,noticetothecounselwillsuffic
e.
Non-appearance
is
excused.
1. If a valid cause is shown
2. If a representative shall appear on his
behalf fully authorized in writing to:
a. Enter into amicable settlement
b. To submit to alternative modes of
dispute resolution
c. Enter
into
stipulation
or
admission
of
facts
and
of
documents
Requisites for Valid Authorization:
1. In writing
2. Special power of attorney, there is no
express requirement that it be
notarized but courts require that SPA
must be notarized
3. In case of corporation, there must be
a
board
resolution
specifically
authorizing the same.
Note: The representative need not only
show a written authority but must also
show a written authority but must also
show that there is a valid cause for the
non-appearance of the party whom he
seeks to represent.
Section 5. Effect of Failure to Appear.
The court may, upon motion, dismiss the
complaint and allow the defendant to
present evidence and his counterclaim.
Section 6. Pre-trial Brief: Effect of
Failure to File.
When to file:
CRIMINAL CASE
1. The presence of
the accused is NOT
indispensable,
Unless he is duly
represented by his
counsel
with
authority to enter
into a compromise
agreement, failure
of which the case
would proceed as
if the defendant
has been declared
in default.
2. The presence of
the
plaintiff is
required at the
pre-trial,
Unless required by
the court, he is just
required to sign the
written
agreement
arrived at the pretrial if he is in
conformity therewith.
Unless excused or
represented
by
person in writing
to perform the
acts specified in
Rule 18, Sec.4.
Failure of which,
may
result
to
dismissal with or
without prejudice.
95
96
the conformity of the
prosecutor alone.
3. A pre-trial brief
is Mandatory.
3. Pre-trial brief is
NOT required
But attendance only
in
a
pre-trial
conference
to
consider the matters
stated in Rule 18,
Sec.2.
by
RULE 19
INTERVENTION
97
98
Intervention
A proceeding in a suit or action by which
a third person is permitted by the court to
become a party by intervening in the
pending case after meeting the conditions
and compliance with the requirement set
by the rules.
Nature: Intervention is ancillary and
supplemental to an existing action.
Hence, it cannot exist independent of the
principal action.
General Rule: The dismissal of the
principal actions will result in the
dismissal
of
the
complaint-inintervention.
Exception: Dismissal as a result of the
compromise agreement.
General
Rule:
discretionary.
Intervention
is
an
INTERPLEADER
Original action.
an existing action.
Proper in any of
the
situations
mentioned
in
Section 1 of this
Rule
Defendants
are
already
original
parties
to
the
pending suit.
Plaintiff
either:
must
1. Have no interest
in
the
subject
matter
of
the
action; or
2. Have an interest
therein, in whole
or in part, which
is not disputed by
the other parties
to the action.
Defendants
are
being
sued
precisely
to
implead them.
if
interventor asserts a claim against
either or all of the original parties.
2. Answer-in-intervention if intervenor
unites with the defendant in resisting
the claim against the plaintiff.
Section 4. Remedy for the Denial Of
Motion To Intervene
Answer to Complaint-in-intervention.
Must be filed within 15 days from notice
of the order admitting the same, unless
otherwise ordered by the court.
Remedies if motion for intervention is
denied:
1. Appeal
99
100
2. File a petition for mandamus if there
is grave abuse of discretion
RULE 20
CALENDAR OF CASES
General Rule
The assignment of cases to the different
branches shall be done exclusively by
raffle. (Sec. 20)
Exception
Cases falling within the jurisdiction of the
special commercial courts or family court
would be assigned to these courts.
Exception to the exception
Two or more brnches have been
designated as special courts, in which
cases it shall be raffled among them.
RULE 21
SUBPOENA
Section 1. SUBPOENA AND SUBPOENA
DUCES TECUM
Subpoena is a process directed to a
person requiring him to either:
1. Attend and to testify at the hearing or
the trial of an action or at any
investigation
conducted
by
a
competent authority
2. Give his deposition
3. Bring with him any nooks, documents
or other things under his control
TWO KINDS OF SUBPOENA
1. SUBPOENA AD TESTIFICANDUM- A
process by which the court, at the
instance of a party, commands him to
bring with him any books, documents or
control
and
101
102
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 officere
where his attendance is required. (Sec. 8)
This is also known as bench warrant.
The court also has the power to punish
for indirect contempt any person who fails
to obey without adequate cause a
subpoena served upon him.
Section 9. CONTEMPT
Consequences for failure to appear:
1. Issue a warrant for the arrest of the
witnesses and bring him in the court
or officer where his attendance is
required
2. Make him pay for the cost of such
warrant and seizure, if the court
should determine that his failure to
answer the subpoena was willful and
without just excuse
3. A contempt of court if there is no
adequate cause to obey a subpoena
4. If the subpoena was not issued by a
court, the disobedience shall be
punished in accordance with the
applicable law or rule.
Section 10.EXCEPTIONS
Compulsion and Contempt do NOT
apply
1. The witness resides more than 100
km from his residence to the place
where he is to testify by the ordinary
course of travel
2. To a detention prisoner if no
permission of the court in which his
case is pending was obtained.
Subpoena
Summons
1. Directed to a
witness
1. Directed to a
defendant in a civil
case
2.
Witness
is
directed to appear
and testify and/or
to
bring
documents
2. Defendant is
informed that a
complaint is filed
against him and he
must
file
a
responsive pleading
3. Witness will be
declared
in
contempt or his
attendance can be
compelled by the
issuance
of
warrant of arrest
4. Applicable to
both criminal and
civil cases
5. There is 100 km
limitation
3. Judgment in
default
will
be
rendered
against
the defendant who
fails to comply
4. Applicable only
to civil cases
5.
No
distance
limitation
RULE 22
COMPUTATION OF TIME
Section 1: How to compute time.
The day of the act or event from which the
designated period of time begins to run is
to be excluded and the date of
performance included.
SATURDAY, SUNDAY OR
LEGAL HOLIDAY
If the last day of the period falls on a
Saturday, Sunday or a Legal Holiday in
the place where the court sits, the time
shall not run until the next working day.
EXAMPLE: If the defendant is served with
summons on June 1, he has until June
16 (June 1 + 15= June 16), within
103
104
Bill of Particular
To
compel
to
clarify
vague
statements
of
ultimate facts.
Modes of Discovery
To
compel
other
party to reveal his
evidence
and
evidentiary facts.
RULE 23
DEPOSITIONS PENDING ACTION
Deposition
1. A
writtentestimonyofawitnessgiveninthe
courseofajudicialproceeding
inadvanceofthetrialorhearinguponoral
examinationorinresponsetowritteninte
rrogatoriesand
opportunityisgivenfor
examination
wherean
cross(Republicv
Sandiganbayan,G.R.No.112710,May3
0,2001).
2. Amethodofpretrialdiscoverywhichconsistsintakingth
etestimonyofapersonunderoathuponor
alexamination(oraldeposition)oruponw
ritteninterrogatories.Thetermdepositio
nalsoreferstothetestimonyorstatement
sotaken(Riguera,2013).
CLASSIFICATION OF DEPOSITIONS
1. Depositions on oral examination and
depositions
upon
written
interrogatories
2. Depositions de benne esse (Rule 23)
Q:Are
the
modes
of
discovery
applicable in criminal cases?
A:YES. The use of discovery procedures is
directed to the sound discretion of the
trial judge. The deposition taking cannot
be based nor can it be denied on flimsy
reasons. Discretion has to be exercised in
a reasonable manner and in consonance
with the spirit of the law (People v. Webb,
G.R. No. 132577, August 17, 1999).
Purpose of the Discovery:
It is the policy of the law that the parties
before trial should discover or inform
themselves of all facts relevant to the
action, especially those within the
knowledge of the adverse party or
Sec. 1. Depositions Pending Action.
1. With leave of Court
a. After
jurisdiction
has
been
obtained over any defendant or
over property subject of the action
b. Deposition of a person confined in
prison
2. Without leave of court
After an answer has been served.
General Rule: Plaintiff may not be
permitted to take depositions before
answer is served.
Exception:Under special circumstances
where there is necessity and good reason
for presenting a strong case and taking of
the testimony immediately.
Reason: He must wait for the joinder of
issues because only this time that it can
be determined what is relevant.
Example.Wherethewitnessisagedorinfirm,
ananswerexabudanticautela(outofabunda
nt
cautionortobeonthesafe
105
106
side)doesnotmake their answer less ofan
answerandwhensuch
answerisfiled,depositionmaybemadewitho
utleaveofcourt(Rosetev.LimG.RNo.136051,
June8,2006).
RULE 24
SCOPE OF EXAMINATION
Deponent may be examined regarding any
matter that is:
1. Not privileged
2. Relevant to the subject of the pending
action
3. Not restricted by court order for the
protection of parties and deponents
4. Not meant to annoy, embarrass or
oppress the deponent or party
DEPOSITIONS
1.
Written
testimony
of
witness
in
course
of
judicial
proceedings
in
advance of trial
and hearing.
2. Opportunity
for
crossexamination.
3.
Can
be
competent
testimonial
evidence.
AFFIDAVITS
1. Mere sworn
written
statements.
2.
No
crossexamination.
3. Little probative
value (hearsay).
Sec.3.
Examination
and
CrossExamination.
Examination and cross-examination or
deponents may proceed as permitted at
the trial.
Sec.5. Effectof Substitution of Parties.
Substitution of parties does not affect the
right to use depositions previously taken.
or
Letters
When issued
1. Only when necessary and convenient
2. On application and notice
3. On such terms and with such
direction as are just and appropriate.
Commission
1. Issued to a
non-judicial
foreign
officer
who
will
directly
take
the testimony.
Letters Rogatory
1.
Issued
to
the
appropriate
judicial
officer of the foreign
court who will direct
another person in that
country to take down
testimony.
2.
Rules
of
procedure
of
the requesting
court
shall
apply.
3. Resorted to if
permission
of
the
foreign
country
is
given.
4.
Leave
of
court is not
necessary.
2. Rules of procedure of
the
foreign
court
requested to act shall
apply.
3. Resorted to if the
execution
of
the
commission is refused in
the foreign country.
4. Leave of
necessary.
court
is
107
108
2. Employee of any party
3. Counsel of any party
4. Relative within the same degree of
partys counsel
5. Employee of partys counsel
6. Anyone financially interested in the
action.
Sec. 14. .Stipulations regarding taking
of Depositions.
The parties may stipulate in writing that
depositions shall be taken before any
person authorized to administer oaths in
accordance with the Rules.
Section
15.Deposition
Examination.
upon
Oral
Requisites:
1. Give notice to every other party to the
action
2. Notice shall state the time and place
for the taking of deposition and the
names and address of each person to
be examined, if known or if not
known, then a general description
sufficient to identify him.
Section 16. Order for the protection of
parties and deponents.
After notice is served for taking a
deposition by oral examination, upon
motion seasonably made by any party or
by the person to be examined for good
cause shown, the court in which the
action is pending may make an order
that:
1. The deposition shall not be taken
2. It may be taken only at some
designated place other than that
stated in the notice
3. It may be taken only on written
interrogatories
4. Certain matters shall not be inquired
into
Deposition Upon
Written Interrogatories
Questions are prepared
already in advance and
there is no personal
confrontation with the
witness.
And
EFFECT
As to notice
As to
disqualification
of officer
As to
competency or
relevancy of
evidence
As to oral
Unless
109
110
examination
and other
particular
As to form of
written
interrogatories
As to matter of
preparation
reasonable objection
thereto is made at the
taking
of
the
deposition.
Waived. Unless served
in writing upon the
party
propounding
them within the time
allowed for serving
succeeding cross or
other interrogatories
and within 3 days
after service of the last
interrogatories
authorized.
Waived.
Unless
a
motion to suppress
the deposition or some
part thereof is made
with
reasonable
promptness after such
defect is or with due
diligence might have
been ascertained.
RULE 24
DEPOSITIONS BEFORE ACTION
OR PENDING APPEAL
Depositions
in
perpetuam
rei
memoriam
Taken to perpetuate evidence for purpose
of an anticipated action or further
proceedings in a case or appeal.
Sec. 1.Depositions Before Action.
May be filed by any person:
1. Desiring to perpetuate his own
testimony
2. That of another person regarding any
matter that may be cognizable in any
court of the Philippines may file a
RULE 25
INTERROGATORIES TO PARTIES
Purpose: To elicit material and relevant
facts from any adverse party.
Deponent
Procedure
Deposition
upon Written
Interrogatori
es to Parties
Rule 23
Party
or
ordinary
witness
With
intervention
of the officer
authorized by
the court to
take
deportation
Interrogatori
es to Parties
Rule 25
Party only
No
intervention.
The
written
interrogatories
are directed to
the
party
himself.
111
112
1. To give testimony in open court
2. To give a deposition pending appeal.
answer.
Consequences 0f Refusal to Answer.
Rule 29, Sec. 5.
The court on motion and notice may:
1. Strike out all or any party of any
pleading of disobedient party
2. Dismiss the action or proceeding or
any party thereof
3. Enter a judgment by default against
disobedient party
4. Order
payment
of
reasonable
expenses incurred by the other
including attorneys fees.
Answer to Interrogatories. Rule 25, Sec.
2.
1. In writing
2. Signed and sworn to by the person
making them
3. Party served shall file and serve a
copy of the answers on the party
submitting the interrogatories within
15 days from service,
Unless the court extends or shortens the
time on motion and for good cause.
Thus
a
party
not
served
with
interrogatories may no be called as an
adverse party witness by the other side
(Riguera, Primer-Reviewer on Remedial
Law, Civil Procedure, 2013).
Exception:Allowed by the court:
1. For good cause shown
2. To prevent a failure of justice
A.M. No. 03-1-09-SC
GUIDELINES TO BE OBSERVED BY
TRIAL COURT JUDGES AND CLERKS
OF COURT IN THE CONDUCT OF
PRE-TRIAL AND USE OF
DEPOSITION-DICVOERY MEASURES
Existingrulesconsiderthismodeof
discoveryimportantbecausewithinoneday
fromreceiptofthecomplaint,therulemanda
tesnotonlythepreparationofthesummons
butalsotheissuanceofanorderrequiringth
epartiestoavailofinterrogatoriestoparties
underRule25andrequestforadmissionbya
dversepartyunderRule26.
To
Serve
Theparties,however,mayuseattheirdiscreti
on, depositions under Rule 23 or other
measures
underRule27and29within
5 daysfromthefilingoftheanswer
(Riano2011,citingA.M.No.03-1-09SC,IA,1.1,1.2)
RULE 26
ADMISSION OF ADVERSE PARTY
REQUEST FOR ADMISSION
Sec. 1. When to file and serve.
At any time after issues have been joined.
Admission
By
Exceptions:
1. The requested party files and serves
upon the party requesting the
admission a sworn statement either:
a. Specifically denying
b. Setting forth in detail the reasons
why he cannot truthfully either
admit or deny those matters
113
114
they are deemed admitted, and one
cannot be permitted at time of trial to
introduce evidence that would controvert
the deemed admission.
PRODUCTION OR INSPECTION
OF DOCUMENTS OR THINGS.
Effect of Admission
Actionable
Document
Must be attached
to the complaint or
copied therein.
Its
genuineness
and de execution is
deemed
unless
specifically denied
under oath by the
opposing
party.
(Rule 8)
RULE 27
Requisites:
1. Motion by leave of court must be filed
by a party showing good cause
2. Notice of the motion must be given to
all other parties
3. Motion must sufficiently describe the
document or thing sought to be
produced or inspected
4. The document or the thing must
constitute
or
contain
evidence
material to the pending action
5. The document or the thing must not
be privileged
SUBPOENA
DUCES TECUM
RULE 21
1.
Means
of
compelling
production
of
evidence
which
must be brought to
court
2.
Limited
to
parties in the
action
2. May be directed
to
any
person,
whether a part or
not
3. Issued only
upon motion with
notice to adverse
party
3. May be issued
upon an ex-parte
application
Objectsortangiblethings
The court can compel the plaintiff,under
thisRule,to
consentto
theexhumation
ofthebodyof
thedeceasedinacaseinvolvingtheaccident
aldeathclauseofaninsurancepolicyconsid
eringthatSec.1ofthisRulealsospeaksofobj
ectsortangiblethings"whichisbroadenough
toincludeacadaver.
Ontheotherhand,Rule23cannotbeinvoked
forthesamepurposeasitcontemplatesandis
limited
tophysical
andmental
examinationofalivingperson.Therewouldbe
,however,noproblemiftheexhumationorpos
tmortemexaminationisinvolvedinandneces
saryforpurposesofacriminalaction(Regala
do).
RULE 28
PHYSICAL AND MENTAL
EXAMINATION OF PERSONS.
Physical and Mental Examination of
Persons
This mode of discovery is available in an
action which the mental or physical
condition of a party is in controversy.
Examples.
1. Annulment of contract on the ground
of insanity
2. Petition for guardianship of a person
alleged to be insane
3. Action for damages where the issues
is
the
extent
of
injuries
of
plaintiff(Riano).
Section 1. Order of Examination.
In an action in which the mental or
physical condition of a party is in
controversy, the court in which the action
is pending may in its discretion, order
him to submit to a physical or mental
examination by a physician.
Since the results of the examination are
intended to be made public, the same are
not covered by the physician-patient
privilege. Furthermore such examination
is not necessary to treat or cure the
patient but to assess the extent of injury
or to evaluate his physical or mental
condition (Rule 130, Sec. 24[c]).
Section 2.Requisites:
1. Physical or mental condition must be
the subject of controversy
115
116
2. Motion showing good cause must be
filed
3. Notice of motion must be given to the
party to be examined and to all other
parties
Section 3.Report of Findings.
A copy of the detailed written report of the
examining physician may be delivered
tothe party examined, if the latter should
request.
Section 4.Waiver of Privilege.
A party examined waives any privilege he
may have in that action or any other
involving the same controversy:
a. By requesting and obtaining a report
of the examination so ordered; or
b. By taking the deposition of the
examiner.
CONSEQUENCES OF REQUESTING AND
OBTAINING
A
REPORT
OF
EXAMINATION
Where the party examined requests and
obtains a report on the results of the
examination, the consequences are that:
1. He has to furnish the other party a
copy of the report of any previous or
subsequent examination of the same
physical and mental examination; and
2. He waives any privilege he may have
in that action or any other involving
the same controversy regarding the
testimony of any other person who
has so examined him or may
thereafter examine him (Regalado).
PriorLeaveofCourtRequired
Rules
27and28alwaysrequireprior
leaveof
court,unlikeothermodesofdiscoverywhichc
ouldbeavailedofwithoutleaveofcourtaslong
asthedefendanthasfiledorservedaresponsi
vepleading.
RULE 29
CONSEQUENCES OF REFUSAL
TO COMPLY WITH MODES OF
DISCOVERY
Sanctions:
Section 1. Refusal to answer any
question.
1. Examination may be completed on
other matters, or adjourned, as the
proponent of the question may prefer;
2. Upon application by the proponent,
the court may compel the deponent to
answer the questions;
3. If the refusal was without substantial
justification, court may require the
refusing party or deponent or the
counsel advising the refusal or both of
them, to pay the proponent the
amount of the reasonable expenses
incurred in obtaining the order,
including attorneys fees.
Note: The remedies above are available
under Rule 23 and Rule 25.
Sec. 2. Refusal to be sworn.
If a party or other witness refuses to be
sworn or refuses to answer question after
being directed to do so by the court of the
place in which deposition is being taken,
such refusal may considered a contempt
of that court.
Section
3.
Refusal
to
answer
designated or particular questions or
refusal to produce documents or things
or to submit to physical examination
1. Order that the matters regarding
which questions were asked shall be
taken to be established for purposes
of the action in accordance with the
claim of the party obtaining the order;
2. Refuse to allow the disobedient party
to support or oppose designated
claims or defenses;
Notes:
1. TheRepublicofthePhilippinescannotbe
requiredtopayexpensesandattorneysf
eesunderthisRule.
2. Thematterofhowand
whentheabovesanctionsshouldbeappl
iedisonethatprimarilyrestsonthesoun
ddiscretionofthecourtwherethecaseis
pending
RULE 30
TRIAL
Itisanexaminationbeforeacompetentcourto
rtribunalofthefactsorlawputinissueinacas
eforthepurposeofdeterminingsuchissue.
Inalimitedsense,trialreferstothestageofaca
se when the parties present their
evidence
before
thecourtuptothepointwhenthecaseisdeem
edsubmittedfordecision (Riguera2015).
General Rule: Decision should not be
madewithouttrial.
Exceptions:Whenistherejudgmentwithout
trial:
1. Judgmentonthepleading(Rule34);
2. Summaryjudgment(Rule35);
3. Judgmentoncompromise;
4. Judgmentbyconfession;
5. Dismissalwithprejudice(Rule17);
6. JudgmentunderRuleon
SummaryProcedure;
7. Stipulationoffacts.(Sec.6Rule30)
Sec.1. Notice of Trial.
Theclerkshallnotifythepartiesofthedateof
trial,uponentryofthecaseinthetrialcalenda
r
in
such
manner
asshallensuretheirreceiptofthatnoticeatlea
st5daysbefore suchdate.
117
118
Sec.2.Adjournment
Postponements.
and
is
Note: Ifthereareseveraldefendants,orthird
partydefendantsandsoforth,whohavesepar
atedefenses,thecourtshalldeterminetherel
ativeorderofpresentationoftheirevidence.
Trial
in
reverse
defendantpresentsevidenceaheadoftheplai
ntiff.
Whenproper
If the defendant instead of filing a motion
to dismiss files an answer, invoking the
ground as an affirmative defense.
DELEGATION OF RECEPTION OF
EVIDENCE
Section 9. Judge to receive evidence;
Delegation to clerk of court.
General rule: The judge shall personally
receive the evidence adduced by the
parties and resolve any objections to any
question or to the admission of exhibits.
Exception:The
reception
may
delegated to the clerk of court: (DEW)
be
RULE 31
CONSOLIDATION OR
SEVERANCE
Consolidation or Severance of Hearing
or Trial
Consolidation
of
Action
is
interchangeable with joint trial although
the former includes the situation wherein
some of the consolidated cases are
decided without trial but according to the
result of the one selected (Riguera, 2013).
119
120
Section 1. Consolidation.
The curt may order a joint hearing or trial
of any or all matters in issue when
actions involving a common question of
law or fact are pending before the court.
Purpose of Consolidation
1. To avoid multiplicity of suits
2. Guard against oppression or abuse
3. Prevent delay
4. Clear congested dockets
5. Simplify the works of the trial court
and save unnecessary costs and
expense
Ways of Consolidating Cases:
1. By Recasting the cases already
instituted conducting only one
hearing and rendering only one
decision.
2. By Consolidating the existing cases
holding only one hearing and
rendering only one decision.
3. By Hearing only the principal case
(Test-Case Method) suspending the
hearing on the others until judgment
has been rendered in the principal
case.
Consolidation of cases on appeal and
assigned to different divisions of the
SC and the CA is also authorized.
Generally, the case which was appealed
later and bearing the higher docket
number is consolidated with the case
having the lower docket number.
Many authorities held that consolidation
may occur even if cases are pending
before different courts or tribunal. The
necessary thing is that actions involve the
common questions of law or fact
(Superlines Transportation v. Victor).
Section .2. Separate Trials.
121
122
UNLESS, they were made before the
commissioner.
The report shall be set for a hearing. The
court shall order adopting, modifying, or
rejecting the report in whole or in part, or
recommitting it with instructions, or
require parties to submit further evidence
before the commissioner or court.
STIPULATIONS AS TO FINDINGS
When the parties stipulate that the
commissioners findings of fact shall be
final, only questions of law shall
thereafter be considered.
RULE 32
TRIAL BY COMMISSIONER
When case may be referred by the
order of the court to a commissioner
a. By written consent of both parties
b. By motion of either party or on the
courts initiative in the following
cases:
1. When the trial of an issue
if
fact
requires
the
examination of a long
account on wither side;
2. When the taking of an
account is necessary for
the information of the
court before judgment, or
for carrying a judgment or
order into effect; or
3. When a question of fact,
other than upon pleadings,
arise upon motion or
otherwise, in any stage of a
case, or for carrying a
judgment or order into
effect.
c. In expropriation cases for the
purpose of determining
just
compemsation. (Sec. 5, Rule 67)
RULE 33
DEMURRER TO EVIDENCE
Grounds:
1. Demurrer to evidence is a motion to
dismiss based on the ground of
insufficiency of evidence and is
presented after the plaintiff rests his
case
2. A motion to dismiss filed by the
defendant after the plaintiff has
completed the presentation of his
evidence on the ground that upon the
facts and the law, the plaintiff has
shown no right to relief (Riguera,
2013).
Nature: There is only a one-sided trial.
Example: It is only the plaintiff who has
presented evidence.
Purpose:
litigations.
To
discourage
prolonged
Effects of Denial:
1. Defendant shall have the right to
present evidence
2. The date for reception of defendants
evidence should be set
3. The order is interlocutory and
therefore not appealable but can be
subject of petition for certiorari in
case of grave abuse of discretion or
oppressive
exercise
of
judicial
authority.
Effects of Grant:
1. The case shall be dismissed
2. The appellate court should render
judgment
3. On appeal, if the order of dismissal is
reversed, the movant shall be deemed
123
124
violated.
Civil Cases
Criminal Cases
AS TO REQUIREMENT FOR
LEAVE OF COURT
Not required before May be filed with
filing a demurrer or without leave of
court
RIGHT TO APPEAL
1. If demurrer is
granted, the order of
dismissal is
appealable. Refer to
Rule 33, Sec.1.
2. If on appeal and
the order of dismissal
was reversed by the
appellate court, the
defendant loses his
right to present
evidence (Radiowealth
v Sps. Del Rosario, GR
No. 138739, 2000).
The
order
of
dismissal is not
appealable
because of the
constitutional
policy
against
double jeopardy.
EFFECTS OF DENIAL
If demurrer is denied, If denied:
the defendant may 1. With leave of
proceed to present his court,
accused
evidence. may present his
evidence.
2. Without leave of
court, accused can
no longer present
his evidence and
submits the case
for decision based
on
the
prosecutions
evidence.
have
125
126
Note:
Effect
of
Compromise
agreement entered into by a lawyer
without
special
authority
is
Unenforceable.
Effect of a judgment based upon
Compromise Agreement
a. The compromise agreement is not
appealable and it is immediately
executory
b. It cannot be annulled
Unless vitiated with error, deceit,
violence or forgery of documents
c. It constitutes res judicata
Judicial Compromise Substantive law
does not require a court approval for the
res judicata effect of a compromise
agreement to attach. However, there shall
be no execution of the compromise
agreement except in compliance with a
judicial compromise (Riano 2011, citing
Art. 2037, Civil Code).
10. Clarificatory Judgment - Where the
judgment is difficult to execute
because of ambiguity in its terms, it is
suggested that the remedy to avail of
is to have the court remove the
ambiguity by the filing of a motion for
a clarificatory judgment and not to
assail the judgment as void (Riano,
2014).
11. Nunc
Pro
Tunc
Judgment
(Judgment now for then) entry
made now of something which was
actually
previously
done;
One
rendered to record some judicial act
done at a former time but which was
not carried into record (Riguera 2013).
It cannot correct judicial errors,
however flagrant and glaring these
may
be
(Riguera
2013,
citing
Henderson v Tan, 87 Phil. 466), nor
can it construe what a judgment
Defendant
failed to file
an answer.
Judgment
upon the
Pleadings
Defendant
filed an
answer but
does not
contain any
defense.
Judgment upon
Judgment
upon
Confession
Defendant
will not file an
answer but
will tell the
court the he
is admitting
his liability.
Judgment upon
Compromise
1. The liability of
the defendant is
to be determined
in accordance
with the terms
of the agreement
of the parties
2. There is
mutual or
reciprocal
concessions
Confession
1. The defendant
confesses the
action and
consents to the
judgment that
the court may
render in
accordance with
the compromise
and the prayer.
2. It is unilateral.
It only comes
from the
defendant.
Rendition of Judgment
The filing of the same with the clerk of
court,
not the
pronouncement
of
judgment in open court (Riano, 2011).
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 it does not yet constitute
the real judgment of the court (Riano,
2011 citing Ago v CA, 6 SCRA 530, 535).
JUDGMENT WITHOUT TRIAL
1. Default Judgment A binding
judgment in favor of either party on
some failure to take action by the
other party.
It is a judgment granting the claimant
such relief as his pleading may
warrant after the defending party fails
to answer within the time allowed,
upon motion of the claiming party,
with notice to the defending party and
A
determination made by a court
without a full trial.
Judgment may be issued as to the
merits of an entire case or specific
issues in that case.
3. Voluntary Dismissal The lawsuit is
terminated by voluntary request of the
plaintiff. Refer to Rule 17, Secs. 1-2.
CONTENTS OF JUDGMENT
1. The opinion of the court contains
the findings of facts and conclusion of
law
2. The
disposition
of
the
case
(Dispositive part) final and actual
disposition of the rights litigated
3. Signature of the judge(Herrera)
Conflict
between
the
Dispositive
Portion (fallo) and Body of the Decision
(ratio decidendi)
General Rule: The fallo controls. The fallo
is the final order while the opinion in the
body is merely a statement ordering
nothing.
Exception: The body or ratio decidnedi
will prevail while the inevitable conclusion
from the body of the decision is so clear
that there was a mere mistake in the
dispositive portion (Riano, 2014 citing So
v Food Fest Land Inc., 642 SCRA 492,
2011).
RULE 34
JUDGMENT ON THE PLEADINGS
127
128
Q: What is
pleadings?
judgment
on
the
render
A:Grounds:
1. When answer fails to tender an issue
by reason on:
a. General
denial
of
material
allegations of the compliant
b. Insufficient denial of the material
allegations of the compliant
2. When answer admits the material
allegation of the adverse partys
pleading, the court may, on motion of
that party, direct judgment on such
pleading (Rule 31, Sec.1)
3. Under the Rules on Summary
Procedure, should the defendant fails
to answer the complaint within 10
days from service of summons.
4. Where the defendant is declared in
default, the court shall proceed to
render
judgment
granting
the
claimant such relief as his pleading
may warrant, unless the court in its
discretion requires the claimant to
submit evidence (Rule 9, Sec.3)
RULE 35
SUMMARY JUDGMENTS
Q: What is a summary judgment?
A: It is a judgment rendered by a court
without a full-blown trial, if the court
finds that, except as to the amount of
damages, there is no genuine issue as to
129
130
2. Annulment of marriage
3. Legal separation
Section 4: When The Case Not Fully
Adjudicated.
If judgment is not rendered upon the
whole case or for all the reliefs sought and
a trial is necessary, the court at the
hearing of the motion shall ascertain the
existence of materials facts without
substantial controversy including the
amount
of
damages
and
those
controverted in good faith. The trial shall
be conducted on the controverted facts
accordingly.
Partial Summary Judgment A
judgment not on the entire case but only
on the specified factual issues with the
court proceeding to try the other factual
issues.
Propriety of Summary Judgment may be
corrected only on appeal or other direct
review and not by certiorari.
Separate Appeal on Partial Summary
Judgment from Judgment in the Entire
Case
General Rule: A partial
judgment is not appealable.
summary
JUDGMENT ON
THE PLEADINGS
Basis
Based solely on
Based on
pleadings without
pleadings and
introduction
of
depositions,
evidence.
admissions and
affidavits.
To whom Available
Available to both
parties
Available only to
the plaintiff, unless
the
defendant
presents
counterclaim.
Issues
There may be
issues involved in
the case but such
issues are
irrelevant.
When Proper
No genuine issue
of fat to be tried
except among of
damages (Rule
No issue of fact at
all.
35, Sec.3)
RULE 36
JUDGMENTS,FINAL ORDERS,
AND ENTRY THEREOF
JUDGMENT
The final determination by a court of the
rights of the parties in a case submitted
before it.
RENDITION OF JUDGMENT AND FINAL
ORDERS.
A judgment or final order determining the
merits of the case shall be:
1. In writing
2. Personally and directly prepared by
the judge
3. Stating clearly and distinctly the facts
and the law on which it is based
4. Signed by him
5. Filed with the clerk of court
PROMULGATION the process by which
a
decision
is
published,
officially
announced, made known to the public or
delivered to the clerk of court for filing,
coupled with notice to the parties or their
counsel.
RENDITION OF JUDGMENT filing of
the decision signed by the judge with the
clerk of court.
Q: What are the essential requisites of
a valid judgment?
131
132
3. The 10-year period for filing an action
for revival of judgment (Art. 1144 Civil
Code; Riguera 2015).
APPEAL ON SEPARATE OR SEVERAL
JUDGMENTS
Section 4. Several Judgment
Q: What is a several judgment?
A: It is a judgment rendered by a court in
an
action
against
several
defendantswhere the court renders
judgment against one or more of them,
leaving the action to proceed against the
others.
Q: What is a separate judgment?
A: It is a judgment rendered by a court in
an action wherein more than one claim
for reliefis presented and where the court
renders a separate judgment disposing of
a claim or some of them but allowing the
action to proceed against the remaining
claims.
General Rule: Appeal on either is not
allowed.
Exception: Unless allowed by the court
under Rule 41,Sec.1(g).
PARTIAL
SUMMARY
JUDGMENT
Governed
by
Section 4, Rule 35.
Presupposes that a
motion
for
summary judgment
has been filed.
Interlocutory order
SEPARATE
JUDGMENT
Governed
by
Section 5, Rule
36.
Not
applicable
to a summary
judgment.
Judgment
final order
or
Cannot
be
appealed until after
judgment in the
entire case has
been rendered.
As a rule not
appealable while
the main case is
pending, unless
the court allows
an
appeal
therefrom.
(Section 1(f) Rule
39)
Reasons:
1. To avoid delay in the administration of
justice
2. To put an end to judicial controversies
(Riano, 2014).
EFFECTS OF FINALITY OF JUDGMENT
1. The prevailing party is entitled to have
the judgment executed, as a matter of
right and the issuance of the
corresponding writ of execution
becomes a ministerial duty of the
court.
2. The court rendering the judgment
loses jurisdiction over the case so that
it can no longer correct the judgment
in substance, except clerical errors
and omissions due to inadvertence or
negligence.
3. Res judicata supervenes.
Post-Judgment Remedies
Remedies against Judgment or Final
Orders
A. Before Finality
1. Motion
for
New
Trial
Reconsideration (Rule 37)
2. Appeal
or
B. After Finality
1. Relief from judgment (Rule 38)
2. Annulment of judgment (Rule 47)
3. Special civil action for certiorari
(Rule 65)
The power to amend a judgment is
inherent to the court before judgment
becomes final and executor.
MEMORANDUM DECISION
A decision of appellate court which adopts
the true findings of fact and conclusion of
the trial court if it is affirming the latters
decision.This is allowed only in simple
cases.
I. BEFORE FINALITY
A. Motion
for
New
Reconsideration
Trial
or
is
1. In
cases
for
legal
separation,
annulment, and declaration of nullity
2. In cases involving custody of minors
under the SC Rules on Cases
Involving Custody of Minors and
Habeas Corpus issued in relation
thereto (Riguera 2013).
When Prohibited
A motion for new trial or reconsideration
is prohibited: (SISE)
1. Under Rules on Summary Procedure
2. Cases governed by the Rules of
Procedure
on
Intra-Corporate
Disputes
3. Cases governed by Rules of Procedure
for Small Claims Cases
4. Ejectment Cases (Riguera 2013).
RULE 37
NEW TRIAL OR
RECONSIDERATION
133
134
Section 1. Grounds for New Trial.
(FAME-N)
1. Fraud,
Accident,
Mistake
or
Excusable
negligence,
which
ordinary prudence could not have
guarded against and by reason of
which the aggrieved party has
probably impaired in his rights.
FRAUD - As a ground for new trial, must
be extrinsic or collateral, that is, it is the
kind of fraud which prevented the
aggrieved party from having a trial or
presenting his case to the court, or was
used to procure the judgment without fair
submission of the controversy (Regalado).
TWO KINDS OF FRAUD
a.
Extrinsicfraud
is
thedeceptionortrickerybywhichtheagg
rievedpartywaspreventedfromhavingtri
alorpresentinghiscasebeforethecourt(
Riguera2013).
Example:
testifying.
Prevent
witness
from
thetrialinthecourtbelowbytheexerciseofdu
ediligenceandwhichisofsuchcharacter
aswouldprobablychangetheresult(Riguera,
2013).
MOTION FOR
RECONSIDERATION
Grounds: ICE
Second
prohibited.
MR
is
When to File
Motion for new trial or reconsideration
must be filed within 15 days from notice
of judgment and resolved by the court
within 30 days from submission for
resolution.
Section 2. Contents of Motion for New
Trial (WAS)
1. The motion shall be in writing
2. State the grounds: (FAME-N)
3. A motion based on:
a. FAME shall be supported by an
Affidavit of Merits
b. NDE shall be supported by:
i.
Affidavits of the Witnesses by
whom
such
evidence
is
expected to be given,
ii.
Duly authenticated documents
which are proposed to be
introduced
in
evidence
(Riguera,Primer-Reviewer
on
Remedial Law, 2015).
Affidavit of Merits: (FEN)
1. Nature and character of FAME on
which it is based
2. Facts constituting the movants good
and substantial cause of action or
defense
3. Evidence he intends to present if the
motion is granted, which evidence
must be such as to warrant a
reasonable belief that the result of the
case would probably be different, if
new trial were conducted (Riguera,
2013).
Section 2. Contents of a Motion for
Reconsideration
1. Specifically point out the findings or
conclusions of the judgment which
are unsupported by evidence or
contrary to law
135
136
2. With express reference to the
testimonial or documentary evidence
or provisions of law alleged to be
contrary to such findings.
motion
for
APPEALS
ARE
1.Special proceedings
2.Actions for recovery of property with
accounting
3.Actions for partition of property with
accounting
4.Special civil actions of eminent domain
5.Foreclosure of mortgage
6.Judgment for or against one or more
several defendants, leaving the action to
proceed against the others when allowed
by the court.
Multiple appeals are allowed in one case
to enable the rest of the case to proceed
in the event that a separate and distinct
issue is resolved by the court and held to
be final.
In criminal cases in which the penalty
imposed is death or life imprisonment,
the appeal to the Supreme Court is by
ordinary appeal on both questions of fact
and law.
However, in People v. Mateo (G.R. Nos.
147678-87, July 7, 2004 and A.M. 04-905-SC, Sept. 14, 2004), such cases shall
be appealed to the CA for intermediate
review.
Under the Memorandum issued by the
Supreme Court, the Regional Trial Court
has jurisdiction over intra-corporate
137
138
disputed
and
corporation.
rehabilitation
of
Failureoftherecord
onappealtoshowonitsfacethattheappealwa
sperfected
within
theperiodfixedbytherulesisagroundfordis
missal(Riverav.CA,GRNo.141863,405SCR
A63).
Judgments and Final Orders Subject To
Appeal
SubjectofAppeal(AsamendedbyA.M.No.
07-7-12-SCDecember4,2007; Sec.1)
Anappealmaybetakenfromajudgmentorfin
alorderthatcompletelydisposesofthecase,o
rof
aparticularmatterthereinwhendeclaredbyt
heseRulestobeappealable.
MATTERS NOT APPEALABLE
General
Onlyafinaldecisionisappealable.
Judgment Rule)
Rule:
(Final
Exception:
Interlocutoryordersarenotappealable.
Ifappealsareallowedfrominterlocutoryorder
s,itwillresultinaverylengthytrialproceeding
sandexcessiveunwantedappellateproceedi
ngs.
REMEDY AGAINST JUDGMENTS AND
ORDERS
WHICH
ARE
NOT
APPEALABLE
PETITION
FOR
REVIEW
PETITION FOR
REVIEW ON
CERTIORARI
Court
Origin.
of
2. Notice to
Adverse
party.
SC
2.
Pay
docket and
lawful fees,
and 500 as
deposit for
costs with
CA.
2. Pay docket
and lawful fees,
and
500
as
deposit
for
costs
3. Submit proof
3. Furnish of service of
RTC
and copy to lower
Adverse
court
and
party
a adverse party.
copy.
When to Appeal
1. Notice of Within 15 Within 15 days
Appeal
- days from:
from:
within
15
days from a. Notice of a.
Notice
of
notice
of the
judgment
or
judgment
decision to order
be reviewed
2. Records
b. Denial of MR
on Appeal b. Denial of or New trial.
within
30 the MR or
days.
New Trial.
Period of
Appeals
Within 15 days
after notice
Notice
Appeal
of
Record
Appeal
on
Within 30 days
after notice
Appeal
in
Habeas
Corpus case
Petition
for
Review to the
CTA
Within 48 hours
from notice
Within 30 days
from notice or
after lapse of
period for action
by the CIR
RULE 38
Relief From Judgments, Orders
And Other Proceedings
A petition for relief is an equitable
remedy and is allowed only in exceptional
cases from final judgments or orders
where no other remedy is available
(Regalado, 10th Ed., citing Palmores v
Jimenez, 90 Phil. 773).
It will not be entertained if the proper
remedy is appeal or certiorari (Ibid., citing
Fajardo v Bayona, 98 Phil. 659).
139
140
Kinds of Relief from Judgments,
Orders and other Proceedings
1. Relief from judgment, order or other
proceedings.
2. Relief from denial of appeal.
GROUNDS
FOR
AVAILING
THE
REMEDY
Judgment or final order entered against a
party through: (FAME)
1. Fraud,
2. Accident,
3. Mistake, or
4. Excusable negligence and no other
remedy is available.
Similar to a Motion for New Trial
Petition for Relief under Sec.1 is similar to
a motion for new trial on the ground of
FAME.
The difference being that the motion for
new trial under Rule 37 is filed before the
judgment becomes final, while a petition
for relief in this section presupposes a
final judgment or order (Riguera 2013).
Section 2: Petition for Relief from
Denial of Appeal.
Grounds:
Judgment or final order is rendered by
any court in a case, and a party thereto,
by FAME, has been prevented from taking
an appeal.
Party who has filed a timely motion for
new trial cannot file a petition for relief
after the former is denied. The two
remedies are exclusive of one another.
Petition,
RULE 39
EXECUTION, SATISFACTION
AND EFFECT OF JUDGMENTS.
EXECUTION
141
142
The remedy provided by law for the
enforcement of a judgment. It also refers
to the process of enforcing the judgment.
As to how it is enforced
1. Execution by Motion
2. Execution by Independent Action
FINALITY OF JUDGMENT
FOR PURPOSES
OF APPEAL
FOR PURPOSES
OF EXECUTION
A judgment which
completely
disposes of the
action
(as
distinguished from
an
interlocutory
order)
A
judgment
is
final
after
the
lapse of the period
to appeal and no
appeal has been
perfected
(Regalado).
Judgment in this
sense
is
more
precisely referred
to as final and
executory
in
order
to
avoid
confusion
with
final judgment in
FINAL
JUDGMENT
Disposes of the
action
CONCEPTOFEXECUTION
ISINAPPLICABLE
When
the
judgmentdoesnotorderthedoingofsomethi
ngorthepaymentofmoneybecausethereisno
thinginthejudgmenttobeenforcedorexecute
d.Insuchcases,iftheappealperiodhaslapse
d,the
judgmentbecomesfinalandunappealable,
notfinal and executory(Riguera2013)
MITTIMUS
F inal
processforcarryingintoeffectsthedecisionof
theappellatecourtaftertheentryofjudgment
andthetransmittalthereofwiththerecordsto
thecourtoforiginandispredicateduponthefi
nalityofjudgment.
PARTIALEXECUTION
Permissibleifjudgmentisdivisible.
Example:Executionofthejudgmentorderin
greinstatementwhilemotionforreconsidera
tionontheawardofdamagesispending.
IMMED
May not b
143
144
JUDGMENTS
IMMEDIATELY
EXECUTORY
Judgments or final orders from the
following are immediately final and
executory and may no longer be appealed:
1. Summary Judicial Proceedings under
the Family Code (Art. 247, FC)
2. Rules of Procedure for Small Claims
Cases (Sec. 23, A.M. No. 08-8-7-SC,1
October 2008.)
3. Contempt (direct)
4. Compromise
judgments
(Riguera,
2015).
ISSUANCE OF EXECUTION
Execution As A Matter Of Right
The rule on when judgments or orders
may be executed as a matter of right. This
happens when the judgment becomes
executory. It becomes mandatory or
ministerial duty of the court to issue a
writ of execution to enforce the judgment
(Regalado, 10th Ed., citing Far Eastern
Surety v Vda. de Hernandez, GR No.L30359, Oct. 16, 1975).
Execution shall issue as a matter of
right:
1. On motion, upon judgment or order
that disposes of the action or
2. Proceeding upon the expiration of the
period to appeal therefrom, if no
appeal has been duly perfected;
3. If appeal has been duly perfected and
finally resolved, the execution may be
applied in the court of origin, on
motion of the judgment oblige,
submitting:
a. Certified true copies of the
judgment/s or final order/s
sought to be enforced and of the
entry, with
b. Notice to the adverse party.
Sec.2, Rule 39
DISCRETIONAR
EXECUTORY
This is the rule
when judgment
or orders may be
executed as a
matter of right,
that
is,
it
becomes
the
mandatory
or
ministerial duty
of the court to
issue a writ of
execution.
Y EXECUTION
Execution
may
issue
in
the
discretion of the
court even before
the lapse of the
period, that is,
even before the
judgment
or
order has become
executory
(Regalado).
This
happens
when
the
judgment
becomes
executor.
Section 2: Discretionary Execution
It is the execution of a judgment or final
order by the court in its discretion during
the pendency of an appeal.
Requisites:
1. There must be a motion filed by the
prevailing party with a notice to the
adverse party;
2. There must be a hearing of the motion
for discretionary execution;
3. There must be good reasons to justify
the discretionary execution; and
4. The good reasons must be stated in a
special order.
5.
Discretionary execution may be issued
by:
1. Trial court even after the perfection
of the appeal for so long as the motion
for execution was filed while the TC
has jurisdiction over the case and is
in possession of the records, upon
motion of the prevailing party with
notice to the adverse party
2. Appellate court
after the TC has
lost jurisdiction
145
146
Action
for
Revival
of
OF
147
148
4. Judgment was already satisfied
5. Issued without authority
6. Change of the situation of the parties
renders execution inequitable
7. Controversy
was
never
validly
submitted to the court
8. Writ varies the terms of the judgment
9. Writ sought to be enforced against
property exempt from execution
10. Ambiguity in the terms of the
judgment
APPEAL - the proper remedy from an
order denying the issuance of a writ of
execution.
However, an order granting the issuance
of a writ of execution of a final judgment
is not appealable (Regalado, 10th Ed.,
citing several cases).
Section 9: Execution of Judgments for
Money
How is Execution
Money Enforced.
of
Judgment
of
149
150
5. Reasonable
time
improvements
to
remove
Real
Property
All Cases
Section 21:
Purchaser.
Judgment
Obligee
as
151
152
Sale of Real
Property
Rule 39, Sec. 25
1 year
period
redemption
Title is transferred
after the expiration of
the right to redeem
appeal(supersedeasbond)waspostedby
them;
7. Judgmentdebtorisinimminentdangero
finsolvency;
8. Prevailing
partyisofadvancedageandina
precariousstateofhealthandtherightint
hejudgmentisnontransmissiblebeingforsupport;
9. Prevailingparty postssufficient bond
to
answerfordamagesincaseofreversalofju
dgment
Note:
Butinmostcases,themerefilingofab
ondisnotsufficient
justificationfordiscretionaryexecuti
on.
PROPERTIES
EXEMPT
FROM
EXECUTION
1. Family home, homestead in which he
resides, and land necessarily used in
connection therewith;
2. Lettered gravestones;
3. (Insurance proceeds) Money, benefits,
annuities accruing or in any manner
growing out of any life insurance;
4. Provisions for individual or family use
sufficient for 4 months;
5. Clothing and other articles necessary
for ordinary personal use, excluding
jewelry;
6. Household furniture and utensils
necessary for housekeeping NOT
exceeding P100,000;
7. Implements and ordinary tools used
in trade, employment, or livelihood;
8. Earnings, salaries, or wages for
personal services within the 4 months
preceding
the
levy
which
are
necessary for the support of the
family;
9. Fishing boat (1) and accessories NOT
more than P100,000 owned by a
fisherman and by which he earns his
living;
Claim
in
2. Attached, or
3. Seized by virtue of a court order,
Wherein the third-party makes an
affidavit of his title or right of possession
to the property and serves the affidavit
upon:
1. The court officer and
2. The judgment obligee.
Note: It is available to a third-party in
cases of levy on execution, attachment
and replevin.
Procedure:
1. The third-party shall make an
affidavit showing his title to or right of
possession over the property.
2. He shall serve the affidavit upon the
levying officer, files a bond approved
by the court to indemnify third-party
claimant, not the sheriff or officer.
3. Amount of bond should be not less
than value of property levied on.
Sheriff shall NOT be liable for
damages if bond is filed.
4. A claim for damages for the taking or
keeping of the property may be
enforced by the third-party against
the bond provided he files an action
within 120 days from the filing of the
bond. (Riguera, 2013)
Remedies Available to third-party
1. Terceria or Third-party claim under
Rule 39, Sec. 16;
2. Reivindicatory action to recover
possession of the property from the
officer or the purchaser at the
execution sale. This is filed separately
in cases of levy on execution;
3. Indemnity bond, if one is filed, may be
assailed in an action for damages;
4. Motion or application with the court
for the release of the property based
on continuing jurisdiction of a court
with respect to matters concerning
153
154
the execution or enforcement of its
judgment
(Riguera, 2013)
Note: (TRIMI). In third-party claims
involving attachment or replevin, the
third-party claimant may vindicate his
claim to the property by Intervention
since the action is still pending.
Rules on Redemption
1. There is a right of redemption
in real property but such right
is not afforded in case of
personal property.
2. In case of execution of levy on
growing crops, defendant has
no right to redeem. Such
growing crops are classified as
real property under Article
415(2) of the Civil Code, the
right to the growing crops
mobilizes
the
same
by
anticipation (Riguera 2013,
citing Sibal v Valdez, 50 Phil.
512).
3. Rents, Earnings and Income of
Property Pending Redemption.
Refer to Rule 39, Sec. 32
Purchaser or redemptioner
shall not be entitled to
receive rents and income of
property sold inasmuch as
these
belong
to
the
judgment obligor until the
expiration of the period of
redemption.
Section 27: Who may Redeem Real
Property Sold
1. Judgment obligor or his successor
in interest in the whole or any part
of the property;
2. Redemptioner or Creditor having
lien by virtue of an attachment,
judgment, or mortgage on the
property sold subsequent to the lien
under which the property was sold.
PROCEDURE:
1. The
judgment
obligor,
whether
exercising a first or subsequent
registration, has one year from the
date of the registration of the
certificate of sale to redeem property
sold by paying the purchaser the
amount of his purchase, with 1% per
month interest plus any assessments
or taxes which he may have paid
thereon after purchase with interest
on said amount at 1% per month.
Once he redeems, there shall be no
further redemption. In no case may
the judgment obligor redeem beyond
the one-year period.
2. The redemptioner exercising first
redemption has the same one-year
period within which to redeem.
3. The
redemptioner
exercising
a
subsequent registration has a period
of 60 days after the last redemption
within
which
to
redeem.
The
redemptioner
may
redeem
even
beyond the one-year period provided it
is within 60 days after the last
redemption.
Section
30:
Proof
Required
of
Redemptioner
1. Copy of the judgment or final order
under which he claims the right to
redeem.
2. If he redeems upon a mortgage or
other lien, a memorandum of record
3. Original or certified true copy of any
assignment
4. Affidavit executed by him or his agent.
Section 33: Deed and Possession to be
given at expiration of Redemption
Period; By Whom executed or given
1. Two document which the sheriff
executes in case of Real Property:
2. Certificate of Sale executed after
auction sale.
155
156
a. A specific thing;
b. Probate of a will, or the
administration of estate of a
deceased person, or;
c. With respect to the personal,
political or legal condition or
status of a particular person or
his relationship to another, it is
conclusive upon (TWAC)
i.
Title to the thing;
ii.
Will or administration, or;
iii.
Condition,
status,
or
relationship of the person
Note: This is the Rule on res judicata in
judgments in rem.(Regalado, 10th Ed.)
2. In other cases/matters directly
adjudged, or matters relating thereto
that could have been raised subsequent
to commencement of action, judgment is
conclusive between parties and their
successors in interest.
Note: This is the Rule on res judicata in
judgments in personam.(Regalado, 10th
Ed.)
Requisites
of
Conclusiveness
of
Judgment
Same as those above, except that causes
of action are different (Riguera 2015).
Rule on Conclusiveness of Judgment
In any other litigation, only those deemed
to have been adjudged in a former
judgment or which was actually and
necessarily
included
therein
are
conclusive upon the same parties or their
successors-in-interest (Riguera 2013).
Section 48: Enforcement and Effect of
Foreign Judgments or Final Orders.
EffectofForeignJudgment:
1. Judgment
uponaspecificthing,
conclusiveuponthetitletothething;
RULE 40
APPEAL FROM JUDGMENTS OR
FINAL ORDERS OF THE MTC
This rule governs appeal from judgment
or final order of an MTC to RTC exercising
157
158
arbitral award shall be required by the
appellate court to post counterbond
executed in favor of the prevailing party
equal to the amount of the award.
(Riguera 2013)
Section 4: Perfection of Appeal.
Governed by the provisions of Sec. 9, Rule
41.
Section 5: Appellate Court Docket and
other Lawful Fees
Within the period for taking an appeal,
the appellant shall pay to the clerk of
court which rendered judgment docket
and other lawful fees otherwise it is a
ground for dismissal.
Section 6: Duty of the Clerk of Court
The clerk of court shall within 15 days
from perfection of appeal:
1. Transmit to the RTC the original record
or the record on appeal, with the
transcripts and exhibits; and
2. Certify them as complete record.
1.
2.
3.
RULE 41
APPEAL FROM JUDGMENTS OR
FINAL ORDERS THE RTC
159
160
7. An order dismissing an action
without prejudice (Sec. 1 Rule 41
as amended by SC Resolution
effective 27 December 2007).
(SSCC)
8. A judgment of direct contempt
(Sec. 2 Rule 71)
9. Compromise judgment
10. Judgments of the court in
summary judicial proceedings in
the family law (Art. 247 Family
Code)
11. Judgments in small claims cases
(Sec. 23 Rules of Procedure for
Small Claims Cases). (Riguera ,
Primer on Remedial Law, Vol.1
2015)
Perfection of Appeal. (Sec.9.)
Notice of Appeal A partys appeal is
perfected upon the filing of the notice of
appeal in due time.
The court loses jurisdiction over the case
upon:
a. Perfection of the appeal filed in
due time; and
b. Expiration of the time to appeal by
the other parties
Record on Appeal
A partys appeal is perfected upon the
approval of the record on appeal filed in
due time.
The court loses jurisdiction only over the
subject matter upon:
a. Approval of the records on appeal
filed in due time; and
b. Expiration of the time to appeal
of the other parties
Residual Jurisdiction
It is the power of the trial court after it
has lost jurisdiction but prior to the
transmittal of the original record or the
record on appeal, to: (PWICE)
a. Issue orders for the protection
and preservation of the parties'
rights which do not involve any
matter litigated by the appeal;
b. Approve compromises;
c. Permit
appeals
of
indigent
parties;
d. Order execution pending appeal
in accordance with Sec. 2 Rule
39, and;
e. Allow withdrawal of the appeal.
(Riguera 2015).
Remedy When Appeal is Not Allowed
A party may file a Special Civil Action of
Certiorari or Prohibition if there is lack or
excess of jurisdiction or grave abuse of
discretion or Mandamus if there is no
performance of duty.
Under Sec. 1 Rule 41, no appeal lies from
an order dismissing a case without
prejudice and hence a party may file an
appropriate civil action under Rule 65
(Riguera 2013, citing Casupanan v Laroya,
G.R. No. 145391, 2002).
WHERE APPEALS PERMITTED BEYOND
REGLEMENTARY PERIOD
1. Matters of life, liberty, honor or
property;
2. Counsels negligence without any
negligence on the client;
3. Existence of special or compelling
circumstances;
4. Merits of the case.
WHEN APPEAL IS A MATTER OF
RIGHT; EFFECTS
1. Ordinary appeal is a matter of right.
RULE 42
PETITION FOR REVIEW FROM
THE REGIONAL TRIAL COURT
TO THE COURT OF APPEALS
Rule 42 refers to a mode of appeal from
the RTC to CA in cases where RTC
rendered a decision in the exercise of its
APPELLATE JURISDICTION.
Section 1. How Appeal Taken.
1. Filing a verified petition for review
with the CA
2. Payment of docket and other lawful
fees
3. Depositing 500.00 for costs
4. Serving the RTC and the adverse
party a copy.
WHEN TO APPEAL:
Within 15 days from notice of the decision
sought to be reviewed or of the denial of
petitioners motion for new trial or
reconsideration filed in due time after
judgment.
THE CA MAY GRANT AN ADDITIONAL
PERIOD OF 15 DAYS ONLY WITHIN
WHICH TO FILE THE PETITION FOR
REVIEW:
1. Upon proper motion and
2. Payment of the full amount of the
docket and other lawful fees and the
deposit for costs
3. Before
the
expiration
reglementary period,
of
the
PETITION FOR
REVIEW FROM THE
RTC TO THE CA
Rule 42
File petition for review
directly with the CA
If MR is denied,
appeal within the
remaining
balance of the 15
day period.
If MR denied, Fresh
Period Rule applies.
15 day period to
appeal is NONExtendible.
161
162
d. Duplicate originals or certified
true and correct copies of the
judgment or final order
e. Certification
of
non-forum
shopping
Section 3. Effect of Failure to Comply
with Requirements.
It shall be a sufficient ground for the
dismissal of the petition.
Section 8: Perfection of Appeal by
Petition For Review
1. Upon timely filing
2. Payment of docket and other lawful
fees
EFFECT OF APPEAL
General Rule: The appeal shall not stay
the award, judgment, final order or
resolution sought to be reviewed.
Exception: CA shall direct otherwise
upon such terms as it may deem just.
Section 9: Petition Given Due Course.
If petition is given due course, CA may set
the case for oral argument or require
parties to submit memoranda. The case
shall be deemed submitted for a decision
after the filing of the last pleading or
memoranda.
Decisions of Special Agrarian Courts
Sec. 60 of the Comprehensive Agrarian
Reform Law of 1998 provides that an
appeal may be taken from a decision of
the Special Agrarian Courts by filing a
petition for review with the CA within 15
days from receipt of the notice of the
decision. Otherwise, the decision shall
become final.
Hence, the proper mode of appeal is by a
petition for review under Rule 42 and not
through an ordinary appeal under Rule
RULE 43
APPEALS FROM QUASIJUDICIAL AGENCIES TO THE CA
Section 1: Scope.
Quasi-judicial agencies covered; appeals
from quasi-judicial bodies to the court of
appeals
1. Civil Service Commission;
2. Securities and Exchange Commission;
3. Office of the President;
4. Land Registration Authority;
5. Social Security Commission;
6. Civil Aeronautics Board;
7. Bureau of Patents, Trademarks and
Technology Transfer;
8. National
Electrification
Administration;
9. Energy Regulatory Board;
10. National
Telecommunications
Commission;
11. Department of Agrarian Reform under
RA No. 6657;
12. GSIS;
13. Employees
Compensation
Commission;
14. Agricultural Inventions Board;
15. Insurance Commission;
16. Philippine Atomic Energy Commission
17. Board of Investments
18. Construction Industry Arbitration
Commission;
19. Voluntary arbitrators
20. Ombudsman
(administrative
disciplinary cases)
Section
2:
Cases
not
covered.
Judgments or final orders issued under
the Labor Code.
1. Special rules of procedure have also
been adopted for cases formerly within
the jurisdiction and adjudicatory
processes of the SEC (Regalado, 10th
Ed.).
RULE 44
163
164
d.
e.
f.
g.
h.
fthejudgmentandanyothermattersnece
ssarytoanunderstandingofthenatureof
thecontroversy,withpagereferencestot
herecord;
"Statement of Facts,"a clearand
concise
statementin
anarrativeformofthefactsadmittedbybo
thpartiesandofthoseincontroversy,toge
therwiththesubstanceoftheproofrelatin
gtheretoinsufficientdetailtomakeitclea
rlyintelligible,withpagereferencestothe
record;
Aclearandconcisestatementoftheissue
s
offactorlawtobesubmittedtothecourtfor
itsjudgment;
"Argument,"
the
appellants
argumentson
eachassignmentoferrorwithpagerefere
ncestotherecord.Theauthoritiesreliedu
ponshallbecitedbythepage
ofthereportat
whichthecasebeginsandthepageofthere
portonwhichthecitationisfound;
Undertheheading"Relief,"aspecification
oftheorderorjudgmentwhichtheappella
ntseeks;and
Incases
notbroughtupbyrecordonappeal,
theappellantsbriefshallcontain,asana
ppendix,acopyofthejudgmentorfinalord
erappealedfrom.
statementoffactsintheappellantsbrief,
orundertheheading"CounterStatementofFacts,"heshallpointoutsuc
hinsufficienciesorinaccuraciesashebeli
evesexistintheappellantsstatementoff
actswithreferencestothepagesoftherec
ordinsupportthereof,butwithoutrepetit
ionofmattersintheappellantsstatemen
toffacts;and
c. "Argument,"theappelleeshallsetforthhi
sargumentsinthecaseoneachassignme
ntoferrorwithpagereferencestotherecor
d.Theauthorities relied on shallbecited
by
the
pageofthereportatwhichthecasebegins
andthepageofthereportonwhichthecita
tionisfound.
3. Appellants Reply Brief (Sec. 9)
Filed within 20 days from receipt of
the appellees brief, answering points
in the appellees brief not covered in
his main brief.
Withdrawal of Appeal as a Matter of
Right. (Sec. 3)
An appeal may be withdrawn as a
matter of right at any time before the
filing
of
the
appellees
brief.
Thereafter, the withdrawal may be
allowed in the courts discretion
(Riguera, Primer on Remedial Law, Vol.
12015).
POWER OF COURT OF APPEALS(THEF)
1. Try cases
2. Conduct hearings
3. Receive evidence
4. Perform acts necessary to resolve
factual issues on cases falling within
its original and appellate jurisdiction
Subject to the rule that factual or legal
issues not raised in the lower court may
not be raised on appeal (Riguera, 2013).
EXTENSION OF
BRIEFS. (Sec.12)
TIME
FOR
FILING
raised
on
in
Filed within 45
days
Contents
specified
by
rules
MEMORANDUM
Filed in
1. certiorari,
2. prohibition,
3. mandamus,
4. quo warranto and
5.
Habeas
corpus
cases
Filed within 30 days
Shorter, briefer, only
one issue involved
no subject index or
assignment of errors
just facts and law
applicable.
RULE 45
APPEAL BY CERTIORARI TO
THE SUPREME COURT
Q: What is a Petition for Review on
Certiorari (Appeal by Certiorari)
A: It is a mode of appeal to the SC from a
judgment or final order of the:
1. CA;
2. SB;
3. RTC, where the appeals raises only
pure questions of law;
4. CTA en banc (See Sec. 19 R.A. 1125
as amended by R.A. 9282);
5. CA, SB, and RTC in a writ of amparo
or writ of habeas data case (See Sec.
19, Rule on the Writ of Amparo; Sec.
19, Rule on the Writ of Habeas Data)
Notes:
1. An appeal to the Supreme Court may
be taken only by the filing of a verified
petition for review on certiorari,
Except in criminal cases where the
penalty imposed is reclusion perpetua
or life imprisonment (Sec. 3 Rule 56).
2. A judgment imposing the death
penalty is subject to automatic review.
(Riguera 2013).
Section 1. Filing of Petition with the
Supreme Court.
(As amended A.M. No. 07-7-12-SC
December 4, 2007)
1. From a judgment or final order of CA,
Sandiganbayan, RTC, other courts
whenever authorized by law
2. Verified petition for review on
certiorari
3. The
petition
may
include
an
application for a writ of preliminary
injunction
or
other
provisional
remedies
165
166
4. Petition shall raise only question of
law, which must be distinctly set
forth.
Section 2. How to Appeal.
1. Thepetitionshallbefiledwithin15days
from:
a. Notice ofthejudgmentor final order
orresolutionappealedfrom,or
b. Ofthedenialofthepetitionersmotion
fornewtrialorreconsiderationfiledin
duetimeafternoticeofjudgment.
2.
Onmotiondulyfiledandserved,withfullp
aymentofthedocketandotherlawfulfees
and
3. Thedeposit
forcostsbeforetheexpirationoftheregle
mentaryperiod,
Note:
TheSupremeCourtmayfor
justifiablereasonsgrantanextensionof30
daysonlywithinwhichtofilethepetition.
A.M.No.00-2-14-SC(Amendments
to
Sec. 4, Rule 7 and Sec. 13, Rule 41)
Anyextensionoftimegrantedbyacourtshoul
d
becomputedfromtheexpirationoftheorigina
lperiod,regardlessofthefactthatsaidexpiryd
atefallsonaSaturday,Sunday,orlegalholida
y.(Riguera2013,p.485)
AnRTCjudgehasnorighttodisapproveanotic
eofappealonthegroundthattheissuesraised
involveapurequestionoflaw,andthat
themodeofappealiserroneous.Thatisthepre
rogativeoftheCA,nottheRTCjudge.Anoticeo
fappealneednotbeapproved
bythejudge,unlikearecordonappeal.
(Khov.Camacho)
Note: Fresh Period Rule Applies in this
Rule.
Question of Fact
Question of Law
Exists
when
the
doubt or difference
rises as to the truth
or falsehood of facts.
epartyshallbesubmittedtogetherwith
thepetition.Refer to Rule 45, Sec.3.
1.
2.
a.
b.
c.
GROUNDSFOROUTRIGHTDISMISSA
LORDENIAL
Failuretocomplywithanyofthefollowing:
a. Paymentofdocketorotherlawful
fees;
b. Depositforcosts;
c. Proofofserviceofthepetition;
and the contents of and the
documents
whichshouldaccompanythepetition
shallbea
sufficientgroundforthedismissalth
ereof.
Onitsowninitiative,theSCmaydeny the
petition onthe ground that theappeal
is either:
Withoutmerit;
Prosecutedmanifestlyfordelay,or;
Thatthequestionsraisedthereinare
toounsubstantialtorequireconsideratio
n.(Rule45, Sec.5)
Note:
ReviewunderRule45isnotamatterofrigh
tbutofsoundjudicialdiscretion,granted
onlywhentherearespecialandimportant
reasonstherefor. Refer to Rule 45,
Sec.6.(Riguera2013).
Rule 45 is applicable to both civil and
criminal cases
Appeal By Certiorari
Rule 45
Mode of appeal
Special c
Directed
matters
Raises q
Note:
Proofofserviceofacopyofthepetitiononth
elowercourtconcernedandontheadvers
167
168
rywrit
sorpro
cesses
,wheth
prior
motion
erorno
for
ttheya
reinai
dofitsa
ppellat
ejuris
diction
,
6. Exclus
iveorig
inaljur
RULE 46
ORIGINAL CASES
isdicti
onover
action
sforan
nulme
ntofju
dgmen
tsofRT
C
Exceptions:
1. Asothe
rwisep
rovide
fmand
d,
amus,
2. Theact
2. Prohib
ionsfor
ition,
3. Certior
annul
mentof
ari,an
judgm
entsha
4. Quow
llbegov
arrant
ernedb
o,and
yRule4
5. Auxilia
7,
3. Forcer
tiorari,
prohib
itiona
ndma
ndam
usbyR
ule65,
and
4. Quow
arrant
obyRul
e66.
(Sec.2)
Note:
Petitionforhabeascorpus
havebeenexcludedfromthecoverageofthe
presentrevised
Rulesincetheyareactuallyspecialproceed
ingsandthecorresponding
proceduralrulesgoverning
thesameareprovidedforintheRulesonspe
cialproceedingsandinRule41,Sec.3(Rega
lado,10thEd.)
Section 3.Contents and Filing of
Petition; Effect of Non- Compliance.
Contents
1. The full names and actual addresses
of all the petitioners and respondents;
2. A concise statement of the matters
involved;
3. The factual background of the case,
and;
4. The grounds relied upon for the relief
prayed for
In actions filed under Rule 65, the
petition shall further indicate the
material dates showing:
169
170
such material portions of the record
as referred to therein, and other
documents relevant or pertinent
thereto.
5. Petitioner Shall Submit Certification
Against Forum Shopping. (Rule 7,
Sec.5.)
The certification shall be accomplished
by:
1. The proper clerk of court or his duly
authorized representative, or;
2. By the proper officer of the court,
tribunal, agency, or office involved, or
by his duly authorized representative.
The other requisite number of copies of
the petition shall be accompanied by
clearly legible plain copies of all
documents attached to the original.
Certification Against Forum Shopping
The petitioner shall also submit:
1. a sworn certification that he has not
theretofore commenced any other action
involving the same issues in the SC, CA
or different divisions thereof, or any other
tribunal or agency;
2. If there is such other action or
proceeding, he must state the status of
the same; and
3. if he should thereafter learn that a
similar action or proceeding has been
filed or is pending before the SC, CA, or
different divisions thereof, or any other
tribunal or agency, he undertakes to
promptly inform the aforesaid courts and
other tribunal or agency thereof within
five (5) days therefrom.
Note:
1. The original copy of the petition
intended for the court shall be marked or
indicated as such, since, among others, it
must be accompanied by a clearly legible
duplicate original or certified true copy of
RULE 47
ANNULMENT OF JUDGMENTS
OR FINAL ORDERS AND
RESOLUTIONS.
ANNULMENT OF JUDGMENT
A remedy in law independent of the case
where the judgment sought to be
annulled was rendered.
A person who is not a party to the
judgment may sue for its annulment
provided he can prove that the same was:
1. Obtained
through
fraud
or
collusion; and
2. Would
be
adversely
affected
thereby.
An action for annulment of judgment may
be availed of even if the judgment to be
annulled had already been fully executed
or implemented. (Regalado, 10th Ed.,
citing Isalmic DaWah Council of the Phil. v
CA, GR No.80892, 1989).
Purpose:
To have the final and executed judgment
set aside so that there will be renewal of
litigation.
Section 1: Coverage
This rule shall govern the annulment by
the Court of Appeals of judgments or final
orders and resolutions in civil actions of
RTC for which the ordinary remedies of
new trial, appeal, petition for relief or
other appropriate remedies are no longer
available through
petitioner.
no
fault
of
the
171
172
1. CA has exclusive original jurisdiction
in actions to annul judgment of RTC
(Sec. 9[2]) and
2. RTC retains their jurisdiction to annul
judgments of inferior courts in the
region (Sec. 19[6]; Regalado, 10th Ed.)
Section 7: Effects of Judgment
1. Set aside the questioned judgment or
final order and render the same null
and void, without prejudice to the
refilling of the original action in the
proper court.
2. 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.
3. The judgment may include the award
of damages, attorneys fees and other
relief. (Sec.9)
Section 8: Suspension of Prescriptive
Period.
Prescriptive period for re-filing the
original action is suspended unless the
extrinsic fraud is attributable to the
plaintiff in the original action.
Collateral Attacks of Judgment
A collateral or incidental 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 it is patent that
the court which rendered such judgment
had no jurisdiction.
RULE 48
PRELIMINARY CONFERENCE
Purposes:
1. To consider the possibility of
amicable settlement except when
the case is not allowed by law to
be compromised;
2. To define, simplify and clarify the
issues for determination;
3. To formulate stipulations of facts
and admission of documentary
exhibits, limit the number of
witness to be presented;
4. To take up such other matters
which may aid the court in the
prompt disposition of the case.
Preliminary Conference may be availed of
not only in original actions but also in
cases on appeal wherein a new trial was
granted on the ground of newly
discovered evidence.
Failure of the appellant to appear at the
preliminary conference is a ground to
dismiss the appeal. (Sec. 1[h], Rule 50 and
Sec. 5[e], Rule 56)
Rule 48 is applicable to the SC in original
and appealed cases (Secs. 2 and 4, Rule
56).
Binding Effect of the Results of the
Conference (Sec.3)
General rule: The resolution embodying
all the actions taken therein, the
stipulations and admissions made, and
the issues defined shall control the
subsequent proceedings in the case.
Exception: If within 5 days from notice
thereof, any party shall satisfactorily
show valid cause why the same should
not be followed.
RULE 49
ORAL ARGUMENT
Section 1: When Allowed
The court motu proprio or upon motion of
RULE 50
DISMISSAL OF APPEAL
Section 1: Grounds for Dismissal of
appeal by the Court of Appeals.
1. Failure
to
file
within
the
reglementary period;
2. Failure to file the notice of appeal
or record on appeal within the
period;
3. Failure of the appellant to pay the
docket and other lawful fees;
4. Unauthorized
alterations,
omissions, or additions in the
approved record on appeal;
5. Failure of the appellant to serve
and file the required number of
copies
of
his
brief
or
memorandum within the time
provided;
6. Absence of specific assignment of
errors in appellants brief or page
references to the record;
7. Failure of the appellant to take
necessary steps for the completion
RULE 51
JUDGMENT
Section
1.
When
case
deemed
submitted for judgment
The new provisions in this section are
intended to clarify and provide specific
rules on when a case is deemed
submitted for judgment, depending in
whether what is involved is an ordinary
appeal, petition for review, or an original
173
174
action, and whether or not a hearing was
conducted by the appellate court.
The determination of the date of
submission of the case is made doubly
important by the fact that under the
Constitution, such date is the reckoning
point for the periods for deciding or
resolving the case or matter, and which
periods are now mandatory in nature.
(Regalado, 10thEd.)
decisions
are
by the court.
3. Judgment on the pleadings,
summary judgment, judgment by
confession,
judgment
by
compromise
operates
as
adjudication on the merits.
4. Dismissal on the ground of noncompliance with Circular No. 1-88
had the effect of resolving the
issues raised therein.
RULE 52
MOTION FOR
RECONSIDERATION
Section 1: Period for Filing
Within 15 days from notice of judgment or
final resolution with proof of service on
the adverse party.
Section 3: Resolution of Motion
In the Court of Appeals, a motion for
reconsideration shall be resolved within
90 days from the date when the court
declares it submitted for resolution.
Section 4: Stay of Execution
Pendency of a motion for reconsideration
stays the execution of judgment unless
the court, for good reasons, directs
otherwise.
RULE 53
NEW TRIAL
Section 1: Period for Filing
Any time after the appeal from the lower
court has been perfected AND before the
CA loses jurisdiction over the case.
Ground:
Newly discovered evidence which:
a. could not have been discovered prior to
175
176
the trial in the court below by the exercise
of due diligence, and;
b. which is of such character as would
probably change the result.
Motion must be accompanied by affidavits
of merit. Same procedure followed as in
new trials before the RTC.
RULE 54
INTERNAL BUSINESS
Section 1: Distribution of cases among
divisions
Rule: Cases of the CA are allotted among
different divisions.
When CA should sit en banc:
a. To make proper orders or rules to
govern the allotment of cases among
divisions;
b.
Tomakerulesontheconstitutionofdivisions;
c. To make rules on the regular rotation of
Justices;
d. To make rules
vacancies; and
on
the
filling
of
RULE 55
PUBLICATION OF JUDGMENTS
AND FINAL RESOLUTIONS
Judgments and final resolutions of the
court shall be published in the Official
Gazette and in the Reports officialy
authorized by the court. (Philippine
Reports/SCRA).
RULE 56
PROCEDURE IN THE
SUPREME COURT
Section 1: Original Cases
1.Petitions for certiorari, prohibition,
mandamus, quo warranto, habeas corpus,
writ of amparo;
2.Disciplinary proceedings against judges
and attorneys;
3.Cases affecting ambassadors, other
public ministers, and consuls.
2.
3.
4.
5.
6.
7.
PROVISIONAL REMEDIES
Nature of Provisional Remedies
These are temporary, auxiliary and
ancillary remedies available to the litigant
for the protection and the 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.
Provisional
means
temporary,
preliminary or tentative (Tan v nAdre, 450
SCRA 145).
Purposes:
1. To preserve or protect the rights or
interests of litigants while the
main action is pending.
2. To secure the judgment.
3. To preserve the status quo.
4. To preserve the subject matter of
the action.
KINDS OF PROVISIONAL REMEDIES:
(ARIRS)
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support pendente lite (Rule 61)
Note: The enumeration is NOT exclusive.
The family court is in the nature of
Provisional Remedies and may grant the
following:
1. Spousal Support
2. Child
Support
of
Common
Children
3. Child Custody
4. Visitation Rights
177
178
5. Hold Departure OrderOrder of
Protection
6. Administration of Community or
Conjugal Property (A.M. No.02-1112-SC Rule on Provisional Orders)
Note: Provisional remedies are also
available in criminal cases pursuant to
Sec. 1, Rule 127 of the Revised Rules of
Criminal Procedure. The provisional
remedies in civil actions, may be availed
of in connection with the civil action
deemed instituted with the criminal
action.
JURISDICTION OVER PROVISIONAL
REMEDIES
1. The court which grants or issues a
provisional remedy is the court which
has jurisdiction over the main action.
2. Even an inferior court may grant a
provisional remedy in an action
pending with it and within its
jurisdiction (Riano. 2009 Ed, p. 532).
3. All inferior courts can grant all
appropriate
provisional
remedies,
including
the
appointment
of
receivers, with the writ of preliminary
injunction being now available in
either forcible entry or unlawful
detainer cases.
Note: The enforcement of said writs do
not require the approval of the Regional
Trial Courts having jurisdiction over the
inferior
courts
issuing
the
same.
(Regalado, 10th Ed.)
RULE 57
PRELIMINARY ATTACHMENT
Preliminary Attachment
1. A provisional remedy issued upon
order of the court where an action is
pending to be levied upon the
property of the defendant therein, the
same to be held by the sheriff as
of
be
the
the
GR
179
180
d. The amount claimed in the
action or value of property
the possession of which
the plaintiff is entitled to
recover, is as much as the
sum for which the order is
granted
above
all
counterclaims. Refer to
Rule 57, Sec. 3.
4. Applicants bond or attachment
bond The attaching party shall
post a bond executed to the
adverse party in the amount fixed
by the court in its order granting
the
issuance
of
the
writ,
conditioned that the applicant will
pay all the costs which may be
adjudged to the adverse party and
all damages which he may sustain
by reason of the attachment, if the
court shall finally adjudge that the
applicant is not entitled thereto.
Refer to Rule 57, Sec. 4.
Note: The AFFIDAVIT and BOND
must be duly filed with the court
before the order issues.
ATTACHMENT LIEN
While the provision of Rule 57 are silent
on the length of time within which an
attachment lien shall continue to subsist
after the rendition of a final judgment,
jurisprudence dictates that the said lien
continues until the debt is paid, or the
sale is had under execution issued on the
judgment or until the judgment is
satisfied, or the attachment discharged or
vacated in the same manner provided by
law(Lim vs. Lazaro 3 July 1995).
EFFECT
OF
INCOMPLETE
ALLEGATIONS IN AFFIDAVIT
The affidavit filed therefor must contain
all the allegations required in Sec. 3 of
to
satisfy
the
181
182
a. Bytakingandsafelykeepingit
inhiscustody,
b. Afterissuance
ofcorrespondingreceiptther
efor.
3. Stocksorsharesinacompany
a. Byleavingwiththepresident
ormanagingagentthereof,
b. Acopyofthewrit,and
n oticestatingthatthe
stockorinterestofthepartya
gainstwhomtheattachmenti
sissuedisattachedinpursua
ntofsuchwrit.
4. Debtsandcredits,andotherpersonal
propertynotcapableofmanualdelive
ry
Debtsand
credits,includingbankdeposits,fina
ncialinterest,royalties,commission
sandother
personal
propertynotcapableofmanualdelive
ry,areattached:
a. Byleavingwiththepersonowi
ngsuchdebts,orhavinginhis
possessionorunderhiscontr
ol,suchcreditsorotherperso
nalproperty,orwithhisagent
,acopyofthewrit,andnoticet
hatthedebtsowingbyhimtot
hepartyagainstwhomattach
mentisissued,andthecredit
sandotherpersonalproperty
inhispossession,orunderhi
scontrol,belongingtosaidpa
rty,areattachedinpursuanc
eofthewrit.
4. Interestinestateofthedecedent
a. Byservingtheexecutororad
ministratororotherpersonal
representativeofthedeceden
twithacopyofthewritandn ot
icethatsaidinterestisattach
ed.
b. Acopyofthewritand
noticeshallalsobefiledinthe
officeoftheclerkofthecourtin
whichsaidestateisbeingsettl
edandserveupontheheir,leg
ateeordeviseeconcerned.
RemedyWhenWrit
ofAttachmentisImproperlyorIrregularly
Enforced
Filea
motiontodischargetheattachmentbasedon
Sec.13(Riguera2013,citingOnatevAbrogar,
G.R.No.107303,1995).
Note:
Apropertyincustodialegismaybeattached.I
nsuchcase:
1. Acopyofthewritofattachmentshallbefile
dwith
thepropercourtorquasijudicialagency,and
2 . Noticeoftheattachmentserveduponthec
ustodianofsuchproperty(Riguera2013,
citingSec.7).
Section
14:
Proceedings
where
property is claimed by third person
ThesameasthatinSec.16,Rule39;andSec.7
,Rule 61.
Procedure:
1. The third-party shall makean affidavit
showinghis
titleto
or
right
ofpossession overtheproperty.
2. Heshallservetheaffidavituponthelevyin
g
officer,files
abondapprovedbythecourtto
indemnifythirdpartyclaimant,notthesherifforofficer.
3. Amountofbondshouldbenotlessthanval
ueofpropertyleviedon.The
sheriffshallNOTbeliablefordamagesifbo
ndisfiled.
4. Aclaimfordamages
forthetakingorkeeping
ofthepropertymaybeenforcedbythethir
d-partyagainstthebond
providedhefilesanactionwithin120days
fromthefilingofthebond.
RemedyWhenThirdPartyClaimantisUnabletoRecoverthePro
perty
Fileaseparateactiontorecover possession.
Remedy When Third-Party Claimant is
Unable to Recover the Property
The remedy is to file a separate action to
recover possession.
Note: Nothing shall prevent the thirdparty claimant from vindicating his claim
to the property in the same or separate
action. Refer to Rule 39, Sec. 16 (Riguera
2013).
Section 12: Discharge of Attachment
and the Couner-bond.
Remedies Available to a Party against
Whom a Writ Is Issued or Enforced
1. He may discharge a writ of
attachment
which
has been
enforced
or
prevent
its
enforcement altogether if:
a. He makes a cash deposit or
files a counter-bond executed
to the attaching party
b. With the clerk of court where
the application is made,
c. In an amount equal to that
fixed by the court in the order
of attachment,
d. Exclusive of costs.
2. To quash the attachment based on
the following grounds:
a. That it was improperly
issued.(Sec. 13); or
b. That it was improperly
enforced; or
c. That
the
bond
is
insufficient.(Sec. 3)
183
184
4. During the pendency of the appeal
for damages sustained during
such appeal, if the judgment of
the appellate court is favorable to
the party against whom the
attachment was issued and before
said judgment becomes executory.
ATTACHMENT
COUNTER-BOND
BOND
It is posted by the It is posted by the
attaching
party party
against
or the applicant.
whom
attachment
is
issued.
The purpose of
the
applicants
bond is to obtain
a
writ
of
preliminary
attachment.
This bond shall
answer for all the
costs which may
be adjudged to
the adverse party
and all damages
which he may
sustain
on
account of the
attachment, if the
court shall finally
adjudge that the
applicant is not
entitled.
It aims to prevent
or discharge a
preliminary
attachment.
The liability of
surety under the
applicants bond
must be enforced
by an application
after motion with
due notice has
been given to the
applicant and the
sureties and after
The sureties on
the counter-bond
are
charged
under
the
judgment
and
their liability may
be recovered after
notice
and
summary hearing
in
the
same
It secures the
payment of the
judgment which
the
applicant
may be entitled
to.
proper hearing.
action.
RULE 58
PRELIMINARY INJUNCTION
Preliminary Injunction
Anorderrequiringapartyoracourt,agencyor
a
persontorefrainfromaparticularactoracts.I
tmaybegrantedatanystageofanactionorpro
ceedingpriortothejudgmentorfinalorder.
A writ of preliminary injunction is an
ancillary or preventive remedy that may
only be resorted to by a litigant to protect
or preserve his rights or interests and for
no other purpose during the pendency of
the principal action. The dismissal of the
principal action thus results in the denial
of the prayer for the issuance of the writ
(DFA vs. Falcon, 1 September 2010)
A writ of preliminary injunction may
be issued upon the concurrence of the
following essential requisites, to wit:
a. the invasion of right sought to be
protected
is
material
and
substantial;
b. the right of the complainant is
clear and unmistakable; and
c. there is an urgent and paramount
necessity for the writ to prevent
serious damage.
While a clear showing of the right is
necessary, its existence need not be
conclusively established. Hence, to be
entitled to the writ, it is sufficient that the
complainant shows that he has an
ostensible right to the final relief prayed
for in his complaint (Lukand vs Pagbiilao
Development Corp. 10 March 2014).
PreliminaryMandatoryInjunction
Anorderrequiringapartyoracourt,agencyor
a persontoperformaparticularactoracts.
Itmaybegrantedatanystageofanactionorpr
oceedingpriortothejudgmentorfinalorder.
TemporaryRestrainingOrder
TE
MP
OR
ARY
RES
TRA
INI
NG
OR
DE
185
186
R
An
orde
r to
mai
ntai
n
the
stat
us
quo
unti
l the
dete
rmi
nati
on
of
the
pray
er
for a
writ
of
preli
min
ary
inju
ncti
on.
It
may
be
gra
nted
ex
part
e if
it
shal
l
app
ear
that
grea
t or
irre
par
able
inju
ry
wou
ld
resu
lt to
the
appl
ican
t
befo
re
the
mat
ter
can
be
hear
d on
noti
ce.
It may exceed 20 days.
Note:
WPI
issued
bytrial
court,CA,SBorCTAagainstalowerc
ourt,board,officer,
orquasijudicialagencyshalldecidethemain
caseorpetitionwithin6monthsfrom
theissuanceofthewrit.
(AsamendedbyA.M.No.07-7-12SC, December12,2007.)
It
doe
s
not
exce
ed
20
days
.
Note
s:
1.
TRO
issu
ed
by
CA
or a
me
mbe
r,
effe
ctiv
e for
60
days
.
2.
TRO
issu
ed
by
SC
or a
me
mbe
r,
effe
ctiv
e
unti
l
furt
her
orde
rs.
INJUNCTION
Generally directed
against any person
not
exercising
judicial,
quasijudicial
or
ministerial
functions.
Does not involve
the jurisdiction of
the court
PROHIBITION
Directed against a
court, tribunal or
person
exercising
judicial powers.
Always
action.
May be on the
ground that the
court
against
whom the writ is
sought
acted
without
or
in
excess
of
jurisdiction.
a
of Injunction
Preliminary Injunction
Final Injunction
Prohibitory Injunction
Mandatory Injunction
Preliminary
Injunction
The writ secured
before the finality
of the judgment.
Final Injunction
Issued
as
a
judgment making
the
injunction
permanent.
main
Requisites:
187
188
Prohibitory
Injunction
To prevent a person
from
the
performance of a
particular act.
Mandatory
Injunction
To require a person
to
perform
a
particular act.
Notes:
1. Independent action merely to obtain
preliminary injunction is not allowed.
2. Substantive relief must be sought as
well as a clear and positive right
calling for judicial protection must be
shown.
Requirements for the Grant of a
Preliminary Injunction or TRO:
1. Verified application shows the
facts entitling the applicant to the
relief demanded.
2. Bond unless exempted by the
court.
a. Service of summons,
b. Together with a copy of the
complaint
or
initiatory
pleading;
c. The applicants affidavit
and
d. Bond, upon the adverse
party in the Philippines.
Prior or contemporaneous service of
summons shall not apply in the following
cases:
a. The summons could not be served
personally or by substituted
service despite diligent efforts.
b. The defendant is a resident of the
Philippines Temporarily absent
therefrom.
c. Defendant is a Non-resident of the
Philippines.
SUMMARY HEARING
General Rule: For TRO, the application
shall thereafter be acted upon only after
all the parties are heard in a summary
hearing which shall be:
a. Conducted within 24 hours
b. After the sheriffs return of service
and/or the records are received by the
branch
c. Selected by raffle and
d. To which the records shall be
transmitted immediately (Riguera,
2013).
Note: The period within which to conduct
summary hearing is 24 hours after the
records are transmitted to the branch to
which it is raffled. (Riguera 2013, citing
Bagong West Kabulusan 1 Neighborhood
Association v. Lerma, A.M. No. RTJ-051904, 2005).
Exceptions: TRO may be issued ex parte
or without summary hearing:
a. If it shall appear from the facts shown
by affidavits or by the verified
application
that
GREAT
OR
189
190
b. Theapplicantwill
suffer
graveinjusticeandirreparableinjury
,
Thejudgemayissueexparteatemporaryrest
raining order:
a. Itshallbeeffective foronly72hours;
b. HeshallimmediatelycomplywithSectio
n4regardingserviceofsummonsandacc
ompanyingdocument;and
c. Heshallconductasummaryhearingwith
insaid72hourstodeterminewhetherthe
restrainingordershallbeextendeduntilt
heapplicationforthepreliminaryinjunct
ioncanbeheard.
Section 6: Grounds for objection to or
for the Dissolution of Injunction for
Restraining Order.
1. Application is insufficient;
2. Other grounds upon affidavits of the
party or person enjoined
3. Applicants bond is insufficient. Refer
to Rule 58, Sec. 7
DOCTRINE
OF
COMPARATIVE
INCONVENIENCE OR DAMAGE
The injunction or restraining order may
be denied or 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.
In relation to RA No. 8975, Ban on
Issuance of TRO or Writ of Injunction
in
cases
involving
Government
Infrastructure Projects
Nocourt,excepttheSupremeCourt,shalliss
ueanytemporaryrestrainingorder,prelimin
aryinjunctionorpreliminarymandatoryinju
nctionagainst
thegovernment,oranyofitssubdivisions,offi
cialsoranypersonorentity,whetherpublicor
privateactingunderthegovernmentdirectio
n,torestrain,prohibitorcompelthefollowing
acts:
a. Acquisition,clearanceanddevelopm
entoftheright-of-wayand/or
siteorlocationofanynationalgovern
mentproject;
b. Biddingorawardingofcontract/proj
ectof the national government
asdefined underSection2hereof;
c. Commencementprosecution,execu
tion,implementation,operationofan
ysuchcontractorproject;
d. Terminationorrescissionofanysuch
contract/project;and
e. The
undertakingorauthorizationofanyo
therlawfulactivitynecessaryforsuch
contract/project.
Thisprohibitionshallapplyinallcases,dispu
tesorcontroversiesinstitutedbyaprivatepar
ty,includingbutnot
limitedtocasesfiledbybiddersorthoseclaimi
ngtohaverightsthroughsuchbiddersinvolvi
ngsuchcontract/project.
Thisprohibitionshallnotapplywhenthe
matterisofextremeurgencyinvolvingaconst
itutionalissue,suchthatunlessatemporary
restrainingorderisissued,graveinjusticean
dirreparableinjurywillarise.
Theapplicantshallfileabond,inanamountto
befixedby
thecourt,whichbondshallaccruein
favor
ofthegovernmentifthecourtshouldfinallyde
cidethattheapplicantwasnotentitledtother
eliefsought.
Ifafterduehearingthecourtfinds
that
theawardofthecontractisnullandvoid,theco
urtmay,ifappropriateunderthecircumstan
ces,awardthecontracttothequalifiedandwi
nningbidderororderarebiddingofthe
same,withoutprejudicetoanyliabilitythatth
eguiltypartymayincurunderexistinglaws.
RULE ON PRIOR OR
CONTEMPORANEOUS SERVICE OF
SUMMONS IN RELATION TO
ATTACHMENT
PRINCIPLE
OF
PRIOR
CONTEMPORARY JURISDICTION
When
an
application
for
a
writofpreliminaryinjunction
or
a
temporary restraining order isincludedin
acomplaintor
anyinitiatorypleading,thecase,iffiledinamu
ltiplesalacourt,shallberaffledonlyafterNOTICEt
o
andINTHEPRESENCEoftheadversepartyor
thepersontobeenjoined. Refer to Rule
58,Sec.4(c).
Thereisdifferenceontheapplicationofthepri
ncipleinpreliminaryattachmentandprelimi
naryinjunction.
Inattachment,theprincipleappliesonlyinth
eimplementationofthewrit,while
inapplications
forinjunctionorTRO,thisprincipleappliesbe
foretheraffleandissuanceofthewritsorTRO.
GeneralRule:PreliminaryInjunctionwillno
tissuetoprotectcontingentorfuturerights;ri
ghtswhicharenotclear.
Exception:Itmayhoweverbeissuedtopreve
ntfuturewrongs
thoughnoright
yethasbeenviolated.
Example:Topreventthehusbandfrominterf
eringwifesmanagementpendingdesignatio
noftheadministrator.
RULE 59
RECEIVERSHIP
Receivership
It is a provisional or ancillary remedy
wherein the court appoints a receiver to
receive and preserve the property or fund
in the litigation pendente lite, when it
does not seem reasonable to the court
that either part should hold it (PrimerReviewer on Remedial Law, Manuel R.
Riguera).
A receiver is a person appointed by the
court in behalf of all the parties to an
action for the purpose of preserving the
property involved in the suit and to
protect the rights of all the parties under
the direction of the court (Mallari v. CA,
G.R. No. L-26467, July 15, 1981).
Before appointing a receiver, courts
should consider:
a. Whether or not the injury
resulting from such appointment
would probably be greater than
the injury ensuing if the status
quo is left undisturbed; and
b. Whether or not the appointment
will imperil the interest of others
whose rights deserve as much a
consideration from the court as
those of the person requesting for
receivership. (Tantano vs. EspinaCaboverde 29 July 2013)
Section 1.Cases When Receiver May Be
Appointed.
The Court may appoint a receiver in the
following cases:
a. Applicant has an Interest in the
property or fund subject of the
proceeding and such property is in
danger of being lost, removed, or
materially
injured
unless
a
receiver is appointed;
191
192
b. In foreclosure of mortgage, when
the property is in Danger of being
dissipated or materially injured,
and that its value is probably
insufficient to discharge the
mortgage debt or that it has been
agreed upon by the parties;
c. 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;
d. When appointment of receiver is
the most Convenient and feasible
means
of
preserving,
administering or disposing of the
property in litigation.
Note: The
litigation.
property
must
be
under
Requisites:
1. Property or fund subject of
receivership is under litigation
2. Appointment
of
receiver
is
warranted under Sec. 1 Rule 59
3. Applicant files a sufficient bond to
the effect that the applicant will
pay the receiver all damages he
may sustain by reason of the
appointment
in
case
such
applicant shall have procured the
appointment without sufficient
cause. Refer to Rule 59, Sec. 2.
4. No counterbond filed by the
adverse party to deny the
application for receivership. Refer
to Rule 59, Sec. 3.
5. Receiver shall be:
a. Sworn to perform his duties
faithfully, and
b. Shall file a bond to the effect
that he will faithfully discharge
his duties in the action or
proceeding and
c. Obey the orders of the court.
6. Service of copies of bonds shall be
made by the party filing the same
RULE 60
REPLEVIN
Section 1: When May Writ Be Issued.
Replevin is a provisional remedy wherein
a party praying for the recovery of
possession of personal property may
apply for an order for the delivery of such
property to him.
It may also refer to the main action for the
recovery of personal property wrongfully
detained by the defendant (Riguera 2013).
193
194
Notes:
1. Principal Action: Recovery of
possession of personal property
2. Provisional Remedy: Replevin
Subject Matter: Personal Property
The contracting parties may validly
stipulate that a real property be
considered as personal. After agreeing to
such stipulation, they are consequently
estopped from claiming otherwise. Under
the principle of estoppel, a party to a
contract is ordinarily precluded from
denying the truth of any material fact
found therein. The Court upheld the
intention of the parties to treat a house as
personal property because it had been
made the subject of a chattel mortgage.
(Sergs Product vs. PCI Leasing & Finance
Co. 22 August 2000)
Note: The applicant seeking immediate
possession need not be the holder of legal
title. It is sufficient that he is entitled to
the possession thereof.
When May Writ Be Issued
Replevin may be applied for and issued at
the commencement of the action or at any
time before answer.
Note: Once an answer has been filed, the
replevin is no longer available and the
remedy would be to move for preliminary
attachment under Sec. 1(c) Rule 57.
(Riguera 2013)
Requisites for the Issuance of a Writ of
Replevin
1. The applicant must show by his own
affidavit or that of some other person
who personally knows the facts:
a. That the applicant is entitled to
the possession of the subject
property
RULE 61
SUPPORT PENDENTE LITE
Support Pendente Lite
It is the support provided to a party
during the pendency of the litigation.
Principal Action:
Provisional
Action for
support
195
196
Section 5: Enforcement of the Order.
If the adverse party fails to comply with
the order, the court, shall motu proprio or
upon motion issue an order of execution.
ACTIONS
WHERE
REMEDY
IS
AVAILABLE:
1. Actions for support
2. In criminal actions where the civil
liability includes support for the
offspring as a consequence of the
crime and the civil aspect thereof
has not been waived, reserved or
instituted prior to its filing.
Q: What courts may grant Support
Pendente Lite?
A:
CIVIL CASES
FAMILY COURT may grant support
pendente lite since an action for support
falls within the jurisidction of the family
court.
action.
Relief)
Venue
The venue of Special Civil Actions is
THE CA MAY ALSO GRANT SUPPORT PENDENTE LITE WHERE PROPER IN AN APPEALED
governed by the general rules on venue,
CASE.(Riguera, Primer on Remedial Law,Vol. 1, 2015)
EXCEPT as otherwise indicated in the
particular rule for said Special Civil
Action. (Ex. Quo Warranto under Sec. 7,
SPECIAL CIVIL ACTION
Rule 66).
NATURE OF SPECIAL CIVIL ACTION
A special civil action, which aside from
being governed by the rules for ordinary
civil actions, is subject to specific rules to
provide it (Riguera, Primer Reviewer on
Remedial Law).
ORDINARY
CIVIL ACTION
Governed
by
the rules on
ordinary
civil
action;
Every Ordinary
Civil
Action
must be based
on a cause of
SPECIAL CIVIL
ACTION
Governed
by
the
rules on ordinary
civil
actions
and
specific rules;
Not every Special
Civil Action is based
on a cause of action.
(ex.
Declaratory
RULE 62
INTERPLEADER
Interpleader
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.
RULE 63
DECLARATORY RELIEF AND
SIMILAR REMEDIES
Declaratory Relief
It is a special civil action brought by a
person interested under a deed, will,
contract or other written instrument,
whose rights are affected by a statute,
executive order or regulation, ordinance,
or any other governmental regulation to
determine any question of construction
or validity arising, and for a declaration
of his rights or duties, thereunder.
Actions under Rule 63
1. Petition for declaratory relief
197
198
2. Similar remedies, specifically:
a. Action for reformation of an
instrument
b. Action to quiet title
c. Action to consolidate ownership
over the real property by the
vendee a retro pursuant to Art.
1607 of the Civil Code.
Who may file the action
All persons which have or claim any
interest which would be affected by the
declaration shall be made parties. No
declaration shall prejudice the rights of
persons not parties to the action, except
as otherwise provided in the Rules.
When to file
It should be brought before breach or
violation of the contract or written
instrument, or of the statute, executive
order,
regulation,
ordinance,
or
governmental regulation (Sec.1). Where
the contract has already been breached
prior to the filing of an action for
declaratory relief, the court can no longer
assume jurisdiction over the action. Any
judgment for declaratory relief is a
nullity.
(Riguera 2013, citing Tambunting vs.
Baello, 16 September 2005).
Where to file the action
Distinction should be made between the
first and second paragraphs of Sec. 1.
199
200
real action and jurisdiction would
depend on the assessed value of the
property.
Action to Consolidate
Ownership
over Real Property MTC or RTC,
depending on the assessed value of
the subject real property(Riguera
2013)
RULE 64
REVIEW OF JUDGMENTS AND
FINAL ORDERS OR
RESOLUTIONS OF THE
COMMISSION ON ELECTION
AND COMMISSION ON AUDIT
Basis:
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
certiorari by the aggrievedparty within
30 days from receipt of a copy
thereof. (Sec. 7, Art. XI, 1987
Constitution)
Section 2: Mode of Review
Petition for certiorari under Rule 65.
However, the period for filing a petition
for certiorari assailing the judgment of
the COMELEC and COA is shorter than
that provided for under Rule 65.
Under Rule 65, the petition for certiorari
shall befiled not later than 60 days from
notice of judgment or from notice of
denial of a motion forreconsideration or
motion for new trial whereas Rule 64
provides that the petition shall be filed
within 30 days only.
However, review of judgment, final
order or resolution of the Civil Service
Commission is not covered by this rule
but by Rule 43 through a petition for
RULE 65
Directed to any
tribunal, board,
or
officer
exercising judicial
or quasi-judicial
functions
Must
be
filed
within 60 days
from notice of the
judgment
or
resolution.
If MR is denied,
the
aggrieved
party will have
another 60 days
counted from the
notice of the denial
within which to file
the petition.
RULE 65
CERTIORARI, PROHIBITION
AND MANDAMUS
CERTIORARI
An extraordinary remedy by which an
aggrieved person prays for a judgment
annulling or modifying the proceedings of
a tribunal, board or officer exercising
judicial, quasi-judicial functions on the
ground that such tribunal, board or
officer has acted without or in excess
of jurisdiction, or with grave abuse of
discretionamounting to lack or excess of
jurisdiction (Sec.1).
An aggrieved party under Section 1, Rule
65 of the Rules of Court is one who was a
party to the original proceedings that gave
rise to the original action for certiorari
under Rule 65.
Thus, a person not a party to the
proceedings in the trial court or in the CA
cannot maintain an action for certiorari
in the Supreme Court to have the
judgment reviewed. Stated differently, if a
petition for certiorari or prohibition is
filed by one who was not a party in the
lower court, he has no standing to
question the assailed order. (Pascual vs.
Robles 22 June 2011)
Q: Petitioner engaged the services of
KGLC law offices to pursue a civil
collection case and administrative case
against the Municipal Government of
Muria. RTC dismissed the case for failure
to prosecute. Petitioner filed a petition for
certiorari under Rule 65 of the Rules of
Court to challenge RTCs decision. Is the
petition correct?
A: No. The SC explained that under Rule
17 Sec. 3 and Rule 56 of the ROC, the
remedy against final order is appeal and
not certiorari. An appeal may be
dismissed upon motion if a party resorts
201
202
as a duty resulting from an office.
COMELEC fails to fulfill the duty required
under the law through its inaction in
utilizing the VVPAT feature of the vote
counting machines. (Bagumbayan-VNP
Movement, Inc. et. al. v. COMELEC, Mar. 8,
2016)
CERTIORARI
PROHIBITION
NATURE
The remedy is preventive
and negative to restrain or
prevent
usurpation
of
jurisdiction.
GROUNDS
Entity or person is alleged to
have
acted:
without
jurisdiction; in excess of
jurisdiction; or with grave
abuse
of
discretion
amounting to lack or excess
of jurisdiction.
To annul or
proceeding.
PURPOSE
To have respondent desist
from further proceeding.
nullify
a. It is directed against a
tribunal, board, or officer
exercising judicial
or
quasi-judicialfunctions;
b. That such tribunal,
board, or officer has acted
without or in excess of
jurisdiction or withgrave
abuse of discretion;
c. There is no appeal nor
plain,
speedy
and
adequate remedy in the
ordinary course oflaw;
d. Petition is verified and
must allege facts with
certainty;
e.
Petition
must
be
accompanied by a certified
true copy of the judgment
copies of all pleadings and
REQUISITES
a. The petition must be
directed against atribunal,
corporation,
board
or
person exercising judicial,
quasi-judicial or ministerial
functions;
b.
The
tribunal,
corporation,
board
or
person must have acted
without or in excess of
jurisdiction or with grave
abuse
of
discretion
amounting
to
lack
of
jurisdiction;
c. There is no appeal or any
other plain, speedy and
adequate remedy in the
ordinary course of law;
d. Shall be accompanied by
certified true copy of the
MANDAMUS
This remedy is affirmative or
positive (if the performance of
duty is ordered) or it is
negative (if a person is ordered
to
desist
from excluding
another from a right or office.)
203
204
document relevant and a
sworn certification of nonforum shopping.
RULE 45
APPEAL BY CERTIORARI
Broad
Mode of appeal
Under the exclusive appellate jurisdiction
of the SC
Raises only questions of law
RULE 65
SPECIAL CIVIL ACTION FOR CERTIORARI
Limited
Original action
Under the concurrent original jurisdiction of SC,
CA and RTC
Raises the question of jurisdiction because the
court acted without or in excess of jurisdiction or
with grave abuse of discretion
May be directed against interlocutory order
May be filed not later than 60 days from notice of
judgment
As a general rule, filing of MR is a condition
precedent
Does not stay the judgment or order subject of
the petition unless an injunction has been issued
Parties are the aggrieved party against the court
or tribunals as respondents; the court or judge
whose orders or proceedings are challenged are
impleaded as public respondents
PROHIBITION
INJUNCTION
Ordinary action
MANDAMUS
INJUNCTION
Remedial
Preventive
205
When
petition
Prohibition
and
proper:
for
Certiotari
Mandamus
is
unlawfully
neglects
the
INJUNCTIVE RELIEF
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.
The public respondent shall PROCEED
WITH THE PRINCIPAL CASE WITHIN 10
DAYS FROM THE FILING OF THE PETITION
FOR CERTIORARI WITH THE HIGHER
COURT, absent a TRO or preliminary
injunction, or upon its expiration. Failure of
the public respondent to proceed may be a
ground
for
an
administrative
charge(A.M.No.07-7-12-SC).
Exceptions to Filing of Motion for
Reconsideration before filing Petition for
Certiorari
General Rule:The filing of a Motion for
Reconsideration is condition sine qua non to
the filing of a petition for certiorari, to allow
the court an opportunity to correct its
imputed errors(Riano, 2007).
Exceptions:
1. Where the order is a patent nullity;
2. Where the questions raised in the
certiorariproceeding has been duly raised
and passed by the lower court;
3. Where there is an urgent necessity for
the resolution of the question and any
furtherdelay would prejudice
the
interests of the government or of the
petitioner;
4. Where the subject matter of the action
is perishable;
5. Where under the circumstances, a motion
for reconsideration would be useless;
Commission
on
Elections - Election
cases involving an act or an omission of a
municipal or a regional trial court (as
amended
by
A.M.
No.
077-12-SC December 4, 2007).
There is concurrent original jurisdiction
among the SC, CA, RTC, Sandiganbayan,
and COMELEC.
UNMERITORIOUS PETITION
It is a petition which is either patently
without merit or prosecuted for delay, or if
the questions raised therein are too
unsubstantial to require consideration.
Effect of filing
withdraw
granted."
Information
is,
therefore,
RULE 66
QUO WARRANTO
ELECTION
PROTEST
Challenge rights
of a person to
hold office on
the ground of
irregularities in
the conduct of
election
Successful
protestant
will
assume office if
he had obtained
plurality of valid
votes.
Must be filed
within 10 days
from
the
proclamation of
the candidate.
Petition must be
filed
by
any
registered
candidate.
(Regalado)
Section
1:
When
Government
commence
an
action
against
Individuals
Quo warranto is commenced by the
Government against the following:
5. COMELEC;
6. MTC over barangay
contest
level
election
RULE 67
EXPROPRIATION
EXPROPRIATION
It is the procedure to be observed in the
exercise of the right of eminent domain.
EMINENT DOMAIN
The right of the State to acquire private
property for public use, upon payment of
just compensation and observance of due
process of law
Requisites:
1. due process
2. just compensation
3. public use
4. valid and definite offer previously
made
Who may exercise the power:
1. The State through, the national
legislature.
2. Local
governments (Sec. 19 Local
Government Code).
There must
bean ordinance passed by
the
LGU, a mere resolution will not
suffice.
3. Public utilities when authorized
by their franchise
Exprorpiation cases are
within the
jurisdiction of the Regional Trial Court.
Justice Feria emphasized that jurisdiction
over eminent domain cases is still within
the RTC under the 1997 Rules of Court. It is
not a question of who has a better title or
right for the government does not even claim
that it has a title to the property. It merely
asserts its inherent sovereign power of
eminent domain to appropriate and control
individual property for the public benefit,
as the public necessity, convenience or
welfare may demand. The subject of an
provisionally
ascertained and fixed by the court
If real property assessed value in tax return
In Case of Expropriation for National
Government Infrastructure Projects
The government shall immediately pay the
owner of the property 100% of the market
value of the property based on the tax
declaration or the current relevant BIR
zonal valuation, whichever is higher, and the
value of the improvements using the
replacement cost method (Riguera 2013
citing, Republic vs. Gingoyon, G.R. No.166429,
19 December 2005).
In Case of Expropriation
Government Unit
for
Local
c.
In
case
the
completion
of
government infrastructure
is
of
utmost urgency andimportance, and
there
is
no
existing valuation of
the area, the implementing agency
shall immediately pay the owner of the
property its proffered value.
If
defendant
of
Just
JUST COMPENSATION
Objections
A.
Section
5:
Ascertainment
Compensation.
has
no
objection
or
defense:
1. He may file and serve a NOTICE OF
APPEARANCE and MANIFESTATION to
that effect specifically designating or
identifying the property in which he
claims to be interested;
2. Thereafter, he shall be entitled to notice
of all proceedings.
B. If defendant has objection to the filing
or the allegations in the complaint or
defense to the taking of his property,
he must serve his answer within the
time stated in the summons.
Section 4: Order of Expropriation
It is the declaration of the Court that
petitioner has a lawful right to take the
property for public use and upon payment
of just compensation as of the time of
taking of property or filing of the
complaint, whichever is earlier.
The report of the Commissioner on the
value of the condemned property is not
final. Judgment of the court is necessary
to give effect to their valuation.
The
court may correct the commissioners
report in any manner so that final
judgment may be rendered.
A final order sustaining the right to
expropriation may be appealed by any
party aggrieved thereby, but the appeal
shall not prevent the court from
determining the just compensation to be
paid.
COMMISSIONERS
Not more than 3 competent and
disinterested persons to ascertain and
report to the court the just compensation.
NOTE:
Objections
to
the
ORDER OF APPOINTMENT must be filed
within 10 DAYS from service of the order
and shall be resolved within30 DAYS after
ALL commissioners received the copies of
the objections.
Different from trial by commissioner
because the latters appointment is merely
discretionary.
NOTE: The appointment of commissioners
is MANDATORY and cannot be dispensed
with (Meralco v. Pineda, G.R. No. L-59791,
February 13, 1992).
Duties of the Commissioners
1. Unless the parties consent to the
contrary, Commissioners shall
view and examine theproperty
sought to be expropriated and its
surroundings, and may measure
the same;
2. Assess
the
consequential
damages
to
theproperty not
taken and deduct such damages
from the consequential benefits
derived by the owner; and
3. Report to the court its findings as
to the just compensation of the
property sought to beexpropriated.
Section 7: Report of Commissioners
and Judgment Thereupon
Report of Commissioners
1. It must be filed with the court within
60 DAYS from notice of their
appointment, which timemay be
extended in the discretion of the
court.
RULE 68
FORECLOSURE OF REAL ESTATE
MORTGAGE
JUDGMENT
ON
FORECLOSURE
FOR
PAYMENT OR SALE
a. Ascertain the amount due to the
plaintiff upon the mortgage debt or
obligation,including
interest
and
other
charges
as approved by the
court, and costs;
b. Render judgment for the sum so found
due and order that the same be paid to
the court or to judgment oblige
Within what period:
Within a period of not less than 90 days nor
more than 120 days from entry of judgment.
In default of such payment:
Such property shall be sold at public auction
to satisfy the judgment.
PROPERTY;
Exception:
If property cannot be sold in portions without
prejudice to the parties:
a. Whole shall be ordered to be sold in
the first instance
b. The entire debt and costs shall be
paid, if the proceeds of the sale be
sufficient, therefore, there being a
rebate of interest where such rebate is
proper.
SALE OF
EFFECT
MORTGAGED
when
court
cannot
render
deficiency judgment:
1. Where the debtor-mortgagor is a nonresident 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.(Riano)
2. The mortgage was executed by a third
person to secure an obligation of a
debtor,such third person not having
for
the
Rule 68
There could be
a
deficiency
judgment
Period
of
redemption
starts from the
finality of the
judgment until
order
of
confirmation
Decisions
are
appealable
EQUITY
REDEMPTION
Right
of
defendant
mortgagor
to
extinguish
the
mortgage
and
retain ownership
of the property by
paying the debt
within
90-120
days
after
the
entry of judgment
or even after the
foreclosure
sale
but
prior
to
confirmation.
EXTRA-JUDICIAL
FORECLOSURE
No
court
intervention
is
necessary
Right
of
redemption exists
Governed
by
Act
Period is 90-120
days after entry of
judgment or even
after
the
3135
No
deficiency
judgment because
there is no judicial
hearing
but
recovery
of
deficiency
is
allowed
Period to redeem
starts from the
date of registration
of certificate of sale
Period is 1 year
from
date
of
foreclosure
sale
but
prior
to
confirmation
Governed by Rule
68
registration
of
certificate of sale.
Governed by Secs.
29-31 of Rule 39
RULE 69
PARTITION
PARTITION
The process whereby the co-ownership over
real property is terminated by vesting in
each of the co-owners a specific property or
allotment of the proceeds or value of the
property (Riguera 2013)
Who may file complaint; Who should be
made Defendants
Parties
All co-owners are indispensableparties.
Creditors
or
assignees of
co-owners
may intervene and object to a partition
effected without their concurrence. But
they cannot impugn a partition already
executed.
Unless:
1. There has been fraud; or
2. In case it was made notwithstanding
aformal opposition presented to prevent it.
However, this right to intervene is not
absolute and intervenor must show a
legitimate and proper interest in the subject
property. (De Borja v. Lugo, G.R. No. L-45297,
July 16, 1937)
Non-Inclusion of a Co-Owner
1. Before Judgment - Not a ground for
motion to dismiss; remedy is to file a
motion to include the party.
2. After Judgment - Judgment is void
because co-owners are indispensable
parties.
MATTERS
TO
ALLEGE
COMPLAINT FOR PARTITION
IN
THE
Contents of a Complaint:
1. NATURE AND EXTENT of his title;
2. ADEQUATE DESCRIPTION of the real
estate of which partition is demanded; and
other
AND
RULE 70
FORCIBLE ENTRY AND UNLAWFUL
DETAINER
FORCIBLE ENTRY
A summary proceeding for the recovery of
possession by a person who has been
deprived of possession of any land or
building by (FITSS) force, intimidation,
threat, strategy or stealth.
UNLAWFUL DETAINER
The summary proceeding for the recovery of
possession
against
a
person whose
possession was initially lawful but which
later on became unlawful by virtue of
the expiration or termination of the right
to hold possession by virtue of an express
or implied contract or because of the lessees
failure to pay or comply with the conditions
of the lease.
Q: Petitioner and respondent lived in a house
in the expense of respondent while the lot is
registered at the name of the former. They
executed a contract of lease, MOA and special
power of attorney. When their relationship
became sour after 16 years of living together,
respondent filed a complaint for unlawful
detainer against the petitioner when the latter
does not vacate the property despite
demands. Can the respondent eject the
of
UNLAWFUL
DETAINER
Possession
of
land is unlawful
from
the
beginning due to
force,
intimidation,
threat,
strategy
or stealth (FITSS)
No requirement of
previous demand
for defendant to
vacate
the
premises
Plaintiff
must
prove that he was
in prior physical
possession until
he was deprived
thereof by the
defendant
1-year
period
counted
from
date of actual
entry or when
plaintiff learned
thereof.
property
defendant
is
inceptively lawful
but
become
illegal by reason
of termination of
right
of
possession.
Demand
is
jurisdictional
1-year
period
from date of last
demand
ACCION
PUBLICIA
ACCION
REINVINDI
AL
Summary
action
for
the
recovery of
physical
possession
where the
dispossessi
on has not
lasted
for
more than
1 year
All cases of
forcible
entry and
unlawful
detainer,
irrespective
of
the
amount of
damages or
unpaid
rentals
sought
to
be
recovered
should be
brought to
the MTC.
NA
A
plenary
action
for
the
recovery of
the
real
right
of
possession
when
the
dispossessi
on
has
lasted
for
more than
1 year.
RTC
has
jurisdiction
if the value
of
the
property
exceeds
P20,000 or
P50,000 in
Metro
Manila.
MTC
has
jurisdiction
if the value
of
the
property
does
not
exceed the
above
amounts.
CATORIA
An
action
for
the
recovery of
ownership,
which
necessarily
includes
the
recovery of
possession.
RTC
has
jurisdictio
n if the
value
of
the
property
exceeds
P20,000 or
P50,000 in
Metro
Manila.
MTC
has
jurisdictio
n if the
value of
the
property
does not
exceed the
above
amounts.
When
the
defendant
raises
the
issue of ownership in his pleadings and
the question of possession cannot be
resolved without deciding the issue of
ownership, the latter issue shall be
resolved
only
to
determine
the
issue of possession.
NOTE: A forcible entry/unlawful detainer
action has an entirely different subject
matter from that of an action for
reconveyance.
The
former
involves
material possession, and the latter,
ownership. Thus, the pendency of an
action for reconveyance does not divest
the MTC of its jurisdiction over an action
for FE/UD, nor will it preclude execution
of judgment in the ejectment case where
the only issue involved is material
possession.
Section 1: Who may institute the
action and when; against whom the
action may be maintained
1.
The action of forcible entry and
detainer may be maintained only against
one in possessionat the commencement of
the action;
2. Tenant with right of possession may
bringaction against another tenant;
3. Vendor may bring action for ejectment
against vendee upon failure to pay the
installments;
3. Forcible entry and unlawful detainer lie
evenagainst the very owner of property.
NOTE: Amount of rents and damages
claimed does not affect the jurisdiction of
the municipal court because they are
only incidental or accessory to the main
action (Lao Seng Hian v. Lopez, G.R. No.
L-1950, May 16, 1949).
But if only rents or damages are claimed
in an ordinary action, the action is
personal
and
the
amount
claimed
determines whether it falls within the
jurisdiction of RTC or MTC.
Section 4: Pleadings Allowed.
1. Complaint
2. Compulsory counterclaims
3. Cross-claim
4. Answer thereto
Section 5: Action on the complaint
Dismiss case outright if any ground for
dismissal of civil action is apparent therein
or issue summons if no ground for dismissal
is found.
WHEN DEMAND IS NECESSARY
When prior demand in unlawful detainer
actions not required:
a. When purpose of action is to terminate
lease because expiry of term and not
because of failure to pay rental or to
comply with terms of lease contract;
b. Purpose of suit is not for ejectment but
for enforcement of terms of contract; and
c. When defendant is not a tenant but a
mere intruder.
In all other cases, there must be a
demand:
1. To pay or to comply with the conditions of
the lease; and
2. To vacate by written notice on the person
in the premises or by posting such notice on
thepremises if no person is found thereon
and this is a condition precedent to the filing
of the case; ORAL demand is not permitted.
If demand is in the alternative (pay OR
vacate), this is NOT the demand
contemplated by the Rules.
Section 13: Prohibitefd Pleadings and
Motions.
the
Exception:
When the following concur:
1. The defendant perfects an appeal;
2. Defendant
files
a
sufficient
supersedeasbond, to pay the rents,
damages and cost accruing down to
RULE 71
CONTEMPT
CONTEMPT
The disobedience to the court by acting
in opposition to its authority, justice and
dignity.
KINDS OF CONTEMPT
According to Manner of commission
1. DIRECT CONTEMPT is misbehavior in
the presence of or so near a court as to
obstructor interrupt the court proceeding.
2.
INDIRECT CONTEMPT is one not
committed in the presence of the court. It is
an act done at adistance which tends to
belittle, degrade, obstruct or embarrass the
court and justice.
According to their Nature:
1.
CRIMINAL
CONTEMPT conduct
directed against the authority and dignity of
the courtor a judge. It is obstruction of
the administration of justice which tends to
bring the court to disrespect.
2. CIVIL CONTEMPT the failure to do
somethingordered by the court to be done
for thebenefit of the opposing party.
Functions of Contempt
1. Vindication of public interest by
punishment of contemptuous court
2. Coercion to compel the contempt or to do
what the law requires him to uphold the
power of the court and to secure rights of
the parties to a suit awarded by the court.
Purpose of Contempt
The reason behind this power to punish for
contempt is that respect of the courts
guarantees the stability of their institution
(Riguera 2013,citing Jaime R. Nuevas,
Remedial Law Reviewer 321 [1964]).
Acts
constituting
Direct
Contempt
(contempt in facie curiae)
1. Misbehavior in the presence or so near
the court as to obstruct or interrupt
the proceedings before the same;
2. Disrespect toward the court;
3. Offensive personalities towards others;
the
dignity
Purpose:
To vindicate authority of the court and
protect its outraged dignity.
If accused is acquitted, there can be no
appeal.
Civil Contempt
Failure to do something ordered by the
court for the benefit of a party.
Purpose:
To protect and enforce civil rights and
remedies of the litigants.
If judgment is for respondent, there can be
an appeal.
Remedy against Direct Contempt
Petition for Certiorari or Prohibition
directed against the court which
adjudge him in direct contempt.
Remedy
against
Indirect
ContemptAppeal (Notice of Appeal) from
judgment or final order in the same
manner as in criminal cases. The appeal
shall not stay the judgment, unless the
offender files a bond in an amount fixed
by the court from which the appeal is
taken.
Section 4: How Contempt Proceedings
are Commenced:
1. By order or other formal charge by
the court requiring the respondent
to show cause whyhe should not
be punished for contempt (motu
proprio); or
2. By a verified petition with
supporting
particulars
and
certified
true
copies
of
thenecessary
documents
and
papers (independent action.
ACTS
DEEMED
PUNISHABLE
AS
INDIRECT CONTEMPT
1. Misbehavior of an Officer of the
court in theperformance of his
official duties or in his official
transactions.
2. Disobedience of or a resistance to
a lawfulwrit, process, order, or
judgment of the court, including
the act of a person who after being
3.
4.
5.
6.
7.
The
persons,
entities,
bodies
or
agencies
exercising
quasi-judicial
functions does not have the power to
contempt. Contempt power is essentially
of a judicial nature (Negros Oriental ll
Electric
Cooperative
v.
Sangguniang
Panlunsod of Dumaguete G.R. No. 72492,
5 Nov 1987)
EVIDENCE
RULE 128
GENERAL PRINCIPLES
Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding, the
truth respecting a matter of fact (Sec. 1, Rule 128).
Component Elements
a. Evidence as a means of ascertainment -refer to (a) the evidentiary fact; or, (b) the
manner of bringing this fact forward before the tribunal; or, (c) both.
b. Sanctioned by these rules
-means allowed under these rules or more accurately NOT excluded by these rules. The
rules can only refer to the rules on relevancy and admission.
c. In a JUDICIAL PROCEEDING.
d. The truth respecting a matter of fact -refers to an issue of fact and is both substantive
(determines what facts need to be established) and procedural (the manner of proving
these facts or acts) (Herrera).
The Rules of Evidence determine the following:
4. The relevancy of facts
5. The proof of facts
6. The production of proof of relevant facts
APPLICABILITY OF THE RULES
ON EVIDENCE
General Rule:
The rules of evidence, being partsof the Rules of
Court, apply only to judicial proceedings (Sec. 1, Rule 128).
Exception: When the law specifically providesotherwise such as Section 4, Rule 1, 1997 Rules
of Civil Procedure on non-applicability of the Rules of Court.
Instances where rules of evidence DO NOT apply to judicial proceedings:
1. In a civil case covered by the Rule on Summary Procedure since there is no trial;
2. Rules on Summary Procedure in criminal cases, where the witnesses admit their
affidavits and counter-affidavits, subject only. to cross-examination;
3. Agrarian cases;
4. Rules regarding the testimony of witnesses from examinations, etc., in cases under the
MTC (where the parties merely submit theirposition papers and their witnesses affidavits
and counter-affidavits
SCOPE OF THE RULES ON EVIDENCE
(Sec. 2)
General Rule: The rules of evidence shall be thesame in all courts and in all trials and
hearings (Principle of Uniformity).
CRIMINAL CASES
Guilt of the accused
has to be proven
beyond
reasonable
doubt
Offer of compromise
by the accused may
be
received
in
evidence
as
an
implied admission of
guilt except those
involving
quasioffenses
Accused enjoys the
constitutional
presumption
of
innocence
PROOF
Result or effect of
evidence
The effect when the
requisite quantum of
evidence
of
a
particular fact has
been duly admitted
and given weight
The facts which are
to be proven
CIVIL CASES
CRIMINAL
CASES
The
factum
probandum refers to
the elements of a
plaintiffs cause of
action
and
the
elements
of
the
defense from the
standpoint of the
defendant.
The
factum
probandum
includes all matters
that
the
prosecution
must
prove
beyond
reasonable doubt in
order to justify a
conclusion.
After the presentation of the testimonial evidence, the prosecutor made a formal offer of
evidence which included the documents signed by Edmond.
Edmonds lawyer object to the admissibility of the document for being the fruit of the poisoned
tree. Resolve the objection with reasons. (Bar 2009)
A: The objection to the admissibility of the documents which the arresting officer asked
Edmond to sign without the benefit of counsel, is well-taken. Said documents having been
signed by the accused while under custodial investigation imply and admission without the
benefit of counsel, that the shabu came from him and that the P3,000,00 was received by him
pursuant to the illegal selling of the drugs. Thus, it was obtained by the arresting officer in
clear violation of sec. 12 (3), Art. III of the 1987 Constitution, particularly the right to be
assisted by counsel during custodial investigation. Moreover, the objection to the admissibility
of the evidence was timely made, i.e., whe the same is formally offered.
Moreover, the objection to the admissibility of the evidence was timely made, i.e., when the
same is formally offered.
ADMISSIBILITY OF
EVIDENCE
Refers
to
the
question of whether
certain
pieces
of
evidence are to be
considered at all
The admissibility of
the
evidence
depends
on
its
relevance
and
competence.
WEIGHT OF
EVIDENCE
Refers
to
the
question of whether
the
admitted
evidence proves an
issue
It has to do with the
effect of evidence
admitted and its
tendency to convince
and persuade.
Q: Policemen brought Lorenzo to the Philippine General Hospital (PGH) and requested one of its
surgeons to immediately perform surgery on him to retrieve a packet of 10 grams of shabu
which they alleged to have swallowed Lorenzo.
Suppose the PGH agreed to, and did perform the surgery is the package of shabu admissible in
evidence? Explain. (Bar 2010)
A: No, the package of shabu extracted from the body of Lorenzo is not admissible in evidence
because it was obtained through surgery which connotes forcible invasion into the body of
Lorenzo without his consent and absent due process. The act of the policemen and the PGH
surgeoninvolved,violate the fundamental rights of Lorenzo, the suspect.
RELEVANCE OF EVIDENCE AND
COLLATERAL MATTERS
(Sec. 4)
should be no bad faith on the part of the proponent which appears necessary to avoid
unfair surprises to the other party (Regalado).
3. CURATIVE ADMISSIBILITY
Allows a party to introduce otherwise inadmissible evidence to answer the opposing
partys previous introduction of inadmissible evidence if it would remove any unfair
prejudice caused by the admission of the earlier inadmissible evidence. Conversely, the
doctrine should not be invoked where evidence was properly admitted.
What Determines
the Rule on Curative Admissibility:
a. Whether the incompetent evidence is seasonably objected to;
b. Whether regardless of the objections, the admission of such evidence will cause a plain
and unfair prejudice to the party against whom it was admitted.
The admissibility of evidence is determined at the time it is offered to the court (Sec. 35, Rule
132). Object or real evidence is offered to the court when the same is presented for its view or
evaluation, or when the party rests his case and the real evidence consists of objects exhibited
in court. Testimonial evidence is offered by the calling of the witness to the stand.
Documentary evidence is formally offered by the proponent immediately before he rests his
case (Regalado).
CLASSIFICATION OF EVIDENCE
A. Depending on its ABILITY TO ESTABLISH THE FACT in dispute:
1. DIRECT EVIDENCE that which provesthe fact in dispute without the aid of
any inference or presumption.
2. CIRCUMSTANTIAL EVIDENCE proof offact or facts from which, taken either
singly or collectively, the existence of the particular fact in dispute may be
inferred as a necessary or probable consequence. (Sec. 5, Rule 133)
B. Depending on its WEIGHT AND ACCEPTABILITY:
1. PRIMARY OR BEST EVIDENCE that whichthe law regards as affording the
greatest certainty of the fact in question.
2. SECONDARY OR SUBSTITUTIONARY thatwhich is necessarily inferior to
primary evidence and shows on its face that better evidence exists. It is
permitted by law only when best evidence is not available.
C. Depending on its FORM:
1. OBJECT EVIDENCE (REAL or PHYSICAL
That which is addressed to the senses of the court, and when relevant to the fact
in issue, may be exhibited to, examined or viewed for the personal observation of
the judge. It is also called autopticproference.
2. DOCUMENTARY EVIDENCE
or
Judicial notice is based on considerations of expediency and convenience (Regalado, 2008). The
function of judicial notice is to abbreviate litigation by the admission of matters that need no
evidence because judicial notice is a substitute for formal proof of a matter by evidence
(Evidence [The Bar Lectures Series], Riano, 2009).
NOTE:
Judicial notice takes the place of proof andis of equal force. It displaces evidence and fulfills the
purpose for which the evidence is designed to fulfill. Hence, it makes evidence unnecessary
(Moran, Comments on the Rules of Court, 1980).
JUDICIAL NOTICE, WHEN MANDATORY
(Sec. 1, Rule 129)
Matters subject to MANDATORY Judicial Notice (SOFT GL2AMP2)
a. Territorial extent of states;
b. Political history of states;
c. Forms of government of states;
d. Symbols of nationality;
e. Law of nations;
f.
Admiralty and maritime courts of the worldand their seals;
g. Political constitution and history of thePhilippines;
h. Official acts of the legislative, executive andjudicial departments of the Philippines;
i. Laws of nature;
j. Measure of time; and
k. Geographical divisions
NOTE:
When the matter is subject tomandatory judicial notice, no motion or hearing is necessary for
the court to take judicial notice of a fact as this is a matter which a court ought to take judicial
notice of.
Judicial Notice fulfills the objective which theevidence intends to achieve. It is not equivalent to
judicial knowledge or that which is based on the personal knowledge of the court; rather, it is
the cognizance of common knowledge.
Matter considered as common knowledgeThey are those matters coming to the knowledge of men generally in the course of ordinary
experiences of life, or they may be matters which are generally accepted by mankind as true
and are capable of ready and unquestioned demonstration.
Judicial Knowledge
It is the cognizance of certain factswhich a judge under rules of legal procedure or otherwise
may properly take or act upon without proof because they are already known to him, or is
assumed to have, by virtue of his office.
JUDICIAL NOTICE, WHEN
DISCRETIONARY
(Sec. 2, Rule 129)
Matters Subject to DISCRETIONARY Judicial Notice:
1. Matters of public knowledge -- A fact is said to be generally recognized or known when
its existence or operation is accepted by the public without qualification or contention
(Francisco).
2. Matters capable of unquestionable demonstration -- pertains to fields of professional
and scientific knowledge; and
3. Matters ought to be known to judges because of their judicial functions i.e. facts which
are ascertainable from the record of court proceedings, such as when court notices were
received by a party.
NOTE:
Judicial notice under Sec. 2 of Rule 129rests on the wisdom and discretion of the court. The
power to take judicial notice must be exercised with caution and care must be taken that the
requisite notoriety exists. Any reasonable doubt on the matter sought to be judicially noticed
must be resolved against the taking of judicial notice (State Prosecutors v. Muro, 236SCRA 505).
General Rule:
The Court is NOT authorized totake judicial notice of the contents of the record of other cases
in the adjudication of cases pending before it even if said cases have been heard or are pending
before such Court.
Exceptions:
Courts may take judicial notice of therecord of other cases before it when:
1. There is no objection or by agreement of the parties, in which case it may be read into
therecords or admitted as part of the record ofthe case then pending; The other
proceedings or causes of which are so closely interwoven or independent;
2. Where the interests of the public in ascertaining the truth are of paramount
importance; or
3. In cases seeking to determine what is reasonable exercise of discretion or whether or
not a previous ruling is applicable in a case under consideration (Francisco on
Evidence).
The exceptions are applicable only when in the absence of objections, with the knowledge of
the opposing party, or at the request or with the consent of the parties.The case is
withdrawnfrom the archives and admitted as part of the record then pending.
JUDICIAL NOTICE, WHEN HEARING IS
NECESSARY
(Sec. 3, Rule 129)
A hearing may be necessary, not for the presentation of evidence, but to afford the parties
reasonable opportunity to present information relevant to the propriety of taking such judicial
notice or to the tenor of the matter to be noticed (Herrera on Evidence).
EXTRAJUDICIAL
ADMISSION
One made out of
court or in a
judicial proceeding
other than the one
under
consideration.
As a rule, it is
conclusive.
and
does
require proof.
not
2. Law of Nations the law of nations which is the subject of judicial notice is the law
which regulates the relations of the dominant powers of the earth. It is the compilation
of rules which by common consent of mankind have been acquiesced in as law.
When foreign law refers to the law of nations, such law is subject to a mandatory
judicial notice under Sec. 1 of 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, Constitution
of the Philippines).
Being parts of the law of the land, they are therefore technically in the nature of local
laws, hence are subject to mandatory judicial notice.
3. Judicial Notice of Municipal Ordinances
Municipal trial courts are required to take judicial notice of the ordinances of the
municipality or city wherein they sit. However, in the case of Regional Trial Courts, they
must take judicial notice only:
a. When required to do so by statute, e.g., in Manila as required by the city charter
(City ofManila v. Garcia, et al., L-26053, 21 Feb. 1967); and
b. In a case on appeal before them and wherein the inferior court took judicial
notice of an ordinance involved in said case (U.S. v.Fernandez, 31 Phil. 342).
RULE 130
RULES OF ADMISSIBILITY
OBJECT (REAL) EVIDENCE
(Sec. 1, Rule 130)
Nature of Object Evidence
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.
Rationale on Admissibility of Object Evidence
The evidence of ones own senses furnishes the strongest probability and 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.
Requisites
a. The
b. The
c. The
d. The
Exceptions:
1. As long as one of the chain testifies and his testimony negates the possibility of
tampering and that the integrity of the evidence is preserved, his testimony alone is
adequate to prove the chain of custody.
2. Where evidence is possessed jointly by two people, it is not necessary for both to testify
as to the chain of custody.
Instances when exhibition maybe dispensed with:
a. Where the presentation is violative of decency.
b. Where the presentation has no purpose other than to arouse the passion of the court
towards the party against whom it is offered in evidence.
c. When the object is repulsive or offensive to the sensibilities.
d. Where, in the discretion of the court, the production of evidence will cause great
inconvenience, or where, for other reasons, it is unjust.
Q: Discuss the "chain of custody" principle with respect to evidence seized under R.A. 9165 or
the Comprehensive Dangerous Drugs Act of 2002. (Bar 2012)
A: In prosecutions involving narcotics and other illegal substances, the substance itself
constitutes part of the corpus delicti of the offense and the fact of its existence is vital to
sustain a judgment of conviction beyond reasonable doubt. The chain of custody requirement is
essential to ensure that doubtsregarding the identity of the evidence are removed through the
monitoring and tracking of the movements of the seized drugs from the accused, to the police,
to the forensic chemist, and finally to the court. (People vs. Sitco, G.R. No. 178202, May 14,
2010, Velasco, Jr. J.)
Ergo, the existence of the dangerous drug is a condition sine qua non for conviction. (People vs.
De Guzman Y Danzil, G.R. No. 186498, March 26, 2010 Nachura J.)
The failure to establish, through convincing proof, that the integrity of the seized items has
been adequately preserved through an unbroken chain of custody is enough to engender
reasonable doubt on the guilt of an accused. (People vs. De Guzman y Danzil)
Nonetheless, non-compliance with the procedure shall not render void and invalid the seizure
and custody of the drugs when:
1. such non-compliance is attended by justifiable grounds; and
2. the integrity and the evidentiary value of the seized items are properly preserved by the
apprehending team. There must be proof that these two (2) requirements were met
before such non-compliance may be said to fall within the scope of then proviso. (People
vs. Dela Cruz, G.R. No. 177222, October 29, 2008, 570 SCRA 273)
A.M. No. 06-11-5-SC RULE ON DNA
EVIDENCE
Scope
This Rule shall apply whenever DNAevidence, is offered, used, or proposed to be offered or
used as evidence in:
a. criminal actions,
b. civil actions, and
c. special proceedings (Sec.1)
DNA (deoxyribonucleic acid)
The chainof molecules found in every nucleated cell of the body. The totality of an individuals
DNA is unique for the individual, except identical twins.
DNA Evidence
The totality of the DNA profiles,results and other genetic information directly generated from
DNA testing of biological samples.
DNA Profile
Genetic information derived fromDNA testing of a biological sample obtained from a person,
which biological sample is clearly identifiable as originating from that person.
APPLICATION FOR DNA TESTING ORDER
Who May File an Application for DNA Testing Order
1. Appropriate court at its own instance
2. Any person who has a legal interest in the matter in litigation (Sec. 4, RDE)
The DNA Testing Order shall be issued upon a showing of the following:
a. A biological sample exists that is relevant to the case;
b. The biological sample: (i) was not previously subjected to the type of DNA testing now
requested; or (ii) 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 (Sec.5).
However, DNA testing may be done without the prior court orderat the behest of any
party,including law enforcement agencies, before a suit or proceeding is commenced (Sec. 4,
RDE).
An order granting the DNA testing shall be immediately
be appealable.
executory
and
shall
NOT
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)
POST-CONVICTION DNA TESTING; REMEDY
The convict or the prosecution may file a petition 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 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, RDE).
Where should the petition for habeas corpus be filed
The petition shall be filed in the court of origin as a rule. However, it may be filed either in the
CA or the Supreme Court, or with any member of said courts, which may conduct a hearing
thereon or remand the petition to the court of origin and issue the appropriate orders (Sec. 10).
ASSESSMENT OF PROBATIVE VALUE OF DNA EVIDENCE AND ADMISSIBILITY
The following shall be considered:
1. The chain of custody, including how the biological samples were collected, how they
were handled, and the possibility of contamination of the samples;
2. The DNA testing methodology;
3. The forensic DNA laboratory; and
4. The reliability of the testing result (Sec. 7,RDE).
Jurisprudential Guidelines in Assessing the Probative Value of DNA Evidence
1. How the samples were collected;
2. How they were handled;
3. The possibility of contamination of the samples, the procedure followed in analyzing the
samples, whether the proper standards and procedures were followed in conducting the
tests; and
4. The qualification of the analyst who conducted the tests (People v. Vallejo, 382SCRA
192, 2002).
RULES ON EVALUATION OF RELIABILITY OF THE DNA TESTING METHODOLOGY
The court shall consider the following:
a. Weight of matching DNA evidence or the relevance of mismatching DNA evidence;
b. The totality of the other evidence presented in the case; and
c. DNA results that exclude the putative parent from paternity shall be conclusive proof of
non-paternity. If the value of the Probability of Paternity is less than 99.9%, the results
of the DNA testing shall be considered as corroborative evidence. If the value of the
Probability of Paternity is 99.9% or higher there shall be a disputable presumption of
paternity (Sec. 9, RDE).
CONFIDENTIALITY OG THE DNA TESTING RESULTS
General rule:
DNA profiles and all results or otherinformation obtained from DNA testing shall be
confidential.
Exception:
Upon order of the court, a DNA profileand all results or other information obtained from DNA
testing shall only be released to any of the following: (PLL DO)
a. Person from whom the sample was taken;
b. Lawyers representing parties in the case oraction where the DNA evidence is offered
and presented or sought to be offered and presented;
c. Lawyers of private complainants in a criminalaction;
d. Duly authorized law enforcement agencies;and
e. Other persons as determined by the court (Sec. 11, RDE).
Where the person from whom the biological sample was taken files a written verified request to
the court that allowed the DNA testing for the disclosure of the DNA profile of the person and
all results or other information obtained from the DNA testing, the same may be disclosed to
the persons named in the written verified request (Sec. 11).
The use of DNA as object evidence did not violate the constitutional right against selfincrimination. The right against self-incrimination applies only to testimonial compulsion and
it does not apply where the evidence sought to be excluded is not an incriminating statement
but an object evidence (People v. Yatar, G.R. No. 150224, May19, 2004).
Q: In a prosecution for rape, the defense relied on Deoxyribonucleic Acid (DNA) evidence
showing that the semen found in the private part of the victim was not identical with that of
the accused. As private prosecutor, how will you dispute the veracity and accuracy of the
results of the DNA evidence? (Bar 2010)
A: As a private prosecutor, I shall try to discredit the results of the DNA test by questioning and
possibly impugning the integrity of the DNA profile by showing a flaw/error in obtaining the
biological sample obtained; the testing methodology employed; the scientific standard observed;
the forensic DNA laboratory which conducted the test; and the qualification, training and
experience of the forensic laboratory personnel who conducted the DNA testing.
Q: The Vallejo standard refers to jurisprudential norms considered by the court in assessing
the probative value of DNA evidence. (Bar 2009)
A: TRUE. In People vs. Vallejo, 382 SCRA 192 (2002), it was held that in assessing the
probative value of DNA evidence, courts should consider among other things, the following
data: how the samples were collected, how they were handled, the possibility of contamination
of the samples, whether the proper standards and procedures were followed in conducting the
test and the qualification of the analyst who conducted tests.
DOCUMENTARY EVIDENCE
(Sec. 2, Rule 130)
Documents as evidence are:
1. Writings, or
2. Any material containing modes of written expressions including letters, words,
numbers, figures, or symbols offered as proof of their contents.
When a document is considered as real or object evidence
If a document is offered for the purpose establishing its existence, execution, circumstances
surrounding its execution or the condition of the document itself and NOT as proof of their
contents, the same is considered as object or real evidence which the court may view for such
purpose.
Documents are object (real) evidence if the purpose is to prove their existence or condition, or
the nature of the handwritings thereon, or to determine the age of the paper used, or the
blemishes or alterations thereon, as where falsification is alleged. Otherwise, they are
considered documentary evidence, i.e., if the purpose is to establish the contents or tenor
thereof (Regalado).
REQUISITES OF ADMISSIBILITY OF DOCUMENTARY EVIDENCE
a. The document must be relevant;
b. The evidence must be authenticated;
c. The document must be authenticated by a competent witness; and
d. The document must be formally offered in evidence.
BEST EVIDENCE RULE
General rule
When the subject of inquiry is thecontents of a document, no evidence shall be admissible
other than the original document itself. It operates as a rule of exclusion in that secondary
evidence cannot inceptively be introduced as the original writing itself must be produced in
court, except in the four instances mentioned.
Rationale
The copy of the original is notas reliable as the latter because of possible inaccuracies in the
process of copying and the danger of erroneous transmission of the original.
Exceptions
1. When the original has been lost, or destroyed, or cannot be produced in court, without
bad faith on the part of the offeror;
2. 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;
3. 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
4. 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)
Limitations to the Rule:
a. Proof of collateral facts is not within the coverage of the best evidence rule;
b. The document is not necessarily the best evidence even if a fact in issue is evidenced by
the same;
c. The rule has no application to prove a fact which existence is proven independently of
any writing;
d. The rule applies only to documentary evidence and not to object evidence.
The subject of inquiry under the best evidence rule is the contents of writing, NOT the truth
thereof.
Where the transactions have been recorded in writing but the contents of such writing are not
the subject of the inquiry, the best evidence rule does not apply. Affidavits and depositions
are considered as not being the best evidenced, hence not admissible if the affiants or
deponents are available as witnesses (4 Martin, op. cit., p. 82). However, if the issue is the
existence and/or contents of said documents, then they are considered primary evidence, but
any recitation therein of the contents of another document would merely be secondary evidence
of the latter (Regalado).
Waiver of the Rule
The Best Evidence Rule may be WAIVED if not raised in the trial as when secondary evidence is
offered and no objection was made by the adverse party.
ORIGINAL OF DOCUMENT (Sec. 4, Rule 130)
What are Considered Original Documents
1. The original of a document is one the contents of which are the subject of inquiry.
2. 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.
3. 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.
Is the photocopy of marked bills admissible in evidence?
The photocopy of the bills being object evidence is admissible in evidence without violation of
the best evidence rule. The rule applies only to documentary evidence and not to object
evidence.
Requisite for admission of secondary evidence
In order that such secondary evidence may be admissible, there must be proof by
satisfactoryevidence of:
a. Due execution of the original;
b. Loss, destruction or unavailability of all such originals; and
c. Reasonable diligence and good faith in the search for or attempt to produce the original
(Zaldivar v. Mun. of Talisay, 18 Phil. 262).
The loss, destruction or unavailability of the document should not be due to the offerors bad
faith (Sec. 5, Rule 130).
The due execution of the document should be proved through the testimony of either:
a. The person/s who executed it;
b. The person before whom its execution was acknowledged; or
c. Any person who was present and saw it executed and delivered or who thereafter saw it
and recognized the signatures, or one to whom the parties thereto had previously
confessed the execution thereof (Director ofLands, et al. v. CA, et al., L-29575, 30 April
1971).
If the document is in the custody or under the control of the adverse party, he must have
reasonable notice to produce it. If after such notice and after satisfactory proof of its existence,
he fails to produce the document, secondary evidence may be presented as in the case of its
loss (Sec. 6, Rule 130).
A party who calls for the production of a document and inspects the same is not obliged to
offer it as evidence (Sec. 8, Rule 130).
No particular form of notice is required, as long as it fairly apprises the other party as to what
papers are desired (4 Martin, op. cit., pp. 94-95). Even oral demand in open court for such
production at a reasonable time thereafter will suffice. Such notice must, however, be given to
the adverse party, or his attorney, even if the document is in the actual possession of a third
person (Regalado).
RULE 130
The production of
the
original
document
is
procured by mere
notice
to
the
adverse party and
the requirements of
such notice must be
complied with as a
condition precedent
for the subsequent
introduction
of
secondary evidence
by the proponent.
Generally,
it
presupposes
that
the document to be
produced
is
intended
as
evidence for the
proponent who is
presumed to have
knowledge of its
contents, secondary
evidence
thereof
being available in
case of its nonproduction.
RULE 27
The production of
the document is in
the nature of a
mode of discovery
and can be sought
only
by
proper
motion in the trial
court,
but
is
permitted only upon
good cause shown.
This
rule
contemplates
the
situation
wherein
the document is
either assumed to
be favorable to the
party
in
the
possession thereof
or that the party
seeking
its
production is not
sufficiently
informed
of
the
contents
of
the
same. (Regalado)
Where the nature of the action is in itself a notice, as where it is for the recovery or annulment
of documents wrongfully obtained or withheld by the other party, no notice to produce said
documents is required (Warner Barnes & Co., Ltd. V. Buenaflor, et al., 36 O.G. 3290).
For the exception regarding voluminous records to apply, the following must be present:
a. The voluminous character of the records must be established; and
b. Such records must be made accessible to the adverse party so that their correctness
may be tested on cross-examination (Cia.Maritima v. Allied Free Workers Union, et al.,
L028999, 24 May 1977).
Sec. 7, Rule 130 complements as an exception to the Best Evidence Rule in correlation with
Rule 132 Secs. 24 and 27.
SEC. 7. Evidence admissible when originaldocument is a public record.
When theoriginal of a document is in the custody of a public officer or is recorded in a public
office, its contents may be proved by a certified copy issued by the public officer in custody
thereof.
A.M. No. 01-7-01-SC
RULES ON ELECTRONIC EVIDENCE
Scope
The Rules on Electronic Evidence shall apply whenever an electronic data message, is offered
or used in evidence.
Coverage
These Rules shall apply to all civil actions and proceedings, as well as quasi-judicial and
administrative cases.
An electronic document, also known interchangeably as electronic data message, based on the
definition of the Rules, does not only refer to the information itself. It also refers to the
representation of that information (Sec.1[h], Rule 2).
Electronic data message
Information generated,sent, received or stored by electronic, optical or similar means Whether
it is the information itself or its representation, for the document to be electronic, it is
important that it be received,recorded, transmitted, stored, processed, retrieved or produced
electronically.
Purposes for the Use of Electronic Documents
An electronic document may be used for any of the following purposes:
a. To establish a right;
b. To extinguish an obligation; or
c. To prove or affirm a fact (Sec.1[h], Rule 2).
Electronic documents as functional equivalent of paper-based documents
NOTE: Since, an electronic document is thefunctional equivalent of a paper-based document,
whenever a rule of evidence refers to the terms of a writing, document, record, instrument,
memorandum or any other form of writing, such term shall be deemed to include electronic
documents (Sec.1, Rule 3).
Requisites for Admissibility:
An electronic document is admissible in evidence:
a. If it complies with the rules on admissibility prescribed by the Rules of Court related
laws and;
b. Authenticated in the manner prescribed by these Rules (Sec. 2).
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).
NOTE:
If it is a private electronic documentoffered as authentic, its authenticity need to be proven by
the person introducing the document before it is admitted in evidence (Sec. 1 and 2,Rule 5,
Rules on Electronic Evidence).
An electronic evidence is the equivalent of an original document under the Best Evidence Rule
if it is a printout or readable by sight or other means, shown to reflect the data accurately. (Bar
2009) (Sec. 1, Rule 4 of A.m. No. 01-7-01-SC, re: Rules on Electronic Evidence)
MANNER
OF AUTHENTICATION OF ELECTRONIC DOCUMENTS
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; or
b. By evidence that other appropriate security procedures or devices as may be authorized
by the Supreme Court or by law for authentication of electronic documents were applied
to the document; or
c. By other evidence showing its integrity and reliability to the satisfaction of the judge
(Sec.2, Rule 5).
NOTE:
Sec. 2, Rule 5 will only apply when thedocument is a private electronic document and when the
same is offered as an authentic document.
If the electronic document is offered simply for what it is or claimed without regard to whether
or not it is authentic, Sec. 2, Rule 5 does not apply. In such case, the electronic document has
to be only identified pursuant to the suppletory application of Sec. 20, Rule 132 of the Rules of
Court stating that any private document need only be identified as that which it is claimed to
be (Evidence [The Bar Lectures Series], Riano, 2009).
Proof of Electronically Notarized Document
A document electronically notarized in accordance with the rules promulgated by the Supreme
Court shall be considered as a public document and proved as a notarial document under the
Rules of Court.
NOTE:
In case of electronically notarizeddocuments, the manner of authentication under Sec. 2, Rule
5 will not apply. When so notarized, it is transformed into a public document and is to be
proved in accordance with the Rules of Court, i.e., Sec. 30, Rule 132.
Privileged Communication
The confidential character of a privileged communication is NOT lost solely on the ground that
it is in the form of an electronic document (Sec.3, Rule 3).
NOTE: Privileged communications apply even toelectronic evidence.
ELECTRONIC SIGNATURES
Electronic signature refers to any distinctive mark, characteristic and/or sound in electronic
form, representing the identity of a person and attached to or logically associated with the
electronic data message or electronic document or any methodology or procedure employed or
adopted by a person and executed or adopted by such person with the intention of
authenticating, signing or approving an electronic data message or electronic document. For
purposes of these Rules, an electronic signature includes digital signatures (Sec. 1[j]).
An electronic signature or a digital signature authenticated in the manner prescribed
hereunder is admissible in evidence as the functional equivalent of the signature of a person
on a written document (Sec. 1, Rule 6).
Authentication of Electronic Signatures
An electronic signature may be authenticated in any of the following manner:
1. By evidence that a method or process was utilized to establish a digital signature and
verify the same;
2. By any other means provided by law; or
3. By any other means satisfactory to the judge as establishing the genuineness of the
electronic signature (Sec. 2, Rule 6).
Disputable Presumptions Relating to Electronic Signatures
Upon the authentication of an electronic signature, it shall be presumed that:
1. The electronic signature is that of the person to whom it correlates;
2. The electronic signature was affixed by that person with the intention of authenticating
or approving the electronic document to which it is related or to indicate such person's
consent to the transaction embodied therein; and
3. The methods or processes utilized to affix or verify the electronic signature operated
without error or fault (Sec. 3, Rule 6).
EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS
Factors for Assessing Evidentiary Weight
In assessing the evidentiary weight of an electronic document, the following factors may be
considered:
1. The reliability of the manner or method in which it was generated, stored or
communicated, including but not limited to input and output procedures, controls,
2.
3.
4.
5.
6.
tests and checks for accuracy and reliability of the electronic data message or
document, in the light of all the circumstances as well as any relevant agreement;
The reliability of the manner in which its originator was identified;
The integrity of the information and communication system in which it is recorded or
stored, including but not limited to the hardware and computer programs or software
used as well as programming errors;
The familiarity of the witness or the person who made the entry with the
communication and information system;
The nature and quality of the information which went into the communication and
information system upon which the electronic data message or electronic document
was based; or
Other factors which the court may consider as affecting the accuracy or integrity of the
electronic document or electronic data message (Sec. 1, Rule 7).
METHOD OF PROOF
Affidavit Evidence
All matters relating to the admissibility and evidentiary weight of an electronic document may
be established by an affidavit stating facts of direct personal knowledge of the affiant or based
on authentic records. The affidavit must affirmatively show the competence of the affiant to
testify on the matters contained therein (Sec.1, Rule 9).
Cross-examination of Deponent
The affiant shall be made to affirm the contents of the affidavit in open court and may be
cross-examined as a matter of right by the adverse party (Sec. 2, Rule 9).
BEST EVIDENCE RULE ON ELCTRONIC DOCUMENT
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).
NOTE:
The terms electronic data message andelectronic document, as defined under the
Electronic Commerce Act of 2000, do not include a facsimile transmission and cannot be
considered an electronic evidence. It is not the functional equivalent of an original under the
Best Evidence Rule and is not admissible as electronic evidence (MC Industrial Sales Corp. v.
SsangyongCorp., G.R. No. 170633, October 17, 2007).
Copies as Equivalent of 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:
The legal maxim which means that false description does not vitiate a document if the subject
is sufficiently identified. The incorrect description shall be rejected as surplusage while the
correct and complete description standing alone shall sustain the validity of the writing.
Theory of Integration of Jural Acts (Previous Acts)
Previous acts and contemporaneous transaction of the parties are deemed integrated and
merged in the written agreement which they have executed. When the parties reduced their
agreement to writing, it is presumed that they have made the writing the only repository and
memorial of the truth, and whatever it is not found in the writing must be understood to have
been waived or abandoned.
However, collateraloralagreements are notprovable by parol evidence.
Collateral Oral Agreement
A contract made prior to or contemporaneous with another agreement and if oral and NOT
inconsistent with written agreement is admissible as exception to parol evidence rule.
BEST EVIDENCE
RULE
The issue is the
contents
of
a
document.
Establishes
a
preference for the
original document
over a secondary
evidence
thereof;
contemplates
the
situation
wherein
the original writing
is
not
available
and/or there is a
dispute
as
to
whether the said
writing
is
the
original.
Precludes
the
admission
of
secondary evidence
to
prove
the
contents
of
a
writing or document
if
the
original
document
is
PAROL EVIDENCE
RULE
The
issue
is
whether or not a
party is adding or
modifying the terms
of
the
written
agreement.
It is not concerned
with the primacy of
the evidence but
presupposes
that
the
original
is
available.
Precludes
the
admission of other
evidence to prove
the terms of a
document,
other
than the contents of
the document itself
for the purpose of
available, regardless
of whether or not it
varies the contents
of the original.
It can be invoked by
any litigant to an
action whether or
not said litigant is a
party
to
the
document involved.
Applies to all forms
of writing.
It can be invoked
only by the parties
to the document
and
their
successors
in
interest.
Applies to written
agreements
(contracts)
and
wills.
RULE 131
BURDEN OF PROOF AND PRESUMPTIONS
BURDEN OF PROOF AND BURDEN OF
EVIDENCE
PROOF
The establishment of a requisite degree ofbelief in the mind of the trier of fact as to the facts
in issue; the cumulation of evidence that persuades the trier of the facts.
BURDEN OF PROOF or onus probandi
The duty ofa 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). It is based on the maxim
ei incumbit probation qui dicit, no qui negat which means he who asserts, not he who
denies, must prove. (Martin v. Court of Appeals, 205 SCRA 191)
BURDEN OF EVIDENCE
Logical necessity on a partyduring a particular time of the trial to create a prima facie case in
his favor, or to destroy thatcreated against him by presenting evidence.
BURDEN OF
PROOF
Does not shift as it
remains
throughout
the
trial with the party
upon whom it is
imposed
BURDEN OF
EVIDENCE
Shifts from party to
party
depending
upon the exigencies
of the case in the
course of the trial
(when the other
party has produced
sufficient evidence
to be entitled as a
It is on the party
who asserts the
affirmative of the
issue
at
the
beginning of the
case and continues
on him throughout
the case.
Burden
persuasion
of
matter of law to a
ruling in his favor)
The
burden
of
evidence
is
generally
determined by the
developments
of
the trial, or by the
provisions of the
substantive law or
procedural
rules
which may relieve
the
party
from
presenting evidence
on the fact alleged,
i.e. presumptions,
judicial
notice,
admissions.
Pertains
to
the
duty of a party to
go forward with the
evidence to over
throw prima facie
evidence
established against
him and passes
from party to party.
Burden of going
forward
NOTE:
In both civil and criminal cases, the BURDEN OF EVIDENCE lies on the party who asserts an
affirmative allegation.
In both civil and criminal cases, negative allegations do not have to be proved except where
such negative allegations are essential parts of the cause of action or defense in a civil case, or
are essential ingredients of the offense in a criminal case or the defenses thereto. (Regalado
citing Industrial Finance Corp. v. Tobias, GR No. L-41555)
CIVIL
CASES
Generally, the
burden
of
proof is on the
party
who
would
be
defeated if no
evidence were
CRIMINAL
CASES
given on either
side
1. The burden
of proof rests`
upon
the
plaintiff, with
respect to his
complaint;
Upon
whom the
burden of
proof
rests
2.
The
defendant
bears
the
burden
of
proof if he
raises
an
affirmative
defense which
he sets up in
answer to the
plaintiffs
cause
of
action or with
respect to his
counterclaim.
The burden of
proof is with
the
prosecution by
reason of the
presumption of
innocence.
3. The burden
of proof is on
the
crossclaimant, with
respect to his
cross-claim
Degree of
proof that
satisfies
Preponderanc
e of evidence
1. To sustain
conviction
evidence
of
guilt
beyond
reasonable
doubt
2. Preliminary
Investigation
engender a
well-founded
belief of the
fact
of
the
commission of
a crime
3. Issuance of
warrant
of
arrest
evidence
of
probable
cause,
i.e.,
that there is a
reasonable
ground
to
believe
that
the
accused
has committed
an offense
Upon
whom the
burden of
evidence
rests
The plaintiff
has to prove
his affirmative
allegations in
the complaint.
The
defendant
has to prove
the affirmative
allegations in
his
counterclaims
and
his
affirmative
defenses.
4. To warrant
the filing of
an
information
prima
facie
evidence
The
prosecution
has to prove
its affirmative
allegations in
the
information
regarding the
elements
of
the crime as
well as the
attendant
circumstances
.
The
defense
has to prove
its affirmative
allegations
regarding the
existence
of
justifying,
exempting
circumstances
,
absolutory
causes
or
mitigating
circumstances
.
PRESUMPTION
OF FACT
A
discretion
is
vested in a tribunal
as to the drawing
of inference.
CLASSES OF PRESUMPTION
1. Presumption of Law (praesumptiones juris)
An assumption which the law requires to be made from a set of facts; a deduction which
the law expressly directs to be made from particular facts.
2. Presumption of Facts (praesumptioneshominis)
An assumption is made from thefacts without any direction or positive requirement of a
law; a deduction which reason draws from the facts proved without an express direction
to that effect.
CLASSES OF PRESUMTION OF LAW
1. Conclusive Presumption (absolute or juris et de jure)
One which cannot be overcomeby evidence to the contrary (Sec. 2, Rule 131).
2. Disputable Presumption (rebuttable or juristantum or prima facie)
One which issatisfactory if uncontradicted, but may be contradicted and overcome by
other evidence. (Sec. 3, Rule 131)
Effect of a Presumption
A party in whose favor the legal presumption exists may rely on and invoke such legal
presumption to establish a fact in issue. One need not introduce in evidence to prove the fact
for a presumption is prima facie proof of the fact presumed (Diesel Construction Co., Inc. v.
UPSIProperty Holdings, Inc., G.R. No. 154937, March 24, 2008).
CONCLUSIVE PRESUMPTIONS
(Presumptions juris et de jure)
(Sec. 2, Rule 131)
Conclusive Presumptions
When the presumption becomes irrebuttable upon the presentation of the evidence and any
evidence tending to rebut the presumption is not admissible. (Riano, 2013)
CLASSES OF CONCLUSIVE PRESUMTION
1. Estoppel in pais
Whenever a party has, by hisown declaration, act, or omission, intentionally and
deliberately led another to believe a particular thing is true, and to act upon such belief,
out
of
b. That a person found in possession of athing 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.
Requisites:
i.
The crime was actually committed;
ii.
The crime was committed recently;
iii.
The stolen property was found in the possession of the accused; and
iv.
The accused is unable to satisfactorily explain his possession thereof.
c. That a letter duly directed and mailed wasreceived in a regular course of the mail.
Requisites:
i.
The letter was properly addressed with postage prepaid, and
ii.
That it was actually mailed.
d. Presumptions of Death
1. Absence of seven (7) years If it is unknownwhether or not the absentee is still
alive, he is considered dead for allpurposes but not for the purpose of
succession.
2. Absence of ten (10) years The absentee shallbe considered dead for the
purpose of opening his succession only after an absence of ten (10) years. Before
the lapse of ten (10) years, he shall not be considered dead if the purpose is the
opening of his succession.
3. Absence of five (5) years In relation to theimmediately preceding number, if
the absentee disappeared after the age of seventy-five (75) years, his absence for
five (5) years is sufficient for the purpose of opening his succession in which
case, it is not necessary to wait for the lapse of 10 years
4. Absence of four (4) years A person isdeemed considered dead for all purposes
even for the purpose of the division of his estate among his heirs under certain
extraordinary circumstances after a relatively shorter time that any of the above
periods, in any of the following cases:
NOTE:
If the person is on board a vessel that was not shown who died first, and there are no
particular circumstances from which it can be inferred, the survivorship is determined from
the probabilities resulting from strength and age of the sexes.
e. That if there is a doubt, as between twoor more persons who are called to succeed each
other, as to which of them died first, whoever alleges the death of one prior to the
other, shall prove the same; in the absence of proof, they shall be considered to have
died at the same time.
Disputable Presumptions Relating to Electronic Signatures
Upon the authentication of an electronic signature, it shall be presumed that:
a. The electronic signature is that of the person to whom it correlates;
b. The electronic signature was affixed by that person with the intention of
authenticating or approving the electronic document to which it is related or to
indicate such person's consent to the transaction embodied therein; and
c. The methods or processes utilized to affix or verify the electronic signature operated
without error or fault (Sec. 3, Rule 6, Rules onElectronic Evidence).
Disputable
Presumptions Relating to Digital Signatures
Upon the authentication of a digital signature, it shall be presumed, in addition to those
mentioned above, that:
a. The information contained in a certificate is correct;
b. The digital signature was created during the operational period of a certificate;
c. No cause exists to render a certificate invalid or revocable;
d. The message associated with a digital signature has not been altered from the time it
was signed; and
e. A certificate had been issued by the certification authority indicated therein. (Sec. 3,
Rule 6, Rules on Electronic Evidence)
QUANTUM OF EVIDENCE
PROOF BEYOND REASONABLE DOUBT
It does not mean such a degree of proof as, excluding possibility of error, produces absolute
certainty. Moral certainty only is required (Sec. 2,Rule 133).
Moral Certainty
That degree of proof which produces conviction in an unprejudiced mind; a certainty that
convinces and satisfies the reason and conscience of those who are to act upon it.
Reasonable Doubt
It does not refer to any doubtor a mere possible doubt but that state of the case which, after a
comparison of all the evidence, does not lead the judge to have in mind, a moral certainty.
Rules:
a. Accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt.
Proof beyond reasonable doubt does not mean such a degree of proof, excluding
possibility of error, produces absolute certainty.
b. Moral certainty only is required, or that degree of proof which produces conviction in an
unprejudiced mind.
c. An extrajudicial confession made by an accused, shall not be sufficient ground for
conviction, unless corroborated by evidence of corpus delicti (Sec. 3, Rule 133).
Totality of circumstances test
This is used regarding the admissibility and reliability of out-of-court identification of suspects.
The following are the factors:
a. The witness opportunity to view the criminal at the time of the crime;
b. The witness degree of attention at that time;
c. The accuracy of any prior description given by the witness;
d. The level of certainty demonstrated by the witness at the identification;
e. The length of time between the crime and the identification; and
f. The suggestiveness of the identification procedure (People v. Teehankee, Jr., G.R.
Nos.111206-08, 6 Oct. 1995).
Danger Signs that the identification may be erroneous even though the method used is proper
(NOT EXHAUSTIVE):
a. The witness originally stated that he could not identify anyone;
b. The witness knew the accused before the crime but made no accusation against him
when questioned by the police;
c. A serious discrepancy exists between the witness original description and his actual
description of the accused;
d. Before identifying the accused at the trial, the witness erroneously identified some
other person;
e. Other witnesses of the crime fail to identify the accused;
f. Before trial, the witness sees the accused but fails to identify him;
g. Before the commission of the crime, the witness had limited opportunity to see the
accused;
h. The witness and the person identified are of different racial groups;
i. During his original observation of the offender, the witness was unaware that a crime
was involved;
j. A considerable time elapsed between the witness view and his identification of the
accused;
k. Several persons committed the crime; and
a. The witness failed to make a positive trial identification (People v. Pineda, G.R. No.141644,
27 May 2004 citing Patrick M. Wall, Eyewitness Identification in Criminal Cases 74).
Corpus delicti
It is the actual commission by someone of the particular crime charged.
It is a common fact made up of two things:
1. The existence of a certain act or result forming the basis of the criminal charge; and
2. The existence of a criminal agency as the cause of the act or result.
The identity of the accused is not a necessary element of the corpus delicti (16 C.J.S. 771).
The corpus delicti is proved when the evidence onrecord shows that the crime prosecuted had
been committed (People v. Santos, et al., CA-G.R. No. 3767, 8 May 1950).
There must be independent proof of the corpusdelicti. The evidence may be circumstantial
but,just the same, there should be some evidence substantiating the confession (U.S. v. De la
Cruz, 2Phil. 148).
The expression corpus delicti means that there should be some evidence apart from the
confession tending to show the commission of the crime (People v. Bantagan, et al., 54
Phil.834).
Circumstantial Evidence, when sufficient
Circumstantial evidence is sufficient for conviction if:
a. There is more than one circumstance;
b. The facts from which the inferences are derived are proven;
c. The combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt; and
d. The fact on which the inference may be legitimately rest must be established by direct
evidence. (People v. Usis, 3 Phil. 373; People v. Dino, 46 Phil. 295) An inference cannot be
based on another inference. (U.S. v. Ross, 92 P ed. 281)
In order to convict a person accused of a crime on the strength of circumstantial evidence
alone, it is incumbent upon the prosecution to present such circumstantial evidence which will
and must necessarily lead to the conclusion that the accused is guilty of the crime charged
beyond reasonable doubt, excluding all and each and every reasonable hypothesis consistent
with his innocence (People v. Tan-Choco, 76 Phil. 463).
Not only the prior and coetaneous actuations of the accused in relation to the crime but also
his acts or conduct subsequent thereto can be considered as circumstantial evidence of guilt
(Regalado).
While the motive of the accused is generally immaterial not being an element of the crime, such
motive becomes important when the evidence of the crime is purely circumstantial.
PREPONDERANCE OF EVIDENCE
By a preponderance of evidence is meant simply evidence which is of greater weight, or more
convincing, than that which is offered in opposition to it (32 C.J.S.) In civil cases, the party
having the burden of proof must establish his case by preponderance of evidence (Sec. 1,
Rule133). In simple terms, it meansgreater or superior weight of evidence
In determining where the preponderance or superior weight of evidence on the issues involved
lies, the court may consider all the facts and circumstances of the case:
l. the witnesses' manner of testifying;
m. their intelligence;
n. their means and opportunity of knowing the facts to which there are testifying;
o. the nature of the facts to which they testify;
p.
the probability or improbability of their testimony;
q. their interest or want of interest;
r. their personal credibility so far as the same may legitimately appear upon the trial;
s. the court may also consider the number of witnesses, though the preponderance is not
necessarily with the greater number.
NOTE: It is the greater weight of evidence, notnecessarily established by the greater number of
witnesses testifying to a fact but by evidence that has the most convincing force.
SUBSTANTIAL EVIDENCE
That amount of relevant evidence which a reasonable mind might accept as adequate to justify
a conclusion (Sec. 5, Rule 133).
NOTE:
In a petition for Writ ofAmparo, theparties shall establish their claims by substantial evidence
(Sec. 17, Rule on the Writ of Amparo,effective October 24, 2007).
Rules:
a. Applicable to cases filed before administrative or quasi-judicial bodies.
b. A fact may be deemed established if it is supported by substantial evidence, or that
amount of relevant evidence which a reasonable mind might accept as adequate to
justify a conclusion.
CLEAR AND CONVINCING EVIDENCE
Evidence is clear and convincing if it produces in the mind of the trier of fact a firm belief or
conviction as to allegations sought to be established.
NOTE: In his separate opinion inPurganan, thenAssociate Justice then later Chief Justice
Reynato S. Puno, proposed that a new standard which he termed clear and convincing
evidence should be used in granting bail in extradition cases. According to him, this standard
should be lowerthan proof beyond reasonable doubt but higher than preponderance of evidence
(Government of Hongkong Special Administrative Region v. Olalia, Jr., G.R. No. 153675, April 19,
2007).
Factors in the evidentiary weight of Electronic Evidence
1. Realiability of the manner in which it was generated, stored or communicated;
2. Realibility of the manner in which the originator was identified
3. Integrity of the information and communication system;
4. Familiarity of the witness or the person who made the entry with the communication
and information system;
5. Nature and quality of the information and communication system;
6. Other factors which the court may consider.
All matters relating to the admissibility and evidentiary weight of the electronic document may
be established by an affidavit stating facts of direct personal knowledge of the affiant or based
on the authentic record.
The affidavit must affirmatively show the competence of the affiant to testify on the matters
contained therein.
The affiant shall be made to affirm the contents of the affidavit in open court and may be
cross-examined as a matter of right of the adverse party.
RULE 132
AUTHENTICATION AND PROOF OF
DOCUMENTS
AUTHENTICATION
The introduction of evidence sufficient to sustain a finding that it is the writing that the
proponent of the evidence claims it to be; that which is necessary to establish the
genuineness of a document.
DOCUMENT
A deed, instrument or other duly authorized paper by which something is proved, evidenced or
set forth. (Bermejo v. Barrios, 31 SCRA 764)
NOTE:
For documents to be considered as documentary evidence, it must be offered as proof of their
contents. (Sec. 2, Rule 130). If the document is not offered for that purpose, the documents is a
mere object evidence as when the purpose is merely to prove its existence.
CLASSES OF DOCUMENTS (Sec. 19, Rule 132)
1. Public Documents
a. The written official acts, or records of the official acts of the sovereign authority,
official bodies and tribunals, and public officers, whether of the Philippines, or
of a foreign country;
b. Documents acknowledged before a notary public except last wills and
testaments;
c. Public records kept in the Philippines, of private documents required by law to
be entered therein; and
d. A document electronically notarized in accordance with the rules promulgated
by the Supreme Court (Rules onElectronic Evidence, A.M. No. 01-7-01-SC).
2. Private documents
All other writings are private.
NOTE:
The classification of documents intoofficial, public, commercial and private documents under
the Revised Penal Code is different. But when these types of documents are offered in
evidence, they fall into either public or private documents.
Under the rules of evidence, official documents are public documents (Sec. 19) and governed
by Sec. 30 while commercial and private documents would fall under private documents
except private documents required by law to be entered in public records are considered as
public documents and are subject to Sec. 27, Rule 132.
When
a.
b.
c.
PROOF OF AUTHENTICITY
PROOF OF PRIVATE DOCUMENT (Sec. 20, Rule132)
PRIVATE DOCUMENT
A document electronically notarized in accordance with the rules promulgated by the Supreme
Court shall be considered as a public document and proved as a notarial document under the
Rules of Court (Sec. 3, Rule 5, Rules onElectronic Evidence).
NOTE:
In case of electronically notarizeddocuments, the manner of authentication under Sec. 2, Rule
5 will not apply. When so notarized, it is transformed into a public document and is to be
proved in accordance with the Rules of Court, i.e., Sec. 30, Rule 132.
The probative value of public instruments depends on the kind of document that is presented
in evidence (Dupilas v. Cabacungan, 30 Phil. 354).
HOW TO EXPLAIN ALTERATION IN A DOCUMENT (Sec. 31, Rule 132)
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:
a. the alteration was made by another, without his concurrence;
b. was made with the consent of the parties affected by it;
c. was otherwise properly or innocent made; or
d. 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.
A party presenting the writing should account for the alteration when he introduces the paper
inevidence, and not endeavor to explain thealteration afterwards (Vda. De Bonifacio, et al. v.
B.L.T. Bus Co., Inc., 34 SCRA 618).
If a change is shown to have been made after the execution of the instrument, it will be
presumed to have been made by the party producing it, or with his privity and fraudulently in
so far as legal fraud attaches to a willful change of an instrument by one of the parties thereto,
and the burden is upon him to show that the alteration was not made by him, or by those
under whom he claims, or with his or their privity or consent (3 C.J.S. 992).
DOCUMENTARY EVIDENCE IN AN UNOFFICIAL LANGUAGE (Sec. 33, Rule 132)
General rule
Documents written in an unofficiallanguage shall NOT be admitted as evidence.
Exception
When the documents areaccompanied with a translation into English or Filipino.
QUALIFICATION OF A WITNESS
WITNESS
One who, being present, personallysees or perceives a thing; a beholder, spectator or
eyewitness; one who testifies to what he has seen or heard, or otherwise observed.
PROSECUTION WITNESS
A person who is not anaccused and who is called to testify relating to a criminal case.
STATE WITNESS
One of two or more personsjointly charged with the commission of a crime but who is
discharged with his consent so that he can be a witness for the state.
WITNESSES; THEIR QUALIFICATIONS (Sec. 20, Rule 130)
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 shall
NOT be a ground for disqualification unless otherwise provided by law.
QUALIFICATIONS OF A WITNESS
1. He can perceive; and in perceiving,
2. He can make known his perception to others (Sec. 20, Rule 130);
3. He must take either an oath or affirmation (Sec. 1, Rule 132); and
4. He must not possess the disqualifications imposed by the law or the rules.
NOTE:
The ability to make known the perception of the witness to the court involves two factors:
a. the ability to remember what has been perceived; and
b. the ability to communicate the remembered perception
Consider
a
oath and who has
event which he is
Evidence, 2009)
NOTE:
A
prospective
has the following
a. To
quality of
b. To
testimonial
c. To Relate
narration
d. To
Truth
sincerity.
COMPETENCE
A matter of law or
a matter of rule.
In deciding the
witness
competence,
the
court
will
not
inquire into the
trustworthiness of
a witness.
It has reference to
the
basic
qualifications of a
witness
as
his
capacity
to
perceive
and
communicate his
perceptions
to
others.
It
also
includes
the
absence of any of
the
basic
qualifications
imposed upon a
witness.
CREDIBILITY
It has nothing to
with the law or
with the rules.
It is the weight and
trustworthiness or
reliability of the
testimony.
It refers to the
believability of a
witness.
the
quality of memory
the testimonial quality of
Recognize a duty to tell the
the
testimonial
quality
of
NOTE:
The
qualifications
and
disqualifications
ofwitnesses
are
determined as of the time the witnesses
are produced for examination in court or at
the
taking
of
their
depositions
(Regalado,Florenz.
D.
Remedial
Law
Compendium Vol. II, 2008.
NOTE: Questions concerning the credibility of
awitness are best addressed to the sound
discretion of the trial court as it is in the best
position to observe his demeanor and bodily
movements.
Voir Direliterally means to speak the truth.
Voir
Dire
Examinationthe
preliminaryexamination under oath where
Requisites:
a. The mental maturity of the witness
must render him incapable of
perceiving the facts respecting which
he is examined;
b. He is incapable of relating his
perception truthfully;
c. His incompetency must occur at the
time the witness perceives the event
including his incapability to relate his
perceptions truthfully.
NOTE:
The rule on disqualification by reason
ofimmaturity must however, be construed in
relation to the Rule on Examination of a Child
Witness (A.M. No. 00-4-07-SC, Effective Dec.
15,2000).
The
requirements
then
of
a
competency as a witness are the:
a. capacity of observation,
b. capacity of recollection, and
c. capacity of communication.
child's
may
be
Requisites:
a. The marriage is valid and existing as
of the time of the offer of testimony;
b. Either spouse must be a party to the
case;
c. No consent was obtained from the
spouse-party; and
d. The controversy is not a civil case by
one spouse against the other, or a
criminal case for a crime committed
by one against the other or the
latters
direct
descendants
or
ascendants.
Exception
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 latters direct
descendants or ascendants.
NOTE:
The right to invoke this disqualification is
apersonal one and it belongs to the partyspouse. Therefore, he or she alone can claim
or waive it.
Reasons for the rule:
a. There is identity of interests between
the husband and wife.
b. If one were to testify for or against
the other, there is consequent
danger of perjury.
c. To
guard
the
security
and
confidences of private life and to
prevent domestic disunion.
d. Where there is want of domestic
tranquility, there is danger of
punishing one spouse through
hostile testimony of the other.
MARITAL
DISQUALIFICATIO
N RULE
Complete
and
absolute
disqualification.
Applies to a civil or
criminal
case
special proceeding
over the estate of a
deceased or insane
person.
subject to exception.
NOTE:
If death has closed the lips of one party,the
policy of the law is to close the lips of the
other party (Goni v. CA, GR No. L-77434,
23September 1986). This is to prevent
thetemptation to perjury.
PRIVILEGED COMMUNICATIONS
(Sec. 24, Rule 130)
PRIVILEGED COMMUNICATION RULE
A rule of law that, to protect a particular
relationship or interest, either permits a
witness to refrain from giving testimony he
otherwise could be compelled to give, or
permits someone, usually one of the
parties, to prevent the witness from
revealing certain information.
Kinds of Privileged Communications:
1. Marital Privilege Rule (Sec. 24 [a],
Rule 130)
2. Attorney-Client Privilege (Sec. 24 [b],
Rule130)
3. Physician-Patient Privilege (Sec. 24
[c], Rule130)
4. Priest/Minister-Penitent
Privilege
(Sec. 24 [d],Rule 130)
5. Privileged
Communications
to
Public Officers (Sec. 24 [e], Rule 130)
6. Editors cannot be compelled to
disclose the source of published
news (R.A. 53, asamended by R.A.
1477)
7. Trade secrets
8. Voters may not be compelled to
disclose for whom they voted;
9. Information contained in tax census
returns;
10. Bank deposits (Air Philippines v.
Penswell, Inc.G.R. No. 172835, Dec.
13, 2007)
Ceased
after
dissolution
of
marriage.
Absolute
disqualification.
MARITAL
PRIVILEGED
COMMUNICATION
(Sec. 24[a], Rule
130)
Covers confidential
communications
received by one
spouse from the
other
spouse
during
the
marriage.
It applies during
and
after
the
marriage.
Neither
spouse
need not be a party
to the action.
What is prohibited
is the examination
of one spouse to
protect
the
confidential
communication
between
the
spouses.
Lasts even after the
death of either of
the spouses.
Partial
disqualification as
it applies only to
confidential
communications
between
the
spouses.
are those
safely and
Requisites:
a. The minister or priest must be duly
ordained or consecrated by his sect
or denomination;
b. The communication was made
pursuant to a religious duty
enjoined in the course of discipline
of the sect or denomination to which
the priest or minister belongs; and
c. The
communication
covers
confession
which
must
be
penitential in character and any
advice made or given by the priest or
minister in his professional capacity.
The Privilege does
not apply when the
communication is not penitential in
character as when what is divulged is the
plan to commit a crime.
Q: For over a year, Nenita had been
estranged from her husband Walter
because of the latters suspicion that she
was having an affair with Vladimir, a
barangay kagawad who lived in nearby
Mandaluyong. Nenita lived in the meantime
with her sister in Makati. One day, the
house of Nenitas sister inexplicably burned
almost to the ground. Nenita and her sister
were caught inside the house but Nenita
survived as she fled in time, while her sister
tried to save belongings and was caught
inside when the house collapsed.
As she was running away from the burning
house, Nenita was surprised to see her
husband also running away from the scene.
Dr. Carlos, Walters psychiatrist who lived
near the burned house and whom Walter
medically consulted after the fire, also saw
Walter in the vicinity some minutes before
the fire. Coincidentally, Fr. Platino, the
parish priest who regularly hears Walters
confession and who heard it after the fire,
also encountered him not too far away from
the burned house.
apply
even
through
apositive
Implied Admission
An admission which can be inferred from
the statements, declarations and acts of a
person.
Admissions are not limited to any particular
form. They may be not only in the form of
declarations, oral or written, but they may
be implied from the conduct or acts of
parties.
Flight from justice is an admission by
conduct and circumstantial evidence of
consciousness of guilt (U.S. v. Sarikala, 37
Phil. 486). Also, evidence of attempts to
suppress evidence, as by destruction of
documentary evidence or eloignment of
witnesses, are admissible under the same
rationale.
NOTE:
The act of repairing a machine, bridge
orother facility after an injury has been
sustained therein is NOT an implied
admission of negligence by conduct. It is
merely a measure of extreme caution by
adopting additional safeguards since,
despite due care and diligence, an
unexpected accident can still occur
(Regalado).
Judicial Admission
An admission, verbal orwritten, made by a
party in the course of a judicial proceeding
in the same case. The admission may be
contradicted only by showing that it was
made through palpable mistake or that no
such admission was made (Sec. 4,
Rule129).
Extrajudicial Admission
Admission made out ofcourt or even in the
proceeding other than the one under
consideration, as found in Sec. 26 and 32.
Adoptive Admission
It is a partys reaction to astatement or
action by another person when it is
reasonable to treat the partys reaction as
an admission of something stated or
implied by the other person. A third
persons statement becomes the admission
of the party embracing or espousing it.
Adoptive admission may occur when a
party:
a. Expressly agrees to or concurs in an
oral statement made by another;
b. Hears a statement and later on
essentially repeats it;
c. Utters an acceptance or builds upon
the assertion of another;
d. Replies by way of rebuttal to some
specific points raised by another but
ignores further points which he or
she has heard the other make; or
e. Reads and signs a written statement
made by another. (Republic v.
Kendrick Development Corp.,G.R. No.
149576, Aug. 8, 2006)
It states that a party may, by his words or
Conduct, voluntarily adopt or ratify
anothers statement. Where it appears
that a party clearly and unambiguously
assented to or adopted the statements of
another, evidence of those statements is
admissible against him. (Riano,Evidence:
A Restatement for the Bar, p. 117, 2009
ed.)
It is admissible even
if
the
person
making
the
admission is alive or
is in court.
Made at any time,
even during the
trial.
It is admissible as
long
as
it
is
consistent with his
present claim or
CONFESSION
It
involves
acknowledgment of
guilt or liability.
Can be made only
by the party himself
and in some cases,
is
admissible
against
his
coaccused.
It must be express.
It is admissible even
against
third
persons.
It is an exception to
the hearsay rule.
A confession is a
specific
type
of
admission
which
refers
only
to
acknowledgment of
guilt.
DECLARATION
AGAINST
INTEREST
To be admitted, it
must be made by a
person who is either
deceased or unable
to testify.
Made before the
controversy arises.
NOTE:
This
rule
applies
only
to
extrajudicial declarations and not to
statements made in open court.
It is made against
ones pecuniary or
moral interest.
Exceptions
a. Admission by a co-partner or
agent (Sec. 29)
b. Admission by a conspirator
(Sec. 30)
c. Admission by privies (Sec.
31)
NOTE:
ADMISSION BY CONSPIRATOR
(Sec. 30, Rule 130)
CONSPIRACY
Exists when two or more personscome to an
agreement concerning the commission of a
felony and decide to commit it (Art. 8,
Revised Penal Code).
NOTE:
Once conspiracy is proven, the act of one
isthe act of all. The statement therefore of
one, may be admitted against the other coconspirators as an exception to the rule of
resinter alios acta.
Requisites
of
Admission
by
Coconspirator
a. The declaration or act be made or
done during the existence of the
conspiracy;
b. The declaration or act must relate to
the conspiracy; and
c. The conspiracy must be shown by
evidence other than the declaration
or act.
NOTE:
This
rule
applies
only
to
extrajudicialadmissions
and
not
to
testimonies at trial where the party
adversely affected has the opportunity to
cross-examine the declarant (People v.
Palijon,343 SCRA 486).
PRINCIPLE OF IMPLIED CONSPIRACY
Conspiracy
may
be
justified
by
circumstantial evidence, that is, their
community of purpose and their unity of
design
in
the
contemporaneous
or
simultaneous performance of the act of
assaulting the deceased. Although the
intent may be classified as instantaneous,
it sprung from the turn of events, thereby
uniting the criminal design of the slayer
immediately before the commission of the
3.
4.
5.
6.
7.
SPONTANEOUS
OF
SPUR-OF-THEMOMENT STATEMENTS
In one case, before the police officer
interrogated the accused, the latter had
already admitted the crime when, after
coming out of the toilet, the scene of the
crime, revealed to the guard they
encountered that they committed an act of
revenge. That spontaneous statement
elicited without any interrogation, was part
of the res gestae and, at the same time, was
a voluntary confessionof guilt. Not only did
the accused, bymeans of said statement,
waive their right to remain silent and to
counsel,
but
by
their
extrajudicial
confession, plea of guilty, testimony in court
and by not appealing the judgment of
conviction (People v. Tampus, 96 SCRA
624;People v. Dy, 158 SCRA 111).
Presumption of Voluntariness
A confession isdeemed to be voluntary and
the confessant has the burden of proving
that it was given as a result of violence,
intimidation, threat or promise of reward or
leniency.
Weight of confession
The confession constitutesan evidence of a
higher order since it is supported by strong
presumption that no person of normal mind
would deliberately and knowingly confess to
a crime.
SIMILAR ACTS AS EVIDENCE
(Sec. 34, Rule 130)
General rule
Evidence that one did or did not doa certain
thing at one time is not admissible to prove
that he did or did not do the same or
similar thing at another time.
Exceptions
Evidence of similar acts is admissiblefor
any of the following purposes:
a. Specific intent;
b. Knowledge;
c. Identity;
d. Plan;
e. System;
f. Scheme;
g. Habit;
h. Custom;
i. Usage; and the like.
NOTE:
It
is well-settled
that
evidence
is
notadmissible which shows, or tends to
show, that the accused in a criminal case
has committed a crime wholly independent
from the offense for which he is on trial. A
man may be a notorious criminal, and may
have committed many crimes and still be
innocent of the crime charged on trial
(People v. Galo, 143 SCRA 193).
UNACCEPTED OFFER
(Sec. 35,Rule 132)
UNACCEPTED OFFER
An offer in writing to pay a particular sum
of money or to deliver a written instrument
or specific property is, if rejected without
The determination of
consciousness
of impending death may come from:
a. Utterances;
b. Circumstances; and
c. Actual character and seriousness of
his wounds.
NOTE:
The
admissibility
of
anante
mortemdeclaration is not affected by the
fact that the declarant died hours or several
days after making his declaration. It is
sufficient that he believed himself in
imminent danger of death at the time of
such declaration (People v. Erica, 72 SCRA
199).
Reasons for Admissibility:
1. Necessity The declarants death
renders impossible his taking the
witness stand.
2. Trustworthiness The mind is
induced by the most powerful
consideration to speak the truth.
Effect of Absence of Consciousness of
Impending Death
Though the dying declaration is not
admissible of an impending
death,
nevertheless the same may be admitted as
part of the res gestae (Peoplev. Roca, 162
SCRA 696, 1988).
Competence as Witness
Where it was shownthat the declarant
would not have been a competent witness if
he had lived, the proferred declarations will
not be received. Accordingly, declarations
are held not to be admissible where the
evidence shows that the declarant was
insane, or incapable of understanding his
statements
by
reason
of
partial
unconsciousness, or a child who was too
young to be a competent witness.
DOCTRINE OF COMPLETENESS
The statement as offered must not be
merely part of the whole as it was
expressed by the declarant; it must be
complete as far as it goes. To be complete
does not mean that it should contain
everything that constitutes the res gestae of
the subject of his statement but should
express in full all that he intended to say as
conveying his meaning in respect of such
fact.
In a case, the SC held as inadmissible the
dying statement of a victim as a dying
declaration where the victim, after she was
asked, Apo, apo, what happened?, merely
uttered before she died, Si Paqui. The
Court observed that the answer was not
Apo, apo, who did this to you?
In other words, the deceased was cut off by
death before she could convey a complete or
sensible communication. The SC cannot
speculate
what
the
rest
of
her
communication might have been had death
not interrupted her (People v. De Joya,203
SCRA 403, Nov. 8, 1991).
Dying Declaration Favorable to Accused,
Admissible
In cases where the dying declaration was
that the victim does not know who the
offender is, that the firearm was discharged
accidentally and not purposely by the
accused, and that the accused was not the
author of the crime, said declaration was
admitted in favor of the accused.
DECLARATION AGAINST INTEREST
(Sec. 38, Rule 130)
Requisites:
a. The declarant is dead or unable to
testify,
b. It relates to a fact against the
interest of the declarant,
c. At the time he made the declaration,
the declarant was aware that the
It may be made at
any time before or
during the trial.
A
partys
admission
need
not
have
been
made against his
interest
at
the
time, though often
assumed
in
judicial opinions,
that is, enough if
it is inconsistent
with his present
claim or defense.
DECLARATION
AGAINST
INTEREST
The declarant need
not be a party to
the
action.
The
declarant must first
be accounted for as
dead, absent from
the jurisdiction or
otherwise
unavailable as a
witness.
It must have been
made ante litem
motam,
that
is
before
the
controversy.
The fact asserted in
the
declaration
must have been, at
the time it was
made,
so
far
contrary
to
the
declarants
own
interest, pecuniary
or moral that a
reasonable man in
his position would
not have made the
declaration unless
It is used only
against the party
admitting.
he believes it to be.
(Sec. 38, Rule 130)
It may be admitted
against
third
persons.
PROOF OF PEDIGREE
The pedigree of a person may be proved by:
a. The act or declaration of a relative
(Sec. 39)
b. The reputation or tradition existing
in his family (Sec. 40)
c. Entries in family bibles, or other
family books or charts, engravings
on rings, family portraits and the
like (Sec. 40) and
d. With respect to marriage, also by
common
reputation
in
the
community (Sec. 41)
ACT OR DECLARATION ABOUT
PEDIGREE
(Sec. 39, Rule 130)
PEDIGREE
The history of family descent which
istransmitted from one generation to
another, by means of both oral and written
declarations and by traditions.
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 also embraces facts of family
history intimately connected with pedigree
Requisites:
a. The actor or declarant is dead or
unable to testify;
b. That pedigree is in issue;
c. The actor or declarant is related by
birth or marriage to the person
whose pedigree is the subject of
inquiry;
d. The
relationship
between
the
declarant or actor and the subject is
shown by evidence other than such
act or declaration; and
e. That the declaration was made ante
litemmotam
or
prior
to
the
controversy.
Rule Not Applicable in Adoption
The absence ofproof of an order of adoption
by the court as provided by the statute,
cannot be substituted by parol evidence
that a child has lived with a person not his
parent, and has been treated as a child to
establish such adoption (Lazatin v. Campos,
92SCRA 250).
FAMILY REPUTATION OR TRADITION
REGARDING PEDIGREE
(Sec. 40, Rule 130)
FAMILY REPUTATION
Such declarations andstatements as have
come down from generation to generation
from deceased relatives in such a way that
even though it cannot be said or
determined which of the deceased relative
originally made them or was personally
cognizant of the facts stated therein, yet it
appears that such declarations and
statements were made as family history.
TRADITION
Knowledge, belief or practicestransmitted
orally from father to son, or from ancestors
to posterity.
Requisites:
a. There is controversy with respect to
the pedigree of any members of the
family;
b. The reputation or tradition of the
pedigree of the person concerned
existed previous to the controversy;
and
c. The witness testifying to the
reputation or tradition regarding the
ENTRIES IN THE
COURSE OF THE
BUSINESS
It is sufficient that
entrant made the
entries pursuant to
a duty be it legal,
contractual, moral
or religious.
Entrant must be
dead or unable to
testify.
ENTRIES IN
OFFICIAL
RECORDS
The entrant, if an
individual,
must
have acted pursuant
to a specific legal
duty
specifically
enjoined by law.
No
such
requirement.
Basis
The
Alabama
Rule
Standard
medicaltreatises and works are admissible
in so far as they are relevant to the issues
in a particular case.
Requisites:
a. That 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;
b. A witness, an 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.
TESTIMONY OR DEPOSITION AT A
FORMER PROCEEDINGS
(Sec. 47, Rule 130)
FORMER TESTIMONY
Testimony which has been adduced at an
earlier proceeding may be classified as an
exception to the hearsay prohibition, or it
may be considered as non-hearsay under
the theory that the requirements of the
hearsay concept have been met.
Requisites of Former Testimony:
a. The witness is dead or unable to
testify;
b. His testimony or deposition was given
in a former case or proceeding,
judicial or administrative, between the
same parties or those representing
the same interests;
c. The former case involved the same
subject as that in the present case,
although on different causes of
action;
not
generally
General rule
The character of a person is NOTadmissible
in evidence.
Exceptions
1. CRIMINAL CASES
a. Character of the accused
the prosecution maynot at
the outset prove the bad
moral character
of the
accused which is pertinent to
the moral trait involved in
EXAMINATION OF WITNESSES
(Sec, 1, Rule 132)
i.
j.
NOT be misleading;
NOT tend to degrade the reputation
of the witness;
k. NOT be repetitious;
l. NOT call for a narration.
Effect of Failure to Take Oath or
Affirmation
It is generally held that where a witness
testifies without having been sworn, the
judgment will be set aside if the error is not
discovered until after judgment (Herrera).
However, the right to have a witness sworn
may be WAIVED if the other party fails to
object to the taking of the testimony of a
witness without the administration of an
oath.
Under Section 1, Rule 71, the refusal to be
sworn in or to answer as a witness
constitutes direct contempt of court.
RIGHTS AND OBLIGATION OF A
WITNESS
(Sec. 3, Rule 132)
RIGHTS 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
interest 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 (Right AgainstSelfIncrimination);
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
BY THE WITNESS
It may be with
reference to the
offense involved in
the
same
case
wherein
he
is
charged or to an
offense wherein he
may be charged or
tried in another
case.
NOTE:
The right should be seasonably invoked
and may be waived.
The
right
against
self-incrimination
isavailable
in
criminal,
civil
or
administrative cases (Bermudez v. Castillo,
A.M. No. 714-A, 64 Phil 483).
IMMUNITY STATUTES
The witness is granted immunity from
criminal prosecution for offenses admitted
in his testimony, e.g., under Section 8, R.A.
1379, the law providing for the forfeiture of
unlawfully acquired property; and under
P.D. 749, in prosecutions for bribery and
graft.
CLASSES OF IMMUNITY STATUTES
1. Use-and-derivative-use immunity
prohibitsthe use of the witness
compelled testimony and its fruits in
any manner in connection with the
criminal prosecution of the witness.
A witness is only assured that his
particular testimony and evidence
derived from it will not be used
against him in a subsequent
prosecution.
Direct examination;
Cross-examination;
Redirect examination;
Re-cross examination.
Exceptions
1. Witness is her own counsel
(Thresher v. Bank,68 Conn. 201, 36
Atl. 38).
2. When allowed by the trial court
(People v.Davis, 6 Cal. App. 229, 91
Pac. 810).
Limitations on Direct Examination
a. Questions calling for conclusions or
opinions, except when opinion
testimony is permissible;
b. Repetitive questions;
c. Compound questions or those which
embrace more than one inquiry to
be answered; and
d. Erroneous assumptions that a
material fact in issue has been
proved or that the witness has given
a certain testimony.
CROSS-EXAMINATION; ITS PURPOSE
AND EXTENT (Sec. 6, Rule 132)
The examination of the witness by the
adverse party after said witness has given
his testimony on direct examination as to
any
matters
stated
in
the
direct
examination, or connected therewith.
Purposes
a. To bring out facts favorable to
counsels client not established by
the direct testimony.
b. To enable counsel to impeach or to
impair credibility of the witness.
General rule
A witness may be cross-examined asto any
matters stated in the direct examination or
connected therewith.
Exceptions
1. Where the witness is an unwilling or
hostile witness so declared by the
court or is an adverse party, the
cross-examination shall only be on
the
subject
matter
of
his
examination-in-chief (Sec. 12, Rule
132); and
2. Where the witness is an accused
who testifies in his own behalf
because he is subject to crossexamination on matters covered by
direct
examination
(Sec.
1[d],
Rule115).
Scope of Cross-Examination:
a. American
Rule
crossexamination must beconfined to
only matters inquired in the direct
examination.
b. English Rule a witness may be
cross-examined not only upon
matters testified to by him on direct
examination, but also on all matters
relevant to the issue.
In this jurisdiction, the English Rule is
followed
which
allows
the
crossexamination to elicit all important facts
bearing upon the issue (Sec. 6). HOWEVER,
in criminal cases, the accused may only be
examined on matters covered by direct
examination (Sec. 1[d], Rule 115).
NOTE:
When a party is cross-examined onmatters
not embraced in his direct examination,
this does not mean that a party by doing so
is making the witness his own in
accordance with Sec. 5 (Capitol Subdivision,
Inc. v. Province of Negros Occidental, 99 Phil.
633).
DOCTRINE OF INCOMPLETE TESTIMONY
General rule
When cross-examination is not andcannot
be done or completed due to causes
attributable to the party who offered the
witness, the uncompleted testimony is
rendered incompetent and should be
stricken from the record (Ortigas, Jr. v.
Lufthansa German
June 1975).
Airlines,L-28773,
30
Exception
Where
the
prosecution
witness
wasextensively cross-examined on the
material points and thereafter failed to
appear and cannot be produced despite a
warrant for his arrest.
Effect of Death or Absence of the
witness after the Direct Examination by
the proponent
1. If the witness was not crossexamined
because
of
causes
attributable to the cross-examining
party and the witness had always
made himself available for crossexamination, the direct testimony of
the witness shall remain on record
and cannot be stricken off because
the crossexaminer is deemed to have
waived his right to cross-examine
(Dela Paz v.IAC, G.R. No. 75860,
Sept. 17, 1987).
2. If the witness was partially crossexamined but died before the
completion of his cross-examination,
his testimony on direct may be
stricken out but only with respect to
the testimony not covered by the
cross-examination
(People
v.
Seeris, G.R. No. L-48883, Aug. 6,
1980).
3. The absence of a witness is not
sufficient to warrant the striking out
of his testimony for failure to appear
for further cross-examination where
the witness has already been
sufficiently cross-examined, and the
matter on which cross-examination
is sought is not in controversy
(Ibid.).
NOTE:
A party who offered the testimony of
awitness is generally bound by such partys
testimony.
Exceptions
1. When the witness is the adverse
party;
2. When the witness is a hostile
witness;
3. When the witness is an unwilling
witness; o
4. When the witness is a witness
required by law to be presented
(forced witness)
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 (Sec. 12, Rule 132).
RE-DIRECT EXAMINATION; ITS PURPOSE
AND EXTENT (Sec. 7, Rule 132)
A re-examination of the witness by the
party calling him after he has been crossexamined to explain or supplement his
answers given during cross-examination.
Questions on matters not dealt with during
the cross-examination may be allowed by
the court in its discretion.
Purpose
The principal object of re-directexamination
is to prevent injustice to the witness and
the party who has called him by affording
an opportunity to the witness to explain
the testimony given on cross-examination,
and to explain any apparent contradiction
or inconsistency in his statements, an
opportunity which is ordinarily afforded to
him during cross-examination. The redirect examination serves the purpose of
completing the answer of a witness, or of
adding a new matter which has been
omitted, or of correcting a possible
TRANSCRIPT
OF
ELECTRONIC
TESTIMONY
When examination of a witness is done
electronically, the entire proceedings,
including the questions and answers, shall
be
transcribed
by
a
stenographer,
stenotypist or other recorder authorized for
the purpose, who shall certify as correct
the transcript done by him. The transcript
should reflect the fact that the proceedings,
either in whole or in part, had been
electronically recorded (Sec. 2, Rule 10,
Rules on ElectronicEvidence).
STORAGE OF ELETCRONIC EVIDENCE
The electronic evidence and recording
thereof as well as the stenographic notes
shall form part of the record of the case.
Such transcript and recording shall be
deemed prima facie evidence of such
proceedings (Sec. 3, Rule 10, Rules
onElectronic Evidence).
RECALLING WITNESS (Sec. 9, Rule 132)
When Recall is discretionary
Where all sides inthe case have concluded
their examination of the witness, his recall
for further examination is discretionary
with the court as the interest of justice
requires.
NOTE:
The
discretion
of
a
judge
to
exercisediscretion in recalling witnesses
must rely on something more than the bare
assertion of the need to propound
additional questions is essential before the
court's discretion may rightfully be
exercised to grant or deny recall.
There must be a satisfactory showing of
some concrete, substantial ground for the
recall.
A Judge cannot strike out testimony of a
witness who did not show up under recall
especially when if the defense did not file a
motion to strike such testimony from the
d. Uneducated;
e. Ignorant of, or unaccustomed to,
court proceedings;
f. Feeble-minded;
g. Confused and agitated;
h. Terrified;
i. Timid or embarrassed while on the
stand;
j. Lacking in comprehension of
questions or slow to understand;
k. Deaf and dumb; or
l. Unable to speak or understand the
English
language
or
only
imperfectly
familiar
therewith
(People
v.
Dela
Cruz,
G.R.
No.135022, 11 July 2002).
NOTE:
Leading questions are not appropriate
indirect
and
re-direct
examinations
particularly when the witness is asked to
testify about a major element of the cause
of action or defense. However, leading
questions are allowed in a direct
examination:
a. on preliminary matters;
b. when the witness is ignorant, or a
child of tender years, or is feeble
minded, or a deaf-mute;
c. when the witness is a hostile
witness; or (d) when the witness is
an
adverse
party
or
the
representative of a juridical person
which is the adverse party. Leading
questions are allowed in cross and
re-cross examinations. (Evidence,
Riano, 2009)
Leading questions to a Child Witness
As to a child witness, Sec. 10(c), Rule 132
of the Rules of Court should be deemed
modified by Sec. 20 of the Rule on
Examination of a Child Witness. The court
may allow leading questions in ALL stages
of examination of a child if the same will
further the interests of justice (Sec. 20,
Ruleon Examination of a Child Witness).
MISLEADING QUESTION
A question which assumes as true a fact
not yet testified to by the witness, or
contrary to that which he has previously
stated.
General rule
A misleading question is NOT allowed.
Exceptions
1. When waived;
2. In instances wherein hypothetical
questions are asked to an expert
witness.
A party who voluntarily offers the
testimony of a witness in the case is bound
by the testimony of said witness, except:
1. In the case of a hostile witness;
2. When the witness is the adverse
party or the representative of a
juridical person which is the
adverse party; and
3. When the witness is not voluntarily
offered but is required by law to be
presented by the proponent, as in
the case of subscribing witnesses to
a will (Sec. 11, Rule 76).
IMPEACHMENT OF WITNESSES
To impeach a witness means to discredit
the witness testimony. Impeachment of
witness is a technique employed usually as
part of the cross-examination.
IMPEACHMENT OF ADVERSE PARTYS
WITNESS
(Sec. 11, Rule 132)
Impeachment of a witness is a technique
employed usually as part of crossexamination to discredit a witness
testimony by attacking his credibility.
(Riano, Evidence: A Restatement forthe Bar,
p. 323, 2009 ed.)
NOTE:
General rule
A party CANNOT impeach thecredibility of
his own witness.
Exceptions
A party CAN impeach his ownwitness,
when the latter is:
1. An unwilling or a hostile witness; or
2. The
adverse
party
or
the
representative of a juridical person
which is the adverse party.
NOTE:
If a witness is called on the part of
theplaintiff who swears what is palpably
false, it would be extremely hard if the
plaintiffs case should for that reason be
sacrificed. The Court knows of no rule of
law by which the truth is on such an
occasion to be shut out and justice to be
perverted. A party must not be obliged to
REVIVAL OF
PRESENT
MEMORY
Memory is obscure
but there is still
memory.
The main evidence
is testimony of the
witness.
The witness simply
testifies
that
he
knows
the
memorandum
is
correctly written by
him or under his
direction; no need
to swear.
REVIVAL OF PAST
RECOLLECTION
Recollection is zero.
COMPROMISE
An agreement made between twoor more
parties as a settlement of matters in
dispute.
Genera Rule
An offer of compromise is NOT an
admission of any liability, and is not
admissible in evidence against the offeror.
Exceptions
In
I civil cases:
1. An offer to pay or the payment of
medical, hospital or other expenses
occasioned by an injury.
2. If such offer is clearly not only to
buy peace but amounts to an
admission of guilt. (El Veraderode
Manila v. Insular Lumber Co., 46 Phil
176)
NOTE:
An offer of compromise by the
accused may be received in evidence
as an IMPLIED ADMISSION of guilt.
In CriminalCases:
1. Those
involving
quasi-offenses
(criminal negligence);
2. Those allowed by law to be
compromised;
3. A plea of guilty later withdrawn;
4. An unaccepted offer of a plea of
guilty to a lesser offense;
5. An offer to pay or the payment of
medical, hospital or other expenses
occasioned by an injury.
The court shall endeavor to persuade the
litigants in a civil case to agree upon some
fair compromise (Art. 2030, Civil Code).
Cases Where Compromise Not Valid
a. Civil status of persons;
b. Validity of a marriage or a legal
separation;
c. Any ground for legal separation;
d. Future support;
e. Jurisdiction of the courts;
f. Future legitime;
g. Habeas corpus; and
h. Election
THE GOOD SAMARITAN RULE
An offer to pay or the payment of medical,
hospital or other expenses occasioned by
an injury is NOT admissible in evidence as
proof of civil or criminal liability for the
injury.
Rationale
Such
humanitarian
acts
or
charitableresponses should be encouraged
and rewarded, instead of being discouraged
or penalized by being considered as
admissions of liability.
Q: Bembol
waschargedwith
rape.
Bembols
father,
Ramil,
approached
Artemon, the victims father, during the
preliminary investigation and offered P1
Million to Artemon to settle the case.
Artemon refused the offer.
(A) During
trial,
the
prosecution
presented Artemon to testify on
Ramils offer and thereby establish
and implied admission of guilt. Is
Ramils offer to settle admissible in
evidence?
(B) During
the
pretrial,Bembol
personally offered to settle the case
for P1 Million to the private
prosecutor, who immediately put
the offer on record in the presence
of the trial judge. Is Bembolsoffer a
judicial admission of his guilt
(Bar 2008)
A: (A) Yes, the offer to settle by the father
of the accused, is admissible in evidence as
an implied admission of guilt. (Peo v.
Salvador, GR No. 136870-72, 28 January
2003)
(B)Yes, Bembols offer is an admission of
guilt (Sec. 33 Rule 130). If it was repeated
depositions,
admissions,
affidavits and documents filed with
the
court;
documents
whose
contents are taken judicial notice of
by the court; documents whose
contents are judicially admitted; or
4. Object evidence which could not be
formally offered because they have
disappeared or have become lost
after they have been marked,
identified and testified on and
described in the record and became
the subject of cross examination of
the witness who testified on them
during the trial.
How an offer of evidence is made
When a party makes a formal offer of his
evidence, he must state the nature or
substance of the evidence, and the specific
purpose for which the evidence is offered.
Stages
in
the
Presentation
of
Documentary and Object Evidence:
1. Marking The purpose is to
facilitate theidentification of the
exhibit. It may be made during the
pre-trial or during trial.
2. Identification Presenting proof
that thedocument being presented
is the same as the one referred to by
the witness in his testimony.
3. Authentication
Positive
identification by awitness that the
document presented is genuine and
has been duly executed or that it is
neither spurious nor counterfeit,
nor executed by mistake or under
duress. (Salesvs. Sta. Mesa Market
Corp., GR 157766, July 12, 2007)
4. Inspection
In
case
of
documentaryevidence, whenever a
writing is shown to a witness, it may
NOTE:
The
defendant
cannot
offer
evidencebefore the plaintiff has rested.
his
and
Substantive
evidence.
OFFER OF
EVIDENCE
Either to the offer of
the testimony of a
witness prior to the
latters testimony or
the offer of the
documentary
and
object evidence after
a
party
has
presented
his
testimonial
OFFER OF PROOF
Process by
proponent
excluded
tenders the
which a
of an
evidence
same.
Erroneous
Admission
of
which the
admitted.
latter
shall
not
be
Show
the
circumstances
under which the witness
acquired the facts upon
which he testifies;
ii.
iii.
Identify
the
attached
documentary
and
object
evidence and establish their
authenticity in accordance
with the Rules of Court;
Examination of
judicial affidavit
Sworn attestation of the lawyer
The judicial affidavit shall contain a sworn
attestation at the end, executed by the
lawyer who conducted or supervised the
examination of the witness, to the effect
that:
a. He faithfully recorded or caused to
be recorded the questions he asked
and the corresponding answers that
the witness gave; and
b. Neither he nor any other person
then present or assisting him
coached the witness regarding the
latter's answers.
the
witness
on
his
immediately
make
its
respecting that exhibit.
ruling
Effect of non-compliance
judicial Affidavit Rule
with
the
APPLICABILITY
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 noncriminal
proceedings
involving
child
witnesses.
CHILD WITNESS
Any person who at the time of giving
testimony is below the age of eighteen (18)
years. In child abuse cases, a child includes
one over 18 years but is found by the court
as unable to fully take care of himself or
protect himself from abuse, neglect, cruelty,
exploitation, or discrimination because of a
physical or mental disability or condition
(Sec. 4).
PRESUMPTION OF COMPETENCY
NOTE:
The examination under Sec. 8 does notrefer
to the competency of the child pursuant to
Sec. 6, but to a situation where the child is
already testifying in court.
Conduct
ofCompetencyExamination
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]).
CRIMINAL PROCEDURE
GENERAL MATTERS
Criminal
Procedure
is
the
method
prescribed by law for the apprehension and
prosecution of persons accused of any
criminal offense, and for their punishment,
in case of conviction.
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 the
procedural law which provides or regulates
the steps by which one who commits a
crime is to be punished. (Bustos vs Lucero,
81 Phil 650).
Criminal Law
(Substantive)
Criminal
Procedure
(Remedial)
Defines
crimes,
treats
of
their
nature,
and
provides for their
punishment.
Provides how
Declares what acts
act
is
to
are punishable.
punished.
Jurisdiction over
the subject
matter
Derived from the
law.It can NEVER
be acquired solely
by consent of the
accused.
Objection
that
the court has no
jurisdiction
over
the subject matter
may be made at
any stage of the
the
be
Jurisdiction over
the person of the
accused
May be acquired
by consent of the
accused
or
by
waiver
of
objections.
If he fails to make
his objection on
time, he will be
deemed to have
waived it.
proceeding,
and
the right to make
such objection is
never waived.
PERSON
ADHERENCE
OF
Exceptions:
1. To afford adequate protection to the
constitutional tights of the accused
2. When necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of action
3. When the acts of the officer are without
or in excess of authority
4. When there is a prejudicial question
which is under judicial consideration
5. When the prosecution is under an
invalid law, ordinance or regulation
6. When double jeopardy is clearly
apparent
7. When the court had no jurisdiction over
the offense
8. When it is a case of persecution rather
than prosecution
9. When the charges are manifestly false
and motivated by the lust for revenge
10. When there is clearly no prima facie
case against the accused and a motion
to quash on that ground has been
denied
11. To prevent the threatened unlawful
arrest of petitioners
(Remedial Law, Vol. IV Criminal Procedure,
Oscar Herrera.
Exclusive
Original
1.
2.
3.
4.
5.
Summary
Procedure
Traffic violations
Violations of rental law
Violations of city or municipal ordinances
Violations of BP Blg.22, Bouncing Check Law
All other offenses where the penalty does not exceed 6 months
imprisonment and/or P1,000 fine, irrespective of other penalties or
civil liabilities arising therefrom, and in offenses involving damage to
property through criminal negligence where the imposable fine does
not exceed P10,000.
Exclusive
Original
Exclusive
Appellate
FAMILY COURTS
Exclusive
Original
NOTE: The Sandiganbayan will have jurisdiction in cases of public officers and private persons
in conspiracy with each other.
SANDIGANBAYAN
1. Exclusive
a. Violations of R.A. 3019, as amended (Anti-Graft and Corrupt
Practices Act), R.A. 1379, and Chapter II, Title VII, Book II of the
RPC, where ONE or MORE of the accused are officials occupying
the following positions in the Government, whether in a
permanent, acting or interim capacity, at the time of the
commission of the offense:
Original
(1)
(2)
(3)
(4)
(5)
(6)
2. Concurrent
a. With the SC: Petitions for mandamus, prohibition, certiorari,
habeas corpus, injunctions and ancillary writs in aid of its
appellate jurisdiction and over petitions of similar nature,
including quo warranto arising or that may arise in cases filed or
which may be filed under E.O. Nos. 1, 2, 14 and 14-A.
Exclusive
Appellate
1. By appeal
From the RTC in cases under P.D. 1606, as amended by P.D. 1861,
R.A. 7975 and R.A. 8294, whether or not the cases were decided by
them in the exercise of their original or appellate jurisdictions.
COURT OF APPEALS
2. Exclusive
Actions for annulment of judgments of the RTC.
Original
3. Concurrent
a. With the SC: Petitions for certiorari, prohibition and
mandamus against the RTCs.
b. With the SC and the RTC: Petitions for certiorari, prohibition
and mandamus against the lower courts.
Exclusive
Appellate
1. By appeal
From the RTC in cases commenced therein, except those appealable
to the SC or the Sandiganbayan.
2. By petition for review
From the RTC in cases appealed thereto from the lower courts
and not appealable to the Sandiganbayan.
SUPREME COURT
1. Exclusive
Petitions for certiorari, prohibition and mandamus against the CA
and the Sandiganbayan.
Original
Exclusive
Appellate
2. Concurrent
a. With the CA: Petitions for certiorari, prohibition, and mandamus
against the RTCs.
b. With the CA and RTCs: Petitions for certiorari, prohibition and
mandamus against the lower courts.
c. With the Sandiganbayan: Petitions for mandamus, prohibition,
certiorari, habeas corpus, injunctions and ancillary writs in aid
of its appellate jurisdiction and over petitions of similar nature,
including quo warranto arising or that may arise in cases filed or
which may be filed under E.O. Nos. 1, 2, 14 and 14-A.
1. By appeal
a. From the RTCs in all criminal cases involving offenses for which
the penalty is reclusion perpetua or life imprisonment, and those
involving other offenses which, although not so punished, arose
out of the same occurrence or which may have been committed
by the accused on the same occasion.
b. Automatic review in criminal cases where the death penalty is
imposed (suspended).
2. By
a.
b.
c.
Note: The SC and the CA have no original jurisdiction over criminal cases.
RULE 110
PROSECUTION OF OFFENSES
INSTITUTION OF CRIMINAL ACTION
(SEC. 1)
A criminal case is initiated depending on
whether or not the case involves preliminary
investigation.
1. For offenses where a preliminary
investigation is required (offenses
where the penalty prescribed by law
is AT LEAST 4 years, 2 months and 1
day without regard to the fine): by
filing the COMPLAINT with the
proper officer for the purpose of
conducting the requisite preliminary
investigation (subsection. [a]).
2. For ALL other offenses: (a) by filing
the COMPLAINT or INFORMATION
directly with the MTC and MCTC; or,
(b) by filing the COMPLAINT with the
office of the prosecutor.
In Manila and other chartered cities,
the complaint shall be filed with the
office of the prosecutor unless
otherwise provided in their charters
(subsection. [b]).
3. The institution of the criminal action
shall interrupt the running of the
prescriptive period of the offense
even if the court is without
jurisdiction.
WHO MAY FILE CRIMINAL ACTIONS
A COMPLAINT is a sworn written statement
charging a person with an offense,
subscribed by:
1. the offended party;
2. any peace officer; or
of
adultery
and
Suspension of arraignment;
Reinvestigation;
Prosecution by Fiscal;
Dismissal; and
Downgrading offense or dropping
accused even before plea.
*See, however,
Suspension of
exceed 60 days.
valid
complaint
or
5. The
approximate
date
commission of the offense;
6. The place
committed.
where
7. Existence
of
Circumstance.
the
of
offense
the
was
Aggravating
The
purpose
is
to
safeguard
the
constitutional right of an accused to be
informed of the nature and the cause of the
accusation against him so that he can duly
prepare his defense.
Substantial defect in the information
CANNOT be cured by evidence that would
jeopardize the accuseds right to be informed
of the true nature of the offense he is being
charged with, such as omission to allege a
negative averment which is an essential
element of the crime (People v.Asuncion, G.R.
Nos. 83837-42, April 22, 1992).
An allegation of conspiracy, or one that
would impute criminal liability to an accused
for the act of another or others, is
indispensable in order to hold such person,
regardless of the nature and extent of his
participation, equally guilty with the other or
others in the commission of the crime.
Verily, an accused must know from the
information whether he faces a criminal
responsibility not only for his acts but also
for the acts of his co-accused as well (People
v. Quitlong,G.R. No. 121562. July 10, 1998,
292 SCRA 361).
An error in the name of the defendant is not
reversible as long as his identity is
established and this defect is curable at ANY
STAGE of the proceedings. The question as
to the name of the accused should be raised
at the arraignment, not for the first time on
appeal.
DESIGNATION OF OFFENSE
(SEC. 8)
The complaint or information shall:
1. state the designation of the offense
given by the statute;
2. aver
the
acts
or
omissions
constituting the offense; and
3. specify
its
qualifying
aggravating circumstances.
and
the
5. Crimes
susceptible
of
being
committed in various modesbribery.
6. Crimes of which another offense is
an ingredient-arson, robbery and
physical injuries are absorbed by
rebellion.
When two or more offenses are charged in
a single complaint or information, and the
accused fails to object to it beforethe trial,
the court mayconvict the accused of as
many offenses as are proved, and impose
on him the penalty for each and every one
of them setting out separately the findings
of fact and law in each case. (Section
3,Rule 120.)
CONTINUING
Continuado)
CRIME
(Delito
Exception:
When a supervening fact which changes the
nature of the crime charged in the
information or upgrades it to a higher crime,
in which case, there is a need for another
arraignment of the accused under the
amended information.
Note: Only a valid information may be
amended.
Amendment
The adding, striking
out, or correction of
an
allegation
or
name of any party.
Substitution
The dismissal by
the court of the
original complaint
or information upon
filing of a new one
charging the proper
offense provided the
accused would not
be place in double
jeopardy
Either
formal
or Substantial change
substantial change
Before plea, without Requires leave of
leave of court
court
Except:
If
it
downgrades
the
nature of offense
charged or excludes
any accused from
the complaint or
information
As to form, no need
for
Preliminary
Investigation
and
retaking of plea
An
amended
information refers to
the same offense
charged
in
the
original information
or to an offense
which
necessarily
includes or in the
original
charge,
hence
substantial
judgment
has
yet
been
The
Supreme
Court,
however,
in
theexercise of the judicial power vested by
the constitution upon it and other
statutory courts, possess inherent power
and jurisdiction to decree that the trial
and de[position of the case be transferred
to another court within the same judicial
region whenever the interest of justice and
truth so demands, and thereby the court
that originally had jurisdiction over the
case would not result in a fair and
impartial trial and lead to a miscarriage of
justice (People v. Gutierrez, G.R.No. L32282-83, November 26, 1970, 36 SCRA
172).
Rule on Venues of Criminal Cases
1. Where a crime is committed abroad an
aircraft or moving vehicle, the crime
can be prosecuted in any places
traversed by the train or vehicle-public
or private- or by any aircraft, in the
course of its journey, including the
place of its departure and arrival;
2. Where the crime is committed abroad a
vessel in the course of its voyage, the
case may be filed in any place traversed
by the vessel in the course of its
voyage, but the priority is the case
should be filed in the first port of entry
in the vessel.
In the case of a crime committed aboard a
vessel, the place of departure and of
arrival of the vessel is not included.
Continuing or Transitory Offenses
In transitory or continuing offenses, some
acts material and essential to the crime
occur in one province and some in another,
in which case, the rule is settled that the
court of either province where any of the
essential elements of the crime took place
has jurisdiction to try the case (Parulanv.
Director of Prisons, G.R. No. L-28519
February 17, 1968).
DOCTRINE
OF
PRELIMINARY
JURISDICTION
Where two or more courts have concurrent
jurisdiction, the first to validly acquire it has
jurisdiction to the exclusion of the other or
the rest (Villanueva v. Ortiz, 58 O.G. 121)
INTERVENTION OF OFFENDED PARTY
(SEC. 16)
General rule:
Where the civil action for recoveryof civil
liability is instituted in the criminal action
pursuant to Rule 111, an offended party
has right to intervene by counsel in the
prosecution of the criminal action.
Exception:
1. Where from the nature of the crime
and the law defining and punishing
it, no civil liability arises in favor of
a private offended party; and
2. In case where from the nature of
the offense the offended party is
entitled to civil indemnity arising
therefrom but he has waived the
same or expressly reserved his
right to initiate a civil action or he
has already instituted said action.
The offended party, who has neither
reserved, waived, nor instituted the civil
action may intervene (Sec. 16) and such
right to intervene exists even when no civil
liability is involved, as in threats. But
where the civil interest of the principal in
the criminal case is not present, there can
be intervention by a private prosecutor and
the act of the court permitting intervention
under such circumstances constitutes
grave abuse of discretion correctable by
certiorari and prohibition (Remedial Law
Compendium, FlorenzRegalado).
Even if the felonies or delictual acts of the
civil action for the recovery of civil liability
based on said criminal acts is impliedly
instituted and the offended party has not
waived the civil action, reserved the right
to institute it separately or instituted the
civil action prior to the criminal action, the
prosecution of the action inclusive of the
civil action remains under the control and
supervision of the public prosecutor. The
prosecution of offenses is a public
Exceptions:
1. In cases of independent civil
actions (Arts. 32, 33, 34 and 2176
of the Civil Code);
2. In cases where the civil action
presents a prejudicial question;
3. Where the civil action is not one
intended to enforce the civil liability
arising from the offense;
4. In cases where the civil action is
consolidated with the criminal
action (Section 3(a), Rule 111
supra).
Consolidation
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
alreadyadduced 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 (par. 2).
The civil action that should be suspended
after the institution of the criminal action
is that one which has arisen from the
crime and not based on quasi-delict or
culpa aquiliana.
Even if the civil action is suspended, the
court wherein it is pending can issue
auxiliary
writs
therein,
such
as
preliminary injunction or attachment,
appointments of receivers and similar
processes which do not necessarily go into
the merits of the case (Remedial
LawCompendium, Florenz Regalado citing
(SECS. 6 and 7)
The doctrine of prejudicial question comes
into play generally in a situation where the
civil and criminal actions are pending and
in the former an issue must be
preemptively resolved before the criminal
action may proceed. This does not apply
where no civil, but only administrative,
case is involved.
A prejudicial question is based on a fact
distinct and separate from crime but so
intimately connected with it that it
determines the guilt andinnocence of the
accused.
A petition for suspension by reason of a
prejudicial question may be filed and
resolved in the preliminary investigation.
In the trial court, after the prosecution has
rested its case, such petition cannot be
entertained. Also, where the prosecution
has presented its evidence and the defense
is being presented, the prosecution cannot
ask for the suspension based on said
ground. Under Sec. 11(b), Rule 116, the
petition for suspension may be filed
BEFORE the arraignment, in which case
the arraignment is suspended. However,
these rules are NOT applicable where the
same act of the accused is the subject of
an administrative action and a criminal
case which are separate, distinct and
different from each other.
Elements of a prejudicial question (PID)
1. Previously instituted civil action
2. Involves an issue similar or intimately
related to the issue raised in the
subsequent criminal action
3. Resolution of such issue determines
whether or not the criminal action may
proceed.
Effect:
RULE 112
PRELIMINARY INVESTIGATION NATURE
OF RIGHT
It is an inquiry or proceeding to determine
whether there is sufficient ground to
engender a well-founded belief that a crime
has been committed and the respondent is
probably guilty thereof, and should be held
for trial(Sec. 1)
A preliminary investigation is merely
inquisitorial, but it is considered a judicial
proceeding wherein the prosecutor or
investigating officer by nature of his
functions acts as a quasi-judicial officer.
Preliminary investigation is not part of the
due process clause of the Constitution, but
is purely statutory and may be denied by
law. But if thelaw provides for preliminary
investigation and such right is claimed by
the accused, a denial thereof is a denial of
due process and prohibition will issue
against the trial court or, if a judgment of
conviction has already been rendered, on
appeal, the same shall be reversed and the
case
remanded
for
preliminary
investigation.
The right to a preliminary investigation
may be waived expressly or by silence, and
the accused alone may waive its denial
since it is a personal right.
The right to preliminary investigation is a
substantive right.
The quantum of evidence required in PI is
such evidence as suffices to "engender a
well-founded belief" as to the fact of the
commission
of
a
crime
and
the
respondent's probable guilt thereof (Sec. 1).
The other terminology used is that the
investigating prosecutor "finds cause to
hold the respondent for trial" (Sec. 4, first
OF
PROCEDURE OF PRELIMINARY
INVESTIGATION
(SEC. 3)
1. File complaint, sworn affidavits and other
supporting documents.
The affidavits shall be subscribed and
sworn to before:
RESOLUTION OF
INVESTIGATION PROSECUTOR
(SEC. 4)
If the investigating prosecutor finds cause
to hold the respondent for trial (or as
worded under Sec. 1 of this Rule, when
"there is sufficient ground to engender a
well-founded belief that a crime has
been committed and the respondent is
probably guilty thereof"), he shall prepare
the 1) resolution and 2) information.
He shall certify
information:
under
oath
in
the
the
reverse, affirm or
resolution. He may,
motion, dismiss the
any of the following
will not be
preliminary
for a motion
of Criminal
An
information
or
complaint filed in court shall be
supported by the affidavits and counteraffidavits of the parties and their
witnesses, together with the other
supporting evidence and the resolution
on the case.
INVESTIGATION
(SEC. 8)
Complaints involving offenses punishable
by imprisonment of less than 4 years, two
months and one day:
If filed with the prosecutor
File the complaint, sworn affidavits
and other supporting documents with
the prosecutor.
DistinctionofInquestandPreliminary
Investigation
Inquest is not a regular preliminary
investigation. In preliminary investigation,
the person brought in the court is not
arrested. In inquest, person arrested is
brought before the judicial authorities.
the
(SEC. 3)
It shall be the duty of the officer executing
the warrant to arrest the accused and
deliver him to the nearest police station or
jail without unnecessary delay.
EXECUTION OF WARRANT
(SEC. 4)
The head of the office to whom the warrant
of arrest was delivered for execution shall
cause the warrant to be executed within
ten (10) days from its receipt. Within ten
(10) days after the expiration of the period,
the officer to whom it was assigned for
execution shall make a report to the judge
who issued the warrant. In case of his
failure to execute the warrant, he shall
state the reasons therefor.
Modes of arrest
arrest with a warrant (Sec. 3); or
arrest without warrant (Sec. 5.)
Personal
property
stolen
or
embezzled and other proceeds, or
fruits of the offense (Sec.3[b], Rule
126);
General Rule:
No peace officer or person has thepower or
authority to arrest anyone without a
warrant except in those cases expressly
authorized by law (Umil v. Ramos, G.R.
No.81567, October 3, 1991).
of
be
WHEN LAWFUL
(SEC. 5)
Exception:
In cases of lawful warrantless
arrests: A peace officer or a private
person may, without a warrant,
arrest a person:
o
actuallycommitting,
or
is
attempting to commit an
offense (in flagrante delicto,
par. [a]);
o
Essential
arrests
requisites
of
in
flagrante
that persons
committed it.
to
be
arrested
Method of
Arrest
Arrest
by
officer
by
virtue of
a
warrant
(Sec. 7)
Exception to
the rule on
giving
information
The
officer a. when
the
shall inform
person to be
the person be
arrested
to
arrested
flees;
the cause of b. when
he
the arrest and
forcibly
the fact that
resists
the
warrant
before
the
has
been
officer has
Arrest
by
officer
without
a
warrant
(Sec. 8)
The
officer
shall inform
the person to
be arrested of
his authority
and the cause
of the arrest
w/out
a
warrant.
a. When
the
person to be
arrested is
engaged in
the
commission
of
an
offense or is
pursued
immediately
its
commission
;
b. when
he
has
escaped,
flees,
or
forcibly
resists
before
the
officer has
an
opportunity
to so inform
him; and
c. when
the
giving
of
such
information
will imperil
the arrest.
Arrest
by a
private
person
(Sec. 9)
The
private
person shall
inform
the
person to be
arrested
of
the intention
to arrest him
and
the cause of
the arrest.
NOTE: Private
person must
deliver
the
arrested
person to the
nearest police
station or jail,
otherwise, he
may be held
criminally
liable
for
illegal
detention.
a. when
the
person to be
arrested is
engaged in
the
commission
of
an
offense or is
pursued
immediately
its
commission
;
b. when
he
has
escaped,
flees,
or
forcibly
resists
before
the
officer has
an
opportunity
to so inform
him; and
c. when
the
giving
of
such
information
will imperil
the arrest.
POBABLE CAUSE
OF A FISCAL
to
fill
an
of warrant.
information
court
in
Judicial function
Executive function
BASIS:
evidence
must be sufficient
to
lead
to
a
conclusion
the
crime
has been
committed and that
the
accused
is
probably
guilty
thereof.
BASIS: reasonable
ground to believe
that a crime has
been committed.
(Remedial
Law
FlorenzRegalado).
Compendium,
Conduct
a
hearing
of
the
application for bail regardless of
whether or not the prosecution
refuses to present evidence to show
that the guilt of the accused is
strong for the purpose of enabling
the court to exercise its sound
discretion (Sections 7 and8, supra);
Decide whether the evidence of
guilt of the accused is strong based
on the summary of evidence of the
prosecution (Baylon v. Sison A.M.
No. 92-7-360-0,April 6, 1995);
When he is found to be a
recidivist or a habitual delinquent
or has been previously convicted
for an offense to which the law or
ordinance attaches an equal or
greater penalty or for two or more
offenses to which it attaches a
lighter penalty;
FORFEITURE OF BAIL
(SEC. 21)
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:
CANCELLATION OF BAIL
(SEC. 22)
Cancellation of Bail bond
a. Upon application of the bondsmen,
with due notice to the prosecutor,
upon surrender of the accused or
proof of his death;
b. Upon proof that the accused died
c. Automatically cancelled upon the
acquittal of the accused, dismissal of
the case or execution of judgment of
conviction.
Cancellation of the bond does not itself
relieve the bondmen of their liability thereon
incurred prior to their discharge.
In all instances, the cancellation shall be
without prejudice to any liability on the bail.
The acquittal or the death of the accused
results in the discharge of the sureties only
if the conditions of the bond have not
theretofore been breached.
Where, before the expiration of the 30-day
period for the production of the accused by
the sureties, the trial court rendered
judgment acquitting said accused, the
sureties are relieved of the duty to produce
the body of the accused and to show cause
why judgment should not be rendered on the
bond. Since the judgment is of acquittal, the
reason for the confiscation of the bond no
longer exists. Furthermore, since a judgment
of acquittal is final immediately after its
promulgation, the trial court had no more
jurisdiction over the case and the person of
the accused (Regalado citing Belfast Surety &
2. Alias/es, if any;
b. Against the respondent, irrespective
of nationality, in criminal cases
pending preliminary investigation,
petition for review, or motion for
reconsideration
before
the
Department of Justice or any of its
provincial or city prosecution offices.
The application under oath of an
interested party must be supported
by:
1. certified true copy of the
complaint filed, and
2. a
Certification
from
the
appropriate prosecution office
concerned that the case is
pending
preliminary
investigation,
petition
for
review,
or
motion
for
reconsideration, as the case
may be.
The Secretary of Justice may likewise issue a
WLO against any person, either motu
proprio, or upon the request of any
government agency, including commissions,
task forces or similar entities created by the
Office of the President, pursuant to the
"Anti-Trafficking in Persons Act of 2003"
(R.A.No. 9208) and/or in connection with
anyinvestigation being conducted by it, or in
the interest of national security, public safety
or public health.
COMPLETENESS OF INFORMATION
To ensure the proper identification of the
subject of the HDO/WLO and to avoid
inconvenience to any innocent party, all
applications or requests, including the
HDO/WLO to be issued, shall contain the
following information of the subject:
1. Complete name, i.e. given name,
middle name or initial and surname;
CUSTODIAL INVESTIGATION
CUSTODIAL INVESTIGATION
The questioning by law enforcement officers
of a suspect taken into custody or otherwise
deprived of his freedom of action in a
significant way. It includes the practice of
issuing an invitation to a person who is
investigated in connection with an offense he
is suspected to have committed. (R.A. 7438)
organization
duly
accredited
by
the
Commission on Human Rights of by any
international non-governmental organization
duly accredited by the Office of the
President. The person's "immediate family"
shall include his or her spouse, fiance or
fiancee, parent or child, brother or sister,
grandparent or grandchild, uncle or aunt,
nephew or niece, and guardian or ward.
As used in this Act, "custodial investigation"
shall include the practice of issuing an
"invitation" to a person who is investigated in
connection with an offense he is suspected
to have committed, without prejudice to the
liability of the "inviting" officer for any
violation of law.
RIGHTS OF THE ACCUSED DURING
TRIAL
(SEC. 1)
The rights in this Rule Are
during trial of his criminal
essentially taken from the
incorporated as Art. III
Constitution.
available only
case and are
Bill of Rights
of the 1987
Exception:
The
presenceof the accused is
required only:
a. During arraignment (Sec. 1b, Rule
116)
b. Promulgation of judgment except in
cases involving light offenses which
may be pronounced in the presence
of the counsel or representative.
c. When ordered by the court for
purposes of identification.
d. When the court with due notice
requires.
Not applicable in SC and CA
The law securing to an accused person the
right to be present at every stage of the
proceedings has no application to the
proceedings neither before the Court of
Appeals and the Supreme Court nor to the
entry
and
promulgation
of
their
judgments. The defendant need not be
present in court during the hearing of the
appeal. (Sec. 9, Rule 124)
Accused may waive his right to be present
during the trial. HOWEVER, his presence
may be compelled when he is to be
identified.
(Aquino,
Jr.v.
Military
Commission, G.R. No. L-37364, May 9,
1975)
Requirements of Waiver
1. Existence of a right
2. Knowledge of existence thereof
3. Intention to relinquish which must be
shown clearly and convincingly
4. Where the Constitution or law
provides, it must be with the
assistance of counsel to be valid.
Effects of waiver of the right to appear
by the accused
During
Custodial
Investigation:
Stricterrequirement, it requires the
presence of competent and independent
counsel who is preferably the choice of
the accused. Since a custodial
investigation is not done in public and
there is a danger that confessions can
be exacted against the will of the
accused.
ACCUSED AS
WITNESS
witness
stand
and
claim
the right
against
selfincrimin
ation as
each
question
requirin
g
an
incrimin
ating
answer
is asked
of him.
May be
crossexamine
d as to
any
matter
stated in
the
direct
examina
tion or
connect
ed
therewit
h.
NOTE:
If
the
accusedtestifiesin
hisownbehalf, then he may
becross-examined
as
anyother
witness.
He
maynot,oncrossexamination,
refuse
toansweranyquestionon the
ground that theanswer will
give or theevidencethat he
Will
producewouldhavetendency
toincriminate
him
for
thecrimethat
he
wascharged.
May be cross- examined but
only on maters covered by
his direct examination.
NOTE:
If the accused
refuses
to
be
crossexamined, the testimony of
the accused who testifies on
his own behalf will not be
given weight and will have
no probative value because
the prosecution will be able
to test its credibility.
This applies to co- accused.
Transactional
immunity
Witness immune from
prosecution of a crime
to
which
his
compelled testimony
relates.
be
Modes of Discovery
judge. (Mateo, Jr. v. Villaluz, G.R. Nos. L34756-59, March 31, 1973)
To disqualify a judge on the ground of bias
and prejudice, the movant must prove
such bias by clear and convincing evidence
(Webb v. People of the Philippines, G.R. No.
176389 / G.R. No. 176864, July 24, 1997).
Q: L was charged with illegal possession of
shabu before the RTC. Although bail was
allowable under his indictment, he could
not afford to post bail, and so he remained
in detention at the City Jail. For various
reasons ranging from the promotion of the
Presiding Judge, to the absence of the trial
prosecutor, and to the lack of notice to the
City Jail Warden, the arraignment of L was
postpones nineteen times over a period of
two years. Twice during that period, Ls
counsel filed motions to dismiss, invoking
the right of the accused to speedy trial.
Both motions were denied by the RTC. Can
L file a petition for mandamus. Reason
briefly. (BAR 2007)
A:Yes, L can file a petition for mandamus
to enforce his constitutional right to a
speedy trial which was capriciously denied
to him. There is absolutely no justification
for postponing an arraignment of the
accused nineteen (19) times and over a
period of two (2) years. The numerous,
unreasonable
postponements
of
the
arraignment demonstrate an abusive
exercise of discretion (Lumanlaw v. Peralta,
482 SCRA 396, 2006).Arraignment of an
accused would not take thirty minutes of
the precious time of the court, as against
the
preventive
imprisonment
and
deprivation of liberty of the accused just
because he does not have the means to
post bail although the crime charged is
bailable. The right to a speedy trial is
guaranteed by the Constitution to every
citizen accused of a crime, more so when is
under preventive imprisonment. L, in the
given case, was merely invoking his
Exceptions:
Those governed by the Rules of
Summary Procedure.
Where penalty prescribed by
law does not exceed 6-months
imprisonment or a fine not of
PHP 1000 or both
Those authorized by the Chief
Justice of the Supreme Court.
Of Substance
Amend
NoInformation w/o leave of c
Nature of offense has been downgraded or any accused has to be excluded
Nature of Information
YES
Amend Information
upon motion by the prosecutor, w/ notice to offended party w/ leave
YES
Any of the grounds in Sec. 3 Rule 117 exist?
Motion to Quash
No
YES
Suspend Arraignment
Motion to Defer
No
File motion to conduct Preliminary
No Investigation
Preliminary Investigation conducted?
YES
ARRAIGNMENT
Guilty
PLEA
No
Presents exculpatory evidence
No
Capital offense?
YES
YESS
YES
Not guilty
Order withdrawal of plea of guilty
Enter plea of not guilty
Improvident plea?
No
RULE 116
ARRAIGNMENT AND PLEA
ARRAIGNMENT AND PLEA; HOW
MADE
(SEC. 1)
ARRAIGNMENT
The formal mode of implementing the constitutional right of the accused to be informed of the
nature and cause of accusation against him.
The accused must be arraigned:
1. before the court where the complaint or information was filed or assigned for trial;
2. made in open court by the judge or clerk by furnishing the accused with a copy of the
complaint or information;
3. reading the same in the language or dialect known to him; and
4. asking him whether he pleads guilty or not guilty.
The prosecution may call at the trial witnesses other than those named in the complaint or
information.
PLEA
Pertains to the matter which the accused, on his arraignment, alleges in answer to the charge
against him.
Rules on Plea
1. There can be no double jeopardy when the accused has not yet pleaded to the offense.
2. A mere written manifestation is not a valid plea. For jeopardy to attach, it is necessary that
the defendant has been arraigned and has pleaded to the charge because it is from that
moment that the issues are deemed joined.
3. To avoid delay, the presence of the offended party is now required during the arraignment
and also to discuss the matter of the civil liability of the accused. Failure to appear despite
due notice gives the court discretion to allow the accused to plead guilty to a lesser offense
solely with the conformity of the trial prosecutor.
If the accused refuses to plead, or makes a conditional plea of guilty, a plea of not guilty shall
be entered for him.
The accused must be present at the arraignment and must personally enter his plea. Both
arraignment and plea shall be made of record, but failure to do so shall not affect the validity of
the proceedings.
When the accused refuses to plead or makes a conditional plea, a plea of notguilty shall be
entered for him.
When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed
withdrawn and a plea of not guilty shall be entered for him.
When the accused is under preventive detention, his case shall be raffled and its records
transmitted to the judge to whom the case was raffled within three (3) days from the filing of
the information or complaint. The accused shall be arraigned within ten (10) days from the
date of the raffle. The pre-trial conference of his case shall be held within ten (10) days after
arraignment.
The private offended party shall be required to appear at the arraignment for purposes of:
1. plea bargaining,
2. determination of civil liability, and
3. other matters requiring his presence.
In case of failure of the offended party to appear despite due notice, the court may allow
theaccused to enter a plea of guilty to a lesser offense which is necessarily included in the
offense charged with the conformity of the trial prosecutor alone. (Cir. 1-89)
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 toquash or for a bill of particulars
or other causes justifying suspension of the arraignment shall be excluded in computing the
period. (Sec. 2, Cir. 38-98)
As Sec. 1 is an implementation of the constitutional right to be informed of the charge, it is the
duty of both the court and the counsel assisting the accused to see to it that the accused
comprehends the charges and realizes the gravity and consequences of his plea thereto.
A failure to observe the rules on arraignment is reversible error and a judgment of conviction
cannot stand upon an invalid arraignment. However, errors in procedure can be waived by the
accused.
While the accused in a criminal case is entitled to know in advance the names of all the
witnesses against him, the time for the accused to know all the witnesses against him is when
they take the witness stand.
WHEN SHOULD A PLEA OFNOT GUILTY BE ENTERED
1. When the accused so pleaded;
2. When he refuses to make a plea;
3. Where in admitting the act charged, he sets up matters of defense or with lawful
justification;
4. When he enters a conditional plea of guilty;
5. Where, after a plea of guilty, he introduces evidence of self - defense or other exculpatory
circumstances;
6. When the plea is indefinite or ambiguous.
NOTE: An unconditional plea of guilt admits ofthe crime and all the attendant circumstances
alleged in the information including the allegations of conspiracy and warrants judgment of
conviction without need of further evidence,
EXCEPTIONS:
a. Where the plea of not guilty was compelled by violence or intimidation;
b. When the accused did not fully understand the meaning and consequences of his plea;
c. Where the information is insufficient to sustain conviction of the offense charged;
d. Where the information does not charge an offense, any conviction thereunder being
void; and
e. Where the court has no jurisdiction.
A plea of guilty to the information admits only facts alleged therein but is not an admission
that the acts charged are unlawful nor does it cure the defect in the court's jurisdiction.
A plea of not guilty to an information alleging aggravating circumstances will not be considered
an admission of said circumstances if the evidence subsequently presented by the prosecution
fails to prove the same. The same doctrine applies to qualifying circumstances alleged but not
proved.
WHEN MAY AN ACCUSED ENTER A PLEA OF GUILTY TO A LESSER OFFENSE
(SEC. 2)
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.
2. After arraignment but before trial, the accused may still be allowed to plead guilty to the
said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint
or information is necessary.
3. After prosecution rests: allowed only when the prosecution does not have sufficient
evidence to establish guilt for the crime charged (Peoplev. Villarama, L-99287, June 23,
1992, 210 SCRA 246).
The offer to plead not guilty to a lower offense is not demandable by the accused as a matter of
right but is addressed to the sound discretion of the trial court.
Where the requirements of both consents of the offended party and the prosecutor were not
observed, the accused cannot claim double jeopardy if he should be charged anew with the
graver offense subject of the original information or complaint (Sec. 7[c], Rule 117). However,
where the offended party failed to appear despite due notice, the consent of the trial prosecutor
alone will suffice (Sec.1[f], Rule 116)(Remedial Law Compendium, Florenz Regalado).
ACCUSED PLEAD GUILTY TO CAPITAL OFFENSE, WHAT THE COURT SHOULD DO
(SEC. 3)
When the accused pleads guilty to a capital offense, the court shall:
1. conduct a searching inquiry into the voluntariness and full comprehension of the
consequences of his plea
2. require the prosecution to prove his guilt and the precise degree of culpability.
The accused may present evidence in his behalf.
Under the new formulation three (3) things are enjoined of the trial court after a plea of guilty
to a capital offense has been entered by the accused:
1. The court must conduct a searching inquiry into the voluntariness and full comprehension
of the consequences of his plea;
2. The court must require the prosecution to present evidence to prove the guilt of the
accused and the precise degree of his culpability; and
3. The court must ask the accused if he desires to present evidence in his behalf and allow
him to do so if he desires (People v. Camay, G.R. No. L-51306, 29 July 1987.)
The procedure to be observed by the trial court in instances where an accused waives his right
to present evidence specifically in capital offenses:
1. The trial court shall hear both the prosecution and the accused with their respective
counsel on the desire or manifestation of the accused to waive the right to present evidence
and be heard.
2. The trial court shall ensure the attendance of the prosecution and especially the accused
with their respective counsel in the hearing which must be recorded. Their presence must
be duly entered in the minutes of the proceedings.
3. During the hearing, it shall be the task of the trial court to:
a. ask the defense counsel a series of questions to determine whether he had conferred
with and completely explained to the accused that he had the right to present evidence
and be heard as well as its meaning and consequences, together with the significance
and outcome of the waiver of such right. If the lawyer for the accused has not done so,
the trial court shall give the latter enough time to fulfill this professional obligation.
b. inquire from the defense counsel with conformity of the accused whether he wants to
present evidence or submit a memorandum elucidating on the contradictions and
insufficiency of the prosecution evidence, if any or in default thereof, file a demurrer to
evidence with prior leave of court, if he so believes that the prosecution evidence is so
weak that it need not even be rebutted. If there is a desire to do so, the trial court shall
give the defense enough time for this purpose.
c. elicit information about the personality profile of the accused, such as his age, socioeconomic status, and educational background, which may serve as a trustworthy index
of his capacity to give a free and informed waiver.
d. all questions posed to the accused should be in a language known and understood by
the latter, hence, the record must state the language used for this purpose as well as
reflect the corresponding translation thereof in English (People v. Bodoso, G.R. Nos.
149382-83, 5 March 2003).
SEARCHING INQUIRY
To constitute searching inquiry, the questioning must focus on:
1. The voluntariness of the plea; and
2. Whether the accused understood fully the consequence of his plea.
While there can be no hard and fast rule as to how a judge may conduct a "searching inquiry,"
as to the number and character of questions he may put to the accused, or as to the
earnestness with which he may conduct it, since each case must be measured according to its
individual merit, taking into consideration the age, educational attainment, and social status of
the accused confessing guilt, among other things, the singular barometer is that the judge
must in all cases, fully convince himself that: (1) the accused, in pleading guilty, is doing so
voluntarily, and (2) he, in so doing, is truly guilty, and that there exists a rational basis for a
finding of guilt, based on his testimony (People v. Dayot, G.R. No.88281, 20 July 1990).
PLEA OF GUILTY TO NON-CAPITAL
OFFENSE; RECEPTION OF EVIDENCE,
DICRETIONARY
(SEC. 4)
When the accused pleads guilty to a non-capital offense, the court may receive evidence from
the parties to determine the penalty to be imposed.
Although there is no specific provision in the law requiring the trial court to conduct an inquiry
into the voluntariness of an accuseds waiver of the right to present evidence, the
circumstances of the present case, the gravity of the imposable penalty and the plea of "not
guilty" entered by the accused should have prompted the trial court to conduct a thorough
inquiry into the reasons behind such waiver, the voluntariness thereof, and the sufficiency of
appellants knowledge and understanding of the effects of his waiver.
IMPROVIDENT PLEA
(SEC. 5)
It is a plea without information as to all the circumstances affecting it. It is based upon a
mistaken assumption or misleading information or advice.
At any time before the judgment of convictionbecomes final, the court may permit animprovident
plea of guilty to be withdrawn and be substituted by a plea of not guilty.
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 said case or the case contemplated under
this section, 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 v. Lumague, Jr.,
G.R. No. 53586, 31 Jan. 1982; Art. 13[7], RPC).
Effect of Improvident Plea
The conviction will be set aside if the plea of guilty is the sole basis for the judgment. However,
the court may validly convict the accused if such conviction is supported by adequate evidence
of guilt independent of the plea itself.
Instances of Improvident Plea
1. Plea of guilty was compelled by violence or intimidation;
2. The accused did not fully understand the meaning and consequences of his plea;
3. Insufficient information to sustain conviction of the offense charged;
4. Information does not charge an offense;
5. Court has no jurisdiction.
Improvident Plea, Withdrawn
The court may permit an improvident plea of guilty to be withdrawn at any time before the
judgment of conviction becomes finaland besubstituted by a plea of not guilty. However, the
withdrawal of a plea of guilty is not a matter of right to the accused but addressed to the sound
discretion to the trial court.
NOTE: The withdrawal of a plea of guilty is not amatter of right but of sound discretion of the
trial court (People v. Lambrino, G.R. No. L-10845, April28, 1958).
Effect of Withdrawal
The court will then set aside judgment of conviction and re-open the case for new trial.
DUTY OF COURT TO INFORM ACCUSED OF HIS RIGHT TO COUNSEL
(SEC. 6)
Before arraignment, the court shall inform the accused of his right to counsel and ask him if
he desires to have one. Unless the accused is allowed to defend himself in person or has
employed counsel of his choice, the court must assign a counsel de-oficio to defend him.
APPOINTMENT OF COUNSEL DE OFICIO
(SEC. 7)
The court, considering the gravity of the offense and the difficulty of the questions that may
arise, shall appoint as counsel de oficio such members of the bar in good standing who, by
reason of their experience and ability, can competently defend the accused. But in localities
where such members of the bar are not available, the court may appoint any person, resident
of the province and of good repute for probity and ability, to defend the accused.
TIME FOR COUNSEL DE OFICIO TO
PREPARE FOR ARRAIGNMENT
(SEC. 8)
Whenever a counsel de oficio is appointed by the court to defend the accused at the
arraignment, he shall be given a reasonable time to consult with the accused as to his plea
before proceeding with the arraignment.
BILL OF PARTICULARS
(SEC. 9)
The accused may, before arraignment, move for a bill of particulars to enable him properly to
plead and prepare for trial. The motion shall specify the alleged defects of the complaint or
information and the details desired.
Purposes of Bill of Particulars
CRIMINAL CASES
Enter a valid plea
Only the accused
and
not
the
offended party can
file
a
bill
of
particulars as he
will enter his plea
To prepare for trial
CIVIL CASES
To file a responsive
pleading
Either
of
the
parties that will
file a responsive
pleading can ask
for
a
bill
of
particulars
Not necessarily to
prepare for trial as
the
respondent
can opt for the
modes of discovery
2. That the court trying the case has no jurisdiction over the offense charged;
3. That the criminal action or liability has been extinguished; and
4. 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.
Right to file a motion to quash belongs only to the accused. There is nothing in the rules which
authorizes the court or judge to muto proprio initiate a motion to quash.
The motion to quash is not a responsive pleading as it is not addressed to the complainants
but to the court.
Remedy if motion to quash is denied
If the motion to quash is denied, the proper procedure is to go to trial without prejudice to
reiterating special defenses invoked in the said motion, and if after trial on the merits, an
adverse decision is rendered, to appeal it in the manner authorized by the law.
GROUNDS FOR MOTION TO QUASH
(SEC. 3)
The accused may move to quash the complaint or information on any of the following grounds:
Par. (a) That the facts charged do not constitute an offense
The test for the correctness of this ground is the sufficiency of the averments in the
information, that is, whether the facts alleged, if hypothetically admitted, constitute the
elements of the offense and matters aliunde will not be considered.
This objection is not waived even if not alleged in a motion to quash (Sec. 9) as the appellate
court will by itself review the records of the case.
Par. (b) That the court trying the case has no jurisdiction over the offense charged
This ground is not waived even if not raised in the motion to quash (Sec. 9). Jurisdiction must
exist as a matter right and cannot be conferred or waived by consent, estoppel or inaction.
Par. (c) That the court trying the case has no jurisdiction over the person of the accused
The accused may move to quash for lack of jurisdiction over his person, but he must do so only
on that ground and for that purpose. If, having raised such ground, he nevertheless takes part
in the proceedings with his counsel cross-examining the witness or he raises other grounds for
a motion to quash, he is deemed to have submitted his person to the jurisdiction of the court.
Par. (d) That the officerwho filed the information had no authority to do so;
Irregularities in the appointment of the prosecuting officer who signs the information do not
necessarily invalidate the same if he may be considered a de facto officer but where the person
who signed the information was disqualified from appointment to such position, the
information is invalid and the court does not acquire jurisdiction to try the accused thereon.
Consequently, such objection is not waived and may still be raised after plea as the issue of
jurisdiction is involved. An information filed by a qualified and authorized officer is required for
the jurisdiction of the court over the case. This ground may also be raised if the information
was not approved by the head of the prosecuting officer (Remedial Law Compendium, Florenz
Regalado citing cases and Sec. 4, Rule 112).
Where a sworn written statement is required to be filed by the offended party (private crimes),
as in crimes against chastity, and such complaint is signed instead by the chief of police, the
ground for the motion to quash is lack of jurisdiction and NOT under this subsection.
Special counsel designated by the Justice Secretary, under Sec. 1686 of the Revised
Administrative Code, have the authority to conduct the PI, as well as to sign and file the
information (Remedial Law Compendium, FlorenzRegalado citing Nassr v. Perez, et al., L-28770,
28 Feb. 1973).
Par. (e) That it does not conform substantially to the prescribed form
Par. (f) That more than one offense is charged except when a single punishment for
various offenses is prescribed by law
Multiplicity of charges in a single information is prohibited in this jurisdiction to protect the
accused from confusion and difficulty in making his defense. The accused, however, may waive
such objection and can be convicted of as many distinct charges as are alleged in the
information and proved.
Exceptions to this rule: complex or composite crimes under the RPC and in those special laws
wherein a single punishment is imposed for various offenses.
Q: Rodolfo is charged with possession of unlicensed firearms in an Information filed in the
RTC. It was alleged therein that Rodolfo was in possession of two unlicensed firearms: a .45
caliber and-a .32 caliber. Under Republic Act No. 8294, possession of an unlicensed .45 caliber
gun is punishable by prision mayor in its minimum period and a fine of P30.000.00, while
possession of an unlicensed .32 caliber gun is punishable by prision correctional in its
maximum period and a fine of not less than P15,000.00. As counsel of the accused, you
intend to file a motion to quash the Information. What ground or grounds should you
invoke? Explain.(BAR 2005)
A: The ground for the motion to quash is that more than one offense is charged in the
information. (Sec. 3[f], Rule 117, 2000 Rules of Criminal Procedure) Likewise, the RTC has no
jurisdiction over the second offense of possession
of
an
unlicensed .32
caliber
gun,punishable by prision correctional in its maximum period and a fine of not less than
P15.000.00. It is the MTC that has exclusive and original jurisdiction over all offenses
punishable
Blg. 129)
by imprisonment not exceeding six years. (Sec. 2, R.A. No. 7691, amending B.P.
Par. (g) That the criminal action or liability has been extinguished
Criminal liability is extinguished by the modes prescribed in Art. 89, RPC:
How criminal liability is totally extinguished.
Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal penalties and 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, as provided in Article 344 of this Code."
Under this Par., prescription of the offense as a ground for a motion to dismiss is NOT waived
as this is a substantive right.
Par. (h) That it contains averments which, if true, would constitute a legal excuse or
justification
This ground is proper only if there are averments in the information itself which constitute a
legal excuse or justification which are:
a. justifying circumstances (Art. 11);
b. exempting circumstances (Art. 12); and
c. absolutory causes (Arts. 6[par. 3], 16, 20, 247 and 332).
Also, in a prosecution for libel, if the information itself contains allegations that the alleged
defamatory imputation is absolutely privileged, the motion to quash on said ground should be
sustained
It is when the information or complaint itself alleges that the accused was insane when he
committed the offense that insanity would be a ground for a motion to quash. If he is insane
when he is to be arraigned, the arraignmentshould be suspended (Sec. 11[a], Rule 116).
Par. (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
See notes on Sec. 7
The grounds enumerated above for motion to quash are EXCLUSIVE in character. In resolving
the motion to quash a criminal complaint or information, the facts alleged therein should be
taken as they are.
DISTINCTION FROM DEMURRER TO EVIDENCE
The court may order that information be filed or an amendment thereof be made within a
definite period. If no order is made, or if having been made no new information is filed within
such further time as the court may allow for good cause, the accused, if in custody shall be
discharged unless he is also in custody for another charge.
MOTION TO
QUASH
DEMURRER TO
EVIDENCE
a.
b.
c.
d.
That
That
That
That
The court may order that another information be filed or an amendment thereof be made, as
the case may be, within a definite period. If such order is NOT MADE, or if having been made,
another information is NOT FILED within the time specified in the order, or within such time
as the court may allow, the accused, if in custody, shall be discharged therefrom, unless he is
also in custody on some other charge.
If the motion to quash is sustained upon any of the following grounds:
1. That a criminal action or liability has been extinguished;
2. That it contains averments which, if true, would constitute a legal excuse or
justification;
3. That the accused has been previously convicted or acquitted of the offense charged.
The court must state, in its order granting the motion, the release of the accused if he is in
custody or the cancellation of his bond if he is on bail.
If the ground upon which the motion to quash was sustained is that the court has NO
jurisdiction over the offense, the better practice is for the court to remand or forward the case
to the proper court, not to quash the complaint or information.
NOTE: The order denying motion to quash is notappealable being an interlocutory order and
the order granting a motion to quash is appealable because the order has the effect of
adjudging the case with finality.
An order granting a motion to quash is appealable, and the accused cannot claim double
jeopardy as the dismissal is procured not only with his consent but at his own instance.
Sec. 5 contemplates the situation where the information is NOT curable by amendment, in
which case the motion to quash is sustained with an order that the proper information should
be filed if such prosecution is proper. In either Sec. 4 or Sec. 5, since only a qualified dismissal
is ordered, double jeopardy is not involved. Sec. 4 regulates the amendment of an information;
Sec. 5 governs the filing of a new information (Remedial Law Compendium, Florenz Regalado).
ORDER SUSTAINING THE MOTION TO QUASH NOT A BAR TO ANOTHER PROSECUTION
(SEC. 6)
General Rule:
When a motion to quash issustained, the order of the court to that effect would not present a
legal roadblock to another prosecution for the same offense.
Exception:
The order sustaining the motion toquash constitutes a bar to another prosecution for the same
offense when the ground relied upon for the quashal of the information:
a. That the criminal action or liability has been extinguished
b. That the accused has been previously convicted, or in jeopardy of being convicted or
acquitted of the offense.
Where the motion to quash on the ground of prescription is granted and the case is dismissed,
the trial court cannot thereafter revive the case, as prescription is a ground for total extinction
of criminal liability
DOUBLE JEOPARDY
(SEC. 7)
When an accused has been either acquitted or convicted, or the case has been dismissed or
otherwise terminated by a court of competent jurisdiction without the express consent of the
accused, the said conviction or acquittal shall be a bar to another prosecution for the same
offense charged.
Two kinds of double jeopardy
1. Where the offenses charged are penalized either by different sections of the same
statute or by different statutes, what isconsidered is the IDENTITY OF THEOFFENSES
CHARGED (Sec. 7 and Par. 1, Sec. 21,Art. III, 1987 Constitution).
In such a case, the constitutional protection against double jeopardy is available only where
an identity exists between the earlier and subsequent offenses charged.
2. Where one offense is charged under an ordinance while the other is penalized by
statute, a conviction or acquittal under either shall be a bar to another prosecution for
the same act. (Sec. 21, Art. III, 1987 Constitution)
IDENTITY OF THE ACTS COMMITTED asallegedly giving rise to the two offenses.
Here, the protection against double jeopardy is available as long as the same acts gave rise
to the offense under the ordinance and that charged under the statute (Remedial Law
Compendium,Florenz Regalado).
Sec. 21, Art. III, 1987 Constitution provides:"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."
Requisites of double jeopardy under this section:
1. The complaint or information or other formal charge was sufficient in form and
substance to sustain a conviction;
A military commission or tribunal has no jurisdiction, even during the period of martial law,
over civilians for offenses allegedly committed by them as long as the civil courts are open and
functioning, and any judgment rendered by such body thereon is null and void for lack of
jurisdiction on the part of the military tribunal concerned (Olaguer v. MilitaryCommission No.
34, et al., G.R. No. 54558, 22 May 1987).
Double jeopardy does not apply where the proceedings against the judge before the SC which
was dismissed was administrative in character and the other proceeding against the same
judge before the Sandiganbayan.
A preliminary investigation is not a trial to which double jeopardy attaches.
Where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction.
PLEA OF THE ACCUSED
It is required that the defendant had been arraigned and had pleaded to the charge because it
is from that moment that the issues for trial are deemed joined. Jeopardy attaches from the
entry of his plea at the arraignment.
Where, after a plea of guilty, the accused was allowed to prove mitigating circumstances, but he
instead testified that he acted in self-defense, said testimony has the effect of vacating his plea
and the judgment of acquittal rendered by the court was a nullity for lack of a standing plea to
the charge. Consequently, the appeal by the prosecution from said judgment does not place the
accused in double jeopardy (Remedial LawCompendium, Florenz Regalado citing People v.
Balisacan, L-26376, 31 August 1966).
PRIOR CONVICTION, ACQUITTAL, DISMISSAL OR TERMINATION
OF THE CASE
The acquittal may be after trial on the merits or under Secs. 17 and 18, Rule 119 (discharge of
the accused as a State witness) (Remedial LawCompendium, Florenz Regalado).
Since conviction or acquittal results without regard to the consent of the accused or the lack
thereof, it follows that the "dismissal" contemplated here is a dismissal which actually is not an
acquittal (People v. Labatete, G.R. No. L-12917, April 27, 1960, 107 Phil. 697), because if the
"dismissal" is actually an acquittal, there would be double jeopardy even if it is with the
express consent of the accused (Remedial Law Compendium, Florenz Regalado).
The silence of the accused or his failure to object to the dismissal of the case is not "express
consent" to such dismissal.
The accused can object to the provisional dismissal of the case against him if it would be
prejudicial or unjust to him or would deprive him of his right to speedy trial. Upon such
objectionand insistence of the accused and on failure of the prosecution to proceed, the court
should dismiss the case and such dismissal amounts to an acquittal (Remedial Law
Compendium, FlorenzRegalado citing Republic v. Agoncillo, et al., L-27257, 31 August 1971).
Where the case was dismissed "provisionally" with the consent of the accused, he cannot
invoke double jeopardy in another prosecution therefor or where the case was reinstated on a
motion for reconsideration. In such a case, where the information is sufficient in form and
substance and the accused is aware that such dismissal is not final in nature, the case may be
revivedwithout the need of filing another information.
With much more reason will these doctrines apply if such provisional dismissal was on motion
of the accused. Even if the proper dismissal did not state that it was "provisional" but the same
was obtained on motion of the accused claiming lack of authority of the judge to try the case,
such dismissal shall be considered to be "without prejudice," and cannot be the basis of a
claim of double jeopardy (Remedial Law Compendium,Florenz Regalado citing cases).
But where the dismissal was actually an acquittal, even if the order calls it a "provisional
dismissal" or "conditional" or "without prejudice," there would be double jeopardy. This would
take place where actually the basis for the dismissal is the
a. lack or insufficiency of the evidence or the
b. denial of the right to speedy trial (Regalado, citing cases).
Where the case was dismissed motu proprio by the court but without prejudice to the refiling
of the same, there is no double jeopardy as such objection presupposes a definite or
unconditional dismissal intended to terminate the case.
There are two instances when double jeopardy will not attach even if the motion to dismiss is
made by the accused himself (with his express consent):
a. When the ground is insufficiency of evidence of the prosecution; and
b. When the proceedings have been unreasonably prolonged in violation of the right to
speedy trial (Regalado citing People v. Verra, G.R. No. 134732, 29 May 2002).
Double jeopardy contemplates ands requires a valid prior acquittal. A judgment of acquittal
rendered with grave abuse of discretion is void as it amounts to lack of jurisdiction.
IDENTICAL OFFENSES
To determine whether the two offenses charged are identical, one test is whether the facts
alleged in the first charge, if proven, would suffice to support the second charge and vice-versa.
Sec. 5, Rule 120 provides the test to determine whether an offense necessarily includes or is
necessarily included in the other. What is considered for purposes of this test is the crime
alleged in the information.
Sec. 5, Rule 120: "An offense chargednecessarily includes the offense proved when some of
the essential elements or ingredients of the former, as alleged in the complaint or information,
constitute the latter. And an offense charged is necessarily included in the offense proved,
when the essential ingredients of the former constitute or form part of those constituting the
latter.
REQUISITES RAISE THE DEFENSE OF DOUBLE JEOPARDY
1. A first jeopardy has attached prior to the second;
Requisites:
a.
b.
c.
d.
e.
Requisites
1. There must be a motion by the prosecution with the express conformity of the accused
or by the accused himself or by both the prosecution and the accused for a provisional
dismissal of the case.
2. The offended party is notified of the motion for a provisional dismissal of the case.
3. The court issues an order granting the motion and dismissing the case provisionally.
4. The public prosecutor is served with a copy of the order of provisional dismissal of the
case.
NOTE: If a case is provisionally dismissed with theconsent of the prosecutor and the offended
party, the failure to reinstate it within the given period will make the dismissal permanent.
It is only when the 1st paragraph of Sec. 8 have been complied with that the 2nd paragraph
comes into play. Also, although said 2nd paragraph provides that the order of provisional
dismissal becomes permanent after the lapse of the periods stated therein without the case
having been revived, it should be construed to mean that the period shall commence to run
after service of the order upon the public prosecutor who has control of the prosecution. The
case may be revived by the State within the time-bar either: (a) by refiling of the information; or,
(b) by the filing of the new information for the same offense necessarily included therein. No
new preliminary investigation is needed, except when the original prosecution witnesses have
emerged; or where other persons are charged under a criminal complaint; or where either the
original charge or the criminal liability of the accused has been upgraded (Regalado citing
People, et al. v. Lacson, G.R. No. 149453, Resolution of Motion for Reconsideration, 1 April 2003).
PERIOD OF REINSTATEMENT
Offenses punishable by imprisonment not exceeding 6-years One Year.
Offenses punishable by imprisonment exceeding 6-years Two Years.
Otherwise, the dismissal shall be removed from being provisional and becomes permanent.
NOTE: The state may revive a criminal case beyond
provided there is a justifiable reason for the delay.
PRE-TRIAL IN
CIVIL CASES
The presence of
the defendant is
required, unless he
is duly represented
at the pre-trial
conference if he is
in
conformity
therewith.
Unless otherwise
required by the
court, his personal
presence at the
conference therefor
is
not
indispensable.
The presence of
the
private
offended party is
not
required.
Instead, he is prior
required to appear
at the arraignment
of the accused for
purposes of plea
bargaining,
determination
of
civil liability, and
other
matters
requiring
his
presence. In case
of failure of the
offended party to
appear despite due
notice, the court
may
allow
the
accused to enter a
plea of guilty to a
lesser
offense
which
is
necessarily
included in the
offense
charged
with
the
conformity of the
trial
prosecutor
alone.
In unexcused nonappearance
of
either counsel at
the pre-trial, the
sanctions
are
conference by his
counsel with the
requisite authority
to enter into a
compromise
agreement, failing
in either of which
the
case
shall
proceed as if the
defendant
had
been declared in
default.
The presence of
the
plaintiff
is
required
unless
excused therefrom
for valid cause or if
he is represented
therein
by
a
person
fully
authorized
in
writing to perform
the acts specified
in Sec. 4, Rule 18.
Absent
said
justifications, the
case
may
be
dismissed with or
without prejudice.
For
their
nonappearance or lack
of
due
representation at
the pre-trial of a
imposed on said
counsel for the
accused or the
prosecutor.
The Rules do not
require the filing of
a pre-trial brief but
only require the
attendance at a
pre-trial
conference
to
consider
the
matters stated in
Sec. 2, Rule 118.
civil
action,
sanctions
are
imposed on the
parties to the case.
A
pre-trial
is
required with the
particulars and the
sanctions provided
by Sec. 6, Rule 18.
DUTY OF THE COURT WHEN THE PROSECUTOR AND THE OFFENDED PARTY AGREE
TO THE
PLEA
THE ACCUSED
A.M.
No. OF
03-1-09-SC
A.M No. 03-1-09-SC
RE: PROPOSED RULE ON GUIDELINES TO BE OBSERVED BY TRIAL COURT JUDGES
AND CLERKS OF COURT IN THE CONDUCT OF PRE-TRIAL AND USE OF DEPOSITION DISCOVERY MEASURES
1. Before arraignment, the Court shall issue an order directing the public prosecutor to
submit the record of the preliminary investigation to the Branch COC for the latter to
attach the same to the record of the criminal case.
2. Where the accused is under preventive detention, his case shall be raffled and its
records transmitted to the judge to whom the case was raffled within three days from
the filing of the complaint or information. The accused shall be arraigned within ten
days from the date of the raffle. The pre-trial of his case shall be held within ten days
after arraignment unless a shorter period is provided for by law.
3. After the arraignment, the court shall forthwith set the pre-trial conference within
thirty days from the date of arraignment, and issue an order: (a) requiring the private
offended party to appear thereat for purposes of plea-bargaining except for violations of
the Comprehensive Dangerous Drugs Act of 2002, and for other matters requiring his
presence;12 (b) referring the case to the Branch COC, if warranted, for a preliminary
conference to be set at least three days prior to the pre-trial to mark the documents or
exhibits to be presented by the parties and copies thereof to be attached to the records
after comparison and to consider other matters as may aid in its prompt disposition;
and (c) informing the parties that no evidence shall be allowed to be presented and
offered during the trial other than those identified and marked during the pre-trial
except when allowed by the court for good cause shown. A copy of the order is hereto
attached as Annex "E".
In mediatable cases, the judge shall refer the parties and their counsel to the PMC unit for
purposes of mediation if available.
4. During the preliminary conference, the Branch COC shall assist the parties in
reaching a settlement of the civil aspect of the case, mark the documents to be
presented as exhibits and copies thereof attached to the records after comparison,
ascertain from the parties the undisputed facts and admissions on the genuineness
and due execution of documents marked as exhibits and consider such other matters
as may aid in the prompt disposition of the case. The proceedings during the
preliminary conference shall be recorded in the Minutes of Preliminary Conference to
be signed by both parties and counsel. (Please see Annex "B")
The Minutes of Preliminary Conference and the exhibits shall be attached by the Branch
COC to the case record before the pre-trial.
5. Before the pre-trial conference the judge must study the allegations of the information, the
statements in the affidavits of witnesses and other documentary evidence which form part
of the record of the preliminary investigation.
6. During the pre-trial, except for violations of the Comprehensive Dangerous Drugs Act of
2002, the trial judge shall consider plea-bargaining arrangements. Where the prosecution
and the offended party 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; and
c. Render and promulgate judgment of conviction, including the civil liability or
damages duly established by the evidence.
7. When plea bargaining fails, the Court shall:
a. Adopt the minutes of 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;
b. Scrutinize every allegation of the information and the statements in the affidavits
and other documents which form part of the record of the preliminary investigation
and other documents identified and marked as exhibits in determining farther
admissions of facts, documents and in particular as to the following:
1.
2.
3.
4.
5.
6.
7.
8.
Consider modification of order of trial if the accused admits the charge but
interposes a lawful defense.
8. During the pre-trial, the judge shall be the one to ask questions on issues raised
therein and all questions must be directed to him to avoid hostilities between parties.
9. 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 Rule 118 shall be approved by the court (Section 2, Rule 118).
10. All proceedings during the pre-trial shall be recorded, the transcripts prepared and the
minutes signed by the parties and/or their counsels.
11. The trial judge shall issue a Pre-trial Order within ten (10) days after the termination of
the pre-trial setting forth the actions taken during the pre-trial conference, the facts
stipulated, the admissions made, evidence marked, the number of witnesses to be
presented and the schedule of trial. Said Order shall bind the parties, limit the trial to
matters not disposed of and control the course the action during the trial.
PLEA BARGAINING
The disposition of criminal charges by agreement between the prosecution and the accused,
sometimes called plea bargaining is to be encouraged. If every criminal charge were subjected
to a full-scale trial, the Government would need to multiply by many times the number of
judges and court facilities.
Disposition of charges after plea discussions is not only an essential part of the process but a
highly desirable part for many reasons. It leads to prompt and largely final disposition of most
criminal cases; it avoids much of the corrosive impact of enforced idleness during pre-trial
confinement for those who are denied release pending trial; it protects the public from those
accused persons who are prone to continue criminal conduct even while on pre-trial release;
and by shortening the time between charge and disposition, it enhances whatever may be the
rehabilitative prospects of the guilty when they are ultimately imprisoned.
This phase of the process of criminal justice, and the adjudicative element inherent in
accepting a plea of guilty, must be attended by safeguards to insure the defendant what is
reasonably due in the circumstances. Those circumstances will vary, but a constant factor in
that when a plea rests in any significant degree on a promise or agreement of the prosecutor so
that it can be said to be part of the inducement or consideration, such promise must be
fulfilled (Herrera citing Santobello v. New York, 404 U.S.257, 92 S. Ct. 495, 30 L. Ed 2d 427
[1971]).
NOTE: Plea bargaining is not allowed under theDangerous Drugs Acts where the imposable
penalty for the offense charged is reclusion perpetua to death (Sec. 18, R.A. 7659).
PRE-TRIAL AGREEMENT
(SEC. 2)
All agreements or admissions made or entered into during the pre-trial conference shall be
reduced in writing and signed by the accused and counsel; otherwise the same shall not be
used in evidence against the accused.
Requisites before the pre-trial agreement can be used as evidence:
1. Must be reduced in writing
2. The pre-trial agreement is signed by the accused and his counsel.
NOTE: It is required that the accused also sign thestipulation of facts to further safeguard his
right against improvident or unauthorized agreement or admission which his counsel may have
entered into without his knowledge.
NON-APPEARANCE DURING PRE-TRIAL
(SEC. 3)
General Rule:
The accused is not the one compelled to appear but only his counsel or the prosecutor.
Effect of Non-appearance during the Pre - Trial
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 in the form of reprimand, fines or imprisonment (Sec. 3)
The court can only impose sanctions for non - appearance on counsel or the prosecutor, not on
the accused. The reason why the accused is not required to appear is that to include him
among the mandatory parties might violate his constitutional right to remain silent.
PRE-TRIAL ORDER
(SEC. 4)
It is an order issued by the court reciting the actions taken, the facts stipulated and the
evidence marked during the pre - trial conference. Such order binds the parties and limits the
trial to those matters not disposed of.
After the pre-trial, the court issues an order reciting what has been taken, and thereafter the
trial on the merits will proceed on matters not disposed of during the pre-trial.
Where a plea of not guilty is entered, the accused shall have at least 15-days to prepare for trial
which shall commence within 30-days from receipt of pre-trial order.
After the pre-trial, the court issues an order reciting actions taken, facts stipulated and
evidence marked, and thereafter the trial on the merits will proceed on matters not disposed of
during the pre-trial.
To prevent manifest injustice, however, the pre-trial order may be modified by the court upon
its own initiative or at the instance of any party.
NOTE: The trial judge shall issue a Pre-trial Orderwithin 10 days after the termination of the
pre-trial setting forth the actions taken during the pre-trial conference, the facts stipulated, the
admissions made, evidence marked, the number of witnesses to be presented and the schedule
of trial. Said Order shall bind the parties, limit the trial to matters not disposed of and control
the course the action during the trial (A.M No. 03-1-09-SC).
REFERRAL OF SOME CASES FOR COURT
ANNEXED MEDIATION AND JUDICIAL
DISPUTE RESOLUTION
Court Annexed Mediation
As practiced in the Philippines, is an enhanced pre-trial procedure that involves settling
mediatable cases filed in court with the assistance of a mediator who has been accredited by
the Philippine Supreme Court. The mediator assists party litigants to identify issues and
develop proposals to resolve their disputes.
Process
Making mediation a part of Pre-trial also accounts for making the program work. Upon
appearance of the parties during pre-trial in cases covered by mediation, the Judge
immediately directs the parties to appear before the Mediation Center unit located in the
courthouse. This referral is mandatory. If Mediation succeeds, a Compromise Agreement signed
by the parties and counsel is furnished the court. If mediation fails, the case is returned to the
court which shall then set the case for resumption of pre-trial and thereafter, to try and decide
the case on its merits.
A.M. No, 11-1-6-SC-PHILJA
Re: 'Consolidated and Revised Guidelines to Implement the Expanded Coverage of CourtAnnexed Mediation [CAM] and Judicial Dispute Resolution [JDR]
Issued on 11 January 2011
Concept of court diversion of pending cases
The diversion of pending court cases both to Court-Annexed Mediation (CAM) and to Judicial
Dispute Resolution (JDR) is plainly intended to put an end to pending litigation through a
compromise agreement of the parties and thereby help solve the ever-pressing problem of court
docket congestion. It is also intended to empower the parties to resolve their own disputes and
give practical effect to the
State Policy expressly stated in the ADR Act of 2004 (R.A. No. 9285), to wit:
to actively promote party autonomy inthe resolution of disputes or the freedom of the
parties to make their own arrangement to resolve disputes. Towards this end, the State
shall encourage and actively promote the use of Alternative Dispute Resolution (ADR) as an
important means to achieve speedy and impartial justice and de-clog court dockets.
The Three Stages of Diversion
Simply stated, court diversion is a three-stage process.
The first stage is the Court-Annexed Mediation(CAM) where the judge refers the parties to
thePhilippine Mediation Center (PMC) for the mediation of their dispute by trained and
accredited mediators.
Upon failing to secure a settlement of the dispute during the first stage, a second attempt is
made at the JDR stage. There, the JDR judge sequentially becomes a mediator-conciliator-early
neutral evaluator in a continuing effort to secure a settlement. Still failing that second attempt,
the mediator-judge must turn over the case to another judge (a new one by raffle or
nearest/pair judge) who will try the unsettled case. The trial judge shall continue with the pretrial proper and, thereafter, proceed to try and decide the case.
The third stage is during the appeal where covered cases are referred to the PMC-Appeals
Court Mediation (ACM) unit for mediation.
The ultimate common end of both the Katarungang Pambarangay Law and CourtAnnexed Mediation is to restore the role of the judiciary as the forum of last recourse to be
resorted to only after all prior earnest efforts to arrive at private accommodation and resolution
of disputes have failed.
Mandatory Coverage for Court-Annexed Mediation (CAM) and Judicial Dispute
Resolution (JDR)
1. The following cases shall be referred to Court-Annexed Mediation (CAM) and be the
subject of Judicial Dispute Resolution (JDR) proceedings:
a. 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;
b. All civil and criminal cases filed with a certificate to file action issued by the
PunongBarangay or the PangkatngTagapagkasundo under the
Revised
Katarungang Pambarangay Law.
c. The civil aspect of Quasi-Offenses under Title 14 of the Revised Penal Code;
d. The civil aspect of less grave felonies punishable by correctional penalties not
exceeding 6 years imprisonment, where the offended party is a private person;
e. The civil aspect of estafa, theft and libel;
2. The following cases shall not be referred to CAM and JDR:
a. Other criminal cases not covered under (b) to (e) above;
b. All cases under R.A. No. 9262 (Violence against Women and Children);
c. Cases with pending application for restraining orders/preliminary injunctions.
However, in cases covered under b and c where the parties inform the court that they have
agreed to undergo mediation on some aspects thereof, e.g., custody of minor children,
separation of property, or support pendente lite.
Pre-trial order
No
Accused brought to trial within the time limit prescribed?File for motion to dismiss on the ground of denial of right to speedy trial
Yes
Prosecution presents evidence to prove the charge
Yes
No
Accused presents evidence to prove his defense
Yes
No
Prosecution presents rebuttal evidence
No
Yes
Granted?
Dismiss the case on the ground of insufficiency o
No
Dismiss
caseoffense?
upon filing of the proper information
Offense charged includes/necessarily included
on thethe
proper
No
Yes
Conduct another PI and arraignment to the new informatio
If judgment is for conviction, convict accused of the lesser offense, ie. that which is included in the offense charged or approved
JUDGMENT
RULE 119
TRIAL
the
time
limitation
is
the
are
The witness is
automatically
entitled to certain
rights
and
benefits
The
witness
so
discharged
must
still apply for the
enjoyment of said
rights and benefits
in the DOJ
He is charged in
The witness need
court as one of the
not be charged
accused as stated
elsewhere
in the information
The charges against
No
information
him
shall
be
may thus be filed
dropped and the
against
the
same operates as
witness
an acquittal
Meaning of absolute necessity
In coming to his conclusions as to the
necessity for the testimony of the accused
whose discharge is requested, as to the
availability or non-availability of other
direct or corroborative evidence; as to
which of the accused is the most guilty
one; and the like, the judge must rely in
large part upon the suggestions and the
information furnished by the prosecuting
officer (Chua v. Court ofAppeals, G.R. No.
103397, 28 August 1996)
SEC. 17,
RULE 119
RULES OF COURT
It
has
qualifications;
applies
top
felonies
no
it
all
The immunity is
The immunity is
granted
by
the
granted by DOJ
court
1.
MOTION TOQUASH
DEMURRER
TOEVIDENCE
Filed
before
the Filed
after
defendant enters his prosecution
plea
rested its case
Does not go into the
merits of the case
but is anchored on
matters not directly
related
to
the
question of guilt or
innocence
of
the
accused
Governed
117
by
Based
upon
the
inadequacy
of the
evidence adduced by
the prosecution in
support
of
the
accusation
Rule Governed
119
the
has
by
Rule
RULE 120
RULE 120
JUDGMENT
Judgment Flowchart
JUDGMENT
State whether:
Evidence absolutely failed to prove guilt
Evidence failed to prove guilt beyond reasonable doubt
Determine if act or omission which liability that might arise did not exist
Acquittal
Conviction
State:
Legal qualification
Participation of the accused
Penalty imposed
Civil liability
Read the promulgation in the presence of accused and any judge of the court in which
YES
Accused appeared during promulgation?
NO
NO
Absence was without justifiable cause?
Accused allowed availing of the remedies
YES
Accused loses the remedies available and the court shall order his arrest
OF
PROMULGATION
IN
New trial
Irregularities
are
expunged from the
record and/or new
evidence
is
introduced.
RULE 121
NEW TRIAL OR RECONSIDERATION
Requisites
foramotionfornewtrialor
reconsideration:
1. In writing;
2. Filed with the court;
3. State grounds on which it is based;
4. If the motion for new trial is based
on newly discovered evidence, it
must be supported by the affidavits
of the witness by whom such
evidence is expected to be given or
duly
authenticated
copies
of
documents which it is proposed to
introduce in evidence;
5. Notice of the motion for new trial or
reconsideration shall be given to the
fiscal;
A motion for a new trial or reconsideration
should be filed with the trial court within
15 days from the promulgation of the
judgment and interrupts the period for
perfecting an appeal from the time of its
filing until notice of the order overruling the
motion shall have been served upon the
accused or his attorney (Sec. 6, Rule 122.)
If an appeal has already been perfected, a
motion for new train on the ground of newly
discovered evidence may be filed in the
appellate court (Sec. 14, Rule 124.)
RECONSIDERATION
May be filed in
order to correct
errors of law or fact
in the judgment. It
does not require
any
further
proceeding.
GROUNDS
a. Errors of
law
or irregularities
prejudicial
to
the substantial
rights
of the
accused
have
been committed
during the trial.
b. 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.)
OtherGrounds:
Negligence
or
incompetency of
counsel
or
mistake which
is
so
gross
amounting
to
deprivation
of
the substantial
rights of the
accused
and
due process;
Recantation of a
witness where
there
is
no
evidence
sustaining the
judgment
of
conviction other
than
the
testimony
of
such witness;
Improvident
plea of guilty
which may be
withdrawn;
a. Errors of law;
b. Errors of fact in
the
judgment
(SEC. 3)
The
principle
underlying this rule
is to afford the trial
court
the
opportunity
to
correct
its
own
mistakes and to
avoid unnecessary
appeals from being
taken. The grant by
the
court
of
reconsideration
should require no
further
proceedings, such
as
taking
of
additional proof.
Disqualification
of attorney de
officio
to
represent
accused in trial;
REOPENING
NEW TRIAL
Civil Cases
An order granting
a new trial is
interlocutory and
NOT
appealable
and is generally
NOT correctable by
the special civil
actions
of
certiorari,
prohibition
or
mandamus.
acquittal
from
which
the
prosecution can
no longer appeal).
CASES DECIDED BY
MeTC, MTCC, MTC or MCTC
RTC in the exercise of its original
jurisdiction, where the penalty is
lower than reclusion perpetua
WHERE TO APPEAL
RTC
By notice of appeal
(ordinary appeal)
CA
By notice of appeal
(ordinary appeal) based
on questions of fact or
mixed questions of fact
and law
CA
CA
CA
SANDIGANBAYAN
By notice of appeal
(regular appeal)
SC
SC
By notice of appeal
(ordinary appeal) based
on questions of fact and
law
RULE 123
PROCEDURE IN MUNICIPAL TRIAL
COURT
UNIFORM PROCEDURE
(SEC. 1)
The procedure to be observed in the
Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts,
shall be the same as in the Regional Trial
Courts, except where a particular provision
applies only to either of said courts and in
criminal cases governed by the Revised
Rule on Summary Procedure.
Criminal Trial Process
Warrantless Arrest
(ART 113, Sec.5, par. a to c)
Search Warrant
Inquest
Complaint Affidavit
Waived?
YES
Preliminary Investigation
BAIL
NO
Probable Cause?
Information
Probable Cause?
YES
NO
YES
NO
Warrant of Arrest
Dismissed
Dismissed
RULE 124
PROCEDURE IN COURT OF APPEALS
APPOINTMENT OF COUNSEL DE OFICIO
(SEC. 2)
(SEC. 4)
the
RULE 126
WARRANT OF
ARREST
SEARCH
WARRANT
Order directed to
the peace officer to
execute
the
warrant by taking
the person stated
therein
into
custody so that he
may be bound to
answer
for
the
commission of the
offense. Does not
become stale.
Order in writing in
the name of the
Republic of the
Philippines signed
bythe judge and
directed to the
peace officer to
search
personal
property described
therein
and
to
bring it to court.
Validity is for 10
days only.
May be served on
anyday and at any
time of day or
night.
Searching
examination
witnesses is
necessary.
To be served only
in daytime unless
the
affidavit
alleges that the
property is on the
person or in the
place
to
be
searched.
Must
personally
of conduct
an
not examination of the
complainant and
the witnesses.
Judge is merely
called
upon
to
examine
and
evaluate the report
of the fiscal and
the evidence.
Examination must
be probing. Not
enough to merely
adopt
the
questions
and
answers asked by
a
previous
investigator.
or
body
I.
ENFORCEMENT
SANITARYLAWS
OF
HEALTH
AND
any
evidence
obtained
through
unreasonable searches and seizures
shall be inadmissible for any purpose
in any proceeding);
3. Replevin, if the objects are illegally
possessed.
Party who may question validity of
search warrant: Well settled is the rule that
the legalityof a seizure can be contested only
by the party whose right have been impaired
thereby, and that the objection to an
unlawful search and seizure is purely
personal and cannot be availed of by third
parties (Stonehill v. Diokno, G.R. No. L-19550,
June 19, 1967.)
A MOTION TO QUASH A SEARCH
WARRANT OR TO SUPPRESS EVIDENCE;
WHERE TO FILE
General Rule: A motion to quash a
searchwarrant or to suppress evidence may
only be filed and acted upon only by the
court where the action is pending.
Exception: If no criminal action has been
filed,the motion may be filed in and resolved
by the court that issued the search warrant.
Exception to the Exception: If the criminal
case issubsequently filed in another court
and the motion to quash is still not resolved
by the issuing court, the motion shall not be
resolved by the former court unless
SPECIAL PROCEEDING
A remedy by which a party seeks to establish a status, right or a particular fact. (Rule
1, Sec. 3 (c)).
An application to establish the status or right of a party or a particular fact or any
remedy other than an ordinary suit in a court of justice. (Regalado, 2008).
ORDINARY
ACTION
To enforce or
protect a right or
prevent or
redress of a
wrong
There is an
adverse party
SPECIAL
PROCEEDINGS
To establish a
status, right, or a
particular fact
No adverse party
Ordinary appeal
Multiple appeals
There is
prescriptive
period
No prescriptive
period
General
jurisdiction
Initiated by a
pleading, and
parties respond
through an
answer
Limited jurisdiction
Initiated by a
petition and parties
respond through an
opposition
RULE 72
SUBJECT MATTER AND APPLICABILITY OF GENERAL RULES
Section 1.Subject Matter
(SEGTAR-HOHA-C3-VoJuD)
1. Settlement of estate of deceased persons;
2. Escheat;
3. Guardianship and custody of children;
4. Trustees;
5. Adoption;
6. Rescission and revocation of adoption;
7. Hospitalization of insane persons;
8. Habeas corpus
9. Change of name;
10.Voluntary Dissolution of Corporations;
11. Judicial approval of voluntary recognition of minor natural children;
12. Constitution of Family Home;
13. Declaration of absence and death;
Corporate rehabilitation;
Liquidation proceedings;
Recognition and enforcement of arbitration clause or award;
Vacation, setting aside, correction or modification of an arbitral award;
Any application with a court for arbitration assistance and supervision;
Petition for Writ of Amparo (AM 07-9-12-SC, October 16, 2007);
Petition for Writ of Habeas Data (AM 08-1-16-SC, February 2, 2008).
RULE 73
SETTLEMENT OF ESTATE OF DECEASED PERSONS
VENUE AND PROCESS
Different modes of settlement of estate of a deceased person:
1.
2.
3.
4.
5.
6.
DECEDENT
TESTATE
Summary
Probate
BAR (2003)
A: The probate proceeding on the estate of A should be instituted in the Municipal Trial Court
of Malolos, Bulacan which has jurisdiction, because the estate is valued at 200,000.00, and is
the court of proper venue because A was a resident of Malolos at the time of his death.
Exceptions: However, the following persons would be considered absent even for the purpose
of opening succession after just 4 years: [Art. 391, CC] .
1) A person on board a vessel lost during a sea voyage, or an aero plane which is missing.
2) A person in the armed forces who has taken part in war.
3) A person who has been in danger of death under other circumstances.
If the absentee turns out to be alive, shall be entitled to the balance of his estate after payment
of all his debts. The balance may be recovered by motion in the same proceeding. [Rule 73, Sec.
4]
Residence
Personal, actual, or physical habitation, his actual residence or place of abode (Fule vs CA, G.R.
No.112212, March 2, 1998))
EXTENT OF JURISDICTION OF PROBATE COURT
1.
2.
3.
4.
DETERMINATION OF OWNERSHIP
General Rule: Not Allowed
Exceptions:
1. Provisionally, ownership may be determined for the purpose of including property in
inventory, without prejudice to its final determination in a separate action.
2. If all the parties are heirs and they submit the issue of ownership to probate court, provided
that the rights of 3rd parties are not prejudiced.
3. If the question is one of collation or advancement.
4. If the parties consent to the assumption of jurisdiction by the probate court.
f. Authorizes sale, mortgage or any encumbrance of real estate (Rule 89, Sec. 2);
g. Directs the delivery of the estate to those entitled thereto (Rule 90, Sec. 1);
h. Issue warrants and processes necessary to compel the attendance of witnesses or to
carry into effect their orders and judgments, and all other powers granted them by law
(Rule 73, Sec. 3);
i. If a person defies a probate order, it may issue a warrant for the apprehension and
imprisonment of such person until he performs such order or judgment, or is released
(Rule 73, Sec. 3).
2. The court acts as trustee and as such, should jealously guard the estate and see to it that it
is wisely and economically administered, not dissipated (Timbol v. Cano, G.R. L-15445, April 29,
1961).
KINDS OF SPECIAL
PROCEEDINGS
1. Settlement of Estate
(Rule 73)
3. Guardianship
a. Rule on
Guardianship of Minors
(A.M. No. 03-02-05-SC)
b. Guardianship over
incompetent persons
who are not minors
2. If the petition is for Rescission of Adoption of the AdopteeFamily Court of the city or province where the adoptee resides.
(Sec. 19)
1. Family Court having jurisdiction over the place where the child
resides or may be found (filed by a foreign national or Filipino
citizen permanently residing abroad).
2. It may be filed directly with the Inter-Country Adoption Board.
5. Habeas Corpus
a. Habeas Corpus for
illegal confinement or
detention (Rule 102)
1. If filed with RTC, where the person is detained. SC, CA and RTC
have concurrent jurisdiction.
10. Cancellation or
Correction of Entries
(Rule 108)
RULE 74
SUMMARY SETTLEMENT OF
ESTATES
RULE WITH RESPECT TO THE ESTATE
LEFT BY THE DECEDENT
General Rule: When a person dies leaving
property, the same should be JUDICIALLY
ADMINISTERED and the competent court
should appoint a qualified administrator, in
the order established in Section 6, Rule 78,
in case the deceased left no will, or in case
he had left one, should he fail to name an
SETTLEMENT OF ESTATES
EXTRA-JUDICIAL SETTLEMENT
BY AGREEMENT BETWEEN
HEIRS; WHEN ALLOWED
(Bar Question, 2005)
AFFIDAVIT OF SELFADJUDICATION BY
SOLE HEIR
Requisites:
Requisites:
Requisites:
WHERE TO FILE:
Agreement filed with the Register of
Deeds by means of:
1. Public instrument, if there are
more than one heir, or
2. Affidavit of adjudication, if
there is a sole heir.
WHERE TO FILE:
Affidavit filed with the
Register
of
Deeds
(Affidavit
of
selfadjudication).
WHERE TO FILE:
In accordance with B.P 129, the
summary settlement of estates of small
value is within the jurisdiction of the
MTCs.
PUBLICATION:
Published in a newspaper of general
circulation in the province once a
week for three consecutive weeks.
PUBLICATION:
Published
in
a
newspaper of general
circulation
in
the
province once a week
for three consecutive
weeks.
PUBLICATION:
Notice published at least once a week for
3 consecutive weeks in a newspaper of
general circulation;
BOND:
A bond is required only when
personality is involved. Real estate
is subject to a lien in favor of
creditors, heirs or other persons for
full period of two years from such
distribution and such lien cannot be
substituted by a bond.
BOND:
Bond shall be filed
equivalent to the value
of
the
personal
property involved with
the register of deeds
OF ESTATE
REMEDIES OF AN EXCLUDED HEIR (S-AR-A)
1. Action to compel settlement of estate
(Rule 74, Sec. 4)
2. Action for rescission on the ground of
lesion (Art. 1381, par. 1, NCC)
Prescriptive period is 4 years
3. Accion Reivindicatoria
10 years, Implied Trust (Lajom v.
Viola, GRN 47475, May 6, 1942)
4. Annulment on the ground of fraud
Prescriptive period is 4 years
(Gerona v.De Guzman, GR L19060, 1964)
PERIOD FOR CLAIM OF MINOR OR
INCAPACITATED PERSON
If on the date of the expiration of the period
of two (2) years prescribed in the preceding
section the person authorized to file a claim
is:
1. a minor;
2. or mentally incapacitated, or
3. is in prison or;
4. outside the Philippines;
He may present his claim within one (1)
year after such disability is removed.
(Section 5, Rule 74).
RULE 75
PRODUCTION OF WILL; ALLOWANCE OF
WILL NECESSARY
Will is an act whereby a
permitted, with the formalities
by law, to control to a certain
disposition of his estate, to take
his death.
person is
prescribed
degree the
effect after
Death of Decedent
Petition for Probate of the will, if any
Court Order fixing the time and place for probate
Publication of Hearing
wspaper of general circulation. Notice shall also be given to the designated/known heirs, legatees and devisees
Filing of Claims
Payment of Claims
Distribution
PROBATE OF A WILL
A judicial act whereby an instrument is
adjudged valid and is ordered to be
recorded. It is the statutory method of
establishing the proper execution of the
instrument and giving notice of its
contents. The probate of a will by the court
having jurisdiction thereof is considered as
conclusive as to its due execution and
testamentary capacity of the testator
(Mercado v. Santos, No. 45629, 22
September 1938).
MANDATORY NATURE
PROCEEDINGS
OF
PROBATE
Exceptions:
a. The heirs divide the estate according
to the will; pay the creditors
accordingly so that none of them may
be prejudiced. By permitting partition
and division of estate without judicial
proceedings would enable the heirs to
take over their respective shares in
the inheritance without delay and
thereby avoid expenses and waste
(McMicking v. Sy Combieng, 21 Phil.
219).
b. If the testator should make a partition
of his properties by an act inter vivos,
or by his will such partition shall
stand in so far as it does not prejudice
the legitime of the forced heir (MangOy v. CA, 144 SCRA 33).
THE INTRINSIC VALIDITY OF A WILL
General rule: The probate courts authority
is limited to:
1) Extrinsic validity of the will.
2) Due execution thereof.
o The will was executed
strictly in accordance
with
the
formalities
required by law;
o The testator was of
sound
and
disposing
mind when he executed
the will;
o There was no vitiation of
consent through duress,
fear or threats;
o It was not procured by
undue
or
improper
pressure or influence on
the
part
of
the
beneficiary,
or
some
other person for his
benefit; and
o The signature of the
testator is genuine (Civil
Waste
of
time/effort/expense plus added anxiety are
the practical considerations that induce us
to a belief that we might as well meet headon the issues of the validity of the
provisions of the will. (Nuguid v. Nuguid,
G.R. No. L-23445, June 23, 1966)
IMPRESCRIPTIBLE
Public policy requires that the will of the
testator must be obeyed.
Inasmuch as the probate of wills is required
by public policy, the State could not have
intended to defeat the same by applying
NEGLECT OF DUTY
If the custodian or the executor neglects to
deliver the will, they may be subject to a
fine not exceeding Php 2,000.00 (Rule 75,
Sec. 4).
If
the
custodian
neglects
without
reasonable cause to deliver the will, when
ordered to do so, he may be committed to
prison until he delivers the will (Rule 5,
Sec. 5).
RULE 76
ALLOWANCE AND DISALLOWANCE OF
WILL PERSON WHO MAY FILE PETITION
FOR ALLOWANCE
(Rule 76, Sec. 1)
1. Executor
2. Devisee
3. Legatee
4. Person interested in the estate
5. Testator himself during his lifetime
6. Any creditor
Mandamus is not proper to compel a
mother to produce the fathers holographic
will. This is because there is a plain,
speedy, and adequate remedy in the
ordinary course of law, that is, the filing of
a petition for probate under S1 R76 and
then moving for the production of the will
under S2 (5) R75. Under S1 R76, an
interested person may petition the court
having jurisdiction to have the will allowed,
whether the same be in his possession or
not, or is lost or destroyed. (Uy v. Lee,
FOR
Contested ( Rule
76, Sec. 11)
All subscribing
subscribing
witness may testify
Holographic Will
Uncontested
(Rule 76, Sec. 5)
At least one
witness who
knows the
handwriting and
signature of the
testator explicitly
declare that the
will and the
signature are in
the handwriting of
the testator
Contested ( Rule
76, Sec. 11)
Three witnesses
who knows the
handwriting of the
testator
In the absence
thereof, expert
testimony may be
resorted to
DESTROYED
ADMINISTRATION OF ESTATE
THEREUNDER
GROUNDS FOR DISALLOWING A WILL
(FCDPIFM)
a. The will was not executed and attested as
required by law;(FORMALITIES)
b. The testator was insane or otherwise
mentally incapable of making a will at the
time of its execution; (CAPACITY)
c. The will was executed through force or
under duress or the influence of fear, or
threats;(DURESS)
d. The will was procured by undue and
improper pressure and influence, on the
part of the beneficiary or of some other
person for his benefit; (PRESSURE AND
INFLUENCE)
e. The signature of the testator was
procured by fraud or trick;(FRAUD)
f. The testator acted by mistake or did not
intend that the instrument he signed
should be his will at the time of affixing his
signature thereto. (MISTAKE)
(Art 839, New Civil Code); (Rule 76, Sec. 9)
SUBSTANTIAL COMPLIANCE
If the will has been executed in substantial
compliance with the formalities of the law,
and the possibility of bad faith and fraud is
obviated, said will should be admitted to
probate (Civil Code, Art. 809).
Note: the list is exclusive (Spouses Ajero
vs.CA, GR, 106720, September 15, 1994)
REPROBATE
Will proved outside Philippines may be
allowed here (Rule 77, Sec. 1).
A will allowed to probate in a foreign
country must be probated again in the
Philippines. This is also known as
reprobate. The venue for the petition for
re-probate is the same as that provided for
in Rule 73.
TWO TYPES OF ESTATE PROCEEDINGS:
1. DOMICILIARY ADMINISTRATION the
proceeding instituted in last residence of
the decedent.
2. ANCILLARY ADMINISTRATION the
administration proceedings where he left
his estate.
Requisites of Ancillary Administration
(Sec. 2)
1. There must be a will;
2. Filing of:
a. Copy of the will executed in foreign
country
b. Order or decree of foreign court
allowing such will
c. Authentication of requisites a and b
above
3. Notice of time and place of hearing;
4. Hearing;
5. Certificate of allowance.
probate procedure;
e. Legal requirements in said foreign
country for the valid execution of the will;
The necessity of presenting evidence on the
foreign laws upon which the probate in the
foreign country is based is impelled by the
fact that our courts cannot take judicial
notice of them (Vda. de Perez vs. Tolete,
G.R. No. 76714, June 2, 1994).
EFFECTS OF REPROBATE
(Rule 77, Sec. 3 and 4)
1. The will shall be treated as if originally
proved and allowed in Philippine courts;
2. Letters testamentary or administration
with a will annexed shall extend to all
estates of the Philippines;
3. After payment of just debts and expenses
of administration, the residue of the estate
shall be disposed of as provided by law in
cases of estates in the Philippines belonging
to persons who are inhabitants of another
state or country
Executor
Nominated by the
Administrator
Appointed by the
testator
appointed
court
and
by the
Testator
may
provide
that
executor may serve
without bond (but
the
court
may
direct him to give
bond to pay debts)
Administrator must
always give a bond
Compensation may
be provided for by
the testator in the
will;
otherwise,
Rule 85, Sec. 7
shall apply.
Compensation is to
be
governed
by
Rule 85, Sec. 7
WHEN
AND
TO
WHOM
LETTERS
OFADMINISTRATION GRANTED
If a person dies testate, the initiatory
pleading is a:
1. Petition for allowance of will and for
letterstestamentary if there is an executor
named in the will, or
ORDER OF PREFERENCE
1. The surviving husband or wife or the
next of kin, or both in the discretion of the
court, or to such person as such surviving
spouse orn ext of kin, request to have
appointed, if competent and willing to serve.
(SURVIVING SPOUSE OR NOMINEE)
2. If the surviving spouse or the next of kin
or the person selected by them be
incompetent or unwilling to serve, or if the
surviving spouse or next of kin neglects for
30 days after the death of the decedent to
apply for administration, any one or more of
the principal creditors, if competent and
willingto serve.(CREDITORS)
3. If there is no such creditor competent
andwilling to serve, it may be granted to
suchother person as the court may select.
(STRANGER)
NEXT OF KIN are those persons who are
entitled by law to receive the decedents
property
(REGALADO,Vol.II,page
46
;Ventura
vs.
Ventura,G.R
No.
L46320,October 5,1939)
They are heirs under the law of succession.
Generally, the nearest of kin, whose interest
is more preponderant, is preferred in the
choice of administrator.
RULE 79
OPPOSING ISSUANCE OF LETTERS
TESTAMENTARY PETITION AND
CONTENTS FOR LETTERS OF
ADMINISTRATION
Section 1: Opposition to issuance of
letters testamentary; Simultaneous filing
of petition for administration
Any interested person in a will may, by filing
a written opposition, contest the petition on
the ground of the incompetency of the
person for whom letters are prayed therein,
on the ground of the contestants own right
to the administration, and may pray that
letters issue to himself, or to any competent
person or persons named in the opposition.
(Rule 79, Sec. 4)
THE ESTATE:
1. To have access to, and examine and take
copies of books and papers relating to the
partnership in case of a deceased partner;
2. To examine and make invoices of the
property belonging to the partnership in
caseof a deceased partner;
3. To make improvements on the properties
under administration with the necessary
court approval except for necessary repairs;
4. To possess and manage the estate when
necessary:
a. payment of debts; and
b. payment of expenses of
administration;
5. To maintain in tenantable repairs houses
ando ther structures and fences and to
deliver the same in such repair to the heirs
or devisees when directed so to do by the
court.
LIMITATIONS ON THE POWER OF AN
ADMINISTRATOR:
1. An administrator has no power to
exercise acts of ownership over the estate
i.e. disposition,sale etc.
2. The constitution of a lease over the
property of the estate is an act of
administration and leave of court is not
required. Any interested party who desires
to impugn the same must do so in an
ordinary civil action as the probate court
has no jurisdiction over the lessee
(Regalado, 2008).
RULE 80
SPECIAL ADMINISTRATOR
APPOINTMENT OF SPECIAL
ADMINISTRATOR
The court may
appoint a special
administrator to take charge of the estate:
a. When there is a delay in granting
letterstestamentary or of administration by
Special
Administrator
Order of
appointment is an
interlocutory order
and may not be the
subject of an
appeal
One of the
obligations is to pay
the estate's debts
Appointed if
decedent:
Appointed if there
is :
1.Delay in granting
letters
testamentary
or
letters
of
administration, or;
3. If the appointee
refused or is not
2. If the executor is
a claimant of the
qualified.
estate
represents.
he
RULE 82
REVOCATION OF ADMINISTRATION,
DEATH, RESIGNATION, AND REMOVAL
OF EXECUTORS AND ADMINISTRATORS
GROUNDS FOR REMOVAL OF
ADMINISTRATOR:
The court may remove an executor
oradministrator if he: (U-PAIR)
a. Becomes unsuitable to discharge
the trust
b. Neglects to perform an order or
judgment ofthe court;
c. Absconds;
d. Becomes insane;
e. Neglects to render his account and
settle the estate.
The grounds are not exclusive. There
may be other grounds for the removal of an
administrator, to wit:
a. The administrator disbursed the
funds of the estate without judicial
approval (Cotia vs. Jimenez, G.R. No. L12132, December 22, 1958)
b.
False
representation
by
the
administrator in securing his appointment
(Cobarrubias vs. Dizon, G.R. No. L-225,
February 26, 1946);
c. The administrator holds an interest
adverse to that of the estate (Garcia vs.
Vasquez, G.R. No. L- 26884, April 30, 1970);
or
d. Physical inability of the administrator
and consequent unsuitability to manage
the estate (De Borja vs. Tan, G.R. No. L6476, November 18, 1955)
The court may in its discretion permit
the executor or administrator to resign
(Rule 82, Sec. 2).
The rule on proceedings upon death,
resignation or removal of an executor or
administrator:
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 act with him. If there is
no remaining executor or administrator,
administration may be granted to any
suitable person. (Rule 82, Sec. 2)
LAWFUL ACTS BEFORE REVOCATION,
RESIGNATION, REMOVAL ARE VALID
The lawful acts of an executor or
administrator
before
the
revocation,
resignation, or removal shall have the
validity as if there had been no such
RULE 83
INVENTORY & APPRAISAL;
PROVISION FOR SUPPORT OF FAMILY
another,
the
administration;
RULE 84
GENERAL POWERS AND DUTIES OF
EXECUTORS AND ADMINISTRATORS
1. To have access to, and examine and
take copies of books and papers
relating to the partnership in case of
a deceased partner;
2. To examine and make invoices of the
property
belonging
to
the
partnership in case of a deceased
partner;
3. To maintain in tenantable repairs,
houses and other structures and
fences and to deliver the same in
such repair to the heirs or devisees
when directed so to do by the court;
4. To make improvements on the
properties under administration
with the necessary court approval
except for necessary repairs;
5. To possess and manage the estate
when necessary:
i) For the payment of debts; and
ii) For the payment of expenses of
administration.
Note: The right of an executor or
administrator to the possession and
management of property of the deceased is
not absolute. It can only be exercised so
long as it is necessary for the payment of
debts and expenses of administration
(Estate of Hilario Ruiz v. Court of Appeals,
G.R. No.118671, Jan. 29, 1996)
The following are the restrictions on the
powers of administrator or executor:
1. He cannot acquire by purchase,
even at public or judicial action,
either in person or mediation of
property
under
RULE 85
ACCOUNTABILITY AND COMPENSATION
OF EXECUTORS AND ADMINISTRATORS
ADMINISTRATION EXPENSES(M-P-P)
Administration expenses should be those
which are necessary for the:
3. Production of fruits.
against
No
executor
or
administrator
or
administrator shall profit by the increase,
or suffer loss by the decrease or
destruction, without his fault, of any part of
the estate. (Rule 85, Sec. 2)
RULE 86
CLAIMS AGAINST THE ESTATE
Section 1: Duty Of The Court After
Granting Letters Testamentary Or Of
Administration:
The court shall issue a notice requiring all
persons having money claims to file them in
the office of the clerk of court.
Non-payment of docket fee for a money
claim is not a ground for its dismissal. The
probate court should just order the
payment of the docket fees within a
2. Defendant
dies
while
the action is
pending
in
the RTC.
Not for
the
primary
purpose
of
recovery
of
money,
debt or
interest.
Action shall
not
be
dismissed.De
cedent heirs
or other legal
representativ
es will merely
be
substituted
for
the
decedent
in
said
action
without
the
appointment
of
an
executor
or
administrator
. (Rule 3, Sec.
16)
3. Final
judgment
had already
been
rendered
against the
decedent
prior to his
death.
judgme
nt for a
sum of
money
A.Without
levy
on
execution
having been
effected
against
his
property,
such
judgment for
a
sum
of
money must
also be filed
as a claim
against
the
estate. (Rule
39, Sec. 7[c]).
OF
ACTION
1. Defendant
dies before
final
judgment in
the RTC.
Recover
y
of
money,
debt or
interest.
EFFECT OF
DEATH
Action shall
not
be
dismissed but
shall
continue
until entry of
judgment.
(Rule 3, Sec.
21)
4. Final
Recover
B.If levy on
execution had
already been
made before
his death, the
execution
shall proceed.
(Rule 39, Sec.
7[c]).
Claimant
judgmenttre
ndered
against the
decedent in
his lifetime.
5. Where the
defendant
dies
while
the
action
against him
is pending in
the Court of
Appeals.
y of real
or
personal
property
other
than
money,
or the
enforce
ment of
a lien
thereon.
must obtain a
writ
of
execution for
enforcement
against
the
executor,
administrator
or successorin-interest of
the deceased.
(Rule 39, Sec.
7[b])
sum of
money
Deceased
shall
be
substituted
therein by his
legal
representativ
e
but
the
final
judgment of
the appellate
court cannot
be
enforced
by a writ of
execution but
should
be
filed in the
probate court
as a money
claim
in
accordance
with Rule 86,
Sec.
5.
(Paredes, et.
al. vs. Moya,
et. al., G.R.
No. L-38051,
December 26,
1973)
CLAIM OF EXECUTOR
ORADMINISTRATOR AGAINST THE
ESTATE
the executor or
to the special
funds to defend
8).
ATTORNEY OF THE
ADMINISTRATOR
EXECUTOR
OR
Ds administrator by way of
offset? Why?
2. Suppose Ds administrator did not
allege any claim against X by way
of offset, can Ds administrator
prosecute the claim in an
independent proceeding? Why?
A:
1. No, because since the claim of X was
disallowed, there is no amount against
which to offset the claim of Ds
administrator.
2. Yes, Ds administrator can prosecute the
claim in an independent proceeding since
the claim of X was disallowed. Id X had a
valid claim and Ds administrator did not
allege any claim against X by way of offset,
his failure to do so would bar his claim
forever.
RULE 87
ACTIONS BY AND AGAINST
EXECUTORS AND ADMINISTRATORS
RULE 87
RULE 86
2.Enforcement of
a lien thereon;
3.Action to recover
damages arising
from tort
1.Money claims,
debts incurred by
the deceased
during his lifetime
arising from a
contract;
2.Claims for
funeral expenses
or for the last
illness of the
deceased;
3.Judgment for
money against the
decedent
WHEN TO PAY
After hearing all the money claims against
the estate and after ascertaining the
amount of such claims, and it appears that
there are sufficient assets to pay the debts,
the executor or administrator shall pay the
same within the time limited for that
purpose (Rule 88, Sec. 1)
Testator in his will may designate the part
of the estate from which the debts shall be
paid or make a provision for the payment of
debts, but if the provision made by the will
or the estate appropriated is not sufficient,
such part of the estate, real or personal, as
is not disposed of by will shall be
appropriated for that purpose. (Rule 88,
Sec. 2)
ORDER IN WHICH ESTATE PROPERTY IS
CHARGED FOR THE PAYMENT OF
DEBTS ANDEXPENSES
1. Personal estate of the deceased not
disposedof by will;
2. Whole of the real estate not disposed of
by will, if said personal estate is not
sufficient for that purpose, or its sale would
redound
to
the
detriment
of
the
participants of the estate.
REAL ESTATE MAY BE:
A.Sold,
B. Mortgaged or;
C.Otherwise encumbered for that purpose
by the executor or administrator, after
obtaining the authority of the court
therefor.
3. Any deficiency shall be met by
contributions
in
accordance
withthe
provisions of section 6 of this rule. (Rule
88, Sec. 3)
HEIRS LIABILITIES
General Rule: Heirs are not required to
respond with their own property for the
debts of their deceased ancestors.
Exceptions: Even after the partition of the
estate, the heirs and distributees are liable
individually for the payment of all lawful
outstanding claims against the estate in
proportion to the amount or value of the
property they have respectively receives
from the estate.
The hereditary property consists only of
that part which remains after the
settlement of all lawful claims against the
estate, for the settlement of which the entire
estate is first liable.
(Rule
Claim
is
not
presented,
after
having
become
absolute,
within
said 2 years.
Effect/s
1. If it is NOT
DISPUTED by the
executor
or
administrator
it
may be allowed by
the court.
2. If DISPUTED, it
may be proved and
allowed
or
disallowed by the
court as the facts
may warrant.
If Contingent claim
is allowed ,creditor
shall receive
payment to the
same extent as the
other creditors if
the estate retained
by the executor or
administrator is
sufficient. (Rule 88,
Sec. 5)
If
contingent
claim is allowed:
The
assets
retained
in
the
hands
of
the
executor
or
administrator,not
exhausted in the
payment of claims
shall be distributed
by the order of the
court
to
the
persons entitled to
the same. (Sec. 4,
Rule 88)
Assets
so
distributed
may
still be applied to
the payment of the
claim
when
established,
and
the creditor may
maintain an action
against
the
distributees
to
recover the debt,
and
such
distributees
and
their estates shall
be liable for
the
debt in proportion
to the estate they
have
respectively
received from the
property
of
the
deceased.
a.
b.
c.
Application
of
executor
or
administration;
Written notice to heirs, devisees
and legatees residing in the
Philippines; This is mandatory.
Hearing
of
the
executor
or
Rule 90
DISTRIBUTION AND PARTITION OF THE
ESTATE
Section
7:
REGULATIONS
FOR
GRANTING
AUTHORITY
TO
SELL,
MORTGAGE,
OR
OTHERWISE
ENCUMBER ESTATE.
PROCEDURES:
1. Executor or Administrator shall file a
written petition.
The petition must show that the sale,
mortage or other encumbrance is necessary
or beneficial.
2. The court shall fix a time and place for
hearing such petition.
3. Give notice to the persons interested by
mail or publication.
4. The court shall issue an order
authorizing the executor or administrator to
sell such part of the estate.
The estate may be sold at private or public
auction.
ADVANCE/PARTIAL DISTRIBUTION
Although it is within the discretion of the
RTC whether or not to permit advance
distribution of the estate, its exercise of
such discretion should be qualified by the
following:
(1) Only part of the estate that is not
affected by any pending controversy or
A person claiming to be an
acknowledged natural child of a deceased
need not maintain a separate action for
recognition but may simply intervene in the
intestate proceedings, by alleging and
proving therein his or her status as such,
and claiming accordingly the right to share
in the inheritance. (Lopez vs. Lopez, G.R.
No. 45736, May 26, 1939)
Rule 91
ESCHEAT
Concept of ESCHEAT:
1. It is the falling of a decedents estate
into the general property of the
State on his death intestate without
lawful
heirs,
and
is
applied
indifferently to all his rights to
property of whatever nature.
2. It is a proceeding whereby the real
and personal property of a deceased
person become the property of the
State upon his death without
leaving a will or legal heirs (Festin,
Special Proceedings: A Foresight to
the Bar Exam, [2011] p. 101)
THREE INSTANCES OF ESCHEAT:
1. A person died intestate;
2. Reversion proceedings (the sale of
property was made in violation of
the Constitution); and
3. Dormant accounts for 10 years
(Unclaimed Balances Law)
REQUISITES FOR FILING A PETITION:
1. A person died intestate;
2. He left no heirs or persons entitled
by law to the same; and
Rule 92
GUARDIANSHIP
Venue:
1. PLACE OF RESIDENCE of the minor
or incompetent; or
2. RTC of the place where the property
of such minor or incompetent may
be situated, if non-resident.
p. 113).
TRANSFER OF VENUE:
The court taking cognizance of the
CONTENTS OF THE PETITION
guardianship proceeding may transfer the
same to the court of another province or
FOR GUARDIANSHIP
municipality wherein the ward has acquired FOR GUARDIANSHIP
OVER AN
real property, if he has transferred thereto
OVER A MINOR
INCOMPETENT WHO IS
his bona fide residence (Sec. 3, Rule 92)
(SC AM NO. 03-02-05)
NOT A MINOR
(Rules of Court)
Jurisdictional facts;
1. Jurisdictional facts;
Name, age, residence 2. Incompetency of the
Rule 93
of the prospective
person rendering the
APPOINTMENT OF GUARDIANS
appointment
Guardianship of incompetents who are not ward;
Ground
rendering
the
necessary/
minors shall continue to be under the
appointment
convenient;
jurisdiction of the regular courts and
governed by the Rules of Court (Festin, necessary/convenien 3. Probable value
or character of
Special Proceedings: A Foresight to the Bar t;
Death of the parents
his estate;
Exam, [2011] p. 107)
of the minor or the
4. Names, ages, and
termination,
residences of the
PERSONS WHO MAY PETITION FOR
deprivation, or
relatives of the
APPOINTMENT OF GUARDIAN
suspension
of
their
incompetent as well
with respect to a
with respect to
parental
authority;
as the persons
MINOR
INCOMPETENT
Remarriage of the
having him under
(SC AM No. 03-02OTHER THAN A
minors
surviving
their care;
05)
MINOR
parent;
5.
Name of the person
(Rules of Court)
Names, ages, and
for whom letters of
1. Any relative; or
1. Any relative; or
residences of relative
guardianship are
2. Other person in
2. Friend; or
within the 4th civil
prayed.
behalf of the
3. Other person in
degree of the minor
minor; or
behalf of the
and of persons
3. The minor
resident
having him in their
himself if 14
incompetent who
custody;
years of age or
has no parents or
Probable value,
over; or
lawful guardian; or
character, and
4. The Secretary of 4. The Director of
location of the
Social Welfare
Health in favor of
property of the
and the
an insane person
minor;
Secretary of
who should be
Name, age, and
Health in case of
hospitalized or in
residence of the
an insane minor
favor of an isolated
person for whom
who needs to be
leper; or
letters of
hospitalized
5. Any one interested
guardianship are
(Sec. 2, SC AM
in the estate of a
prayed.
03-02-05).
non-resident
incompetent
FACTORS CONSIDERED IN APPOINTING
(Festin, Special
A GUARDIAN:
Proceedings, 2011,
1.
2.
3.
4.
5.
6.
7.
Financial condition;
Physical condition
Sound judgment;
Prudence and trustworthiness;
Moral character and conduct;
The present and past history;
Probability of being able to exercise
the powers and duties of a guardian
(Francisco vs. CA, G.R. No. L-57438,
January 3, 1984).
OVER A MINOR
(SC AM No. 0302-05)
1. The ward has
OVER AN
INCOMPETENT
OTHER THAN A
MINOR
(Rules of Court)
1. Competency of
come of age;
2. Death of the
ward; or
3. Death of the
guardian.
SPECIAL DISQUALIFICATIONS:
1. Non-residence of the guardian.
2. Advance age of the guardian. (Francisco
vs. CA, G.R. No. 57438, January 31, 1984)
3. Judges, clerks of court and lawyers.(Rule
137, Sec. 1 and A.M. No. 08-4-1 SC)
PROCEDURE IN GUARDIANSHIP
GROUNDS
FOR
REMOVAL
OR
RESIGNATION OF GUARDIAN (Sec. 24):
1. Guardian
becomes
insane
or
otherwise incapable of discharging
his trust;
2. Found to be unsuitable;
3. He has wasted or mismanaged the
property of the ward;
4. He has failed to render an account
or make a return for 30 days after
its due;
RULE 98
TRUSTEES
This rule APPLIES ONLY to express trust,
one which is created by a will or a written
instrument.
CONCEPT OF TRUST
A trust is a confidence reposed in one
person, called the trustee, for the benefit of
another, called the cestui que trust, with
respect toproperty held by the former to the
latter. The person in whom the confidence
is reposed asregards property for the
benefit of another isknown as trustee.
NATURE OF POSSESSION
GENERAL RULE: The possession of the
property by the trustee is not an adverse
possession, but only a possession in the
name and in behalf of the owner of the
same.
EXCEPTION: A trustee, however, may
acquire the trust estate by prescription
provided there is repudiation of the trust
and this fact is known to the cestui que
trust. The repudiation must be clear, open
and unequivocal. (Salinas vs Tuason, G.R.
No. L-33626 March 2, 1931).
TERRITORIALITY OF AUTHORITY OF
TRUSTEE
The powers of a trustee appointed by a
Philippine court cannot extend beyond the
confines of the territory of the Republic.
This is based on the principle that his
authority cannot extend beyond the
jurisdiction of the Republic, under whose
courts he was appointed. [Herrera supra ]
A:
requested
by
the
2. When
all
persons
beneficially
interested in the trust, being of full
age, request the exemption.
However, such exemption may be cancelled
by the court at any time and the trustee
required to forthwith file a bond.
OF
TRUSTEE
FOR
of a trustee?
A: Parties beneficially interested (Rule 98,
Sec. 8).
Resignation of Trustee: A trustee is at
liberty to tender his resignation and apply
for his release on the sole ground of
unwillingness to act further in the trust.
But the acceptance of the resignation of a
trustee is not a matter of course; due regard
must be had for the interest of the parties
to be affected and there must ordinarily be
some ground for discharge other than the
mere wish of the trustee to be relieved
(Herrera, Special Proceedings, [2005], p.
459)
ADOPTION
A:
(A) It depends on the stage of the
proceedings when Rafael died. If he died
after all the requirements under the law
have been complied with and the case is
What kind
Promulgation
What it
governs
Definition of
Child
Who may
adopt
Qualifications
Act of 1998
Judicial Adoption
Act of 1995
Extrajudicial Adoption
June 7, 1995
Where to file
Application
What petition
for adoption
may include
Is there a
need to
include
income tax
returns,
police
clearance,
character
reference,
family
picture, birth
certificate of
adopter
What law will
apply when a
foreigner who
is married to
a Filipino
citizen seeks
to adopt
jointly with
his/her
spouse a
relative
Not required
within the
fourth degree
of
consanguinity
or affinity of
the Filipino
spouse
Supervised
Trial Custody
Penalty for
any
government
official,
employee or
functionary
who shall be
found guilty
of violating
any of the
provisions of
this adoption
laws
Supervised
trial
custody
period in the Philippines for
at least 6 months
Shall automatically
suspension
until
resolution of the case
Same
suffer
the
EFFECTS OF ADOPTION
1. Adopter will exercise parental authority;
2. All legal ties between biological parents
and the adoptee shall be severed, except
when biological parent is spouse of adopter;
3. Adoptee shall be considered legitimate
child of adopter for all intents and
purposes; and
4. Adopters shall have reciprocal rights of
succession
without
distinction
from
legitimate filiation.
It is the change of the adoptees surname to
follow that of the adopter which is the
natural and necessary consequence of a
grant of adoption and must specifically be
contained in the order of the court, in fact,
even if not prayed for by petitioner.
in
the
RULE 101
PROCEEDINGS FOR HOSPITALIZATION
OF INSANE PERSONS
For the
and the
RULE 102
HABEAS CORPUS
Writ of Habeas Corpus
It is a writ directed to the person detaining
another and commanding him to produce
the body of the prisoner at a certain time
and place with the day and the cause of his
caption and detention to do, submit to and
receive whatsoever, the court or judge
awarding the writ shall consider in that
behalf. (Ilusorio v. Bildner, G.R. No. 139789
May 12, 2000).
The privilege of writ is so sacred that,
according to our Constitution, it shall not
be suspended except in cases of invasion or
rebellion when public security requires it
(Art. III Sec. 15, 1987 Constitution).
Kinds of Writ of Habeas Corpus
PRELIMINARY CITATION
If the person is detained under governmental
authority and the illegality of his detention is
not patent from the petition for the writ, the
court issues the citation to show cause why
the writ of habeas corpus should not issue.
It is issu
appears to
Contents of petition
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:
1. That the person in whose behalf the
application is made is imprisoned or
restrained of his liberty;
2. The officer or name of the person by
whom he is so imprisoned or restrained; or,
if both are unknown or uncertain, such
officer or person may be described by an
assumed appellation, and the person who
is served with the writ shall be deemed the
person intended;
3. The place where he is so imprisoned or
restrained, if known;
also
issue
APPEAL (Sec.19)
Notice of appeal within 15 days from notice
of denial of motion for reconsideration or
new trial.
No appeal shall be allowed unless a motion
for reconsideration or new trial has been
filed.
Petition for Writ of Habeas Corpus
(Sec.20)
Shall be verified and filed with the
Family Court where petitioner
resides or where minor may be
found.
Shall be enforceable within its
judicial region to which the Family
Court belongs.
The petition may however be filed
with the regular court in the
absence of the presiding judge of the
Family Court, provided however that
the regular court shall refer the case
to the Family Court as soon as its
presiding judge returns to duty.
Petition may also be filed with the
SC, CA, or with any of its members
and, if so granted the writ shall be
enforceable
anywhere
in
the
Philippines. The writ may be made
returnable to a Family Court or to
any regular court within the region
where the petitioner resides or
where the minor may be found for
hearing and decision on the merits.
WRIT OF AMPARO
(A.M. No. 07-9-12-SC)
EFFECTS OF FAILURE TO
FILE RETURN
In case the respondent fails to file a return,
the court, justice or judge shall proceed to
hear the petition ex parte (Sec.12).
an
order
commanding 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.
4. Witness Protection Order an order
referring the witnesses to the DOJ for
admission to the Witness Protection,
SUGGESTED
ANSWER:
Azeniths
petition for the issuance of a writ of
habeas data must be dismissed as there
is no showing that her right to privacy in
life, liberty, or security is violated or
threatened by an unlawful act or
omission. Neither was the company
shown to be engaged in the gathering,
collecting nor storing of data or
information regarding the person, family,
home and correspondence of the
aggrieved party.
WHO MAY FILE (Sec. 2)
1. Any aggrieved party.
2. In cases of extralegal killings and
enforced disappearances, the petition may
be filed by:
a. Any member of the immediate family
of the aggrieved party, namely: the
spouse, children and parents; or
b. Any
ascendant,
descendant
or
collateral relative of the aggrieved
party within the fourth civil degree of
consanguinity or affinity, in default of
those mentioned in the paragraph
CONTENTS OF THE PETITION (Sec. 6)
1. Personal circumstance of the petitioner
and the respondent
2. The manner the right to privacy is
violated or threatened and how it affects
the right to life, liberty or security of the
aggrieved party
3. Actions and recourses taken by petitioner
to secure the data or information
4. Location of the files, registers, or
database, the government office, and the
person in charge, in possession or in
control of the data or information, if known
5. The reliefs prayed for
6. Such other relevant reliefs as are just
and equitable.
INSTITUTION OF
SEPARATE ACTION (Sec. 20)
The filing of a petition for the writ of habeas
data shall NOT preclude the filing of
separate criminal, civil or administrative
actions.
However, when a criminal action has been
commenced, no separate petition for
petition for the writ shall be filed, but the
reliefs under the writ shall be available by
motion in the criminal case, and the
procedure under this Rule shall govern the
disposition of the reliefs available under the
writ of habeas data (Sec. 22).
RULE 103
CHANGE OF NAME
Jurisdictional requirements:
To confer jurisdiction on the court, since
petition for change of name are proceedings
in rem, strict compliance with the
requirements is essential, namely, that
such verified petition should be published
for three (3) consecutive weeks in some
newspaper of general circulation in the
province; and that both the title or caption
of the petition and its body shall recite:
1. The name or names or aliases of the
applicant;
2. The cause for which the change of
name is sought; and
3. The new name asked for.
CONSEQUENCE
CHANGE NAME
OF
GRANT
TO
RULE 104
VOLUNTARY DISSOLUTION OF
CORPORATIONS REPEALED
Note: Dissolution of corporations should
now be filed with the SEC and is covered
under Title XIV, Sections 117 to 122 of the
New Corporation Code of the Philippines
(Herrera, Special Proceedings, 2005, p.531).
RULE 105
JUDICIAL APPROVAL OF
VOLUNTARY RECOGNITION OF
MINOR NATURAL CHILDREN
VOLUNTARY RECOGNITION
It is an admission of the fact of paternity or
maternity by the presumed parent,
expressed in the form prescribed by the
Civil Code. Its essence lies in the avowal of
the parent that the child is his; the
formality is added to make the admission
incontestable, in view of its consequences
(Gapusan Chua v. CA, G.R. No. L-46746
March 15, 1990).
RULE 106
CONSTITUTION OF FAMILY HOME
RULE 108
CANCELLATION OR CORRECTION OF
ENTRIES IN THE CIVIL REGISTRY
personally
or
R.A. 9048
R.A. 10172
Case covered:
Cases covered:
clerical or
typographical
errors and change
of first name or
nickname (Sec. 1)
clerical or
typographical errors
and change of first
name or nickname,
the day and month in
the date of birth or
sex of a person where
it is patently clear
that there was a
clerical or
typographical error or
mistake in the entry
(Sec. 1)
Definition of Clerical
or Typographical
Error
Definition of
Clerical or
Typographical
Error
a mistake
committed in the
performance of
clerical work in
writing, copying,
transcribing or
typing an entry in
the civil register
that is harmless
and innocuous,
such as misspelled
name or
misspelled place of
birth or the like,
which is visible to
the eyes or obvious
to the
a mistake committed
in the performance of
clerical work in
writing, copying,
transcribing or
typing an entry in
the civil register on
the entry of day and
month in the date of
birth or the sex of
the person, which is
visible to the eyes or
obvious to the
understanding, and
can be corrected or
changed only by
reference to other
existing record or
understanding,
and can be
corrected or
changed only by
reference to other
existing record or
records: Provided,
however, That no
correction must
involve the change
of nationality, age,
status or sex of the
petitioner. (Sec. 2)
records: Provided,
however, that no
correction must
involve the change of
nationality, age
(refers to the
correction on the
year of birth), or
legitimacy status of
the
petitioner/document
owner. (Sec. 2)
RULE 109
APPEALS IN SPECIAL PROCEEDINGS
Orders or judgments from which appeals
may be taken (Rule 109, Sec. 1)
MODES OF APPEAL
1. 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.
2. 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.
3. 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.
PERIOD
Special
Proceedings
Habeas
Corpus
Writ of
Amparo
Writ of
Habeas Data
FOR APPEAL
30 days (Record on
Appeal required)
48 hours from
service of judgment
5 working days from
date of notice of
judgment
5 working days from
date of notice of
judgment
EXECUTOR/ADMINISTRATOR
TRUSTEE
GUARDIAN
May
sell
or
encumberproperty
of
estateheld
in
trust
ifnecessary orexpedient upon
ORDER of the court.
May
sell
or
encumber
property of ward if income of
estate is insufficient to
maintain ward and his
family and educate ward or
the sale or encumbrance is
for the benefit of ward upon
order of the court.
Appointed to CARRYINTO
EFFECT theprovisions of a
will
(testamentary
trust)
orwritten
instrument
(contractual trust).
Appointed as guardian.
NOT
May
EXEMPTED
fromfiling
be
EXEMPTEDfrom
Services
of
executor
oradministrator areterminated
UPON
Trusteeship is terminated
uponTURNING
OVER
THEPROPERTY to
Guardianship is terminated
upon attainment of age of
majority of the minor or
upon gaining competency in
the case of an incompetent
(need court order for the
latter).
MUST PAY the debts of the
ward.
Date of
effectivity
Definition
WRIT OF HABEAS
CORPUS
Rule 102
July 1, 1997
A command directed to
the person detaining
another, requiring him
to produce the body of
the person detained at
a designated time and
place, and to produce
and to show cause and
to explain the reason
for detention.
WRIT OF AMPARO
A.M. No. 07-9-12-SC
October 24, 2007
A remedy available to
any
person whose right to
life,
liberty
and
security is violated or
threatened
with
violation
by
an
unlawful
act
or
omission of a public
official or employee, or
of a private individual
or entity (Sec. 1).
WRIT OF HABEAS
DATA
A.M. No. 08-1-16-SC
February 2, 2008
A remedy available to
any
person
whose
right to privacy in life,
liberty or security is
violated or threatened
by an unlawful act or
omission of a public
official or employee, or
of a private individual
or entity engaged in
the
gathering,
collecting or storing of
data or information
regarding the person,
family,
home
and
correspondence of the
aggrieved party (Sec.
1).
Rights
violated
There is an actual
violation
of
the
aggrieved partys right.
There is an actual or
threatened violation of
the aggrieved partys
right.
There is an actual or
threatened violation of
the aggrieved partys
right.
Limitations
May be suspended in
cases of
invasion or rebellion
when public
safety requires it(Art.
III Sec. 15, 1987
Constitution).
The writ shall extend to
all cases of illegal
confinement
or
detention by which any
person is deprived of
his liberty, or by which
the rightful custody of
any person is withheld
from
the
person
entitled thereto (Sec.
1).
If granted by SC or CA:
enforceable anywhere
In the Philippines;
If granted by RTC:
enforceable only within
the judicial district
(Sec. 2).
By the person
unlawfully
imprisoned or
restrained of his
liberty, or by some
other person in his
behalf, or by the
person entitled to the
lawful custody over
another
(Villaviciencio v.
Lukban, G.R. No. L-
Enforceable anywhere
in the Philippines (Sec.
3)
1. To all cases of
violation or threat to
the privacy of a
person, his family,
home and
correspondence
2. To all habeas corpus
and amparo cases. (It
complements the two
writs by helping
produce or correct
data that is
relevant to protect the
rights of a person who
disappeared or is a
victim
of extrajudicial killing)
Enforceable anywhere
in the Philippines (Sec.
4).
Scope
Enforceabilit
y of the writ
14639
25, 1919)
March
Where
returnable
If granted by the:
1. SC or CA or any
member of such
courts:
a. before the
court
or
any
member
2. Any ascendant,
descendant or
collateral relative of
the aggrieved party
within the fourth civil
degree of
consanguinity or
affinity, in default of
those mentioned in the
preceding paragraph;
or
3. Any concerned
citizen, organization,
association or
institution, if there is
no known member of
the immediate family
or relative of the
aggrieved party (Sec.
2).
The petition may be
filed on ANY DAY and
at ANY TIME with:
1. RTC of the place
where the
threat, act or omission
was
committed or any of its
elements occurred.
2. Sandiganbayan,
3. CA or any of its
Justices
4. SC or any of its
Justices
(Sec. 3)
If granted by the:
1. SC or any of its
justices:
a. before such
court
or
any justice
thereof; or
b.
before the
and parents; or
(b) Any ascendant,
descendant or
collateral relative of
the aggrieved party
within the fourth civil
degree of
consanguinity or
affinity, in default of
those mentioned in the
preceding paragraph
(Sec. 2).
Respondent
thereof; or
b. before
an
RTC or any
judge
thereof.
2. RTC judge or a
judge thereof
a.
it
is
returnable
before
himself
(Sec. 2).
SB or CA or
any of their
justices; or
c. to any RTC
of the place
where the
threat, act
or omission
was
committed
or any of its
elements
occurred
2. SB or CA or
any of their
justices:
a. before such
court
or
any justice
thereof; or
b. to any RTC
of the place
where the
threat, act,
or omission
was
committed
or any of its
elements
occurred
3. RTC or any
judge thereof
a. before such
court or
judge. [Sec.
3]
Respondent may or
may not be an officer
Respondent is a public
official or employee or
any of its
justices; or
c. the RTC of
the
place
where the
petitioner
or
respondent
resides/has
jurisdiction
over
the
place where
the data or
information
is gathered,
stored
or
collected
2. CA or SB or
any
of
its
justices:
a. before such
court
or
any justice
thereof, or
the RTC of
the
place
where the
petitioner
or
respondent
resides, or
that which
has
jurisdiction
over
the
place where
the data or
information
is gathered,
collected or
stored.
3. RTC
a. before such
court
or
judge (Sec.
4)
Respondent is a public
official or employee or
a private individual or
entity (Sec. 1)
Contents of
the signed
and verified
petition
1. The
personal
circumstances
of
the
petitioner;
2. The name and
personal
circumstances
of
the
respondent
responsible for
the threat, act
or omission, or,
if the name is
unknown
or
uncertain, the
respondent
may
be
described by an
assumed
appellation;
3. The right to
life, liberty and
security of the
aggrieved party
violated
or
threatened
with violation
by an unlawful
act or omission
of
the
respondent,
and how such
threat
or
violation
is
committed with
the attendant
circumstances
detailed
in
a private individual or
entity engaged in the
gathering, collecting,
or storing of data or
information regarding
the
person,
family
name
and
correspondence of the
aggrieved party (Sec.
1).
1. Personal
circumstances
of
the
petitioner and
the respondent;
2. The
manner
the right of
privacy
is
violated
or
threatened and
how it affects
the right to life,
liberty
or
security of the
aggrieved
party;
3. Actions
and
recourses
taken by the
petitioner
to
secure the data
or information;
4. The location of
the
files,
registers
or
databases, the
government
office, and the
person
in
charge,
in
possession or
in control of
the data or
information, if
known;
5. The
reliefs
prayed
for,
which
may
imprisoned or
restrained,
if
known;
4. A copy of the
commitment or
cause
of
detention
of
such person, if
it
can
be
procured
without
impairing
the
efficiency of the
remedy; or, if
the
imprisonment
or restraint is
without
any
legal authority,
such fact shall
appear (Sec. 3).
Appeal
Quantum of
supporting
affidavits;
4. The
investigation
conducted,
if
any, specifying
the
names,
personal
circumstances,
and addresses
of
the
investigating
authority
or
individuals, as
well
as
the
manner
and
conduct of the
investigation,
together
with
any report;
5. The
actions
and recourses
taken by the
petitioner
to
determine the
fate
or
whereabouts of
the
aggrieved
party and the
identity of the
person
responsible for
the threat, act
or
omission;
and
6. The
relief
prayed for the
petition
may
include
a
general prayer
for other just
and equitable
reliefs (Sec. 5).
Five (5) working days
from the date of notice
of
the
adverse
judgment (Sec. 19).
Substantial
evidence
include
the
updating,
rectification,
suppression or
destruction of
the database or
information or
files kept by the
respondent.
In
case
of
threats,
the
relief
may
include
a
prayer for an
order enjoining
the
act
complained of;
and
6. Such
other
relevant reliefs
as are just and
equitable (Sec.
6).
proof
Name of Law
Subject Matter
Venue
Grounds
evidence
(Sec. 17).
Rule 103
Change of name
(Sec. 16).
Rule 108
Cancellation/Correction
of Entries in the Civil
Registry
Change or corrections in
the civil entries
(substantial corrections)
A person desiring to
change his name. (Sec.
1)
1. Name is
ridiculous,
tainted with
dishonor and
extremely
difficult to write
R.A. 9048
Clerical Error Act
2.
3.
4.
5.
or pronounce;
Consequence of
change of status;
Necessity to avoid
confusion;
Having
continuously
used and been
known since
childhood by a
Filipino name,
unaware of her
alien parent-age;
A sincere desire
to adopt a
Filipino name to
erase signs of
former alienage
all in good faith
and without
prejudicing
anybody.
What kind of
proceeding
Judicial proceeding
What to file
Notice and
publication
Posting
Who
Summary proceeding
This can be concerted to
an adversarial
proceeding if there are
substantial changes and
affect the status of an
individual.
File a verified petition for
the cancellation or
correction of any entry.
dishonor or
extremely
difficult to
write or
pronounce;
2. The new first
name or
nickname has
been
habitually and
continuously
used by the
petitioner and
he has been
publicly
known by that
by that first
name or
nickname in
the
community; or
3. The change
will avoid
confusion.
(Sec. 4)
Administrative
proceeding.
File an affidavit
participates on
the part of the
Government
Where to
appeal
SPECIAL LAWS
All
other
civil
cases,
EXCEPT
probate
proceedings,
where the total amount of the
plaintiff's claim does not exceed
P100, 000.00 or P200,000.00 in
Metro Manila, exclusive of interest
and costs.
(as amended by A.M. 02-11-09-SC,
effective November 25, 2002)
Sec. 5. Answer
PRELIMINARY CONFERENCE
MANDATORY
Not later than 30 days after the last
answer is filed, a preliminary conference
SHALL be held. The rules on pre-trial
(Rule 18, ROC) in ordinary cases shall be
applicable to the preliminary conference
UNLESS inconsistent with the provision
of this rule.
Rendition of Judgment
Duty of Court
(Sec. 10)
Within 30 days after receipt of the last
affidavits and position papers, or the
expiration of the period for filing the
same, the court shall renderjudgment.
(Sec. 12)
a. If commenced by compliant. On the
basis
of
the
compliant
and
the
Procedure of Trial
(Sec. 15)
At the trial, the affidavits submitted by
the parties shall constitute the direct
testimonies of the witnesses who
executed the same.
NOTE: Witnesses who testified may be
subjected to cross-examination, redirect
or re-cross examination.
entered into, or
b. The
propriety
of
allowing
the
lesser
offense
may
be
considered, or
c. Such other matters may be taken
up to clarify the issues.
Exception:
This provision shall not apply to criminal
cases where the accused was arrested
without a warrant (Sec.18).
PROHIBITED
PLEADINGS
AND
MOTIONS
(Di MO5 TRIP2 Memo) / (6M [dbp red]
TM PIRC)
Arrest of Accused
The court shall not order the arrest of the
accused except for failure to appear
whenever required.
quash
information
the
complaint
EXCEPT
on
or
the
to
comply
with
the
Judgment
(Sec. 17)
c. Motion
for
new
trial,
or
for
reconsideration of a judgment, or
for opening of trial;
d. Petition for relief from judgment;
COMMON PROVISIONS
COURT
MAY
DISMISS
OUTRIGHT:
CASES
General rule:
Cases requiring referral to the Lupon for
conciliation under P.D. No. 1508 where
there is no showing of compliance with
such requirement, shall be dismissed
without prejudice and may be revived
only after such requirement shall have
been complied with.
Memoranda;
prohibition
against
any
i.
Dilatory
motions
for
postponement;
j.
Reply;
the parties to
submit affidavits
or other evidence
w/in 10 days from
receipt of said
order
3.
Pre-condition to Filing of
Complaint in Court
No
complaint,
petition,
action,
or
proceeding involving any matter within the
authority of the Lupon shall be filed or
instituted directly in court or any other
government office for adjudication,
UNLESS:
1. There has been a confrontation between
the parties before the Lupon Chairman
or the Pangkat,
2. That no conciliation or settlement has
been reached as certified by the Lupon
Secretary or Pangkat Secretary as
MAY
GO
Personal Appearance
The parties must appear in person without
the
assistance
of
counsel
or
the
intervention of anyone. Minors and
incompetents may be assisted by their next
of kin who is not a lawyer(Sec. 415, LGC).
Suspension of Prescriptive Period
REPUDIATION
Any party to the dispute may, within 10
days from the date of the settlement,
repudiate the same by filing with the lupon
chairman a statement to that effect sworn
to before him, where the consent is vitiated
by:
a. Fraud;
b. Violence; or,
c. Intimidation.
Such repudiation shall be sufficient basis
for the issuance of the certification for filing
a complaint (Sec. 416, LGC).
The conciliation procedure required under
the Katarungang Pambarangay Law is NOT
AJURISDICTIONAL
REQUIREMENT.
Failure to have prior recourse to it does not
deprive the court of its jurisdiction, either
over the subject matter or over the person
of the defendant (Junson v.Martinez, G.R.
No. 141324, July 8, 2003, 405 SCRA 390).
A case filed in court without compliance
with prior Barangay conciliation which is a
pre-condition for formal adjudication may
be dismissed upon motion of defendant/s,
not for lack of jurisdiction of the court but
for failure to state a cause of action or
prematurity (Royales v.IAC, 127 SCRA 470),
or the court may suspendproceedings upon
petition of any party under Sec. 1, Rule 21
of the Rules of Court; and refer the case
motu proprio to the appropriate Barangay
authority in case of referral to Lupon,
(Hearing)
Pangkat convenes not later than 3 days from its construction and summons the parties
Exec
within 6 months from
Failure of Conciliation hearings at the Pangkat level and of Arbitration hearings shall also lead to the issuance
Conciliation
(Hearing)
Repudiation
settlement
within
days from date thereof
Pangkat must arrive at a settlement
within 15ofdays
from the
day is10
convenes
Issuance
of certification
for filing of a complaint in court
Execution within 6 months from
the date
of settlement
owed
under
Contract
of
Contract
of
Sale,
Contract of Mortgage;
b. Damages arising from contract;
or
c. Enforcement
of
barangay
amicablesettlement or an arbitration
award
involving
money
claim
of
Non-forum
Pleading
Action
to
Initiate
Small
Claims
3. APPEARANCEThe
parties
shall
appear atthe 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.
Lawyers are not allowed to appear at the
hearing unless they are the plaintiff or the
defendant. However, since the process is
still a legal process, the parties and their
authorized representatives can still consult
with a lawyer to assist them to prepare for
dispute and
b. Stipulations or admissions of facts
and of documentary exhibits (Sec.
18, as amended).
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 in
the absence of the plaintiff 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 Sec. 12 of this Rule.
This shall not apply where one of 2 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 andcounterclaim.
Postponement of a hearing may be granted
only upon proof of the physical inability of
the party to appear before the court on the
scheduled date and time. A party may avail
of only 1 postponement (Sec. 19).
Failure of Settlement
IF EFFORTS AT SETTLEMENT FAIL, the
hearing shall proceed in an informal and
expeditious manner and BE terminated
within 1 day. Either party may move in
writing to have another judge hear and
decide the case.
The referral by the original judge to the
Executive judge shall be made within the
same day the motion is filed and granted,
and by the Executive Judge to the
designated judge within the same day of the
referral. The new judge shall hear and
decide the case within 5 working days from
receipt of the order of reassignment.
NOTE: The conduct of Judicial Dispute
Resolution(JDR) under Sec. 21 and 22 is
AMENDED per SC En Banc Resolution,
Effective November 3, 2009.
l.
Interventions
Defendant shall
file with the court
and serve on the
plaintiff a verified
Response within
10 days.
Counterclaim
Determination
by
shall
be
the court if thefiled
with the
casetogether
falls under
this Response,
Rule
otherwise it is
If no ground,
Failurecourt
to file
shallresponse,
issue
Summons
and by
the court
direct
theshall
itself
defendant
to
render
submitjudgment
a verifiedas
response.
The
may
be
court shall
issue
warranted aby
Noticethe
to facts
both in
Filing of a
Statement of
Claim (SOC)
Both parties appear
Both parties
Defendant
fail to appear
Filing of docket
and other
legal fees, UNLESS allowed
to litigate as an indigent
fails
to
Plaintiff
fails to appear
Judgment
on counterclaim
the settlement).
claim, EXCEPT
if one of the defendants appears
Dismissal
BOTH
claim
and
with prejudice
Judge shall conduct Judicial
DisputeofResolution
(amicable
Execution
RULE 1
GENERAL PROVISIONS
SEC. 2. SCOPE
These Rules shall govern the procedure in
civil, criminal and special civil actions
before the RTC, MeTC, MTCC, MTC, and
MCTC involving enforcement or violations of
environmental and other related laws, rules
and regulations such as but not limited to
the following:
1. Act No. 3572, Prohibition Against
Cutting of Tindalo, Akli, and Molave
Trees;
P.D. No. 705, Revised Forestry Code;
P.D. No. 856, Sanitation Code;
P.D. No. 979, Marine Pollution Decree;
P.D. No. 1067, Water Code;
P.D. No. 1151, Philippine Environmental
Policy of 1977;
7. P.D. No. 1433, Plant Quarantine Law of
1978;
9. P.D.
No.
1586,
Establishing
an
Environmental
Impact
Statement
System Including Other Environmental
Management Related Measures and for
Other Purposes; R.A. No. 3571,
Prohibition
Against
the
Cutting,
Destroying or Injuring of Planted or
Growing Trees,
10. Flowering Plants and Shrubs or Plants
of Scenic Value along Public Roads, in
Plazas, Parks, School Premises or in any
Other Public Ground;
11. R.A. No. 4850, Laguna Lake
Development Authority Act;
12. R.A. No. 6969, Toxic Substances
and Hazardous Waste Act;
13. R.A. No. 7076, Peoples Small-Scale
Mining Act;
14. R.A. No. 7586, National Integrated
Protected
Areas
System
Act
including all laws, decrees, orders,
proclamations
and
issuances
establishing protected areas;
15. R.A.
No.
7611,
Strategic
Environmental Plan for Palawan
Act;
16. R.A. No. 7942, Philippine Mining Act;
17. R.A. No. 8371, Indigenous Peoples
Rights Act;
18. R.A. No. 8550, Philippine Fisheries
Code;
19. R.A. No. 8749, Clean Air Act;
20. R.A. No. 9003, Ecological Solid Waste
Management Act;
21. R.A. No. 9072, National Caves and Cave
Resource Management Act;
2.
3.
4.
5.
6.
Civil procedure
RULE 2
PLEADINGS AND PARTIES
1.
3.
4.
5.
TYPES OF EPO
1. Permanent Environment
Protection Order (PEPO)
2. Temporary Environmental
Protection Order (TEPO)
NOTE: The EPO is both prohibitive and
mandatoryrelief. This remedial measure
can also be prayed for in the Writs of
Kalikasan and Continuing mandamus.
TEMPORARY
ENVIRONMENT
PROTECTION
ORDER
Temporary in
nature
It may be issued
ex
parte when:
PERMANENT
ENVIRONMENT
PROTECTION
ORDER
Of permanent
character
By the sheriff,
His deputy, or
Other proper court officer, or
For justifiable reasons, by the counsel
or representative of the plaintiff or
5. Any suitable person authorized or
deputized by the court issuing the
summons.
RULE 3 - PRE-TRIAL
PROCEDURE IN THE PRE-TRIAL
1.
3.
and
compulsory
4.
Referral
to
mediation.
If
the
6.
7.
8.
RULE 4 - TRIAL
PROCEDURE
1. Continuous trial. A continuous trial
whichshall be conducted which shall
in
lieu
of
direct
examination.
Inlieu
of
direct
examination, affidavits marked during
the pre-trial shall be presented as direct
examination of affiants subject to cross
examination by the adverse party (Sec.
2).
3. Oral
offer
of
evidence.
After
thepresentation of the last witness, only
oral offer of evidence shall be allowed,
and
the
opposing
party
shall
immediately interpose his objections.
The judge shall forthwith rule on the
offer of evidence in open court (Sec.3).
4. Submission of case for decision. After
thelast party has rested its case, the
court shall issue an order submitting
the case for decision.
5. Filing of memoranda. The court may
requirethe parties to submit their
respective memoranda, if possible in
electronic form, within a non-extendible
period of 30 days from the date the case
is submitted for decision.
6. The court shall have a period of 60 days
to decide the case from the date the
case is submitted for decision (Sec. 4)
NOTE: Actual direct examination of
witnesses isNOT allowed, however, the
rules provide that affidavits marked during
the pre-trial shall be presented as direct
examination of affiants, in lieu of direct
examination
SEC. 3. One-day examination of witness
rule
The court shall strictly adhere to the rule
that a witness has to be fully examined in 1
day, subject to the courts discretion of
extending the examination for justifiable
reason.
SEC. 5. Period to try and decide
The court shall have a period of 1 year from
the filing of the complaint to try and decide
the case.
Before the expiration of the one-year
period, the court may petition the SC for
the extension of the period for justifiable
cause.
PROCEDURE
1. Filing of a complaint alleged to be a
SLAPP against a person involved in the
enforcement of environmental laws,
protection of the environment, or
assertion of environmental rights.
2. SLAPP pleaded as an affirmative
defense in the Answer. The defendant
in a SLAPP mayfile an Answer
interposing as a defense that the case is
a SLAPP and, by way of counterclaim,
pray for damages, attorneys fees and
costs of suit.
3. Opposition. The court shall direct
theplaintiff to file an Opposition
showing the suit is NOT a SLAPP,
within a non-extendible period of 5 days
from receipt of notice that an answer
has been filed.
4. Summary hearing. The defense of a
SLAPP under
Rule 19
SLAPP is a civil
action.
That the action is
a SLAPP is
alleged in the
SLAPP is a
criminal case.
That the action is
a
SLAPP is alleged in
No counterclaim
and comment
/opposition
allowed
circumstances
of
the
3. The
environmental
law,
rule
or
regulation violated or threatened to be
violated, the act or omission complained
of, and the environmental damage of
such magnitude as to prejudice the life,
health or property of inhabitants in two
or more cities or provinces.
4. All relevant and material evidence
consisting of the affidavits of witnesses,
documentary evidence, scientific or
other expert studies, and if possible,
object evidence;
5. The certification of non-forum shopping;
and
6. The reliefs prayed for which may
include a prayer for the issuance of
a TEPO.
SEC. 3. Where to file
1. Supreme Court or
2. With any of the stations of the CA
2. Order
issuing
the
Writ
of
Kalikasan. Within 3days from the
date of filing of the petition, if the
petition is sufficient in form and
substance, the court shall give an
ORDER:
4. Hearing
and
Preliminary
7.
1. Personal service
2. Substituted service, if personal service
cannot be effected.
Affidavits of witnesses,
Documentary evidence,
Scientific or other expert studies, and
If possible, object evidence, in support
of the defense of the respondent.
such purpose.
2. 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.
3. It shall state in detail the place or
places to be inspected.
4. It shall be supported by affidavits of
witnesses having personal knowledge
of the violation or threatened violation
of environmental law.
b. Production
or
inspection
documents or things; order
of
(Sec. 15)
1. Directing respondent to permanently
cease and desist from committing acts
or neglecting the performance of a duty
in violation of environmental laws
resulting in environmental destruction
or damage;
2. Directing the respondent public official,
government agency, private person or
entity to protect, preserve, rehabilitate
or restore the environment;
3. Directing the respondent public official,
government agency, private person or
entity to monitor strict compliance with
the decision and orders of the court;
4. Directing the respondent public official,
government agency, or private person or
entity to make periodic reports on the
execution of the final judgment; and
5. Such other reliefs which relate to the
right of the people to a balanced and
healthful ecology or to the protection,
preservation,
rehabilitation
or
restoration of the environment, EXCEPT
the award of damages to individual
petitioners.
SEC. 16. Appeal
Within 15 days from the date of notice of
the adverse judgment or denial of MR, any
party may appeal to the SC under Rule 45
of the Rules of Court. The appeal may raise
questions of fact.
SEC. 17. Institution of separate actions.
Thefiling of a petition for the issuance of
the writ of kalikasan shall NOT preclude
the filing ofseparate civil, criminal or
administrative actions.
RULE 8 MANDAMUS
WRIT
OF
CONTINUING
Continuing Mandamus
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.
NOTE: It permits the court to retain
jurisdictionafter judgment in order to
ensure the successful implementation of
the reliefs mandated under the court's
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.
When is a petition for continuing
mandamus
(Sec. 5).
3. Hearing. After the comment is filed or
thetime 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 60 days
from the date of the submission of the
petition for resolution (Sec. 6).
4. Judgment. If warranted, the court
shall grantthe privilege of the writ of
continuing mandamus and to grant
such other reliefs asmay 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 (Sec. 7).
Criminal Procedure
an offense; or
SEC. 3. Special prosecutor
In criminal cases, where there is no private
offended party, a counsel whose services
are offered by any person or organization
may be allowed by the court as special
prosecutor, with the consent of and subject
to the control and supervision of the public
prosecutor.
RULE 11 - ARREST
RULE 14 - BAIL
SEC. 1. Bail, where filed
1. With the court where the case is
pending, or
2. 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.
3. 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 RTC of
said place, or if no judge thereof is
available, with any metropolitan
trial judge, municipal trial judge or
municipal circuit trial judge therein.
NOTE: If the court grants bail, the court
may issuea hold-departure order in
appropriate cases.
SEC. 2. Duties of the court.Before
granting theapplication 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:
1. 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;
2. To appear whenever required by the
court where the case is pending;
and
3. To waive the right of the accused to be
SEC. 1. Arraignment
The court shall set the arraignment within
15 days from the time it acquires
jurisdiction over the accused, with notice to
the public prosecutor and offended party or
concerned government agency.
SEC. 2. Plea-bargaining
On the 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:
1. Issue an order which contains the pleabargaining arrived at;
2. Proceed to receive evidence on the civil
aspect of the case, if any; and
3. Render and promulgate judgment of
conviction, including the civil liability
for damages.
RULE 16 - PRE-TRIAL
SEC. 1. Setting of pre-trial conference
After the arraignment, the court shall set
the pre-trial conference within 30 days.
It may refer the case to the clerk of court for
a preliminary conference to be set at least 3
days prior to pre-trial.
RULE 17 - TRIAL
SEC. 1. Continuous trial
The court shall conduct continuous trial
which shall not exceed 3 months from the
date of the issuance of the pre-trial order.
Submission of memoranda
The court may require the parties to submit
their memoranda and if possible, in
electronic form, within a non-extendible
period of 30 days from the date the case is
submitted for decision.
With or without any memoranda filed, the
court shall have a period of 60 days to
decide the case counted from the last day of
the 30-day period to file the memoranda.
Declaration of Policy
a. To actively promote party autonomy in
the resolution of disputes
b. Towards this end, the State shall
encourage and actively promote the use
of Alternative Dispute Resolution (ADR)
as an important means to achieve
speedy and impartial justice and declog
court dockets (Sec. 2).
ADVANTAGES OF ARBITRATION
1. The availability of experts on
technical matters involved in a
dispute.
2. There is an Speedier process of
arbitration in resolving a case
3. Less expenses on the part of the
parties.
4. Trade contracts or relationship
between the parties are not
ruptured by arbitration.
5. Privacy attained in arbitration
6. Filial or friendly atmosphere
7. Flexibility of proceedings, arbitral
proceedings are not bound by the
strict rules of evidence.
COMMERCIAL ARBITRATION
An arbitration is "commercial" if it covers
matters arising from all relationships of a
commercial nature, whether contractual or
not. Relationships of a transactions: any
trade transaction for the supply or
exchange of goods or services; distribution
agreements;
construction
of
works;
commercial representation or agency;
factoring; leasing, consulting; engineering;
licensing; investment; financing; banking;
insurance; joint venture and other forms of
industrial or business cooperation; carriage
of goods or passengers by air, sea, rail or
road (Sec. 21).
MEDIATION
A voluntary process in which a mediator,
selected by the disputing parties, facilitates
communication and negotiation, and assist
the parties in reaching a voluntary
agreement regarding a dispute.
MODEL LAW
The
Model
Law
on
International
Commercial Arbitration adopted by the UN
Commission on International Trade Law on
21 June 1985
New York Convention
The UN Convention on the Recognition and
Enforcement of Foreign Arbitral Awards
approved in 1958 and ratified by the
Philippine Senate under Senate Resolution
No. 71
Inapplicability of the Act
This Act shall not apply to resolution or
settlement of the following:
2.
3.
4.
5.
6.
7.
8.
No.
the
its
be
mediation
(Sec. 9).
Waiver of Confidentiality
A privilege arising from the confidentiality
of information may be waived in a record, or
orally during a proceeding by the mediator
and themediation parties.
A privilege arising from the confidentiality
of information may likewise be waived by a
non party participant if the information is
provided by such nonparty participant.
A person who discloses confidential
information shall be precluded from
asserting the privilege under Sec. 9 to bar
disclosure of the rest of the information
necessary to a complete understanding of
the previously disclosed information.
A person who discloses or makes a
representation about a mediation is
preclude from asserting the privilege under
Sec.
9,
to
the
extent
that
the
communication prejudices another person
in the proceeding and it is necessary for the
person prejudiced to respond to the
representation of disclosure (Sec. 10).
Exceptions:
a. There is no privilege against
disclosure under Sec. 9 if mediation
communication is:
1. in an agreement evidenced by a
record authenticated by all parties to
the agreement;
2. available to the public or that is
made during a session of a
mediation which is open, or is
required by law to be open, to the
public;
3. a threat or statement of a
plan to inflict bodily injury
or commit a crime of
violence;
including a financial or
personal interest in the
outcome of the mediation
and any existing or past
relationship with a party or
foreseeable participant in the
mediation; and
2. disclosure to the mediation
parties any such fact known
or learned as soon as is
practical before accepting a
mediation.
b. If a mediation learns any fact described
in par. (a)(1) of this section after
accepting a mediation, the mediator
shall disclose it as soon as practicable.
At the request of a mediation party, an
individual who is requested to serve as
mediator
shall
disclose
his/her
qualifications to mediate a dispute. (Sec.
13)
Enforcement
of
SettlementAgreement
Mediated
a. A
settlement
agreement
following
successful mediation shall be prepared
by the parties with the assistance of
their respective counsel, if any, and by
the mediator.
b. The parties and their respective
counsels shall endeavor to make the
terms and condition thereof complete
and make adequate provisions for the
contingency
of
breach
to
avoid
conflicting
interpretations
of
the
agreement.
c. The parties and their respective
counsels, if any, shall sign the
settlement agreement. The mediator
shall certify that he/she explained the
contents of the settlement agreement to
the parties in a language known to
them.
deemed
constituted
when
the
sole
arbitrator or the third arbitrator who has
been
nominated,
has
accepted
the
nomination and written communication of
said nomination and acceptance has been
received by the party making request.
b. The following rules on interim or
provisional relief shall be observed:
e. Any party may request that provision
relief be granted against the adverse
party:
ii. Such relief may be granted: (Ir SEA)
2.1.
To prevent irreparable
loss or injury:
2.2.
To provide
security for the
performance of
any obligation;
2.3.
To
produce or
preserve any
evidence; or
2.4.
To compel any other
appropriate act or omission
3. The order granting provisional relief
may be conditioned upon the
provision of security or any act or
omission specified in the order.
4. Interim or provisional relief is
requested by written application
transmitted by reasonable means to
the RTC or arbitral tribunal as the
case may be and the party against
whom the relief is sought, describing
in appropriate detail the precise
relief, the party against whom the
relief is requested, the grounds for
the relief, and evidence supporting
the request.
5. The order shall be binding upon the
parties.
6. Either party may apply with the RTC
for assistance in Implementing or
enforcing
an
interim
measure
ordered by an arbitral tribunal.
7. A party who does not comply with
the order shall be liable for all
damages
resulting
from
noncompliance,
including
all
expenses, and reasonable attorney's
fees, paid in obtaining the order's
judicial enforcement (Sec. 28).
Further Authority for Arbitrator to Grant
Interim
Measure of Protection
Unless otherwise agreed by the parties, the
arbitral tribunal may, at the request of a
party, order any party to take such interim
measures of protection as the arbitral
tribunal may consider necessary in respect
of the subject matter of the dispute
following the rules in Sec. 28, par. 2.
DOMESTIC ARBITRATION
RA 876 Domestic Arbitration Law:
That which is not international as defined
in Article 3 of the Model Law.
the
arbitration.
Construction
FORM
Dispute
The RTC which a construction dispute is
filed shall, upon becoming aware, not later
than the pretrial conference, that the
parties had entered into an arbitration to be
conducted by the CIAC, unless both
parties, assisted by their respective
counsel, shall submit to the regional trial
court a written agreement exclusive for the
Court, rather than the CIAC, to resolve the
dispute (Sec. 39).
ARBITRATION OF CONSTRUCTION
DISPUTES
Governed by E.O. No. 1008, otherwise
known as the Constitution Industry
Arbitration Law
By written agreement of the parties to a
dispute, an arbitrator may act as mediator
and a mediator may act as arbitrator. The
parties may also agree in writing that,
following a successful mediation, the
mediator shall issue the settlement
agreement in the form of an arbitral award.
Coverage of the Law
Construction disputes which fall within the
original and exclusive jurisdiction of the
Construction
Industry
Arbitration
Commission (the "Commission") shall
include those between or among parties to,
or who are otherwise bound by, an
arbitration agreement, directly or by
reference whether such parties are project
owner, contractor, subcontractor, quantity
surveyor, bondsman or issuer of an
insurance policy in a construction project.
The Commission shall continue to exercise
original and exclusive jurisdiction over
construction
disputes
although
the
arbitration is "commercial" pursuant to
Section 21 of this Act.
Court
to
Dismiss
Case
Involving
for
recognition
and
Alternative
Dispute
Dispute
Federal
pre-emption
doctrine
in
domestic arbitration under RA 876
(courts first rule on the validity,
enforceability
and
workability
of
arbitration agreement) is eliminated by
also making competence-competence
applicable
(Rule 2.2)
of
4. Appointment of Arbitrator;
5. Challenge to Appointment of Arbitrator;
6. Termination of Mandate of Arbitrator;
7. Assistance in Taking Evidence;
8. Confidentiality/Protective Orders; and
9. Deposit
and
Enforcement
of
Mediated Settlement Agreements.
Summary Hearing
In all cases, as far as practicable, the
summary hearing shall be conducted in
one (1) day and only for purposes of
clarifying facts. EXCEPT in cases involving
Referral to ADR or Confidentiality/
Protective Orders made through motions, it
shall be the court that sets the petition for
hearing within 5 days from the lapse of the
period for filing the opposition or comment.
Resolution
The court shall resolve the matter within a
period of 30 days from the day of the
hearing.
result
in
has
not
PART II
SPECIFIC COURT RELIEF
Judicial Relief
Before Commencement
of Arbitration
Who may
file
petition
Any party to an
Arbitration agreement
Judicial Relief
After Arbitration
Rule 3.20.Commences
Where no petition is allowed.
Anyparty toarbitration may
PetitionthecourtForjudicialrelieffrom
theruling
Wherethe arbitral tribunal defers its
rulingof
the
arbitraltribunalon
on preliminary question regarding its
apreliminaryquestionupholdingordecliningit
jurisdiction until its final award, the
s jurisdiction.
aggrieved party
cannot seek judicial relief to
Withinthe
30 deferral
days from
receipt
question
and
mustof await the
notice of ruling byarbitral tribunal
final
arbitral
award
before
seeking
appropriate judicial recourse.
Arbitration Agreementis invalid,
Inexistentor Unenforceableas aresultof
A ruling
by the arbitral
tribunal deferring
whichthearbitral
tribunal
resolution
on the issue
of its jurisdiction
hasnojurisdictionto
resolvethedispute
final
award,
shall
not be is
subject
RTCuntil
of the
place
where
arbitration
takingto a
motion
for
reconsideration,
appeal
or a
or where any of the petitioners or
petition for certiorari.
respondents
has his principal place of
business or residence.
The court
judgment
withinaward
30
Rule shall
3.21.render
Rendition
of arbitral
days from
the
time
the
petition
is
submitted
before court decision on petition from
for resolution
arbitral tribunals
preliminary ruling on
The aggrieved
party
may file
jurisdiction.
MR. The decision of the court shall is NOT
subject
to appeal.
Ifthe arbitral
tribunal
renders a final
arbitral award and the Court has not
The ruling
of the court
affirming
rendered
a decision
on the
petitionthe
from the
arbitral
tribunals
jurisdiction
is
not
arbitral
tribunals
preliminary
ruling
subject to
petition for certiorari.
affirming
itsajurisdiction,
that petition shall
become ipso facto moot and academic and
Theberuling
of the court
that
the
shall
dismissed
by the
Regional
Trial
arbitral
tribunal
has
no
jurisdiction
Court. The dismissal shall be without
may be the
subject
petition
for party
prejudice
to the
rightof
ofathe
aggrieved
certiorari.
to raise the same issue in a timely petition
to vacate or set aside the award.
Rule 3.22. Arbitral tribunal a
nominal party
Thearbitral tribunal is only a nominal
party. The court shall not require the
arbitral tribunal to submit any pleadings or
written submissions but may consider the
same should the latter participate in the
proceedings, but only as nominal parties
thereto.
Comment/Opposition
The comment/oppositionof the respondent
must be filed within 15 days from service of
the petition.
appeal
MEASURES
OF
Grounds:
1. The need to prevent irreparable loss
or injury;
2. The need to provide security for the
performance of any obligation;
3. to produce or preserve evidence; or
4. The need to compel any other
appropriate act or omission.
NOTE:
The
exclusive.
enumeration
is
not
MEASURE
OF
1. Preliminary
injunction
directed
against aparty to arbitration;
2. Preliminary
attachment
against
property orgarnishment of funds in the
custody of a bank or a 3rd person;
3. Appointment of a receiver;
4. Detention, preservation, delivery
orinspection of property; or,
5. Assistance in the enforcement of
an interim measure of protection
granted by thearbitral tribunal,
which the latter cannot enforce
effectively.
NOTE: Such interim measures may include
butshall not be limited to preliminary
injunction directed against a party,
appointment of receivers or detention,
preservation,inspection of property that is
the subject of the dispute in arbitration
(Sec. 29, RA 9285).
Comment/Opposition
Thecomment/opposition must be filed
within 15 days from service of the petition.
The opposition or comment should state
the reasons why the interim measure of
protection should not be granted.
Temporary Order of Protection (TOP)
In cases where, based solely on the
petition, the court finds that there is an
urgent need to either:
1. preserve property,
2. prevent
the
respondent
from
disposing of, or concealing, the
property, or
3. prevent the relief prayed for from
becoming illusory because of prior
notice, it shall issue an immediately
executory temporary order of protection
and require the petitioner, within 5 days
from receipt of that order, to post a bond
to answer for any damage that
respondent may suffer as a result of its
order.
Effectivity Theex-partetemporary order
ofprotection shall be valid only for a period
of 20 days from the service on the party
required to comply with the order. The
court may extend the period of validity of
the ex-parte TOP for no more than 20 days
from expiration of the original period.
The respondent has the option of having
the temporary order of protection lifted by
posting an appropriate counter-bond as
determined by the court.
Rule 5.10. Relief againstcourt action.
If respondent was given an opportunity to
be heard on a petition for an interim
measure of protection, any order by the
court shall be immediately executory, but
may be the subject of a motion for
reconsideration and/or appeal or, if
warranted, a petition for certiorari.
Rule 5.11. Duty of the court to
refer back.
Thecourt shall GRANT an application for
assistance in implementing or enforcing an
interim measure of protection ordered by an
arbitral tribunal on any or all of the
following grounds:
a. The arbitral tribunal granted the
interim relief ex parte; or
RULE 6: APPOINTMENT OF
ARBITRATORS
RULE 10:
CONFIDENTIALITY/PROTECTIVE
ORDERS
Rule 10.1. Who may request
confidentiality
A party, counsel or witness who disclosed
or who was compelled to disclose
confidential information relative to the
subject of ADR has the right to prevent
such information from being further
disclosed without the express written
consent of the source or the party who
made the disclosure.
Rule 10.8. Court action.
In resolving thepetition or motion, the
courts shall be guided by the following
principles
applicable
to
all
ADRproceedings: Confidential information
shallnot be subject to discovery and shall
be
inadmissible
in
any
adversarial
proceeding, whether judicial or quasi
judicial. However, evidence or information
that is otherwise admissible or subject to
discovery does not become inadmissible or
protected from discovery solely by reason of
its use therein.
For mediation proceedings, the court
dismissed.
E. A petition to confirm the arbitral award
may be filed, in opposition to a petition
to vacate the arbitral award, at any
time after the petition to vacate such
arbitral award is filed. The dismissal of
the petition to vacate the arbitral award
for having been filed beyond the
reglementary period shall not result in
the dismissal of the petition for the
confirmation of such arbitral award.
F. The filing of a petition to confirm an
arbitral award shall not authorize
the filing of a belated petition to
vacate or set aside such award in
opposition thereto.
G. A petition to correct an arbitral
award may be included as part of a
petition to confirm the arbitral
award or as a petition to confirm
that award.
Rule 11.5. Form of petition.
An application tovacate an arbitral award
shall be in the form of a petition to vacate
or as a petition to vacate in opposition to a
petition to confirm the same award.
An application to correct/modify an arbitral
award may be included in a petition to
confirm an arbitral award or in a petition to
vacate in opposition to confirm the same
award.
When a petition to confirm an arbitral
award is pending before a court, the party
seeking to vacate or correct/modify said
award may only apply for those reliefs
through
a
petition
to
vacate
or
correct/modify the award in opposition to
the petition to confirm the award provided
that
such
petition
to
vacate
or
correct/modify is filed within thirty (30)
PART III
PROVISIONS SPECIFIC TO MEDIATION
RULE 14: GENERAL PROVISIONS
Rule 14.1. Application of the rules on
arbitration
or where settlement
reached, and
was
2. as permitted to be disclosed
under Sec. 13 of RA 9285
(Sec. 12, RA 9285).
*
PART IV
PROVISIONS SPECIFIC TO
CONSTRUCTION ARBITRATION
RULE 16: GENERAL PROVISIONS
Rule 16.1. Application of the rules on
arbitration
Whenever applicable and appropriate, the
ruleson arbitration shall be applied in
proceedings before the court relative to a
dispute subject to construction arbitration.
RULE 17: REFERRAL TO CIAC
Rule 17.1. Dismissal of action.
A RTC beforewhich a construction dispute
PART V
PROVISIONS SPECIFIC TO OTHER
FORMS OF ADR
RULE 18: GENERAL PROVISIONS
Rule 18.1. Applicability of rules to other
forms of ADR
This rule governs the procedure for matters
brought before the court involving the
following forms of ADR:
1.
2.
3.
4.
5.
6.
PART VI
MR, APPEAL AND CERTIORARI
RULE 19: MR, APPEAL AND
CERTIORARI
A. MOTION FOR RECONSIDERATION
Rule 19.1. Motion for reconsideration,
when allowed
A party may ask the Regional Trial
toreconsider its ruling on the following:
of
motion.
motion
allowed
C. APPEALS
APPEALS
TO
THE
COURT
OF
arbitrator;
3. Denying a petition for assistance in
taking evidence;
4. Enjoining or refusing to enjoin a
person from divulging confidential
information;
5. Confirming,
vacating
or
correcting/modifying a domestic arbitral
award;
6. Setting aside an international
commercial arbitration award;
7. Dismissing the petition to set aside an
international commercial arbitration
award even if the court does not decide
to recognize or enforce such award;
8. Recognizing
international
award;
and/or
enforcing
an
commercial arbitration
D.
SPECIAL
CERTIORARI
CIVIL
ACTION
FOR
5. Denying
a
petition
for
appointment of an arbitrator;
the
E. APPEAL BY CERTIORARI
THE SUPREME COURT
TO
for review
thereto.
or
be
closely
analogous
PART VII
FINAL PROVISIONS
RULE 21: COSTS
exemption
third-party
securing
the
loan,
his
agreement to be bound by the arbitration
agreement in the contract of loan shall
pertain to disputes arising from or in
connection with:
1. the relationship between the lender
and the borrower
2. and the relationship between the
lender
and
such
third-party
including the right of the lender to
proceed against the collateral
securing the loan, but shall
EXCLUDE
disputes
on
the
relationship exclusively between the
borrower and the provider of
security such as that involving a
claim by the provider of security for
indemnification
against
the
borrower.
Appointment of Arbitrator in a multipartyarbitration
The
parties
may
agree
to
submit
to
Remedies Available
(SC-HAVOC)
1. Spousal Support
2. Child Support of Common Children
3. Child Custody
4. Visitation Rights
5. Hold Departure Order
6. Order of Protection
7. Administration of Community or
Conjugal Property
SEC. 1. When Issued.Upon receipt of a
verifiedpetition for declaration of absolute
nullity of void marriage or for annulment of
voidable marriage, or for legal separation,
and at any time during the proceeding, the
court, motu proprio or upon application
under oath of any of the parties, guardian
or designated custodian, may issue
provisional orders and protection orders
with orwithout a hearing.
These
orders
may
be
enforced
immediately, withor without a bond, and
for such period and undersuch terms and
conditions as the court may deem
necessary.
i.
ii.
(CRe2 Pe2 S)
RECALL
The court may recall the order, motu
proprio or upon verified motion of any of
the parties after summary hearing, subject
to such terms and conditions as may be
necessary for the best interests of the child.
Sec. 7. Order of Protection.
The court may issuean Order of Protection
requiring any person:
1. To stay away from the home, school,
business, or place of employment of the
child, other parent or any other party,
and to stay away from any other specific
place designated by the court;
2. To
refrain
from
harassing,
intimidating, or threatening such
child or the other parent or any
person to whom custody of the child
is awarded;
3. To refrain from acts of commission
or
omission
that
create
an
unreasonable risk to the. health,
safety, or welfare of the child;
4. To permit a parent, or a person
entitled to visitation by a court
order or a separation agreement, to
visit the child at stated periods;
5. To permit a designated party to
enter the residence during a
specified period of time in order to
take
personal
belongings
not
contested in a proceeding pending
with the Family Court;
6. To comply with such other orders as
are necessary for the protection of
the child.
Sec. 8. Administration
Property.
of
Common
Grounds
for
Administration/
Receivership of Common Property
1. If a spouse without just cause
abandons the other or
2. Fails to comply with his or her
family obligations
Upon the existence of any of the grounds
above, the court may, upon application of
the aggrieved party under oath, issue a
provisional order appointing the applicant
or a third person as receiver or sole
administrator of the commonproperty
subject to such precautionary conditions it
may impose.
The receiver or administrator may NOT
dispose of or encumber any common
property or specific separate property of
either spouse without prior authority of
the court.
The provisional order issued by the court
shall be registered in the proper Register of
Deeds and annotated in all titles of
properties subject of the receivership or
administration.
Effectivity.This Rule shall take effect on
March15, 2003 following its publication in a
newspaper of general circulation not later
than March 7, 2003.
case; and
c. Render
and
promulgate
judgment
of
conviction,
including the civil liability or
damages duly established
by the evidence.
5. When plea bargaining fails, the Court
shall CONDUCT THE PRE-TRIAL.
6. All agreements or admissions made or
entered during the pre-trial conference
shall be reduced in writing and signed
by the accused counsel, otherwise, they
cannot be used against the accused.
The agreements covering the matters
referred to in Section 1 of Rule 118
shall be approved by the court.
7. The trial judge shall issue a PRE-TRIAL
ORDER within 10 days after the
termination of the pre-trial.
or
any
duly
licensed
childplacement or child-caring agency or
individual by the court, parent or
guardian or any interested party.
7. "Involuntarily committed child" is
onewhose
parents
have
been
permanently and judicially deprived of
parental authority due to abandonment;
substantial, continuous, or repeated
neglect; abuse; or incompetence to
discharge parental responsibilities in
accordance with Sec. 4.
8. "Voluntarily committed child" is one
whoseparents knowingly and willingly
relinquished parental authority to the
Department or any duly licensed childplacement or child-caring agency or
individual in accordance with Sec.3.
9. "Child-placing or child-placement
agency" refers to a private nonprofit or charitable institution or
government agency duly licensed
and accredited by DSWD to provide
comprehensive
child
welfare
services, including but not limited
to,
receiving
applications
for
adoption or foster care, evaluating
the prospective adoptive or foster
parents and preparing the home
study report.
10. "Child-caring agency" refers to a
private non-profit or charitable
institution or government agency
duly licensed and accredited by the
Department that provides 24-hour
residential
care
services
for
abandoned, orphaned, neglected,
involuntarily
or
voluntarily
committed children.
Grounds
Venue
Grounds for
Removal of
Custody
Jurisdiction
for Prosecution
of committed
child who left
without
permission
Involuntary Commitment
Child is dependent, abandoned or
neglected
1. DSWD Sec. or
2. his representative or
3. any
licensed
childplacement or
4. child-caring agency
Neglect
Voluntary Commitment
Child is dependent,
abandoned or neglected.
1. Parent or
2. Guardian of the
child
to
be
committed
In petition for removal of
custody, Family Court:
1. where the childplacement
or
child
caring
agency to which
the child has been
voluntary
committed
is
located or
2. where the child
may be found
Neglect or voluntary
commitment is
unjustified
Family Court of the
place:
1. where the child
may be found or
2. where the duly
licensed
childplacement
or
child-caring
agency
or
individual
is
located
Jurisdiction
for
Punishable Acts
Prosecution
of
Authority
Venue
The petition for commitment of a disabled
child shall be filed with the Family Court of
the place where the parent or guardian
resides or where the child is found.
Discharge
of
Disabled Child
Judicially
Committed
VENU
E
WHEN
TO
FILE
separation.
RESIDENT PETITIONER/
RESPONDENT:
Family Court of the place where
he is residing for atleast 6
months prior to the date of
filing.
NON-RESIDENT RESPONDENT:
Family Court where he may be
found in the Philippines, at the
election of the petitioner.
The action
must be filed
within 5 years
The action or
from tha time
defense DOES
of the
NOT
occurrence of
prescribe.
the cause.
MARRIAGES
WHERE TO FILE
RESIDENT
PETITIONER/RESPONDENT:
Family Court of the place
where he is residing for at
least 6 mos. prior to the date
of filing
NON-RESIDENT
RESPONDENT:
Family Court where he may
be found in the Phils. at the
election of the petitioner
Injured party
Within 5 yrs.
after the
celebration of
marriage
Injured party
Within 5 yrs.
after the
celebration of
marriage
Form of Petition
1. Verified
Contents of Petition
Motion to Dismiss
No motion to dismiss the petition shall be
allowed EXCEPT on the ground of lack of
jurisdiction over the subject matter or over
the parties; provided, however, that any
other ground that might warrant a dismissal
of the case may be raised as an affirmative
defense in an answer.
Answer
1. Respondent shall file his answer
within 15 days from service of
summons, or within 30 days from
the last issue of publication in case
of
service
of
summons
by
publication. Failure to do so,
he/she shall NOT be declared in
default.
The answer must be VERIFIED by the
respondent himself and not by counsel
or attorney-in-fact.
2. Where no answer is filed or if the
answer does not tender an issue, the
court shall order the public prosecutor
to investigate whether collusion exists
between the parties.
Investigation
Prosecutor
Report
of
Public
brief
shall
contain
the
CANNOT
BE
Decision
1. If the court granted the petition, it shall
declare therein that the decree of
absolute nullity or decree of annulment
shall be issued by the court only after
compliance with Art. 50 and 51 of the
Family Code as implemented under the
Rule on Liquidation, Partition and
Distribution of Properties.
2. The decision becomes FINAL upon the
expiration of 15 days from notice to the
parties.
3. Upon the finality of the decision, the
court shall issue the corresponding
decree if the parties have no properties.
If the parties have properties, the court
of
the
ON
LEGAL
new regime.
The decree of reconciliation shall be
recorded in the Civil Registries where the
marriage and the Decree had been
registered.
2. RECONCILIATION
AFTER
JUDGMENT GRANTING PETITION
BUT BEFORE ISSUANCE OF
DECREE
The
spouses
shall
express
intheir
manifestation
whether or not they agree to revive
the former regime of their property
relations or choose a new regime.
The court shall immediately issue a
Decree ofReconciliation declaring
that the legalseparation proceeding is
set aside and specifying the regime of
property relations under which the
spouses shall be covered.
3. RECONCILIATION AFTER ISSUANCE
OF DECREE The court, upon proper
motion,shall issue a Decree of
Reconciliation declaring that the
Decree is set aside but the separation
of property and any forfeiture of the
share of the guilty spouse already
effected subsists, UNLESS the spouses
have agreed to revive their former
regime of property relations or adopt a
CONTENTS
or
modification
Sec. 2. Applicability.
This rule shall apply to ALL courts and
quasijudicial
bodies
under
the
administrativesupervision of the Supreme
Court.
from receipt.