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Victory goes to those with homicidal instinct to succeed... the murderous mania to excel...
Dean W. Riano

SYLLABUS FOR 2011 BAR EXAMINATIONS

REMEDIAL LAW

I. General Principles 1. Supreme Court

2. Court of Appeals
A. Concept of Remedial Law 3. Court of Tax Appeals
B. Substantive Law as Distinguished from Remedial 4. Sandiganbayan
Law 5. Regional Trial Courts
C. Rule-making Power of the Supreme Court 6. Family Courts
1. Limitations on the rule-making power of 7. Metropolitan Trial Courts/Municipal Trial
the Supreme Court Courts
2. Power of the Supreme Court to amend 8. Shariah Courts
and suspend procedural rules F. Jurisdiction over small claims, cases covered by the
rules on Summary Procedure and Barangay
D. Nature of Philippine Courts Conciliation
1. Meaning of a court G. Totality Rule
2. Court as distinguished from a judge
3. Classification of Philippine courts III. Civil Procedure
4. Courts of original and appellate
jurisdiction A. Actions
5. Courts of general and special jurisdiction 1. Meaning of ordinary civil actions
6. Constitutional and statutory courts 2. Meaning of special civil actions
7. Courts of law and equity 3. Meaning of criminal actions
8. Principle of judicial hierarchy 4. Civil actions versus Special proceedings
9. Doctrine of non-interference or doctrine of 5. Personal actions and real actions
judicial stability 6. Local and transitory actions
7. Actions in rem, in personam and quasi in
II. Jurisdiction rem

A. Jurisdiction over the parties B. Cause of Action

1. How jurisdiction over the plaintiff is 1. Meaning of cause of action
acquired 2. Right of Action versus Cause of action
2. How jurisdiction over the defendant is 3. Failure to state a cause of action
acquired 4. Test of the sufficiency of a cause of action
5. Splitting a single cause of action and its
B. Jurisdiction over the subject matter effects
1. Meaning of jurisdiction over the subject 6. Joinder and misjoinder of causes of action
matter
2. Jurisdiction versus the exercise of C. Parties to Civil Actions
jurisdiction 1. Real Parties in interest; Indispensable
3. Error of jurisdiction as distinguished from parties; Representatives as parties; Necessary
error of judgment parties; Indigent Parties; Alternative
4. How jurisdiction is conferred and defendants
determined 2. Compulsory and permissive joinder of
5. Doctrine of primary jurisdiction parties
6. Doctrine of adherence of jurisdiction 3. Misjoinder and non-joinder of parties
7. Objections to jurisdiction over the subject 4. Class Suit
matter 5. Suits against entities without juridical
8. Effect of estoppel on objections to personality
jurisdiction 6. Effect of death of party litigant

C. Jurisdiction over the issues D. Venue

D. Jurisdiction over the res or property in litigation 1. Venue versus Jurisdiction
2. Venue of real actions
E. Jurisdiction of Courts 3. Venue of personal actions
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4. Venue of actions against non-residents 6. Default

5. When the Rules on Venue Do not Apply a. When a declaration of default is
6. Effects of Stipulations on Venue proper
b. Effect of an order of default
E. Pleadings c. Relief from an order of default
1. Kinds of Pleadings d. Effect of a partial default
a. Complaint e. Extent of relief
b. Answer f. Actions where default are not
(1) Negative defenses allowed
(2) Negative pregnant 7. Filing and Service of pleadings
(3) Affirmative Defenses I. Payment of docket fees
c. Counterclaims II. Filing versus service of pleadings
(1) Compulsory III. Periods of filing of pleadings
counterclaim IV. Manner of filing
(2) Permissive V. Modes of service
counterclaim (1) Personal service
(3) Effect on the (2) Service by mail
Counterclaim when the (3) Substituted service
complaint is dismissed (4) Service of judgments,
d. Cross-claims final orders or resolutions
e. Third (fourth, etc.) party (5) Priorities in modes of
complaints service and filing
f. Complaint-in-intervention (6) When service is
g. Reply deemed complete
2. Pleadings allowed in small claim cases and (7) Proof of filing and
cases covered by the rules on summary service
procedure 8. Amendment
3. Parts of a pleading a. Amendment as a matter of right
a. Caption b. Amendments by leave of court
b. Signature and address c. Formal amendment
c. Verification and certification d. Amendments to conform to or
against forum shopping authorize presentation of evidence
(1) Requirements of a e. Different from supplemental
corporation executing the pleadings
verification/certification of f. Effect of amended pleading
non-forum shopping
d. Effect of the signature of counsel F. Summons
in a pleading 1. Nature and purpose of summons in
4. Allegations in a pleading relation to actions in personam, in rem and
a. Manner of making allegations quasi in rem
(1) Condition precedent 2. Voluntary appearance
(2) Fraud, mistake, malice, 3. Personal service
intent, knowledge and 4. Substituted service
other condition of the 5. Constructive service (by publication)
mind, judgments, official a. Service upon a defendant where
documents or acts his identity is unknown or where
b. Pleading an actionable document his whereabouts are unknown
c. Specific denials b. Service upon residents
(1) Effect of failure to make temporarily outside the Philippines
specific denials 6. Extra-territorial service, when allowed
(2) When a specific denial 7. Service upon prisoners and minors
requires an oath 8. Proof of service
5. Effect of failure to plead
1. Failure to plead defenses and G. Motions
objections 1. Motions in general
2. Failure to plead a compulsory a. Definition of a motion
counterclaim and cross-claim b. Motions versus pleadings
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c. Contents and form of motions 3. Service of subpoena

d. Notice of hearing and hearing of 4. Compelling attendance of witnesses;
motions Contempt
e. Omnibus motion rule 5. Quashing of subpoena
f. Litigated and ex parte motions
g. Pro-forma motions L. Modes of Discovery
2. Motions for Bill of Particulars 1. Depositions pending action; Depositions
a. Purpose and when applied for before action or pending appeal
b. Actions of the court a. Meaning of deposition
c. Compliance with the order and b. Uses; Scope of examination
effect of noncompliance c. When may objections to
d. Effect on the period to file a admissibility be made
responsive pleading d. When may taking of deposition
3. Motion to Dismiss be terminated or its scope limited
a. Grounds 2. Written interrogatories to adverse parties
b. Resolution of Motion a. Consequences of refusal to
c. Remedies of plaintiff when the answer
complaint is dismissed b. Effect of failure to serve written
d. Remedies of the defendant when interrogatories
the motion is denied 3. Request for Admission
e. Effect of dismissal of complaint a. Implied admission by adverse
on certain grounds party
f. When grounds pleaded as b. Consequences of failure to
affirmative defenses answer request for admission
g. Bar by dismissal c. Effect of admission
h. Distinguished from demurrer to d. Effect of failure to file and serve
evidence under Rule 33 request for admission
4. Production or inspection of documents or
H. Dismissal of Actions things
1. Dismissal upon notice by plaintiff; Two- 5. Physical and mental examination of
dismissal rule persons
2. Dismissal upon motion by plaintiff; effect 6. Consequences of refusal to comply with
on existing counterclaim modes of discovery
3. Dismissal due to the fault of plaintiff
4. Dismissal of counterclaim, cross-claim or M. Trial
third-party complaint 1. Adjournments and postponements
2. requisites of motion to postpone trial
I. Pre-trial a. for absence of evidence
1. Concept of pre-trial b. for illness of party or counsel
2. Nature and purpose 3. Agreed statement of facts
3. Notice of pre-trial 4. Order of trial; reversal of order
4. Appearance of parties; effect of failure to 5. Consolidation or Severance of hearing or
appear trial
5. Pre-trial brief; effect of failure to appear 6. Delegation of reception of evidence
6. Distinction between pre-trial in civil case 7. Trial by commissioners
and pre-trial in criminal case a. Reference by consent or ordered
7. Alternative Dispute Resolution (ADR) on motion
b. Powers of the commissioner
J. Intervention c. Commissioners report; notice to
1. Requisites for intervention parties and hearing on the report
2. Time to intervene
3. Remedy for the denial of motion to N. Demurrer to Evidence
intervene 1. Ground
2. Effect of denial
K. Subpoena 3. Effect of grant
1. Subpoena duces tecum 4. Waiver of right to present evidence
2. Subpoena ad testificandum
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5. Demurrer to evidence in a civil case versus o. Review of final judgments or

demurrer to evidence in a criminal case final orders of the Ombudsman
p. Review of final judgments or
O. Judgments and Final Orders final orders of the NLRC
1. Judgment without trial q. Review of final judgments or
2. Contents of a judgment final orders of quasi-judicial
3. Judgment on the pleadings agencies
4. Summary judgments
a. for the claimant 3. Relief from judgments, orders and other
b. for the defendant proceedings
c. when the case not fully a. Grounds for availing of the
adjudicated remedy
d. affidavits and attachments b. Time to file petition
5. Judgment on the pleadings versus c. Contents of petition
summary judgments
6. Rendition of judgments and final orders 4. Annulment of Judgments or final orders
7. Entry of judgment and final order and resolutions
a. Grounds for annulment
P. Post Judgment Remedies b. Period to file action
c. Effects of judgment of annulment
1. Motion for New Trial or reconsideration
a. Grounds 5. Collateral attack of judgments
b. When to file
c. Denial of the motion; effect Q. Execution, Satisfaction and Effect of Judgments
d. Grant of the motion; effect 1. Difference between finality of judgment
e. Remedy when motion is denied, for purposes of appeal; for purposes of
Fresh 15-day period rule execution
2. When execution shall issue
2. Appeals in General a. Execution as a matter of right
a. Judgments and final orders b. Discretionary execution
subject to appeal 3. How a judgment is executed
b. Matters not appealable a. Execution by motion or by
c. Remedy against judgments and independent action
orders which are not appealable b. Issuance and contents of a writ of
d. Modes of appeal execution
(1) Ordinary appeal c. Execution of judgments for
(2) Petition for review money
(3) Petition for review on d. Execution of judgments for
certiorari specific acts
e. Issues to be raised on appeal e. Execution of special judgments
f. Period of appeal f. Effect of levy on third persons
g. Perfection of appeal 4. Properties exempt from execution
h. Appeal from judgments or final 5. Proceedings where property is claimed by
orders of the MTC third persons
i. Appeal from judgments or final a. in relation to third party claim in
orders of the RTC attachment and replevin
j. Appeal from judgments or final 6. Rules on Redemption
orders of the CA 7. Examination of Judgment Obligor When
k. Appeal from judgments or final Judgment is unsatisfied
orders of the CTA 8. Examination of Obligor of Judgment
l. Review of final judgments or final Obligor
orders of the COA 9. Effect of Judgment or Final Orders
m. Review of final judgments or 10. Enforcement and Effect of Foreign
final orders of the COMELEC Judgments or Final Orders
n. Review of final judgments or
final orders of the CSC R. Provisional Remedies
1. Nature of provisional remedies
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2. Jurisdiction over provisional remedies d. Sheriffs duty in the

implementation of the writ; when
3. Preliminary Attachment property is claimed by third party
a. Grounds for issuance of writ of
attachment S. Special Civil Actions
b. Requisites 1. Nature of special civil actions
c. Issuance and contents of order of 2. Ordinary civil actions versus special civil
attachment; affidavit and bond actions
d. Rule on prior or 3. Jurisdiction and venue
contemporaneous service of
summons 4. Interpleader
e. Manner of attaching real and a. Requisites for interpleader
personal property; when property b. When to file
attached is claimed by third person
f. Discharge of attachment and the 5. Declaratory Reliefs and Similar Remedies
counter-bond a. Who may file the action
g. Satisfaction of judgment out of b. Requisites of action for
property attached declaratory relief
c. When court may refuse to make
4. Preliminary Injunction judicial declaration
a. Definitions and Differences: d. Conversion to ordinary action
Preliminary Injunction and e. Proceedings considered as similar
Temporary Restraining Order remedies
b. Requisites A. Reformation of an
c. Kinds of Injunction instrument
d. When writ may be issued B. Consolidation of
e. Grounds for issuance of ownership
preliminary injunction C. Quieting of title to real
f. Grounds for objection to, or for property
the dissolution of injunction or
restraining order 6. Review of Judgments and Final Orders or
g. Duration of TRO Resolution of the COMELEC and COA
h. In relation to RA 8975, Ban on a. Application of Rule 65 under
issuance of TRO or Writ of Rule 64
Injunction in cases involving b. Distinction in the application of
government infrastructure projects Rule 65 to judgments of the
i. Rule on prior or COMELEC and COA and the
contemporaneous service of application of Rule 65 to other
summons in relation to attachment tribunals, persons and officers

5. Receivership 7. Certiorari, Prohibition and Mandamus

a. Cases when receiver may be a. Definitions and distinctions
appointed b. Requisites
b. Requisites c. When petition for certiorari,
c. Requirements before issuance of prohibition and mandamus is
an Order proper
d. General powers of a receiver d. Injunctive relief
e. Two (2) kinds of bonds e. Certiorari distinguished from
f. Termination of receivership Appeal by Certiorari; Prohibition
and Mandamus distinguished from
6. Replevin Injunction; when and where to file
a. When may writ be issued petition
b. Requisites f. Exceptions to filing of motion for
c. Affidavit and bond; Redelivery reconsideration before filing
Bond petition
g. Reliefs petitioner is entitled to
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h. Actions/Omissions of MTC/RTC b. Matters to allege in the complaint

in election cases for partition
i. Where to file petition c. Two (2) stages in every action for
j. Effects of filing of an partition
unmeritorious petition d. Order of partition and partition
by agreement
8. Quo Warranto e. Partition by commissioners;
a. Distinguish from Quo Warranto Appointment of commissioners,
in the Omnibus Election Code Commissioners report; Court
b. When government commence an action upon commissioners report
action against individuals f. Judgment and its effects
c. When individual may commence g. Partition of personal property
an action h. Prescription of action
d. Judgment in Quo Warranto
action 12. Forcible Entry and Unlawful Detainer
e. Rights of a person adjudged a. Definitions and Distinction
entitled to public office b. Distinguished from accion
publiciana and accion
9. Expropriation reinvindicatoria
a. Matters to allege in complaint for c. How to determine jurisdiction in
expropriation accion publiciana and accion
b. Two stages in every action for reinvindicatoria
expropriation d. Who may institute the action and
c. When plaintiff can immediately when; against whom the action
enter into possession of the real may be maintained
property, in relation to RA 8974 e. Pleadings allowed
d. New system of immediate f. Action on the complaint
payment of initial just g. When demand is necessary
compensation h. Preliminary injunction and
e. Defenses and objections preliminary mandatory injunction
f. Order of Expropriation i. Resolving defense of ownership
g. Ascertainment of just j. How to stay the immediate
compensation execution of judgment
h. Appointment of Commissioners; k. Summary procedure, prohibited
Commissioners report; Court pleadings
action upon commissioners report
i. Rights of plaintiff upon judgment 13. Contempt
and payment a. Kinds of contempt
j. Effect of recording of judgment b. Purpose and nature of each
c. Remedy against direct contempt;
10. Foreclosure of Real Estate Mortgage penalty
a. Judgment on foreclosure for d. Remedy against indirect
payment or sale contempt; penalty
b. Sale of mortgaged property; e. How contempt proceedings are
effect commenced
c. Disposition of proceeds of sale f. Acts deemed punishable as
d. Deficiency judgment indirect contempt
(1) Instances when court g. When imprisonment shall be
cannot render deficiency judgment imposed
e. Judicial foreclosure versus h. Contempt against quasi-judicial
extrajudicial foreclosure bodies
f. Equity of redemption versus right
of redemption IV. Special Proceedings

11. Partition A. Settlement of Estate of Deceased Persons, Venue

a. Who may file complaint; who and Process
should be made defendants 1. Which court has jurisdiction
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2. Venue in judicial settlement of estate 3. Remedy of an heir entitled to residue but

3. Extent of jurisdiction of Probate Court not given his share
4. Powers and Duties of Probate Court 4. Instances when probate court may issue
writ of execution
B. Summary Settlement of Estates
1. Extrajudicial settlement by agreement I. Trustees
between heirs, hen allowed 1. Distinguished from
2. Two-year prescriptive period executor/administrator
3. Affidavit of Self-adjudication by sole heir 2. Conditions of the Bond
4. Summary settlement of estates of small 3. Requisites for the removal and resignation
value, when allowed of a trustee
5. Remedies of aggrieved parties after extra- 4. Grounds for removal and resignation of a
judicial settlement of estate trustee
5. Extent of authority of trustee
C. Production and Probate of Will
1. Nature of probate proceeding J. Escheat
2. Who may petition for probate; persons 1. When to file
entitled to notice 2. Requisites for filing of petition
3. Remedy of respondent against petition;
D. Allowance or Disallowance of Will period for filing a claim
1. Contents of petition for allowance of will
2. Grounds for disallowing a will K. Guardianship
3. Reprobate; Requisites before will proved 1. General powers and duties of guardians
outside allowed in the Philippines; effects of 2. Conditions of the bond of the guardian
probate 3. Rule on Guardianship over minor

E. Letters Testamentary and of Administration L. Adoption

1. When and To whom letters of 1. Distinguish domestic adoption from inter-
administration granted country adoption
2. Order of preference 2. Domestic Adoption Act
3. Opposition to issuance of letters a. effects of adoption
testamentary; simultaneous filing of petition b. instances when adoption may be
for administration rescinded
4. Powers and duties of Executors and c. effects of rescission of adoption
Administrators; restrictions on the powers 3. Inter-country Adoption
5. Appointment of Special Administrator a. when allowed
6. Grounds for removal of administrator b. functions of the RTC
c. "best interest of the minor"
F. Claims Against the Estate standard
1. Time within which claims shall be filed;
exceptions M. Writ of Habeas Corpus
2. Statute of Non-claims 1. Contents of the petition
3. Claim of Executor or administrator against 2. Contents of the Return
the Estate 3. Distinguish peremptory writ from
4. Payment of Debts preliminary citation
4. When not proper/applicable
G. Actions by and against Executors and 5. When writ disallowed/discharged
Administrators 6. Distinguish from writ of Amparo and
1. Actions that may be brought against Habeas Data
executors and administrators 7. Rules on Custody of Minors and Writ of
2. Requisites before creditor may bring an Habeas Corpus in Relation to Custody of
action for recovery of property fraudulently Minors (AM No. 03-04-04-SC)
conveyed by the deceased
N. Writ of Amparo (AM No. 07-9-12-SC)
H. Distribution and Partition 1. Coverage
1. Liquidation 2. Distinguish from habeas corpus and
2. Project of Partition habeas data
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3. Differences between Amparo and search 1. Distinguish Jurisdiction over subject

warrant matter from jurisdiction over person of the
4. Who may file accused
5. Contents of return 2. Requisites for exercise of criminal
6. Effects of failure to file return jurisdiction
7. Omnibus waiver rule 3. Jurisdiction of Criminal courts
8. Procedure for hearing 4. When injunction may be issued to restrain
9. Institution of separate action criminal prosecution
10. Effect of filing of a criminal action
11. Consolidation B. Prosecution of Offenses
12. Interim reliefs available to petitioner and 1. Criminal actions, how instituted
respondent 2. Who may file them, crimes that cannot be
13. Quantum of proof in application for prosecuted de officio
issuance of writ of Amparo 3. Criminal actions, when enjoined
4. Control of prosecution
O. Writ of Habeas Data (AM No. 08-1-16-SC) 5. Sufficiency of Complaint or Information
1. Scope of writ 6. Designation of Offense
2. Availability of writ 7. Cause of the Accusation
3. Distinguish from Habeas Corpus and 8. Duplicity of the Offense; Exception
Amparo 9. Amendment or Substitution of complaint
4. Who may file or information
5. Contents of the petition 10. Venue of criminal actions
6. Contents of return 11. Intervention of offended party
7. Instances when petition be heard in
chambers C. Prosecution of Civil Action
8. Consolidation 1. Rule on implied institution of civil action
9. Effect of filing of a criminal action with criminal action
10. Institution of separate action 2. When civil action may proceed
11. Quantum of proof in application for independently
issuance of writ of Amparo 3. When separate civil action is suspended
4. Effect of the death of accused or convict on
P. Change of Name civil action
1. Differences under Rule 103, RA 9048 and 5. Prejudicial Question
Rule 108 6. Rule on Filing Fees in civil action deemed
2. Grounds for change of name instituted with the criminal action

Q. Absentees D. Preliminary Investigation

1. Purpose of the Rule 1. Nature of right
2. Who may file; when to file 2. Purposes of preliminary investigation
3. Who may conduct determination of
R. Cancellation or Correction of Entries in the Civil existence of probable cause
Registry 4. Resolution of investigation prosecutor
1. Entries subject to cancellation or correction 5. Review
under Rule 108, in relation to RA 9048 6. When warrant of arrest may issue
7. Cases not requiring a preliminary
S. Appeals in Special Proceeding investigation
1. Judgments and orders for which appeal 8. Remedies of accused if there was no
may be taken preliminary investigation
2. When to appeal 9. Inquest
3. Modes of appeal
4. Rule on Advance Distribution E. Arrest
1. Arrest, how made
2. Arrest without warrant, when lawful
V. Criminal Procedure 3. Method of arrest
a. by officer with warrant
A. General Matters b. by officer without warrant
c. by private person
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4. Requisites of a valid warrant of arrest 6. Referral of some cases for Court Annexed
5. Determination of Probable Cause for Mediation and Judicial Dispute Resolution
issuance of warrant of arrest
6. Distinguish probable cause of fiscal from K. Trial
that of a judge 1. Instances when presence of accused is
required by law
F. Bail 2. Requisite before trial can be suspended on
1. Nature account of absence of witness
2. When a matter of right; exceptions 3. Trial in Absentia
3. When a matter of discretion 4. Remedy when accused is not brought to
4. Hearing of application for bail in capital trial within the prescribed period
offenses 5. Requisites for discharge of accused to
5. Guidelines in fixing amount of bail become a state witness
6. Bail when not required 6. Effects of Discharge of accused as state
7. Increase or Reduction of Bail witness
8. Forfeiture and Cancellation of bail 7. Demurrer to Evidence
9. Application not a bar to objections in
illegal arrest, lack of or irregular preliminary L. Judgment
investigation 1. Requisites of a judgment
10. Hold Departure Order & Bureau of 2. Contents of Judgment
Immigration Watchlist 3. Promulgation of judgment; instances of
promulgation of judgment in absentia
G. Rights of the Accused 4. When does judgment become final (four
1. Rights of accused at the trial instances)
2. Rights of persons under Custodial
Investigation M. New Trial or Reconsideration
1. Grounds for New Trial
H. Arraignment and Plea 2. Grounds for Reconsideration
1. Arraignment and Plea, how made 3. Requisites before a new trial may be
2. When should plea of NOT GUILTY be granted on ground of newly discovered
entered evidence
3. When may accused enter a plea of guilty 4. Effects of granting a new trial or
to a lesser offense reconsideration
4. Accused plead guilty to capital offense, 5. Application of Neypes Doctrine in
what the court should do Criminal Cases
5. Searching Inquiry
6. Improvident plea N. Appeal
7. Grounds for suspension of arraignment 1. Effect of an Appeal
2. Where to appeal
I. Motion to Quash 3. How appeal taken
1. Grounds 4. Effect of appeal by any of several accused
2. Distinguish from demurrer to evidence 5. Grounds for dismissal of appeal
3. Effects of sustaining the motion to quash
4. Exception to the rule that sustaining the O. Search and Seizure
motion is not a bar to another prosecution 1. Nature of search warrant
5. Double Jeopardy 2. Distinguish from warrant of arrest
6. Provisional Dismissal 3. Application for search warrant, where
filed
J. Pre-trial 4. Probable Cause
1. Matters to be considered during pre-trial 5. Personal examination by judge of the
2. What the court should do when applicant and witnesses
prosecution and offended party agree to the 6. Particularity of place to be searched and
plea offered by the accused things to be seized
3. Pre-trial agreement 7. Personal property to be seized
4. Non-appearance during pre-trial 8. Exceptions to search warrant requirement
5. Pre-trial order a. Search incidental to lawful arrest
b. Consented Search
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c. Search of moving vehicle 4. Judicial Notice of Foreign Laws, Law of

d. Check points; body checks in Nations and Municipal Ordinance
airport
e. Plain view situation C. Object (Real) Evidence
f. Stop and Frisk situation 1. Nature of Object Evidence
g. Enforcement of Custom Laws 2. Requisites for Admissibility
9. Remedies from unlawful search and 3. Categories of Object Evidence
seizure 4. Demonstrative Evidence
5. View of an Object or Scene
P. Provisional Remedies 6. Chain of Custody in Relation to Section 21
1. Nature of the Comprehensive Dangerous Drugs Act
2. Kinds of provisional remedies of 2002
7. Rule on DNA Evidence (A.M. No. 06-11-5-
VI. Evidence SC)
a. Meaning of DNA
A. General Principles b. Applicable for DNA testing order
1. Concept of Evidence c. Post-conviction DNA testing;
2. Scope of the Rules of Evidence remedy
3. Evidence in Civil Cases Versus Evidence d. Assessment of probative value of
in Criminal Cases1avvphi1 DNA evidence and admissibility
4. Proof Versus Evidence e. Rules on evaluation of reliability
5. Factum Probans Versus Factum of the DNA testing Methodology
Probandum
6. Admissibility of Evidence D. Documentary Evidence
a. Requisites for admissibility of 1. Meaning of Documentary Evidence
evidence 2. Requisites for Admissibility
b. Relevance of evidence and 3. Best Evidence Rule
collateral matters a. Meaning of the rule
c. Multiple admissibility b. When applicable
d. Conditional admissibility c. Meaning of original
e. Curative admissibility d. Requisites for introduction of
f. Direct and circumstantial secondary evidence
evidence 4. Rules on Electronic Evidence (A.M. No.
g. Positive and negative evidence 01-7-01-SC)
h. Competent and credible evidence a. Meaning of electronic evidence;
7. Burden of Proof and Burden of Evidence electronic data massage
8. Presumptions b. Probative value of electronic
a. Conclusive presumptions documents or evidentiary weight;
b. Disputable presumptions method of proof
9. Liberal Construction of the Rules of c. Authentication of electronic
Evidence documents and electronic
10. Quantum of Evidence (Weight And signatures
Sufficiency of Evidence) d. Electronic documents and the
a. Proof beyond reasonable doubt hearsay rule
b. Preponderance of evidence e. Audio, photographic, video and
c. Substantial evidence ephemeral evidence
d. Clear and convincing evidence 5. Parol Evidence Rule
a. Application of the parol evidence
B. Judicial Notice and Judicial Admissions rule
1. What Need Not be Proved b. When parole evidence can be
2. Matters of Judicial Notice introduced
a. Mandatory c. Distinctions between the best
b. Discretionary evidence rule and parol evidence
3. Judicial Admissions rule
a. Effect of judicial admissions 6. Authentication and Proof of Documents
b. How judicial admissions may be a. Meaning of authentication
contradicted b. Public and private documents
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c. When a private writing requires e. How the witness is impeached by

authentication; proof of a private evidence of inconsistent statements
writing (laying the predicate)
d. When evidence of authenticity of f. Evidence of the good character of
a private writing is not required a witness
(ancient documents) 5. Admissions and Confessions
e. How to prove genuineness of a a. Res inter alios acta rule
handwriting b. Admission by a party
f. Public documents as evidence; c. Admission by a third party
proof of official record d. Admission by a co-partner or
g. Attestation of a copy agent
h. Public record of a public e. Admission by a conspirator
document f. Admission by privies
i. Proof of lack of record g. Admission by silence
j. How a judicial record is h. Confessions
impeached i. Similar acts as evidence
k. Proof of notarial documents 6. Hearsay Rule
l. How to explain alterations in a a. Meaning of hearsay
document b. Reason for exclusion of hearsay
m. Documentary evidence in an evidence
unofficial language c. Exceptions to the hearsay rule
(1) Dying declaration
E. Testimonial Evidence (2) Declaration against
1. Qualifications of a Witness interest
2. Competency Versus Credibility of a (3) Act or declaration
Witness about pedigree
3. Disqualifications of Witnesses (4) Family reputation or
a. Disqualification by reason of tradition regarding
mental capacity or immaturity pedigree
b. Disqualification by reason of (5) Common reputation
marriage (6) Part of the res gestae
c. Disqualification by reason of (7) Entries in the course of
death or insanity of adverse party business
d. Disqualification by reason of (8) Entries in official
privileged communications records
(1) Husband and wife (9) Commercial lists and
(2) Attorney and client the like
(3) Physician and patient (10) Learned treaties
(3) and penitent (11) Testimony or
(4) Public officers deposition at a former
Parental and filial privilege rule trial1avvphi1
4. Examination of a Witness 7. Opinion Rule
a. Rights and obligations of a a. Opinion of expert witness
witness b. Opinion of ordinary witness
b. Order in the examination of an 8. Character Evidence
individual witness a. Criminal cases
(1) Direct examination b. Civil cases
(2) Cross examination 9. Rule on Examination of a Child Witness
(3) Re-direct examination (A.M. No. 004-07-SC)
(4) Re-cross examination a. Applicability of the rule
(5) Recalling the witness b. Meaning of "child witness"
c. Leading and misleading c. Competency of a child witness
questions d. Examination of a child witness
d. Methods of impeachment of e. Live-link TV testimony of a child
adverse partys witness witness
f. Videotaped deposition of a child
witness
 12

g. Hearsay exception in child abuse 1. Prohibition against Temporary Restraining

cases Order and Preliminary Injunction
h. Sexual abuse shield rule 2. Pre-trial Conference; Consent Decree
i. Protective orders 3. Prohibited Pleadings and Motions
4. Temporary Environmental Protection
F. Offer and Objection Order (TEPO)
1. Offer of Evidence 5. Judgment and Execution; Reliefs in a
2. When to Make an Offer citizens suit
3. Objection 6. Permanent Environmental Protection
4. Repetition of an Objection Order; Writ of continuing mandamus
5. Ruling 7. Strategic Lawsuit against Public
6. Striking Out of an Answer Participation
7. Tender of Excluded Evidence
C. Special Proceedings
G. Supreme Court Rulings as of December 2010 1. Writ of Kalikasan
2. Prohibited pleadings and motions
VII. Revised Rules on Summary Procedure 3. Discovery measures
A. Cases covered by the Rule 4. Writ of Continuing Mandamus
B. Effect of failure to answer
C. Preliminary conference and appearances of parties D. Criminal Procedure
1. Who may file
VIII. Katarungang Pambarangay 2. Institution of criminal and civil action
A. Cases covered 3. Arrest without warrant, when valid
B. Subject matter for amicable settlement 4. Procedure in the custody and disposition
C. Venue of seized items
D. When parties may directly go to court 5. Bail
E. Execution 6. Arraignment and Plea
F. Repudiation 7. Pre-trial
8. Subsidiary liabilities
IX. Rule of Procedure for Small Claims Cases (AM No. 08-8-
7-SC) E. Evidence
A. Scope and applicability of the Rule 1. Precautionary principle
B. Commencement of small claims action; Response 2. Documentary evidence
C. Prohibited pleadings and motions
D. Appearances IMPORTANT NOTE: This bar coverage description is not
E. Hearing; duty of the judge intended and should not be used by law schools as a syllabus
F. Finality of judgment or course outline in the covered subjects. It has been drawn up
for the limited purpose of ensuring that candidates reviewing
X. Rules of Procedure for Environmental Cases (AM No. 09- for the bar examinations are guided on what basic and
6-8-SC) minimum amounts of laws, doctrines, and principles they need
A. Scope and Applicability of the Rule to know and be able to use correctly before they can be
licensed to practice law. More is required for excellent and
B. Civil Procedure distinguished work as members of the Bar.
 13

CIVIL PROCEDURE
Rules 1 71

provides or regulates the steps by which one who

GENERAL PRINCIPLES commits a crime is to be punished.

RULE-MAKING POWER OF THE SUPREME

COURT
CONCEPT OF REMEDIAL LAW
Section 5 (5), Art. VIII of the Constitution provides
Remedial Law is that branch of law which that the Supreme Court shall have the power to:
prescribes the method of enforcing rights or a. promulgate rules concerning the
obtaining redress for their invasion. protection and enforcement of
constitutional rights, pleading, practice,
and procedure in all courts;
SUBSTANTIVE LAW AS DISTINGUISHED b. admission to the practice of law;
FROM REMEDIAL LAW c. the Integrated Bar;
d. and legal assistance to the
underprivileged
Substantive law creates, defines and regulates
rights and duties regarding life, liberty or
property which when violated gives rise to a
cause of action.

Remedial law prescribes the methods of

LIMITATIONS OF THE RULE-MAKING POWER
enforcing those rights and obligations created by
OF THE SUPREME COURT
substantive law by providing a procedural system
for obtaining redress for the invasion of rights and
1) The rules shall provide a simplified and
violations of duties and by prescribing rules as to
inexpensive procedure for the speedy
how suits are filed, tried and decided by the
disposition of cases
courts.
2) They shall be uniform for all courts of the
same grade
As applied to criminal law, substantive law is that
3) They shall not diminish, increase, or
which declares what acts are crimes and
modify substantive rights.
prescribes the punishment for committing them,
as distinguished from remedial law which
 14

4) The power to admit attorneys to the Bar is State enforces its sovereign rights and
not an arbitrary and despotic one but is powers.
the duty of the court to exercise and c. It is a board or tribunal which decides a
regulate it by a sound and judicial litigation or contest.
discretion.
COURT DISTINGUISHED FROM JUDGE
Rules of procedure of special courts and
quasi-judicial bodies shall remain effective a) A court is a tribunal officially assembled under
unless disapproved by the Supreme Court. authority of law; a judge is simply an officer of
such tribunal;
POWER OF THE SUPREME COURT TO b) A court is an organ of the government with a
AMEND AND SUSPEND PROCEDURAL RULES personality separate and distinct from the
person or judge who sits on it;
When compelling reasons so warrant or when the c) A court is a being in imagination comparable
purpose of justice requires it = discretionary upon to a corporation, whereas a judge is a physical
courts. person;
d) A court may be considered an office; a judge
Reasons that would warrant the suspension: is a public officer; and
1) the existence of special or compelling e) The circumstances of the court are not
circumstances; affected by the circumstances that would
2) merits of the case; affect the judge.
3) cause not entirely attributable to the
fault or negligence of the party favored CLASSIFICATION OF PHILIPPINE COURTS
by the suspension of rules
4) a lack of showing that the review Regular courts engaged in the administration of
sought is merely frivolous and dilatory; justice are organized into four (4) levels:
5) the other party will not be unjustly
prejudiced thereby. (a) First Level (MTCs, MeTCs, MCTCs) which
try and decide
Where substantial and important issues await (1) Criminal actions involving:
resolution. a. violations of city or municipal
ordinances committed within their
When transcendental matters of life, liberty or respective territorial jurisdiction; and
state security are involved. b. offenses punishable with imprisonment
not exceeding six (6) years irrespective
The constitutional power of the Supreme of the amount of fine and regardless of
Court to promulgate rules of practice and other imposable accessory or other
procedure necessarily carries with it the penalties, and
power to overturn judicial precedents on
points of remedial law through the (2) Civil actions including EJECTMENT CASES
amendment of the Rules of Court. (FEUD) and recovery of personal property with
a value of not more than P300,000 outside
NATURE OF PHILIPPINE COURTS MM or does not exceed P400,000 in MM;

(b) Second Level (RTCs, Family Courts)

Philippine courts are both courts of law and courts of general jurisdiction
equity. Hence, both legal and equitable among the civil actions assigned to
jurisdiction is dispensed with in the same tribunal. them by law are those in which the
subject of litigation is
WHAT IS A COURT a. actions incapable of pecuniary
a. It is an organ of government belonging to estimation
the judicial department the function of b. actions involving title to or
which is the application of the laws to the possession of real property
controversies brought before it as well as where the assessed value of the
the public administration of justice. property exceeds P20,000
b. It is a governmental body officially outside MM or exceeds
assembled under authority of law at the P50,000 in MM.
appropriate time and place for the c. where the demand exclusive of
administration of justice through which the interest, damages of whatever
 15

kind, attorneys fees, litigation has the power of review over the decisions or
expenses, and cost, or the orders of a lower court.
value of the personal property
or controversy exceeds MeTCs, MCTCs and MTCs are courts of original
P300,000 outside MM or jurisdiction without appellate jurisdiction. RTC is
exceeds P400,000 in MM. likewise a court of original jurisdiction with
respect to cases originally filed with it; and
exercise appellate jurisdiction appellate court with respect to cases decided by
Review cases appealed from courts MTCs within its territorial jurisdiction. (Sec. 22, BP
of the first level. 129).

(c) Third Level (Court of Appeals, CA is primarily a court of appellate jurisdiction

Sandiganbayan) with competence to review judgments of the RTCs
CA is an appellate court and specified quasi-judicial agencies (Sec. 9[3],
a. reviewing cases appealed to it from BP 129). It is also a court of original jurisdiction
the RTC on questions of fact or mixed with respect to cases filed before it involving
questions of fact and law issuance of writs of certiorari, mandamus, quo
b. decisions of the RTC in the exercise of warranto, habeas corpus, and prohibition. CA is a
original jurisdiction court of original and exclusive jurisdiction over
i. as a matter of right actions for annulment of judgments of RTCs (Sec.
ii. as a matter of discretion. 9 [1],[2], BP 129).

Occasionally, CA may act as a trial court, The SC is fundamentally a court of appellate

as in actions praying for the annulment of jurisdiction but it may also be a court of original
final and executory judgments of RTCs on jurisdiction over cases affecting ambassadors,
the ground of extrinsic fraud subsequently public ministers and consuls, and in cases
discovered, against which no other involving petitions for certiorari, prohibition and
remedies lies. mandamus (Sec. 5[1], Art. VIII, Constitution). The
Supreme Court en banc is not an appellate court
Sandiganbayan has jurisdiction to which decisions or resolutions of a division of
over all criminal and civil cases the Supreme Court may be appealed.
involving
graft and corrupt practices act COURTS OF GENERAL AND SPECIAL
such other offenses committed JURISDICTION
by public officers and
employees including those in Courts of general jurisdiction are those with
GOCCs in relation to their office. competence to decide on their own jurisdiction
It also has exclusive appellate and to take cognizance of all cases, civil and
jurisdiction over final judgments, criminal, of a particular nature. Courts of special
resolutions, or orders of RTCs whether (limited) jurisdiction are those which have only a
in the exercise of their own original or special jurisdiction for a particular purpose or are
appellate jurisdiction over criminal and clothed with special powers for the performance
civil cases committed by public officers of specified duties beyond which they have no
or employees including those in GOCCs authority of any kind.
in relation to their office.
A court may also be considered general if it has
(d) Fourth Level (Supreme Court) the competence to exercise jurisdiction over
cases not falling within the jurisdiction of any
court, tribunal, person or body exercising judicial
or quasi-judicial functions. It is in the context that
the RTC is considered a court of general
jurisdiction.
COURTS OF ORIGINAL AND APPELLATE
JURISDICTION CONSTITUTIONAL AND STATUTORY COURTS

A court is one with original jurisdiction when A constitutional court is one created by a direct
actions or proceedings are originally filed with it. Constitutional provision. Example of this court is
A court is one with appellate jurisdiction when it the SC, which owes its creation from the
 16

Constitution itself. Only the SC is a Constitutional Courts of equal and coordinate jurisdiction cannot
court. interfere with each others orders. Thus, the RTC
has no power to nullify or enjoin the enforcement
A statutory court is one created by law other than of a writ of possession issued by another RTC. The
the Constitution. All courts except the SC are principle also bars a court from reviewing or
statutory courts. SB was not directly created by interfering with the judgment of a co-equal court
the Constitution but by law pursuant to a over which it has no appellate jurisdiction or
constitutional mandate. power of review.

COURTS OF LAW This doctrine applies with equal force to

A court of law decides a case according to the administrative bodies. When the law provides for
existing laws. an appeal from the decision of an administrative
body to the SC or CA, it means that such body is
COURTS OF EQUITY co-equal with the RTC and logically beyond the
A court of equity adjudicates a controversy control of the latter.
according to the common precepts of what is
right and just without inquiring into the terms of
the statutes. JURISDICTION
PRINCIPLE OF JUDICIAL HIERARCHY

This is an ordained sequence of recourse to Jurisdiction the power and authority of the court
courts vested with concurrent jurisdiction, to hear, try and decide a case.
beginning from the lowest, on to the next highest
and ultimately to the highest. This hierarchy is JURISDICTION OVER THE PARTIES
determinative of the venue of appeals, and is
likewise determinative of the proper forum for a) The manner by which the court acquires
petitions for extraordinary writs. This is an jurisdiction over the parties depends on
established policy necessary to avoid inordinate whether the party is the plaintiff or the
demands upon the Courts time and attention defendant
which are better devoted to those matters within b) Jurisdiction over the plaintiff is acquired by his
its exclusive jurisdiction, and to preclude the filing of the complaint or petition. By doing so,
further clogging of the Courts docket (Sec. 9[1], he submits himself to the jurisdiction of the
BP 129; Sec. 5[1], Art. VIII, Constitution of the court.
Philippines). c) Jurisdiction over the person of the defendant
is obtained either by a valid service of
A higher court will not entertain direct resort to it summons upon him or by his voluntary
unless the redress cannot be obtained in the submission to the courts authority.
appropriate courts. The SC is a court of last d) The mode of acquisition of jurisdiction over
resort. It cannot and should not be burdened with the plaintiff and the defendant applies to both
the task of deciding cases in the first instances. ordinary and special civil actions like
Its jurisdiction to issue extraordinary writs should mandamus or unlawful detainer cases.
be exercised only where absolutely necessary or
where serious and important reasons exist. HOW JURISDICTION OVER PLAINTIFF IS
ACQUIRED
The doctrine of hierarchy of courts may be Acquired when the action is commenced
disregarded if warranted by the nature and by the filing of the complaint. This
importance of the issues raised in the interest of presupposes payment of the docket fees.
speedy justice and to avoid future litigations, or
in cases of national interest and of serious HOW JURISDICTION OVER DEFENDANT IS
implications. Under the principle of liberal ACQUIRED
interpretations, for example, it may take
cognizance of a petition for certiorari directly filed Jurisdiction over the person of the defendant is
before it. required only in an action in personam; it is not a
prerequisite in an action in rem and quasi in rem.
DOCTRINE OF NON-INTERFERENCE OR In an action in personam, jurisdiction over the
DOCTRINE OF JUDICIAL STABILITY person is necessary for the court to validly try
and decide the case, while in a proceeding in rem
or quasi in rem, jurisdiction over the person of the
defendant is not a prerequisite to confer
 17

jurisdiction on the court, provided the latter has

jurisdiction over the res. An ERROR OF JURISDICTION is one where the act
complained of was issued by the court without or
By voluntary appearance of the defendant, in excess of jurisdiction. It occurs when the court
without service of summons or despite a exercises a jurisdiction not conferred upon it by
defective service of summons. The defendants law, or when the court or tribunal although with
voluntary appearance in the action shall be jurisdiction, acts in excess of its jurisdiction or
equivalent to service of summons. with grave abuse of discretion amounting to lack
or jurisdiction.
Instances when appearance of defendant is not
tantamount to voluntary submission to the An ERROR OF JUDGMENT is one which the court
jurisdiction of the court: may commit in the exercise of its jurisdiction. As
1) when defendant files the necessary long as the court acts within its jurisdiction, any
pleading; alleged errors committed in the exercise of its
2) when defendant files motion for discretion will amount to nothing more than mere
reconsideration of the judgment by errors of judgment. Errors of judgment include
default; errors of procedure or mistakes in the courts
3) when defendant files a petition to set findings.
aside the judgment of default;
4) when the parties jointly submit a Errors of judgment are correctible by appeal;
compromise agreement for approval of the errors of jurisdiction are correctible only by the
court; extraordinary writ of certiorari. Any judgment
5) when defendant files an answer to the rendered without jurisdiction is a total nullity and
contempt charge; may be struck down at any time, even on appeal;
6) when defendant files a petition for the only exception is when the party raising the
certiorari without questioning the courts issue is barred by estoppel.
jurisdiction over his person.
HOW JURISDICTION IS CONFERRED AND
JURISDICTION OVER THE SUBJECT MATTER DETERMINED

It is the power to deal with the general subject Jurisdiction is a matter of substantive law
involved in the action, and means not simply because it is conferred by law. This jurisdiction
jurisdiction of the particular case then occupying which is a matter of substantive law should be
the attention of the court but jurisdiction of the construed to refer only to jurisdiction over the
class of cases to which the particular case subject matter. Jurisdiction over the parties, the
belongs. It is the power or authority to hear and issues and the res are matters of procedure. The
determine cases to which the proceeding is test of jurisdiction is whether the court has the
question belongs. power to enter into the inquiry and not whether
the decision is right or wrong.
When a complaint is filed in court, the basic
questions that ipso facto are to be immediately It is the duty of the court to consider the question
resolved by the court on its own: of jurisdiction before it looks at other matters
a) What is the subject matter of their involved in the case. If the court finds that it has
complaint filed before the court? jurisdiction, it is the duty of the court to exercise
b) Does the court have jurisdiction over the the jurisdiction conferred upon it by law and to
said subject matter of the complaint render a decision in a case properly submitted to
before it? Answering these questions it. It cannot decline to exercise its jurisdiction.
inevitably requires looking into the Failure to do so may be enforced by way of
applicable laws conferring jurisdiction. mandamus proceeding.

JURISDICTION VERSUS EXERCISE OF Note: Jurisdiction over the subject matter

JURISDICTION is conferred by substantive law which
may either be a Constitution or statute;
Jurisdiction is the power or authority of the court. while jurisdiction over the subject matter
The exercise of this power or authority is the is determined by the allegations of
exercise of jurisdiction. the complaint regardless of whether or
not the plaintiff is entitled to the claims
ERROR OF JURISDICTION VS. ERROR OF asserted therein.
JUDGMENT
 18

DOCTRINE OF PRIMARY JURISDICTION EFFECT OF ESTOPPEL ON OBJECTION TO

JURISDICTION
Courts will not resolve a controversy involving a
question which is within the jurisdiction of an The active participation of a party in a case is
administrative tribunal, especially where the tantamount to recognition of that courts
question demands the exercise of sound jurisdiction and will bar a party from impugning
administrative discretion requiring the special the courts jurisdiction. The general rule remains:
knowledge, experience and services of the a courts lack of jurisdiction may be raised at any
administrative tribunal to determine technical stage of the proceedings even on appeal. The
and intricate matters of fact. Sibonghanoy applies only to exceptional
circumstances.
The objective is to guide a court in determining
whether it should refrain from exercising its Doctrine of estoppels by laches (in relation to
jurisdiction until after an administrative agency objections to jurisdiction) = the SC barred a
has determined some question or some aspect of belated objection to jurisdiction that was raised
some question arising in the proceeding before only after an adverse decision was rendered by
the court. the court against the party raising the issue of
jurisdiction and after seeking affirmative relief
DOCTRINE OF ADHERENCE OF from the court and after participating in all stages
JURISDICTION / CONTINUITY OF of the proceedings.
JURISDICTION
The SC frowns upon the undesirable practice of
Once a court has acquired jurisdiction, that submitting ones case for decision, and then
jurisdiction continues until the court has done all accepting the judgment only if favorable, but
that it can do in the exercise of that jurisdiction. attacking it for lack of jurisdiction if it is not.
This principle also means that once jurisdiction
has attached, it cannot be ousted by subsequent JURISDICTION OVER THE ISSUES
happenings or events and retains that jurisdiction
until it finally disposes of the case. It is the power of the court to try and decide
issues raised in the pleadings of the parties.
Even the finality of the judgment does not totally
deprive the court of jurisdiction over the case. An issue is a disputed point or question to which
What the court loses is the power to amend, parties to an action have narrowed down their
modify or alter the judgment. Even after the several allegations and upon which they are
judgment has become final, the court retains desirous of obtaining a decision. Where there is
jurisdiction to enforce and execute it. no disputed point, there is no issue.

OBJECTION TO JURISDICTION OVER THE Generally, jurisdiction over the issues is conferred
SUBJECT MATTER and determined by the pleadings of the parties.
The pleadings present the issues to be tried and
When it appears from the pleadings or evidence determine whether or not the issues are of fact or
on record that the court has no jurisdiction over law.
the subject matter, the court shall dismiss the a) may also be determined and conferred by
same. (Sec. 1, Rule 9). The court may on its OWN stipulation of the parties as when in the
INITIATIVE object to an erroneous jurisdiction and pre-trial, the parties enter into stipulations
may ex mero motu take cognizance of lack of of facts and documents or enter into
jurisdiction at any point in the case and has a agreement simplifying the issues of the
clearly recognized right to determine its own case.
jurisdiction. b) may also be conferred by waiver or failure
to object to the presentation of evidence
Jurisdiction over the subject matter may be raised on a matter not raised in the pleadings.
at any stage of the proceedings, even for the first Here the parties try with their express or
time on appeal. When the court dismisses the implied consent or issues not raised by the
complaint for lack of jurisdiction over the subject pleadings. The issues tried shall be treated
matter, it is common reason that the court cannot in all respects as if they had been raised in
remand the case to another court with the proper the pleadings.
jurisdiction. Its only power is to dismiss and not to
make any other order. JURISDICTION OVER THE RES OR PROPERTY
IN LITIGATION
 19

b) Automatic review where death penalty

Jurisdiction over the res refers to the courts is imposed.
jurisdiction over the thing or the property which is c) By petition for review on Certiorari
the subject of the action. from the CA, Sandiganbayan and from
the RTC where only error or question of
Jurisdiction over the res may be acquired by the law is involved
court
1) by placing the property or thing under its Note: In PP vs. Mateo (2004), the SC held that
custody (custodia legis) (the seizure of the while the Fundamental Law requires a
thing under legal process whereby it is mandatory review by the SC of cases where
brought into actual custody of law). the penalty imposed is reclusion perpetua, life
Example: attachment of property. imprisonment or death, nowhere however,
2) through statutory authority conferring has it proscribed an intermediate review. If
upon it the power to deal with the only to ensure utmost circumspection before
property or thing within the courts the penalty of reclusion perpetua, life
territorial jurisdiction (institution of a legal imprisonment or death is imposed, the Court
proceeding wherein the power of the court now deems it wise and compelling to provide
over the thing is recognized and made in these cases a review by the CA before the
effective). Example: suits involving the case is elevated to the SC. A prior
status of the parties or suits involving the determination by the CA on, particularly, the
property in the Philippines of non-resident factual issues, would minimize the possibility
defendants. of an error of judgment. If the CA should
affirm the penalty of reclusion perpetua, life
imprisonment or death, it could then render
JURISDICTION OF THE SUPREME COURT
judgment imposing the corresponding penalty
as the circumstances so warrant, refrain from
CRIMINAL CASES entering judgment and elevate the entire
records of the case to the SC for final
EXCLUSIVE ORIGINAL JURISDICTION disposition.
Petitions for certiorari, prohibition and
mandamus against CA and Sandiganbayan CIVIL CASES

CONCURRENT JURISDICTION EXCLUSIVE ORIGINAL JURISDICTION in

a) With the CA and RTC: petitions for petitions for certiorari, prohibition and mandamus
certiorari, prohibition and mandamus against the CA, COMELEC, COA, CTA,
against the MTC Sandiganbayan
b) With the CA: petitions for certiorari,
prohibition and mandamus against the CONCURRENT JURISDICTION
RTC
c) with Sandiganbayan: petitions for 1) With Court of Appeals in petitions for
mandamus, prohibition, certiorari, certiorari, prohibition and mandamus against
habeas corpus, injunction and ancillary the RTC, CSC, Central Board of Assessment
writs in aid of its appellate jurisdiction Appeals, NLRC, Quasi-judicial agencies, and
and over petitions of similar nature, writ of kalikasan, all subject to the doctrine of
including quo warranto arising or that hierarchy of courts.
may arise in cases filed or which may 2) With the CA and RTC in petitions for certiorari,
be filed. prohibition and mandamus against lower
courts and bodies and in petitions for quo
APPELLATE JURISDICTION warranto, and writs of habeas corpus, all
a) from the RTC in all criminal cases subject to the doctrine of hierarchy of courts.
involving offenses for which the 3) With CA, RTC and Sandiganbayan for petitions
penalty is reclusion perpetua or life for writs of amparo and habeas data
imprisonment, and those involving 4) Concurrent original jurisdiction with the RTC in
other offenses which, although not so cases affecting ambassadors, public ministers
punished, arose out of the same and consuls.
occurrence or which may have been
committed by the accused on the APPELLATE JURISDICTION
same occasion; 1) by way of petition for review on
certiorari (appeal by certiorari under
 20

Rule 45) against CA, Sandiganbayan,

RTC on pure questions of law and CTA CONCURRENT ORIGINAL JURISDICTION
in its decisions rendered en banc. a) With the SC: petitions for certiorari,
2) in cases involving the constitutionality prohibition and mandamus against the RTC
or validity of a law or treaty, b) With the SC and RTC: petitions for certiorari,
international or executive agreement, prohibition and mandamus against the MTC
law, presidential decree, proclamation,
order, instruction, ordinance or APPELLATE JURISDICTION
regulation, legality of a tax, impost,
assessment, toll or penalty, jurisdiction Notice of Appeal:
of a lower court; and a) From the RTC in the exercise of its
3) all cases in which the jurisdiction of original jurisdiction, except those
any court is in issue; appealable to the Sandiganbayan
4) all cases in which an error or question b) From the RTC where penalty imposed is
of law is involved reclusion perpetua or life
imprisonment or where a lesser
Exceptions in which factual issues may be penalty is imposed but for offenses
resolved by the Supreme Court: committed on the same occasion or
a) When the findings are grounded entirely which arose out of the same
on speculation, surmises or conjectures; occurrence that gave rise to the more
b) When the inference made is manifestly serious offense for which the penalty
mistaken, absurd or impossible; of death, reclusion perpetua or life
c) When there is grave abuse of discretion; imprisonment is imposed (Sec. 3, Rule
d) When the judgment is based on 122 as amended by AM No. 00-5-03-
misapprehension of facts; SC).
e) When the findings of facts are conflicting;
f) When in making its findings the CA went Automatic Review (i.e. no notice of appeal
beyond the issues of the case, or its is necessary) from the RTC in cases wherein
findings are contrary to the admissions of the death penalty is imposed.
both the appellant and the appellee;
g) When the findings are contrary to the trial Petition for Review from the RTC in cases
court; appealed thereto from the lower courts and
h) When the findings are conclusions without not appealable to the Sandiganbayan.
citation of specific evidence on which they
are based; CIVIL CASES
i) When the facts set forth in the petition as
well as in the petitioners main and reply EXCLUSIVE ORIGINAL JURISDICTION
briefs are not disputed by the respondent; in actions for the annulment of the judgments
j) When the findings of fact are premised on of the RTC.
the supposed absence of evidence and
contradicted by the evidence on record; CONCURRENT ORIGINAL JURISDICTION
and 1) With SC to issue writs of certiorari,
k) When the Court of Appeals manifestly prohibition and mandamus against the
overlooked certain relevant facts not RTC, CSC, CBAA, other quasi-judicial
disputed by the parties, which, if properly agencies mentioned in Rule 43, and the
considered, could justify a different NLRC (however, this should be filed first
conclusion. with the CA as per St. Martin Funeral
Home case), and writ of kalikasan.
JURISDICTION OF THE COURT OF APPEALS 2) With the SC and RTC to issue writs of
(69 Justices) certiorari, prohibition and mandamus
(CPM) against lower courts and bodies and
writs of quo warranto, habeas corpus,
CRIMINAL CASES whether or not in aid of its appellate
jurisdiction, and writ of continuing
EXCLUSIVE ORIGINAL JURISDICTION mandamus on environmental cases.
a) Actions for annulment of judgment of the 3) With SC, RTC and Sandiganbayan for
RTCs petitions for writs of amparo and habeas
b) Crimes of Terrorism under Human Security data where the action involves public
Act of 2007 data or government office
 21

5) Decisions of the Central Board of Assessment

EXCLUSIVE APPELLATE JURISDICTION Appeals in the exercise of its appellate
1) by way of ordinary appeal from the RTC jurisdiction over cases involving the
and the Family Courts. assessment and taxation of real property
2) by way of petition for review from the RTC originally decided by the provincial or city
rendered by the RTC in the exercise of its board of assessment appeals;
appellate jurisdiction. 6) Decision of the secretary of Finance on
3) by way of petition for review from the customs cases elevated to him automatically
decisions, resolutions, orders or awards of for review from decisions of the Commissioner
the CSC, CBAA and other bodies of Customs which are adverse to the
mentioned in Rule 43 and of the Office of government under Sec. 2315 of the Tariff and
the Ombudsman in administrative Customs Code;
disciplinary cases. 7) Decisions of Secretary of Trade and Industry in
4) over decisions of MTCs in cadastral or land the case of non-agricultural product,
registration cases pursuant to its commodity or article, and the Secretary of
delegated jurisdiction; this is because Agriculture in the case of agricultural product,
decisions of MTCs in these cases are commodity or article, involving dumping
appealable in the same manner as duties and counterveiling duties under Secs.
decisions of RTCs. 301 and 302, respectively, of the Tariff and
Customs Code, and safeguard measures
Note: There is no action to annul the under RA 8800, where either party may
decision of the CA. appeal the decision to impose or not to
impose said duties.
JURISDICTION OF THE COURT OF TAX
EXCLUSIVE ORIGINAL JURISDICTION
APPEALS (UNDER RA 9282 AND RULE 5, AM
05
1) Over all criminal cases arising from violation
11 07CTA)
of the NIRC and the TCC and other laws, part
of laws, or special laws administered by the
EXCLUSIVE ORIGINAL OR APPELLATE BIR or the BOC where the principal amount of
JURISDICTION TO REVIEW BY APPEAL taxes and fees, exclusive of charges and
penalties claimed is less than P1M or where
1) Decisions of CIR in cases involving disputed there is no specified amount claimed (the
assessments, refunds of internal revenue offenses or penalties shall be tried by the
taxes, fees or other charges, penalties in regular courts and the jurisdiction of the CTA
relation thereto, or other matters arising shall be appellate);
under the NIRC or other laws administered by 2) In tax collection cases involving final and
BIR; executory assessments for taxes, fees,
2) Inaction by CIR in cases involving disputed charges and penalties where the principal
assessments, refunds of IR taxes, fees or amount of taxes and fees, exclusive of
other charges, penalties in relation thereto, or charges and penalties claimed is less than
other matters arising under the NIRC or other P1M tried by the proper MTC, MeTC and RTC.
laws administered by BIR, where the NIRC or
other applicable law provides a specific period EXCLUSIVE APPELLATE JURISDICTION
of action, in which case the inaction shall be
deemed an implied denial; 1) In criminal offenses
3) Decisions, orders or resolutions of the RTCs in a) over appeals from the judgment,
local taxes originally decided or resolved by resolutions or orders of the RTC in tax
them in the exercise of their original or cases originally decided by them, in their
appellate jurisdiction; respective territorial jurisdiction, and
4) Decisions of the Commissioner of Customs b) over petitions for review of the judgments,
a. in cases involving liability for customs resolutions or orders of the RTC in the
duties, fees or other charges, seizure, exercise of their appellate jurisdiction over
detention or release of property tax cases originally decided by the MeTCs,
affected, fines, forfeitures or other MTCs, and MCTCs in their respective
penalties in relation thereto, or jurisdiction.
b. other matters arising under the
Customs law or other laws, part of laws 2) In tax collection cases
or special laws administered by BOC;
 22

a) over appeals from the judgments, whether or not the cases were decided b them in
resolutions or orders of the RTC in tax the exercise of their original or appellate
collection cases originally decided by jurisdictions.
them in their respective territorial
jurisdiction; and CONCURRENT ORIGINAL JURISDICTION WITH
b) over petitions for review of the judgments, SC, CA AND RTC for petitions for writs of habeas
resolutions or orders of the RTC in the data and amparo
exercise of their appellate jurisdiction over
tax collection cases originally decided by The requisites that the offender the offender
the MeTCs, MTCs and MCTCs in their occupies salary Grade 27 and the offense
respective jurisdiction. must be intimately connected with the official
function must concur for the SB to have
jurisdiction Justice Magdangal De Leon
JURISDICTION OF THE SANDIGANBAYAN

JURISDICTION OF THE REGIONAL TRIAL

ORIGINAL JURISDICTION in all cases involving
COURTS
1) Violations of RA 3019 (Anti-Graft and Corrupt
Practices Act) CRIMINAL CASES
2) Violations of RA 1379 (Anti-Ill-Gotten Wealth
Act) EXCLUSIVE ORIGINAL JURISDICTION
3) Sequestration cases (E.O. Nos. 1,2,14,14-A)
4) Bribery (Chapter II, Sec. 2, Title VII, Book II, 1) Offenses punishable with imprisonment which
RPC) where one or more of the principal exceeds 6 years imprisonment
accused are occupying the following positions 2) Offenses not within the exclusive jurisdiction
in the government, whether in permanent, of any court, tribunal or body, except those
acting or interim capacity at the time of the falling under the exclusive jurisdiction of the
commission of the offense: Sandiganbayan
a) Officials of the executive branch Note: In cases where the only penalty is
occupying the positions of regional fine, the amount thereof shall determine
director and higher, otherwise classified as jurisdiction. If the amount exceeds P4,000,
Grade 27 and higher, of the Compensation the RTC has jurisdiction.
and Position Classification Act of 1989 (RA 3) Family Court Criminal Cases
6758) a) One or more of the accused is/are
b) Members of Congress and officials thereof below 18 years old but not less than
classified as G-27 and up under RA 6758 9 years old;
c) Members of the Judiciary without prejudice b) Where one of the victims is a minor at
to the provisions of the Constitution the time of the commission of the
d) Chairmen and Members of the offense;
Constitutional Commissions without c) Cases against minors cognizable under
prejudice to the provisions of the the Dangerous Drugs Act;
Constitution d) Violations of RA 7610, otherwise known
e) All other national and local officials as the Special Protection of Children
classified as Grade 27 and higher under Against Child Abuse, Exploitation and
RA 6758 Discrimination Act as amended by RA
f) Other offenses or felonies committed by 7658; and
the public officials and employees e) Cases of domestic violation against
mentioned in Sec. 4(a) of RA 7975 as women and their children.
amended by RA 8249 in relation to their
office APPELLATE JURISDICTION
g) Civil and criminal cases filed pursuant to All cases decided by the MTC in their
and in connection with EO Nos. 1, 2, 14-A respective territorial jurisdiction.
(Sec. 4, RA 8249)
CIVIL CASES
Note: Without the office, the crime cannot be
committed.
EXCLUSIVE ORIGINAL JURISDICTION
APPELLATE JURISDICTION - from the RTC in
1) The action is incapable of pecuniary
cases under PD 1606, as amended by PD 1861,
estimation (such as rescission of contract,
 23

action to revive judgment, declaratory relief

(1st part), support, expropriation) 6) To hear and decide intra-corporate
controversies Sec. 52, Securities and
2) Title to, possession of, or interest in, Regulations Code):
real property with assessed value exceeding
P20,000 outside Metro Manila, or exceeds a) Cases involving devises or schemes
P50,000 in Metro Manila employed by or any acts, of the board of
directors, business associates, its officers
3) If the amount involved exceeds P300,000 or partnership, amounting to fraud and
outside MM or exceeds P400,000 in MM in misrepresentation which may be
the following cases: detrimental to the interest of the public
a) Admiralty and maritime cases and/or of the stockholders, partners,
b) Matters of Probate (testate and members of associations or organizations
intestate) registered with the SEC
c) Other actions involving personal b) Controversies arising out of intra-
property corporate or partnership relations,
d) Demand for money between and among stockholders,
members or associates; between any or all
4) Cases not falling within the jurisdiction of any of them and the corporation, partnership
court, tribunal, person or body exercising or association of which they are
judicial or quasi-judicial functions (general stockholders, members or associates,
jurisdiction of RTC) respectively; and between such
corporation , partnership or association
5) All actions involving the contract of and the state insofar as it concerns their
marriage and family relations individual franchise or right to exist as
such entity
JURISDICTION OF FAMILY COURTS (RA c) Controversies in the election or
8369) appointments of directors, trustees,
a) Petitions for guardianship, custody of officers or managers of such corporations,
children and habeas corpus involving partnerships or associations
children d) Petitions of corporations, partnerships or
b) Petitions for adoption of children and the associations to be declared in the state of
revocation thereof suspension of payments in cases where
c) Complaints for annulment of marriage, the corporation, partnership of association
declaration of nullity of marriage and possesses sufficient property to cover all
those relating to status and property its debts but foresees the impossibility of
relations of husband and wife or those meeting them when they respectively fall
living together under different status and due or in cases where the corporation,
agreements, and petitions for dissolution partnership of association has no sufficient
of conjugal partnership of gains assets to cover its liabilities, but is under
d) Petitions for support and/or the management of a Rehabilitation
acknowledgment Receiver or Management Committee.
e) Summary judicial proceedings brought
under the provisions of EO 209 (Family
Code) CONCURRENT JURISDICTION
f) Petitions for declaration of status of 1) with the Supreme Court in actions
children as abandoned, dependent or affecting ambassadors, other public
neglected children, petitions for voluntary ministers and consuls
or involuntary commitment of children, 2) with the SC and CA in petitions for
the suspension, termination or restoration certiorari, prohibition and mandamus
of parental authority and other cases against lower courts and bodies in
cognizable under PD 603, EO 56 (1986) petitions for quo warranto, habeas corpus,
and other related laws and writ of continuing mandamus on
g) Petitions for the constitution of the family environmental cases
home 3) with the SC, CA and Sandigabayan in
In areas where there are no Family petitions for writs of habeas data and
Courts, the above-enumerated amparo
cases shall be adjudicated by the 4) With Insurance Commissioner claims not
RTC (RA 8369) exceeding P100,000
 24

their office, including those employed in

APPELLATE JURISDICTION over cases decided GOCCs, and by private individuals charged as
by lower courts in their respective territorial co-principals, accomplices or accessories,
jurisdictions except decisions of lower courts in punishable with imprisonment of not more
the exercise of delegated jurisdiction. than 6 years OR where none of the accused
holds a position of salary Grade 27 and
SPECIAL JURISDICTION SC may designate higher.
certain branches of RTC to try exclusively criminal
cases, juvenile and domestic relations cases, CIVIL ACTIONS
agrarian cases, urban land reform cases not
falling within the jurisdiction of any quasi-judicial EXCLUSIVE ORIGINAL JURISDICTION
body and other special cases in the interest of 1) If the amount involved does not exceed
justice. P300,000 outside MM or does not exceed
P400,000 in MM in the following cases:
JURISDICTION OF METROPOLITAN TRIAL a) Actions involving personal property
COURTS/MUNICIPAL TRIAL COURTS b) Probate Proceeding (testate and
intestate) based on gross value of the
estate
CRIMINAL CASES c) Admiralty and maritime cases
d) Demand for money
EXCLUSIVE ORIGINAL JURISDICTION Note: Do not include Interest,
Damages of whatever kind, Attorneys
1) Cases covered by Summary proceedings fees, Litigation Expenses, and Costs
a) Violations of city or municipal ordinances (IDALEC). However, in cases where the
including traffic laws claim or damages is the main cause of
b) Violation of rental law action, or one of the causes of action,
c) Violation of traffic laws, rules and the amount of such claim shall be
regulations considered in determining the
d) Violation of BP 22 (Bouncing Check Law) jurisdiction of the court.
effective April 15, 2003
e) All other criminal cases where the penalty 2) Actions involving title to, or possession of, real
is imprisonment not exceeding 6 months property, or any interest therein where the
and/or P100,000 fine irrespective of other assessed value of the property or interest
penalties arising therefrom therein does not exceed P20,000 outside MM
or does not exceed P50,000 in MM
2) offenses punishable with imprisonment not 3) Inclusion and exclusion of voters
exceeding six (6) years irrespective of the 4) Those governed by the Rules on Summary
amount of fine, and regardless of other Procedure
imposable accessory or other penalties, a) Forcible entry and unlawful detainer
including the civil liability arising from such (FEUD)
offenses or predicated thereon, irrespective of With jurisdiction to resolve issue of
the kind, nature, value or amount thereof; ownership to determine ONLY issue
provided however, that in offenses involving of possession (provisional only)
damage to property through criminal Irrespective of the amount of
negligence, they shall have exclusive original damages or unpaid rentals sought
jurisdiction thereof (Sec. 2, RA 7691). to be recover
Where attorneys fees are awarded,
3) Offenses involving DAMAGE TO PROPERTY the same shall not exceed P20,000
through CRIMINAL NEGLIGENCE where the b) Other civil cases, except probate
imposable fine is not exceeding P10,000 proceeding, where the total amount of the
Note: In cases where the only penalty plaintiffs claim does not exceed P200,000
is fine, the amount thereof shall in MM, exclusive of interests and costs.
determine jurisdiction. If the amount
does not exceed P4,000, the MTC has SPECIAL JURISDICTION over petition for writ of
jurisdiction. habeas corpus OR application for bail in criminal
cases in the absence of all RTC judges in the
4) All offenses (except violations of RA 3019, RA province or city
1379 and Arts. 210 to 212, RPC) committed DELEGATED JURISDICTION to hear and decide
by public officers and employees in relation to cadastral and land registration cases where there
 25

is no controversy over the land or in case of 2) Disputes relating to:

contested lands, the value does not exceed P100, a. Marriage
000 = appealable to the CA b. Divorce
c. Betrothal or breach of contract to
1st level courts: marry
a. Metropolitan Trial Court Metro Manila; d. Customary dowry (mahr)
b. Municipal Trial Courts in Cities situated in e. Disposition and distribution of
cities property upon divorce
c. Municipal Circuit Trial Court composed of f. Maintenance and support and
multi-sala consolatory gifts (muta)
d. Municipal Trial Courts in one municipality g. Restitution of marital rights
3) Disputes relative to communal properties

SHARIAH COURTS JURISDICTION OVER SMALL CLAIMS

EXCLUSIVE JURISDICTION 1) MTCs, MeTCs and MCTCs shall have

1) All cases involving custody, guardianship, jurisdiction over actions for payment of
legitimacy, paternity and filiation arising money where the value of the claim does not
under the Code of Muslim Personal Laws; exceed P100,000 exclusive of interest and
2) All cases involving disposition, distribution costs (Sec. 2, AM 08-8-7-SC, Oct. 27, 2009).
and settlement of estate of deceased 2) Actions covered are
Muslims, probate of wills, issuance of a) purely civil in nature where the claim or
letters of administration of appointment relief prayed for by the plaintiff is solely
administrators or executors regardless of for payment or reimbursement of sum of
the nature or aggregate value of the money, and
property; b) the civil aspect of criminal actions, either
3) Petitions for the declaration of absence filed before the institution of the criminal
and death for the cancellation and action, or reserved upon the filing of the
correction of entries in the Muslim criminal action in court, pursuant to Rule
Registries; 111 (Sec. 4, AM 08-8-7-SC).
4) All actions arising from the customary
contracts in which the parties are Muslims, These claims may be:
if they have not specified which law shall a) For money owed under the contracts of
govern their relations; and lease, loan, services, sale, or mortgage;
5) All petitions for mandamus, prohibition, b) For damages arising from fault or
injunction, certiorari, habeas corpus and negligence, quasi-contract, or contract;
all other auxiliary writs and processes in and
aid of its appellate jurisdiction c) The enforcement of a barangay amicable
settlement or an arbitration award
CONCURRENT JURISDICTION involving a money claim pursuant to Sec.
1) Petitions of Muslim for the constitution of 417 of RA 7160 (LGC).
the family home, change of name and
commitment of an insane person to an
CASES COVERED BY RULES ON SUMMARY
asylum
PROCEDURE (SEC. 1 RSP)
2) All other personal and legal actions not
mentioned in par 1 (d) wherein the parties
involved are Muslims except those for CIVIL CASES
forcible entry and unlawful detainer, which
shall fall under the exclusive jurisdiction of 1) All cases of forcible entry and unlawful
the MTC. detainer (FEUD), irrespective of the amount of
3) All special civil actions for interpleader or damages or unpaid rentals sought to be
declaratory relief wherein the parties are recovered. Where attorneys fees are
Muslims or the property involved belongs awarded, the same shall not exceed P20,000;
exclusively to Muslims 2) All other cases, except probate proceedings
where the total amount of the plaintiffs claim
Cases that can be files: does not exceed P100,000 (outside MM) or
1) Offenses defined and punished under PD P200,000 (in MM), exclusive of interest and
1083 costs.
 26

justice or upon the recommendation of the

Secretary of Justice
CRIMINAL CASES 8) Any complaint by or against corporations,
partnerships, or juridical entities. The
1) Violations of traffic law, rules and regulations; reason is that only individuals shall be
2) Violation of the rental law; parties to barangay conciliation
3) All other criminal cases where the penalty proceedings either as complainants or
prescribed is imprisonment not exceeding six respondents
(6) months, or fine not exceeding P1,000, or 9) Disputes where urgent legal action is
both, irrespective of other imposable necessary to prevent injustice from being
penalties, accessory or otherwise, or of the committed or further continued,
civil liability arising therefrom, provided, that specifically:
in offenses involving damage to property a) A criminal case where the accused
through criminal negligence, RSP shall govern is under police custody or
where the imposable fine does not exceed detention
P10,000. b) A petition for habeas corpus by a
person illegally detained or
RSP does not apply to a civil case where deprived of his liberty or one acting
the plaintiffs cause of action is pleaded in in his behalf
the same complaint with another cause of c) Actions coupled with provisional
action subject to the ordinary procedure; remedies, such as preliminary
nor to a criminal case where the offense injunction, attachment, replevin
charged is necessarily related to another and support pendente lite
criminal case subject to the ordinary d) Where the action may be barred by
procedure. statute of limitation
10) Labor disputes or controversies arising
from employer-employee relationship
CASES COVERED BY THE RULES ON 11) Where the dispute arises from the CARL
BARANGAY CONCILIATION 12) Actions to annul judgment upon a
compromise which can be directly filed in
The Lupon of each barangay shall have the court.
authority to bring together the parties actually
residing in the same municipality or city for It is a condition precedent under Rule 16;
amicable settlement of all disputes except: can be dismissed but without prejudice
1) Where one party is the government or any
subdivision or instrumentality thereof TOTALITY RULE
2) Where one party is a public officer or
employee, and the dispute relates to the Where there are several claims or causes of
performance of his official functions actions between the same or different parties,
3) Offenses punishable by imprisonment embodied in the same complaint, the amount of
exceeding one (1) year or a fine exceeding the demand shall be the totality of the
P5,000 claims in all the claims of action, irrespective
4) Offenses where there is no private of whether the causes of action arose out of the
offended party same or different transactions (Sec. 33[1], BP
5) Where the dispute involves real properties 129).
located in different cities or municipalities
unless the parties thereto agree to submit
their differences to amicable settlement
by an appropriate lupon
6) Disputes involving parties who actually CIVIL PROCEDURE
reside in barangays of different cities or
municipalities, except where such
barangay units adjoin each other and the
parties thereto agree to submit their ACTIONS
differences to amicable settlement by an
appropriate lupon Action (synonymous with suit) is the legal and
7) Such other classes of disputes which the formal demand of ones right from another
President may determine in the interest of person made and insisted upon in a court of
justice. The kinds of actions are ordinary and
 27

special, civil and criminal, ex contractu and ex The distinction between real action and personal
delicto, penal and remedial, real, personal, and action is important for the purpose of determining
mixed action, action in personam, in rem, and the venue of the action. A real action is LOCAL,
quasi in rem. which means that its venue depends upon the
location of the property involved in the litigation.
ORDINARY CIVIL ACTIONS, SPECIAL CIVIL A personal action is TRANSITORY, which means
ACTIONS, CRIMINAL ACTIONS that its venue depends upon the residence of the
plaintiff or the defendant at the option of the
Ordinary civil action is one by which one party plaintiff.
sues another, based on a cause of action, to
enforce or protect a right, or to prevent or redress LOCAL AND TRANSITORY ACTIONS
a wrong, whereby the defendant has performed
an act or omitted to do an act in violation of the A local action is one founded on privity of
rights of the plaintiff. (Sec. 3a) The purpose is estates only and there is no privity of contracts. A
primarily compensatory. real action is a local action; its venue depends
upon the location of the property involved in
Special civil action actions which while litigation. Actions affecting title to or possession
governed by the rules for ordinary civil actions, of real property, or interest therein, shall be
are subject to special rules provided for Special commenced and tried in the proper court which
Civil Actions has jurisdiction over the area wherein the real
property involved, or a portion thereof is
Criminal action is one by which the State situated (Sec. 1, Rule 4).
prosecutes a person for an act or omission
punishable by law (Sec. 3[b], Rule 1). The Transitory action is one founded on privity of
purpose is primarily punishment. contracts between the parties. A personal action
is transitory, its venue depends upon the
CIVIL ACTIONS VERSUS SPECIAL residence of the plaintiff or the defendant at the
PROCEEDINGS option of the plaintiff. A personal action may be
commenced and tried where the plaintiff or any
The purpose of an action is either to protect a of the principal plaintiffs resides or where the
right or prevent or redress a wrong. The purpose defendant or any of the principal defendants
of special proceeding is to establish a status, a resides, or in the case of non-resident defendant,
right or a particular fact. where he may be found, at the election of the
plaintiff. (Sec. 2, Rule 4).
PERSONAL ACTIONS AND REAL ACTIONS
Actions in rem, in personam and quasi in
An action is REAL when it affects title to or rem (this is important in service of summons)
possession of real property, or an interest therein. An action in rem, one instituted and
All other actions are personal actions. enforced against the whole world.
An action in personam is one filed against a
An action is real when it is founded upon the definite defendant. It is intended to subject
privity of real estate, which means that the realty the interest of defendant on a property to an
or an interest therein is the subject matter of the obligation or lien. Jurisdiction over the person
action. The issues involved in real actions are title (defendant) is required. It is a proceeding to
to, ownership, possession, partition, foreclosure enforce personal rights and obligations
of mortgage or condemnation of real property. brought against the person, and is based on
the jurisdiction of the person, although it may
Not every action involving real property is a real involve his right to, or the exercise of
action because the realty may only be incidental ownership of, specific property, or seek to
to the subject matter of the suit. Example is an compel him to control or dispose of it in
action for damages to real property, because accordance with the mandate of the court.
although it involves real property, it does not The purpose is to impose through the
involve any of the issues mentioned. judgment of a court, some responsibility or
liability directly upon the person of the
Real actions are based on the privity of real defendant. No other than the defendant is
estates; while personal actions are based on liable, not the whole world, as in an action for
privity of contracts or for the recovery of sums of a sum of money or an action for damages.
money. An action quasi in rem, also brought against
the whole world, is one brought against
 28

persons seeking to subject the property of the court is recognized and made
such persons to the discharge of the claims effective.
assailed. An individual is named as defendant
and the purpose of the proceeding is to Nonetheless, summons must be served
subject his interests therein to the obligation upon the defendant not for the purpose of
or loan burdening the property. It deals with vesting the court with jurisdiction but
status, ownership or liability or a particular merely for satisfying the due process
property but which are intended to operate on requirements.
these questions only as between the
particular parties to the proceedings and not
CAUSE OF ACTION (Rule 2)
to ascertain or cut off the rights or interests of
all possible claimants. Examples of actions
quasi in rem are action for partition, action for MEANING OF CAUSE OF ACTION
accounting, attachment, foreclosure of
mortgage. A cause of action is the act or omission by which
An action in personam is not necessarily a a party (defendant) violates the rights of another
personal action. Nor is a real action (plaintiff).
necessarily an action in rem. An in personam
or an in rem action is a classification of It is the delict or wrong by which the defendant
actions according to foundation. For instance, violates the right or rights of the plaintiff.
an action to recover, title to or possession of
real property is a real action, but it is an The elements are:
action in personam, not brought against the 1) A right in favor of the plaintiff by whatever
whole world but against the person upon means and under whatever law it arises or
whom the claim is made. is created;
2) An obligation on the part of the named
SC sums up the basic rules in Biaco vs. Philippine defendant to respect or not to violate such
Countryside Rural Bank (2007): right; and
1) The question of whether the trial court has 3) Act or omission on the part of such
jurisdiction depends on the nature of the defendant in violation of the right of the
action whether the action is in plaintiff or constituting a breach of the
personam, in rem, or quasi in rem. The obligation of the defendant to the plaintiff
rules on service of summons under Rule for which the latter may maintain an
14 likewise apply according to the nature action for recovery of damages or other
of the action. appropriate relief.
2) An action in personam is an action against
a person on the basis of his personal RIGHT OF ACTION VERSUS CAUSE OF
liability. And action in rem is an action ACTION
against the thing itself instead of against
the person. An action quasi in rem is one a) A cause of action refers to the delict or wrong
wherein an individual is named as committed by the defendants, whereas right
defendant and the purpose of the of action refers to the right of the plaintiff to
proceeding is to subject his interest institute the action;
therein to the obligation or lien burdening b) A cause of action is determined by the
the property. pleadings; whereas a right of action is
3) Jurisdiction over the person of the determined by the substantive law;
defendant is necessary for the court to a) A right of action may be taken away by the
validly try and decide a case against said running of the statute of limitations, by
defendant where the action is one in estoppels or other circumstances; which do
personam but not where the action is in not at all affect the cause of action;
rem or quasi in rem. Jurisdiction over the b) There is no right of action where there is no
res is acquired either cause of action!
a. by the seizure of the property
under legal process, whereby it is FAILURE TO STATE CAUSE OF ACTION
brought into actual custody of the
law; or The mere existence of a cause of action is not
b. as a result of the institution of legal sufficient for a complaint to prosper. Even if in
proceedings, in which the power of reality the plaintiff has a cause of action against
the defendant, the complaint may be dismissed if
 29

the complaint or the pleading asserting the claim two or more parts, brings a suit for one of such
states no cause of action. This means that the parts with the intent to reserve the rest for
cause of action must unmistakably be stated or another separate. This practice is NOT ALLOWED
alleged in the complaint or that all the elements by the Rules because it breeds multiplicity of
of the cause of action required by substantive law suits, clogs the court dockets, leads to vexatious
must clearly appear from the mere reading of the litigation, operates as an instrument of
complaint. harassment, and generates unnecessary
expenses to the parties.
To avoid an early dismissal of the complaint, the
simple dictum to be followed is: If you have a The filing of the first may be pleaded in
cause of action, then by all means, state it! abatement of the other or others and a judgment
Where there is a defect or an insufficiency in the upon the merits in any one is available as a bar
statement of the cause of action, a complaint to, or a ground for dismissal of, the others
may be dismissed not because of an absence or a
lack of cause of action by because the complaint The remedy of the defendant is to file a motion
states no cause of action. The dismissal will to dismiss. Hence, if the first action is pending
therefore, be anchored on a failure to state a when the second action is filed, the latter may be
cause of action. dismissed based on litis pendencia, there is
another action pending between the same parties
It doesnt mean that the plaintiff has no cause of for the same cause. If a final judgment had been
action. It only means that the plaintiffs rendered in the first action when the second
allegations are insufficient for the court to know action is filed, the latter may be dismissed based
that the rights of the plaintiff were violated by the on res judicata, that the cause of action is barred
defendant. Thus, even if indeed the plaintiff by prior judgment. As to which action should be
suffered injury, if the same is not set forth in the dismissed would depend upon judicial discretion
complaint, the pleading will state no cause of and the prevailing circumstances of the case.
action even if in reality the plaintiff has a cause of
action against the defendant. JOINDER AND MISJOINDER OF CAUSES OF
ACTIONS (SECS. 5 AND 6, ULE 2)
TEST OF THE SUFFICIENCY OF A CAUSE OF
ACTION Joinder of causes of action is the assertion of
as many causes of action as a party may have
The test is whether or not admitting the facts against another in one pleading alone (Sec. 5,
alleged, the court could render a valid verdict in Rule 2). It is the process of uniting two or more
accordance with the prayer of the complaint. demands or rights of action in one action, subject
to the following conditions:
To be taken into account are only the material a) The party joining the causes of action shall
allegations in the complaint; extraneous facts and comply with the rules on joinder of parties
circumstances or other matter aliunde are not (same transaction ad common question of
considered but the court may consider in addition law an fact);
to the complaint the appended annexes or b) The joinder shall not include special civil
documents, other pleadings of the plaintiff, or actions governed by special rules;
admissions in the records. c) Where the cause of action are between
the same parties but pertain to different
It is error for the court to take cognizance of venues or jurisdictions, the joinder may be
external facts or to hold preliminary hearings to allowed in the RTC provided one of the
determine its existence. causes of action falls within the
jurisdiction of said court and the venue
SPLITTING A SINGLE CAUSE OF ACTION lies therein; and
AND ITS EFFECTS d) Where the claims in all the causes of
action are principally for recovery of
It is the act of instituting two or more suits for the money, the aggregate amount claimed
same cause of action (Sec. 4, Rule 2). It is the shall be the test of jurisdiction (totality
practice of dividing one cause of action into rule).
different parts and making each part the subject Note: Restrictions on joinder of
of a separate complaint. causes of action are: jurisdiction,
venue, and joinder of parties. The
In splitting a cause of action, the pleader divides joinder shall not include special
a single cause of action, claim or demand into
 30

civil actions or actions governed by Without the presence of this party, the
special rules. judgment of a court cannot attain real
judgement.
When there is a misjoinder of causes of The presence of indispensable parties is a
action, the erroneously joined cause of action condition for the exercise of juridical power
can be severed or separated from the other and when an indispensable party is not before
cause of action upon motion by a party or upon the court, the action should be dismissed.
the courts own initiative. Misjoinder of causes of The absence of indispensable party renders
action is not a ground for the dismissal of the all subsequent actions of the court null and
case. void for want of authority to act, not only to
the absent parties but even as to those
present.
PARTIES IN CIVIL ACTION (Rule 3)
A person is not an IP if his interest in the
controversy or subject matter is separable
REAL PARTY-IN-INTEREST (e.g. plaintiff and from the interest of the other parties, so that
defendant) is the party who stands to be it will not necessarily be directly or injuriously
benefited or injured by the judgment in the suit, affected by a decree which does complete
or the party entitled to the avails of the suit (Sec. justice between them. Also, a person is not an
2, Rule 3). IP if his presence would merely permit
The interest must be real, which is a present complete relief between him and those
substantial interest as distinguished from a already parties to the action, or if he has no
mere expectancy or a future, contingent interest in the subject matter of the action.
subordinate or consequential. Although normally a joinder of action is
It is an interest that is material and direct, as permissive (Sec. 6, Rule 3), the joinder of a
distinguished from a mere incidental interest party becomes compulsory when the one
in. involved is an indispensable party. Clearly,
While ordinarily one who is not a privy to a the rule directs a compulsory joinder of IP
contract may not bring an action to enforce it, (Sec. 7, Rule 3).
there are recognized exceptions this rule:
a) Contracts containing stipulations pour NECESSARY PARTY is one who is not
atrui or stipulations expressly indispensable but ought to be joined as a party if
conferring benefits to a non-party may complete relief is to be accorded as to those
sue under the contract provided such already parties, of for a complete determination
benefits have been accepted by the or settlement of the claim subject of the action.
beneficiary prior to its revocation by But a necessary party ought to be joined as a
the contracting parties (Art. 1311, Civil party if complete relief is to be accorded as to
Code). those already parties (Sec. 8, Rule 3).
b) Those who are not principally or The non-inclusion of a necessary party does
subsidiarily obligated in the contract, not prevent the court from proceeding in the
in which they had no intervention, may action, and the judgment rendered therein
show their detriment that could result shall be without prejudice to the rights of such
from it. For instance, Art. 1313, CC, necessary party (Sec. 9, Rule 3).
provides that creditors are protected
in cases of contracts intended to INDIGENT PARTY is one who is allowed by the
defrauded them. Further, Art. 1318, court to litigate his claim, action or defense upon
CC, provides that contracts entered ex parte application and hearing, when the court
into in fraud of creditors may be is satisfied that such party has no money or
rescinded when the creditors cannot in property sufficient and available for food, shelter,
any manner collect the claims due basic necessities for himself and his family (Sec.
them. Thus, a creditor who is not a 21, Rule 3).
party to a contract can sue to rescind If one is authorized to litigate as an indigent,
the contract to redress the fraud such authority shall include an exemption
committed upon him. from the payment of docket fee, and of
transcripts of stenographic notes, which the
INDISPENSABLE PARTY is a real party-in- court may order to e furnished by him.
interest without whom no final determination can However, the amount of the docket and other
be had of an action (Sec. 7, Rule 3). fees, which the indigent was exempt from
paying, shall be lien on the judgment
rendered in the case favorable to the indigent.
 31

A lien on the judgment shall or arise if the Joinder of parties is compulsory if there are
court provides otherwise. parties without whom no final determination can
be had of an action (Sec. 7, Rule 3).
REPRESENTATIVES AS PARTIES pertains to the
parties allowed by the court as substitute parties Joinder of parties is permissive when there is
to an action whereby the original parties become a right or relief in favor of or against the parties
incapacitated of incompetent (Sec. 18, Rule 3). joined in respect to or arising out of the same
The substitution of a party depends on the transaction or series of transactions, and there is
nature of the action. If the action is personal, a question of law or fact common to the parties
and a party dies pendent lite, such action joined in the action (Sec. 6, Rule 3).
does not survive, and such party cannot be
substituted. If the action is real, death of the MISJOINDER AND NON-JOINDER OF PARTIES
defendant survives the action, and the heirs
will substitute the dead. A favorable judgment A party is
obtained by the plaintiff therein may be a. misjoined when he is made a party to the
enforced against the estate of the deceased action although he should not be
defendant (Sec. 1, Rule 87). impleaded
In case a party becomes incapacitated or b. not joined when he is supposed to be
incompetent during the pendency of the joined but is not impleaded in the action
action, the court, upon motion, may allow the
action to be continued by or against the Under the rules, neither misjoinder nor non-
incapacitated or incompetent party with the joinder of parties is a ground for the dismissal of
assistance of his legal guardian or guardian an action but failure to obey the order of the
ad litem (Sec. 18, Rule 20). court to drop or add a party is a ground for the
In case of transfer, the action may be dismissal of the complaint (Sec. 3, Rule 17).
continued by or against the original party, Parties may be dropped or added by order of the
unless the court upon motion directs the court on motion of any party or on its own
person to whom the interest is transferred to initiative at any stage of the action and on such
be substituted in the action or joined with the terms as are just (Sec. 11, Rule 3). Misjoinder of
original party (Sec. 19, Rule 3). parties does not involve questions of jurisdiction
An agent may sue or be sued without joining and not a ground for dismissal.
his principal except when the contract involve
things belonging to the principal (Where the CLASS SUIT
action is allowed to be prosecuted and
defended by a representative or someone A class suit is an action where one or more may
acting in a fiduciary capacity, the beneficiary sue for the benefit of all if the requisites for said
shall be included in the title of the case and action are complied with.
shall be deemed to be the real property in
interest, Sec. 3, Rule 3). A class suit does not require commonality of
interest in the questions involved in the suit.
ALTERNATIVE DEFENDANTS are those who What is required by the Rules is a common or
may be joined as such in the alternative by the general interest in the subject matter of the
plaintiff who is uncertain from whom among them litigation. The subject matter of the action means
he is entitled to a relief, regardless of whether or the physical, the things real or personal, the
not a right to a relief against one is inconsistent money, lands, chattels, and the like, in relation to
with that against the other (Sec. 13, Rule 3). the suit which is prosecuted and not the direct or
Where the plaintiff cannot definitely identify wrong committed by the defendant. It is not also
who among two or more persons should be a common question of law that sustains a class
impleaded as a defendant, he may join all of suit but a common interest in the subject matter
them as defendants in the alternative. of the controversy.
Just as the rule allows a suit against
defendants in the alternative, the rule also There is no class suit when interests are
allows alternative causes of action (Sec. 2, conflicting. Hence, for a class suit to prosper, the
Rule 8) and alternative defenses (Sec. 5[b], following requisites must concur:
Rule 6). a) The subject matter of the controversy
must be of common or general interest to
COMPULSORY AND PERMISSIVE JOINDER many persons;
OF PARTIES b) The persons are so numerous that it is
impracticable to join all as parties;
 32

c) The parties actually before the court are administrator. This appointment is not required
sufficiently numerous and representative where the deceased left an heir because the heir
as to fully protect the interests of all under the new rule, may be allowed to be
concerned; and substituted for the deceased. If there is an heir
d) The representatives sue or defend for the but the heir is a minor, the court may appoint a
benefit of all (Sec.12, Rule 3). guardian ad litem for said minor heir (Sec. 13,
Rule 3).
It shall not be dismissed or compromised without
the approval of the court. The court may appoint an executor or
administrator when:
SUITS AGAINST ENTITIES WITHOUT a) the counsel for the deceased does not
JURIDICAL PERSONALITY name a legal representative; or
b) there is a representative named but he
A corporation being an entity separate and failed to appear within the specified period
distinct from its members has no interest in the (Sec. 16, Rule 3).
individual property of its members unless
transferred to the corporation. Absent any VENUE (Rule 4)
showing of interests, a corporation has no
personality to bring an action for the purpose of
recovering the property, which belongs to the Venue is the place or the geographical area
members in their personal capacities. where an action is to be filed and tried. In civil
cases, it relates only to the place of the suit and
An entity without juridical personality may be not to the jurisdiction of the court.
sued under a common name by which it is
commonly known when it represents to the VENUE VERSUS JURISDICTION
plaintiff under a common name, and the latter
relies on such representation. a) Jurisdiction is the authority to hear and
determine a case; venue is the place where
Persons associated in an entity without juridical the case is to be heard or tried;
personality maybe sued under the name by which b) Jurisdiction is a matter of substantive law;
they are generally or commonly known, but they venue of procedural law;
cannot sue under such name. c) Jurisdiction establishes a relation between the
court and the subject matter; venue, a
EFFECT OF DEATH OF PARTY LITIGANT relation between plaintiff and defendant, or
petitioner and respondent;
The death of the client extinguishes the attorney- d) Jurisdiction is fixed by law and cannot be
client relationship and divests a counsel of his conferred by the parties; venue may be
authority to represent the client. Accordingly, a conferred by the act or agreement of the
dead client has no personality and cannot be parties; and
represented by an attorney. Neither does he e) Lack of jurisdiction over the subject matter is
become the counsel of the heirs of the deceased a ground for a motu propio dismissal; venue is
unless his services are engaged by said heirs. not a ground for a motu propio dismissal
except in cases subject to summary
Where the claim is not extinguished by the death procedure.
of the litigant, upon the receipt of the notice of
death, the court shall order the legal VENUE OF REAL ACTIONS
representative or representatives of the deceased
to appear and be substituted for the deceased Actions affecting title to or possession of real
within thirty (30) days from notice (Sec. 16, Rule property, or interest therein, shall be commenced
3). and tried in the proper court which has
jurisdiction over the area wherein the real
The substitution of the deceased would not be property involved or a portion thereof is situated.
ordered by the court in cases where the death of Forcible entry and detainer actions shall be
the party would extinguish the action because commenced and tried in the municipal trial court
substitution is proper only when the action of the municipality or city wherein the real
survives. property involved, or a portion thereof, is situated
(Sec. 1, Rule 4).
Where the deceased has no heirs, the court shall
require the appointment of an executor or VENUE OF PERSONAL ACTIONS
 33

the intention of the parties were to restrict venue,

All other actions may be commenced and tried: there must be accompanying language clearly
a) where the plaintiff or any of the principal and categorically expressing their purpose and
plaintiffs resides, or design that actions between them be litigated
b) where the defendant or any of the only at the place named by them.
principal defendants resides
all at the option of the plaintiff The parties must be able to show that such
(Sec. 2, Rule 4). stipulation is EXCLUSIVE. In the absence of
qualifying or restrictive words, the stipulation
VENUE OF ACTIONS AGAINST NON- should be deemed as merely an agreement on an
RESIDENTS additional forum, not as limiting venue to the
specified place.
If any of the defendants does not reside and is
not found in the Philippines, and the action PLEADINGS (Rules 6 - 13)
affects the personal status of the plaintiff, or any
property of said defendant located in the
Philippines, the action may be Pleadings are written statements of the
1) commenced and tried in the court of the respective claims and defenses of the parties
place where the plaintiff resides, or submitted to the court for appropriate judgment
2) where the property or any portion thereof (Sec. 1, Rule 6). Pleadings aim to define the
is situated or found (Sec. 3, Rule 4), or issues and foundation of proof to be submitted
3) at the place where the defendant may be during the trial, and to apprise the court of the
found rival claims of the parties.
at the option of the plaintiff (Sec.
2).
KINDS OF PLEADINGS (RULE 6)
WHEN THE RULES ON VENUE DO NOT
APPLY A. COMPLAINT

The Rules do not apply Complaint is the pleading alleging the plaintiffs
a) in those cases where a specific rule or law cause or causes of action, stating therein the
provides otherwise (i.e. action for names and residences of the plaintiff and
damages arising from libel); or defendant (Sec. 3, Rule 6) and should contain a
b) where the parties have validly agreed in concise statement of the ultimate facts
writing before the filing of the action on constituting the plaintiffs cause of action.
the exclusive venue thereof (Sec. 4, Rule
4). B. ANSWER

EFFECTS OF STIPULATIONS ON VENUE An answer is a pleading in which a defending

party sets forth his defenses (Sec. 3, Rule 6). It
The parties may stipulate on the venue as long as may allege legal provisions relied upon for
the agreement is defense (Sec. 1, Rule 8). It may be an answer to
a) in writing the complaint, counterclaim or a cross-claim,
b) made before the filing of the action, and third party complaint or complaint-in-
c) exclusive as to the venue (Sec. 4[b], Rule intervention.
4).
The defendant may set up two kinds of
In interpreting stipulations as to venue, there is a defenses:
need to inquire as to whether or not the 1. NEGATIVE DEFENSES
agreement is restrictive or not. If the stipulation is a) Negative defenses are the specific denials
RESTRICTIVE, the suit may be filed only in the of the material fact or facts alleged in the
place agreed upon by the parties. It must be pleading of the claimant essential to his
reiterated and made clear that under Rule 4, the cause or causes of action (Sec. 5[a], Rule
general rules on venue of actions shall not apply 6).
where the parties, before the filing of the action, b) When the answer sets forth negative
have validly agreed in writing on an exclusive defenses, the burden of proof rests upon
venue. The mere stipulation on the venue of an the plaintiff, and when the answer alleges
action, however, is not enough to preclude affirmative defenses, the burden of proof
parties from bringing a case in other venues. If devolves upon the defendant.
 34

c) There are three types specific denials: kinds of a specific denial, it shall
be considered a general denial
1. Absolute denial - when the defend which is considered as an
ant specify each material allegation admission of the averment not
of fact the truth of which he does not specifically denied.
admit and whenever practicable sets
forth the substance of the matters 2. NEGATIVE PREGNANT
upon which he relies to support such Negative pregnant is an admission in
denial. avoidance which does not qualify as a
specific denial.
2. Partial denial when the defendant It is a form of negative expression which
does not make a total denial of the carries with it an affirmation or at least an
material allegations in a specific implication of some kind favorable to the
paragraph, denying only a part of the adverse party. It is a denial pregnant with
averment. In doing so he specifies an admission of the substantial facts
that part of the truth of which he alleged in the pleading.
admits and denies only the Where a fact is alleged with qualifying or
remainder. modifying language and the words of the
allegation as so qualified or modified are
3. Denial by disavowal of literally denied, the qualifying
knowledge when the defendant circumstances alone are denied while the
alleges having no knowledge or fact itself is admitted.
information sufficient to form a belief It is not a specific denial and is usually an
as to the truth of a material admission.
averment made in the complaint.
Such denial must be made in good AFFIRMATIVE DEFENSES
faith. Affirmative defenses are allegations of new
When the matter denied by a matters which, while hypothetically admitting the
disavowal of knowledge is plainly material allegations in the pleading of the
and necessarily within the claimant, would nevertheless prevent or bar
defendants knowledge, such recovery by him.
claim shall not be considered as a
specific denial. Affirmative defenses include:
If the denial does not fall within
the scope of the abovementioned
a) Fraud g) Estoppel
b) Statute of limitations h) Former recovery
c) Release i) Discharge in bankruptcy
d) Payment j) Any other matter by way of
e) Illegality confession and avoidance
f) Statute of frauds (Sec. 5[b], Rule 6)
the court, both as to the amount and the nature
C. COUNTERCLAIM thereof, except that in an original action before
the RTC, the counterclaim may be considered
A counterclaim is any claim which a defending compulsory regardless of the amount (Sec. 7,
party may have against an opposing party (Sec. Rule 6).
6, Rule 6). It is in itself a claim or cause of action
interposed in an answer. It is either compulsory The failure of the defendant to set up a
or permissive. compulsory counterclaim shall bar its institution,
subject to the following exceptions:
1. COMPULSORY COUNTERCLAIM a) If the counterclaim matured or was
A compulsory counterclaim is one which, being acquired after the defendant had served
cognizable by the regular courts of justice, arises his answer. In such case, it may be
out of or is connected with the transaction or pleaded by filing a supplemental answer
occurrence constituting the subject matter of the or pleading before judgment; and
opposing partys claim and does not require for b) When a pleader fails to set up a
its adjudication, the presence of third parties of counterclaim through oversight,
whom the court cannot acquire jurisdiction. Such inadvertence, excusable negligence, or
a counterclaim must be within the jurisdiction of when justice requires, he may, by leave of
 35

court, set up the counterclaim by

amendment of the pleadings before The defendant if he so desires may prosecute his
judgment. counterclaim either in a separate action or in the
same action. Should he choose to have his
Points to consider: counterclaim resolved in the same action, he
a) A compulsory counterclaim if not set up is must notify the court of his preference within 15
barred days from notice of the plaintiffs motion to
b) It requires no payment of the docket fee dismiss. Should he opt to prosecute his
c) Need not be answered counterclaim in a separate action, the court
d) Does not need a certificate against forum should render the corresponding order granting
shopping and reserving his right to prosecute his claim in a
separate complaint.
2. PERMISSIVE COUNTERCLAIM
Permissive counterclaim is a counterclaim which The dismissal of the complaint under Sec. 3 (due
does not arise out of nor is it necessarily to fault of plaintiff) is without prejudice to the
connected with the subject matter of the right of the defendant to prosecute his
opposing partys claim. It is not barred even if not counterclaim in the same action or in a separate
set up in the action. action. This dismissal shall have the effect of
adjudication upon the merits, unless otherwise
declared by the court. The dismissal of the main
action does not carry with it the dismissal of the
counterclaim (Sec. 6, Rule 16).
The requirements of a permissive
counterclaim are: D. CROSS-CLAIMS
1) It does not require for its adjudication the
presence of third parties of whom the A cross-claim is any claim by one party against a
court cannot acquire jurisdiction; co-party arising out of the transaction or
2) It must be within the jurisdiction of the occurrence that is the subject matter either of the
court wherein the case is pending and is original action or of a counterclaim therein. Such
cognizable by the regular courts of justice; cross-claim may include a claim that the party
and against whom it is asserted is or may be liable to
3) It does not arise out of the same the cross-claimant for all of part of a claim
transaction or series of transactions asserted in the action against the cross-claimant
subject of the complaint. (Sec. 8, Rule 6).

Points to consider: E. THIRD (FOURTH-ETC.) PARTY

a) even if not set up is not barred because it COMPLAINTS
doesnt arise out of the same transaction
as that of the complaint
It is a claim that a defending party may, with
b) it can be brought as a separate action in
leave of court, file against a person not a party to
itself
the action, called the third (fourth, etc.)party
c) docket fee must be paid
defendant, for contribution, indemnity,
d) it must be answered by the adverse party
subrogation or any other relief, in respect of his
to prevent default
opponents claim.
e) it needs a certificate against forum
shopping.
F. COMPLAINT-IN-INTERVENTION
3. EFFECT ON THE COUNTERCLAIM WHEN
THE COMPLAINT IS DISMISSED Complaint-in-intervention is a pleading whereby a
If a counterclaim has already been pleaded by third party asserts a claim against either or all of
the defendant prior to the service upon him of the original parties. If the pleading seeks to unite
the plaintiffs motion to dismiss, and the court with the defending party in resisting a claim
grants the said motion to dismiss, the dismissal against the latter, he shall file an answer-in-
shall be limited to the complaint (Sec. 2, Rule intervention.
17).
If at any time before judgment, a person not a
The dismissal upon motion of plaintiff shall be party to the action believes that he has a legal
without prejudice to the right of the defendant to interest in the matter in litigation in a case in
prosecute the counterclaim. which he is not a party, he may, with leave of
court, file a complaint-in-intervention in the
 36

action if he asserts a claim against one or all of

the parties. SIGNATURE AND ADDRESS

G. REPLY Every pleading must be signed by the party or

counsel representing him, stating in either case
Reply is a pleading, the office or function of which his address which should not be a post office box.
is to deny, or allege facts in denial or avoidance
of new matters alleged by way of defense in the The signature of counsel constitutes a certificate
answer and thereby join or make issue as to such by him that he has read the pleading; that to the
matters. Even if a party does not file such reply, best of his knowledge, information, and belief
all the new matters alleged in the answer are there is good ground to support it; and that it is
deemed controverted (Sec. 10, Rule 6). not interposed for delay.

But you need to file a reply if there is an An unsigned pleading produces no legal effect.
actionable document denying the due execution However, the court may, in its discretion, allow
of such document under oath such deficiency to be remedied if it shall appear
that the same was due to mere inadvertence and
PLEADINGS ALLOWED IN SMALL CLAIM not intended for delay. Counsel who deliberately
CASES AND CASES COVERED BY THE RULES files an unsigned pleading, or signs a pleading in
ON SUMMARY PROCEDURE violation of the Rule, or alleges scandalous or
indecent matter therein, or fails to promptly
The only pleadings allowed under the Rules on report to the court a change of his address, shall
Summary Procedure are be subject to appropriate disciplinary action.
a) Complaint
b) COMPULSORY COUNTERCLAIM pleaded in In every pleading, counsel has to indicate his
the answer, professional tax receipt (PTR) and IBP receipt, the
c) cross-claim pleaded in the answer, purpose of which is to see to it that he pays his
d) answers tax and membership due regularly.
these pleadings must be verified.
VERIFICATION
The only pleadings allowed under small claim
cases are: A verification of a pleading is an affirmation
a) Statement of claim under oath by the party making the pleading that
b) Response he is prepared to establish the truthfulness of the
c) Counterclaim in the response facts which he has pleaded based on his own
personal knowledge.
PARTS OF A PLEADING (RULE 7) The general rule under, Sec. 4. Rule 7 is that,
pleading need not be under oath. This means that
The parts of a pleading under Rule 7 are: the a pleading need not be verified. A pleading will be
caption (Sec. 1), the text or the body (Sec. 2), the verified only when a verification is required by a
signature and address (Sec. 3), the verification law or by a rule.
(Sec. 4), and the certification against forum
shopping (Sec. 5). A pleading is verified by an affidavit, which
declares that:
CAPTION a) the affiant has read the pleading, and
b) the allegations therein are true and
The caption must set forth the name of the court, correct to his personal knowledge or
the title of the action, and the docket number if based on authentic records.
assigned.
The verification requirement is significant, as it is
The title of the action indicates the names of the intended to secure an assurance that the
parties. They shall all be named in the original allegations in a pleading are true and correct and
complaint or petition; but in subsequent not the product of the imagination or a matter of
pleadings, it shall be sufficient if the name of the speculation, and that the pleading is filed in good
first party on each side be stated with an faith. The absence of proper verification is cause
appropriate indication when there are other to treat the pleading as unsigned and dismissible.
parties. Their respective participation in the case
shall be indicated.
 37

It is, however, been held that the absence of a 1) Non-compliance with the undertaking
verification or the non-compliance with the dismissal without prejudice
verification requirement does not necessarily 2) False Certification - indirect contempt,
render the pleading defective. It is only a formal administrative and criminal sanction
and not a jurisdictional requirement. The 3) Wilful and deliberate forum shopping
requirement is a condition affecting only the form ground for summary dismissal with
of the pleading (Sarmeinto vs. Zaratan, 2007). prejudice without motion and hearing; it
The absence of verification may be corrected by has administrative but without criminal
requiring an oath. The court may order the sanctions
correction of the pleading or act on an unverified So, if the dismissal is without
pleading if the attending circumstances are such prejudice, your remedy is
that strict compliance would not fully serve certiorari; if with prejudice, the
substantial justice, which after all, is the basic remedy is appeal (Sec. 1(g),
aim for the rules of procedure (Robert Rule 41)
Development Corp. vs. Quitain, 315 SCRA 150). The dismissal is not a subject of
appeal if the order of dismissal
CERTIFICATION AGAINST FORUM-SHOPPING is without prejudice.
The certification is mandatory
Needed in initiatory pleadings under Sec. 5, Rule 7, but not
jurisdictional.
The certification against forum shopping is a
sworn statement certifying to the following There is forum shopping when
matters: a) as a result of an adverse opinion in one
1) That the party has NOT COMMENCED or forum, a party seeks a favorable opinion,
filed any claim involving the same issues other than by appeal or certiorari in
in any court, tribunal, or quasi-judicial another forum
agency and, to the best of his knowledge, b) a party institutes two or more suits in
no such other action or claim is pending; different courts, either simultaneously or
2) That if there is such other pending action successively, in order to ask the courts to
or claim, a complete statement of the rule on the same or related causes and/or
present STATUS thereof; and to grant the same or substantially the
3) That if he should therefore learn that the same reliefs on the supposition that one or
same or similar action or claim has been the other court would make a favorable
filed or is pending, he shall REPORT THAT disposition or increase a partys chances
FACT within five (5) days therefrom to the of obtaining a favorable decision or action
court wherein his aforesaid complaint or c) the elements of litis pendentia are present
initiatory pleading has been filed. or where a final judgment in one case will
amount to res judicata in another.
Failure to comply with the foregoing requirements
shall not be curable by mere amendment of the It is an act of malpractice, as the litigants trifle
complaint or other initiatory pleading but shall be with the courts and abuse their processes. It is
cause for the dismissal of the case without improper conduct and degrades the
prejudice, unless otherwise provided, upon administration of justice. If the act of the party or
motion and after hearing. its counsel clearly constitutes wilful and
deliberate forum-shopping, the same shall
The submission of a false certification or non- constitute direct contempt, and a cause for
compliance with any of the undertakings therein administrative sanctions, as well as a ground for
shall constitute indirect contempt of court, the summary dismissal of the case with prejudice
without prejudice to the corresponding (Montes vs. CAMay 4, 2006)
administrative and criminal actions. If the acts of
the party or his counsel clearly constitute willful It is the plaintiff or principal party who
and deliberate forum shopping, the same shall be executes the certification under oath, and
ground for summary dismissal with prejudice and not the attorney. It must be signed by the party
shall constitute direct contempt, as well as a himself and cannot be signed by his counsels. As
cause for administrative sanctions (Sec. 5, Rule a general and prevailing rule, a certification
7). signed by counsel is a defective certification and
is a valid cause for dismissal. This is the general
Possible Violations (as per Dean Riano): and prevailing rule. A certification by counsel and
not by the principal party himself is no
 38

certification at all. The reason for requiring that it

must be signed by the principal party himself is Failure to comply with a condition precedent is an
that he has actual knowledge, or knows better independent ground for a motion to dismiss: that
than anyone else, whether he has initiated similar a condition precedent for filing the claim has not
action/s in other courts, agencies or tribunals. been complied (Sec. 1[j], Rule 16) (i.e. barangay
conciliation, demand, etc)
This certification is not necessary when what is
filed is a mere motion for extension, or in criminal PLEADING A JUDGMENT
cases and distinct causes of action.
In pleading a judgment or decision of a domestic
REQUIREMENTS OF A CORPORATION or foreign court, judicial or quasi-judicial tribunal,
EXECUTING THE or of a board or officer, it is sufficient to aver the
VERIFICATION/CERTIFICATION ON NON- judgment or decision without need of alleging
FORUM SHOPPING matters showing the jurisdiction to render such
decision.
A juridical entity, unlike a natural person, can
only perform physical acts through properly PLEADING FRAUD, MISTAKE, MALICE,
delegated individuals. The certification against INTENT, KNOWLEDGE AND OTHER
forum shopping where the plaintiff or a principal CONDITION OF THE MIND JUDGMENTS
party is a juridical entity like a corporation may OFFICIAL DOCUMENTS OR ACTS
be executed by properly authorized persons. This
person may be the lawyer of a corporation. When making averments of FRAUD OR MISTAKE,
THE CIRCUMSTANCES CONSTITUTING SUCH
As long as he is duly authorized by the FRAUD OR MISTAKE must be stated with
corporation and has personal knowledge of the particularity (Sec. 5, Rule 8). It is not enough
facts required to be disclosed in the certification therefore, for the complaint to allege that he was
against forum shopping, the certification may be defrauded by the defendant. Under this provision,
signed by the authorized lawyer. the complaint must state with PARTICULARITY the
fraudulent acts of the adverse party. These
EFFECT OF THE SIGNATURE OF COUNSEL IN particulars would necessarily include the time,
A PLEADING place and specific acts of fraud committed
against him.
Counsels signature signifies that:
a) He has read the pleading; MALICE, INTENT, KNOWLEDGE OR OTHER
b) That to the best of his knowledge, CONDITIONS OF THE MIND of a person may be
information and belief there is a good averred GENERALLY (Sec. 5, Rule 8). Unlike in
ground to support it; and fraud or mistake, they need not be stated with
c) That it is not interposed for delay. particularity. The rule is borne out of human
experience. It is difficult to state the particulars
ALLEGATIONS IN A PLEADING constituting these matters. Hence, a general
averment is sufficient.
Every pleading shall contain in a mathematical
and logical form, a plain, concise and direct
statement of the ultimate facts on which the
party relies for his claim and defense, as the case PLEADING AN ACTIONABLE DOCUMENT
may be, containing the statement of mere
evidenciary facts (Sec. 1, Rule 8). An actionable document is a document relied
upon by either the plaintiff or the defendant.

MANNER OF MAKING ALLEGATIONS (RULE Whenever an actionable document is the basis of

8) a pleading, the rule specifically direct the pleader
to:
PLEADING CONDITION PRECEDENT a) set forth in the pleading the substance of
the instrument or the document; or
b) to attach the original or the copy of the
Conditions precedents are matters which must be
document to the pleading as an exhibit
complied with before a cause of action arises.
and to be part of the pleading; or
When a claim is subject to a condition precedent,
the compliance of the same must be alleged in
the pleading.
 39

c) to set forth in the pleading said copy of made by a party in the course of the proceedings
the instrument or document (Sec. 7, Rule in the same case, and does not require proof.
8).
A party who desires to contradict his own judicial
This manner of pleading a document applies only admission may do so only be either of two ways:
to one which is the basis of action or a defense. a) by showing that the admission was made
Hence, if the document does not have the through palpable mistake; or
character of an actionable document, as when it b) that no such admission was made (Sec. 4,
is merely evidentiary, it need not be pleaded Rule 129).
strictly.
The following are not deemed admitted by the
SPECIFIC DENIALS failure to make a specific denial:
a) The amount of unliquidated damages;
There are three modes of specific denial which b) Conclusions in a pleading which do not
are contemplated by the Rules, namely: have to be denied at all because only
a) By specifying each material allegation of ultimate facts need be alleged in a
the fact in the complaint, the truth of pleading;
which the defendant does not admit, and c) Non-material allegations, because only
whenever practicable, setting forth the material allegations need be denied.
substance of the matter which he will rely
upon to support his denial; WHEN A SPECIFIC DENIAL REQUIRES AN
b) By specifying so much of the averment in OATH
the complaint as is true and material and
denying only the remainder; Specific denials which must be under oath to be
c) By stating that the defendant is without sufficient are:
knowledge or information sufficient to a) A denial of an actionable document (Sec.
form a belief as to the truth of a material 8, Rule 8);
averment in the complaint, which has the b) A denial of allegations of usury in a
effect of denial. complaint to recover usurious interest
(Sec. 11, Rule 8).
The purpose of requiring the defendant to make a
specific denial is to make him disclose the
EFFECT OF FAILURE TO PLEAD (RULE 9)
matters alleged in the complaint which he
succinctly intends to disprove at the trial,
together with the matter which he relied upon to FAILURE TO PLEAD DEFENSES AND
support the denial. The parties are compelled to OBJECTIONS
lay their cards on the table.
Defenses or objections not pleaded either in a
EFFECT OF FAILURE TO MAKE SPECIFIC motion to dismiss or in the answer are deemed
DENIALS waived.

Material allegations, except unliquidated Exceptions:

damages, not specifically denied are deemed a) Lack of jurisdiction over the subject
admitted (Sec. 11, Rule 8). matter;
b) That there is another action pending
If the allegations are deemed admitted, there is between the same parties for the same
no more triable issue between the parties and if cause (litis pendentia);
the admissions appear in the answer of the c) That the action is barred by the statute of
defendant, the plaintiff may file a motion for limitations (prescription);
judgment on the pleadings under Rule 34. d) Res judicata.
In all these cases, the court shall
An admission in a pleading cannot be dismiss the claim.
controverted by the party making such admission
because the admission is conclusive as to him. All FAILURE TO PLEAD A COMPULSORY
proofs submitted by him contrary thereto or COUNTERCLAIM AND CROSS-CLAIM
inconsistent therewith should be ignored whether
an objection is interposed by a party or not. Said A compulsory counterclaim or a cross-claim not
admission is a judicial admission, having been set up shall be barred (Sec. 2, Rule 9).
 40

DEFAULT a) the failure to answer was due to fraud,

accident, mistake, or excusable
Default is a procedural concept that occurs when negligence, and
the defending party fails to file his answer within b) the defendant has a meritorious
the reglementary period. It does not occur from defensethere must be an affidavit of
the failure of the defendant to attend either the merit (Sec. 3[b], Rule 9).
pre-trial or the trial.
REMEDY AFTER JUDGMENT BUT BEFORE
WHEN A DECLARATION OF DEFAULT IS FINALITY:
PROPER MOTION FOR NEW TRIAL (Rule 37);
MOTION FOR RECONSIDERATION; or
If the defending party fails to answer within the APPEAL from the judgment as being
time allowed therefor, the court shall, upon contrary to the evidence or the law (Rule
motion of the claiming party with notice to the 41).
defending party, and proof of such failure,
declare the defending party in default (Sec. 3, You can directly file an appeal without
Rule 9). passing MR and MNT; or you can MR/MNT
and if denied, then you can still file an
In order for the court to declare the defendant in appeal and have a new fresh 15 day
default the following requisites must be present: period of appeal (Neypes doctrine)
1. The court must have validly ACQUIRED
JURISDICTION over the person of the This Neypes doctrine on fresh period of
defendant either by service of summons appeal applies to Rule 45 and Sec. 3 (e)
or voluntary appearance; of Rule 122.
2. The defendant FAILS TO ANSWER within
the time allowed therefore; The purpose of the doctrine is to
3. There must be a MOTION to declare the standardize the period of appeal.
defendant in default;
4. There must be NOTICE to the defendant The appeal shall be taken within fifteen
by serving upon him a copy of such (15) days from notice of the
motion; judgment or final order appealed
5. There must be PROOF of such failure to from. Where a record on appeal is
answer; and required, the appellant shall file a notice of
6. There must be a HEARING to declare the appeal and a record on appeal within
defendant in default. thirty (30) days from notice of the
judgment or final order.
It is not correct to declare a party in default of the
defending party filed an answer So the period of appeal is 15 days from
notice of judgment or 15 days from
final order appealed from.
EFFECT OF AN ORDER OF DEFAULT
The SC ruled in one case that this fresh
1) The party declared in default loses his period of appeal is applicable in criminal
standing in court preventing him from taking cases (Judith Yu vs. Judge Samson,
part in the trial; Feb. 9, 2011)
2) The party in default shall still be entitled to
notices of subsequent proceedings as well as REMEDY AFTER JUDGMENT BECOMES FINAL
to receive notice that he was declared in AND EXECUTORY:
default; PETITION FOR RELIEF FROM JUDGMENT
3) The declaration of default is not an admission (Rule 38);
of the truth or validity of the plaintiffs claims. ACTION FOR NULLITY OF JUDGMENT (Rule
47).
RELIEF FROM AN ORDER OF DEFAULT
If the order of default is valid,
REMEDY FROM THE NOTICE OF ORDER AND Certiorari is not available. If the default
BEFORE JUDGMENT: order was improvidently issued, that is,
MOTION TO SET ASIDE ORDER OF the defendant was declared in default,
DEFAULT, showing that without a motion, or without having
served with summons before the
 41

expiration of the reglementary period to considered in the assessment of the filing fees;
answer, certiorari is available as a remedy. otherwise such pleading shall not be accepted for
filing or shall be expunged from the record.
EFFECT OF A PARTIAL DEFAULT
Any defect in the original pleading resulting in
When a pleading asserting a claim states a underpayment of the docket fee cannot be cured
common cause of action against several by amendment, such as by the reduction of the
defending parties, some of whom answer and the claim as, for all legal purposes, there is no
others fail to do so, the court shall try the case original complaint over which the court has
against all upon the answers thus filed and render acquired jurisdiction.
judgment upon the evidence presented (Sec.
33[c], Rule 9). The rule on payment of docket fee has, in some
instances, been subject to the rule on LIBERAL
Default is only against those defendant who INTERPRETATION. Thus, in a case, it was held that
didnt file the answer but they can also benefit while the payment of the required docket fee is a
from the answering defendants jurisdictional requirement, even its nonpayment
at the time of filing does not automatically cause
EXTENT OF RELIEF the dismissal of the case, as long as the fee is
paid within the applicable prescriptive or
reglementary period.
A judgment rendered against a party in default
may not exceed the amount or be different from
Also, if the amount of docket fees is insufficient
that prayed for nor include unliquidated damages
considering the amount of the claim, the party
which are not awarded (Sec. 3[c], Rule 9). In fact,
filing the case will be required to pay the
there can be no automatic grant of relief as the
deficiency, but jurisdiction is not automatically
court has to weigh the evidence.
lost.
The court may render judgment before or after
Within the period for taking an APPEAL, the
the presentation of evidence. So the court may
appellant shall pay to the clerk of court which
award unliquidated damages in case where the
rendered the judgment or final order appealed
court default defendant in default after the
from, the full amount of the appellate court
presentation of the evidence.
docket and other lawful fees (Sec. 4, Rule 41).
Hence, the Rule now requires that appellate
ACTIONS WHERE DEFAULT ARE NOT docket and other lawful fees must be paid within
ALLOWED the same period for taking an appeal. Such
payment of docket fee within the prescribed
1) Annulment of marriage; period is mandatory for the perfection of an
2) Declaration of nullity of marriage; appeal.
3) Legal separation
4) In special civil actions of certiorari, prohibition Without such payment, the appellate court does
and mandamus where comment instead of an not acquire jurisdiction over the subject matter of
answer is required to be filed; and the action and the decision sought to be
5) Summary procedure. appealed from becomes final and executor.
Hence, nonpayment is a valid ground for the
FILING AND SERVICE OF PLEADINGS (RULE dismissal of an appeal. However, delay in the
13) payment of the docket fees confers upon the
court a discretionary, not a mandatory power to
dismiss an appeal.
PAYMENT OF DOCKET FEES
FILING VERSUS SERVICE OF PLEADINGS
It is not simply the filing of the complaint or
appropriate initiatory pleading but the payments FILING is the act of presenting the pleading or
of the prescribed docket fee that vests a trial other paper to the clerk of court;
court with JURISDICTION over the subject matter
or nature of the action. In connection with the SERVICE is the act of providing a party with a
payment of docket fees, the court requires that copy of the pleading or paper concerned (Sec. 2,
all complaints, petitions, answers and similar Rule 13).
pleadings must specify the amount of damages
being prayed for both in the body of the pleading PERIODS OF FILING OF PLEADINGS
and in prayer therein and said damages shall be
 42

within 10 days from service

The date of the mailing of motions, pleadings, or
any other papers or payments or deposits, as 7) Answer to third-party complaint
shown by the post office stamp on the envelope the period to answer shall be the same
or the registry receipt, shall be considered as the as the periods given in answering a
date of their filing, payment, or deposit in court. complaint which shall either be 15, 30
The envelope shall be attached to the record of or 60 days as the case may be.
the case (Sec. 3, Rule 13)
8) Reply
THE FILING OF RESPONSIVE PLEADINGS within 10 days from the service of the
SHALL HAVE THE FOLLOWING PERIODS pleading responded to.

1) Answer to the complaint 9) Answer to supplemental complaint

within 15 days after service of within 10 days from notice of the order
summons unless a different period is admitting the supplemental complaint
fixed by the court. unless a different period is fixed by the
court.
2) Answer of a defendant foreign private
juridical entity MANNER OF FILING
a. If it has a resident agent
within 15 days after service of By PERSONAL SERVICE or by REGISTERED MAIL.
summons to such agent. The filing of pleadings, appearances, motions,
b. If it has no resident agent but it has an notices, orders, judgments and all other papers
agent or officer in the Philippines shall be made by presenting the original copies
within 15 days after service of thereof, plainly indicated as such, personally to
summons to said agent or officer. the clerk of court or by sending them by
c. If it has no resident agent, agent or officer registered mail (Registry Service). In the first
the service of summons shall be made on case, the clerk of court shall endorse on the
the proper government office which will pleading the date and hour of filing. In the second
then forward it by registered mail within case, the date of the mailing of motions,
10 days to the corporations office pleadings, or any other papers or payments or
the answer must be filed within 30 deposits, as shown by the post office stamp on
days from the receipt of the summons the envelope or the registry receipt, shall be
by the home office. considered as the date of their filing, payment, or
deposit in court. The envelope shall be attached
3) When the service is made by publication to the record of the case (Sec. 3, Rule 13).
within the time specified in the order
granting leave to serve summons by MODES OF SERVICE
publication which shall not be less than
60m days after notice. There are two modes of service of pleadings,
judgments, motions, notices, orders, judgments
4) When the defendant is a non-resident on and other papers:
whom extraterritorial service is made a) personally, or
within 60 days from such service. b) by mail.

5) Answer to an amended complaint However, if personal service and serviced by mail

where the amendment is a matter of cannot be made, service shall be done by
right, within 15 days from the service substituted service.
of amended complaint. If the
amendment is NOT a matter of right, PERSONAL SERVICE
the answer must be filed within 10
days from notice of the order admitting It is the preferred mode of service. If another
the same. mode of service is used other than personal
The same periods shall apply to service, the service must be accompanied by a
answers filed on an amended written explanation why the service of filing was
counterclaim , cross claim and third not done personally. Exempt from this
party complaint. explanation are papers emanating from the court.
A violation of this explanation requirement may
6) Answer to counterclaim or cross-claim
 43

be a cause for the paper to be considered as not

having been filed (Sec. 11, Rule 13). PRIORITIES IN MODES OF SERVICE AND
FILING
Personal service is made by:
a) delivering a copy of the papers served Personal service is the preferred mode of
personally to the party or his counsel, or service.
b) by leaving the papers in his office with his
clerk or a person having charge thereof, or The preferred service by mail is by registered
c) If no person is found in the office, or his mail.
office is not known or he has no office,
then by leaving a copy of the papers at The following papers are required to be filed
the partys or counsels residence, if in court and served upon the parties affected:
known, with a person of sufficient age and (a) Judgments; (b) Resolutions; (c) Orders; (d)
discretion residing therein between eight Pleadings subsequent to the complaint; (e)
in the morning and six in the evening Written motions; (f) Notices; (g) Appearances;
(Sec. 6, Rule 13). (h) Demands; (i) Offers of judgment; (j)
Similar papers (Sec. 4, Rule 13).
SERVICE BY MAIL
WHEN SERVICE IS DEEMED COMPLETE
The preferred service by mail is by registered
mail. It is deemed complete upon actual receipt Personal service is deemed complete upon the
by the addressee or after 5 days from the date he actual delivery following the above procedure
received the first notice of the postmaster (Sec. 10, Rule 13).
whichever is earlier. Service by ordinary mail may
be done only if no registry service is available in Service by ordinary mail is deemed complete
the locality of either the sender or the addressee upon the expiration of ten (10) days after mailing,
(Sec. 7, Rule 13). unless the court otherwise provides. On the other
hand, service by registered mail is complete upon
It shall be done by depositing the copy in the post actual receipt by the addressee, or after five (5)
office, in a sealed envelope, plainly addressed to days from the date he received the first notice of
the party or his counsel at his office, if known, or the postmaster, whichever is earlier (Sec. 8, Rule
otherwise at his residence, if known, with postage 13).
fully prepaid, and with instructions to the
postmaster to return the mail to the sender after Substituted service is complete at the time of
ten (10) days if not delivered. delivery of the copy to the clerk of court.

SUBSTITUTED SERVICE (FILING) PROOF OF FILING AND SERVICE

This mode is availed of only when there is failure PROOF OF FILING

to effect service personally or by mail. This failure The filing of a pleading or paper is proved by its
occurs when the office and residence of the party existence in the record. If it is not in the record
or counsel is unknown. 1) If filed PERSONALLY:
Proved by the written or stamped
It is effected by delivering the copy to the clerk of acknowledgement of its filing by the
court, with proof of failure of both personal clerk of court on a copy of the same;
service and service by mail (Sec. 8, Rule 13). or
2) If filed by REGISTERED MAIL:
Substituted service is complete at the time of Proved by the registry receipt AND the
delivery of the copy to the clerk of court. affidavit of the person who did the
mailing with a full statement of:
SERVICE OF JUDGMENTS, FINAL ORDERS a) The date and place of
OR RESOLUTIONS depositing the mail in the post
office in a sealed envelope
Final orders or judgments shall be served either assessed to the court;
personally or by registered mail. When a party b) With postage fully paid; and
summoned by publication has failed to appear in c) With the instructions to the
the action, final orders or judgments against him postmaster to return the mail to
shall be served upon him also by publication at the sender after 10 days if
the expense of the prevailing party (Sec. 9). undelivered.
 44

PROOF OF SERVICE AMENDMENTS BY LEAVE OF COURT

1) Proof of personal service shall consist of:
the written admission of the party served; Leave of court is required for substantial
or amendment made after service of a responsive
The official return of the server; or pleading (Sec. 3, Rule 10). The plaintiff, for
The affidavit of the party serving (in case example, cannot amend his complaint by
of refusal to receive), containing full changing his cause of action or adding a new one
information of the date, place and manner without leave of court.
of service (Sec. 13, Rule 13).
2) Proof of service by registered mail After a responsive pleading is filed, an
Shall be shown by the affidavit of the amendment to the complaint may be substantial
mailer showing compliance with Sec. 7, and will correspondingly require a substantial
Rule 13 and the registry receipt issued by alteration in the defenses of the adverse party.
the mailing office and present the The amendment of the complaint is not only
document returned or the card. unfair to the defendant but will cause
3) Proof of service of ordinary mail unnecessary delay in the proceedings. Leave of
Service shall be proved by affidavit of the court is thus, required.
mailer showing compliance with Sec. 7,
Rule 13 Where no responsive pleading has yet been
served, no defenses would be altered. The
amendment of the pleading will not then require
AMENDMENT (RULE 10)
leave of court.

AMENDMENT AS A MATTER OF RIGHT FORMAL AMENDMENT

A plaintiff has the right to amend his complaint A defect in the designation of the parties and
once at any time before a responsive other clearly clerical or typographical errors may
pleading is served by the other party or in case be summarily corrected by the court at any
of a reply to which there is no responsive stage of the action, at its initiative or on motion,
pleading, at any time within ten (10) days after it provided no prejudice is caused thereby to the
is served (Sec. 2, Rule 10). adverse party (Sec. 4, Rule 10).

Thus, before an answer is served on the plaintiff, AMENDMENTS TO CONFORM TO OR

the latter may amend his complaint as a matter AUTHORIZE PRESENTATION OF EVIDENCE
of right for whatever reasons as it may be,
even to correct the error of judgment. The When issues not raised by the pleadings are tried
defendant may also amend his answer, also as a with the express or implied consent of the
matter of right, before a reply is served upon him. parties, they shall be treated in all respects as if
(Sec. 2 refers to an amendment made before the they had been raised in the pleadings. Such
trial court, not to amendments before the CA). amendment of the pleadings as may be
necessary to cause them to conform to the
The CA is vested with jurisdiction to admit or evidence and to raise these issues may be made
deny amended petitions filed before it. Hence, upon motion of any party at any time, even after
even if no responsive pleading has yet been judgment; but failure to amend does not affect
served, if the amendment is subsequent to a the result of the trial of these issues.
previous amendment made as a matter of right,
the subsequent amendment must be with leave If evidence is objected to at the trial on the
of court. ground that it is not within the issues made by
the pleadings, the court may allow the pleadings
So you can amend the complaint to correct the to be amended and shall do so with liberality if
error of jurisdiction as a matter of right (without the presentation of the merits of the action and
leave of court) before a responsive pleading is the ends of substantial justice will be subserved
served even though there is already a motion to thereby. The court may grant a continuance to
dismiss filed for lack of jurisdiction. The court enable the amendment to be made (Sec. 5, Rule
should deny the motion since such motion is not 10).
a responsive pleading. Note: The amendment as
a matter of right should be filed before the order DIFFERENT FROM SUPPLEMENTAL
to dismiss becomes final. PLEADINGS
 45

the laws of the Philippines with a juridical

A supplemental pleading is one which sets forth personality, service may be made on the
transactions, occurrences, or events which have president, managing partner, general
happened since the date of the pleading sought manager, corporate secretary, treasurer, or
to be supplemented. The filing of supplemental in-house counsel (Sec 11).
pleadings requires leave of court. The court may If a party dies and there is substitute, there is
allow the pleading only upon such terms as are no need for summons but only an order for
just. This leave is sought by the filing of a motion him tom appear.
with notice to all parties (Sec. 6, Rule 10).
NATURE AND PURPOSE OF SUMMONS IN
A supplemental pleading does not extinguish the RELATION TO ACTIONS IN PERSONAM,
existence of the original pleading, while an IN REM AND QUASI IN REM
amended pleading takes the place of the original
pleading. A supplemental pleading exists side In an action in personam, the purpose of
with the original; it does not replace that which it summons is not only to notify the defendant of
supplements it does not supersede the original the action against him but also to acquire
but assumes that the original pleading remain as jurisdiction over his person. The filing of the
the issues to be tried in the action. A complaint does not enable the courts to acquire
supplemental pleading supplies the deficiencies jurisdiction over the person of the defendant. By
in aid of an original pleading, not to entirely the filing of the complaint and the payment of the
substitute the latter. required filing and docket fees, the court acquires
jurisdiction only over the person of the plaintiff,
EFFECT OF AMENDED PLEADING not over the person of the defendant. Acquisition
of jurisdiction over the latter is accomplished by a
An amended pleading supersedes the original valid service of summons upon him. Service of
one which it amends (Sec. 8, Rule 10). summons logically follows the filing of the
The original pleading loses its status as a complaint. Note further that the filing of the
pleading, is deemed withdrawn and complaint tolls the running of the prescriptive
disappears from the record. It has been held period of the cause of action in accordance with
that the original complaint is deemed Article 1155 of the Civil Code.
superseded and abandoned by the
amendatory complaint only if the latter In an action in rem or quasi in rem,
introduces a new or different cause of action. jurisdiction over the defendant is not required
The defenses in the original pleadings not and the court acquires jurisdiction over an action
reproduced in the amended pleadings are as long as it acquires jurisdiction over the res.
waived. The purpose of summons in these actions is not
Admissions in the superseded pleading can the acquisition of jurisdiction over the defendant
still be received in evidence against the but mainly to satisfy the constitutional
pleader. requirement of due process.

VOLUNTARY APPEARANCE
SUMMONS (Rule 14)
The defendant's voluntary appearance in the
Summons is a writ or process issued and action shall be equivalent to service of summons.
served upon the defendant in a civil action for The inclusion in a motion to dismiss of other
the purpose of securing his appearance grounds aside from lack of jurisdiction over the
therein. person of the defendant shall not be deemed a
The purpose of summons is to comply with voluntary appearance (Sec. 20, Rule 14).
the constitutional rights on due process
The service of summons enables the court to Jurisdiction over the defendant is acquired by:
acquire jurisdiction over the person of the a) Valid service of summons; or
defendant. If there is no service of summons, b) By his voluntary appearance or
any judgment rendered or proceedings had in submission to the jurisdiction of the court.
a case are null and void, except in case of
voluntary appearance. The law requiring the The defendants voluntary appearance in the
manner of service of summons is action shall be equivalent to service of summons.
jurisdictional. Lack of jurisdiction over ones person maybe
When the defendant is a corporation, invoked in a motion to dismiss alleging such
partnership or association organized under
 46

ground. If no motion to dismiss is filed, it may be

raised as an affirmative defense in the answer. Substituted service is not allowed in service of
summons on domestic corporations.
The inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over the CONSTRUCTIVE SERVICE (BY PUBLICATION)
person of the defendant shall not be deemed a
voluntary appearance. As a rule, summons by publication is available
only in actions in rem or quasi in rem. It is not
PERSONAL SERVICE available as a means of acquiring jurisdiction over
the person of the defendant in an action in
It shall be served by HANDLING a copy to the personam.
defendant in person, or if he refuses it, by
TENDERING it to him (Sec. 6, Rule 14). Against a resident, the recognized mode of
service is service in person on the defendant
SUBSTITUTED SERVICE (SUMMONS) under Sec. 6 Rule 14. In a case where the
defendant cannot be served within a reasonable
If the defendant cannot be served within a time, substituted service will apply (Sec. 7, Rule
reasonable time, service may be effected: 14), but no summons by publication which is
1) By leaving copies of the summons at the permissible however, under the conditions set
defendants dwelling house or residence forth in Sec. 14, Rule 14.
with some person of suitable age and
discretion then residing therein; or Against a non-resident, jurisdiction is acquired
2) By leaving copies at defendants office or over the defendant by service upon his person
regular place of business with some while said defendant is within the Philippines. As
competent person in charge thereof (Sec. once held, when the defendant is a nonresident,
7). personal service of summons in the state is
essential to the acquisition of jurisdiction over
The following facts must first be shown for the him. This is in fact the only way of acquiring
service to be valid: jurisdiction over his person if he does not
1) The impossibility of the personal service voluntarily appear in the action. Summons by
within a reasonable time publication against a nonresident in an action in
2) The effort exerted to locate the person to personam is not a proper mode of service.
be served
3) Service upon a person of sufficient age Publication is notice to the whole world that the
and discretion residing in the same place proceeding has for its object to bar indefinitely all
or some competent person in charge of his who might be minded to make an objection of
office or regular place of business any sort against the right sought to be
4) There should be at least 3 attempts in 2 established. It is the publication of such notice
days. that brings the whole world as a party in the case
and vests the court with jurisdiction to hear and
It may be resorted to if there are justifiable decide it.
causes, where the defendant cannot be served
within a REASONABLE TIME (for plaintiff = 7 days; SERVICE UPON A DEFENDANT WHERE HIS
sheriff = 15 30 days). An example is when the IDENTITY IS UNKNOWN OR WHERE HIS
defendant is in hiding and resorted to it WHEREABOUTS ARE UNKNOWN
intentionally to avoid service of summons, or
when the defendant refuses without justifiable Where the defendant is designated as unknown,
reason to receive the summons. or whenever his whereabouts are unknown and
cannot be ascertained despite a diligent inquiry,
In substituted service of summons, actual receipt service may, with prior leave of court, be effected
of the summons by the defendant through the upon the defendant, by publication in a
person served must be shown. It further requires newspaper of general circulation. The place and
that where there is substituted service, there the frequency of the publication is a matter for
should be a report indicating that the person who the court to determine (Sec. 14, Rule 14).
received the summons in defendants behalf was
one with whom petitioner had a relation of The rule does not distinguish whether the action
confidence ensuring that the latter would receive is in personam, in rem or quasi in rem. The tenor
or would be notified of the summons issued in his of the rule authorizes summons by publication
name. whatever the action may be as long as the
 47

identity of the defendant is unknown or his order of the court to the last known
whereabouts are unknown. address of the defendant, or
3) by any manner the court may deem
RULES ON SUMMONS ON DEFENDANT sufficient under Sec. 16.

(1) Resident Like in the case of an unknown defendant or one

(a) Present in the Philippines whose whereabouts are unknown, the rule
1) Personal service (Rule 14, Sec. 6) affecting residents who are temporarily out of the
2) Substituted service (Rule 14, Sec. Philippines applies in any action. Note also, that
7) summons by publication may be effected against
3) Publication, but only if the defendant.
a) his identity or whereabouts is
unknown (Rule 14, Sec. 14); The defendant may however, also be served by
and substituted service. This is because even if he is
b) the action is in rem or quasi in abroad, he has a residence in the Philippines or a
rem place of business and surely, because of his
(b) Absent from the Philippines absence, he cannot be served in person within a
1) Substituted service (Rule 14, Sec. reasonable time.
7)
2) Extraterritorial service (Rule 14, EXTRA-TERRITORIAL SERVICE, WHEN
Sec. 16 and 15); action need not be ALLOWED
in rem or quasi in rem
Under Sec. 15, Rule 14, extraterritorial service of
(2) Non-resident summons is proper only in four (4) instances
1. Present in the Philippines namely:
a) Personal service (Sec. 6, Rule 14) 1) When the action affects the personal
b) Substituted service (Sec. 7, Rule status of the plaintiffs;
14) 2) When the action relates to, or the subject
2. Absent from the Philippines of which is, property within the Philippines,
a) Action in rem or quasi in rem only in which the defendant has or claims a lien
Extraterritorial service (Rule 14, or interest, actual or contingent;
Sec. 15) 3) When the relief demanded in such action
b) Action in personam, and judgment consists, wholly or in part, in excluding the
cannot be secured by attachment defendant from any interest in property
(e.g. action for injunction) located in the Philippines; and
1) Wait for the defendant to 4) When the defendant non-residents
come to the Philippines and property has been attached within the
to serve summons then Philippines.
2) Wait the defendant to
voluntarily appear in court Extraterritorial service of summons applies when
(Rule 14, Sec. 20) the following requisites concur:
3) Plaintiff cannot resort to 1) The defendant is nonresident;
extraterritorial service of 2) He is not found in the Philippines; and
summons 3) The action against him is either in rem or
quasi in rem.
SERVICE UPON RESIDENTS TEMPORARILY
OUTSIDE THE PHILIPPINES If the action is in personam, this mode of service
will not be available. There is no extraterritorial
Service of summons upon a resident of the service of summons in an action in personam.
Philippines who is temporarily out of the country, Hence, extraterritorial service upon a nonresident
may, by leave of court be effected out of the in an action for injunction which is in personam is
Philippines as under the rules on extraterritorial not proper (Banco Do Brasil vs. CA, 333 SCRA
service in Sec. 15, Rule 14 by any of the following 545).
modes:
1) by personal service as in Sec. 6, When the action is in personam, jurisdiction over
2) by publication in a news paper of general the person of the defendant is necessary for the
circulation together with a registered court to validly try and decide the case. However,
mailing of a copy of the summons and the when the defendant is a nonresident, personal
 48

service of summons in the state is essential to A motion is an application for relief other than by
the acquisition of jurisdiction over him. a pleading (Sec. 1, Rule 15).

SERVICE UPON PRISONERS AND MINORS MOTIONS VERSUS PLEADINGS

On a minor. Service shall be made on him A pleading is a written statement of the

personally and on his legal guardian if he has respective claims and defenses of the parties
one, or if none, upon his guardian ad litem whose submitted to the court for appropriate judgment
appointment shall be applied for by the plaintiff, (Sec. 1, Rule 6). It may be in the form of a
or upon a person exercising parental authority complaint, counterclaim, cross-claim, third-party
over him, but the court may order that service complaint, or complaint-in-intervention, answer
made on a minor of 15 or more years of age shall or reply (Sec. 2, Rule 6).
be sufficient (Sec. 10);
A motion on the other hand is an application for
On prisoners. It shall be made upon him relief other than a pleading (Sec. 1, Rule 15).
(prisoner) by serving on the officer ( becomes the
deputy sheriff) having the management of the jail A motion is not a pleading, even when reduced to
or institution who is deemed deputized as a writing; it relates generally to procedural matters,
special sheriff for said purpose (Sec. 9). unlike pleadings which generally states
substantial questions. Moreover, a motion is not
If served by the sheriff, his deputy, or other an independent remedy, and thus cannot replace
proper court officer, there is no need to be sworn an action to enforce a legal right.
but this is needed if served by other persons.
CONTENTS AND FORM OF MOTIONS
PROOF OF SERVICE
A motion shall state the order sought to be
When the service has been completed, the server obtained, and the grounds which it is based, and
shall, within five (5) days therefrom, serve a copy if necessary shall be accompanied by supporting
of the return, personally or by registered mail, to affidavits and other papers (Sec. 3).
the plaintiffs counsel, and shall return the
summons to the clerk who issued it, accompanied All motions must be in writing except those made
by proof of service (Sec. 4, Rule 14). in open court or in the course of a hearing or trial
(Sec. 2).
The proof of service of summons shall be made in
writing by the server and shall set forth the NOTICE OF HEARING AND HEARING OF
manner, place and date of service; shall specify MOTIONS
any papers which have been served with the
process and the name of the person who received Except for motions which the court may act upon
the same; and shall be sworn to when made by a without prejudicing the rights of the adverse
person other than a sheriff or his deputy (Sec. party, every written motion shall be set for
18). hearing by the applicant.

If the service has been made by publication, The motion which contains the notice of hearing
service may be proved by the affidavit of the shall be served as to ensure its receipt by the
printer, his foreman or principal clerk, or of the other party at least three (3) days before the date
editor, business or advertising manager, to which of hearing, unless the court for good cause sets
affidavit a copy of the publication shall be the hearing on shorter notice. It shall be
attached and by an affidavit showing the deposit addressed to all parties concerned, and shall
of a copy of the summons and order for specify the time and date of the hearing which
publication in the post office, postage prepaid, must not be later than ten (10) days after the
directed to the defendant by registered mail to filing of the motion (Sec. 4, Rule 15).
his last known address (Sec. 19).
OMNIBUS MOTION RULE
MOTIONS (Rule 15)
The rule is a procedural principle which requires
that every motion that attacks a pleading,
MOTIONS IN GENERAL, DEFINITION OF judgment, order or proceeding shall include all
MOTION grounds then available, and all objections not so
included shall be deemed waived (Sec. 8).
 49

set for pre-trial. A motion for extension of time is

Since the rule is subject to the provisions of Sec. an ex parte motion made to the court in behalf of
1, Rule 9, the objections mentioned therein are one or the other of the parties to the action, in
not deemed waived even if not included in the the absence and usually without the knowledge
motion. These objections are: of the other party or parties. Ex parte motions are
a) that the court has no jurisdiction over the frequently permissible in procedural matters, and
subject matter, also in situations and under circumstances of
b) that there is another action pending emergency; and an exception to the rule
between the same parties for the same requiring notice is sometimes made where notice
cause (litis pendencia), or the resulting delay might tend to defeat the
c) that the action is barred by a prior objective of the motion.
judgment (res judicata), and
d) that the action is barred by the statute of Motion of course a motion for a certain kind of
limitations (prescription) (Sec. 1, par. 2, relief or remedy to which the movant is entitled
Rule 9). as a matter of right, and not as a matter of
discretion on the part of the court. Moreover, the
Even if a motion to dismiss was filed and the allegations contained in such a motion do not
issue of jurisdiction was not raised therein, a have to be investigated or verified. An example
party may, when he files an answer, raise the would be a motion filed out of time, because this
lack of jurisdiction as an affirmative defense motion may be disposed of the court on its own
because this defense is not barred under the initiative. Another example would be a motion to
omnibus motion rule. sell certain property after the period given by the
court to the debtor to pay has elapsed, and such
A motion to dismiss is a typical example of a previous order had specified that the property be
motion subject to omnibus motion rule, since a sold in case of default.
motion to dismiss attacks a complaint which is a
pleading. Special motion the opposite of a motion of
course, here the discretion of the court is
Under the omnibus motion rule, a motion involved; usually an investigation of the facts
attacking a pleading like a motion to dismiss shall alleged is required.
include all grounds then available and all
objections not so included shall be deemed PRO-FORMA MOTIONS
waived. It can no longer be invoked as affirmative
defense in the answer which the movant may file The Court has consistently held that a motion
following the denial of his motion to dismiss. The which does not meet the requirements of
defense of lack of jurisdiction over the subject Sections 4 and 5 of Rule 15 on hearing and notice
matter is however, a defense not barred by the of the hearing is a mere scrap of paper, which the
failure to invoke the same in a motion to dismiss clerk of court has no right to receive and the trial
already filed. court has no authority to act upon and one which
will be treated as a motion intended to delay the
LITIGATED AND EX PARTE MOTIONS proceedings. Service of a copy of a motion
containing a notice of the time and the place of
A litigated motion is one which requires the hearing of that motion is a mandatory
parties to be heard before a ruling on the motion requirement, and the failure of movants to
is made by the court. Sec. 4 establishes the comply with these requirements renders their
general rule that every written motion is deemed motions fatally defective.
a litigated motion. A motion to dismiss (Rule 16),
a motion for judgment for the pleadings (Rule
34), and a summary judgment (Rule 35), are MOTIONS FOR BILL OF PARTICULARS
litigated motions. (RULE 12)

An ex parte motion is one which does not PURPOSE AND WHEN APPLIED FOR
require that the parties be heard, and which the
court may act upon without prejudicing the rights The purpose of the motion is to seek an order
of the other party. This kind of motion is not from the court directing the pleader to submit a
covered by the hearing requirement of the Rules bill of particulars which avers matters with
(Sec. 2). An example of an ex parte motion is that sufficient definitiveness or particularity to enable
one filed by the plaintiff pursuant to Sec. 1, Rule the movant to prepare his responsive pleading
18, in which he moves promptly that the case be (Sec. 1, Rule 12), not to enable the movant to
 50

prepare for trial. The latter purpose is the Rule 12). The bill of particulars submitted
ultimate objective of the discovery procedures becomes part of the pleading for which it is
from Rules 23 to 29 and ever of a pre-trial under intended (Sec. 6, Rule 12).
Rule 18.
If the order to file a bill of particulars is not
In other words, the function of a bill of particulars obeyed, or in case of insufficient compliance
is to clarify the allegations in the pleading so an therewith, the court may:
adverse party may be informed with certainty of a) order the striking out of the pleading; or
the exact character of a cause of action or a b) the portions thereof to which the order
defense. Without the clarifications sought by the was directed; or
motion, the movant may be deprived of the c) make such other order as it deems just
opportunity to submit an intelligent responsive (Sec. 4).
pleading.
EFFECT ON THE PERIOD TO FILE A
This is to avert the danger where the opposing RESPONSIVE PLEADING
party will find difficulty in squarely meeting the
issues raised against him and plead the A motion for bill of particulars is not a pleading
corresponding defenses which if not timely raised hence, not a responsive pleading. Whether or not
in the answer will be deemed waived. his motion is granted, the movant may file his
responsive pleading. When he files a motion for
A motion for a bill of particulars is to be filed BOP, the period to file the responsive pleading is
before, not after responding to a pleading (Sec. 1, stayed or interrupted.
Rule 12). Thus, where the motion for bill of
particulars is directed to a complaint, the motion After service of the bill of particulars upon him or
should be filed within fifteen (15) days after after notice of the denial of his motion, he may
service of summons. If the motion is directed to a file his responsive pleading within the period to
counterclaim, then the same must be filed within which he is entitled to at the time the motion for
ten (10) days from service of the counterclaim bill of particulars is filed. If he has still eleven (11)
which is the period provided for by Sec. 4, Rule days to file his pleading at the time the motion
11 to answer a counterclaim. for BOP is filed, then he has the same number of
days to file his responsive pleading from the
In case of a reply to which no responsive pleading service upon him of the BOP.
is provided for by the Rules, the motion for bill of
particulars must be filed within ten (10) days of If the motion is denied, then he has the same
the service of said reply (Sec. 1, Rule 12). number of days within which to file his pleading
counted from his receipt of the notice of the order
ACTIONS OF THE COURT denying his motion. If the movant has less than
five (5) days to file his responsive pleading after
Upon receipt of the motion which the clerk of service of the bill of particulars or after notice of
court must immediately bring to the attention of the denial of his motion, he nevertheless has five
the court, the latter has three possible options, (5) days within which to file his responsive
namely: pleading. (Sec.5, Rule 12).
1) to deny the motion outright,
2) to grant the motion outright or A seasonable motion for a bill of particulars
3) to hold a hearing on the motion. interrupts the period within which to answer. After
service of the bill of particulars or of a more
COMPLIANCE WITH THE ORDER AND definite pleading, or after notice of denial of his
EFFECT OF NON-COMPLIANCE motion, the moving party shall have the same
time to serve his responsive pleading, if any is
If a motion for bill of particulars is granted, the permitted by the rules, as that to which he was
court shall order the pleader to submit a bill of entitled at the time of serving his motion, but no
particulars to the pleading to which the motion is less than five (5) days in any event.
directed. The compliance shall be effected within
ten (10) days from notice of the order, or within MOTION TO DISMISS (RULE 16)
the period fixed by the court (Sec. 3, Rule 12).

In complying with the order, the pleader may file A motion to dismiss is not a pleading. It is
the bill of particulars either in a separate pleading merely a motion. It is an application for relief
or in the form or an amended pleading (Sec. 3, other than by a pleading (Sec. 1, Rule 15).
 51

The pleadings allowed under the Rules are: defer the resolution of the motion for the reason
a) complaint, (b) answer, (c) that the ground relied upon is not indubitable. In
counterclaim, (d) cross-claim, (e) third every case, the resolution shall state clearly and
(fourth, etc.) party complaint, (f) distinctly the reasons therefor (Sec. 3).
complaint in intervention (Sec. 2, Rule
6), and reply (Sec. 10, Rule 6). A REMEDIES OF PLAINTIFF WHEN THE
motion is not one of those specifically COMPLAINT IS DISMISSED
designated as a pleading.
Failure to state a cause of action Where the dismissal is final but is without
prejudice (interlocutory), the plaintiff may simply
GROUNDS re-file the action depending upon the ground for
the dismissal of the action. For instance, if the
Under Sec. 1, Rule 16, a motion to dismiss may ground for dismissal was anchored on improper
be filed on any of the following grounds: venue, the plaintiff may file the action in the
a) Lack of jurisdiction over the person of the proper venue.
defending party;
b) Lack of jurisdiction over the subject matter Where the dismissal is final and it bars the re-
of the claim; filing of the case, he may appeal from the order
c) The venue is improperly laid; of dismissal where the ground relied upon is one
d) The plaintiff has no legal capacity to sue; which bars the refiling of the complaint like res
e) There is another action pending between judicata, prescription, extinguishment of the
the same parties and for the same cause obligation or violation of the statute of frauds
(lis pendens); (Sec. 5, Rule 16).
f) The cause of action is barred by a prior
judgment (res judicata) or by the statute Since the complaint cannot be refiled, the
of limitations (prescription); dismissal is with prejudice. Under Sec. 1[h], Rule
g) The pleading asserting the claim 41, it is an order dismissing an action without
states no cause of action; prejudice which cannot be appealed from.
h) The claim or demand has been paid, Conversely, where the dismissal is with prejudice,
waived, abandoned, or otherwise an appeal from the order of dismissal is not
extinguished; precluded.
i) The claim on which the action is founded
is unenforceable under the provisions of Where the dismissal is without prejudice and the
the statute of frauds; and court gravely abused its discretion in doing so,
j) A condition precedent for filing the action the plaintiff may resort to certiorari (Sec. 1, Rule
has not been complied with. 41).

The language of the rule, particularly on the REMEDIES OF THE DEFENDANT WHEN THE
relation of the words abandoned and otherwise MOTION IS DENIED
extinguished to the phrase claim or demand
deemed set forth in the plaintiffs pleading is 1) File answer within the balance of the
broad enough to include within its ambit the period prescribed by Rule 11 to which he was
defense of bar by laches. entitled at the time of serving his motion, but
not less than five (5) days in any event (Sec.
However, when a party moves for the dismissal of 4, Rule 16).
the complaint based on laches, the trial court As a rule, the filing of an answer, going
must set a hearing on the motion where the through the usual trial process, and
parties shall submit not only their arguments on the filing of a timely appeal from an
the questions of law but also their evidence on adverse judgment are the proper
the questions of fact involved. Thus, being factual remedies against a denial of a motion
in nature, the elements of laches must be proved to dismiss.
or disproved through the presentation of The filing of an appeal from an order
evidence by the parties. denying a motion to dismiss is not the
remedy prescribed by existing rules.
RESOLUTION OF MOTION The order of denial, being interlocutory
is not appealable (Sec 1[c], Rule 4).
After the hearing, the court may dismiss the
action or claim, deny the motion, or order the 2) Civil action under Rule 65 (Certiorari)
amendment of the pleading. The court shall not
 52

In order to justify the grant of the When the complaint is dismissed on the grounds
extraordinary remedy of certiorari, the of:
must be a showing that the denial of a)prior judgment
the motion was tainted with grave b)by the statute of limitations
abuse of discretion amounting to lack c)payment, waiver, abandonment or
of jurisdiction. Without such showing, extinguishment of the claim
Rule 65 cannot be availed of as a d) unenforceability of the cause of action
remedy. under the statute of frauds
The general rule is that the denial of a the dismissal shall bar the refiling of
motion to dismiss cannot be the same action or claim, but this is
questioned in a special civil action for without prejudice to the right of the
certiorari which is a remedy designed other party to appeal from the order of
to correct errors of jurisdiction and not dismissal because such dismissal is a
errors of judgment. Neither can a final order, not merely interlocutory
denial of a motion to dismiss be the (Sec. 5).
subject of an appeal unless and until a
final judgment or order is rendered. WHEN GROUNDS PLEADED AS
A writ of certiorari is not intended to AFFIRMATIVE DEFENSES
correct every controversial
interlocutory ruling. It is resorted to If no motion to dismiss has been filed, any of the
only to correct a grave abuse of grounds provided for dismissal may be pleaded
discretion or a whimsical exercise of as an affirmative defense in the answer and, in
judgment equivalent to lack of the discretion of the court, a preliminary hearing
jurisdiction. Its function is limited to may be had thereon as if a motion to dismiss has
keeping an inferior court within its been filed (Sec. 6, Rule 16).
jurisdiction and to relieve persons from
arbitrary acts, acts which courts or Implied under Sec. 6, Rule 16 is that the grounds
judges have no power or authority in for a motion to dismiss are not waived even if the
law to perform. It is not designed to defendant fails to file a motion to dismiss
correct erroneous findings and because he may still avail of the defenses under
conclusions made by the courts. Rule 16 as affirmative defenses in his answer.

3) File an appeal As a rule, a preliminary hearing is not authorized

This remedy is appropriate in the when a motion to dismiss has been filed. An
instances where the defendant is barred exception previously carved out as if the trial
from refiling the same action of claim if court had not categorically resolved the motion to
the dismissal is based on the following dismiss. Another exception would be justified
grounds: under the liberal construction rule as when it is
a) The cause of action is barred by a evident that the action is barred by res judicata. A
prior judgment strict application of Sec. 6 would accordingly lead
b) The cause of action is barred by to absurdity when an obviously barred complaint
the statute of limitations continues to be litigated. The denial of a motion
c) The claim or demand has been to dismiss does not preclude any future reliance
paid, waived, abandoned or on the grounds relied thereupon.
otherwise extinguished
d) The claim on which the action is BAR BY DISMISSAL
founded is unenforceable under the
provisions of the statute of frauds. Res judicata as a ground for dismissal is based on
two grounds, namely:
4) The denial of a motion to dismiss is 1) public policy and necessity, which makes
interlocutory, hence, the remedy is to file an it to the interest of the State that there
answer, proceed to trial, and await judgment should be an end to litigation (republicae
before interposing an appeal. ut sit litium); and
The denial should be raised as an error 2) the hardship on the individual of being
of the trial court on appeal. vexed twice for the same cause (nemo
debet bis vexari et eadem causa).
EFFECT OF DISMISSAL OF COMPLAINT ON
CERTAIN GROUNDS Accordingly, courts will simply refuse to reopen
what has been decided. They will not allow the
 53

same parties or their privies to litigate anew a (answer) or else he may declared in
question once it has been considered and default and if granted, plaintiff may appeal
decided with finality. Litigations must end and or if subsequent case is not barred, he
terminate sometime and somewhere. The may re-file the case.
effective and efficient administration of justice d) In a demurrer, if denied, the defendant
requires that once a judgment has become final, may present his evidence and if granted,
the prevailing party should not be deprived of the plaintiff appeals and the order of dismissal
fruits of the verdict by subsequent suits on the is reversed, the defendant loses his right
same issues filed by the same parties. to present evidence.

Res judicata comprehends two distinct Rule 17 is based on allegations; while Rule 33 is
concepts: based on evidence
a) bar by a former judgment
bars the prosecution of a second
DISMISSAL OF ACTIONS (Rule 17)
action upon the same claim, demand
or cause of action.
b) conclusiveness of judgment 1) DISMISSAL UPON NOTICE BY PLAINTIFF
a fact or question which was in issue in
a former suit and was there judicially At any time before the service of an
passed upon and determined by a answer or the service of a motion for
court of competent jurisdiction, is summary judgment, a complaint may be
conclusively settled by the judgment dismissed by the plaintiff by filing a notice
therein as far as the parties to that of dismissal. Upon the filing of the notice
action and persons in privity with them of dismissal, the court shall issue an order
are concerned and cannot be again confirming the dismissal (Sec. 1, Rule 17).
litigated in any future action between This dismissal shall be without prejudice to
such parties or their privies, in the the re-filing of the complaint, except
same court or any other court of when:
concurrent jurisdiction on either the 1) The notice of dismissal provides
same or different cause of action, that the dismissal is with prejudice;
while the judgment remains or
unreversed by proper authority. 2) The plaintiff has previously
dismissed the same case in a court
DISTINGUISHED FROM DEMURRER TO of competent jurisdiction.
EVIDENCE (RULE 33)
It is not the order confirming the dismissal
Demurrer to evidence is a motion to dismiss filed which operates to dismiss the complaint.
by the defendant after the plaintiff had rested his As the name of the order implies, said
case on the ground of insufficiency of evidence. It order merely confirms a dismissal already
may be filed after the plaintiff has completed the effected by the filing of the notice of
presentation of his evidence. It is an aid or dismissal. The court does not have to
instrument for the expeditious termination of an approve the dismissal because it has no
action similar to a motion to dismiss, which the discretion on the matter. Before an answer
court or tribunal may either grant or deny. or a motion for summary judgment has
been served upon the plaintiff, the
Distinctions: dismissal by the plaintiff by the filing of
a) A motion to dismiss should be filed within the notice is a matter of right. The
the time for but prior to the filing of the dismissal occurs as of the date of the
answer of the defending party to the notice is filed by the plaintiff and not the
pleading asserting the claim against him; date the court issues the order confirming
a demurrer to evidence may be filed only the dismissal.
after the plaintiff has completed the
presentation of his evidence. The dismissal as a matter of right ceases
b) A motion to dismiss is anchored on when an answer or a motion for summary
preliminary objections; a demurrer is judgment is served on the plaintiff and not
anchored on one groundinsufficiency of when the answer or the motion is filed
evidence; and with the court. Thus, if a notice of
c) If a motion to dismiss is denied, the dismissal is filed by the plaintiff even after
defendant may file his responsive pleading an answer has been filed in court but
 54

before the responsive pleading has been

served on the plaintiff, the notice of DISMISSAL DUE TO THE FAULT OF
dismissal is still a matter of right. PLAINTIFF

TWO-DISMISSAL RULE A complaint may be dismissed by the court motu

proprio or upon a motion filed by the defendant.
The two-dismissal rule applies when the plaintiff The dismissal is this case will be through reasons
has: attributed to his fault.
a) twice dismissed actions;
b) based on or including the same claim; and Sec. 2, Rule 17 provides the following grounds for
c) in a court of competent jurisdiction. dismissal:
The second notice of dismissal will bar a) Failure of the plaintiff, without justifiable
the refiling of the action because it will reasons, to appear on the date on the date
operate as an adjudication of the claim of the presentation of his evidence in
upon the merits. chief;
b) Failure of the plaintiff to prosecute his
2) DISMISSAL UPON MOTION BY PLAINTIFF action for an unreasonable length of time;
c) Failure of the plaintiff to comply with the
Once either an answer or motion for Rules of Court;
summary judgment has been served on d) Failure of the plaintiff to obey any order of
the plaintiff, the dismissal is no longer a the court;
matter of right and will require the filing of e) Failure to appear at the trial; or
a motion to dismiss, not a mere notice of f) Lack of jurisdiction.
dismissal.
The dismissal shall have the effect of an
The motion to dismiss will now be subject adjudication upon the merits and is thus with
to the approval of the court which will prejudice to the re-filing of the action, unless the
decide on the motion upon such terms and court declares otherwise.
conditions as are just (Sec. 2, Rule 17)
unless otherwise specified in the order, DISMISSAL OF COUNTERCLAIM, CROSS-
the dismissal shall be without prejudice. . CLAIM OR THIRD-PARTY COMPLAINT
The dismissal under Sec. 2 is no longer a
matter of right on the part of the plaintiff The rule on the dismissal of a complaint applies
but a matter of discretion upon the court. to the dismissal of any counterclaim, cross-claim,
or third-party claim.
EFFECT OF DISMISSAL UPON EXISTING
COUNTERCLAIM A voluntary dismissal by the claimant alone by
notice pursuant to Sec. 1, Rule 17 shall be made
If a counterclaim has already been pleaded by before a responsive pleading or a motion for
the defendant prior to the service upon him of summary judgment is served or, if there is none,
the plaintiffs motion to dismiss, and the court before the introduction of evidence at the trial or
grants said motion to dismiss, the dismissal shall hearing (Sec. 4).
be limited to the complaint (Sec. 2, Rule 17).
PRE-TRIAL (Rule18)
The dismissal of the complaint does not carry
with it the dismissal of the counterclaim, whether
it is a compulsory or a permissive counterclaim CONCEPT OF PRE-TRIAL
because the rule makes no distinction. The
defendant, if he so desires may prosecute his Pre-trial is a mandatory conference and personal
counterclaim either in a separate action or in the confrontation before the judge between the
same action. Should he choose to have his parties and their respective counsel.
counterclaim resolved in the same action, he
must notify the court of his preference within It is conducted after the last pleading has been
fifteen (15) days from the notice of the plaintiffs served and filed, it shall be the duty of the
motion to dismiss. Should he opt to prosecute his plaintiff to promptly move ex parte that the case
counterclaim in a separate action, the court be set for pre-trial (within 5 days from the last
should render the corresponding order granting pleading has been filed).
and reserving his right to prosecute his claim in a
separate complaint. NATURE AND PURPOSE
 55

If the plaintiff failed to move for pre-trial, the

The conduct of a pre-trial is mandatory. Pre-trial clerk of court shall do so.
is a procedural device intended to clarify and limit
the basic issues between the parties. It thus APPEARANCE OF PARTIES; EFFECT OF
paves the way for a less cluttered trial and FAILURE TO APPEAR
resolution of the case. Its main objective is to
simplify, abbreviate and expedite trial, or totally It shall be the duty of both the parties and their
dispense with it. counsels to appear at the pre-trial (Sec. 4, Rule
18).
It is a basic precept that the parties are bound to
honor the stipulations made during the pre-trial. The failure of the plaintiff to appear shall be
cause for the dismissal of the action. This
The court shall consider the following maters in dismissal shall be with prejudice except when the
the pre-trial: court orders otherwise (Sec. 5, Rule 18). Since
1) The possibility of an amicable settlement the dismissal of the action shall be with prejudice,
or a submission to alternative modes of unless otherwise provided, the same shall have
dispute resolution; the effect of an adjudication on the merits thus,
2) Simplification of issues; final. The remedy of the plaintiff is to appeal from
3) Necessity or desirability of amendments to the order of dismissal. An order dismissing an
the pleadings; action with prejudice is appealable. Under the
4) Possibility of obtaining stipulations or Rules, it is only when the order of dismissal is
admissions of facts and of documents to without prejudice, that appeal cannot be availed
avoid unnecessary proof; of (Sec. 1[h], Rule 41). Since appeal is available,
5) Limitation of the number of witnesses; certiorari is not the remedy because the
6) Advisability of a preliminary reference of application of a petition for certiorari under Rule
issues to a commissioner; 65 is conditioned upon the absence of appeal or
7) Propriety of rendering judgment on the any plain, speedy and adequate remedy (Sec. 1,
pleadings, or summary judgment, or of Rule 65).
dismissing the action should a valid
ground therefor be found to exist; The failure of the defendant to appear shall
8) Advisability or necessity of suspending the be cause to allow the plaintiff to present his
proceedings; and evidence ex parte and for the court to
9) Other matters as may aid in the prompt render judgment on the basis of the
disposition of the action (Sec. 2, Rule 18). evidence presented by the plaintiff (Sec. 5,
Rule 18). The order of the court allowing the
NOTICE OF PRE-TRIAL plaintiff to present his evidence ex parte does not
dispose of the case with finality. The order is
The notice of pre-trial shall be served on the therefore, merely interlocutory; hence, not
counsel of the party if the latter is represented by appealable. Under Sec. 1(c) of Rule 41, no appeal
counsel. Otherwise, the notice shall be served on may be taken from an interlocutory order. The
the party himself. The counsel is charged with the defendant who feels aggrieved by the order may
duty of notifying his client of the date, time and move for the reconsideration of the order and if
place of the pre-trial (Sec. 3, Rule 18). the denial is tainted with grave abuse of
discretion, he may file a petition for certiorari.
Notice of pre-trial is so important that it would be
grave abuse of discretion for the court for PRE-TRIAL BRIEF; EFFECT OF FAILURE TO
example, to allow the plaintiff to present his FILE
evidence ex parte for failure of the defendant to
appear before the pre-trial who did not receive The parties shall file with the court their
through his counsel a notice of pre-trial. respective pre-trial briefs which shall be received
at least three (3) days before the date of the pre-
In one case, the SC said that there is no legal trial. This pre-trial brief shall be served on the
basis for a court to consider a party notified of adverse party (Sec. 6, Rule 18).
the pre-trial and to consider that there is no
longer a need to send notice of pre-trial merely The pre-trial brief shall contain the following
because it was his counsel who suggested the matters:
date of pre-trial. 1) A statement of their willingness to enter
into an amicable settlement or alternative
 56

modes of dispute resolution, indicating the important objective. The pre-trial in a criminal
desired terms thereof; case does not include the considering of the
2) A summary of admitted facts and possibility of amicable settlement of criminal
proposed stipulation of facts; liability as one of its purposes.
3) The issues to be tried or resolved;
4) The documents or exhibits to be In a civil case, the agreements and admissions
presented, stating the purposes thereof; made in the pre-trial are not required to be
5) A manifestation of their having availed of signed by the parties and their counsels. They are
or their intention to avail of discovery to be contained in the record of pre-trial and the
procedures or referral to commissioners; pre-trial order (Sec. 7, Rule 18). In a criminal
and case, all agreements or admissions made or
6) The number and names of the witnesses, entered during the pre-trial conference shall be
and the substance of their respective reduced in writing and signed by the accused and
testimonies (Sec.6, Rule 18). counsel; otherwise, they cannot be used against
the accuse (Sec. 2, Rule 118).
Failure to file the pre-trial brief shall have the
same effect as failure to appear at the pre- The sanctions for non-appearance in a pre-trial
trial. are imposed upon the plaintiff or the defendant in
a. If it is the plaintiff who fails to file a a civil case. The sanctions in a criminal case are
pre-trial brief, such failure shall be imposed upon the counsel for the accused or the
cause for dismissal of the action. prosecutor.
b. If it is the defendant who fails to do so,
such failure shall be cause to allow the CIVIL PRE-TRIAL CRIMINAL PRE-TRIAL
plaintiff to present his evidence ex
parte. Mandatory Mandatory
A pre-trial brief is not required in a criminal Presence of defendant Accused need not be
case. and counsel present, but his
mandatory counsel must be
DISTINCTION BETWEEN PRE-TRIAL IN CIVIL present, otherwise he
CASE AND PRE-TRIAL IN CRIMINAL CASE may be sanctioned
Amicable settlement is Amicable settlement is
The pre-trial in a civil case is set when the discussed not discussed, unless
plaintiff moves ex parte to set the case for pre- the criminal case is
trial (Sec.1, Rule 18). The pre-trial in criminal covered by summary
case is ordered by the court and no motion to set procedure
the case for pre-trial is required from either the Agreement included in Agreements or
prosecution or the defense (Sec. 1, Rule 118). pre-trial order need admissions must be
not be in writing written and signed by
The motion to set the case for pre-trial in a civil the accused and
case is made after the last pleading has been counsel to be
served and. In a criminal case, the pre-trial is admissible against
ordered by the court after arraignment and within him.
thirty (30) days from the date the court acquires
jurisdiction over the person of the accused.

The pre-trial in a civil case considers the

possibility of an amicable settlement as an
then the trial court may confirm the award
made by the arbitration panel.
ALTERNATIVE DISPUTE RESOLUTION (ADR)
A party has several judicial remedies available at
1) If the case has already filed a complaint its disposal after the Arbitration Committee
with the trial court without prior recourse denied its Motion for Reconsideration:
to arbitration, the proper procedure to 1) It may petition the proper RTC to issue an
enable an arbitration panel to resolve the order vacating the award on the grounds
parties dispute pursuant to the contract is provided for under Sec. 24 of the
for the trial court to stay the proceedings. Arbitration Law;
After the arbitration proceeding has 2) File a petition for review under Rule 43
already been pursued and completed, with the Court of Appeals on questions of
 57

fact, of law, or mixed questions of fact and INTERVENTION

law (Sec. 41, ADR);
3) File a petition for certiorari under Rule 65 1) The appellate court may exercise sound
on the ground that the Arbitration judicial discretion
Committee acted without or in excess of 2) An indispensable party can intervene even
its jurisdiction or with grave abuse of after the rendition of judgment
discretion amounting to lack or excess of 3) The remedy of the aggrieved party is appeal.
jurisdiction. Mandamus will not lie except in case of grave
abuse of discretion and if there is no other
plain, speedy and adequate remedy.
INTERVENTION (Rule 19)

SUBPOENA (Rule 21)

Intervention is a legal proceeding by which a
person who is not a party to the action is
permitted by the court to become a party by Court cannot issue subpoena absent any action
intervening in a pending action after meeting the
conditions and requirements set by the Rules. Subpoena is a process directed to a person
This third person who intervenes is one who is not requiring him to attend and to testify at the
originally impleaded in the action. hearing or the trial of an action, or at any
investigation conducted under the laws of the
Intervention is merely a collateral or accessory or Philippines, or for taking of his deposition (Sec. 1,
ancillary to the principal action ad not an Rule 21).
independent proceeding. With the final dismissal
of the original action, the complaint in SUBPOENA DUCES TECUM - is a process
intervention can no longer be acted upon. directed to a person requiring him to bring
with him at the hearing or trial of an action
REQUISITES FOR INTERVENTION any books, documents, or other things under
his control.
1) There must be a motion for intervention filed
before rendition of judgment by the trial SUBPOENA AD TESTIFICANDUM is a
court. A motion is necessary because leave of process directed to a person requiring him to
court is required before a person may be attend and testify at the hearing or the trial of
allowed to intervene. the action, or at any investigation conducted
2) The movant must show in his motion that he by the competent authority, or for the taking
has: of his deposition.
a) A legal interest in the matter in litigation,
the success of either of the parties in the SERVICE OF SUBPOENA
action, or against both parties;
b) That the movant is so situated as to be It shall be made in the same manner as personal
adversely affected by a distribution or or substituted service of summons.
other disposition of property in the 1) The original shall be exhibited and a copy
custody of the court or of an officer thereof delivered to the person on whom it
thereof; and is served.
c) That the intervention must not only unduly 2) Tendering to him the fees for one days
delay or prejudice the adjudication of the attendance and the kilometrage allowed
rights of the original parties and that the by the Rules, except that when a
intervenors rights may not be fully subpoena is issued by or on behalf of the
protected in a separate proceeding. Republic, or an officer or agency thereof,
d) The intervenors rights may not be fully the tender need not be made.
protected in a separate proceeding. 3) The service must be made so as to allow
the witness a reasonable time for
TIME TO INTERVENE preparation and travel to the place of
attendance.
The motion to intervene may be filed at any time 4) If the subpoena is duces tecum, the
before the rendition of judgment by the trial court reasonable cost of producing the books,
(Sec. 2, Rule 18). Intervention after trial and documents or things demanded shall also
decision can no longer be permitted. be tendered.

REMEDY FOR THE DENIAL OF MOTION TO

 58

Service of a subpoena shall be made by the

sheriff, by his deputy, or by any other person
MODES OF DISCOVERY (Rules 23 -28)
specially authorized, who is not a party and is not
less than eighteen (18) years of age (Sec. 6, Rule
21). You can use this at any stage of the
proceeding; applicable also in special
COMPELLING ATTENDANCE OF WITNESSES; proceedings
CONTEMPT Written interrogatories to parties is used only
for the purpose of calling the defendant to the
In case of failure of a witness to attend, the court witness stand
or judge issuing the subpoena, upon proof of the
service thereof and of the failure of the witness, MODES OF DISCOVERY
may issue a warrant to the sheriff of the province,
or his deputy, to arrest the witness and bring him 1) Depositions pending action (Rule 23);
before the court or officer where his attendance is 2) Depositions before action or pending
required, and the cost of such warrant and appeal (Rule 24);
seizure of such witness shall be paid by the 3) Interrogatories to parties (Rule 25)
witness if the court issuing it shall determine that 4) Admission by adverse party (Rule 26);
his failure to answer the subpoena was wilful and 5) Production or inspection of documents and
without just cause (Sec. 8). things (Rule 27); and
6) Physical and mental examination of
Failure by any person without adequate cause to persons (Rule 28).
obey a subpoena served upon him shall be
deemed a contempt of the court from which the The importance of the rules of discovery is that
subpoena is issued. If the subpoena was not they shorten the period of litigation and speed up
issued by a court, the disobedience thereto shall adjudication. The evident purpose is to enable
be punished in accordance with the applicable the parties, consistent with recognized principles,
law or Rule (Sec. 9). to obtain the fullest possible knowledge of the
facts and issues before civil trials and thus
Exceptions: prevent said trials from being carried on in the
a) Where the witness resides more than one dark. The rules of discovery serve as (a) devices,
hundred (100) kilometers from his along with the pre-trial hearing under Rule 18, to
residence to the place where he is to narrow and clarify the basis issues between the
testify by the ordinary course of travel parties; and (b) devices for ascertaining the facts
(Viatory Right), or relative to those issues.
b) Where the permission of the court in which
the detained prisoners case is pending The basic purposes of the rules of discovery are:
was not obtained. a) To enable a party to obtain knowledge of
material facts within the knowledge of the
QUASHING OF SUBPOENA adverse party or of third parties through
depositions;
The court may quash a subpoena duces tecum b) To obtain knowledge of material facts or
upon motion promptly made and, in any event, at admissions from the adverse party
or before the time specified therein: through written interrogatories;
a) if it is unreasonable and oppressive, or c) To obtain admissions from the adverse
b) the relevancy of the books, documents or party regarding the genuineness of
things does not appear, or relevant documents or relevant matters of
c) if the person is whose behalf the subpoena fact through requests for admissions;
is issued fails to advance the reasonable d) To inspect relevant documents or objects,
cost of the production thereof. and lands or other property in the
possession and control of the adverse
Subpoena ad testificandum may be quashed party; and
on the ground that the witness is NOT BOUND e) To determine the physical or mental
THEREBY. In either case, the subpoena may be condition of a party when such is in
quashed on the ground that the witness fees and controversy.
kilometrage (within 100 kilometrage unless the
witness maybe cited indirect contempt) allowed
DEPOSITIONS PENDING ACTION (RULE 23);
by the Rules were not tendered when the
DEPOSITIONS BEFORE ACTION OR PENDING
subpoena was served.
 59

was procured by the party offering

APPEAL
the deposition;
c) That the witness is unable to
MEANING OF DEPOSITION attend or testify because of age,
sickness, infirmity, or
A deposition is the taking of the testimony of any imprisonment; or
person, whether he be a party or not, but at the d) That the party offering the
instance of a party to the action. This testimony deposition has been unable to
is taken out of court. It may be either by oral procure the attendance of
examination, or by a written interrogatory (Sec. witnesses by subpoena; or
1, Rule 23). e) When exceptional circumstances
exist (Sec. 4, Rule 23).
USES OF DEPOSITIONS PENDING ACTION
SCOPE OF EXAMINATION
At the trial or upon the hearing of a motion or an
interlocutory proceeding, any part or all of a Unless otherwise ordered by the court as
deposition, so far as admissible under the rules of provided by Sec. 16 or 18, the deponent may be
evidence, may be used against any party who examined regarding:
was present or represented at the taking of the a) any matter not privileged
deposition or who had due notice thereof. b) which is relevant to the pending action,
whether relating to the claim or defense of
A deposition may be sought for use in a future any other party, including the existence,
action (Rule 24), during a pending action (Rule description, nature, custody, condition,
23), or for use in a pending appeal (Rule 24). and location of any books, documents, or
other tangible things and the identity and
deposition benne esse taken for use location of persons having knowledge of
during a pending action (Rule 23). relevant facts
deposition in perpetuam rei c) Not restricted by a protective order.
memoriam taken to perpetuate a
testimony for use in future proceedings as WHEN MAY OBJECTIONS TO ADMISSIBILITY
when it is sought before the existence of BE MADE
an action, or for cases on appeal.
Objection may be made at the trial or hearing to
Any or all of the deposition, so far as admissible receiving in evidence any deposition or part
under the rules of evidence, may be used (a) thereof for any reason which would require the
against any party who was present or exclusion of the evidence if the witness were then
represented at the taking of the deposition, or (b) present and testifying (Sec. 6).
against one who had due notice of the deposition
(Sec. 4, Rule 23). WHEN MAY TAKING OF DEPOSITION BE
TERMINATED OR ITS SCOPE LIMITED
The deposition may be used for the following
purposes: At any time during the taking of the deposition,
1) For contradicting or impeaching the any party or deponent may ask for the
testimony of the deponent as a witness; termination or limiting of the scope of the
2) The deposition of a party or of any one deposition upon showing:
who at the time of taking the deposition 1) that the examination is being conducted in
was an officer, director, or managing bad faith; or
agent of a public or private corporation, 2) that it is conducted in such manner as
partnership, or association which is a reasonably to annoy, embarrass, or
party may be used by an adverse party for oppress the deponent or party.
any purpose;
3) For any purpose by any party, where the WRITTEN INTERROGATORIES TO ADVERSE
deponent is a witness if the court finds PARTIES
that:
a) The witness is dead; CONSEQUENCES OF REFUSAL TO ANSWER
b) The witness resides more than 100 The party who fails to serve his answer to written
kilometers from the place of trial or interrogatories may be the subject of a judgment
hearing, or is out of the Philippines, by default
unless it appears that his absence
 60

EFFECT OF FAILURE TO SERVE WRITTEN Each of the matters of which an admission is

INTERROGATORIES requested (facts or documents) shall be deemed
A party not served with written interrogatories admitted unless within a period designated in the
may not be compelled by the adverse party to request which shall not be less than 15 days after
give testimony in open court, or to give service thereof, or within such further time as the
deposition pending appeal, unless allowed by the court may allow on motion, the party to whom
court or to prevent a failure of justice (Sec. 6, the request is directed files and serves upon the
Rule 25). party requesting the admission a sworn
statement either denying specifically the matter
This provision encourages the use of written of which an admission is requested or setting
interrogatories although a party is not compelled forth in detail the reason why he cannot truthfully
to use this discovery procedure, the rule imposes either admit or deny those matters.
sanctions for his failure to serve written
interrogatories by depriving him of the privilege EFFECT OF ADMISSION
to call the adverse party as a witness or to give a
deposition pending appeal. Any admission made by a party pursuant to such
request is for the purpose of the pending action
only and shall not constitute an admission by him
REQUEST FOR ADMISSION (RULE 26)
for any other purpose nor may the same be used
against him in any other proceeding (Sec. 3).
A party, although not compelled by the Rules, is
advised to file and serve a written request for EFFECT OF FAILURE TO FILE AND SERVE
admission on the adverse party of those material REQUEST FOR ADMISSION
and relevant facts at issue and actionable
document (as a result, you need not authenticate A party who fails to file and serve a request for
it) which are, or ought to be, within the personal admission on the adverse party of material and
knowledge of said adverse party. relevant facts at issue which are, or ought to be,
within the personal knowledge of the latter, shall
The party who fails to file and serve the request not be permitted to present evidence on such
shall not be permitted to present evidence on facts (Sec. 5).
such facts (Sec. 5, Rule 26).

IMPLIED ADMISSION BY ADVERSE PARTY PRODUCTION OR INSPECTION OF

DOCUMENTS OR THINGS (RULE 27)
Each of the matters of which an admission is
requested shall be deemed admitted unless, This is prelude to the presentation of
within a period designated in the request, which secondary evidence.
shall not be less than fifteen (15) days after
service thereof, or within such further time as the This Rule applies only to a pending action and
court may allow on motion, the party to whom the documents or things subject of the motion
the request is directed files and serves upon the should not be privileged and must be those
party requesting the admission a sworn within the possession, control or custody of a
statement either denying specifically the matters party. The petition must be sufficiently
of which an admission is requested or setting described and identified as well as material to
forth in detail the reasons why he cannot any matter involved in the pending action.
truthfully either admit or deny those matters.

Objections to any request for admission shall be PHYSICAL AND MENTAL EXAMINATION OF
submitted to the court by the party requested PERSONS (RULE 28)
within the period for and prior to the filing of his
sworn statement as contemplated in the This mode of discovery applies to an action in
preceding paragraph and his compliance which the mental or physical condition of a party
therewith shall be deferred until such objections is in controversy.
are resolved, which resolution shall be made as
early as practicable. Requisites to obtain Order for Examination:
a) A MOTION must be filed for the physical
CONSEQUENCES OF FAILURE TO ANSWER and mental examination;
REQUEST FOR ADMISSION b) The motion showing Good Cause for the
examination;
 61

c) NOTICE to the party to be examined and 1) He has to furnish the other party a copy of
to all the other parties any previous or subsequent examination
d) The motion shall SPECIFY the time, place, of the same physical and mental
manner, condition and scope of the condition; and
examination and the person or persons by 2) He waives any privilege he may have in
whom it is made. that action or any other involving the
same controversy regarding the testimony
Waiver of privilege. Where the person of any other person who has so examined
examined requests and obtains a report or the him or may thereafter examine him.
results of the examination, the consequences are:

CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY (RULE 29)

REFUSAL TO COMPLY
WITH MODES OF SANCTIONS
DISCOVERY
The court may, upon application, compel a refusing deponent an
Refusal to answer answer.
any question If granted and refusal to answer is without substantial justification,
the court may require the refusing party to pay the proponent the
amount of the reasonable expenses incurred in obtaining the order,
including attorney's fees.
If denied and filed without substantial justification, the court may
require the proponent to pay to the refusing party or deponent the
amount of the reasonable expenses incurred in opposing the
application, including attorney's fees.
A refusal to answer after being directed by the court to do so may
be considered a contempt of that court.
Refusal to be Sworn Cite the disobedient deponent in Contempt of court
The court may make the following orders:
1) An order that the matters regarding which the questions were
asked, or the character or description of the thing or land, or
the contents of the paper, or the physical or mental condition of
the party, or any other designated facts shall be taken to be
established for the purposes of the action in accordance with
Refusal to answer the claim of the party obtaining the order;
designated questions 2) An order refusing to allow the disobedient party to support or
or refusal to produce oppose designated claims or defenses or prohibiting him from
documents or to introducing in evidence designated documents or things or
submit to physical or items of testimony, or from introducing evidence of physical or
mental examination mental condition;
3) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or rendering a
judgment by default against the disobedient party; and
4) In lieu of any of the foregoing orders or in addition thereto, an
order directing the arrest of any party or agent of a party for
disobeying any of such orders except an order to submit to a
physical or mental examination (Sec. 3, Rule 29).

Refusal to admit The court may, upon application, issue an order to pay the proponent
actionable document the amount of the reasonable expenses incurred in obtaining the
order, including attorney's fees.

The court, on motion and notice, may:

Failure of party to 1) may strike out all or any part of any pleading of that party;
attend or serve 2) dismiss the action or proceeding or any part thereof;
answers 3) enter a judgment by default against disobedient party;
4) order to pay reasonable expenses incurred by the other,
 62

including attorney's fees.

b. that the character of his illness is such

TRIAL (Rule 30)
as to render his non-attendance
excusable (Sec. 4).
A trial is the judicial process of investigating and
determining the legal controversies, starting with AGREED STATEMENTS OF FACTS
the production of evidence by the plaintiff and
ending with his closing arguments. The parties to any action may agree in writing
upon the facts involved in litigation d submit the
ADJOURNMENTS AND POSTPONEMENTS case for judgment on the facts agreed upon,
without the introduction of evidence. No trial shall
The general rule is that a court may adjourn a thus be held.
trial from day to day, and to any stated time, as
the expeditious and convenient transaction of If the parties agree to only some facts in issue,
business may require (Sec. 2). trial shall be held as to the disputed facts in such
order as the court shall prescribe.
However, the court has no power to adjourn a
trial for a period longer than one month from The agreed statement of facts is conclusive on
each adjournment, nor more than three (3) the parties, as well as on the court. Neither of the
months in all, except when authorized in writing parties may withdraw from the agreement, nor
by the Court Administrator. may the court ignore the same.

A motion for postponement should not be filed on ORDER OF TRIAL

the last hour especially when there is no reason
why it could not have been presented earlier. Subject to the provisions of Sec. 2, Rule 31
(Separate trials), and unless the court for special
Postponement is not a matter of right. It is reasons otherwise directs, the trial shall be
addressed to the sound discretion of the court. limited to the issues stated in the pre-trial order
and shall proceed as follows:
REQUISITES OF MOTION TO POSTPONE 1) The plaintiff shall adduce evidence in
TRIAL FOR ABSENCE OF EVIDENCE support of his complaint;
2) The defendant shall then adduce evidence
1) A motion for postponement stating the ground in support of his defense, counterclaim,
relied upon must be filed; cross-claim and third party complaint;
2) The motion must be supported by an affidavit 3) The third party defendant, if any, shall
or sworn certification showing: adduce evidence of his defense,
a. the materiality or relevancy of the counterclaim, cross-claim and fourth-party
evidence; and complaint;
b. that due diligence has been used to 4) The fourth party, and so forth, if any, shall
procure it (Sec. 3). adduce evidence of the material facts
3) If the adverse party admits the facts given in pleaded by them;
evidence, the trial shall not be postponed 5) The parties against whom any
even if he reserves the right to object to the counterclaim or cross-claim has been
admissibility of the evidence. pleaded, shall adduce evidence in support
of their defense, in the order to be
REQUISITES OF MOTION TO POSTPONE prescribed by the court;
TRIAL FOR ILLNESS OF PARTY OR COUNSEL 6) The parties may then respectively adduce
rebutting evidence only, unless the court,
1) A motion for postponement stating the ground for good reasons and in the furtherance of
relied upon must be filed; justice, permits them to adduce evidence
2) The motion must be supported by an affidavit upon their original case; and
or sworn certification showing: 7) Upon admission of the evidence, the case
a. that the presence of the party or shall be deemed submitted for decision,
counsel at the trial is indispensable; unless the court directs the parties to
and argue or to submit their respective
memoranda or any further pleadings.
 63

If several defendants or third party defendants

and so forth having separate defenses appear by As a general rule, the judge shall personally
different counsel, the court shall determine the receive the evidence to be adduced by the
relative order of presentation of their evidence parties. However, the reception of evidence may
(Sec. 5). be delegated under the following conditions:
1) The delegation may be made only in
REVERSAL OF ORDER default or ex parte hearings, and in any
case where the parties agree in writing;
When the accused admits the act or omission 2) The delegation may be made only by the
charged in the complaint or information but clerk of court who is a member of the bar;
interposes a lawful defense, the order of trial may 3) Said clerk of court shall have no power to
be modified (Sec. 11, Rule 119). rule on of evidence objections to any
question or to the admission of exhibits;
Since the defendant admits the plaintiffs claim and
but seeks to avoid liability based on his 4) He shall submit his report and the
affirmative defense, he shall proceed first to transcripts of the proceedings, together
prove his exemption. with the objections to be resolved by the
court, within ten (10) days from
termination of the hearing.
CONSOLIDATION OR SEVERANCE OF
HEARING OR TRIAL (RULE 31)
TRIAL BY COMMISSIONERS (RULE 32)
Consolidation When actions involving a
common question of law OR facts are pending Commissioner includes a referee, an auditor and
before the court, it may order a joint hearing or an examiner (Sec. 1)
trial of any or all the matters in issue in the
actions; it may order all the actions consolidated; REFERENCE BY CONSENT
and it may make such orders concerning
proceedings therein as may tend to avoid By written consent of both parties, the court may
unnecessary costs or delay (Sec. 1). order any or all of the issues in a case to be
referred to a commissioner to be agreed upon by
Modes of consolidating cases: the parties or to be appointed by the court.
a) By recasting the cases already instituted
reshaping of the case by amending the REFERENCE ORDERED ON MOTION
pleading and dismissing some cases and
retaining only one case. There must be When the parties do not consent, the court may,
joinder of causes of action and of parties; upon the application of either or on its own
b) By consolidation proper or by motion, direct a reference to a commissioner in
consolidating the existing cases it is a the following cases:
joint trial with a joint decision, the cases 1) When the trial of an issue of fact
retaining their original docket numbers; requires the examination of a LONG
and ACCOUNT on either side, in which case
c) By test-case method by hearing only the the commissioner may be directed to
principal case and suspending the hearing hear and report upon the whole issue
on the other cases until judgement has or any specific question involved
been rendered in the principal case. The therein;
cases retain their original docket numbers. 2) When the taking of an account is
necessary for the information of the
Severance (Separate) Trials. The court, in court before judgment, or for carrying
furtherance of convenience or to avoid prejudice, a judgment or order into effect;
may order a separate trial of any claim, cross- 3) When a question of fact, other than
claim, counterclaim, or third party complaint, or upon the pleadings, arises upon
of any separate issue or of any number of claims, motion or otherwise, in any stage of a
cross-claims, counterclaim, third party complaints case, or for carrying a judgment or
or issue (Sec. 2). order into effect (Sec. 2).
Note: Consolidation is not a remedy in
case of forum shopping! POWERS OF COMMISSIONER

DELEGATION OF RECEPTION OF EVIDENCE

 64

Under the Rules, the courts order may specify or

DEMURRER TO EVIDENCE (Rule 33)
limit the powers of the commissioner. Hence, the
order may direct him to:
a) Report only upon particular issues; Demurrer to evidence is a motion to dismiss filed
b) Do or perform particular acts; or by the defendant after the plaintiff had rested his
c) Receive and report evidence only. case on the ground of INSUFFICIENCY OF
EVIDENCE.
The order may also fix the date for beginning and
closing of the hearings and for the filing of his The provision of the Rules governing demurrer to
report. evidence does not apply to an election case.

Subject to such limitations stated in the order, GROUND

the commissioner:
a) Shall exercise the power to regulate the After plaintiff has finished presenting his
proceedings in every hearing before him; evidence, the defendant may move for the
b) Shall do all acts and take all measures dismissal of the complaint on the ground that
necessary or proper for the efficient upon the facts and the law, the plaintiff has
performance of his duties under the order; shown no right to relief.
c) May issue subpoenas and subpoenas
duces tecum, and swear witnesses; and EFFECT OF DENIAL; EFFECT OF GRANT
d) Rule upon the admissibility of evidence,
unless otherwise provided in the order of In the event his motion is denied, the defendant
reference (Sec. 3, Rule 32). does not waive his right to offer evidence. The
defendant shll have the right to present his
COMMISSIONERS REPORT; NOTICE TO evidence. An order denying a demurrer to
PARTIES AND HEARING ON THE REPORT evidence is interlocutory and is therefore, not
appealable. It can however be the subject of a
The commissioners report is not binding upon petition for certiorari in case of grave abuse of
the court which is free to adopt, modify, or reject, discretion or an oppressive exercise of judicial
in whole or in part, the report. The court may authority.
receive further evidence or recommit the report
with instructions (Sec. 11, Rule 32) If the motion is granted and the order of dismissal
is reversed on appeal , the movants loses his
Notice of the filing of the report must be sent to right to present the evidence on his behalf. The
the parties for the purpose of giving them an appellate court in case it reverses the grant of
opportunity to present their objections. The the motion, should render the judgment therein
failure to grant the parties, in due form, this based on the evidence submitted by the plaintiff.
opportunity to object, may, in some instances,
constitute a serious error in violation of their It is not correct for the appellate court reversing
substantial rights. the order granting the demurrer to remand the
case to the trial court for further proceedings. The
The rule, however, is not absolute. In one case, it appellate court should, instead of remanding the
was ruled that although the parties were not case, render judgment on the basis of the
notified of the filing of the commissioners evidence submitted by the plaintiff.
reports, and the court failed to set said report for
hearing, if the parties who appeared before the WAIVER OF RIGHT TO PRESENT EVIDENCE
commissioner were duly represented by counsel
and given an opportunity to be heard, the If the demurrer is granted but on appeal the order
requirement of due process has been satisfied, of dismissal is reversed, the defendant is deemed
and a decision on the basis of such report, with to have waived his right to present evidence.
the other evidence of the case is a decision which
meets the requirements of fair and open hearing. DEMURRER TO EVIDENCE IN A CIVIL CASE
VERSUS DEMURRER TO EVIDENCE IN A
In the hearing to be conducted on the CRIMINAL CASE
commissioners report, the court will review only
so much as may be drawn in question by proper In a civil case, leave of court is not required
objections. It is not expected to rehear the case before filing a demurrer. In a criminal case, leave
upon the entire record. of court is filed with or without leave of court
(Sec. 23, Rule 119).
 65

2) the dispositive portion of the judgment or

In a civil case, if the demurrer is granted, the fallo.
order of dismissal is appealablesince the The body of the decision (ratio
motion is interlocutory. In a criminal case, the decidendi) is not the part of the
order of dismissal is not appealable because of judgment that is subject to execution
the constitutional policy against double jeopardy but the fallo because it is the latter
denial is tantamount to acquittal, final and which is the judgment of the court.
executory. The importance of fallo or dispositive
portion of a decision should state
In civil case, if the demurrer is denied, the whether the complaint or petition is
defendant may proceed to present his evidence. granted or denied, the specific relief
In a criminal case, the accused may adduce his granted, and the costs.
evidence only if the demurrer is filed with leave of It is the dispositive part of the
court. He cannot present his evidence if he filed judgment that actually settles and
the demurrer without leave of court (Sec. 23, declares the rights and obligations of
Rule 119). the parties, finally, definitively, and
authoritatively.
In civil case, the plaintiff files a motion to deny
motion to demurrer to evidence. In criminal case, The general rule is that where there is a conflict
the court may motu proprio deny the motion. between the fallo and the ratio decidendi, the
fallo controls. This rule rests on the theory that
the fallo is the final order while the opinion in the
JUDGMENTS AND FINAL ORDERS (Rules 34
body is merely a statement ordering nothing.
36)
Where the inevitable conclusion from the body of
the decision is so clear that there was a mere
JUDGMENT WITHOUT TRIAL mistake in the dispositive portion, the body of the
decision prevails.
The theory of summary judgment is that although
an answer may on its face appear to tender A judgment must have the signature of the judge.
issuesrequiring trialyet if it is demonstrated
by affidavits, depositions, or admissions that JUDGMENT ON THE PLEADINGS (RULE 34)
those issues are not genuine, but sham or
fictitious, the Court is justified in dispensing with
the trial and rendering summary judgment for Where an answer fails to tender an issue, or
plaintiff. otherwise admits the material allegations of the
adverse partys pleading, the court may, on
The court is expected to act chiefly on the basis motion of that party, direct judgment on such
of the affidavits, depositions, admissions pleading.
submitted by the movants, and those of the other
party in opposition thereto. The following actions CANNOT be the subject of a
judgment on the pleadings:
The hearing contemplated (with 10-day notice) is 1) declaration of nullity of marriage
for the purpose of determining whether the issues 2) annulment of marriage
are genuine or not, not to receive evidence on 3) legal separation
the issues set up in the pleadings. A hearing is
not thus de riguer. The matter may be resolved, In cases of unliquidated damages, or admission of
and usually is, on the basis of affidavits, the truth of allegation of adverse party, the
depositions, admissions. material facts alleged in the complaint shall
always be proved.
In one case, the summary judgment here was
justified, considering the absence of opposing SUMMARY JUDGMENTS (RULE 35)
affidavits to contradict the affidavits.

CONTENTS OF A JUDGMENT A summary judgment or accelerated judgment is

a procedural technique to promptly dispose of
Judgment has two parts: cases where the facts appear undisputed and
1) the body of the judgment or the ratio certain from the pleadings, depositions,
decidendi, and admissions and affidavits on record, of for
weeding out sham claims or defenses at an early
 66

stage of the litigation to avoid the expense and Should it appear to its satisfaction at any time
loss of time involved in a trial. that any of the affidavits presented pursuant to
the Rules are presented in bad faith, or solely for
Moreover, said summary judgment must be the purpose of delay, the court shall forthwith
premised on the absence of any other triable order the offending party or counsel to pay to the
genuine issues of fact. Otherwise, the movants other party the amount of the reasonable
cannot be allowed to obtain immediate relief. A expenses which the filing of the affidavits caused
genuine issue is such issue of fact which requires him to incur, including attorneys fees. It may,
presentation of evidence as distinguished from a after hearing, further adjudge the offending party
sham, fictitious, contrived or false claim. or counsel guilty of contempt (Sec. 6).

The requisites are: JUDGMENTS ON THE PLEADINGS VERSUS

1) there must be no genuine issue as to any SUMMARY JUDGMENTS
material fact, except for the amount of
damages; and a) In the judgment on the pleadings, the answer
2) the party presenting the motion for does not tender an issue; in summary
summary judgment must be entitled to a judgment, there is an issue tendered in the
judgment as a matter of law. answer, but it is not genuine or real issue as
may be shown by affidavits and depositions
FOR THE CLAIMANT that there is no real issue and that the party is
entitled to judgment as a matter of right;
A party seeking to recover upon a claim, b) In judgment on the pleadings, the movants
counterclaim, or cross-claim or to obtain a must give a 3-day notice of hearing; while in
declaratory relief may, at any time after the summary judgment, the opposing party is
pleading in answer thereto has been served, given 10 days notice;
move with supporting affidavits, depositions or c) In judgment on the pleadings, the entire case
admissions for a summary judgment in his favor may be terminated; while in summary
upon all or any part thereof (Sec. 1). judgment, it may only be partial;
d) In judgment on the pleadings, only the
FOR THE DEFENDANT plaintiff or the defendants as far as the
counterclaim, cross-claim or third-party
A party against whom a claim, counterclaim, or complaint is concerned can file the same;
cross-claim is asserted or a declaratory relief is while in summary judgment, either the
sought may, at any time, move with supporting plaintiff or the defendant may file it.
affidavits, depositions or admissions for a
summary judgment in his favor as to all or any RENDITION OF JUDGMENTS AND FINAL
part thereof (Sec. 2). ORDERS

WHEN THE CASE NOT FULLY ADJUDICATED Rendition of judgment is the filing of the same
with the clerk of court. It is NOT the
If judgment is not rendered upon the whole case, pronouncement of the judgment in open court
the court shall ascertain what material facts exist that constitutes the rendition. Even if the
without substantial controversy and those that judgment has already been put in writing and
are controverted. The court shall then render a signed, it is still subject to amendment if it has
partial judgement with trial to proceed on the not yet been filed with the clerk of court and
matters that remain controverted. before its filing does not yet constitute the real
judgment of the court. It is NOT the writing of the
AFFIDAVITS AND ATTACHMENTS judgment or its signing which constitutes
rendition of the judgment.
Supporting and opposing affidavits shall be made
A judgment or final order determining the
on personal knowledge, shall set forth such facts
merits of the case shall be in writing personally
as would be admissible in evidence, and shall
and directly prepared by the judge, stating clearly
show affirmatively that the affiant is competent
and distinctly the facts and the law on which it is
to testify to the matters stated therein. Certified
based, signed by him, and filed with the clerk of
true copies of all papers or parts thereof referred
the court (Sec. 1, Rule 36).
to in the affidavit shall be attached thereto or
served therewith (Sec. 5).
ENTRY OF JUDGMENT AND FINAL ORDER
 67

If no appeal or motion for new trial or GROUNDS FOR A MOTION FOR NEW TRIAL
reconsideration is filed within the time provided in
the Rules, the judgment or final order shall 1) Fraud (extrinsic), accident, mistake (of fact
forthwith be entered by the clerk in the book of and not of law) or excusable negligence
entries of judgments. (FAMEN) which ordinary prudence could not
have guarded against and by reason of which
The record shall contain the dispositive part of such aggrieved party has probably been
the judgment or final order and shall be signed by impaired in his rights;
the clerk, with a certificate that such judgment or 2) Newly discovered evidence (Berry Rule),
final order has become final and executory (Sec. which he could not, with reasonable diligence,
2). have discovered and produced at the trial,
and which if presented would probably alter
The entry of judgment refers to the physical act the result; and
performed by the clerk of court in entering the 3) Award of excessive damages, or insufficiency
dispositive portion of the judgment in the book of of the evidence to justify the decision, or that
entries of judgment and after the same has the decision is against the law (Sec. 1, Rule
become final and executory. 37).

The date of finality of the judgment or final order GROUNDS FOR A MOTION FOR
shall be deemed the date of its entry. Thus, RECONSIDERATION
while there has been no physical entry of
judgment in the book of entries, it is 1) The damages awarded are excessive;
deemed to have been constructively made 2) The evidence is insufficient to justify the
at the time of the finality of the judgment decision or final order;
or final order. 3) The decision or final order is contrary to law.

There are some proceedings the filing of which is 2nd MR is not allowed except in SC
reckoned from the date of the entry of judgment:
1) the execution of a judgment by motion is WHEN TO FILE
within five (5) years from the entry of the
judgment (Sec. 6, Rule 39); A motion for new trial should be filed within
2) the filing of a petition for relief has, as one the period for taking an appeal. Hence, it
of its periods, not more than six (6) must be filed before the finality of the
months from the entry of the judgment or judgment.
final order (Sec. 3, Rule 38). No motion for extension of time to file a
motion for reconsideration shall be allowed.
POST JUDGMENT REMEDIES The period for appeal is within 15 days after
(Rules 37, 38, 4047, 52, 53) notice to the appellant of the judgment or
final order appealed from.
Where a record on appeal is required, the
Remedies before a judgment becomes final appellant shall file a notice of appeal and a
and executory record on appeal within 30 days from notice
a) Motion for reconsideration (prohibited in a of the judgment or final order. A record on
case that falls under summary procedure) appeal shall be required only in special
(Rules 37, 52); proceedings and other cases of multiple or
b) Motion for new trial (Rules 37, 53); and separate appeals (Sec. 3, Rule 40).
c) Appeal (Rules 40, 41, 42, 43, 45)
DENIAL OF THE MOTION; EFFECT
Remedies after judgment becomes final and
executory If the motion is denied, the movants has a
a) Petition for relief from judgment; fresh period" of fifteen days from receipt
b) Action to annul a judgment; or notice of the order denying or dismissing
c) Certiorari; and the motion for reconsideration within which to
d) Collateral attack of a judgment. file a notice of appeal of the judgment or final
order.
MOTION FOR NEW TRIAL OR Meaning, the defendant is given a fresh
RECONSIDERATION (RULE 37) period of 15 days counted from the receipt of
the order dismissing the motion for new trial
or reconsideration.
 68

When the motion for new trial is denied on the This new period becomes significant if either a
ground of fraud, accident, mistake of fact or motion for reconsideration or a motion for
law, or excusable negligence, the aggrieved new trial has been filed but was denied or
party can no longer avail of the remedy of dismissed.
petition for relief from judgment This fresh period rule applies only to Rule 41
governing appeals from the RTC but also to
GRANT OF THE MOTION; EFFECT Rule 40 governing appeals from MTC to RTC,
Rule 42 on petitions for review from the RTC
If a new trial be granted, the original to the CA, Rule 43 on appeal from quasi-
judgment shall be vacated or set aside, and judicial agencies to the CA, and Rule 45
the action shall stand for trial de novo; but the governing appeals by certiorari to the SC.
recorded evidence taken upon the former trial Accordingly, this rule was adopted to
so far as the same is material and competent standardize the appeal periods provided in
to establish the issues, shall be used at the the Rules to afford fair opportunity to review
new trial without retaking the same (Sec. 6). the case and, in the process, minimize errors
The filing of the motion for new trial or of judgment.
reconsideration interrupts the period to Obviously, the new 15 day period may be
appeal (Sec. 2, Rule 40; Sec. 3, Rule 41). availed of only if either motion is filed;
If the court grants the motion (e.g., it finds otherwise, the decision becomes final and
that excessive damages have been awarded executory after the lapse of the original
or that the judgment or final order is contrary appeal period provided in Rule 41 (Neypes vs.
to the evidence or law), it may amend such CA., Sept. 14, 2005).
judgment or final order accordingly (Sec. 3). The Neypes ruling shall not be applied where
The amended judgment is in the nature of a no motion for new trial or motion for
new judgment which supersedes the original reconsideration has been filed in which case
judgment. It is not a mere supplemental the 15-day period shall run from notice of the
decision which does not supplant the original judgment.
but only serves to add something to it. The fresh period rule does not refer to the
If the court finds that a motion affects the period within which to appeal from the order
issues of the case as to only a part, or less denying the motion for new trial because the
than all of the matters in controversy, or only order is not appealable under Sec. 9, Rule 37.
one, or less that all of the parties to it, the The non-appealability of the order of denial is
order may grant a reconsideration as to such also confirmed by Sec. 1(a), Rule 41, which
issues if severable without interfering with the provides that no appeal may be taken from an
judgment or final order upon the rest (Sec. 7). order denying a motion for new trial or a
motion for reconsideration.
REMEDY WHEN MOTION IS DENIED The SC ruled in one case that this fresh
period of appeal is also applicable in criminal
The party aggrieved should appeal the cases (Judith Yu vs. Judge Samson, Feb.
judgment. This is so because a second motion 9, 2011)
for reconsideration is expressly prohibited.
An order denying a motion for reconsideration APPEALS IN GENERAL
or new trial is not appealable, the remedy
being an appeal from the judgment or final The right to appeal is not part of due process but
order under Rule 38. The remedy from an a mere statutory privilege that has to be
order denying a motion for new trial is not to exercised only in the manner and in accordance
appeal from the order of denial. Again, the with the provisions of law
order is not appealable. The remedy is to
appeal from the judgment or final order itself The general rule is that the remedy to obtain
subject of the motion for new trial (Sec. 9, reversal or modification of judgment on the
rule 37). merits is appeal. This is true even if the error, or
one of the errors, ascribed to the court rendering
FRESH 15-DAY PERIOD RULE the judgment is its lack of jurisdiction over the
subject matter, or the exercise of power in excess
If the motion is denied, the movants has a thereof, or grave abuse of discretion in the
fresh period of 15 days from receipt or notice findings of facts or of law set out in the decision.
of the order denying or dismissing the motion
for reconsideration within which to file a Certain rules on appeal:
notice to appeal.
 69

a) No trial de novo anymore. The appellate 8) An order dismissing and action without
courts must decide the case on the basis prejudice (Sec. 1, Rule 41).
of the record, except when the
proceedings were not duly recorded as A question that was never raised in the courts
when there was absence of a qualified below cannot be allowed to be raised for the first
stenographer. time on appeal without offending basic rules of
b) There can be no new parties. fair play, justice and due process. For an
c) There can be no change of theory (Naval appellate court to consider a legal question, it
vs. CA, 483 SCRA 102). should have been raised in the court below. It
d) There can be no new matters. would be unfair to the adverse party who would
e) There can be amendments of pleadings to have no opportunity to present evidence in
conform to the evidence submitted before contra to the new theory, which it could have
the trial court. done had it been aware of it at the time of the
f) The liability of solidarity defendant who hearing before the trial court. It is true that this
did not appeal is not affected by appeal of rule admits of exceptions as in cases of lack of
solidarity debtor. jurisdiction, where the lower court committed
g) Appeal by guarantor does not inure to the plain error, where there are jurisprudential
principal. developments affecting the issues, or when the
h) In ejectment cases, the RTC cannot award issues raised present a matter of public policy.
to the appellant on his counterclaim more
than the amount of damages beyond the The court may consider an error not raised on
jurisdiction of the MTC. appeal provided the same falls within any of the
i) The appellate court cannot dismiss the following categories:
appealed case for failure to prosecute 1) It is an error that affects the jurisdiction
because the case must be decided on the over the subject matter;
basis of the record. 2) It is an error that affects the validity of the
judgment appealed from;
JUDGMENTS AND FINAL ORDERS SUBJECT 3) It is an error which affects the
TO APPEAL proceedings;
4) It is an error closely related to or
An appeal may be taken only from judgments or dependent on an assigned error and
final orders that completely dispose of the case properly argued in the brief; or
(Sec. 1, Rule 41). An interlocutory order is not 5) It is a plain and clerical error.
appealable until after the rendition of the
judgment on the merits. REMEDY AGAINST JUDGMENTS AND
ORDERS WHICH ARE NOT APPEALABLE
MATTERS NOT APPEALABLE
In those instances where the judgment or final
No appeal may be taken from: order is not appealable, the aggrieved party
1) An order denying a motion for new trial or may file the appropriate special civil action
a motion for reconsideration; under Rule 65.
2) An order denying a petition for relief or Rule 65 refers to the special civil actions of
any similar motion seeking relief from certiorari, prohibition and mandamus (CPM).
judgment; Practically, it would be the special civil action
3) An interlocutory order; of certiorari that would be availed of under
4) An order disallowing or dismissing an most circumstances. The most potent remedy
appeal; against those judgments and orders from
5) An order denying a motion to set aside a which appeal cannot be taken is to allege and
judgment by consent, confession or prove that the same were issued without
compromise on the ground of fraud, jurisdiction, with grave abuse of discretion or
mistake or duress, or any other ground in excess of jurisdiction, all amounting to lack
vitiating consent; of jurisdiction.
6) An order of execution;
7) A judgment or final order for or against
one or more of several parties or in MODES OF APPEAL (SEC. 2, RULE 41)
separate claims, counterclaims, cross-
claims, and third-party complaints, while
the main case is pending, unless the court (a) ORDINARY APPEAL
allows an appeal therefrom; and
 70

The appeal to the CA in cases decided by The period of appeal shall be interrupted
the RTC in the exercise of its original by a timely motion for new trial or
jurisdiction shall be taken by filing a reconsideration.
notice of appeal with the court which No motion for extension of time to file a
rendered the judgment or final order motion for new trial or reconsideration
appealed from and serving a copy thereof shall be allowed (Sec. 2).
upon the adverse party.
No record on appeal shall be required PERIOD OF ORDINARY APPEAL UNDER RULE
except in special proceedings and 41)
other cases of multiple or separate The appeal shall be taken within 15 days
appeals where the law or the Rules so from notice of the judgment or final order
require. In such cases, the record on appealed from. Where a record on appeal
appeal shall be filed and served in like is required, the appellants shall file a
manner. notice of appeal and a record on appeal
within 30 days from notice of the
(b) PETITION FOR REVIEW judgment or final order.
The appeal to the CA in cases decided However, on appeal in habeas corpus
by the RTC in the exercise of its cases shall be taken within 48 hours from
appellate jurisdiction shall be by notice of the judgment or final order
petition for review in accordance appealed from (AM No. 01-1-03-SC, June
with Rule 42. 19, 2001).
The period of appeal shall be interrupted
(c) PETITION FOR REVIEW ON CERTIORARI by a timely motion for new trial or
In all cases where only questions of law reconsideration.
are raised or involved, the appeal shall be No motion for extension of time to file a
to the SC by petition for review on motion for new trial or reconsideration
certiorari in accordance with Rule 45. shall be allowed (Sec. 3).
If the record on appeal is not transmitted
ISSUES TO BE RAISED ON APPEAL to the CA within 30 days after the
perfection of appeal, either party may file
Whether or not the appellant has filed a motion a motion with the trial court, with notice to
for new trial in the court below, he may include in the other, for the transmittal of such
his assignment or errors any question of law or record or record on appeal (Sec. 3, Rule
fact that has been raised in the court below and 44).
which is within the issues framed by the parties
(Sec. 15, Rule 44). PERIOD OF PETITION FOR REVIEW UNDER
1) In an Ordinary Appeal, the appeal raises RULE 42
the questions of fact or mixed questions of The petition shall be filed and served
fact and law. within 15 days from notice of the decision
2) In Petition for Review, the appeal raises sought to be reviewed or of the denial of
questions of fact, of law or mixed petitioners motion for new trial or
questions of fact and law. reconsideration filed in due time after
3) In a Petition for Review on Certiorari, judgment.
the appeal raises purely questions of law. The court may grant and additional period
of 15 days only provided the extension is
PERIOD OF APPEAL sought
a) upon proper motion, and
PERIOD OF ORDINARY APPEAL UNDER RULE b) there is payment of the full amount
40 of the docket and other lawful fees
An appeal may be taken (from MTC to and the deposit for costs before the
RTC) within 15 days after notice to the expiration of the reglementary
appellant of the judgment or final order period.
appealed from. Where a record on appeal No further extension shall be granted
is required, the appellant shall file a notice except for the most compelling reason and
of appeal and a record on appeal within 30 in no case to exceed 15 days.
days after notice of the judgment or final
order. PERIOD OF APPEAL BY PETITION FOR
REVIEW UNDER RULE 43
 71

The appeal shall be taken within 15 days The appeal which shall be in the form of a
from notice of the award, judgment, final verified petition shall be filed within 15
order or resolution, or from the date of its days from notice of the judgment, final
last publication, if publication is required order or resolution appealed from, or
by law for its effectivity, or of the denial of within 15 days from notice of the denial of
petitioners motion for new trial or the petitioners motion for new trail or
reconsideration duly filed in accordance motion for reconsideration filed in due
with the governing law of the court or time.
agency a quo. The Supreme Court may, for justifiable
Only one (1) motion for reconsideration reasons, grant an extension of 30 days
shall be allowed. Upon proper motion and only within which to file the petition
the payment of the full amount of the provided:
docket fee before the expiration of the a) there is a motion for extension of
reglementary period, the CA may grant an time duly filed and served;
additional period of 15 days only within b) there is full payment of the docket
which to file the petition for review. and other lawful fees and the
No further extension shall be granted deposit for costs; and
except for the most compelling reason and c) the motion is filed and served and
in no case to exceed 15 days (Sec. 4). the payment is made before the
expiration of the reglementary
PERIOD OF APPEAL BY PETITION FOR period.
REVIEW ON CERTIORARI UNDER RULE 45

MODE OF PERIOD OF APPEAL Period of appeal if party files MFR or New

APPEAL Trial (Neypes Doctrine)
Ordinary Appeal
(Rules 40, 41)
a) Notice of Within 15 days from Within 15 days from receipt of order denying
Appeal (Rule 40) receipt of judgment or final motion for reconsideration or new trial
order
b) Record on Within 30 days from The 30-day to file the notice of appeal and record
Appeal (Rule 41) receipt of judgment or final on appeal should reckoned from the receipt of the
order order denying the motion for new trial or motion
for reconsideration (Zayco vs. Himlo, April 16,
2008)
Petition for Within 15 days from Within 15 days from receipt of the order denying
Review (Rule 42) receipt of judgment motion for reconsideration or new trial
Petition for Within 15 days from Within 15 days from receipt of the order denying
Review (Rule 43) receipt of judgment or final motion for reconsideration or new trial
order or of last publication
Appeal by Within 15 days from Within 15 days from receipt of the order denying
Certiorari (Rule receipt of judgment or final motion for reconsideration or new trial
45) order

PERFECTION OF APPEALS to the subject matter thereof upon the

approval of the record on appeal filed in
For Ordinary Appeals from MTC to the RTC due time. The court has jurisdiction only
(Rule 40) and from the RTC to the CA (Rule over the subject matter thereof upon such
41). approval for the expiration of the time to
A partys appeal by notice of appeal is appeal of the other parties.
deemed perfected as to him upon the In either case, prior to the transmittal of
filing of the notice of appeal in due time. the original record or the record on
Upon such perfection or the expiration of appeal, the court may issue orders for the
the same to appeal by the other parties, protection and preservation of the rights
the court loses jurisdiction over the of the parties which do not involve any
subject matter thereof matter litigated by the appeal, approve
A partys appeal by record on appeal is compromises, permit appeals of indigent
deemed perfected as to him with respect litigants, order execution pending appeal
 72

in accordance with Sec. 2, Rule 39, and ORDERS OF THE RTC

allow withdrawal of the appeal (Sec. 9,
Rule 41). There are three modes of appealing a judgment
or final order of the RTC:
Perfection of Appeal by Petition for Review 1) Ordinary Appeal (Rule 41) from the
under Rule 42. (Sec.8) judgment or final order of the RTC in the
Upon the timely filing of a petition for exercise of its original jurisdiction
review and the payment of the 2) Petition for Review (Rule 42) from the
corresponding docket and other lawful judgment or final order of the RTC to the
fees, the appeal is deemed perfected as to CA in cases decided by the RTC in the
the petitioner. exercise of its appellate jurisdiction
The RTC loses jurisdiction over the case 3) Petition for Review on Certiorari (Rule
upon the perfection of the appeals filed in 45)
due time and the expiration of the time to
appeal of the other parties. APPEAL FROM JUDGMENTS OR FINAL
However, before the CA give due course to ORDERS OF THE CA
the petition, the RTC may issue orders for
the protection and preservation of the a) Appeal from the judgments or final orders of
rights of the parties which do not involve the CA concerning purely questions of law
any matter litigated by the appeal, which must be distinctly set forth may be
approve compromises, permit appeals of elevated to the SC by way of Rule 45:
indigent litigants, order execution pending Petitions for Review on Certiorari.
appeal in accordance with Sec. 2, Rule 39, b) The general rule is that the SC shall not
and allow withdrawal of the appeal. entertain questions of fact, except in the
Except in civil cases decided under Rules following cases:
on Summary Procedure, the appeal shall a) The conclusion of the CA is grounded
stay the judgment or final order unless the entirely on speculations, surmises and
CA, the law, or the Rules provide conjectures;
otherwise. b) The inference made is manifestly
mistaken, absurd or impossible;
APPEAL FROM JUDGMENTS OR FINAL c) There is grave abuse of discretion;
ORDERS OF THE MTC d) The judgment is based on
misapprehension of facts;
An appeal from a judgment or final order of a MTC e) The findings of facts are conflicting;
may be taken to the RTC exercising jurisdiction f) The CA in making its findings went
over the area over which the MTC sits. The title of beyond the issues of the case and the
the case shall remain as it was in the court of same is contrary to the admissions of
origin, but the party appealing the case shall be both appellant and appellee;
further referred to as the appellant and the g) The findings are contrary to those of
adverse party as the appellee (Sec. 1, Rule 40). the trial court;
h) The facts set forth in the petition as
Where the MTC dismisses a case for lack of well as in the petitioners main and
jurisdiction of such dismissal is made to the RTC, reply briefs are not disputed by the
should the latter affirm the dismissal and if it has respondents;
jurisdiction over the subject matter, the RTC is i) The findings of fact of the CA are
obliged to try the case as if it were originally filed premised on the supposed absence of
with it. evidence and contradicted by the
evidence on record; or
The appeal is taken by filing a notice of appeal j) Those filed under Writs of amparo,
with the court that rendered the judgment or final habeas data, or kalikasan.
order appealed from. The notice of appeal shall
indicate the parties to the appeal, the judgment APPEAL FROM JUDGMENTS OR FINAL
or final order or part thereof appealed from, and ORDERS OF THE CTA
state the material dates showing the timeliness of
the appeal. A record on appeal shall be required Under Sec. 11 of RA 9282, no civil proceeding
only in special proceedings and in other cases of involving matters arising under the NIRC, the TCC
multiple or separate appeals. or the Local Government Code shall be
maintained, except as herein provided, until and
APPEAL FROM JUDGMENTS OR FINAL unless an appeal has been previously filed with
 73

the CTA and disposed of in accordance with the In criminal or non-administrative case,
provisions of the Act. the ruling of the Ombudsman shall be
elevated to the SC by way of Rule 65.
A party adversely affected by a resolution of a
Division of CTA on a motion for reconsideration or The SCs power to review over resolutions and
new trial, may file a petition for review with the orders of the Office of the Ombudsman is
CTA en banc. restricted on to determining whether grave abuse
of discretion has been committed by it. The Court
Sec. 11 of RA 9282 further provides that a party is not authorized to correct every error or mistake
adversely affected by a decision or ruling of the of the Office of the Ombudsman other than grave
CTA en banc may file with the SC a verified abuse of discretion. The remedy is not a petition
petition for review on certiorari pursuant to for review on certiorari under Rule 45.
Rule 45.
REVIEW OF FINAL ORDERS OF THE NLRC
REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF THE COMELEC The remedy of a party aggrieved by the decision
of the National Labor Relations Commission
A judgment, resolution or final order of the (NLRC) is to promptly move for the
COMELEC may be brought by the aggrieved party reconsideration of the decision and if denied to
to the SC on certiorari under Rule 65 in relation to timely file a special civil action of certiorari under
Rule 64, by filing the petition within 30 days from Rule 65 within 60 days from notice of the
notice. decision.

REVIEW OF FINAL ORDERS OF THE CSC In observance of the doctrine of hierarchy of

courts, the petition for certiorari should be filed in
A judgment, final order or resolution of the Civil the CA (St. Martin Funeral Homes vs. NLRC, Sept.
Service Commission may be taken to the CA 16, 1998). Should the same be filed with the SC,
under Rule 43. Note the difference between the the latter shall dismiss the same instead of
mode of appeal from a judgment of the CSC and referring the action to the CA.
the mode of appeal from the judgments of other
constitutional commissions. REVIEW OF FINAL ORDERS OF THE QUASI-
JUDICIAL AGENCIES
REVIEW OF FINAL ORDERS OF THE COA
Appeals from judgments and final orders of
A judgment, resolution or final order of the quasi-judicial bodies/agencies are now
Commission on Audit may be brought by the required to be brought to the CA.
aggrieved party to the SC on certiorari under This rule was adopted precisely to provide a
Rule 65 in relation to Rule 64, by filing the uniform rule of appellate procedure from
petition within 30 days from notice. quasi-judicial bodies.
The appeal under Rule 43 may be taken to the
REVIEW OF FINAL ORDERS OF THE CA whether the appeal involves a question of
OMBUDSMAN fact, a question of law, or mixed questions of
fact and law by filing a verified petition for
Appeals from decisions of the Ombudsman in review with the CA.
administrative disciplinary actions should be The appeal shall NOT stay the award,
brought to the CA under Rule 43. judgment, final order or resolution sought to
be reviewed UNLESS the CA shall direct
The CA has jurisdiction over orders, directives otherwise upon such terms as it may deem
and decisions of the Office of the Ombudsman in just.
administrative cases only under Rule 43.
But in cases in which it is alleged that the RELIEFS FROM JUDGMENTS (or petition for
Ombudsman has acted with grave abuse relief from denial of appeal) ORDERS AND
of discretion amounting to lack or excess OTHER PROCEEDINGS (RULE 38)
of jurisdiction amounting to lack or excess
of jurisdiction, a special civil action of A petition for relief from judgment is an equitable
certiorari under Rule 65 may be filed with remedy that is allowed only in exceptional cases
the SC to set aside the Ombudsmans when there is no other available or adequate
order or resolution. remedy.
 74

A remedy where a party seek to set aside a The annulment of judgment if a remedy
judgment rendered against him by a court independent of the case where the judgment
whenever he was unjustly deprived of a hearing sought to be annulled was rendered and may be
or was prevented from taking an appeal because availed of though the judgment may have been
of fraud, accident, mistake or excusable executed.
negligence.
Its purpose is to have the judgment set aside so
Under Sec. 5, Rule 38, the court may grant that there will be a renewal of litigation where the
preliminary injunction to preserve the rights of ordinary remedies of new trial, appeal, relief from
the parties upon the filing of a bond in favor of judgment are no longer available without the
the adverse party. The bond is conditioned upon petitioners fault.
the payment to the adverse party of all damages
and costs that may be awarded to such adverse GROUNDS FOR ANNULMENT
party by reason of the issuance of the injunction (you should be a party to the case)
(Sec. 5).
1) Extrinsic Fraud exists when there is a
GROUNDS FOR AVAILING OF THE REMEDY fraudulent act committed by the prevailing
(PETITION FOR RELIEF) party outside the trial of the case, whereby
the defeated party was prevented from
When a judgment or final order is entered, or any presenting fully his side of the case by
other proceeding is thereafter taken against a deception practiced on him by the prevailing
party in any court through (a) fraud, (b) accident, party.
(c) mistake, or (c) excusable negligence (FAMEN), 2) Lack of Jurisdiction refers to either lack of
he may file a petition in such court and in the jurisdiction over the person of the defendant
same case praying that the judgment, order or or over the subject matter of the claim.
proceeding be set aside (Sec. 1, Rule 38).
PERIOD TO FILE ACTION
When the petitioner has been prevented from
taking an appeal by fraud, mistake, or excusable If based on Extrinsic Fraud
negligence (Sec. 2). action must be filed within four (4) years
from its discovery
TIME TO FILE PETITION
If based on Lack of Jurisdiction
A petition for relief from judgment, order or other before it is barred by laches or estoppels
proceedings must be verified, filed:
1) within 60 days after the petitioner learns EFFECTS OF JUDGMENT OF ANNULMENT
of the judgment, final order, or other
proceeding to be set aside, and 1) On Extrinsic Fraud
2) not more than six (6) months after such a) The court, upon motion may order the trial
judgment or final order was entered, or court to try the case as if a motion for new
such proceeding was taken. trial had been granted.
These two periods must concur. Both b) The prescriptive period shall not be
periods are not extendible and are suspended if the extrinsic fraud is
never interrupted. attributable to the plaintiff in the original
action.
CONTENTS OF PETITION 2) On the ground of Lack of Jurisdiction
a) The questioned judgment, order or
The petition must be verified and must be resolution shall be set aside and
accompanied with affidavits showing fraud, rendered null and void. The nullity
accident, mistake or excusable negligence relied shall be without prejudice to the
upon and it must have an affidavit of merit refiling of the original action in the
showing the facts constituting the petitioners proper court.
good and substantial cause of action or defense, b) The prescriptive period to re-file shall
as the case may be. be deemed suspended from the filing
of such original action until the finality
ANNULMENT OF JUDGMENTS OR FINAL of the judgment of annulment.
ORDERS AND RESOLUTIONS (RULE 47)
COLLATERAL ATTACK OF JUDGMENTS
 75

A collateral attack is made when, in another ministerial duty of the court compellable by
action to obtain a different relief, an attack on the mandamus except in certain cases, as when
judgment is made as an incident in said action. subsequent events would render execution of
judgment unjust.
This is proper only when the judgment, on its
face, is null and void, as where it is patent that Judgments and orders become final and executor
the court which rendered said judgment has no by operation of law and not by judicial
jurisdiction. declaration. The trial court need not even
pronounce the finality of the order as the same
Examples: becomes final by operation of law. Its finality
A petition for certiorari under Rule 65 is a becomes a fact when the reglementary period for
direct attack. It is filed primarily to have appeal lapses, and no appeal is perfected within
an order annulled. such period.
An action for annulment of a judgment is
likewise a direct attack on a judgment. Execution is a matter or right, except in the
A motion to dismiss a complaint for following cases:
collection of a sum of money filed by a a) Where judgment turns out to be
corporation against the defendant on the incomplete or conditional;
ground that the plaintiff has no legal b) Judgment is novated by the parties;
capacity to use is a collateral attack on c) Equitable grounds (i.e., change in the
the corporation. A motion to dismiss is situation of the partiessupervening fact
incidental to the main action for sum of doctrine)
money. It is not filed as an action intended d) Execution is enjoined (i.e., petition for
to attack the legal existence of the relief from judgment or annulment of
plaintiff. judgment with TRO or writ of preliminary
injunction);
e) Judgment has become dormant; or
EXECUTION, SATISFACTION AND EFFECT OF
f) Execution is unjust or impossible.
JUDGMENTS (Rule 39)
DISCRETIONARY EXECUTION (SEC. 2)
Issuance of the writ is ministerial execution pending appeal
Granting of the writ is judicial
It constitutes an exception to the general rule
DIFFERENCE BETWEEN FINALITY OF that a judgment cannot be executed before the
JUDGMENT FOR PURPOSE OF APPEAL; FOR lapse of the period for appeal or during the
PURPOSES OF EXECUTION pendency of an appeal.

For purposes of appeal, an order is final if it Under Sec. 1, Rule 39, execution shall issue only
disposes of the action as opposed to an as a matter of right upon a judgment or final
interlocutory order which leaves something to be order that finally disposes of the action or
done in the trial court with respect to the merits proceeding upon the execution of the period to
of the case. appeal therefrom if no appeal has been duly
perfected.
For purposes of execution, an order is final or
executory after the lapse of the reglementary A discretionary execution is called discretionary
period to appeal and no such appeal has been precisely because it is not a matter of right. The
perfected. execution of a judgment under this concept is
addressed to the discretionary power of the court
WHEN EXECUTION SHALL ISSUE; and cannot be insisted upon but simply prayed
EXECUTION AS A MATTER OF RIGHT (SEC. and hoped for because a discretionary execution
1) is not a matter of right.

Execution is a matter of right upon the expiration Requisites for discretionary execution:
of the period to appeal and no appeal was 1) There must be a motion filed by the
perfected from a judgment or order that disposes prevailing party with notice to the adverse
of the action or proceeding. Once a judgment party;
becomes final and executory, the prevailing party 2) There must be a hearing of the motion for
can have it executed as a matter of right, and the discretionary execution;
issuance of a writ of execution becomes the
 76

3) There must be good reasons to justify the 2) state the name of the court, the case
discretionary execution; and number and title, the dispositive part of
4) The good reasons must be stated in a the subject judgment or order; and
special order (Sec. 2, Rule 39). 3) require the SHERIFF (should make a report
every 30 days) or other proper officer to
HOW A JUDGMENT IS EXECUTED (SEC. 4) whom it is directed to enforce the writ
according to its term, in the manner
Judgments in actions for injunction, receivership, hereinafter provided:
accounting and support, and such other a) If the execution be against the
judgments as are now or may hereafter be property of the judgment obligor, to
declared to be immediately executory, shall be satisfy the judgment, with interest, out
enforceable after their rendition and shall not be of the real or personal property of such
stayed by an appeal taken therefrom, unless judgment obligor;
otherwise ordered by the trial court. b) If it be against real or personal
property in the hands of personal
On appeal, the appellate court in its discretion representatives, heirs, devisees,
may make an order suspending, modifying, legatees, tenants, or trustees of the
restoring or granting the injunction, receivership, judgment obligor, to satisfy the
accounting, or award of support. The stay of judgment, with interest, out of such
execution shall be upon such terms as to bond or property;
otherwise as may be considered proper for the c) If it be for the sale of real or personal
security or protection of the rights of the adverse property, to sell such property,
party. describing it, and apply the proceeds
in conformity with the judgment, the
Judgments that may be altered or modified after material parts of which shall be recited
becoming final and executory: in the writ of execution;
1) Facts and circumstances transpire which d) If it be for the delivery of the
render its execution impossible or unjust; possession of real or personal
2) Support; property, to deliver the possession of
3) Interlocutory judgment. the same, describing it, to the party
entitled thereto, and to satisfy any
EXECUTION BY MOTION OR BY costs, damages, rents, or profits
INDEPENDENT ACTION (SEC. 6) covered by the judgment out of the
personal property of the person
a) Once revived, then you can file a motion for against whom it was rendered, and if
execution sufficient personal property cannot be
found, then out of the real property;
b) Execution by MOTION may be had if the and
enforcement of the judgment is sought within e) In all cases, the writ of execution shall
5 years from the date of its entry. specifically state the amount of the
interest, costs, damages, rents, or
c) Execution by INDEPENDENT ACTION is when profits due as of the date of the
the 5 year period has lapsed from the entry of issuance of the writ, aside from the
judgment and before it is barred by the principal obligation under the
statute of limitations. This action to revive the judgment. For this purpose, the motion
judgment must be filed within 10 years from for execution shall specify the amounts
the date the judgment became final. of the foregoing reliefs sought by the
movants.
ISSUANCE AND CONTENTS OF A WRIT OF
EXECUTION (SEC. 8) EXECUTION OF JUDGMENT FOR MONEY
(SEC. 9)
This is only upon motion and its lifetime is 5
years; as a rule, it is issued by the court of a) Immediate payment on demand The
original jurisdiction officer enforcing the writ shall demand from
the judgment obligor the immediate payment
The writ of execution shall: of the full amount stated in the judgment
1) issue in the name of the Republic of the including the lawful fees in cash, certified
Philippines from the court which granted check payable to the judgment oblige or any
the motion;
 77

other form of payment acceptable to him other person required thereby, or by law, to obey
(Sec. 9). the same, and such party or person may be
the sheriff is required to first make a punished for contempt if he disobeys such
demand on the obligor for the immediate judgment.
payment of the full amount stated in the
writ of execution EFFECT OF LEVY ON THIRD PERSONS

b) Satisfaction by levy If the judgment The levy on execution shall create a lien in favor
obligor cannot pay all or part of the obligation of the judgment obligee over the right, title and
in cash, certified check or other mode of interest of the judgment obligor in such property
payment, the officer shall levy upon the at the time of the levy, subject to liens and
properties of the judgment obligor. encumbrances then existing.
The judgment obligor shall have the
option to choose which property or part PROPERTIES EXEMPT FROM EXECUTION
thereof may be levied upon. Should he fail (SEC. 13)
to exercise the option, the officer shall first
levy on the personal properties, if any, and EXCEPT as otherwise expressly provided by law,
then on the real properties if the personal the following property, and no other, shall be
properties are insufficient to answer for exempt from execution:
the personal judgment but the sheriff shall 1) The judgment obligors family home as
sell only so much of the property that is provided by law, or the homestead in which
sufficient to satisfy the judgment and he resides, and the land necessarily used in
lawful fees connection therewith;
2) Ordinary tools and implements personally
c) Garnishment of debts and credits The used by him in his trade, employment, or
officer may levy on the debts due the livelihood;
judgment obligor including bank deposits, 3) Three horses, or three cows, or three
financial interests, royalties, commissions and carabaos, or other beasts of burden, such as
other personal property not capable of the judgment obligor may select necessarily
manual delivery in the possession or control used by him in his ordinary occupation;
of the third persons. 4) His necessary clothing and articles for
ordinary personal use, excluding jewelry;
EXECUTION OF JUDGMENT FOR SPECIFIC 5) Household furniture and utensils necessary for
ACTS (SEC. 10) housekeeping, and used for that purpose by
the judgment obligor and his family, such as
If the judgment requires a person to perform a the judgment obligor may select, of a value
specific act, said act must be performed but if the not exceeding 100,000 pesos.
party fails to comply within the specified time, 6) Provisions for individual or family use
the court may direct the act to be done by sufficient for four months;
someone at the cost of the disobedient party and 7) The professional libraries and equipment of
the act when so done shall have the effect as if judges, lawyers, physicians, pharmacists,
done by the party dentists, engineers, surveyors, clergymen,
teachers, and other professionals, not
If the judgment directs a conveyance of real or exceeding 300,000 pesos;
personal property, and said property is in the 8) One fishing boat and accessories not
Philippines, the court in lieu of directing the exceeding the total value of 100,000 pesos
conveyance thereof, may by an order divest the owned by a fisherman and by the lawful use
title of any party and vest it in others, which shall of which he earns his livelihood;
have the force and effect of a conveyance 9) So much of the salaries, wages, or earnings of
executed in due form of law. the judgment obligor for his personal services
with 4 months preceding the levy as are
EXECUTION OF SPECIAL JUDGMENTS (SEC. necessary for the support of his family;
11) 10) Lettered gravestones;
11) Monies, benefits, privileges, or annuities
When a judgment requires the performance of accruing or in any manner growing out of any
any act other, a certified copy of the judgment life insurance;
shall be attached to the writ of execution and 12) The right to receive legal support, or money
shall be served by the officer upon the party or property obtained as such support, or any
against whom the same is rendered, or upon any pension or gratuity from the government; and
 78

13) Properties specially exempted by law (Sec. Upon application of the third person
13, Rule 39). through a motion to set aside the levy on
attachment, the court shall order a
If the property is the subject of execution because summary hearing for the purpose of
of a judgment for the recovery of the price or determining whether the sheriff has acted
upon judgment of foreclosure of a mortgage upon rightly or wrongly in the performance of
the property, the property is not exempt from his duties in the execution of the writ of
execution. attachment.
The court may order the sheriff to release
PROCEEDINGS WHERE PROPERTY IS the property from the erroneous levy and
CLAIMED BY THIRD PERSONS (SEC. 16) to return the same to the third person.
In resolving the application, the court
If the property levied on is claimed by any person cannot pass upon the question of title to
other than the judgment obligor or his agent, the the property with any character of finality
officer shall not be bound to keep the property, but only insofar as may be necessary to
unless such judgment obligee, on demand of the decide if the sheriff has acted correctly or
officer, files a bond approved by the court to not.
indemnify the third-party claimant in a sum not
less than the value of the property levied on. c) INTERVENTION
This is possible because no judgment has
The officer shall not be liable for damages for the yet been rendered and under the rules, a
taking or keeping of the property, to any third- motion for intervention may be filed any
party claimant if such bond is filed. time before the rendition of the judgment
by the trial court (Sec. 2, Rule 19).
Requisites for a claim by a third person:
a) The property is levied; d) ACCION REINVINDICATORIA
b) The claimant is a person other than the The third party claimant is not precluded
judgment obligor or his agent; by Sec. 14, Rule 57 from vindicating his
c) Makes an affidavit of his title thereto or claim to the property in the same or in a
right to the possession thereof stating the separate action.
grounds of such right or title; and He may file a separate action to nullify the
d) Serves the same upon the officer making levy with damages resulting from the
the levy and the judgment obligee. unlawful levy and seizure. This action may
be a totally distinct action from the former
IN RELATION TO THIRD PARTY CLAIM IN case.
ATTACHMENT AND REPLEVIN
RULES ON REDEMPTION
Remedies available to a third person not party to
the action but whose property is the subject of WHAT MAY BE REDEEMED?
execution: The right of redemption is available only
to real properties. When personal
a) TERCERIA properties are sold in execution their sale
By making an affidavit of his title thereto is absolute and no right of redemption
or his right to possession thereof, stating may be exercised.
the grounds of such right or title.
The affidavit must be served upon the WHO MAY REDEEM?
sheriff and the attaching party (Sec. 14, a) Judgment obligor, or his successor in
Rule 57). interest in the whole or any part of the
Upon service of the affidavit upon him, the property;
sheriff shall not be bound to keep the b) Redemptioner a creditor having a lien by
property under attachment except if the virtue of an attachment, judgment or
attaching party files a bond approved by mortgage on the property sold, or on
the court. some part thereof, subsequent to the lien
The sheriff shall not be liable for damages under which the property was sold.
for the taking or keeping of the property, if
such bond shall be filed. WHEN TO REDEEM?
a) By the judgment obligor - within 1 year
b) EXCLUSION OR RELEASE OF PROPERTY from the date of the registration of the
certificate of sale.
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b) By the redemptioner - within 1 year from has expired, the last redemptioner is entitled to
the date of the registration of the the conveyance and possession.
certificate of sale if he is the first
redemptioner, or Upon the expiration of the right of redemption,
c) Within 60 days after the last redemption if the purchaser or redemptioner shall be
he is a subsequent redemptioner, provided substituted to and acquire all the rights, title,
that the judgment debtor has not interest and claim of the judgment obligor to the
exercised his right of redemption. property as of the time of the levy.

In all cases the judgment obligor shall The possession of the property shall be given to
have the entire period of one (1) year from the purchaser or last redemptioner by the same
the date of the registration of the sale to officer unless a third party is actually holding the
redeem the property. If the judgment property adversely to the judgment obligor.
obligor redeems, no further redemption is
allowed and he is restored to his estate. EXAMINATION OF JUDGMENTS OBLIGOR
WHEN JUDGMENT IS UNSATISFIED (SEC.
REDEMPTION PRICE 36)

a) By the judgment obligor When the return of a writ of execution issued

1. Purchase price against property of a judgment obligor, or any
2. 1% interest thereon up to the time of one of several obligors in the same judgment,
redemption shows that the judgment remains unsatisfied, in
3. Any amount of assessments or taxes whole or in part, the judgment obligee, at any
which the purchaser may have paid time after such return is made, shall be entitled
thereon after purchase, and interest on to an order from the court which rendered the
such last named amount at the same said judgment, requiring such judgment obligor to
rate. appear and be examined concerning his property
If the purchaser be also a creditor having a and income before such court or before a
prior lien to that of the redemptioner, commissioner appointed by it, at a specified time
other than the judgment under which such and place; and proceedings may thereupon be
purchase was made, the amount of such had for the application of the property and
other lien, with interest. income of the judgment obligor towards the
satisfaction of the judgment.
b) By the redemptioner
1. Amount paid on the last redemption; But no judgment obligor shall be so required to
2. 2% interest thereon appear before a court or commissioner outside
3. Any amount of assessments or taxes the province or city in which such obligor resides
which the last previous redemptioner or is found.
paid after the redemption by him with
interest on such last-named amount; EXAMINATION OF OBLIGOR OF JUDGMENT
4. Amount of any liens held by the last OBLIGOR (SEC. 37)
redemptioner prior to his own, with
interest. When the return of a writ of execution against the
property of a judgment obligor shows that the
Generally in judicial foreclosure sale, there is no judgment remains unsatisfied, in whole or in part,
right of redemption, but only equity of and upon proof to the satisfaction of the court
redemption. In sale of estate property to pay off which issued the writ, that person, corporation, or
debts of the estate, there is no redemption at all. other juridical entity has property of such
Only in extrajudicial foreclosure sale and sale on judgment obligor or is indebted to him, the court
execution is there the right of redemption. may, by an order, require such person,
corporation, or other juridical entity, or any officer
If no redemption be made within one (1) year or member thereof, to appear before the court or
from the date of the registration of the certificate a commissioner appointed by it, at a time and
of sale, the purchaser is entitled to a conveyance place within the province or city where such
and possession of the property; or, if so debtor resides or is found, and be examined
redeemed whenever sixty (60) days have elapsed concerning the same.
and no other redemption has been made, and
notice thereof given, and the time for redemption The service of the order shall bind all credits due
the judgment obligor and all money and property
 80

of the judgment obligor in the possession or in annulled on the grounds of want of jurisdiction,
control of such person, corporation, or juridical want of notice to the party, collusion, fraud, or
entity from the time of service; and the court may clear mistake of law or fact.
also require notice of such proceedings to be
given to any party to the action in such manner It is likewise recognized in Philippine
as it may deem proper. jurisprudence and international law that a foreign
judgment may be barred from recognition if it
EFFECT OF JUDGMENT OR FINAL ORDERS: runs counter to public policy.
RES JUDICATA (SEC. 47)

In case of a judgment or final order against a

specific thing, or in respect to the probate of a PROVISIONAL REMEDIES (Rules
will, or the administration of the estate of a 57-61)
deceased person, or in respect to the personal,
political, or legal condition or status of a
particular person or his relationship to another,
NATURE OF PROVISIONAL REMEDIES
the judgment or final order is conclusive upon the
title to the thing, the will or administration, or the
condition, status or relationship of the person; Provisional remedies are temporary, auxiliary,
and ancillary remedies available to a litigant for
however, the probate of a will or granting of
letters of administration shall only be prima facie the protection and preservation of his rights while
the main action is pending. They are writs and
evidence of the truth of the testator or intestate;
processes which are not main actions and they
presuppose the existence of a principal action.
In other cases, the judgment or final order is, with
respect to the matter directly adjudged or as to
Provisional remedies are resorted to by litigants
any other matter that could have been raised in
relation thereto, conclusive between the parties for any of the following reasons:
1) To preserve or protect their rights or
and their successors in interest by title
subsequent to the commencement of the action interests while the main action is pending;
2) To secure the judgment;
or special proceeding, litigating for the same
thing and under the same title and in the same 3) To preserve the status quo; or
4) To preserve the subject matter of the
capacity; and
action.
In any other litigation between the same parties
or their successors in interest, that only is Provisional remedies specified under the
rules are:
deemed to have been adjudged in a former
judgment or final order which appears upon its 1. Preliminary attachment (Rule 57);
2. Preliminary injunction (Rule 58);
face to have been so adjudged, or which was
actually and necessarily included therein or 3. Receivership (Rule 59);
4. Replevin (Rule 60); and
necessary thereto.
5. Support pendent lite (Rule 61).
ENFORCEMENT AND EFFECT OF FOREIGN
JUDGMENTS OR FINAL ORDERS (SEC. 48) JURISDICTION OVER PROVISIONAL
REMEDIES
1) In case of a judgment or final order upon a
The court which grants or issues a provisional
specific thing, the judgment or final order is
conclusive upon the title to the thing; and remedy is the court which has jurisdiction over
the main action. Even an inferior court may grant
2) In case of a judgment or final order against a
person, the judgment or final order is a provisional remedy in an action pending with it
and within its jurisdiction.
presumptive evidence of a right as between
the parties and their successors in interest by
a subsequent title. In either case, the PRELIMINARY ATTACHMENT (RULE 57)
judgment or final order may be repelled by
evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear Preliminary attachment is a provisional remedy
mistake of law or fact. issued upon order of the court where an action is
pending to be levied upon the property of the
A foreign judgment on the mere strength of its defendant so the property may be held by the
promulgation is not yet conclusive, as it can be sheriff as security for the satisfaction of whatever
judgment may be rendered in the.
 81

the garnishees possession and maintains the

When availed of and is granted in an action status quo until the main action is finally decided.
purely in personam, it converts the action to one Garnishment proceedings are usually directed
that is quasi in rem. In an action in rem or quasi against personal property, tangible or intangible
in rem, jurisdiction over the res is sufficient. and whether capable of manual delivery or not.
Jurisdiction over the person of the defendant is
not required. (c) LEVY ON EXECUTION writ issued by the
court after judgment by which the property of the
There is no separate action called preliminary judgment obligor is taken into custody of the
attachment. It is availed of in relation to a court before the sale of the property on execution
principal action. for the satisfaction of a final judgment. It is the
preliminary step to the sale on execution of the
Preliminary attachment is designed to: property of the judgment debtor.
1) Seize the property of the debtor before
final judgment and put the same in The grant of the remedy is addressed to
custodial egis even while the action is the discretion of the court whether or not
pending for the satisfaction of a later the application shall be given full credit is
judgment. discretionary upon the court. In
2) To enable the court to acquire jurisdiction determining the propriety of the grant, the
over the res or the property subject of the court also considers the principal case
action in cases where service in person or upon which the provisional remedy
any other service to acquire jurisdiction depends.
over the defendant cannot be affected.
GROUNDS FOR ISSUANCE OF WRIT OF
Three stages in the grant of the Preliminary ATTACHMENT
Attachment
1) The court issues the order granting the At the commencement of the action or at any
application time before entry of judgment, a plaintiff or any
2) The writ of attachment issues pursuant to proper party may have the property of the
the order granting the writ adverse party attached as security for the
3) The writ if implemented satisfaction of any judgment that may be
recovered in the following cases:
For the 2 initial stages, it is not necessary that 1) In an action for the recovery of a specified
jurisdiction over the person of the defendant be amount of money or damages, other than
first obtained. However, once the implementation moral and exemplary, on a cause of action
of the writ commences, the court must have arising from law, contract, quasi-contract,
acquired jurisdiction over the defendant for delict or quasi-delict against a party who is
without such jurisdiction, the court has no power about to depart from the Philippines with
or authority to act in any manner against the intent to defraud his creditors;
defendant. 2) In an action for money or property
embezzled or fraudulently misapplied or
PRELIMINARY ATTACHMENT HAS converted to his own use by a public
THREE TYPES officer, or an officer of a corporation, or an
attorney, factor, broker, agent or clerk, in
(a) PRELIMINARY ATTACHMENT one issued at the course of his employment as such, or
the commencement of the action or at any time by any other person in a fiduciary
before entry of judgment as security for the capacity, or for a willful violation of duty;
satisfaction of any judgment that may be 3) In an action to recover the possession of
recovered. Here the court takes custody of the property unjustly or fraudulently taken,
property of the party against whom attachment is detained or converted, when the property,
directed. or any party thereof, has been concealed,
removed, or disposed of to prevent its
(b) GARNISHMENT plaintiff seeks to subject being found or taken by the applicant or
either the property of defendant in the hands of a an authorized person;
third person (garnishee) to his claim or the 4) In an action against a party who has been
money which said third person owes the guilty of a fraud in contracting the debt or
defendant. Garnishment does not involve actual incurring the obligation upon which the
seizure of property which remains in the hands of action the action is brought, or in the
the garnishee. It simply impounds the property in performance thereof;
 82

5) In an action against a party who has issuance of the writ, conditioned that the latter
removed or disposed of his property, or is will pay all the costs which may be adjudged to
about to do so, with intent to defraud his the adverse party and all damages which he may
creditors; or sustain by reason of the attachment, if the court
6) In an action against a party who does not shall finally adjudge that the applicant was not
reside and is not found in the Philippines, entitled thereto
or on whom summons may be served by
publication (Sec. 1). RULE ON PRIOR OR CONTEMPORANEOUS
SERVICE OF SUMMONS
REQUISITES
Enforcement of the writ or preliminary
The issuance of an order/writ of execution attachment must be preceded by
requires the following: contemporaneously accompanied by the
1) The case must be any of those where service of summons, copy of the complaint,
preliminary attachment is proper; application and affidavit of the attachment
2) The applicant must file a motion whether and the bond in favor of the adverse party.
ex parte or with notice and hearing; The failure to acquire jurisdiction over the
3) The applicant must show by affidavit person of the adverse party shall render the
(under oath) that there is no sufficient implementation of the writ void.
security for the claim sought to be
enforced; that the amount claimed in the Exceptions to the requirement:
action is as much as the sum of which the 1) Where the summons could not be served
order is granted above all counterclaims; personally or by substituted service
and despite diligent efforts;
4) The applicant must post a bond executed 2) The defendant is a resident of the
to the adverse party. Philippines who is temporarily out of the
This is called an ATTACHMENT country;
BOND, which answers for all 3) The defendant is a non-resident; or
damages incurred by the party 4) The action is one in rem or quasi in rem
against whom the attachment was (Sec. 5).
issued and sustained by him by
reason of the attachment. MANNER OF ATTACHING REAL AND
PERSONAL PROPERTY
ISSUANCE AND CONTENTS OF ORDER OF
ATTACHMENT The sheriff enforcing the writ shall without delay
and with all reasonable diligence attach, to await
An order of attachment may be issued either ex judgment and execution in the action, only so
parte or upon motion with notice and hearing by much of the property in the Philippines of the
the court in which the action is pending, or by the party against whom the writ is issued, not exempt
CA or the SC. from execution, as may be sufficient to satisfy the
applicant's demand.
It may issue ex parte and even before the
summons is served upon the defendant. In attaching REAL PROPERTY, or growing crops
However, the writ may not be enforced and thereon or any interest therein, a copy of the
validly implemented unless preceded or order shall be filed with the registry of deeds
simultaneously served with the summons, a copy along with a description of the property attached
of the complaint, application for attachment, the and by leaving a copy of such order with the
order of attachment and the attachment bond. occupant of the property, if any or such other
person or his agent if found within the province.
AFFIDAVIT AND BOND
In attaching PERSONAL PROPERTY capable of
The order of attachment shall be granted only manual delivery - by taking and safely keeping it
when it appears by the affidavit of the applicant in his custody after issuing the corresponding
that the requisites for a grant of attachment are receipt therefor.
present.
As to STOCKS OR SHARES, or an interest thereon,
The applicant must thereafter give a bond by leaving with the president or managing agent
executed to the adverse party in the amount of the company, a copy of the writ, and a notice
fixed by the court in its order granting the stating that the stock or interest of the party
 83

against whom the attachment is issued is 2) By giving a counter bond executed to the
attached in pursuance of such writ. applicant, in an amount equal to the bond
posted by the latter to secure the
DEBTS AND CREDITS, including bank deposits, attachment.
financial interest, royalties, commissions and
other personal property not capable of manual DISCHARGE OF ATTACHMENT AND THE
delivery shall be attached by leaving with the COUNTER-BOND
person owing such debts, or in possession or
control of such credits or other personal property, If the attachment has already been enforced, the
or with his agent, a copy of the writ, and notice party whose property has been attached may file
that such properties are attached. a MOTION to discharge the attachment. This
motion shall be with notice and hearing. After due
As to interest of the party against whom notice and hearing, the court shall discharge the
attachment is issued in property BELONGING TO attachment if the movants makes a CASH
THE ESTATE OF THE DECEDENT are attached by DEPOSIT or files a COUNTER-BOND executed to
giving a copy of the writ and notice to the the attaching party with the clerk of court where
executor or administrator and the office of the the application is made.
clerk of court where is the estate is being settled.
Attachment may likewise be discharged without
If the property to be attached is IN CUSTODIA the need for filing of a counter-bond. This is
LEGIS, a copy of the writ shall be filed with the possible when the party whose property has been
proper court or quasi-judicial agency, and notice attached files a motion to set aside or discharge
of the attachment served upon the custodian of the attachment and during the hearing of the
such property. motion, he proves that:
1) The attachment was improperly or
WHEN PROPERTY ATTACHED IS CLAIMED BY irregularly issued or enforced; or
THIRD PERSON 2) The bond of the attaching creditor is
insufficient; or
The third party may resort to any of the following 3) The attachment is excessive and must be
remedies which are cumulative and thus could be discharged as to the excess; or
resorted independently and separately from the 4) The property is exempt from execution,
others: and as such is also exempt from
a) He may avail of the remedy of terceria - preliminary attachment.
by making an affidavit of his title thereto Improperly (e.g. writ of attachment was not
or his right to possession thereof, stating based on the grounds in Sec. 1)
the grounds of such right or title. The
affidavit must be served upon the sheriff Irregularly (e.g. writ of attachment was
and the attaching party. The sheriff shall executed without previous or
not be bound to keep the property under contemporaneous service of summons)
attachment except if the attaching party
files a bond approved by the court. SATISFACTION OF JUDGMENT OUT OF
b) The third person may invoke the courts PROPERTY ATTACHED
authority in the same case and move for a
summary hearing on his claim to decide if If judgment is rendered in favor of the attaching
the sheriff has acted correctly or not. party and execution issued, the sheriff may cause
c) The third party may file a separate action the judgment to be satisfied out of the property
to nullify the levy with damages resulting attached, if it be sufficient for that purpose.
from the unlawful levy and seizure. This
action may be totally distinct from the
case in which the attachment was issued. PRELIMINARY INJUNCTION (RULE 58)

HOW TO PREVENT THE ATTACHMENT Can be provisional remedy and can also
an action
The party whose property is sought to be
attached, my prevent the attachment by doing DEFINITIONS AND DIFFERENCES:
either of two things: PRELIMINARY INJUNCTION AND
1) By depositing with the court an amount TEMPORARY RESTRAINING ORDER
equal to the value of the property to be
attached; or
 84

A preliminary injunction is an order granted at 1) Preliminary secured before the finality

any stage of an action or proceeding prior to the of judgment.
judgment or final order, requiring a party or a 2) Final issued as a judgment, making the
court, agency or a person to either refrain injunction permanent. It perpetually
(prohibitory) from or to perform (mandatory) a restrains a person from the continuance or
particular act or acts during the pendency of the commission of an act and confirms the
action. previous preliminary injunction. It is one
included in the judgment as the relief or
Temporary restraining order (TRO) is issued is an part of the relief granted as a result of the
order to maintain the status quo between and action, hence, granted only after trial and
among the parties until the determination of the no bond is required.
prayer for a writ of preliminary injunction. The
status quo is the last, actual, peaceable and MANDATORY its purpose is to require a person
uncontested situation which precedes a to perform a particular positive act which has
controversy. already been performed and has violated the
rights of another.
The judge may issue a TRO with a limited life of a) Preliminary
20 days from date of issue. If before the b) Final
expiration of the 20 day period, the application Requisites for the issuance of mandatory
for preliminary injunction is denied, the TRO preliminary injunction
would be deemed automatically vacated. If no (a) The invasion of the right is material and
action is taken by the judge within the 20 day substantial;
period, the TRO would automatically expire on (b) The right of a complainant is clear and
the 20th day by the sheer force of law, no judicial unmistakable;
declaration to that effect being necessary. (c) There is an urgent and permanent
necessity for the writ to prevent serious
A writ of preliminary injunction cannot be granted damage.
without notice and hearing. A TRO may be
granted ex parte if it shall appear from facts WHEN WRIT MAY BE ISSUED
shown by affidavits or by the verified application
that great or irreparable injury would result to the It may be issued at any stage prior to the
applicant before the matter can be heard on judgment or final order.
notice, the court in which the application for
preliminary injunction was made my issue a TRO GROUNDS FOR ISSUANCE OF PRELIMINARY
ex parte for a period not exceeding 20 days from INJUNCTION
service to the party sought to be enjoined.
1) The applicant is entitled to the relief
REQUISITES demanded, and the whole or part of such
relief consists in restraining the commission or
1) There must be a verified petition, continuance of the act or acts complained of,
2) The application must establish that he has a or in requiring the performance of an act or
right of relief or a right to be protected and acts either for a limited period or perpetually;
that the act against which the injunction is or
sought violates such right, 2) The commission, continuance or non-
3) The applicant must establish that there is a performance of the act or acts complained of
need to restrain the commission of the during the litigation would probably work
continuance of the acts complained of and if injustice to the applicant; or
not enjoined would work injustice to him, 3) A party, court, agency or a person is doing,
4) A bond must be posted, unless otherwise threatening or is attempting to do, or is
exempted by the court. procuring or suffering to be done, some act or
5) The threatened injury must be incapable of acts probably in violation of the rights of the
pecuniary estimation. applicant respecting the subject of the action
or proceeding, and tending to render the
KINDS OF INJUNCTION judgment ineffectual.

PROHIBITORY its purpose is to prevent a GROUNDS FOR OBJECTION TO OR FOR THE

person from the performance of a particular act DISSOLUTION OF INJUNCTION OR
which has not yet been performed. RESTRAINING ORDER
 85

1) Upon showing of insufficiency of the subdivisions, officials or any person or entity

application; whether public or private acting under the
2) Other grounds upon affidavit of the party or government direction, to restrain, prohibit or
person enjoined; compel the following acts:
3) Appears after hearing that irreparable 1) Acquisition, clearance and development of
damage to the party or person enjoined will the right of way and/or site or location of
be caused while the applicant can be fully any government project,
compensated for such damages as he may 2) Bidding or awarding of a contract or
suffer, and the party enjoined files a counter- project of the national government,
bond; 3) Commencement, prosecution, execution,
4) Insufficiency of the bond; implementation, operation of any such
5) Insufficiency of the surety or sureties. contract or project,
4) Termination or rescission of any such
DURATION OF TRO contract/project and
5) The undertaking or authorization of any
The lifetime of a TRO is 20 days, which is non- other lawful activity necessary for such
extendible (AM 02-02-07-SC). contract or project.
Any TRO, preliminary injunction and
If it is shown that the applicant would suffer great preliminary mandatory injunction issued in
or irreparable injury before the application for the violation of the above prohibition shall be
writ of injunction can be heard, the court may void.
issue a temporary restraining order (TRP) ex
parte which shall be effective for a period not Exceptions to the prohibition:
exceeding twenty (20) days from service on the a) In cases of extreme urgency;
party sought to be enjoined. Within the said b) If it involves constitutional issue;
twenty-day period, the court must order said c) Grave injustice and irreparable
party to show cause why the injunction should injury will arise unless a TRO is
not be granted, determine within the same period issued.
whether or not the preliminary injunction shall be
granted, and accordingly issue the corresponding In one case, the SC said that injunction is
order. not available to stop infrastructure
projects of the government including
If the matter is of extreme urgency and the arrastre and stevedoring operations.
applicant will suffer grave injustice and
irreparable injury, the executive judge of a RULE ON PRIOR OR CONTEMPORANEOUS
multiple-sala court or the presiding judge of a SERVICE OF SUMMONS IN RELATION TO
single sala court may issue ex parte a temporary ATTACHMENT
restraining order effective for only seventy-two
(72) hours. Within such period, the judge shall When an application for a writ of preliminary
conduct a summary hearing to determine injunction or TRO is made in a complaint or other
whether the temporary restraining order shall be initiatory pleading, the case, if filed in a multi-sala
extended to 20 days. The 72 hours shall be court, shall be raffled only after notice to and in
included in the maximum 20 day period. the presence of the adverse party. In any event,
such notice shall be preceded or
If a TRO is by the Court of Appeals or a member contemporaneously accompanied by a service of
thereof, it shall be effective for sixty (60) days summons, together with a copy of the complaint
from notice to service party to be enjoined. or initiatory pleading and the applicants affidavit
and bond, upon the adverse party in the
If a TRO is issued by the Supreme Court or a Philippines.
member thereof, it shall be effective until further
orders. It is not available where
a) the summons could not be served
BAN OF TRO OR WRIT OF INJUNCTION IN personally or by substituted service
CASES INVOLVING GOVERNMENT despite diligent efforts or
INFRASTRUCTURE PROJECTS: RA 8975 b) where the adverse party is a resident of
the Philippines temporarily absent
No court except the SC shall issue any or therefrom or is a non-resident thereof.
preliminary injunction or preliminary mandatory
injunction against the government or it SUMMARY/STAGES OF INJUNCTION
 86

f) TRO is automatically vacated upon

(1) SEVENTY-TWO (72) HOUR TEMPORARY expiration of the period and without
RESTRAINING ORDER granting of preliminary injunction;
a) If the matter is of extreme urgency and g) Effectivity is not extendible without need
the applicant will suffer grave injustice of any judicial declaration to that effect;
and irreparable injury; h) No court shall have authority to extend or
b) Issued by executive judge of a multi-sala renew the same on the same ground for
court or the presiding judge of a single- which it was issued.
sala court;
c) Thereafter must (3) PRELIMINARY INJUNCTION
i. Serve summons and other a) Hearing and prior notice to the party
documents sought to be enjoined;
ii. Conduct summary hearing to b) If application is included in initiatory
determine whether the TRO shall pleading:
be extended to 20 days until the 1. Notice of raffle shall be preceded,
application for preliminary or contemporaneously
injunction can be heard. accompanied, by service of
summons, together with a copy of
(2) TWENTY (20) DAY TRO the complaint or initiatory pleading
a) If it shall appear from the facts shown by and the applicant's affidavit and
affidavits or by the verified application bond, upon the adverse party in
that great or irreparable injury would the Philippines.
result to the applicant before the matter 2. Raffled only after notice to and in
can be heard on notice; the presence of the adverse party
b) If application is included in initiatory or the person to be enjoined
pleading: c) Applicant posts a bond
1. Notice of raffle shall be preceded,
or contemporaneously (4) FINAL INJUNCTION
accompanied, by service of Note that a bond is required only in
summons, together with a copy of preliminary injunctions, but is not required
the complaint or initiatory pleading in TROs. After lapse of the 20 day TRO, the
and the applicants affidavit and court can still grant a preliminary
bond, upon the adverse party in injunction.
the Philippines; Note that irreparable injury is always a
2. Raffled only after notice to and in requisite in TROs. But in the 72 hour TRO,
the presence of the adverse party grave injustice must also be shown. In the
or the person to be enjoined. 20 day TRO, the ground is great or
c) Issued with summary hearing (to irreparable injury. Without a preliminary
determine whether the applicant will injunction, a TRO issued by the CA expires
suffer great or irreparable injury) within 24 without necessity of court action.
hours after sheriffs return of service
and/or records are received by the branch Only SC ca issue a Status Quo Order
selected by raffle;
d) Within 20-day period, the court must order
said person to show cause why the
injunction should not be granted, and RECEIVERSHIP (RULE 59)
determine whether or not the preliminary
injunction shall be granted, and Can be applied even judgment is final and
accordingly issue the corresponding order; executory
e) Including the original 72 hours, total Receivership is a provisional remedy wherein
effectivity of TRO shall: the court appoints a representative to
1. Not exceed 20 days, if issued by an preserve, administer, dispose of and prevent
RTC or MTC; the loss or dissipation of the real or personal
2. Not exceed 60 days, if issued by property during the pendency of an action.
the CA or a member thereof; It may be the principal action itself or a mere
3. Until further orders, if issued by the provisional remedy; it can be availed of even
SC. after the judgment has become final and
executory as it may be applied for to aid
execution or carry judgment into effect.
 87

CASES WHEN RECEIVER MAY BE 1) Before issuing the order appointing a receiver
APPOINTED the court shall require the applicant to file a
bond executed to the party against whom the
Upon a verified application, one or more receivers application is presented, in an amount to be
of the property subject of the action or fixed by the court, to the effect that the
proceeding may be appointed by the court where applicant will pay such party all damages he
the action is pending or by the Court of Appeals may sustain by reason of the appointment of
or by the Supreme Court, or a member thereof, in such receiver in case the applicant shall have
the following cases: procured such appointment without sufficient
1. The party applying for the appointment of cause; and
a receiver has an interest in the property 2) The court may, in its discretion, at any time
or fund which is the subject of the action after the appointment, require an additional
or proceeding, and that such property or bond as further security for such damages.
fund is in danger of being lost, or
materially injured unless a receiver be GENERAL POWERS OF A RECEIVER
appointed to administer and preserve it;
2. In an action by the mortgagee for the 1) To bring and defend, in such capacity, actions
foreclosure of a mortgage that the in his own name
property is in danger of being wasted or 2) To take and keep possession of the property in
dissipated or materially injured, and that controversy
its value is probably insufficient to 3) To receive rents
discharge the mortgage debt, or that the 4) To collect debts due to himself as receiver or
parties have so stipulated in the contract to the fund, property, estate, person, or
of mortgage; corporation of which he is the receiver
3. After judgment, to preserve the property 5) To compound for and compromise the same
during the pendency of an appeal, or to 6) To make transfer
dispose of it according to the judgment, or 7) To pay outstanding debts
to aid execution when the execution has 8) To divide the money and other property that
been returned unsatisfied or the judgment shall remain among the persons legally
obligor refuses to apply his property in entitled to receive the same
satisfaction of the judgment, or otherwise 9) To do such acts respecting the property as the
to carry the judgment into effect; court may authorize.
4. Whenever in other cases it appears that 10) However, funds in the hands of a receiver
the appointment of a receiver is the most may be invested only by order of the court
convenient and feasible means of upon the written consent of all the parties to
preserving, administering, or disposing of the action. No action may be filed by or
the property in litigation. against a receiver without leave of the court
which appointed him.
REQUISITES
TWO (2) KINDS OF BONDS
1) Verified application;
2) Appointed by the court where the action is 1) Applicants Bond (for appointment of
pending, or by the CA or by the SC, or a receiver) To pay the damages the adverse
member thereof; party may sustain by reason of appointment
During the pendency of an appeal, the of receiver; and
appellate court may allow an application 2) Receivers Bond (of the appointed receiver,
for the appointment of a receiver to be aside from oath) To answer for receivers
filed in and decided by the court of origin faithful discharge of his duties.
and the receiver appointed to be subject 3) Counter Bond
to the control of said court.
3) Applicants bond conditioned on paying the TERMINATION OF RECEIVERSHIP
adverse party all damages he may sustain by
the appointment of the receiver in case the Whenever the court, motu proprio or on motion of
appointment is without sufficient cause; either party, shall determine that the necessity
4) Receiver takes his oath and files his bond. for a receiver no longer exists, it shall, after due
notice to all interested parties and hearing, settle
REQUIREMENTS BEFORE ISSUANCE OF AN the accounts of the receiver, direct the delivery of
ORDER the funds and other property in his possession to
 88

the person adjudged to be entitled to receive describing the property to which he

them, and order the discharge of the receiver entitled of possession.
from further duty as such. 2) The affidavit must state that the property
is wrongfully detained by the adverse
The court shall allow the receiver such reasonable party, alleging therein the cause of the
compensation as the circumstances of the case detention. It must also state that the
warrant, to be taxed as costs against the property has not been destrained or taken
defeated party, or apportioned, as justice for tax assessment or a fine pursuant to
requires. law, or seized under a writ of execution or
preliminary attachment, or otherwise
Receivership shall also be terminated when: placed in custodia legis. If it has been
a) its continuance is not justified by the facts seized, then the affidavit must state that it
and circumstances of the case; or is exempt from such seizure or custody.
b) court is convinced that the powers are 3) The affidavit must state the actual market
abused. value of the property; and
4) The applicant must give a bond, executed
to the adverse party and double the value
REPLEVIN (RULE 60)
of the property.

It is a proceeding by which the owner or one who AFFIDAVIT AND BOND; REDELIVERY BOND
has a general or special property in the thing
taken or detained seeks to recover possession in Affidavit, alleging:
specie, the recovery of damages being only a) That the applicant is the owner of property
incidental. claimed, describing it or entitled to its
possession;
Replevin may be a main action or a provisional b) That the property is wrongfully detained
remedy. As a principal action its ultimate goal is by the adverse party, alleging cause of its
to recover personal property capable of manual detention;
delivery wrongfully detained by a person. Used in c) That the property has not been distrained
this sense, it is a suit in itself. or taken for tax assessment or fine or
under writ of execution/attachment or
It is a provisional remedy in the nature of placed under custodia legis or if seized,
possessory action and the applicant who seeks that it is exempt or should be released;
immediate possession of the property involved and
need not be the holder of the legal title thereto. It d) The actual market value of the property.
is sufficient that he is entitled to possession
thereof. Bond, which must be double the value of
property, to answer for the return of property if
WHEN MAY WRIT BE ISSUED adjudged and pay for such sum as he may
recover from the applicant.
a) The provisional remedy of replevin can only
be applied for before answer. It is required that the redelivery bond be filed
b) A party praying for the recovery of possession within the period of 5 days after the taking of the
of personal property may, at the property. The rule is MANDATORY.
commencement of the action or at any time
before answer, apply for an order for the SHERIFFS DUTY IN THE IMPLEMENTATION
delivery of such property to him. OF THE WRIT; WHEN PROPERTY IS
CLAIMED BY THIRD PARTY
REQUISITES
Upon receiving such order, the sheriff must serve
The applicant must show by his own affidavit or a copy on the adverse party, together with a copy
that of some other person who personally knows of the application, affidavit and bond, and must
the facts: take the property and retain it in his custody.
1) A party praying for the provisional remedy
must file an application for a writ of If the property be concealed in a building or
replevin. His application must be filed at enclosure, the sheriff must demand its delivery,
the commencement of the action or at any and if it be not delivered, he must cause the
time before the defendant answers, and building or enclosure to be broken open and take
must contain an affidavit particularly the property into his possession.
 89

Sec. 1, Rule 62 provides that rules provided for

If within five (5) days after the taking of the ordinary civil actions are applicable in special civil
property by the sheriff, the adverse party does proceedings, which are not inconsistent with or
not object to the sufficiency of the bond or if the may serve to supplement the provisions of the
adverse party so objects and the court affirms its rules relating to such special civil actions.
approval of the applicant's bond or approves a
new bond, or if the adverse party requires the ORDINARY CIVIL ACTIONS VERSUS SPECIAL
return of the property but his bond is objected to CIVIL ACTIONS
and found insufficient and he does not file an
approved bond, the property shall be delivered to Although both types of actions are governed by
the applicant. the rules for ordinary civil actions, there are
certain rules that are applicable only to specific
If for any reason the property is not delivered to special civil actions. The fact that an action is
the applicant, the sheriff must return it to the subject to special rules other than those
adverse party. applicable to ordinary civil actions is what makes
a civil action special.
A 3rd party claimant may vindicate his claim to
the property, and the applicant may claim An ordinary civil action must be based on a
damages against such 3rd party, in the same or CAUSE OF ACTION. This means that the
separate action. defendant must have performed an act or
omitted to do an act in violation of the rights of
A claim on the indemnity bond should be filed another. These definitions do not fit the
within 120 days from posting of such bond. requirements of a cause of action in certain
special civil actions.
If the property taken is claimed by a third person
and make an affidavit of his title or right to the The cause of action as defined and required of
possession thereof and serves such affidavit upon an ordinary civil action finds no application to
the sheriff while the latter has possession of the the special civil action of declaratory relief. It
property and a copy thereof upon the applicant, finds no application also in a complaint for
the sheriff shall not be bound to keep the interpleader. In this action, the plaintiff may
property under replevin or deliver it to the file a complaint even if he has sustained no
applicant UNLESS the applicant on demand of actual transgression of his rights. In fact, he
said sheriff, shall file a bond approved by the actually has no interest in the subject matter
court to indemnify the third-party claimant in the of the action. This is not so in an ordinary civil
sum not less than the value of the property. action.

The sheriff shall not be liable for damages, for the Ordinary civil actions may be filed initially in
taking or keeping of such property, to any such either the MTC or the RTC depending upon the
third-party claimant if such bond shall be filed. JURISDICTIONAL AMOUNT OR THE NATURE of the
action involved. On the other hand, there are
special civil actions which can only be filed in an
MTC like the actions for forcible entry and
unlawful detainer. There are also special civil
SPECIAL CIVIL ACTIONS (Rules 62 actions which cannot be commenced in the MTC,
71) foremost of which are the petitions for certiorari,
prohibition, and mandamus.

NATURE OF SPECIAL CIVIL ACTIONS The VENUE in ordinary civil actions is determined
by either the residence of the parties where the
action is personal or by the location of the
Special civil actions are basically ordinary civil
property where the action is real. This does not
proceedings; what makes them special are the
always apply to a special civil action.
distinct peculiarities inherent in their very nature
not found in ordinary civil actions.
While ordinary civil actions when filed are
They are actions in themselves, but possessing denominated as complaints, some special civil
special matters that required special procedures. actions are not denominated as such but
For this reason, these proceedings are classified petitions.
as special civil actions.
 90

(a) Special civil actions initiated by filing of subject matter, or an interest which in whole or in
a Petition: part is not disputed by the claimants, he may
1) Declaratory relief other than similar bring an action against the conflicting claimants
remedies; to compel them to interplead and litigate their
2) Review of adjudication of the COMELEC several claims among themselves.
and COA;
3) Certiorari, prohibition and mandamus;
DECLARATORY RELIEFS AND SIMILAR
4) Quo warranto; and
REMEDIES (RULE 63)
5) Contempt

(b) Special civil actions initiated by filing of An action for declaratory relief is brought to
a Complaint: secure an authoritative statement of the rights
1) Interpleader; and obligations of the parties under a contract or
2) Expropriation; a statute for their guidance in the enforcement or
3) Foreclosure of real estate mortgage; compliance with the same. Thus, the purpose is
4) Partition; and to seek for a judicial interpretation of an
5) Forcible entry and unlawful detainer. instrument or for a judicial declaration of a
persons rights under a statute and not to ask for
JURISDICTION AND VENUE affirmative reliefs like injunction, damages or any
other relief beyond the purpose of the petition as
The subject matter of a petition for declaratory declared under the Rules.
relief raises issues which are not capable of
pecuniary estimation and must be filed with the The subject matter in a petition for declaratory
Regional Trial Court. It would be error to file the relief is any of the following:
petition with the Supreme Court which has no a) Deed;
original jurisdiction to entertain a petition for b) Will;
declaratory relief. c) Contract or other written instrument;
d) Statute;
e) Executive order or regulation;
INTERPLEADER (RULE 62) f) Ordinance; or
g) Any other governmental regulation.
It is a special civil action filed by a person, who
has property in his possession or an obligation to The petition for declaratory relief is filed before
render, wholly or partially, against whom two the occurrence of any breach or violation of the
conflicting claims are made upon the same deed, contract, statute, ordinance or executive
subject matter and over which he claims no order or regulation. It will not prosper when
interest, to compel the claimants to interplead brought after a contract or a statute has already
and to litigate their conflicting claims among been breached or violated. If there has already
themselves. been a breach, the appropriate ordinary civil
action and not declaratory relief should be filed.
REQUISITES FOR INTERPLEADER
WHO MAY FILE THE ACTION
1) There must be two or more claimants with
adverse or conflicting interests to a property 1) Any person interested under a deed, will,
in the custody or possession of the plaintiff; contract or other written instrument or whose
2) The plaintiff in an action for interpleader has rights are affected by a statute, executive
no claim upon the subject matter of the order or regulation, ordinance or other
adverse claims or if he has an interest at all, governmental regulation may before breach
such interest is not disputed by the claimants; or violation thereof, bring an action in the RTC
3) The subject matter of the adverse claims to determine any question of construction or
must be one and the same; and validity arising and for a declaration of his
4) The parties impleaded must make effective rights or duties, thereunder.
claims. 2) Those who may sue under the contract should
be those with interest under the contract like
WHEN TO FILE the parties, the assignees and the heirs as
required by substantive law.
Whenever conflicting claims upon the same 3) If it be a statute, executive order, regulation
subject matter are or may be made against a or ordinance, the petitioner is one whose
person who claims no interest whatever in the rights are affected by the same. The other
 91

parties are all persons who have or claim any On the other hand, the court does not have the
interest which would be affected by the discretion to refuse to act with respect to actions
declaration. The rights of person not made described as similar remedies. Thus, in an action
parties to the action do not stand to be for reformation of an instrument, to quiet or to
prejudiced by the declaration. consolidate ownership, the court cannot refuse to
render a judgment.
REQUISITES OF ACTION FOR DECLARATORY
RELIEF CONVERSION TO ORDINARY ACTION

1) The subject matter must be a deed, will, If before final termination of the case, a breach
contract or other written instrument, statute, should take place, the action may be converted
executive order or regulation or ordinance; into ordinary action to avoid multiplicity of suits.
2) The terms of said document or the validity
thereof are doubtful and require judicial Ordinary civil action plaintiff alleges that his
construction; right has been violated by the defendant;
3) There must have been no breach of said judgment rendered is coercive in character; a writ
document; of execution may be executed against the
4) There must be actual justiciable controversy defeated party.
or the ripening seeds of one (there is
threatened litigation the immediate future); Special civil action of declaratory relief an
5) there must be allegation of any threatened, impending violation is sufficient to file a
imminent and inevitable violation of declaratory relief; no execution may be issued;
petitioners right sought to be prevented by the court merely makes a declaration.
the declaratory relief sought;
6) The controversy is between persons whose PROCEEDINGS CONSIDERED AS SIMILAR
interests are adverse; REMEDIES
7) The issue must be ripe for judicial
determination e.g. administrative remedies Similar remedies are:
already exhausted; (a) Action for reformation of an
8) The party seeking the relief has legal interest instrument;
in the controversy; and (b) Action for quieting of title; and
9) Adequate relief is not available thru other (c) Action to consolidate ownership (Art.
means. 1607, Civil Code).

WHEN COURT MAY REFUSE TO MAKE A. REFORMATION OF AN INSTRUMENT

JUDICIAL DECLARATION
It is not an action brought to reform a contract
Grounds for the court to refuse to exercise but to reform the instrument evidencing the
declaratory relief; contract. It presupposes that there is nothing
a) A decision would not terminate the wrong with the contract itself because there is a
uncertainty or controversy which gave rise meeting of minds between the parties.
to the action; or
b) The declaration or construction is not The contract is to be reformed because despite
necessary and proper under the the meeting of minds of the parties as to the
circumstances as when the instrument or object and cause of the contract, the instrument
the statute has already been breached. which is supposed to embody the agreement of
the parties does not reflect their true agreement
In declaratory relief, the court is given the by reason of mistake, inequitable conduct or
discretion to act or not to act on the petition. It accident. The action is brought so the true
may therefore choose not to construe the intention of the parties may be expressed in the
instrument sought to be construed or could instrument (Art. 1359, CC).
refrain from declaring the rights of the petitioner
under the deed or the law. The instrument may be reformed if it does not
A refusal of the court to declare rights or express the true intention of the parties because
construe an instrument is actually the of lack of skill of the person drafting the
functional equivalent of the dismissal of instrument (Art. 1363, CC).
the petition.
If the parties agree upon the mortgage or pledge
of property, but the instrument states that the
 92

property is sold absolutely or with a right of without a judicial order, after the vendor has
repurchase, reformation of the instrument is been duly heard.
proper (Art. 1365, CC).
The action brought to consolidate
Where the consent of a party to a contract has ownership is not for the purpose of
been procured by fraud, inequitable conduct or consolidating the ownership of the property
accident, and an instrument was executed by the in the person of the vendee or buyer but for
parties in accordance with the contract, what is the registration of the property. The lapse of
defective is the contract itself because of vitiation the redemption period without the seller a retro
of consent. exercising his right of redemption consolidates
ownership or title upon the person of the vendee
The remedy is not to bring an action for by operation of law. Art. 1607 requires the filing
reformation of the instrument but to file an action of the petition to consolidate ownership because
for annulment of the contract (Art. 1359, CC). the law precludes the registration of the
consolidated title without judicial order.
Reformation of the instrument cannot be brought
to reform any of the following: C. QUIETING OF TITLE TO REAL PROPERTY
1) Simple donation inter vivos wherein no
condition is imposed; This action is brought to remove a cloud on title
2) Wills; or to real property or any interest therein. The
3) When the agreement is void (Art. 1666, action contemplates a situation where the
CC). instrument or a record is apparently valid or
effective but is in truth and in fact invalid,
B. CONSOLIDATION OF OWNERSHIP ineffective, voidable or unenforceable, and may
be prejudicial to said title to real property.
The concept of consolidation of ownership under
Art. 1607, Civil Code, has its origin in the It may also be brought as a preventive remedy to
substantive provisions of the law on sales. Under prevent a cloud from being cast upon title to real
the law, a contract of sale may be extinguished property or any interest therein (Art. 476).
either by legal redemption (Art. 1619) or
conventional redemption (Art. 1601). The plaintiff need not be in possession of the real
property before he may bring the action as long
Legal redemption (retracto legal) is a statutory as he can show that he has a legal or an
mandated redemption of a property previously equitable title to the property which is the subject
sold. For instance, a co-owner of a property may matter of the action (Art. 477).
exercise the right of redemption in case the
shares of all the other co-owners or any of them
REVIEW OF JUDGMENTS AND FINAL ORDERS
are sold to a third person (Art. 1620). The owners
OR RESOLUTION OF THE COMELEC AND COA
of adjoining lands shall have the right of
(RULE 64)
redemption when a piece of rural land with a size
of one hectare or less is alienated (Art. 1621).
A judgment or final order or resolution of the
Conventional redemption (pacto de retro) sale is Commission on Elections and the Commission on
one that is not mandated by the statute but one Audit may be brought by the aggrieved party to
which takes place because of the stipulation of the Supreme Court on certiorari. The filing of a
the parties to the sale. The period of redemption petition for certiorari shall not stay the execution
may be fixed by the parties in which case the of the judgment or final order or resolution sought
period cannot exceed ten (10) years from the to be reviewed, unless the SC directs otherwise
date of the contract. In the absence of any upon such terms as it may deem just. To prevent
agreement, the redemption period shall be four the execution of the judgment, the petitioner
(4) years from the date of the contract (Art. should obtain a temporary restraining order or a
1606). writ of preliminary injunction because the mere
filing of a petition does not interrupt the course of
When the redemption is not made within the the principal case.
period agreed upon, in case the subject matter of
the sale is a real property, Art. 1607 provides Decisions of the Civil Service Commission shall be
that the consolidation of ownership in the vendee appealed to the Court of Appeals which has
shall not be recorded in the Registry of Property exclusive appellate jurisdiction over all
 93

judgments or final orders of such commission (RA constitutional provision, the SC promulgated Rule
7902). 64.

The petition shall be filed within thirty (30) days DISTINCTION IN THE APPLICATION OF RULE
from notice of the judgment or final order or 65 TO JUDGMENTS OF THE COMELEC AND
resolution sought to be reviewed. The filing of a COA AND THE APPLICATION OF RULE 65 TO
motion for new trial or reconsideration of said OTHER TRIBUNALS, PERSONS AND
judgment or final order or resolution, if allowed OFFICERS
under the procedural rules of the Commission
concerned, shall interrupt the period herein fixed. Rule 64 Rule 65
If the motion is denied, the aggrieved party may Directed only to the Directed to any
file the petition within the remaining period, but judgments, final orders tribunal, board or
which shall not be less than five (5) days in any or resolutions of the officers exercising
event, reckoned from notice of denial. COMELEC and COA; judicial or quasi-judicial
functions;
Note that petition for review from decisions of Filed within 30 days Filed within 60 days
quasi-judicial agencies to the CA should be within from notice of the from notice of the
15 days and does not stay the decision appealed. judgment; judgment;
The filing of a motion The period within which
Petition for review from decisions of the RTC for reconsideration or a to file the petition if the
decided in its appellate jurisdiction filed to the CA motion for new trial if motion for
should be filed within 15 days and stays allowed interrupts the reconsideration or new
execution, unless the case is under the rules of period for the filing of trial is denied is 60
Summary Procedure. Special civil actions of the petition for days from notice of the
certiorari, prohibition, and mandamus, from certiorari. If the motion denial of the motion.
Comelec and COA should be filed within 30 days, is denied, the
and does not stay the decision appealed. aggrieved party may
file the petition within
Bottomline: Decisions of quasi-judicial bodies are the remaining period,
not stayed by appeal alone. Decisions of regular but which shall not be
courts are stayed on appeal. Although in petition less than 5 days
for review on certiorari to the SC via Rule 45, reckoned from the
there is no express provision on effect of appeal notice of denial.
on execution.
5-day Rule does not apply in filing of
The not less than 5 days provision for filing a notice of appeal
pleading applies only to:
a) filing an answer after a denial of a MtD;
b) filing an answer after denial or service of a CERTIORARI, PROHIBITION AND MANDAMUS
bill of particulars; (RULE 65)
c) filing an special civil action for certiorari
from a decision of the Comelec or CoA Certiorari is a remedy for the correction of errors
after denial of a MfR or MNT. It does not of jurisdiction, not errors of judgment. It is an
apply to filing appeal from decisions of original and independent action that was not part
other entities after denial of a MfR or MNT. of the trial that had resulted in the rendition of
In such cases, either the parties have a the judgment or order complained of. Since the
fresh 15 days, or the balance. issue is jurisdiction, an original action for
certiorari may be directed against an
APPLICATION OF RULE 65 UNDER RULE 64 interlocutory order of the lower court prior to an
appeal from the judgment.
Sec. 7, Art. IX-A of the Constitution reads, unless
otherwise provided by the Constitution or by law, Where the error is not one of jurisdiction, but of
any decision, order or ruling of each commission law or fact which is a mistake of judgment, the
may be brought to the Supreme Court on proper remedy should be appeal. Hence, if there
certiorari by the aggrieved party within 30 days was no question of jurisdiction involved in the
from receipt of a copy thereof. The provision was decision and what was being questioned was
interpreted by the Supreme Court to refer to merely the findings in the decision of whether or
certiorari under Rule 65 and not appeal by not the practice of the other party constitutes a
certiorari under Rule 45. To implement the above
 94

violation of the agreement, the matter is a proper certiorari because one of the requirements for
subject of appeal, not certiorari. certiorari is that there is no appeal.

Filing of petition for certiorari does not Exceptions to the rule that certiorari is not
interrupt the course of the principal action available when the period for appeal has lapsed
nor the running of the reglementary periods and certiorari may still be invoked when appeal is
involved in the proceeding, unless an lost are the following:
application for a restraining order or a writ 1) Appeal was lost without the appellants
of preliminary injunction to the appellate negligence;
court is granted. Neither does it interrupt the 2) When public welfare and the advancement
reglementary period for the filing of an answer of public policy dictates;
nor the course of the case where there is no writ 3) When the broader interest of justice so
of injunction. requires;
4) When the writs issued are null and void;
In a summary proceeding, petitions for certiorari, and
prohibition or mandamus against an interlocutory 5) When the questioned order amounts to an
order of the court are not allowed. oppressive exercise of judicial authority.

Certiorari is not and cannot be made a substitute

for an appeal where the latter remedy is available
but was lost through fault or negligence. The
remedy to obtain a reversal of judgment on the
merits is appeal. This holds true even if the error
ascribed to the lower court is its lack of
jurisdiction over the subject matter, or the
exercise of power in excess thereof, or grave
abuse of discretion. The existence and availability
of the right to appeal prohibits the resort to

CERTIORARI PROHIBITION MANDAMUS

Certiorari is an extraordinary Prohibition is an extraordinary Mandamus is an extraordinary

writ ANNULLING OR MODIFYING writ COMMANDING a tribunal, writ commanding a tribunal,
the proceedings of a tribunal, corporation, board or person, corporation, board or person, to
board or officer exercising whether exercising judicial, do an act REQUIRED to be done:
judicial or quasi-judicial quasi-judicial or ministerial a) When he unlawfully neglects
functions when such tribunal, functions, TO DESIST from the performance of an act
board or officer has acted further proceedings when said which the law specifically
without or in excess of its or his proceedings are without or in enjoins as a duty, and there
jurisdiction, or with grave abuse excess of its jurisdiction, or with is no other plain, speedy and
of discretion amounting to lack abuse of its discretion, there adequate remedy in the
or excess of jurisdiction, there being no appeal or any other ordinary course of law; or
being no appeal or any other plain, speedy and adequate b) When one unlawfully
plain, speedy and adequate remedy in the ordinary course excludes another from the
remedy in the ordinary course of law (Sec. 2, Rule 65). use and enjoyment of a right
of law (Sec. 1, Rule 65). or office to which the other
is entitled (Sec. 3, Rule 65).
Directed against a person Directed against a person Directed against a person
exercising to judicial or quasi- exercising judicial or quasi- exercising ministerial duties
judicial functions judicial functions, or ministerial
functions
The tribunal, board or officer The tribunal, corporation, board It must be the duty of the
has acted without, or in excess or person must have acted defendant to perform the act,
of jurisdiction or with abuse of without or in excess of which is ministerial and not
discretion amounting to lack or jurisdiction or with grave abuse discretionary, because the same
excess or jurisdiction of discretion amounting to lack is mandated by law.
of jurisdiction;
 95

There is no appeal or any plain, There is no appeal or any plain, The defendant unlawfully
speedy and adequate remedy speedy and adequate remedy neglects the performance of the
in the ordinary course of law. in the ordinary course of law. duty enjoined by law;
Object is to correct Object is to prevent Object is to compel
Purpose is to annul or modify Purpose is to stop the Purpose is to compel
the proceedings proceedings performance of the act required
and to collect damages
Person or entity must have Person or entity must have Person must have neglected a
acted without or in excess of acted without or in excess of ministerial duty or excluded
jurisdiction, or with grave abuse jurisdiction, or with grave abuse another from a right or office
of discretion of discretion
A person aggrieved thereby A person aggrieved thereby The person aggrieved thereby
may file a verified petition in may file a verified petition in may file a verified petition in
the proper court, alleging the the proper court, alleging the the proper court, alleging the
facts with certainty and praying facts with certainty and praying facts with certainty and praying
that judgment be rendered that judgment be rendered that judgment be rendered
annulling or modifying the commanding the respondent to commanding the respondent,
proceedings of such tribunal, desist from further proceedings immediately or at some other
board or officer, and granting in the action or matter specified time to be specified by the
such incidental reliefs as law therein, or otherwise granting court, to do the act required to
and justice may require. The such incidental reliefs as law be done to protect the rights of
petition shall be accompanied and justice may require. The the petitioner, and to pay the
by a certified true copy of the petition shall likewise be damages sustained by the
judgment, order or resolution accompanied by a certified true petitioner by reason of the
subject thereof, copies of all copy of the judgment, order or wrongful acts of the respondent.
pleadings and documents resolution subject thereof, The petition shall also contain a
relevant and pertinent thereto, copies of all pleadings and sworn certification of non-forum
and a sworn certification of non- documents relevant and shopping.
forum shopping. pertinent thereto, and a sworn
certification of non-forum
shopping.

PROHIBITION INJUNCTION

Always the main action May be the main action or just a provisional
remedy
Directed against a court, a tribunal exercising Directed against a party
judicial or quasi-judicial functions
Ground must be the court acted without or in Does not involve a question of jurisdiction
excess of jurisdiction

PROHIBITION MANDAMUS

To prevent an act by a respondent To compel an act desired

May be directed against entities exercising May be directed against judicial and non-judicial
judicial or quasi-judicial, or ministerial functions entities
Extends to discretionary functions Extends only to ministerial functions

MANDAMUS QUO WARRANTO

Clarifies legal duties, not legal titles Clarifies who has legal title to the office, or
franchise
Respondent, without claiming any right to the Respondent usurps the office
office, excludes the petitioner
 96

Mandamus can be issued to perform an act but not to approve a certain request

INJUNCTIVE RELIEF injunction has been issued against the public

respondent from further proceeding in the case.
The court in which the petition is filed may issue
orders expediting the proceedings, and it may The public respondent shall proceed with the
also grant a temporary restraining order or a writ principal case within ten (10) days from the filing
of preliminary injunction for the preservation of of a petition for certiorari with a higher court or
the rights of the parties pending such tribunal, absent a Temporary Restraining Order
proceedings. The petition shall not interrupt the (TRO) or a Writ of Preliminary Injunction, or upon
course of the principal case unless a temporary its expiration. Failure of the public respondent to
restraining order or a writ of preliminary proceed with the principal case may be a ground
for an administrative charge (AM 07-7-12-SC,
Dec. 12, 2007).

CERTIORARI AS A MODE OF APPEAL CERTIORARI AS A SPECIAL CIVIL ACTION

(RULE 45) (RULE 65)
Called petition for review on certiorari, is a A special civil action that is an original action and not a
mode of appeal, which is but a continuation mode of appeal, and not a part of the appellate
of the appellate process over the original process but an independent action.
case;
Seeks to review final judgments or final May be directed against an interlocutory order of the
orders; court or where not appeal or plain or speedy remedy
available in the ordinary course of law
Raises only questions of law; Raises questions of jurisdiction because a tribunal,
board or officer exercising judicial or quasi-judicial
functions has acted without jurisdiction or in excess of
jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction;
Filed within 15 days from notice of judgment Filed not later than 60 days from notice of judgment,
or final order appealed from, or of the denial order or resolution sought to be assailed and in case a
of petitioners motion for reconsideration or motion for reconsideration or new trial is timely filed,
new trial; whether such motion is required or not, the 60 day
period is counted from notice of denial of said motion;
Extension of 30 days may be granted for Extension no longer allowed;
justifiable reasons
Does not require a prior motion for Motion for Reconsideration is a condition precedent,
reconsideration; subject to exceptions
Stays the judgment appealed from; Does not stay the judgment or order subject of the
petition unless enjoined or restrained;
Parties are the original parties with the The tribunal, board, officer exercising judicial or quasi-
appealing party as the petitioner and the judicial functions is impleaded as respondent
adverse party as the respondent without
impleading the lower court or its judge;
Filed with only the Supreme Court May be filed with the Supreme Court, Court of Appeals,
Sandiganbayan, or Regional Trial Court
SC may deny the decision motu propio on
the ground that the appeal is without merit,
or is prosecuted manifestly for delay, or that
the questions raised therein are too
unsubstantial to require consideration.

The remedies of appeal and certiorari are satisfactorily shown to be an inadequate

mutually exclusive and not alternative or remedy. Thus, a petitioner must show valid
successive. The antithetic character of reasons why the issues raised in his
appeal and certiorari has been generally petition for certiorari could not have been
recognized and observed save only on raised on appeal.
those rare instances when appeal is
 97

PROHIBITION MANDAMUS INJUNCTION

Prohibition is an extraordinary Mandamus is an extraordinary Main action for injunction seeks

writ commanding a tribunal, writ commanding a tribunal, to enjoin the defendant from
corporation, board or person, corporation, board or person, to the commission or continuance
whether exercising judicial, do an act required to be done: of a specific act, or to compel a
quasi-judicial or ministerial (a) When he unlawfully neglects particular act in violation of the
functions, to desist from the performance of an act which rights of the applicant.
further proceedings when said the law specifically enjoins as a Preliminary injunction is a
proceedings are without or in duty, and there is no other provisional remedy to preserve
excess of its jurisdiction, or plain, speedy and adequate the status quo and prevent
with abuse of its discretion, remedy in the ordinary course future wrongs in order to
there being no appeal or any of law; or (b) When one preserve and protect certain
other plain, speedy and unlawfully excludes another interests or rights during the
adequate remedy in the from the use and enjoyment of pendency of an action.
ordinary course of law a right or office to which the
(Sec. 2, Rule 65). other is entitled (Sec. 3, Rule
65).
Special civil action Special civil action Ordinary civil action
To prevent an encroachment, To compel the performance of a For the defendant either to
excess, usurpation or ministerial and legal duty; refrain from an act or to perform
assumption of jurisdiction; not necessarily a legal and
ministerial duty;
May be directed against May be directed against judicial Directed against a party
entities exercising judicial or and non-judicial entities
quasi-judicial, or ministerial
functions
Extends to discretionary Extends only to ministerial Does not necessarily extend to
functions functions ministerial, discretionary or
legal functions;
Always the main action Always the main action May be the main action or just a
provisional remedy
May be brought in the May be brought in the Supreme May be brought in the Regional
Supreme Court, Court of Court, Court of Appeals, Trial Court which has jurisdiction
Appeals, Sandiganbayan, or in Sandiganbayan, or in the over the territorial area where
the Regional Trial Court which Regional Trial Court which has respondent resides.
has jurisdiction over the jurisdiction over the territorial
territorial area where area where respondent resides.
respondent resides.

EXCEPTIONS TO FILING OF MOTION FOR 6) When is urgent necessity for the resolution of
RECONSIDERATION BEFORE FILING the question;
PETITION 7) When Motion for Reconsideration would be
useless, e.g. the court already indicated it
1) When the issue is one purely of law; would deny any Motion for Reconsideration;
2) When there is urgency to decide upon the 8) In a criminal case, where relief from order of
question and any further delay would arrest is urgent and the granting of such relief
prejudice the interests of the government or by the trial court is improbable;
of the petitioner; 9) Where the proceedings was ex parte or in
3) Where the subject matter of the action is which the petitioner had no opportunity to
perishable; object;
4) When order is a patent nullity, as where the 10) When petitioner is deprived of due process
court a quo has no jurisdiction or there was no and there is extreme urgency for urgent relief;
due process; and
5) When questions have been duly raised and 11) When issue raised is one purely of law or
passed upon by the lower court; public interest is involved.
 98

RELIEFS PETITIONER IS ENTITLED TO A petition for certiorari must be based on

jurisdictional grounds because as long as the
The primary relief will be annulment or respondent acted with jurisdiction, any error
modification of the judgment, order or resolution committed by him or it in the exercise thereof will
or proceeding subject of the petition. It may also amount to nothing more than an error of
include such other incidental reliefs as law and judgment which may be reviewed or corrected by
justice may require. The court, in its judgment appeal.
may also award damages and the execution of
the award for damages or costs. EFFECTS OF FILING OF AN
UNMERITORIOUS PETITION
ACTIONS/OMISSIONS OF MTC/RTC IN
ELECTION CASES The Court may impose motu proprio, based on
res ipsa loquitur, other disciplinary sanctions or
Under Rule 65, the proper party who can file a measures on erring lawyers for patently dilatory
petition for certiorari, prohibition or mandamus is an unmeritorious petition for certiorari.
the person aggrieved by the action of a trial court
or tribunal in a criminal case pending before it. The court may dismiss the petition if it finds the
same patently without merit or prosecuted
Ordinarily, the petition is filed in the name of the manifestly for delay, or if the questions raised
People of the Philippines by the Solicitor General. therein are too unsubstantial to require
However, there are cases when such petition may consideration.
be filed by other parties who have been
aggrieved by the order or ruling of the trial In such event, the court may award in favor of the
courts. In the prosecution of election cases, the respondent treble costs solidarily against the
aggrieved party is the Comelec, who may file the petitioner and counsel, in addition to subjecting
petition in its name through its legal officer or counsel to administrative sanctions.
through the Solicitor General if he agrees with the
action of the Comelec. QUO WARRANTO (RULE 66)
WHERE TO FILE PETITION
Supreme Court Subject to the doctrine Quo warranto is a demand made by the state
of hierarchy of courts upon some individual or corporation to show by
and only when what right they exercise some franchise or
compelling reasons privilege appertaining to the state which,
exist for not filing the according to the Constitution and laws they
same with the lower cannot legally exercise by virtue of a grant and
courts authority from the State.
Regional Trial If the petition relates
Court to an act or an It is a special civil action commenced by a
omission of an MTC, verified petition against:
corporation, board, a) a person who usurps a public office,
officer or person position or franchise;
Court of Appeals If the petition involves b) a public officer who performs an act
only an act or an omission constituting forfeiture of a public office; or
of a quasi-judicial c) an association which acts as a corporation
agency, unless within the Philippines without being legally
otherwise provided by incorporated or without lawful authority to
law or rules do so.
Court of Appeals Whether or not in aid
or the of appellate
Sandiganbayan jurisdiction QUO WARRANTO QUO WARRANTO
Commission on In election cases (RULE 66) (ELECTION CODE)
Elections involving an act or an
omission of an MTC or Subject of the Subject of the petition
RTC petition is in relation is in relation to an
As amended by AM to an appointive elective office;
No. 07-7-12-SC, Dec. office;
12, 2007 The issue is the Grounds relied upon
 99

legality of the are: (a) ineligibility to 1) A person who usurps, intrudes into, or
occupancy of the the position; or (b) unlawfully holds or exercises a public
office by virtue of a disloyalty to the office, position or franchise;
legal appointment; Republic. 2) A public officer who does or suffers an act
Petition is brought May be instituted with which, by the provision of law, constitutes
either to the the COMELEC by any a ground for the forfeiture of his office;
Supreme Court, the voter contesting the 3) An association which acts a corporation
Court of Appeals or election of any member within the Philippines without being legally
the Regional Trial of Congress, regional, incorporated or without lawful authority so
Court; provincial or city officer; to act.
or to the MeTC, MTC or
MCTC if against any WHEN INDIVIDUAL MAY COMMENCE AN
barangay official; ACTION
Filed within one (1) Filed within ten (10)
year from the time days after the The petition may be commenced by a private
the cause of ouster, proclamation of the person in his own name where he claims to be
or the right of the results of the election; entitled to the public office or position alleged
petitioner to hold to have been usurped or unlawfully held or
the office or position exercised by another.
arose; Accordingly, the private person may maintain
Petitioner is thePetitioner may be any the action without the intervention of the
person entitled to voter even if he is not Solicitor General and without need for any
the office; entitled to the office; leave of court.
The court has to When the tribunal In bringing a petition for quo warranto, he
declare who thedeclares the candidate- must show that he has a clear right to the
person entitled to elect as ineligible, he office allegedly being held by another. It is not
the office is if he iswill be unseated but the enough that he merely asserts the right to be
the petitioner. person occupying the appointed to the office.
second place will not be
declared as the one JUDGMENT IN QUO WARRANTO ACTION
duly elected because
the law shall consider Of office, position or franchise, judgment shall be
only the person who, rendered that such respondent be ousted and
having duly filed his altogether excluded therefrom, and that the
certificate of candidacy, petitioner recover his costs. Such further
received a plurality of judgment may be rendered determining the
votes. respective rights in and to the public office,
HRET has jurisdiction involving member of position or franchise of the parties to the action
Congress as justice requires.

WHEN GOVERNMENT COMMENCE AN RIGHTS OF A PERSON ADJUDGED ENTITLED

ACTION AGAINST INDIVIDUALS TO PUBLIC OFFICE

Quo warranto is commenced by a verified petition If the petitioner is adjudged to be entitled to the
brought in the name of the Government of the office, he may sue for damages against the
Republic of the Philippines by the Solicitor alleged usurper within one (1) year from the
General, or in some instances, by a public entry of judgment establishing his right to the
prosecutor. When the action is commenced by office in question.
the Solicitor General, the petition may be brought
in the Regional Trial Court of the City of Manila,
the Court of Appeals or the Supreme Court. EXPROPRIATION (RULE 67)

An action for the usurpation of a public office, 1) To be filed with the RTC; this is action
position or franchise may be commenced by a incapable of pecuniary estimation
verified petition brought in the name of the 2) Expropriation is an exercise of the States
Republic of the Philippines thru the Solicitor power of eminent domain wherein the
General against: government takes a private property for
public purpose upon payment of just
compensation.
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the filing of the complaint, and after due notice to

MATTERS TO ALLEGE IN COMPLAINT FOR the defendant, the implementing agency shall
EXPROPRIATION immediately pay the owner of the property the
amount equivalent to the sum of:
An expropriation proceeding is commenced by 1) 100 PERCENT of the value of the property
the filing of a verified complaint which shall: based on the current relevant zonal
a) State with certainty the right of the valuation of the BIR; and
plaintiff to expropriation and the purpose 2) The value of the improvements and/or
thereof; structures as determined under Sec. 7 of
b) Describe the real or personal property RA 8974 (Sec. 4, RA 8974).
sought to be expropriated; and
c) Join as defendants all persons owning or LGU 15% market value
claiming to own, or occupying, any part of
the property or interest therein showing as DEFENSES AND OBJECTIONS
far as practicable the interest of each
defendant. If the plaintiff cannot with Omnibus Motion Rule a motion attacking a
accuracy identify the real owners, pleading, order, judgment or proceeding shall
averment to that effect must be made in include all objections then available, and all
the complaint. objections not so included shall be deemed
waived.
TWO STAGES IN EVERY ACTION FOR
EXPROPRIATION If a defendant has no objection or defense to the
action or the taking of his property, he may file
1) Determination of the authority of the plaintiff and serve a notice of appearance and a
to expropriate (appealable already at this manifestation to that effect, specifically
stage) this includes an inquiry into the designating or identifying the property in which
propriety of the expropriation, its necessity he claims to be interested, within the time stated
and the public purpose. This stage will end in in the summons. Thereafter, he shall be entitled
the issuance of an order of expropriation if the to notice of all proceedings affecting the same.
court finds for the plaintiff or in the dismissal
of the complaint if it finds otherwise. If a defendant has any objection to the filing of or
2) Determination of just compensation through the allegations in the complaint, or any objection
the court-appointed commissioners. or defense to the taking of his property, he shall
serve his answer within the time stated in the
WHEN PLAINTIFF CAN IMMEDIATELY ENTER summons. The answer shall specifically designate
INTO POSSESSION OF THE REAL PROPERTY or identify the property in which he claims to
IN RELATION TO RA 8974 have an interest, state the nature and extent of
the interest claimed, and adduce all his
Except for the acquisition of right-of-way, site or objections and defenses to the taking of his
location for any national government property. No counterclaim, cross-claim or third-
infrastructure project through expropriation, the party complaint shall be alleged or allowed in the
expropriator shall have the right to take or enter answer or any subsequent pleading.
upon the possession of the real property involved
if he deposits with the authorized government A defendant waives all defenses and objections
depositary an amount equivalent to the assessed not so alleged but the court, in the interest of
value of the property for purposes of taxation to justice, may permit amendments to the answer to
be held by such bank subject to the orders of the be made not later than ten (10) days from the
court. such deposit shall be in money, unless in filing thereof.
lieu thereof the court authorizes the deposit of a
certificate of deposit of a government bank of the However, at the trial of the issue of just
Philippines payable on demand to the authorized compensation, whether or not a defendant has
government depositary. previously appeared or answered, he may
present evidence as to the amount of the
NEW SYSTEM OF IMMEDIATE PAYMENT OF compensation to be paid for his property, and he
INITIAL JUST COMPENSATION may share in the distribution of the award.

For the acquisition of right-of-way, site or location ORDER OF EXPROPRIATION

for any national government infrastructure
project through expropriation, upon the filing of
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If the objections to and the defenses against the APPOINTMENT OF COMMISSIONERS;

right of the plaintiff to expropriate the property COMMISSIONERS REPORT; COURT ACTION
are overruled, or when no party appears to UPON COMMISSIONERS REPORT
defend as required by this Rule, the court may
issue an order of expropriation declaring that the Appointment. Upon the rendition of the order of
plaintiff has a lawful right to take the property expropriation, the court shall appoint not more
sought to be expropriated, for the public use or than three (3) competent and disinterested
purpose described in the complaint, upon the persons as commissioners to ascertain and report
payment of just compensation to be determined to the court the just compensation for the
as of the date of the taking of the property or the property sought to be taken. The order of
filing of the complaint, whichever came first. appointment shall designate the time and place
of the first session of the hearing to be held by
A final order sustaining the right to expropriate the commissioners and specify the time within
the property may be appealed by any party which their report shall be submitted to the court.
aggrieved thereby. Such appeal, however, shall Copies of the order shall be served on the parties.
not prevent the court from determining the just Objections to the appointment of any of the
compensation to be paid. commissioners shall be filed with the court within
ten (10) days from service, and shall be resolved
After the rendition of such an order, the plaintiff within thirty (30) days after all the commissioners
shall not be permitted to dismiss or discontinue shall have received copies of the objections.
the proceeding except on such terms as the court
deems just and equitable. Report. The court may order the commissioners
to report when any particular portion of the real
Appealable with the CA estate shall have been passed upon by them, and
may render judgment upon such partial report,
ASCERTAINMENT OF JUST COMPENSATION and direct the commissioners to proceed with
their work as to subsequent portions of the
The order of expropriation merely declares that property sought to be expropriated, and may
the plaintiff has the lawful to expropriate the from time to time so deal with such property. The
property but contains no ascertainment of the commissioners shall make a full and accurate
compensation to be paid to the owner of the report to the court of all their proceedings, and
property. such proceedings shall not be effectual until the
court shall have accepted their report and
So upon the rendition of the order of rendered judgment in accordance with their
expropriation, the court shall appoint not more recommendations. Except as otherwise expressly
than three (3) commissioners to ascertain the just ordered by the court, such report shall be filed
compensation for the property. Objections to the within sixty (60) days from the date the
appointment may be made within 10 days from commissioners were notified of their
service of the order of appointment. The appointment, which time may be extended in the
commissioners are entitled to fees and their fees discretion of the court. Upon the filing of such
shall be taxed as part of the costs of the report, the clerk of the court shall serve copies
proceedings, and all costs shall be paid by the thereof on all interested parties, with notice that
plaintiff except those costs of rival claimants they are allowed ten (10) days within which to file
litigating their claims. objections to the findings of the report, if they so
desire.
Where the principal issue is the determination of
just compensation, a hearing before the Action upon the report. Upon the expiration of
commissioners is indispensable to allow the the period of ten (10) days referred to in the
parties to present evidence on the issue of just preceding section, or even before the expiration
compensation. Although the findings of the of such period but after all the interested parties
commissioners may be disregarded and the trial have filed their objections to the report or their
court may substitute its own estimate of the statement of agreement therewith, the court
value, the latter may do so only for valid reasons, may, after hearing, accept the report and render
that is where the commissioners have applied judgment in accordance therewith; or, for cause
illegal principles to the evidence submitted to shown, it may recommit the same to the
them, where they have disregarded a clear commissioners for further report of facts; or it
preponderance of evidence, or where the amount may set aside the report and appoint new
allowed is either grossly inadequate or excessive. commissioners; or it may accept the report in
part and reject it in part; and it may make such
 102

order or render such judgment as shall secure to of deeds of the place in which the property is
the plaintiff the property essential to the exercise situated, and its effect shall be to vest in the
of his right of expropriation, and to the defendant plaintiff the title to the real estate so described
just compensation for the property so taken. for such public use or purpose.

RIGHTS OF PLAINTIFF UPON JUDGMENT

FORECLOSURE OF REAL ESTATE MORTGAGE
AND PAYMENT
(RULE 68)
After payment of the just compensation as
determined in the judgment, the plaintiff shall A real estate mortgage is an accessory
have the right to enter upon the property contract executed by a debtor in favor of a
expropriated and to appropriate the same for the creditor as security for the principal
public use or purpose defined in the judgment or obligation.
to retain possession already previously made. This principal obligation is a simple loan or
mutuum described in Art. 1953, Civil Code. To
Title to the property expropriated passes from the be a real estate mortgage, the contract must
owner to the expropriator upon full payment of be constituted on either immovables (real
just compensation. property) or inalienable real rights. If
constituted on movables, the contract is a
EFFECT OF RECORDING OF JUDGMENT chattel mortgage (Art. 2124, CC).
A mortgage contract may have a provision
The judgment entered in expropriation in which the mortgage is a security for
proceedings shall state definitely, by an adequate past, present and future indebtedness.
description, the particular property or interest This clause known as a DRAGNET
therein expropriated, and the nature of the public CLAUSE OR BLANKET mortgage clause
use or purpose for which it is expropriated. has its origins in American jurisprudence.
The Supreme Court ruled that mortgages
When real estate is expropriated, a certified copy given to secure future advancements are
of such judgment shall be recorded in the registry valid and legal contracts (Prudential Bank
vs. Alviar, 464 SCRA 353).

JUDGMENT ON FORECLOSURE FOR The period granted to the mortgagor for the
PAYMENT OR SALE payment of the amount found due by the court is
not just a procedural requirement but s
If after the trial, the court finds that the matters substantive right given by law to the mortgagee
set forth in the complaint are true, it shall render as his first chance to save his property from final
a judgment containing the following matters: disposition at the foreclosure sale.
a) An ascertainment of the amount due to
the plaintiff upon the mortgage debt or SALE OF MORTGAGED PROPERTY; EFFECT
obligation, including interest and other
charges as approved by the court, as well The confirmation of the sale shall divest the
as costs; rights in the property of all parties to the action
b) A judgment of the sum found due; and shall vest their rights in the purchaser,
c) An order that the amount found due be subject to such rights of redemption as may be
paid to the court or to the judgment allowed by law. The title vests in the purchaser
obligee within the period of not less than upon a valid confirmation of the sale and
90 days nor more than 120 days from the retroacts to the date of sale.
entry of judgment; and
d) An admonition that in default of such The import of Sec. 3 includes one vital effect: The
payment the property shall be sold at equity of redemption of the mortgagor or
public auction to satisfy the judgment. redemptioner is cut-off and there will be no
further redemption, unless allowed by law (as in
The judgment of the court on the above matters the case of banks as mortgagees).
is considered a final adjudication of the case and
hence, is subject to challenge by the aggrieved The equity of redemption starts from the ninety-
party by appeal or by other post-judgment day period set in the judgment of the court up to
remedies. the time before the sale is confirmed by an order
of the court. Once confirmed, no equity of
redemption may further be exercised.
 103

INSTANCES WHEN COURT CANNOT RENDER

The order of confirmation is appealable and if not DEFICIENCY JUDGMENT
appealed within the period for appeal becomes
final. Upon the finality of the order of Where the debtor-mortgagor is a non-resident
confirmation or upon the expiration of the period and who at the time of the filing of the action for
of redemption when allowed by law, the foreclosure and during the pendency of the
purchaser at the auction sale or last proceedings was outside the Philippines, it is
redemptioner, if any, shall be entitled to the believed that a deficiency judgment would not be
possession of the property and he may secure a procedurally feasible.
writ of possession, upon, motion, from the court
which ordered the foreclosure unless a third party A deficiency judgment is by nature in personam
is actually holding the same adversely to the and jurisdiction over the person is mandatory.
judgment obligor. Having been outside the country, jurisdiction over
his person could not have been acquired.
DISPOSITION OF PROCEEDS OF SALE

The proceeds of the sale of the mortgaged EXTRA-JUDICIAL JUDICIAL

property shall, after deducting the costs of the FORECLOSURE (ACT FORECLOSURE
sale, be paid to the person foreclosing the 3135) (RULE 68)
mortgage, and when there shall be any balance
or residue after paying off the mortgage debt No complaint is filed; Complaint is filed with
due, the same shall be paid to junior the courts;
encumbrancers in the order of their priority. If There is a right of No right of redemption
there be any further balance after paying them or redemption. except when
if there be no junior encumbrancers, the same Mortgagor has a right mortgagee is a
shall be paid to the mortgagor or any person of redemption for 1 banking institution;
entitled thereto. year from registration equity of redemption
of the sale; only (90 to 120 days,
DEFICIENCY JUDGMENT and any time before
confirmation of
If there be a balance due to the plaintiff after foreclosure sale);
applying the proceeds of the sale, the court, upon Mortgagee has to file Mortagagee can move
motion, shall render judgment against the a separate action to for deficiency
defendant for any such balance. Execution may recover any judgment in the same
issue immediately if the balance is all due the deficiency; action
plaintiff shall be entitled to execution at such Buyer at public Buyer at public
time as the remaining balance shall become due auction becomes auction becomes
and such due date shall be stated in the absolute owner only absolute owner only
judgment. Note that the deficiency judgment is in after finality of an after confirmation of
itself a judgment hence, also appealable. action for the sale;
consolidation of
No independent action need be filed to recover ownership;
the deficiency from the mortgagor. The deficiency Mortgagee is given a Mortgagee need not
judgment shall be rendered upon motion of the special power of be given a special
mortgagee. The motion must be made only after attorney in the power of attorney.
the sale and after it is known that a deficiency mortgage contract to
exists. Before that, any court order to recover the foreclose the
deficiency is void. It has been held that the mortgaged property
mortgagor who is not the debtor and who merely in case of default.
executed the mortgage to secure the principal
debtors obligation is not liable for the deficiency
unless he assumed liability for the same in the EQUITY OF RIGHT OF
contract. REDEMPTION REDEMPTION
The right of A right granted to a
Since a deficiency judgment cannot be obtained defendant mortgagor debtor mortgagor, his
against the mortgagor who is not the debtor in to extinguish the successor in interest or
the principal obligation, mortgagee may have to mortgage and retain any judicial creditor or
file a separate suit against the principal debtor. ownership of the judgment creditor or
property by paying any person having a
 104

the debt within 90 to lien on the property simply their right, as mortgagees, whether
120 days after the subsequent to the mortgagor, to the foreclosure be
entry of judgment or mortgage or deed of extinguish the judicial or extrajudicial.
even after the trust under which the mortgage and retain This right of
foreclosure sale but property is sold to ownership of the redemption is explicitly
prior to confirmation. repurchase the property by paying provided in Sec. 47 of
property within one the secured debt the General Banking
year even after the prior to the Law of 2000. While the
confirmation of the sale confirmation of the law mentions the
and even after the foreclosure sale. redemption period to
registration of the be one year counted
certificate of from the date of
foreclosure sale. registration of the
May be exercised There is no right of certificate in the
even after the redemption in a judicial Registry of Property
foreclosure sale foreclosure of
provided it is made mortgage under Rule
before the sale is 68. This right of
PARTITION (RULE 69)
confirmed by order redemption exists only
of the court. in extrajudicial
foreclosures where Partition is the separation, division and
there is always a right assignment of a thing held in common among
of redemption within those to whom it may belong.
one year from the date
of sale (Sec. 3, Act It presupposes the existence of a co-ownership
3135), but interpreted over a property between two or more persons.
by the Court to mean The rule allowing partition originates from a well-
one year from the known principle embodied in the Civil Code, that
registration of the sale. no co-owner shall be obliged to remain the co-
May also exist in General rule: In judicial ownership. Because of this rule, he may demand
favor or other foreclosures there is at any time the partition of the property owned in
encumbrances. If only an equity of common.
subsequent lien redemption which can
holders are not be exercised prior to Instances when a co-owner may not demand
impleaded as parties the confirmation of the partition at any time:
in the foreclosure foreclosure sale. This 1) There is an agreement among the co-
suit, the judgment in means that after the owners to keep the property undivided for
favor of the foreclosure sale but a certain period of time but not exceeding
foreclosing before its confirmation, ten years (Art. 494);
mortgagee does not the mortgagor may 2) When partition is prohibited by the donor
bind the other lien exercise his right of pay or testator for a period not exceeding 20
holders. In this case, the proceeds of the years (Art. 494);
their equity of sale and prevent the 3) When partition is prohibited by law (Art.
redemption remains confirmation of the 494);
unforeclosed. A sale. 4) When the property is not subject to a
separate foreclosure physical division and to do so would
proceeding has to be render it unserviceable for the use for
brought against which it is intended (Art. 495);
them to require them 5) When the condition imposed upon
to redeem from the voluntary heirs before they can demand
first mortgagee or partition has not yet been fulfilled (Art.
from the party 1084).
acquiring the title to
the mortgaged WHO MAY FILE COMPLAINT; WHO SHOULD
property. BE MADE DEFENDANTS
If not by banks, the Exception: there is a
mortgagors merely right of redemption if The action shall be brought by the person who
have an equity of the foreclosure is in has a right to compel the partition of real estate
redemption, which is favor of banks as or of an estate composed of personal property, or
 105

both real and personal property. The plaintiff is a A final order decreeing partition and accounting
person who is supposed to be a co-owner of the may be appealed by any party aggrieved thereby.
property or estate sought to be partitioned. The
defendants are all the co-owners. All the co- Partition by agreement. The order of partition
owners must be joined. is one that directs the parties or co-owners to
partition the property and the parties may make
Accordingly, an action will not lie without the the partition among themselves by proper
joinder of all co-owners and other persons having instruments of conveyance, if they agree among
interest in the property. All the co-owners, themselves. If they do agree, the court shall then
therefore, are indispensable parties. confirm the partition so agreed upon by all of the
parties, and such partition, together with the
MATTERS TO ALLEGE IN THE COMPLAINT order of the court confirming the same, shall be
FOR PARTITION recorded in the registry of deeds of the place in
which the property is situated. There always
The plaintiff shall state in his complaint, the exists the possibility that the co-owners are
nature and extent of his title, an adequate unable to agree on the partition. If they cannot
description of the real estate of which partition is partition the property among themselves, the
demanded, and shall join as defendants all other next stage in the action will follow the
persons interested in the property. He must also appointment of commissioners.
include a demand for the accounting of the rents,
profits and other income from the property which PARTITION BY COMMISSIONERS;
he may be entitled to. These cannot be APPOINTMENT OF COMMISSIONERS
demanded in another action because they are COMMISSIONERS REPORT; COURT ACTION
parts of the cause of action for partition. They will UPON COMMISSIONERS REPORT
be barred if not set up in the same action
pursuant to the rule against splitting a single If the parties are unable to agree upon the
cause of action. partition, the court shall appoint not more than
three (3) competent and disinterested persons as
STAGES IN EVERY ACTION FOR PARTITION commissioners to make the partition,
commanding them to set off to the plaintiff and to
A reading of the Rules will reveal that there are each party in interest such part and proportion of
actually three (3) stages in the action, each of the property as the court shall direct.
which could be the subject of appeal:
1) the order of partition where the property When it is made to appear to the commissioners
of the partition is determined; that the real estate, or a portion thereof, cannot
2) the judgment as to the accounting of the be divided without prejudice to the interests of
fruits and income of the property; and the parties, the court may order it assigned to
3) the judgment of partition. one of the parties willing to take the same,
provided he pays to the other parties such
ORDER OF PARTITION AND PARTITION BY amounts as the commissioners deem equitable,
AGREEMENT unless one of the interested parties asks that the
property be sold instead of being so assigned, in
During the trial, the court shall determine which case the court shall order the
whether or not the plaintiff is truly a co-owner of commissioners to sell the real estate at public
the property, that there is indeed a co-ownership sale under such conditions and within such time
among the parties, and that a partition is not as the court may determine.
legally proscribed thus may be allowed. If the
court so finds that the facts are such that a The commissioners shall make a full and accurate
partition would be in order, and that the plaintiff report to the court of all their proceedings as to
has a right to demand partition, the court will the partition, or the assignment of real estate to
issue an order of partition. one of the parties, or the sale of the same. Upon
the filing of such report, the clerk of court shall
The court shall order the partition of the property serve copies thereof on all the interested parties
among all the parties in interest, if after trial it with notice that they are allowed ten (10) days
finds that the plaintiff has the right to partition. It within which to file objections to the findings of
was held that this order of partition including an the report, if they so desire. No proceeding had
order directing an accounting is final and not before or conducted by the commissioners shall
interlocutory and hence, appealable; thus, pass the title to the property or bind the parties
revoking previous contrary rulings on the matter. until the court shall have accepted the report of
 106

the commissioners and rendered judgment property, or of both real and personal property, in
thereon. so far as the same may be applicable.

Upon the expiration of the period of ten (10) days PRESCRIPTION OF ACTION
referred to in the preceding section, or even
before the expiration of such period but after the Prescription of action does not run in favor of
interested parties have filed their objections to a co-owner or co-heir against his co-owner or
the report or their statement of agreement co-heirs as long as there is a recognition of
therewith, the court may, upon hearing, accept the co-ownership expressly or impliedly.
the report and render judgment in accordance
therewith; or, for cause shown, recommit the The action for partition cannot be barred by
same to the commissioners for further report of prescription as long as the co-ownership
facts; or set aside the report and appoint new exists.
commissioners; or accept the report in part and
reject it in part; and may make such order and But while the action to demand partition of a
render such judgment as shall effectuate a fair co-owned property does not prescribe, a co-
and just partition of the real estate, or of its owner may acquire ownership thereof by
value, if assigned or sold as above provided, prescription where there exists a clear
between the several owners thereof. repudiation of the co-ownership and the co-
owners are apprised of the claim of adverse
JUDGMENT AND ITS EFFECTS and exclusive ownership.

The judgment shall state definitely, by metes and

FORCIBLE ENTRY AND UNLAWFUL DETAINER
bounds and adequate description, the particular
(RULE 70)
portion of the real estate assigned to each party,
the effect of the judgment shall be to vest in each
party to the action in severalty the portion of the The actions for forcible entry and unlawful
real estate assigned to him. detainer belong to the class of actions known by
the generic name accion interdictal (ejectment)
If the whole property is assigned to one of the where the issue is the right of physical or material
parties upon his paying to the others the sum or possession of the subject real property
sums ordered by the court, the judgment shall independent of any claim of ownership by the
state the fact of such payment and of the parties involved.
assignment of the real estate to the party making
the payment, and the effect of the judgment shall Accion Interdictal comprises two distinct
be to vest in the party making the payment the causes of action:
whole of the real estate free from any interest on FORCIBLE ENTRY (DETENTACION),
the part of the other parties to the action. where one is deprived of physical
possession of real property by means of
If the property is sold and the sale confirmed by force, intimidation, strategy, threats or
the court, the judgment shall state the name of stealth (FISTS);
the purchaser or purchasers and a definite UNLAWFUL DETAINER (DESAHUICO),
description of the parcels of real estate sold to where one illegally withholds possession
each purchaser, and the effect of the judgment after the expiration or termination of his
shall be to vest the real estate in the purchaser or right to hold possession under any
purchasers making the payment or payments, contract, express or implied.
free from the claims of any of the parties to the
action. FORCIBLE ENTRY UNLAWFUL DETAINER
The possession of The possession of the
A certified copy of the judgment shall in either the defendant is defendant is lawful from
case be recorded in the registry of deeds of the unlawful from the the beginning becomes
place in which the real estate is situated, and the beginning; issue is illegal by reason of the
expenses of such recording shall be taxed as part which party has expiration or
of the costs of the action. prior de facto termination of his right
possession; to the possession of the
PARTITION OF PERSONAL PROPERTY property;
The law does not Plaintiff must first make
The provisions of this Rule shall apply to require previous such demand which is
partitions of estates composed of personal demand for the jurisdictional in nature;
 107

defendant to ACCION PUBLICIANA AND ACCION

vacate; REINVINDICATORIA
The plaintiff must The plaintiff need not
prove that he was have been in prior The actions of forcible entry and unlawful
in prior physical physical possession; detainer are within the exclusive and original
possession of the jurisdiction of the MTC, MeTC and MCTC and shall
premises until he be governed by the rules on summary procedure
was deprived by irrespective of the amount of damages or rental
the defendant; and sought to be recovered.
The one year The one-year period is
period is generally counted from the date In actions for forcible entry, two allegations are
counted from the of last demand. mandatory for the MTC to acquire jurisdiction:
date of actual entry 1) plaintiff must allege his prior physical
on the property. possession of the property; and
2) he must also allege that he was deprived
of his possession by force, intimidation,
strategy, threat or stealth.
ACCION PUBLICIANA ACCION
REINVINDICATORI
If the alleged dispossession did not occur by any
A
of these means, the proper recourse is to file not
A plenary ordinary civil An action for the
an action for forcible entry but a plenary action to
action for the recovery recovery of the
recover possession.
of the better right of exercise of
possession (juridical
ownership,
Both actions must be brought within one year
possession), must be particularly
from the date of actual entry on the land, in case
filed after therecovery of
of forcible entry, and from the date of last
expiration of one year possession as an
demand, in case of unlawful detainer.
from the accrual of the attribute or incident
cause of action or from of ownership;
Jurisdiction is determined by the allegations of
the unlawful
the complaint. The mere raising of the issue of
withholding of
tenancy does not automatically divest the court
possession of the
of jurisdiction because the jurisdiction of the
realty. In other words, if
court is determined by the allegations of the
at the time of the filing
complaint and is not dependent upon the
of the complaint more
defenses set up by the defendant.
than one year had
elapsed since
WHO MAY INSTITUTE THE ACTION AND
defendant had turned
WHEN; AGAINST WHOM THE ACTION MAY
plaintiff out of
BE MAINTAINED
possession or
defendants possession
had become illegal, the A person deprived of the possession of any land
action will be not one of or building by force, intimidation, threat, strategy,
forcible entry or or stealth, or a lessor, vendor, vendee, or other
unlawful detainer but person against whom the possession of any land
an accion or building is unlawfully withheld after the
expiration or termination of the right to hold
The basis of the The basis for the
possession, by virtue of any contract, express or
recovery of possession recovery of
implied, or the legal representatives or assigns of
is the plaintiffs real possession is
any such lessor, vendor, vendee, or other person,
right of possession or ownership itself.
may, at any time within one (1) year after such
jus possessionis, which
unlawful deprivation or withholding of possession,
is the right to the
bring an action in the proper Municipal Trial Court
possession of the real
against the person or persons unlawfully
property independent
withholding or depriving of possession, or any
of ownership.
person or persons claiming under them, for the
Jurisdiction is based on the value of the of the
restitution of such possession, together with
property applying 20K and 50K rule
damages and costs.

HOW TO DETERMINE JURISDICTION IN

 108

Unless otherwise stipulated, such action by the The court may grant preliminary injunction, in
lessor shall be commenced only after demand to accordance with the provisions of Rule 58, to
pay or comply with the conditions of the lease prevent the defendant from committing further
and to vacate is made upon the lessee, or by acts of dispossession against the plaintiff.
serving written notice of such demand upon the
person found on the premises, or by posting such A possessor deprived of his possession through
notice on the premises if no person be found forcible entry or unlawful detainer may, within
thereon, and the lessee fails to comply therewith five (5) days from the filing of the complaint,
after fifteen (15) days in the case of land or five present a motion in the action for forcible entry or
(5) days in the case of buildings. unlawful detainer for the issuance of a writ of
preliminary mandatory injunction to restore him
PLEADINGS ALLOWED in his possession. The court shall decide the
motion within thirty (30) days from the filing
The only pleadings allowed to be filed are the thereof.
complaint, compulsory counterclaim and cross-
claim pleaded in the answer, and the answers RESOLVING DEFENSE OF OWNERSHIP
thereto. All pleadings shall be verified.
The assertion by the defendant of ownership over
ACTION ON THE COMPLAINT the disputed property does not serve to divest
the inferior court of its jurisdiction. The defendant
The court may, from an examination of the cannot deprive the court of jurisdiction by merely
allegations in the complaint and such evidence as claiming ownership of the property involved.
may be attached thereto, dismiss the case
outright on any of the grounds for the dismissal of When the defendant raises the issue of
a civil action which are apparent therein. If no ownership, the court may resolve the issue of
ground for dismissal is found, it shall forthwith ownership only under the following conditions:
issue summons. 1) When the issue of possession cannot be
resolved without resolving the issue of
WHEN DEMAND IS NECESSARY ownership; and
2) The issue of ownership shall be resolved
Unless there exists a stipulation to the contrary, only to determine the issue of possession.
an unlawful detainer case shall be commenced
only after the demand to pay or comply with the Such judgment would not bar an action between
conditions of the lease and to vacate is made the same parties respecting title to the land or
upon the lessee. building. The resolution of the MeTC on the
ownership of the property is merely provisional or
The requirement for a demand implies that the interlocutory. Any question involving the issue of
mere failure of the occupant to pay rentals or his ownership should be raised and resolved in a
failure to comply with the conditions of the lease separate action brought specifically to settle the
does not ipso facto render his possession of the question with finality.
premises unlawful. It is the failure to comply with
the demand that vests upon the lessor a cause of HOW TO STAY THE IMMEDIATE EXECUTION
action. OF JUDGMENT

The demand may be in the form of a written Defendant must take the following steps to stay
notice served upon the person found in the the execution of the judgment:
premises. The demand may also be made by 1) Perfect an appeal;
posting a written notice on the premises if no 2) File a supersedeas bond to pay for the
person can be found thereon. It has been ruled, rents, damages and costs accruing down
however, that the demand upon a tenant may be to the time of the judgment appealed
oral. Sufficient evidence must be adduced to from; and
show that there was indeed a demand like 3) Deposit periodically with the RTC, during
testimonies from disinterested and unbiased the pendency of the appeal, the adjudged
witnesses. amount of rent due under the contract or
if there be no contract, the reasonable
PRELIMINARY INJUNCTION AND value of the use and occupation of the
PRELIMINARY MANDATORY INJUNCTION premises.

Exceptions to the rule:

 109

1) Where delay in the deposit is due to fraud, disobedience of the courts orders but also
accident, mistake, or excusable conduct tending to bring the authority of the
negligence; court and the administration of law into disrepute
2) Where supervening events occur or, in some manner to impede the due
subsequent to the judgment bringing administration of justice.
about a material change in the situation of
the parties which makes execution The reason for the power to punish for contempt
inequitable; and is that respect of the courts guarantees the
3) Where there is no compelling urgency for stability of their institution. Without such
the execution because it is not justified by guarantee, said institution would be resting on
the circumstances. shaky foundation.

SUMMARY PROCEDURE, PROHIBITED It is inherent in all courts; its existence is

PLEADINGS essential to the preservation of order in judicial
proceedings and to the enforcement of
Forcible entry and unlawful detainer actions are judgments, orders and mandates of the courts,
summary in nature designed to provide for an and consequently, to the due administration of
expeditious means of protecting actual justice.
possession or the right to possession of the
property involved. These actions shall both fall Contempt proceedings has dual function:
under the coverage of the Rules of Summary 1) Vindication of public interest by
Procedure irrespective of the amount of damages punishment of contemptuous conduct;
or unpaid rental sought to be recovered. and
2) Coercion to compel the contemnor to do
Prohibited pleadings and motions: what the law requires him to uphold the
a) Motion to dismiss the complaint except on power of the Court, and also to secure the
the ground of lack of jurisdiction over the rights of the parties to a suit awarded by
subject matter, or failure to comply with the Court.
section 12;
b) Motion for a bill of particulars; KINDS OF CONTEMPT; PURPOSE AND
c) Motion for new trial, or for reconsideration NATURE OF EACH
of a judgment, or for reopening of trial;
d) Petition for relief from judgment; 1) Civil or Criminal, depending on the nature and
e) Motion for extension of time to file effect of the contemptuous act.
pleadings, affidavits or any other paper; 2) Direct or indirect, according to the manner of
f) Memoranda; commission.
g) Petition for certiorari, mandamus, or
prohibition against any interlocutory order CIVIL CONTEMPT CRIMINAL CONTEMPT
issued by the court; It is the failure to do It is a conduct directed
h) Motion to declare the defendant in default; something ordered to against the authority
i) Dilatory motions for postponement; be done by a court or a and dignity of the court
j) Reply; judge for the benefit of or a judge acting
k) Third-party complaints; the opposing party judicially; it is an
l) Interventions therein and is obstructing the
therefore and offense administration of justice
against the party in which tends to bring the
whose behalf the court into disrepute or
CONTEMPT (RULE 71)
violated order was disrespect;
made;
Contempt is a disregard of, or disobedience to the The purpose is to The purpose is to
rules or orders of a judicial body, or an compensate for the punish, to vindicate the
interruption of its proceedings by disorderly benefit of a party; authority of the court
behavior or insolent language, in its presence or and protect its outraged
so near thereto as to disturb the proceedings or dignity;
to impair the respect due to such body. The rules of procedure Should be conducted in
governing contempt accordance with the
Contempt of court is disobedience to the court by proceedings or principles and rules
acting in opposition to its authority, justice and criminal prosecutions applicable to criminal
dignity. It signifies not only a willful disregard or ordinarily are cases, insofar as such
 110

inapplicable to civil procedure is consistent allegations or possession given to the

contempt proceedings. with the summary words in a person adjudged to be
nature of contempt pleading entitled thereto;
proceedings. tending to 3) Any abuse of or any
embarrass the unlawful interference
court or to with the processes or
DIRECT INDIRECT CONTEMPT bring it into proceedings of a court
CONTEMPT disrepute. not constituting direct
In general is It is not committed in the contempt under section
committed in the presence of the court, but 1 of this Rule;
presence of or so done at a distance which 4) Any improper conduct
near the court or tends to belittle, degrade, tending, directly or
judge while obstruct or embarrass the indirectly, to impede,
performing the court and justice; obstruct, or degrade the
judicial function administration of
as to obstruct or justice;
interrupt the 5) Assuming to be an
proceedings attorney or an officer of
before it; a court, and acting as
Acts constituting Acts constituting indirect such without authority;
direct contempt contempt are: 6) Failure to obey a
are: subpoena duly served;
a) Misbehavior in After a charge in writing 7) The rescue, or
the presence has been filed, and an attempted rescue, of a
of or so near opportunity given to the person or property in
the court as to respondent to comment the custody of an officer
obstruct or thereon within such period by virtue of an order or
interrupt the as may be fixed by the process of a court held
proceedings court and to be heard by by him.
before it; himself or counsel, a
b) Disrespect person guilty of any of the Failure by counsel to inform
toward the following acts may be the court of the death of his
court; punished for indirect client constitutes indirect
c) Offensive contempt: contempt within the
personalities purview of Sec. 3, Rule 71,
towards 1) Misbehavior an officer since it constitutes an
others; of a court in the improper conduct tending
d) Refusal to be performance of his to impede the
sworn as a official duties or in his administration of justice.
witness or to official transactions;
answer as a 2) Disobedience of or
witness; resistance to a lawful
e) Refusal to writ, process, order, or REMEDY AGAINST INDIRECT CONTEMPT;
subscribe an judgment of a court, PENALTY
affidavit or including the act of a
deposition person who, after being The punishment for indirect contempt depends
when lawfully dispossessed or ejected upon the level of the court against which the act
required to do from any real property was committed;
so; by the judgment or a) Where the act was committed against an
f) Acts of a party process of any court of RTC or a court of equivalent or higher
or a counsel competent jurisdiction, rank, he may be punished by a fine not
which enters or attempts or exceeding 30,000 pesos or imprisonment
constitute induces another to not exceeding 6 months, or both;
willful and enter into or upon such b) Where the act was committed against a
deliberate real property, for the lower court, he may be punished by a fine
forum purpose of executing not exceeding 5,000 pesos or
shopping; acts of ownership or imprisonment not exceeding one month,
g) Unfounded possession, or in any or both. Aside from the applicable
accusations or manner disturbs the penalties, if the contempt consists in the
 111

violation of a writ of injunction, TRO or

status quo order, he may also be ordered WHEN IMPRISONMENT SHALL BE IMPOSED
to make complete restitution to the party
injured by such violation of the property When the contempt consists in the refusal or
involved or such amount as may be omission to do an act which is yet in the
alleged and proved; power of the respondent to perform, he may
c) Where the act was committed against a be imprisoned by order of the court concerned
person or entity exercising quasi-judicial until he performs it.
functions, the penalty imposed shall Indefinite incarceration may be resorted to
depend upon the provisions of the law where the attendant circumstances are such
which authorizes a penalty for contempt that the non-compliance with the court order
against such persons or entities. is an utter disregard of the authority of the
court which has then no other recourse but to
The person adjudged in indirect contempt may use its coercive power.
appeal from the judgment or final order of the
court in the same manner as in criminal cases. When a person or party is legally and validly
The appeal will not however have the effect of required by a court to appear before it for a
suspending the judgment if the person adjudged certain purpose, and when that requirement is
in contempt does not file a bond in an amount disobeyed, the only remedy left for the court
fixed by the court from which the appeal is taken. is to use force to bring the person or party
This bond is conditioned upon his performance of before it.
the judgment or final order if the appeal is The punishment is imposed for the benefit of
decided against. a complainant or a party to a suit who has
been injured aside from the need to compel
HOW CONTEMPT PROCEEDINGS ARE performance of the orders or decrees of the
COMMENCED court, which the contemnor refuses to obey
although able to do so. In effect, it is within
Proceedings for indirect contempt may be the power of the person adjudged guilty of
initiated motu proprio by the court against which contempt to set himself free.
the contempt was committed by an order or any
other formal charge requiring the respondent to CONTEMPT AGAINST QUASI-JUDICIAL
show cause why he should not be punished for BODIES
contempt. The rules on contempt apply to contempt
committed against persons or entities
In all other cases, charges for indirect contempt exercising quasi-judicial functions or in
shall be commenced by a verified petition with case there are rules for contempt adopted
supporting particulars and certified true copies of for such bodies or entities pursuant to law,
documents or papers involved therein, and upon Rule 71 shall apply suppletorily.
full compliance with the requirements for filing Quasi-judicial bodies that have the power
initiatory pleadings for civil actions in the court to cite persons for indirect contempt can
concerned. If the contempt charges arose out of only do so by initiating them in the proper
or are related to a principal action pending in the RTC. It is not within their jurisdiction and
court, the petition for contempt shall allege that competence to decide the indirect
fact but said petition shall be docketed, heard contempt cases. The RTC of the place
and decided separately, unless the court in its where contempt has been committed shall
discretion orders the consolidation of the have jurisdiction over the charges for
contempt charge and the principal action for joint indirect contempt that may be filed.
hearing and decision.
CATCH AGED SHARC

PECIAL PROCEEDINGS (Rules 72

109)

Subject Matters of Special Proceedings:

1) Change of Name 3) Trustees

2) Adoption 4) Constitution of Family Home
 112

5) Hospitalization of Insane Persons 11) Habeas Corpus

6) Absence and Death, Declaration of 12) (Judicial) Approval of Voluntary Recognition of
7) Guardianship and Custody of Children Minor Natural Children
8) Escheat 13) Rescission and Revocation of Adoption
14) Cancellation or Correction of Entries in the
9) (Voluntary) Dissolution of Corporation Civil Registry
10) Settlement of Estate of Deceased Persons
If he was a resident (inhabitant, whether citizen
Special Proceedings is an application or or alien) of the Philippines, venue is laid
proceeding to establish the status or right of a exclusively in the province of his residence at the
party, or a particular fact, generally commenced time of his death. Residence means his personal,
by application, petition or special form of actual, or physical habitation, his actual residence
pleading as may be provided for by the particular or place of abode.
rule or law.
It is only where the decedent was a nonresident
SETTLEMENT OF ESTATE OF DECEASED of the Philippines at the time of his death that
PERSONS (Rules 73 91) venue lies in any province in which he had an
estate, The question of residence is determinative
only of the venue and does not affect the
SETTLEMENT OF ESTATE OF DECEASED jurisdiction of the court.
PERSONS VENUE AND PROCESS (RULE 73)
Venue is waivable. If instituted in two courts, the
court in which the proceeding was first filed has
WHICH COURT HAS JURISDICTION exclusive jurisdiction to resolve the issue.

If the decedent is an inhabitant of the Philippines EXTENT OF JURISDICTION OF PROBATE

at the time of his death, whether a citizen or an COURT
alien, his will shall be proved, or letters of
administration granted, and his estate settled, in The main function of a probate court is to settle
the RTC in the province in which he resides at the and liquidate the estates of deceased person
time of his death, and if he is an inhabitant of a either summarily or through the process of
foreign country, the RTC of any province in which administration.
he had his estate. The court first taking
cognizance of the settlement of the estate of a The probate court exercises limited jurisdiction,
decedent, shall exercise jurisdiction to the thus it has no power to take cognizance of and
exclusion of all other courts. determine the issue of title to property claimed
by a third person adversely to the decedent
Under RA 7691, the law expanding the jurisdiction unless the claimant and all other parties have
of the inferior courts, MTC, MeTC and MCTC shall legal interest in the property consent, expressly
exercise exclusive original jurisdiction over or impliedly, to the submission of the question to
probate proceedings, testate and intestate, where the probate court. In that case, if the probate
the value of the estate does not exceed court allows the introduction of evidence on
P300,000 (outside Metro Manila) or where such ownership it is for the sole purpose of
estate does not exceed P400,000 (in Metro determining whether the subject properties
Manila). should be included in the inventory, which is
within the probate courts competence.
The jurisdiction of the RTC is limited to the
settlement and adjudication of properties of the The determination is only provisional subject to a
deceased and cannot extend to collateral proper action in a separate action to resolve the
matters. title.

VENUE IN JUDICIAL SETTLEMENT OF The jurisdiction of the probate court merely

ESTATE relates to matters having to do with the
settlement of the estate and the probate of wills,
The residence of the decedent at the time of his the appointment and removal of administrators,
death is determinative of the venue of the executors, guardians and trustees. The question
proceeding. of ownership is, as a rule, an extraneous matter
which the probate court cannot resolve with
finality.
 113

the register of deeds, and should they disagree,

POWERS AND DUTIES OF PROBATE COURT they may do so in an ordinary action of partition.

The powers and duties of a probate court: If there is only one heir, he may adjudicate to
1) Distribute shares; himself the entire estate by means of an affidavit
2) Determine the legal heirs; filed in the office of the register of deeds.
3) Issue warrants and processes to secure
attendance of witnesses; The parties to an extrajudicial settlement,
4) Determine and rile upon issues relating to whether by public instrument or by stipulation in
the settlement of the estate, such as a pending action for partition, or the sole heir
administration, liquidation, and who adjudicates the entire estate to himself by
distribution of the estate; and means of an affidavit shall file, simultaneously
5) Determine the following: with and as a condition precedent to the filing of
a) Heirs of the decedent; the public instrument, or stipulation in the action
b) Recognition of natural child; for partition, or of the affidavit in the office of the
c) Validity of the disinheritance register of deeds, a bond with the said register of
effected by testator; deeds, in an amount equivalent to the value of
d) Status of a woman who claims the personal property involved as certified to
to be the lawful wife of the under oath by the parties concerned and
decedent; conditioned upon the payment of any just claim
e) Validity of waiver of hereditary that may be filed under section 4 of this rule.
heirs;
f) Status of each heir; The fact of the extrajudicial settlement or
g) Whatever property in inventory administration shall be published in a newspaper
is conjugal or exclusive of general circulation in the manner provided in
property of deceased spouse; the next succeeding section; but no extrajudicial
and settlement shall be binding upon any person who
h) Matters incidental or collateral has not participated therein or had no notice
to the settlement and thereof.
distribution of the estate.
Extrajudicial partition of the estate shall be valid
when the following conditions concur:
SUMMARY SETTLEMENT OF ESTATES (RULE 1) The decedent left no will;
74) 2) The decedent left no debts, or if there
were debts left, all had been paid;
Summary settlement of estate is a judicial 3) The heirs are all of age or if they are
proceeding wherein, without the appointment of minors, the latter are represented by their
executor or administrator, and without delay, the judicial guardian or legal representative;
competent court summarily proceeds to value the 4) The partition was made by means of a
estate of the decedent; ascertain his debts and public instrument or affidavit duly filed
order payment thereof; allow his will if any; with the Register of Deeds; and
declare his heirs, devisee and legatees; and 5) The fact of the extrajudicial settlement or
distribute his net estate among his known heirs, administration shall be published in a
devisees, and legatees, who shall thereupon be newspaper of general circulation.
entitled to receive and enter into the possession
of the parts of the estate so awarded to them, TWO-YEAR PRESCRIPTIVE PERIOD
respectively.
It shall be presumed that the decedent left no
EXTRAJUDICIAL SETTLEMENT BY debts if no creditor files a petition for letters of
AGREEMENT BETWEEN HEIRS administration within two (2) years after the
WHEN ALLOWED death of the decedent.

If the decedent left no will and no debts and the If it shall appear at any time within two (2) years
heirs are all of age, or the minors are represented after the settlement and distribution of an estate
by their judicial or legal representatives duly in accordance with the provisions of either of the
authorized for the purpose, the parties may, first two sections of this rule, that an heir or other
without securing letters of administration, divide person has been unduly deprived of his lawful
the estate among themselves as they see fit by participation in the estate, such heir or such other
means of a public instrument filed in the office of person may compel the settlement of the estate
 114

in the courts in the manner hereinafter provided the possession of the portions of the estate so
for the purpose of satisfying such lawful awarded to them respectively. The court shall
participation. make such order as may be just respecting the
costs of the proceedings, and all orders and
And if within the same time of two (2) years, it judgments made or rendered in the course
shall appear that there are debts outstanding thereof shall be recorded in the office of the clerk,
against the estate which have not been paid, or and the order of partition or award, if it involves
that an heir or other person has been unduly real estate, shall be recorded in the proper
deprived of his lawful participation payable in register's office.
money, the court having jurisdiction of the estate
may, by order for that purpose, after hearing, The court, before allowing a partition, may
settle the amount of such debts or lawful require the distributees, if property other than
participation and order how much and in what real is to be distributed, to file a bond in an
manner each distributee shall contribute in the amount to be fixed by court, conditioned for the
payment thereof, and may issue execution, if payment of any just claim.
circumstances require, against the bond provided
in the preceding section or against the real estate REMEDIES OF AGGRIEVED PARTIES AFTER
belonging to the deceased, or both. Such bond EXTRA-JUDICIAL SETTLEMENT OF ESTATE
and such real estate shall remain charged with a
liability to creditors, heirs, or other persons for 1) The creditor may ask for administration of
the full period of two (2) years after such enough property of the estate sufficient to
distribution, notwithstanding any transfers of real pay the debt, but the heirs cannot prevent
estate that may have been made. such administration by paying the obligation.
2) Where the estate has been summarily settled,
AFFIDAVIT OF SELF-ADJUDICATION the unpaid creditor may, within the two-year
BY SOLE HEIR period, file a motion in the court wherein such
summary settlement was for the payment of
If there is only one heir, he may adjudicate to his credit. After the lapse of the two-year
himself the entire estate by means of an affidavit period, an ordinary action may be instituted
filed in the office of the register of deeds. against the distributees within the statute of
limitations, but not against the bond.
SUMMARY SETTLEMENT OF ESTATES OF 3) The action to annul a deed of extrajudicial
SMALL VALUE; WHEN ALLOWED settlement on the ground of fraud should be
filed within four years from the discovery of
Whenever the gross value of the estate of a the fraud.
deceased person, whether he died testate or
intestate, does not exceed ten thousand pesos, PRODUCTION AND PROBATE OF WILL
and that fact is made to appear to the RTC having (RULE 75)
jurisdiction of the estate by the petition of an
interested person and upon hearing, which shall
be held not less than (1) month nor more than NATURE OF PROBATE PROCEEDING
three (3) months from the date of the last
publication of a notice which shall be published Probate of a will is a proceeding in rem. It
once a week for three (3) consecutive weeks in a cannot be dispensed with and substituted by
newspaper of general circulation in the province, another proceeding, judicial or extrajudicial,
and after such other notice to interested persons without offending public policy.
as the court may direct, the court may proceed It is mandatory as no will shall pass either real
summarily, without the appointment of an or personal property unless proved and
executor or administrator, and without delay, to allowed in accordance with the Rules.
grant, if proper, allowance of the will, if any there It is imprescriptible, because it is required by
be, to determine who are the persons legally public policy and the state could not have
entitled to participate in the estate, and to intended to defeat the same by applying
apportion and divide it among them after the thereto the statute of limitation of actions.
payment of such debts of the estate as the court
shall then find to be due; and such persons, in WHO MAY PETITION FOR PROBATE;
their own right, if they are of lawful age and legal PERSONS ENTITLED TO NOTICE
capacity, or by their guardians or trustees legally
appointed and qualified, if otherwise, shall Any executor, devisee, or legatee named in a will,
thereupon be entitled to receive and enter into or any other person interested in the estate, may,
 115

at any time after the death of the testator, 1) If not executed and attested as required
petition the court having jurisdiction to have the by law;
will allowed, whether the same be in his 2) If the testator was insane, or otherwise
possession or not, or is lost or destroyed. mentally incapable to make a will, at the
The testator himself may, during his time of its execution;
lifetime, petition the court for the 3) If it was executed under duress, or the
allowance of his will. influence of fear, or threats;
4) If it was procured by undue and improper
The court shall also cause copies of the notice of pressure and influence, on the part of the
the time and place fixed for proving the will to be beneficiary, or of some other person for
addressed to the designated or other known his benefit;
heirs, legatees, and devisees of the testator 5) If the signature of the testator was
resident in the Philippines at their places of procured by fraud or trick
residence, and deposited in the post office with 6) If the testator acted by mistake or did not
the postage thereon prepaid at least twenty (20) intend that the instrument he signed
days before the hearing, if such places of should be his will at the time of affixing his
residence be known. signature thereto.

A copy of the notice must in like manner be REPROBATE; REQUISITES BEFORE WILL
mailed to the person named as executor, if he be PROVED OUTSIDE ALLOWED IN THE
not be petitioner; also, to any person named as PHILIPPINES; EFFECTS OF PROBATE
co-executor not petitioning, if their places of
residence be known. Personal service of copies of Will proved outside Philippines may be allowed
the notice at least ten (10) days before the day of here. Wills proved and allowed in a foreign
hearing shall be equivalent to mailing. If the country, according to the laws of such country,
testator asks for the allowance of his own will, may be allowed, filed, and recorded by the proper
notice shall be sent only to his compulsory heirs. Court of First Instance in the Philippines.

If it appears at the hearing that the will should be

ALLOWANCE OR DISALLOWANCE OF WILL
allowed in the Philippines, the court shall so allow
(RULE 76)
it, and a certificate of its allowance, signed by the
judge, and attested by the seal of the court, to
which shall be attached a copy of the will, shall
CONTENTS OF PETITION FOR ALLOWANCE
be filed and recorded by the clerk, and the will
OF WILL
shall have the same effect as if originally proved
and allowed in such court.
A petition for the allowance of a will must show,
so far as known to the petitioner:
When a will is thus allowed, the court shall grant
1) The jurisdictional facts;
letters testamentary or letters of administration
2) The names, ages, and residences of the
with the will annexed, and such letters
heirs, legatees, and devisees of the
testamentary or of administration, shall extend to
testator or decedent;
all the estate of the testator in the Philippines.
3) The probable value and character of the
Such estate, after the payment of just debts and
property of the estate;
expenses of administration, shall be disposed of
4) The name of the person for whom letters
according to such will, so far as such will may
are prayed;
operate upon it; and the residue, if any, shall be
5) If the will has not been delivered to the
disposed of as is provided by law in cases of
court, the name of the person having
estates in the Philippines belonging to persons
custody of it.
who are inhabitants of another state or country.
But no defect in the petition shall render void the
If the court is satisfied, upon proof taken and
allowance of the will, or the issuance of letters
filed, that the will was duly executed, and that
testamentary or of administration with the will
the testator at the time of its execution was of
annexed.
sound and disposing mind, and not acting under
duress, menace, and undue influence, or fraud, a
GROUNDS FOR DISALLOWING A WILL certificate of its allowance, signed by the judge,
and attested by the seal of the court shall be
The will shall be disallowed in any of the following attached to the will and the will and certificate
cases; filed and recorded by the clerk. Attested copies of
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the will devising real estate and of certificate of When a will has been proved and allowed, the
allowance thereof, shall be recorded in the court shall issue letters testamentary thereon to
register of deeds of the province in which the the person named as executor therein, if he is
lands lie. competent, accepts the trust, and gives bond as
required by these rules.
The general rule universally recognized is that
administration extends only to the assets of the When all of the executors named in a will cannot
decedent found within the state or country where act because of incompetency, refusal to accept
it was granted, so that an administrator the trust, or failure to give bond, on the part of
appointed in one state or country has no power one or more of them, letters testamentary may
over the property in another state or country. issue to such of them as are competent, accept
and give bond, and they may perform the duties
When a person dies intestate owning property in and discharge the trust required by the will.
the country of his domicile as well as in foreign
country, administration shall be had in both If no executor is named in the will, or the
countries. That which is granted in the jurisdiction executor or executors are incompetent, refuse
of the decedents domicile is termed the principal the trust, or fail to give bond, or a person dies
administration, while any other administration is intestate, administration shall be granted:
termed ancillary administration. The ancillary a) To the surviving husband or wife, as the
administration is proper whenever a person dies case may be, or next of kin, or both, in the
leaving in a country other than that of his discretion of the court, or to such person
domicile, property to be administered in the as such surviving husband or wife, or next
nature of assets of the decedent, liable for his of kin, requests to have appointed, if
individual debts or to be distributed among his competent and willing to serve;
heirs. b) If such surviving husband or wife, as the
case may be, or next of kin, or the person
selected by them, be incompetent or
LETTERS TESTAMENTARY AND OF
unwilling, or if the husband or widow, or
ADMINISTRATION (RULE 78)
next of kin, neglects for thirty (30) days
after the death of the person to apply for
Letters testamentary is the appointment issued administration or to request that
by a probate court, after the will has been administration be granted to some other
admitted to probate, to the executor named in person, it may be granted to one or more
the will to administer the estate of the deceased of the principal creditors, if competent and
testator, provided the executor named in the will willing to serve;
is competent, accepts the trust and gives a bond. c) If there is no such creditor competent and
willing to serve, it may be granted to such
WHEN AND TO WHOM LETTERS OF other person as the court may select.
ADMINISTRATION GRANTED
ORDER OF PREFERENCE; PRIORITY IN
No person is competent to serve as executor or SELECTING AN ADMINISTRATOR
administrator who:
a) Is a minor; 1) Surviving spouse, or next of kin, or both, or
b) Is not a resident of the Philippines; and person as such surviving spouse, or next of
c) Is in the opinion of the court unfit to kin, requests;
execute the duties of the trust by reason 2) One or more of the principal creditors if such
of drunkenness, improvidence, or want of surviving spouse, or next of kin, or the person
understanding or integrity, or by reason of selected, be incompetent or unwilling, or if
conviction of an offense involving moral they neglect for 30 days after the death of the
turpitude. decedent to apply for administration or to
request that administration be granted to
The executor of an executor shall not, as such, some other person, it may be granted to, if
administer the estate of the first testator. competent and willing to serve;
3) Such other person as the court may select.
A married woman may serve as executrix or
administratrix, and the marriage of a single OPPOSITION TO ISSUANCE OF LETTERS
woman shall not affect her authority so to serve TESTAMENTARY; SIMULTANEOUS FILING OF
under a previous appointment. PETITION FOR ADMINISTRATION
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Any person interested in a will may state in Where the estate of a deceased person is already
writing the grounds why letters testamentary the subject of a testate or intestate proceeding,
should not issue to the persons named therein the administrator cannot enter into any
executors, or any of them, and the court, after transaction involving it without any prior approval
hearing upon notice, shall pass upon the of the Court.
sufficiency of such grounds. A petition may, at
the same time, be filed for letters of The right of an executor or administrator to the
administration with the will annexed. possession and management of the real and
personal properties of the deceased is not
POWERS AND DUTIES OF EXECUTORS AND absolute and can only be exercised so long as it is
ADMINISTRATORS; RESTRICTIONS ON THE necessary for the payment of the debts and
POWERS (RULE 84) expenses of administration.

An EXECUTOR is the person nominated by a APPOINTMENT OF SPECIAL

testator to carry out the directions and requests ADMINISTRATOR
in his will and to dispose of his property according
to his testamentary provisions after his death. When there is delay in granting letters
testamentary or of administration by any cause
An ADMINISTRATOR is person appointed by the including an appeal from the allowance or
court, in accordance with the governing statute, disallowance of a will, the court may appoint a
to administer and settle intestate estate and such special administrator to take possession and
testate estate as no competent executor was charge of the estate of the deceased until the
designated by the testator. questions causing the delay are decided and
executors or administrators appointed.
The executor or administrator of the estate of a
deceased partner shall at all times have access GROUNDS FOR REMOVAL OF
to, and may examine and take copies of, books ADMINISTRATOR
and papers relating to the partnership business,
and may examine and make invoices of the Administration revoked if will discovered - If after
property belonging to such partnership; and the letters of administration have been granted on
surviving partner or partners, on request, shall the estate of a decedent as if he had died
exhibit to him all such books, papers, and intestate, his will is proved and allowed by the
property in their hands or control. On the written court, the letters of administration shall be
application of such executor or administrator, the revoked and all powers thereunder cease, and
court having jurisdiction of the estate may order the administrator shall forthwith surrender the
any such surviving partner or partners to freely letters to the court, and render his account within
permit the exercise of the rights, and to exhibit such time as the court directs. Proceedings for
the books, papers, and property, as in this section the issuance of letters testamentary or of
provided, and may punish any partner failing to administration under the will shall be as
do so for contempt. hereinbefore provided.

An executor or administrator shall maintain in If an executor or administrator neglects to render

tenantable repair the houses and other structures his account and settle the estate according to
and fences belonging to the estate, and deliver law, or to perform an order or judgment of the
the same in such repair to the heirs or devisees court, or a duty expressly provided by these
when directed so to do by the court. rules, or absconds, or becomes insane, or
otherwise incapable or unsuitable to discharge
An executor or administrator shall have the right the trust, the court may remove him, or, in its
to the possession and management of the real as discretion, may permit him to resign. When an
well as the personal estate of the deceased so executor or administrator dies, resigns, or is
long as it is necessary for the payment of the removed the remaining executor or administrator
debts and the expenses of administration. may administer the trust alone, unless the court
grants letters to someone to act with him. If there
An administrator of an intestate cannot exercise is no remaining executor or administrator,
the right of legal redemption over a portion of the administration may be granted to any suitable
property owned in common sold by one of the person (Sec. 2, Rule 82).
other co-owners since this is not within the
powers of administration.
CLAIMS AGAINST THE ESTATE (RULE 86)
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same power and be subject to the same liability

Administration is for the purpose of liquidation of as the general administrator or executor in the
the estate and distribution of the residue among settlement of other claims.
the heirs and legatees. Liquidation means the
determination of all the assets of the estate and The court may order the executor or
payment of all debts and expenses. administrator to pay to the special administrator
necessary funds to defend such claim.
The purpose of presentation of claims against
decedents of the estate in the probate court is to PAYMENT OF DEBTS (RULE 88)
protect the estate of deceased persons. That
way, the executor or administrator will be able to If there are sufficient properties, the debts shall
examine each claim and determine whether it is a be paid, thus:
proper one which should be allowed. 1) All debts shall be paid in full within the
time limited for the purpose (Sec. 1);
Further, the primary object of the provisions 2) If the testator makes provision by his will,
requiring presentation is to apprise the or designates the estate to be
administrator and the probate court of the appropriated for the payment of debts
existence of the claim so that a proper and timely they shall be paid according to the
arrangement may be made for its payment in full provisions of the will, which must be
or by pro rata portion in the due course of the respected (Sec. 2);
administration, inasmuch as upon the death of a 3) If the estate designated in the will is not
person, his entire estate is burdened with the sufficient, such part of the estate as is not
payment of all his debts and no creditor shall disposed of by will shall be appropriated
enjoy any preference or priority; all of them shall for the purpose (Sec. 2);
share pro rata in the liquidation of the estate of 4) The personal estate not disposed of by will
the deceased. shall be first chargeable with payment of
debts and expenses (Sec. 3);
TIME WITHIN WHICH CLAIMS SHALL BE 5) If the personal estate is not sufficient, or
FILED; EXCEPTIONS its sale would be detrimental to the
participants of the estate, the real estate
The court shall state the time for the filing of not disposed of by will shall be sold or
claims against the estate, which shall not be encumbered for that purpose (Sec. 3);
more than twelve (12) nor less than six (6) 6) Any deficiency shall be met by
months after the date of the first publication of contributions from devisees, legatees and
the notice. However, at any time before an order heirs who have entered into possession of
of distribution is entered, on application of a portions of the estate before debts and
creditor who has failed to file his claim within the expenses have been paid (Sec. 6);
time previously limited, the court may, for cause 7) The executor or administrator shall retain
shown and on such terms as are equitable, allow sufficient estate to pay contingent claims
such claim to be filed within a time not exceeding when the same becomes absolute (Sec.
one (1) month. 4).

STATUTE OF NON-CLAIMS If the estate is insolvent, the debts shall be paid

in the following manner:
A claim by a person against the estate of 1) The executor or administrator shall pay
deceased should be made in not less than 6 the debts in accordance with the
months nor more than 12 months since the first preference of credits established by the
publication of allowance of the will. If the said Civil Code (Sec. 7);
claims are not filed within the time limited in the 2) No creditor of any one class shall receive
notice, they are forever be barred. any payment until those of the preceding
class are paid (Sec. 8);
CLAIM OF EXECUTOR OR ADMINISTRATOR 3) If there are no assets sufficient to pay the
AGAINST THE ESTATE credits of any one class of creditors, each
creditor within such class shall be paid a
If the executor or administrator has a claim dividend in proportion to his claim (Sec.
against the estate he represents, he shall give 8);
notice thereof, in writing, to the court, and the 4) Where the deceased was a nonresident,
court shall appoint a special administrator, who his estate in the Philippines shall be
shall, in the adjustment of such claim, have the disposed of in such a way that creditors in
 119

the Philippines and elsewhere may receive thirty (30) days after such death of the fact
an equal share in proportion to their thereof, and to give the name and address of his
respective credits (Sec. 9); legal representative or representatives. Failure of
5) Claims duly proved against the estate of counsel to comply with this duty shall be a
an insolvent resident of the Philippines, ground for disciplinary action. The heirs of the
the executor or administrator, having had deceased may be allowed to be substituted for
the opportunity to contest such claims, the deceased, without requiring the appointment
shall e included in the certified list of of an executor or administrator and the court
claims proved against the deceased. The may appoint a guardian ad litem for the minor
owner of such claims shall be entitled to a heirs.
just distribution of the estate in
accordance with the preceding rules if the The court shall forthwith order said legal
property of such deceased person in representative or representatives to appear and
another country is likewise equally be substituted within a period of thirty (30) days
apportioned to the creditors residing in the from notice. If no legal representative is named
Philippines and other creditors, according by the counsel for the deceased party, or if the
to their respective claims (Sec. 10); one so named shall fail to appear within the
6) It must be noted that the payments of specified period, the court may order the
debts of the decedent shall be made opposing party, within a specified time, to
pursuant to the order of the probate court procure the appointment of an executor or
(Sec. 11). administrator for the estate of the deceased and
the latter shall immediately appear for and on
On granting letters testamentary or behalf of the deceased. The court charges in
administration the court shall allow to the procuring such appointment, if defrayed by the
executor or administrator a time for disposing of opposing party, may be recovered as costs.
the estate and paying the debts and legacies of
the deceased, which shall not, in the first When the action is for recovery of money arising
instance, exceed one (1) year; but the court may, from contract, express or implied, and the
on application of the executor or administrator defendant dies before entry of final judgment in
and after hearing on such notice of the time and the court in which the action was pending at the
place therefor given to all persons interested as it time of such death, it shall not be dismissed but
shall direct, extend the time as the circumstances shall instead be allowed to continue until entry of
of the estate require not exceeding six (6) months final judgment. A favorable judgment obtained by
for a single extension nor so that the whole the plaintiff therein shall be enforced in the
period allowed to the original executor or manner especially provided in these Rules for
administrator shall exceed two (2) years (Sec. prosecuting claims against the estate of a
15). deceased person.

REQUISITES BEFORE CREDITOR MAY BRING

ACTIONS BY AND AGAINST EXECUTORS AND
AN ACTION FOR RECOVERY OF PROPERTY
ADMINISTRATORS (RULE 87)
FRAUDULENTLY CONVEYED BY THE
DECEASED
No action upon a claim for the recovery of money
or debts or interest thereon shall be commenced 1) There is a deficiency of assets in the hands of
against the executor or administrator. an executor or administrator for the payment
of debts and expenses of administration;
ACTIONS THAT MAY BE BROUGHT AGAINST 2) The deceased in his lifetime had made or
EXECUTORS AND ADMINISTRATORS attempted to make a fraudulent conveyance
of his real or personal property, or a right or
An action to recover real or personal property, or interest therein, or a debt or credit, with
an interest therein, from the estate, or to enforce intent to defraud his creditors or to avoid any
a lien thereon, and actions to recover damages right, debt or duty; or had so conveyed such
for an injury to person or property, real or property, right, debt, or credit that by law the
personal, may be commenced against the conveyance would be void as against his
executor or administrator. creditors;
3) The subject of the attempted conveyance
Whenever a party to a pending action dies, and would be liable to attachment by any of them
the claim is not thereby extinguished, it shall be in his lifetime;
the duty of his counsel to inform the court within
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4) The executor or administrator has shown to shares from the executor or administrator, or any
have no desire to file the action or failed to other person having the same in his possession. If
institute the same within a reasonable time; there is a controversy before the court as to who
5) Leave is granted by the court to the creditor are the lawful heirs of the deceased person or as
to file the action; to the distributive shares to which each person is
6) A bond is filed by the creditor as prescribed in entitled under the law, the controversy shall be
the Rules; heard and decided as in ordinary cases.
7) The action by the creditor is in the name of
the executor or administrator. No distribution shall be allowed until the payment
of the obligations above mentioned has been
made or provided for, unless the distributees, or
any of them, give a bond, in a sum to be fixed by
DISTRIBUTION AND PARTITION (RULE 90)
the court, conditioned for the payment of said
obligations within such time as the court directs.
Before there could be a distribution of the estate,
the following two stages must be followed: Questions as to advancement to be
1) Payment of obligations (liquidation of determined. Questions as to advancement
estate) under the Rules, the made, or alleged to have been made, by the
distribution of a decedents assets may deceased to any heir may be heard and
only be ordered under any of the determined by the court having jurisdiction of the
following three circumstances: estate proceedings; and the final order of the
a. when the inheritance tax, court thereon shall be binding on the person
among other is paid; raising the questions and on the heir.
b. when a sufficient bond is given
to meet the payment of the By whom expenses of partition paid. If at the
inheritance tax and all other time of the distribution the executor or
obligations; and administrator has retained sufficient effects in his
c. when the payment of the said hands which may lawfully be applied for the
tax and all other obligations has expenses of partition of the properties
been provided for; and distributed, such expenses of partition may be
2) Declaration of heirs there must first paid by such executor or administrator when it
be declaration of heirs to determine to appears equitable to the court and not
whom the residue of the estate should inconsistent with the intention of the testator;
e distributed. A separate action for the otherwise, they shall be paid by the parties in
declaration of heirs is not proper. proportion to their respective shares or interest in
the premises, and the apportionment shall be
And likewise after, not before the declaration of settled and allowed by the court, and, if any
heirs is made may the residue be distributed and person interested in the partition does not pay his
delivered to the heirs. The settlement of a proportion or share, the court may issue an
decedents estate is a proceeding in rem which is execution in the name of the executor or
binding against the whole world. All persons administrator against the party not paying for the
having interest in the subject matter involved, sum assessed.
whether they were notified or not, are equally
bound. PROJECT OF PARTITION

LIQUIDATION Project of partition is a document prepared by

the executor or administrator setting forth the
When order for distribution of residue manner in which the estate of the deceased is
made. When the debts, funeral charges, and to be distributed among the heirs.
expenses of administration, the allowance to the If the estate is a testate estate, the project of
widow, and inheritance tax, if any, chargeable to partition must conform to the terms of the
the estate in accordance with law, have been will; if intestate, the project of partition must
paid, the court, on the application of the executor be in accordance with the provisions of the
or administrator, or of a person interested in the Civil Code.
estate, and after hearing upon notice, shall assign
the residue of the estate to the persons entitled REMEDY OF AN HEIR ENTITLED TO RESIDUE
to the same, naming them and the proportions, BUT NOT GIVEN HIS SHARE
or parts, to which each is entitled, and such
person may demand and recover their respective
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1) If there is a controversy before the court as to the legal estate only as and carry out the
who are the lawful heirs of the deceased the proper execution of provisions thereof.
person or as to the distributive shares to the trust required; and, An administrator is
which each person is entitled under the law, his estate ceases upon the person
the controversy shall be heard and decided as the fulfilment of the appointed by the
in ordinary cases. testators wishes, in court to administer
2) The better practice for the heir who has not which case, the same the estate where
received his share is to demand his share vest absolutely in the the decedent died
through a proper motion in the same probate beneficiary. intestate, or where
or administration proceedings, or for the will was void
reopening of the probate or administrative and not allowed to
proceedings if it had already been closed, and probate, or where
not through an independent action, which no executor was
would be tried by another court or judge. named in the will,
3) It has been held that an order which or the executor
determines the distributive share of the heirs named therein in
of a deceased person is appealable. If not incompetent or
appealed within the reglementary period, it refuses to serve as
becomes final. such.
4) The Court allowed the continuation of a An association or An association or
separate action to annul the project of corporation authorized corporation
partition by a preterited heir, since the estate to conduct the business authorized to
proceedings have been closed and terminated of a trust company in conduct the
for over three years, and on the ground of the Philippines may business of a trust
lesion, preterition and fraud. appointed as trustee of company in the
an estate in the same Philippines may
INSTANCES WHEN PROBATE COURT MAY manner as an individual appointed as
ISSUE WRIT OF EXECUTION (Art. 1060, CC). executor or
administrator of an
a) To satisfy the contributive shares of devisees, estate in the same
legatees and heirs in possession of the manner as an
decedents assets; individual (Art.
b) To enforce payment of expenses of partition; 1060, CC).
and Duties are usually Duties are fixed
c) To satisfy the costs when a person is cited for governed by the and/or limited by
examination in probate proceedings. intention of the trustor law (Rule 84).
or the parties if
established by a
GENERAL GUARDIANS AND GUARDIANSHIP
contract.
Duties may cover a
wider range.
TRUSTEES (RULE 98)
Grounds for removal of Grounds for
trustee: removal:
Requisites for existence of a valid trust: a) Insanity; a) Neglect to
1) Existence of a person competent to b) Incapability of render an
create; discharging trust or account and
2) Sufficient words to create it; evidently unsuitable settle the estate
3) A person capable of holding as trustee a therefor (Sec. 8, Rule according to
specified or ascertainable object; 98); law;
4) A definite trust res; and c) Neglect in the b) Neglect to
5) A declaration of the terms of the trust performance of his perform an
duties; order or
TRUSTEE EXECUTOR / d) Breach of trust judgment of the
ADMINISTRATOR displaying a want of court;
An instrument or agent An executor is the fidelity, not mere c) Neglect to
of the cestui que trust, person named in error in the perform a duty
who acquires no the will to administration of the expressly
beneficial interest in the administer the trust; provided by
estate; he merely took decedents estate e) Abuse and these rules;
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abandonment of the d) Absconds, or furnish a bond as required by the court, he fails to

trust; becomes qualify as such. Nonetheless the trust is not
f) Refusal to recognize insane, or defeated by such a failure to give bond.
or administer the e) otherwise
trust; incapable or The following conditions shall be deemed to be a
g) Failure or neglect or unsuitable to part of the bond whether written therein or not:
impropriety in discharge trust; a) That the trustee will make and return to
investment of the f) (e) Fraud or the court, at such time as it may order, a
trust estate as to misrepresentati true inventory of all the real and personal
give rise to waste of on estate belonging to him as trustee, which
trust property; at the time of the making of such
h) Failure to file inventory shall have come to his
accounts, and failure possession or knowledge;
of one co-trustee to b) That he will manage and dispose of all
keep himself such estate, and faithfully discharge his
informed of the trust in relation thereto, according to law
conduct of the other and the will of the testator or the
in the administration provisions of the instrument or order
of the trust. under which he is appointed;
c) That he will render upon oath at least once
CONDITIONS OF THE BOND a year until his trust is fulfilled, unless he
is excused therefrom in any year by the
A trustee appointed by the court is required to court, a true account of the property in his
furnish a bond and the terms of the trust or a hands and of the management and
statute may provide that a trustee appointed by a disposition thereof, and will render such
court shall be required to furnish a bond in order other accounts as the court may order.
to qualify him to administer the trust.
That at the expiration of his trust he will settle his
However, the court may until further order accounts in court and pay over and deliver all the
exempt a trustee under a will from giving a bond estate remaining in his hands, or due from him on
when the testator has directed or requested such such settlement, to the person or persons entitled
exemption or when all persons beneficially thereto. But when the trustee is appointed as a
interested in the trust, being of full age, request successor to a prior trustee, the court may
the exemption. Such exemption may be cancelled dispense with the making and return of an
by the court at any time, and the trustee required inventory, if one has already been filed, and in
to forthwith file a bond. If the trustee fails to such case the condition of the bond shall be
deemed to be altered accordingly.
REQUISITES FOR THE REMOVAL AND
RESIGNATION OF A TRUSTEE GROUNDS FOR REMOVAL AND
RESIGNATION OF A TRUSTEE
A trustee may be removed upon petition to the
proper RTC of the parties beneficially interested, The proper Regional Trial Court may, upon
after due notice to the trustee and hearing, if it petition of the parties beneficially interested and
appears essential in the interests of the after due notice to the trustee and hearing;
petitioners. The court may also, after due notice remove a trustee if such removal appears
to all persons interested, remove a trustee who is essential in the interests of the petitioners. The
insane or otherwise incapable of discharging his court may also, after due notice to all persons
trust or evidently unsuitable therefor. A trustee, interested, remove a trustee who is insane or
whether appointed by the court or under a otherwise incapable of discharging his trust or
written instrument, may resign his trust if it evidently unsuitable therefor. A trustee, whether
appears to the court proper to allow such appointed by the court or under a written
resignation. instrument, may resign his trust if it appears to
the court proper to allow such resignation.
A trustee whose acts or omissions are such as to
show a want of reasonable fidelity will be A trustee whose acts or omissions are such as to
removed by the court and where trust funds are show a want of reasonable fidelity will be
to be invested by the trustee, neglect to invest removed by the court and where trust funds are
constitutes of itself a breach of trust, and is a to be invested by the trustee, neglect to invest
ground for removal.
 123

constitutes of itself a breach of trust, and is a shall have possession of and title to the same, or
ground for removal. if sold, the municipality or city shall be
accountable to him for the proceeds, after
EXTENT OF AUTHORITY OF TRUSTEE deducting reasonable charges for the care of the
estate; hence, claim not made within such time
A trustee appointed by the RTC shall have the limit shall forever be barred.
same rights, powers, and duties as if he had been
appointed by the testator. No person succeeding GUARDIANSHIP (RULES 92 97)
to a trust as executor or administrator of a former
trustee shall be required to accept such trust.
Guardianship is the power of protective authority
Such new trustee shall have and exercise the given by law and imposed on an individual who is
same powers, rights, and duties as if he had been free and in the enjoyment of his rights, over one
originally appointed, and the trust estate shall whose weakness on account of his age or other
vest in him in like manner as it had vested or infirmity renders him unable to protect himself.
would have vested, in the trustee in whose place Guardianship may also describe the relation
he is substituted; and the court may order such subsisting between the guardian and the ward. It
conveyance to be made by the former trustee or involves the taking of possession of an
his representatives, or by the other remaining management of, the estate of another unable to
trustees, as may be necessary or proper to vest act for himself.
the trust estate in the new trustee, either alone
or jointly with the others. A guardian is a person lawfully invested with
power and charged with the duty of taking care of
a person who for some peculiarity or status or
ESCHEAT (RULE 91) defect of age, understanding or self-control is
considered incapable of administering his own
Escheat is a proceeding whereby the real and affairs.
personal property of a deceased person in the
Philippines, become the property of the state Kinds of guardians:
upon his death, without leaving any will or legal 1) According to scope or extent
heirs. a) Guardian of the person one who has
been lawfully invested with the care of the
WHEN TO FILE person of minor whose father is dead. His
authority is derived out of that of the
When a person dies intestate, seized of real or parent;
personal property in the Philippines, leaving no b) Guardian of the property that appointed
heir or person by law entitled to the same, the by the court to have the management of
Solicitor General or his representative in behalf of the estate of a minor or incompetent
the Republic of the Philippines, may file a petition person;
in the Court of First Instance of the province c) General guardians those appointed by
where the deceased last resided or in which he the court to have the care and custody of
had estate, if he resided out of the Philippines, the person and of all the property of the
setting forth the facts, and praying that the ward.
estate of the deceased be declared escheated.
2) According to constitution
REQUISITES FOR FILING OF PETITION a) Legal those deemed as guardians
without need of a court appointment (Art.
a) That a person died intestate; 225, Family Court);
b) That he left no heirs or person by law entitled b) Guardian ad litem those appointed by
to the same; and courts of justice to prosecute or defend a
c) That the deceased left properties. minor, insane or person declared to be
incompetent, in an action in court; and
REMEDY OF RESPONDENT AGAINST c) Judicial those who are appointed by the
PETITION; PERIOD FOR FILING A CLAIM court in pursuance to law, as guardian for
insane persons, prodigals, minor heirs or
If a devisee, legatee, heir, widow, widower or deceased was veterans and other
other person entitled to such estate appears and incompetent persons.
files a claim thereto with the court within 5 years
from the date of such judgment, such person
 124

Secretary of DSWD and of the DOH in the case of

GENERAL POWERS AND DUTIES OF
an insane minor who needs to be hospitalized.
GUARDIANS (RULE 96)
Grounds of petition:
a) To have care and custody over the person of a) Death, continued absence, or incapacity of
his ward, and/or the management of his his parents;
estate (Sec. 1); b) Suspension, deprivation or termination of
b) To pay the just debts of his ward out of the parental authority;
latters estate (Sec. 2); c) Remarriage of his surviving parent, if the
c) To bring or defend suits in behalf of the ward, latter is found unsuitable to exercise
and, with the approval of the court, compound parental authority; or
for debts due the ward and give discharges to d) When the best interest of the minor so
the debtor (Sec. 3); require.
d) To manage the estate frugally and without
waste, and apply the income and profits to Qualifications of guardians:
the comfortable and suitable maintenance of a) Moral character;
the ward and his family (Sec. 4); b) Physical, mental and psychological
e) To sell or encumber the real estate of the condition;
ward upon being authorized to do so (Sec. 4); c) Financial status;
f) To join in an assent to a partition of real or d) Relationship of trust with the minor;
personal estate held by the ward jointly or in e) Availability to exercise the powers and
common with others (Sec. 5). duties of a guardian for the full period of
the guardianship;
CONDITIONS OF THE BOND OF THE f) Lack of conflict of interest with the minor;
GUARDIAN and
g) Ability to manage the property of the
a) To file with the court complete inventory of minor.
the estate of the ward within 3 months;
b) To faithfully execute the duties of his trust to Order of preference in the appointment of
manage and dispose of the estate according guardian or the person and/or property of minor:
to the Rules for the best interests of the ward, a) The SURVIVING GRANDPARENT and in case
and to provide for the proper use, custody, several grandparents survive, the court
and education of the ward; shall select any of them taking into
c) To render a true account of all the estate, and account all relevant considerations;
of the management and disposition of the b) The OLDEST BROTHER OR SISTER of the
same; minor over 21 years of age, unless unfit or
d) To settle his accounts with the court and disqualified;
deliver over all the estate remaining in his c) The ACTUAL CUSTODIAN of the minor over
hands to the person entitled thereto; 21 years of age, unless unfit or
e) To perform all orders of the court by him to be disqualified; and
performed (Sec. 1; Sec. 14, AM 03-02-05-SC). d) Any OTHER PERSON, who in the sound
discretion of the court, would serve the
best interests of the minor.
RULE ON GUARDIANSHIP OVER MINORS
(AM 03-02-05-SC) Factors to consider in determining custody:
a) Any extrajudicial agreement which the
The father and mother shall jointly exercise legal parties may have bound themselves to
guardianship over the person and property of comply with respecting the rights of the
their unemancipated common child without the minor to maintain direct contact with the
necessity of a court appointment. The Rule shall non-custodial parent on a regular basis,
be suppletory to the provisions of the Family except when there is an existing threat or
Code on guardianship. danger of physical, mental, sexual or
emotional violence which endangers the
On grounds authorized by law, any relative or safety and best interests of the minor;
other person on behalf of a minor, or the minor b) The desire and ability of one parent to
himself if 14 years of age or over, may petition foster an open and loving relationship
the Family Court for the appointment of a general between the minor and the other parent;
guardian over the person or property, or both, of c) The health, safety and welfare of the
such minor. The petition may also be filed by the minor;
 125

d) Any history of child or spousal abuse by

the person seeking custody or who has
ADOPTION (RULES 99
had any filial relationship with the minor,
100, SUPERSEDED BY AM 02-6-02-SC)
including anyone courting the parent;
e) The nature and frequency of contact with
both parents; Adoption is a juridical act which creates
f) Habitual use of alcohol, dangerous drugs between two persons a relationship similar to
or regulated substances; that which results from legitimate paternity.
g) Marital misconduct; Adoption is a juridical act, a proceeding in
h) The most suitable physical, emotional, rem, which creates between the two persons
spiritual, psychological and educational a relationship similar to that which results
environment for the holistic development from legitimate paternity and filiation.
and growth of the minor; and Adoption is not an adversarial proceeding. An
i) The preference of the minor over 7 years adversarial proceeding is one having opposing
of age and of sufficient discernment, parties, contested, as distinguished from an
unless the parent chosen is unfit (Sec. 14, ex parte application, one of which the party
AM No. 03-04-04-SC). seeking relief has given legal warning to the
The court shall order a social worker to other party and afforded the latter an
conduct a case study of the minor and all opportunity to contest it excludes an adoption
the prospective guardians and submit his proceeding. In adoption, there is no particular
report and recommendation to the court defendant to speak of since the proceeding
for its guidance before the scheduled involves the status of a person it being an
hearing. action in rem.

DOMESTIC ADOPTION INTER-COUNTRY ADOPTION

Governed by RA 8552, the Domestic Governed by RA 8043, the Inter-Country Adoption
Adoption Act of 1998; procedure governed Act of 1995; procedure governed by the Amended
by AM No. 02-06-02-SC, Aug. 22, 2002. Implementing Rules and Regulations on ICAA.
Applies to domestic adoption of Filipino Applies to adoption of a Filipino child in a foreign
children, where the entire adoption process country, where the petition for adoption is filed, the
beginning from the filing of the petition up supervised trial custody is undertaken and the
to the issuance of the adoption decree decree of adoption is issued outside of the
takes place in the Philippines. Philippines.
Who may be adopted Who may be adopted
A child legally available for adoption. Only a legally free child may be adopted.
Requisites: Requisites:
a) Below 18 years of age; and a) Below 15 years of age; and
b) Judicially declared available for b) Has been voluntarily or involuntarily
adoption. committed to the DSWD in accordance with
c) Exceptions: PD 603.
d) Legitimate son/daughter of one
spouse by the other spouse;
e) Illegitimate son/daughter by a
qualified adopter;
f) Person of legal age if, prior to the
adoption said person has been
consistently considered and treated
by the adopter/s as his/her own
child since minority.
Who may adopt Who may adopt
A. FILIPINO CITIZENS A. FILIPINO CITIZENS

1) Of legal age; 1) Permanent resident of a foreign country;

2) In possession of full civil capacity 2) Has the capacity to act and assume all rights
and legal rights; and responsibilities of parental authority
3) Of good moral character; under Philippine laws;
4) Has not been convicted of any 3) Has undergone the appropriate counseling
crime involving moral turpitude; from an accredited counselor in country of
5) Emotionally and psychologically domicile;
 126

capable of caring for children; 4) Has not been convicted of a crime involving
6) In a position to support and care for moral turpitude;
his/her children in keeping with the 5) Eligible to adopt under Philippine laws;
means of the family; 6) In a position to provide the proper care and
7) At least 16 years older than the support and to give the necessary moral
adoptee but this latter requirement values and example to all his children,
may be waived if (a) the adopter is including the child to be adopted;
the biological parent of the 7) Agrees to uphold the basic rights of the child
adoptee; or (b) the adopter is the as embodied under Philippine laws, the UN
spouse of the adoptees parent; and Convention on Rights of the Child, and to
8) Permanent resident of the abide by the rules and regulations issued to
Philippines. implement the provisions of the ICAA;
8) Residing in a country with whom the
B. ALIENS Philippines has diplomatic relations and
whose government maintains a similarly
1) Same qualifications as above, and authorized and accredited agency and that
in addition: adoption is allowed in that country;
2) His/her country has diplomatic 9) Possesses all the qualifications and none of
relations with the Republic of the the disqualifications provided in the ICAA and
Philippines; in other applicable Philippine laws;
3) His/her government allows the 10) At least 27 years of age at the time of the
adoptee to enter his/her country as application; and
his/her adopted son/daughter; 11) At least 16 years older than the child to be
4) Has been living in the Philippines adopted at the time of application, unless (a)
for at least 3 continuous years prior adopted is the parent by nature of the child to
to the filing of the application for be adopted; or (b) adopter is the spouse of
adoption and maintains such the parent by nature of the child to be
residence until the adoption decree adopted.
is entered; and
5) Has been certified by his/her B. ALIENS
diplomatic or consular office or any
appropriate government agency 1) At least 27 years of age at the time of the
that he/she has the legal capacity application;
to adopt in his/her country. This 2) At least 16 years older than the child to be
requirement may be waived if (a) a adopted at the time of application unless the
former Filipino citizens seeks to adopter is the parent by nature of the child to
adopt a relative within the 4th be adopted or the spouse of such parent;
degree of consanguinity or affinity; 3) Has the capacity to act and assume all rights
(b) one seeks to adopt the and responsibilities of parental authority
legitimate son/daughter of his/her under his national laws;
Filipino spouse; (c) one who is 4) Has undergone the appropriate counseling
married to a Filipino citizen and from an accredited counselor in his/her
seeks to adopt a relative within the country;
4th degree of consanguinity or 5) Has not been convicted of a crime involving
affinity of the Filipino spouse. moral turpitude;
6) Eligible to adopt under his/her national law;
7) In a position to provide the proper care and
support and to give the necessary moral
values and example to all his children,
including the child to be adopted;
8) Agrees to uphold the basic rights of the child
as embodied under Philippine laws, the UN
Convention on the Rights of the Child, and to
abide by the rules and regulations issued to
implement the provisions of the ICAA;
9) Comes from a country with whom the
Philippines has diplomatic relations and
whose government maintains a similarly
authorized and accredited agency and that
 127

adoption is allowed under his/her national

laws; and
10) Possesses all the qualifications and none of
the disqualifications provided in the ICAA and
in other applicable Philippine laws.
Requirement of Joint Adoption by Requirement of Joint Adoption by
Spouses Spouses
General rule: husband and wife shall jointly Rule: if the adopter is married, his/her spouse must
adopt; otherwise, the adoption shall not be jointly file for the adoption.
allowed.
Exceptions:
1) If one spouse seeks to adopt the
legitimate son/daughter of the
other;
2) If one spouse seeks to adopt his/her
own illegitimate son/daughter but
the other spouse must give his/her
consent;
3) If the spouses are legally separated
from each other.
Procedure Procedure
 128

Where to file application: In the Family Where to file application: Either in (a) Family Court
Court of the province or city where the having jurisdiction over the place where the child
prospective parents reside. resides or may be found, or (b) Inter-Country
Adoption Board (ICAB) through an intermediate
After filing: The petition shall not be set for agency, whether governmental or an authorized and
hearing without a case study report by a accredited agency, in the country of the prospective
licensed social worker. adoptive parents.

Supervised Trial Custody: After filing:

a) Temporary parental authority is a) if filed in the FC, court determines sufficiency
vested in prospective adopter; of petition in respect to form and substance,
b) Period is at least 6 months, but may after which, petition is transmitted to ICAB;
be reduced by the court motu b) if petition is already with ICAB, it conducts
propio or upon motion; matching of the applicant with an adoptive
c) If adopter is alien, the law child;
mandatorily requires completion of c) after matchmaking, the child is personally
the 6-month trial custody and may fetched by the applicant for the trial custody
not be reduced, except if: which takes place outside of the Philippines.
1) a former Filipino citizen seeks to
adopt a relative within 4th Supervised Trial Custody:
degree of consanguinity or a) This process takes place outside of the
affinity; country and under the supervision of the
2) one seeks to adopt the foreign adoption agency;
legitimate son/daughter of b) For a period of 6 months;
his/her Filipino spouse; c) If unsuccessful, ICAB shall look for another
3) one who is married to a Filipino prospective applicant. Repatriation of the
citizen and seeks to adopt child is to be resorted only as a last resort;
jointly with his/her spouse a d) If successful, ICAB transmits a written consent
relative within the 4th degree of for the adoption to be executed by the DSWD,
consanguinity or affinity of the and the applicant then files a petition for
Filipino spouse. adoption in his/her country.

Decree of Adoption: Issued by Philippine Decree of Adoption: Issued by a foreign court.

Family Court. Consent Required:
Consent Required: Written consent of the 1) Written consent of biological or adopted
following to the adoption is required, in the children above 10 years of age, in the form of
form of affidavit: sworn statement is required to be attached to
the application to be filed with the FC or ICAB;
1) adoptee, if 10 years of age or over; 2) If a satisfactory pre-adoptive relationship is
2) biological parent/s of the child, if formed between the applicant and the child,
known, or the legal guardian, or the the written consent to the adoption executed
proper government instrumentality by the DSWD is required.
which has legal custody of the child;
3) legitimate and adopted sons or
daughters, 10 years of age or over, of
the adopter/s and adoptee, if any;
4) illegitimate sons/daughters, 10 years of
age of over, of the adopter if living with
said adopter and the latters spouse, if
any;
5) spouse, if any, of the person adopting
or to be adopted.

DOMESTIC ADOPTION ACT

Transfer of parental authority except in
(RA 8552; AM 02-06-02-SC)
cases where the biological parent is the spouse of
the adopter, the parental authority of the
EFFECTS OF ADOPTION
 129

biological parents shall terminate and the same a) Repeated physical and verbal
shall be vested in the adopters. maltreatment by the adopter(s) despite
having undergone counselling;
Legitimacy the adoptee shall be considered b) Attempt on the life of the adoptee;
the legitimate son/daughter of the adopter(s) for c) Sexual assault or violence; or
all intents and purposes and as such is entitled to d) Abandonment and failure to comply with
all the rights and obligations provided by law to parental obligations.
legitimate sons/daughters born to them without
discrimination of any kind. Prescriptive period:
a) If incapacitated within five (5) years after
Successional rights he reaches the age of majority;
a) In legal and intestate succession, the b) If incompetent at the time of the adoption
adopter(s) and the adoptee shall have within five (5) years after recovery from
reciprocal rights of succession without such incompetency.
distinction from legitimate filiation;
b) However, if the adoptee and his/her EFFECTS OF RESCISSION OF ADOPTION
biological parent(s) had left a will, the law
on testamentary succession shall govern; 1) Parental authority of the adoptees biological
c) The adoptee remains an intestate heir of parent(s), if known, or the legal custody of the
his/her biological parent. DSWD shall be restored if the adoptee is still a
minor or incapacitated;
Issuance of new certificate and first name 2) Reciprocal rights and obligations of the
and surname of adoptee adopter(s) and the adoptee to each other
a) The adoption decree shall state the name shall be extinguished;
by which the child is to be known. An 3) Cancellation of the amended certificate of
amended certificate of birth shall be birth of the adoptee and restoration of his/her
issued by the Civil Registry attesting to original birth certificate; and
the fact that the adoptee is the child of 4) Succession rights shall revert to its status
the adopter(s) by being registered with prior to adoption, but only as of the date of
his/her surname; judgment of judicial rescission. Vested rights
b) The original certificate of birth shall be acquired prior to judicial rescission shall be
stamped cancelled with the annotation respected.
of the issuance of an amended birth
certificate in its place and shall be sealed INTER-COUNTRY ADOPTION (RA 8043)
in the civil registry records. The new birth
certificate to be issued to the adoptee Inter-Country Adoption refers to the socio-legal
shall not bear any notation that it is an process of adopting a Filipino child by a foreigner
amended issue; or a Filipino citizen permanently residing abroad
c) All records, books, and papers relating to where the petition is filed, the supervised trial
the adoption cases in the files of the court, custody is undertaken, and the decree of
the DSWD, or any other agency or adoption is issued in the Philippines.
institution participating in the adoption
proceedings shall be kept strictly WHEN ALLOWED
confidential and the court may order its
release under the following conditions Inter-country adoptions are allowed when the
only: (1) the disclosure of the information same shall prove beneficial to the childs best
to a third person is necessary for purposes interests, and shall serve and protect his/her
connected with or arising out of the fundamental rights.
adoption; (2) the disclosure will be for the It is allowed when all the requirements and
best interest of the adoptee; and (3) the standards set forth under RA 8043 are
court may restrict the purposes for which complied with.
it may be used.
FUNCTIONS OF THE RTC
INSTANCES WHEN ADOPTION MAY BE
RESCINDED
An application to adopt a Filipino child shall be
Grounds for rescission: filed either with the Philippine Regional Trial Court
having jurisdiction over the child, or with the
Board, through an intermediate agency, whether
governmental or an authorized and accredited
 130

agency, in the country of the prospective person detained files a bond for his temporary
adoptive parents, which application shall be in release.
accordance with the requirements as set forth in
the implementing rules and regulations. Habeas corpus may not be used as a means of
obtaining evidence on the whereabouts of a
BEST INTEREST OF THE MINOR person, or as a means of finding out who has
STANDARD specifically abducted or caused the
disappearance of a certain person.
In case of custody cases of minor children, the
court after hearing and bearing in mind the best The writs of habeas corpus and certiorari may be
interest of the minor, shall award the custody as ancillary to each other where necessary to give
will be for the minors best interests. effect to the supervisory powers of the higher
courts. A writ of habeas corpus reaches the body
Best interests of the child - means the and the jurisdictional matters, but not the record.
totality of the circumstances and conditions as A writ of certiorari reaches the record but not the
are most congenial to the survival, protection, body. Hence, a writ of habeas corpus may be
and feelings of security of the child and most used with the writ of certiorari for the purpose of
encouraging to his physical, psychological, and review.
emotional development. It also means the least
detrimental available alternative for safeguarding The general rule is that the release, whether
the growth and development of the child. permanent or temporary, of a detained person
renders the petition for habeas corpus moot and
academic, unless there are restraints attached to
his release which precludes freedom of action, in
WRIT OF HABEAS CORPUS (RULE 102) which case the Court can still inquire into the
nature of his involuntary restraint. Petitioners
Writ of habeas corpus is a writ which has been temporary release does not render the petition
esteemed to the best and only sufficient defense for writ moot and academic.
of personal freedom having for its object the
speedy release by judicial decree of persons who Some instances when the writ may issue:
are illegally restrained of their liberty, or illegally 1) To inquire into the legality of an order of
detained from the control of those who are confinement by a court martial.
entitled to their custody. 2) To test the legality of an aliens
confinement and proposed expulsion from
The writ of habeas corpus shall extend to all the Philippines.
cases of illegal confinement or detention by 3) To enable parents to regain custody of a
which any person is deprived of his liberty, or by minor child, even if the latter be in the
which the rightful custody of any person is custody of a third person of her own free
withheld from the person entitled thereto. The will.
function of the special proceeding of habeas 4) To obtain freedom for an accused confined
corpus is to inquire into the legality of ones for failure to post bail where the
detention. prosecuting officer unreasonably delays
trial by continued postponement.
In all petitions for habeas corpus, the court must 5) To give retroactive effect to a penal
inquire into every phase and aspect of the provision favorable to the accused when
petitioners detention from the moment petitioner the trial judge has lost jurisdiction by
was taken into custody up to the moment the virtue of the finality of the judgment of
court passes upon the merits of the petition and conviction.
only after such scrutiny can the court satisfy itself 6) To determine the constitutionality of a
that the due process clause of the Constitution statute.
has been satisfied. 7) To permit an alien to land in the
Philippines.
However, once the person detained is duly 8) To put an end to an immoral situation, as
charged in court, he may no longer question his when a minor girl, although preferring to
detention by a petition for the issuance of a writ stay with her employer, maintains illicit
of habeas corpus. His remedy then is the quashal relationship with him.
of the information and/or the warrant of arrest 9) When a bond given by an accused entitled
duly issued. The reason for the issuance of the thereto is not admitted or excessive bail is
writ even becomes more unavailing when the required of him.
 131

10) To determine the legality of an extradition. b) For correcting errors in appreciation of

11) To determine the legality of the action of a facts or appreciation of law where the
legislative body in punishing a citizen for trial court had no jurisdiction over the
contempt. cause, over the person of the accused,
12) To obtain freedom after serving minimum and to impose the penalty provided for by
sentence when the penalty under an old law, the mistake committed by the trial
law has been reduced by an amendatory court, in the appreciation of the facts
law. and/or in the appreciation of the law
cannot be corrected by habeas corpus;
(Note: for CONTENTS OF THE PETITION and c) Once a person detained is duly charged in
CONTENTS OF THE RETURN of Habeas court, he may no longer file a petition for
Corpus, please see the table below) habeas corpus. His remedy would be to
quash the information or warrant.
PEREMPTORY WRIT PRELIMINARY
CITATION WHEN WRIT DISALLOWED/DISCHARGED
Unconditionally Requires the
commands the respondent to appear If it appears that the person alleged to be
respondent to have and show cause why restrained of his liberty is in the custody of an
the body of the the peremptory writ officer under process issued by a court or judge
detained person should not be granted or by virtue of a judgment or order of a court of
before the court at a record, and that the court or judge had
time and place therein jurisdiction to issue the process, render the
specified; judgment, or make the order, the writ shall not be
allowed; or if the jurisdiction appears after the
writ is allowed, the person shall not be discharged
WHEN NOT PROPER/APPLICABLE by reason of any informality or defect in the
process, judgment, or order. Nor shall anything in
Instances when the writ of habeas corpus is not this rule be held to authorize the discharge of a
proper are: person charged with or convicted of an offense in
a) For asserting or vindicating denial of right the Philippines, or of a person suffering
to bail; imprisonment under lawful judgment.

WRIT OF HABEAS WRIT OF AMPARO WRIT OF HABEAS DATA

CORPUS
A remedy available to any A remedy available to any A remedy available to any person
person, it covers cases of person whose right to life, whose right to privacy in life,
illegal confinement or liberty and security is liberty or security is violated or
detention by which any violated or threatened with threatened by an unlawful act or
person is deprived of his violation by an unlawful act or omission of a public official or
liberty, or by which the omission of a public official or employee, or of a private individual
rightful custody of any employee, or of a private or entity engaged in the gathering,
person is withheld from the individual or entity. The writ collecting or storing of data or
person entitled thereto. covers extrajudicial killings information regarding the person,
and enforced disappearances family, home and correspondence
or threats thereof. of the aggrieved party.
It is a form of constitutional
relief.
 132

Who may file petition: Who may file (in order): Who may file (in order):
By the party for whose relief a) Any member of the a) Any member of the immediate
it is intended, or by some immediate family: spouse, family: spouse, children and
person on his behalf. children and parents of the parents of the aggrieved party;
aggrieved party; b) Any ascendant, descendant or
b) Any ascendant, collateral relative of aggrieved
descendant or collateral party within the 4th civil degree
relative of aggrieved party of consanguinity or affinity.
within the 4th civil degree
of consanguinity or affinity;
c) Any concerned citizen,
organization, association
or institution, if no known
member of immediate
family.
Filing by the aggrieved party
suspends the right of all other
authorized person to file such
petition.
Where to file: Where to file: Where to file:
RTC, enforceable within its RTC, Sandiganbayan, CA, SC; RTC, SC, CA, Sandiganbayan; Writ is
area of jurisdiction. CA or SC, Writ is enforceable anywhere also enforceable anywhere in the
enforceable anywhere in the in the Philippines. Philippines.
Philippines.
Where is the venue:
If filed in the RTC:
a) in the place where the petitioner
resides;
b) in the place where the
respondents reside;
c) in the place where the data or
information is gathered,
collected or stored.
At the option of the petitioner
Petitioner is exempted to pay Indigent petitioner is exempted to
docket and other lawful fees. pay docket and other lawful fees.
When issued: When issued: When issued:
Forthwith when a petition Immediately if on its face it Immediately if on its face it ought to
therefor is presented and it ought to be issued; Served be issued; Served within 3 days
appears that the writ ought immediately; Summary from issuance; Summary hearing
to issue, hearing set not later than set not later than ten (10) work
seven (7) days from date of days from date of issuance.
issuance.
 133

Contents of verified petition: Contents of verified petition: Contents of verified petition:

a) That the person in whose a) Personal circumstances of a) Personal circumstances of
behalf the application is petitioner and of petitioner and respondent;
made is imprisoned or respondent responsible for b) The manner the right to privacy
restrained of his liberty; the threat, act or omission; is violated or threatened and
b) The officer or name of b) Violated or threatened how it affects the right to life,
the person by whom he right to life, liberty and liberty or security of aggrieved
is so imprisoned or security of aggrieved party;
restrained; or, if both are party, and how committed c) Actions and recourses taken by
unknown or uncertain, with attendance petitioner to secure the data or
such officer or person circumstances detailed in information;
may be described by an supporting affidavits; d) Location of files, registers or
assumed appellation, c) Investigation conducted, databases, government office,
and the person who is specifying names, personal and the person in charge, in
served with the writ shall circumstances and possession or in control of the
be deemed the person addresses of investigating data or information, if known;
intended; authority or individuals, as e) Reliefs prayed for, which may
c) The place where he is so well as manner and include the updating,
imprisoned or restrained, conduct of investigation rectification, suppression or
if known; together with any report; destruction of the database or
d) A copy of the d) Actions and recourses information or files kept by
commitment or cause of taken by petitioner to respondent;
detention of such person, determine the fate or f) In case of threats, relief may
if it can be procured whereabouts of aggrieved include a prayer for an order
without impairing the party and identity of enjoining the act complained of;
efficiency of the remedy; person responsible for the and
or, if the imprisonment or threat, act or omission; g) Such other reliefs as are just
restraint is without any and and equitable.
legal authority, such fact e) The relief prayed for.
shall appear f) May include general prayer
for other just and equitable
reliefs.
a) Whether he has or has Contents of return: Contents of return:
b) If he has the party in his
Within 72 hours after service a) Lawful defenses such as
custody or power, or
of the writ, respondent shall national security, state secrets,
under restraint, the
file a verified written return privileged communications,
authority and the true
together with the supporting confidentiality of source of
and whole cause thereof,
affidavits, which shall contain: information;
set forth at large, with a
a) Lawful defenses; b) Disclosure of data/info about
copy of the writ, order,
b) Steps or actions taken to petitioner, nature of data/info,
execution, or other
determine whereabouts of purpose of collection;
process, if any, upon
aggrieved party; c) Steps or actions taken by
which the party is held;
c) All relevant information respondent to ensure security
c) If the party is in his
pertaining to threat, act or and confidentiality of data or
custody or power or is
omission against information;
restrained by him, and is
aggrieved party; d) Currency and accuracy of data
not produced,
d) If respondent is a public or information;
particularly the nature
official or employee, e) Other allegations relevant to
and gravity of the
further state: resolution of the proceedings.
sickness or infirmity of
1) verify the identity of
such party by reason of
aggrieved; * A general denial of the
which he cannot, without
2) recover and preserve allegations in the petition is not
danger, be brought
evidence related to allowed.
before the court or
death or disappearance
judge;
of person identified in
d) If he has had the party in
petition;
his custody or power, or
3) identify witnesses and
under restraint, and has
their statements;
transferred such custody
4) determine cause,
or restraint to another,
 134

particularly to whom, at manner, location and

what time, for what time of death or
cause, and by what disappearance as well
authority such transfer as pattern or practice;
was made. 5) identify and apprehend
person/s involved in
the
death/disappearance;
6) bring suspected
offenders before a
competent court.
Effects of failure to file return: Effects of failure to file return:
The court, justice or judge The court, justice or judge shall
shall proceed to hear the proceed to hear the petition ex
petition ex parte. parte, granting the petitioner such
relief as the petition may warrant
unless the court in its discretion
requires petitioner to submit
evidence.
Procedure for hearing: Procedure for hearing:
The hearing on the petition The hearing on the petition shall be
shall be summary. However summary. However the court,
the court, justice or judge may justice or judge may call for a
call for a preliminary preliminary conference to simplify
conference to simplify the the issues and determine the
issues and determine the possibility of obtaining stipulations
possibility of obtaining and admissions from the parties.
stipulations and admissions
from the parties. The hearing
shall be from day to day until
completed and given the
same priority as petitions for
habeas corpus.
Interim reliefs available before (Not applicable)
a) ) Temporary Protection
Order protected in a
government agency of by
an accredited person or
private institution capable
of keeping and securing
their safety;
b) Inspection Order with a
lifetime of 5 days which
may be extended, may be
opposed on the ground of
national security or
privileged information,
allows entry into and
inspect, measure, survey
or photograph the
property;
c) Production Order to
require respondents to
produce and permit
inspection, copying or
photographing of
documents, papers, books,
accounts, letters,
photographs, objects or
tangible things that
 135

contain evidence.
d) Witness Protection Order
the court may refer the
witnessed to the DOJ
Effect of filing criminal action: Effect of filing criminal action:
A criminal action first filed A criminal action first filed excludes
excludes the filing of the writ; the filing of the writ; relief shall be
relief shall be by motion in the by motion in the criminal case; A
criminal case. A criminal case criminal case filed subsequently
filed subsequently shall be shall be consolidated with the
consolidated with the petition petition for the writ of habeas data.
for the writ of amparo.
Appeal: Appeal: Appeal:
To the SC under Rule 45, To the SC under Rule 45, Any party may appeal the decision
within 48 hours from notice within 5 days from notice of within 5 working days from the final
of judgment. A writ of adverse judgment, to be given judgment or order to the SC by way
habeas corpus does not lie the same priority as habeas of Petition for Review on Certiorari
where petitioner has the corpus cases. under Rule 45 on pure questions of
remedy of appeal or law and facts or both, to be given
certiorari because it will not the same priority as habeas corpus
be permitted to perform the and amparo cases.
functions of a writ of error or
appeal for the purpose of
reviewing mere errors or
irregularities in the
proceedings of a court
having jurisdiction over the
person and the subject
matter.
Quantum of proof: Quantum of proof:
By substantial evidence. The court shall render judgment
Private respondent to prove within 10 days from the time the
ordinary diligence was petition is submitted for decision. If
observed in the performance the allegations are proven by
of duty. Public substantial evidence, the court shall
official/employee respondent enjoin the act complained of, or the
to prove extraordinary deletion, destruction, or rectification
diligence was observed, and of the erroneous data or information
cannot invoke the and grant other reliefs as may be
presumption that official duty just and equitable; otherwise the
has been regularly performed privilege shall be denied.
to evade responsibility or
liability.

Nations Convention on the Rights of the Child. It

RULES ON CUSTODY OF MINORS AND WRIT
should be clarified that the writ is issued by the
OF HABEAS CORPUS IN RELATION TO
Family Court only in relation to custody of minors.
CUSTODY OF MINORS (AM NO. 03-04-04-SC)
An ordinary petition for habeas corpus should be
filed in the regular Court. The issue of child
The Family Court has exclusive original custody may be tackled by the Family Court
jurisdiction to hear petitions for custody of minors without need of a separate petition for custody
and the issuance of the writ of habeas corpus in being filed.
relation to custody of minors. The Court is tasked
with the duty of promulgating special rules or The Committee chose the phrase any person
procedure for the disposition of family cases with claiming custody as it is broad enough to cover
the best interests of the minor as primary the following: (a) the unlawful deprivation of the
consideration, taking into account the United custody of a minor; or (b) which parent shall have
 136

the care and custody of a minor, when such hearing of the petition Philippines.
parent is in the midst of nullity, annulment or which shall not be later
legal separation proceedings. than seven (7) days
from the date of its
The hearings on custody of minors may, at the issuance.
discretion of the court, be closed to the public
and the records of the case shall not be released
to non-parties without its approval. OMNIBUS WAIVER RULE

A motion to dismiss the petition is not allowed Defenses Not Pleaded Deemed Waived All
except on the ground of lack of jurisdiction over defenses shall be raised in the return, otherwise,
the subject matter or over the parties. Any other they shall be deemed waived.
ground that might warrant the dismissal of the
petition shall be raised as an affirmative defense
in the answer. WRIT OF HABEAS DATA (AM NO. 08-1-16-
SC)
Upon the filing of the verified answer of the
expiration of the period to file it, the court may Scope of writ; Availability of writ;
order a social worker to make a case study of the Distinguish from Habeas Corpus and
minor and the parties and to submit a report and Amparo; Who may file; Contents of the
recommendation to the court at least three days petition; Consolidation; Effect of filing of a
before the scheduled pre-trial. criminal action; Institution of separate
action (See table above)
Hold Departure Order The minor child subject
of the petition shall not be brought out of the INSTANCES WHEN PETITION BE HEARD IN
country without prior order from the court while CHAMBERS
the petition is pending. The court motu propio or
upon application under oath may issue ex parte a A hearing in chambers may be conducted where
hold departure order addressed to the BID of the the respondent invokes the defense that the
DOJ a copy of the hold departure order within 24 release of the data or information in question
hours from its issuance and through the fastest shall compromise national security or state
available means of transmittal. secrets, or when the data or information cannot
be divulged to the public due to its nature or
WRIT OF AMPARO (AM NO. 07-9-12-SC) privileged character.
(See table above)
CHANGE OF NAME (RULE 103)
WRIT OF AMPARO SEARCH WARRANT
Issuance of the Writ. Requisites for issuing A change of name is a special proceeding to
search warrant establish the status of a person involving his
Upon the filing of the relation with others, that is, his legal position
petition, the court, A search warrant shall in, or with regard to, the rest of the
justice or judge shall not issue except upon community. It is proceeding in rem and as
immediately order the probable cause in such, strict compliance with jurisdictional
issuance of the writ if connection with one requirements, particularly on publication, is
on its face it ought to specific offense to be essential in order to vest the court with
issue. The clerk of court determined personally jurisdiction therefor. For this purpose, the only
shall issue the writ by the judge after name that may be changed is the true or
under the seal of the examination under oath official name as recorded in the civil register.
court; or in case of or affirmation of the
urgent necessity, the complainant and the A mere change of name would not cause in
justice or the judge witness he may ones existing family relations, nor create new
may issue the writ in produce, and family rights and duties where none exists
his or her own hand, particularly describing before. Neither would it affect a persons legal
and may deputize the place to be capacity, civil status or citizenship.
any officer or person to searched and the
serve it. The writ shall things to be seized A change of name granted by the court
also set the date and which may be affects only the petitioner. A separate petition
time for summary anywhere in the
 137

for change of name must be filed by his wife

and children.

RULE 103 (Change of Name) RA 9048 (Clerical Error RULE 108 (Cancellation
Act) or correction of entries in
the civil registry)
Petition should be filed in the RTC Petitions filed with the city or Verified petition filed in the
where the petitioner resides municipal civil registrar, or RTC where the corresponding
with consul general for Civil Registry is located
citizens living abroad
Civil Registrar is not a party. Civil Registrar is an
Solicitor General to be notified by indispensable party. If not
service of a copy of petition. made a party, proceedings
are null and void. Reason: he
is interested party in
protecting the integrity of
public documents. Solicitor
General must also be
notified by service of a copy
of the petition.
Petition is filed by the person Verified petition in the form of By a person interested in
desiring to change his name affidavit is filed by any any acts, event, order or
person having direct and decree
personal interest in the
correction
Involves change of name only Involves first name and All cancellation or correction
nickname of entries of: (see below
grounds or instances)
Involves substantial changes Involves clerical or Substantial and adversary if
typographical errors change affects the civil
status, citizenship or
nationality of a party;
Summary if involves mere
clerical errors.
Grounds: Grounds: Grounds:
a) Name is ridiculous, dishonorable a) First name or nickname is Cancellation or correction of
or extremely difficult to write or found to be ridiculous, entries of: (a) births; (b)
pronounce; tainted with dishonor or marriages; (c) deaths; (d)
b) Change is a legal consequence extremely difficult to write legal separation; (e)
of legitimation or adoption; or pronounce; judgments or annulments of
c) Change will avoid confusion; b) The first name or marriage; (f) judgments
d) One has continuously used and nickname has been declaring marriages void
been known since childhood by habitually and continuous from the beginning; (g)
a Filipino name and was used by petitioner legitimations; (h) adoptions;
unaware of alien parentage; publicly known by that (i) acknowledgments of
e) Change is based on a sincere first name or nickname in natural children; (j)
desire to adopt a Filipino name the community; naturalizations; (k) election,
to erase signs of former c) Change will avoid loss or recovery of
alienage, all in good faith and confusion. citizenship; (l) civil
without prejudice to anybody; interdiction; (m) judicial
and determination of filiation; (n)
f) Surname causes voluntary emancipation of a
embarrassment and there is no minor; and (o) changes of
showing that the desired change name.
of name was for a fraudulent
purpose, or that the change of
name would prejudice public
interest.
Order for hearing to be published Petition shall be published at Order shall also be published
 138

once a week for three consecutive least once a week for two once a week for three
weeks in a newspaper of general consecutive weeks in a consecutive weeks in a
circulation in the province. newspaper of general newspaper of general
circulation. Also to be posted circulation in the province,
in a conspicuous place for ten and court shall cause
consecutive days. reasonable notice to persons
named in the petition.
Entry is correct but petitioner Entry is incorrect. Cancellation or correction of
desires to change the entry correct or incorrect entries
An appropriate adversary An appropriate administrative An appropriate summary or
proceeding proceeding. adversary proceeding
depending on effects
Requires judicial order Does not require judicial Directed or changed by the
order. city or municipal civil
registrar or consul general
without judicial order
Service of judgment shall be upon Transmittal of decision to civil Service of judgment shall be
the civil register concerned registrar general upon the civil register
concerned
Appeal may be availed of if In case denied by the city or Appeal may be availed of if
judgment or final order rendered municipal civil registrar or the judgment or final order
affects substantial rights of person consul general, petitioner rendered affects substantial
appealing. may either appeal the rights of person appealing,
decision to the civil register to the RTC or to the CA.
general or file appropriate
petition with proper court by
petition for review under Rule
43.

GROUNDS FOR CHANGE OF NAME c) Relatives who would succeed by the law of
(please see table above) intestacy; and
d) Those who have over the property of the
absentee some right subordinated to the
ABSENTEES (RULE 107) condition of his death.
e) Those who have over the property of the
Stages of absence: absentee some right subordinated to the
1) provisional absence condition of his death.
2) declaration of absence After the lapse of two (2) years from his
3) presumption of death disappearance and without any news
about the absentee or since the receipt of
PURPOSE OF THE RULE the last news, or of five (5) years in case
the absentee has left a person in charge of
The purpose of the Rule is to allow the court to the administration of his property, the
appoint an administrator or representative to take declaration of his absence and
care of the property of the person who is sought appointment of a trustee or administrator
to be judicially declared absent. It also aims to may be applied for.
have the court appoint the present spouse as When a person disappears from his
administrator or administratrix of the absent domicile, his whereabouts being unknown,
spouses properties, or for the separation of and without having left an agent to
properties of the spouses. administer his property, or the power
conferred upon the agent has expired, any
WHO MAY FILE; WHEN TO FILE interested party, relative or friend, may
petition the Court of First Instance of the
The following may file an application for the place where the absentee resided before
declaration of absence of a person: his disappearance for the appointment of
a) Spouse present; a person to represent him provisionally in
b) Heirs instituted in a will, who may present all that may be necessary.
an authentic copy of the same;
 139

CANCELLATION OR CORRECTION OF Entries subject to cancellation or correction

ENTRIES IN THE CIVIL REGISTRY (RULE 108) under Rule 108, in relation to RA 9048
Upon good and valid grounds, the
following entries in the civil register may
be cancelled or corrected:
1) births; 9) acknowledgments of natural children;
2) marriages; 10) naturalization
3) deaths; 11) election, loss or recovery of citizenship
4) legal separations; 12) civil interdiction;
5) judgments of annulments of marriage; 13) judicial determination of filiation;
6) judgments declaring marriages void from 14) voluntary emancipation of a minor; and
the beginning; 15) changes of name.
7) legitimations;
8) adoptions;
or guardian, a final determination in the
Correction may be effected in two ways. One is lower court of the rights of the party
without judicial authority or by administrative appealing, except that no appeal shall be
proceeding, which is governed by RA 9048 on allowed from the appointment of a special
matters relating to correction of mere clerical or administrator; and
typographical errors. The other is through judicial f) Is the final order or judgment rendered in
or court proceedings, which is governed by Rule the case, and affects the substantial rights
108. of the person appealing, unless it be an
order granting or denying a motion for a
The petition for change of first names or new trial or for reconsideration.
nicknames may be allowed when such names or
nicknames are ridiculous, tainted with dishonor or
extremely difficult to write or pronounce; or the WHEN TO APPEAL
new name or nickname has been used habitually
and continuously petitioner and has been publicly Appeals in special proceedings necessitate a
known by that first name or nickname in the record on appeal as the original record should
community; or the change will avoid confusion. remain with the trial court; hence the
reglementary period of thirty (30) days is
provided for the perfection of appeals in special
APPEALS IN SPECIAL PROCEEDING (RULE
proceedings.
109)
MODES OF APPEAL
JUDGMENTS AND ORDERS FOR WHICH
APPEAL MAY BE TAKEN While under the concept in ordinary civil
actions some of the orders stated in Sec. 1
An interested person may appeal in special may be considered interlocutory, the nature
proceedings from an order or judgment rendered of special proceedings declares them as
by a Court of First Instance or a Juvenile and appealable orders, as exceptions to the
Domestic Relations Court, where such order or provisions of Sec., Rule 41. Thus:
judgment:
a) Allows or disallows a will; 1) Ordinary appeal. The appeal to the CA in
b) Determines who are the lawful heirs of a cases decided by the RTC in the exercise of its
deceased person, or the distributive share original jurisdiction shall be taken by filing a
of the estate to which such person is notice of appeal with the court which
entitled; rendered the judgment or final order appealed
c) Allows or disallows, in whole or in part, from and serving a copy thereof upon the
any claim against the estate of a adverse party. No record on appeal shall be
deceased person, or any claim presented required except in special proceedings and
on behalf of the estate in offset to a claim other cases of multiple or separate appeals
against it; where the law or the Rules so require. In such
d) Settles the account of an executor, cases, the record on appeal shall be filed and
administrator, trustee or guardian; served in like manner.
e) Constitutes, in proceedings relating to the
settlement of the estate of a deceased 2) Petition for review. The appeal to the CA in
person, or the administration of a trustee cases decided by the RTC in the exercise of its
 140

appellate jurisdiction shall be by petition for RULE ON ADVANCE DISTRIBUTION

review in accordance with Rule 42.
Notwithstanding a pending controversy or appeal
3) Petition for review on certiorari. In all in proceedings to settle the estate of a decedent,
cases where only questions of law are raised the court may, in its discretion and upon such
or involved, the appeal shall be to the SC by terms as it may deem proper and just, permit
petition for review on certiorari in accordance that such part of the estate as may not be
with Rule 45. affected by the controversy or appeal be
distributed among the heirs or legatees, upon
compliance with the conditions set forth in Rule
90 of these rules.

RULES OF CRIMINAL PROCEDURE (Rules 110 127)

GENERAL MATTERS 1) The offense if one which the court is by law

authorized to take cognizance of;
JURISDICTION JURISDICTION 2) The offense must have been committed within
OVER SUBJECT OVER PERSON OF its territorial jurisdiction; and
MATTER THE ACCUSED 3) The person charged with the offense must
Derived from the law. May be conferred by have been brought into its forum for trial,
Does not depend consent expressly or forcibly or by warrant of arrest or upon his
upon the consent or impliedly given, or it voluntary submission to the court.
omission of the may, by objection, be
parties to the action prevented from JURISDICTION OF CRIMINAL COURTS (see
or any of them; attaching or being jurisdiction of courts in civil pro)
removed after it is
attached. WHEN INJUNCTION MAY BE ISSUED TO
Objection that the If he fails to make his RESTRAIN CRIMINAL PROSECUTION
court has no objections in time, he
jurisdiction over the will be deemed to GENERAL RULE: Criminal prosecution may not be
subject matter may have waived it. restrained or stayed by injunction.
be made at any stage
of the proceeding, EXCEPTIONS:
and the right to make 1) To afford adequate protection to the
such objection is constitutional rights of the accused;
never waived. 2) Then necessary for the orderly
Jurisdiction over the Jurisdiction over the administration of justice or to avoid
subject matter is person of the oppression or multiplicity of actions;
determined upon the accused by voluntary 3) When there is a pre-judicial question
allegations made in appearance or which is sub judice;
the complaint, surrender of the 4) When the acts of the officer are without or
irrespective of accused or by his in excess of authority;
whether the plaintiff arrest. 5) Where the prosecution is under an invalid
is entitled or not, to law, ordinance or regulation;
recover upon the 6) When double jeopardy is clearly apparent;
claim asserted 7) Where the court has no jurisdiction over
therein, a matter the offense;
resolved only after 8) Where it is a case of persecution rather
and as a result of the than prosecution;
trial. 9) Where the charges are manifestly false
and motivated by the lust for vengeance;
10) When there is clearly no prima facie case
REQUISITES FOR EXERCISE OF CRIMINAL against the accused and a motion to
JURISDICTION quash on that ground has been denied;
and
 141

11) To prevent the threatened unlawful arrest 1) Adultery and concubinage to be

of petitioners. prosecuted upon a complaint filed by the
offended spouse, impleading both guilty
parties, if both alive, unless he shall have
PROSECUTION OF OFFENSES RULE 110)
consented or pardoned the offenders;
2) Seduction, abduction, or acts or
CRIMINAL ACTIONS; HOW INSTITUTED lasciviousness to be prosecuted upon a
complaint filed by the offended party or her
1) For offenses where a preliminary investigation parents, grandparents, or guardian, unless
is required pursuant to section 1 of Rule 112, expressly pardoned by the above named
by filing the complaint with the proper officer persons (in such stated order);
for the purpose of conducting the requisite 3) Defamation imputing a person any of the
preliminary investigation. following crimes of concubinage,
2) For all other offenses, by filing the complaint adultery, seduction, abduction or
or information directly with the Municipal Trial lasciviousness can be prosecuted only by
Courts and Municipal Circuit Trial Courts, or the party defamed.
the complaint with the office of the
prosecutor. The offended party, even if a minor, has the right
3) In Manila and other chartered cities, the to initiate the prosecution of the offenses of
complaint shall be filed with the office of the seduction, abduction and acts of lasciviousness
prosecutor, unless otherwise provided in their independently of her parents, grandparents or
charters. guardian, unless she is incompetent or incapable
of doing so. Where the offended party, who is a
The institution of the criminal action shall minor, fails to file the complaint, her parents,
interrupt the period of prescription of the grandparents, or guardian may file the same. The
offense charged unless otherwise provided in right to file the action granted to parents,
special laws. grandparents or guardian shall be exclusive of all
other persons and shall be exercised successively
Preliminary investigation is required for in the order herein provided, except as stated in
offenses punishable by at least 4 years, 2 the preceding paragraph.
months, and 1 day, unless the accused was
lawfully arrested without a warrant, in which CONTROL OF PROSECUTION
case, an inquest must have been conducted.
Only the Solicitor General may represent the
WHO MAY FILE THE CRIMINAL ACTION People of the Philippines on appeal. The private
offended party or complainant may question such
1) Offended party acquittal or dismissal or appeal therefrom only
2) Any peace officer; or insofar as the civil aspect is concerned, in the
3) Other public officer charged with the name of the petitioner or appellant and not in the
enforcement of the law violated. name of the People of the Philippines. The rule
that the Solicitor General is the lawyer of the
All criminal actions commenced by complaint or People in appellate courts admits an exception,
information shall be prosecuted under the in all cases elevated to the Sandiganbayan and
direction and control of the prosecutor. from the Sandiganbayan to the Supreme Court,
the Office of the Ombudsman, through its special
In the Municipal Trial Courts or Municipal Circuit prosecutor, shall represent the People of the
Trial Courts when the prosecutor assigned thereto Philippines, except in cases filed pursuant to EO
or to the case is not available, the offended party, 1, 2, 14 and 14-A, issued in 1986.
any peace officer, or public officer charged with
the enforcement of the law violated may The prosecution determines the charges to be
prosecute the case. This authority shall cease filed and how the legal and factual elements in
upon actual intervention of the prosecutor or the case shall be utilized as components of the
upon elevation of the case to the Regional Trial information. Whenever a criminal case is
Court. prosecuted and the State is the offended party,
the case must always be prosecuted under
RIMES THAT CANNOT BE PROSECUTED DE control and guidance of the State through the
OFICIO government prosecutors.
 142

The prosecution may however be allowed to a but in terms sufficient to enable a person of
private prosecutor upon compliance with the common understanding to know what offense is
following conditions: being charged as well as its qualifying and
1) The public prosecutor has a heavy work aggravating circumstances and for the court to
schedule or there is no public prosecutor pronounce judgment.
assigned in the city or province;
2) The private prosecutor is authorized in DUPLICITY OF THE OFFENSE; EXCEPTION
writing by the Chief of the Prosecutor
Office or the Regional State Prosecutor A complaint or information must charge only
3) The authority of the private prosecutor one offense, EXCEPT when the law prescribes
must be approved by the court; a single punishment for various offenses (Sec.
4) The private prosecutor shall continue to 13).
prosecute the case until the end of the Exception: The law prescribes a single
trial unless the authority is withdrawn or punishment for various offenses, such as in
otherwise revoked; continuing and complex crimes.
5) In case of the withdrawal or revocation of
the authority of the private prosecutor, the AMENDMENT OR SUBSTITUTION OF
same must be approved by court. COMPLAINT OR INFORMATION

SUFFICIENCY OF COMPLAINT OR A complaint or information may be amended, in

INFORMATION form or in substance, without leave of court, at
any time before the accused enters his plea.
A complaint or information is sufficient if it states: After the plea and during the trial, a formal
1) The name of the accused; amendment may only be made with leave
2) The designation of the offense given by of court and when it can be done without
the statute; causing prejudice to the rights of the
3) The acts or omissions complained of as accused.
constituting the offense;
4) The name of the offended party; However, any amendment before plea, which
5) The approximate date of the commission downgrades the nature of the offense charged in
of the offense; and or excludes any accused from the complaint or
6) The place wherein the offense was information, can be made only upon motion by
committed. the prosecutor, with notice to the offended party
and with leave of court. The court shall state its
When an offense is committed by more than one reasons in resolving the motion and copies of its
person, all of them shall be included in the order shall be furnished all parties, especially the
complaint or information. If the prosecutor offended party.
refuses to include one accused, the remedy is
mandamus. If it appears at any time before judgment that a
mistake has been made in charging the proper
DESIGNATION OF OFFENSE offense, the court shall dismiss the original
complaint or information upon the filing of a new
The complaint or information shall state the one charging the proper offense in accordance
designation of the offense given by the statute, with Section 19, Rule 119, provided the accused
aver the acts or omissions constituting the would not be placed in double jeopardy. The court
offense, and specify its qualifying and may require the witnesses to give bail for their
aggravating circumstances. appearance at the trial (Sec. 14).

If there is no designation of the offense, reference Exception: When a fact supervenes which
shall be made to the section or subsection of the changes the nature of the crime charged
statute punishing it. in the information or upgrades it to a
higher crime, a substantial amendment
CAUSE OF THE ACCUSATION may be made with a need for a re-
arraignment of the accused under the
The acts or omissions complained of as amended information.
constituting the offense and the qualifying and
aggravating circumstances must be stated in AMENDMENT AND SUBSTITUTION
ordinary and concise language and not DISTINGUISHED:
necessarily in the language used in the statute
 143

1) Amendment may involve either formal or such voyage, subject to the generally
substantial changes; substitution accepted principles of international law.
necessarily involves a substantial change 3) Felonies under Article 2 of the
from the original charge; Revised Penal Code - shall be cognizable
2) Amendment before plea has been entered by the court where the criminal action is
can be effected without leave of court; first filed.
substitution of information must be with 4) Piracy the venue of piracy, unlike all
leave of court, as the original information other crimes, has no territorial limits. It
has to be dismissed; may be tried anywhere.
3) Where the amendment is only as to form, 5) Libel the action may be instituted at the
there is no need for another preliminary election of the offended or suing party in
investigation and the retaking of the plea the province or city:
of the accused; in substitution of a) Where the libellous article is
information, another preliminary printed and first published;
investigation is entailed and the accused b) If one of the offended parties is a
has to plead anew to the new information; private individual, where said
and individual actually resides at the
4) An amended information refers to the time of the commission of the
same offense charged in the original offense;
information or to an offense which c) If the offended party is a public
necessarily includes or is necessarily official, where the latter holds
included in the original charge; hence office at the time of the
substantial amendments to the commission of the offense;
information after the plea has been taken 6) In exceptional cases to ensure a fair
cannot be made over the objection of the and impartial inquiry. The SC shall have
accused, for if the original information the power to order a change of venue or
would be withdrawn, the accused could place of trial to avoid the miscarriage of
invoke double jeopardy. Substitution justice.
requires or presupposes that the new 7) In cases filed under BP 22 the
information involves different offense criminal action shall be filed in the place
which does not include or is not where the check was issued and bounced.
necessarily included in the original charge; In case of crossed-check, in the place of
hence the accused cannot claim double depository.
jeopardy.
INTERVENTION OF OFFENDED PARTY
VENUE OF CRIMINAL ACTIONS
Where the civil action for recovery of civil liability
GENERAL RULE: The criminal action shall be is instituted in the criminal action pursuant to
instituted and tried in the court of the Rule 111, the offended party may intervene by
municipality or territory where the offense was counsel in the prosecution of the offense.
committed or where any of its essential
ingredients occurred.
PROSECUTION OF CIVIL ACTION (RULE 111)
EXCEPTIONS:
1) Where an offense is committed in a RULE ON IMPLIED INSTITUTION OF CIVIL
railroad train, aircraft, or other public ACTION WITH CRIMINAL ACTION
or private vehicle in the course of its
trip - the criminal action shall be The GENERAL RULE is that the institution or filing
instituted and tried in the court of any of the criminal action includes the institution
municipality or territory where said train, therein of the civil action for recovery of civil
aircraft or other vehicle passed during its liability arising from the offense charged, EXCEPT
trip, including the place of its departure in the following cases:
and arrival. 1) The offended party waives the civil action;
2) Where an offense is committed on 2) He reserves his right to institute the civil
board a vessel in the course of its action separately; or
voyage - the criminal action shall be 3) He institutes the civil action prior to the
instituted and tried in the court of the first criminal action.
port of entry or of any municipality or
territory where the vessel passed during
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The exception to the reservation requirement is a shall require only a preponderance of

claim arising out of a dishonored check under BP evidence. In no case, however, may the
22, where no reservation to file such civil action offended party recover damages twice for
separately shall be allowed, which means that the the same act or omission charged in the
filing of the criminal action for violation of BP 22 criminal action.
shall be deemed to include the corresponding
civil action and that unless a separate civil action EFFECT OF THE DEATH OF ACCUSED OR
has been filed before the institution of the CONVICT ON CIVIL ACTION
criminal action, no such civil action can be
instituted after the criminal action has been filed The death of the accused after arraignment and
as the same has been included therein. during the pendency of the criminal action shall
extinguish the civil liability arising from the delict.
Another instance where no reservation shall be However, the independent civil action instituted
allowed and where a civil action filed prior to the under section 3 of this Rule (Rule 111) or which
criminal action has to be transferred to the thereafter is instituted to enforce liability arising
subsequently filed criminal action for joint from other sources of obligation may be
hearing is a claim arising from an offense which is continued against the estate or legal
cognizable by the Sandiganbayan. representative of the accused after proper
substitution or against said estate, as the case
WHEN SEPARATE CIVIL ACTION IS may be. The heirs of the accused may be
SUSPENDED substituted for the deceased without requiring
the appointment of an executor or administrator
a) If criminal action has been commenced earlier and the court may appoint a guardian ad litem for
separate civil action cannot be instituted the minor heirs.
until final judgment has been entered in the
criminal action. The court shall forthwith order said legal
b) If the criminal action is filed after the separate representative or representatives to appear and
civil action has already been instituted be substituted within a period of thirty (30) days
a. Civil action suspended, in whatever from notice.
stage it may be found before judgment
on the merits, until final judgment is A final judgment entered in favor of the offended
rendered in the criminal action. party shall be enforced against the estate of the
b. Civil action may, upon motion of the deceased.
offended party, be consolidated with
the criminal action in the court trying If the accused dies before arraignment, the case
the criminal action shall be dismissed without prejudice to any civil
c. Evidence already adduced in the civil action the offended party may file against the
action shall be deemed automatically estate of the deceased.
reproduced in the criminal action
d. Without prejudice to the right of the PREJUDICIAL QUESTION
prosecution to cross-examine the
witnesses presented by the offended A petition for suspension of the criminal action
party in the criminal case and the based upon the pendency of a prejudicial
parties to present additional evidence. question in a civil action may be filed in the office
c) The consolidated criminal and civil actions of the prosecutor or the court conducting the
shall be tried and decided jointly. preliminary investigation. When the criminal
d) During the pendency of the criminal action, action has been filed in court for trial, the petition
the running of prescription of the civil action to suspend shall be filed in the same criminal
which cannot be instituted separately or action at any time before the prosecution rests.
whose proceeding has been suspended shall
be tolled. GENERAL RULE: Criminal action takes precedence
of civil actions.
The bar on the institution or suspension of the
separate civil actions has the following exception: EXCEPTIONS:
In the cases provided for in Articles 32, a) independent civil actions
33, 34 and 2176 of the Civil Code, the b) prejudicial question
independent civil action may be brought
by the offended party. It shall proceed Prejudicial question which arises in a case the
independently of the criminal action and resolution of which is a logical antecedent of the
 145

issues involved in said cases, and the cognizance whether there is sufficient ground to engender a
of which pertains to another tribunal. well-founded belief that a crime has been
committed and that the respondent is probably
The elements of a prejudicial question are: guilty thereof, and should be held for trial.
a) the previously instituted civil action
involves an issue similar or NATURE OF RIGHT
intimately related to the issue
raised in the subsequent criminal The right to preliminary investigation is not a
action, and constitutional grant; it is merely statutory and
b) the resolution of such issue may be invoked only when specifically created by
determines whether or not the statute. It is a component part of due process in
criminal action may proceed. criminal justice.

TEST: It must appear not only that the civil case Preliminary investigation is a function that
involves the same facts upon which the criminal belongs to the public prosecutor. It is an
prosecution is based, but also that the resolution executive function, although the prosecutor, in
of the issues in said civil action would be the discharge of such function, is a quasi-judicial
necessarily determinative of the guilt or authority tasked to determine whether or not a
innocence of the accused. criminal case must be filed in court.

A prejudicial question can be interposed at the The right to preliminary investigation may be
Office of the Prosecutor, but; waived by the accused either expressly or
1) The question can also be raised in court; impliedly. The posting of a bond by the accused
2) If raised, the court should merely suspend constitutes such a waiver, such that even if the
the criminal case; warrant was irregularly issued, any infirmity
3) The court must wait for a motion, attached to it is cured when the accused submits
otherwise, that is a waiver; himself to the jurisdiction of the court by applying
4) The court cannot motu propio suspend the for bail. It is also cured by submitting himself to
criminal case. arraignment

RULE ON FILING FEES IN CIVIL ACTION PURPOSES OF PRELIMINARY

DEEMED INSTITUTED WITH THE CRIMINAL INVESTIGATION
ACTION
The basic purpose of preliminary investigation is
When the offended party seeks to enforce civil to determine whether a crime has been
liability against the accused by way of moral, committed and whether there is probable cause
nominal, temperate or exemplary damages to believe that the accused is guilty thereof.
without specifying the amount thereof in the
complaint or information, the filing fees therefor Generally, preliminary investigation has a three-
shall constitute a first lien on the judgment fold purpose:
awarding such damages. 1) To inquire concerning the commission of
crime and the connection of accused with
Where the amount of damages, other than actual, it, in order that he may be informed of the
is specified in the complaint or information, the nature and character of the crime charged
corresponding filing fees shall be paid by the against him, and if there is probable cause
offended party upon filing thereof in court. Except for believing him guilty, that the state may
as otherwise provided in these Rules, no filing take the necessary steps to bring him to
fees shall be required for actual damages. trial;
2) To preserve the evidence and keep the
With respect to criminal actions for violations of witnesses within the control of the state;
BP 22, the offended party shall pay in full the and
filing fees based on the face value of the checks 3) To determine the amount of bail, if the
as the actual damages. offense is bailable.

PRELIMINARY INVESTIGATION (RULE 112) WHO MAY CONDUCT DETERMINATION OF

EXISTENCE OF PROBABLE CAUSE

Preliminary investigation is an inquiry or On the basis of the evidence before him, the
proceeding for the purpose of determining investigating office must decide whether to
 146

dismiss the case or to file the information in Where such the recommendation of dismissal was
court. This involves the determination of probable disapproved on the ground that a probable cause
cause. exists, the chief prosecutor may file the
information against the respondent, or direct
The Court has maintained the policy of non- another assistant prosecutor or state prosecutor
interference in the determination of the existence to do so without conducting another preliminary
of probable cause, provided there is no grave investigation.
abuse in the exercise of such discretion. The rule
is based not only upon respect for the REVIEW
investigatory and prosecutorial powers of
prosecutors but upon practicality as well. A preliminary investigation falls under the
authority of the state prosecutor who is given by
OFFICERS AUTHORIZED TO CONDUCT law the power to direct and control criminal
PRELIMINARY INVESTIGATION actions. He is, however, subject to the
control/appeal to the Secretary of Justice, which
1) Provincial or city prosecutors and their the latter may exercise motu propio or upon
assistants; petition of the proper party.
2) National and Regional State Prosecutors; and
3) Other officers as may be authorized by law The Secretary of Justice exercises the power of
(COMELEC, PCGG, Ombudsman) direct control and supervision over prosecutors,
and may thus affirm, nullify, reverse or modify
Their authority to conduct preliminary their rulings. In reviewing resolutions of state
investigation shall include all crimes cognizable prosecutors, the Secretary of Justice is not
by the proper court in their respective territorial precluded from considering errors, although
jurisdictions. unassigned, for the purpose of determining
whether there is probable cause for filing cases in
RESOLUTION OF INVESTIGATION court.
PROSECUTOR
An aggrieved party may appeal by filing a verified
If the investigating prosecutor finds cause to hold petition for review with the Secretary and by
the respondent for trial, he shall prepare the furnishing copies thereof to the adverse party
resolution and information. He shall certify under and prosecution office issuing the appealed
oath in the information that he, or as shown by resolution. The appeal shall be taken within 15
the record, an authorized officer, has personally days from receipt of the resolution or of the
examined the complainant and his witnesses; denial of the motion for
that there is reasonable ground to believe that a reconsideration/reinvestigation if one has been
crime has been committed and that the accused filed within 15v days from receipt of the assailed
is probably guilty thereof; that the accused was resolution. Only one motion for reconsideration
informed of the complaint and of the evidence shall be allowed. Unless the Secretary directs
submitted against him; and that he was given an otherwise, the appeal SHALL NOT STAY the filing
opportunity to submit controverting evidence. of the corresponding information in court on the
Otherwise, he shall recommend the dismissal of basis of the finding of probable cause in the
the complaint. assailed decision. If the Secretary of Justice
reverses or modifies the resolution of the
Within five (5) days from his resolution, he shall provincial or city prosecutor or chief state
forward the record of the case to the provincial or prosecutor, he shall direct the prosecutor
city prosecutor or chief state prosecutor, or to the concerned either to file the corresponding
Ombudsman or his deputy in cases of offenses information without conducting another
cognizable by the Sandiganbayan in the exercise preliminary investigation, or to dismiss or move
of its original jurisdiction. They shall act on the for dismissal of the complaint or information with
resolution within ten (10) days from their receipt notice to the parties.
thereof and shall immediately inform the parties
of such action. WHEN WARRANT OF ARREST MAY ISSUE

No complaint or information may be filed or (a) By the Regional Trial Court

dismissed by an investigating prosecutor without Within ten (10) days from the filing of the
the prior written authority or approval of the complaint or information, the judge shall
provincial or city prosecutor or chief state personally evaluate the resolution of the
prosecutor or the Ombudsman or his deputy. prosecutor and its supporting evidence.
 147

He may immediately dismiss the case if To hold in abeyance the proceedings and
the evidence on record clearly fails to order/insist the prosecutor to hold preliminary
establish probable cause. investigation.
If he finds probable cause, he shall issue a Raised the lack of PI as an error in appeal
warrant of arrest, or a commitment order
if the accused has already been arrested If the case has been conducted, the accused may
pursuant to a warrant issued by the judge within 5 days from the time he learns of its filing
who conducted the preliminary ask for a preliminary investigation. The five-day
investigation or when the complaint or period to file the motion for preliminary
information was filed pursuant to section 6 investigation is mandatory, and an accused is
of this Rule. entitled to ask for preliminary investigation by
In case of doubt on the existence of filing the motion within the said period. The
probable cause, the judge may order the failure to file the motion within the five-day
prosecutor to present additional evidence period amounts to a waiver of the right to ask for
within five (5) days from notice and the preliminary investigation. Apart from such waiver,
issue must be resolved by the court within posting bail without previously or simultaneously
thirty (30) days from the filing of the demanding for a preliminary investigation
complaint or information. justifies denial of the motion for investigation.

(b) By the Municipal Trial Court INQUEST

When required pursuant to the second
paragraph of section 1 of this Rule, the PI It is a summary investigation conducted by a
of cases falling under the original public prosecutor in criminal cases involving
jurisdiction of the MTCs shall be conducted persons arrested and detained without the
by the prosecutor. The procedure for the benefit of a warrant of arrest issued by the court
issuance of a warrant of arrest by the for the purpose of determining whether or not
judge shall be governed by paragraph (a) said persons should remain under custody and
of this section (Sec. 5, Rule112). correspondingly be charged in court. Such
proceedings must terminate within the period
(c) When warrant of arrest not necessary prescribed under Art. 125 of the Revised Penal
A warrant of arrest shall not issue if the Code.
accused is already under detention
pursuant to a warrant issued by the Required where the crime is punishable by at
Municipal Trial Court in accordance with least 4 years, 2 months and 1 day.
paragraph (b) of this section, or if the
complaint or information was filed
pursuant to section 6 of this Rule or is for ARREST (RULE 113)
an offense penalized by fine only. The
court shall then proceed in the exercise of Arrest is the taking of a person into custody in
its original jurisdiction (Sec. 5, as order that he may be bound to answer for the
amended by AM 05-8-26-SC). commission of an offense.

CASES NOT REQUIRING A PRELIMINARY HOW AN ARREST MADE?

INVESTIGATION
1) by an actual restraint of a person to be
1) Cases in which the imposable penalty DOES arrested, OR
NOT EXCEED four (4) years, two (2) months 2) by his submission to the custody of the
and one (1) day person making the arrest.
2) When the accused has undergone inquest No violence or unnecessary force shall he
proceeding. used in making an arrest. The person
arrested shall not be subject to a greater
REMEDIES OF ACCUSED IF THERE WAS NO restraint than is necessary for his
PRELIMINARY INVESTIGATION detention.

Refuse to enter a plea upon arraignment and ARREST WITHOUT WARRANT,WHEN

object to further proceedings upon such LAWFUL
grounds
1) When, in his presence, the person to be
arrested has committed, is actually
 148

committing, or is attempting to commit an inform him, or when the giving of such

offense; information will imperil the arrest.
2) When an offense has just been committed
and he has probable cause to believe based REQUISITES OF A VALID WARRANT OF
on his personal knowledge of facts or ARREST
circumstances that the person to be arrested
has committed the crime; Requisites for arrest warrant issued by a
3) When the person to be arrested is a prisoner RTC judge under Sec. 5, Rule 112:
who has escaped from a penal establishment 1) Within 10 days from the filing of the
or place where he is serving final judgment or complaint or information
is temporarily confined while his case is 2) The judge shall personally evaluate the
pending, or has escaped while being resolution of the prosecutor and its
transferred from one confinement to another. supporting evidence.
4) Where a person who has been lawfully 3) If he finds probable cause, he shall issue a
arrested escape or is rescued; warrant of arrest
5) When the bondsmen arrests a prisoner out on 4) In case of doubt on the existence of
bail for the purpose of bringing him to court; probable cause
6) Where the accused attempts to leave the a. The judge may order the
country without the permission of the court. prosecutor to present additional
evidence within 5 days from notice;
METHOD OF ARREST and
b. The issue must be resolved by the
Method of arrest by officer by virtue of court within 30 days from the filing
warrant of the complaint of information.

The officer shall inform the person to be arrested Requisites for issuing search warrant under
of the cause of the arrest and the fact that a Sec. 4, Rule 126:
warrant has been issued for his arrest, except 1) It must be issued upon probable cause in
when he flees or forcibly resists before the officer connection with one specific offense;
has opportunity to so inform him, or when the 2) The probable cause must be determined
giving of such information will imperil the arrest. by the judge himself and not by the
applicant or any other person;
The officer need not have the warrant in his 3) In the determination of probable cause,
possession at the time of the arrest but after the the judge must examine under oath or
arrest, if the person arrested so requires, the affirmation, the complainant and the
warrant shall be shown to him as soon as witness he may produce; and
practicable. 4) The warrant issued must particularly
describe the person to be arrested in
Method of arrest by officer without connection with a specific offense or
warrant crime.

DETERMINATION OF PROBABLE CAUSE FOR

The officer shall inform the person to be arrested
ISSUANCE OF WARRANT OF ARREST
of his authority and the cause of the arrest,
unless the latter is either engaged in the
It is the judge alone who determines the probable
commission of an offense, is pursued immediately
cause for the issuance of warrant of arrest. It is
after its commission, has escaped, flees or
not for the provincial fiscal or prosecutor to
forcibly resists before the officer has opportunity
ascertain.
to so inform him, or when the giving of such
information will imperil the arrest.
DISTINGUISH PROBABLE CAUSE OF FISCAL
FROM THAT OF A JUDGE
Method of arrest by private person
The determination by the prosecutor of probable
A private person shall inform the person to be cause is for the purpose of either filing an
arrested of the intention to arrest him and cause information in court or dismissing the charges
of the arrest, unless the latter is either engaged against the respondent, which is an executive
in the commission of an offense, is pursued function.
immediately after its commission, or has
escaped, flees or forcibly resists before the
person making the arrest has opportunity to so
 149

The determination by the judge of probable cause officer duly authorized by its board of
begins only after the prosecutor has filed the directors.
information in court and the latters b) Property bond an undertaking
determination of probable cause is for the constituted as a lien on the real property
purpose of issuing an arrest warrant against the given as security for the amount of the
accused, which is judicial function. . A judge bond.
cannot be compelled to issue a warrant of arrest c) Recognizance an obligation of record
if he or she believes honestly that there is no entered into usually by the responsible
probable cause for doing so. members of the community before some
court or magistrate duly authorized to
Probable cause to hold a person for trial refers to take it, with the condition to do some
the finding of the investigating prosecutor after particular act, the most usual act being to
the conduct of a preliminary investigation, that assure the appearance of the accused for
there is sufficient ground to hold a well-founded trial.
belief that a crime has been committed and that d) Cash deposit the money deposited by
the respondent is probably guilty thereof and the accused or any person acting on his
should be held for trial. Based on such finding, behalf, with the nearest collector of
the investigating prosecutor files the internal revenue, or provincial, city or
corresponding complaint or information in the municipal treasurer. Considered as bail, it
competent court against the accused. may be applied to the payment of any
fees and costs, and the excess, if any,
shall be returned to the accused or to
BAIL (RULE 114)
whoever made the deposit.

NATURE WHEN A MATTER OF RIGHT; EXCEPTIONS

All persons, except those charged with offenses All persons in custody shall be admitted to bail as
punishable by reclusion perpetua when evidence a matter of right, with sufficient sureties, or
of guilt is strong, shall before conviction, be released on recognizance:
bailable by sufficient sureties, or be released on a) before or after conviction by the MTC, and
recognizance as may be provided by law. The b) before conviction by the RTC of an offense
right to bail shall not be impaired even when the NOT punishable by death, reclusion
privilege of the writ of habeas corpus is perpetua, or life imprisonment and the
suspended. Excessive bail shall not be required evidence of guilt is strong.
(Sec. 13, Art. III, The Constitution).
If bail can be granted in deportation cases and
Bail is the security required by the court and extradition cases; both are administrative
given by the accused to ensure that the accused proceedings where the innocence or guilt of the
appear before the proper court at the scheduled person detained is not in issue.
time and place to answer the charges brought
against him. It is awarded to the accused to Bail is a matter of right before final conviction,
honor the presumption of innocence until his guilt but the rule is not absolute. The exception is
is proven beyond reasonable doubt, and to when a person is charged with a capital offense
enable him to prepare his defense without being when the evidence of guilt is strong, or when the
subject to punishment prior to conviction. Its offense for which on is charged is punishable by
main purpose is to relieve an accused from the reclusion perpetua. The exception to this rule,
rigors of imprisonment until his conviction and however, is even if a person is charged with a
secure his appearance at the trial. capital offense where the evidence of guilt is
strong, if the accused has failing health, hence,
The person seeking provisional release need not for humanitarian reasons, he may be admitted to
wait for a formal complaint or information to be bail, but that is discretionary on the part of the
filed against him as it is available to all persons court.
where the offense is bailable, so long as the
applicant is in the custody of the law. WHEN A MATTER OF DISCRETION

Kinds of bail: 1) Before conviction, in case of offenses

a) Corporate bond one issued by a punishable by reclusion perpetua, life
corporation licensed to provide bail imprisonment or death;
subscribed jointly by the accused and an
 150

If it is determined that it is NOT strong, Where the grant of bail is a matter of discretion,
then bail is a matter of right. There is no or the accused seeks to be released on
more discretion of the court in denying the recognizance, the application may only be filed in
bail, the moment there is a determination the court where the case is pending, whether on
that the evidence of guilt is not strong. preliminary investigation, trial, or on appeal.
2) After conviction by the RTC of a non-capital
offense. HEARING OF APPLICATION FOR BAIL IN
CAPITAL OFFENSES
The application for bail may be filed and acted
upon by the trial court despite the filing of a
notice of appeal, provided it has not transmitted GUIDELINES IN FIXING AMOUNT OF BAIL
the original record to the appellate court.
However, if the decision of the trial court A bail application in capital offense does not only
convicting the accused changed the nature of the involve the right of the accused to temporary
offense from non-bailable to bailable, the liberty, but likewise the right of the State to
application for bail can only be filed with and protect the people and the peace of the
resolved by the appellate court. community from dangerous elements. The
prosecution must be given ample opportunity to
If the penalty imposed by the trial court is show that the evidence of guilt is strong, because
imprisonment exceeding six (6) years, the it is on the basis of such evidence that judicial
accused shall be denied bail, or his bail shall be discretion is exercised in determining whether the
cancelled upon a showing by the prosecution, evidence of guilt is strong is a matter of judicial
with notice to the accused, of the following or discretion.
other similar circumstances:
a) That he is a recidivist, quasi-recidivist, or A hearing is absolutely indispensable. In receiving
habitual delinquent, or has committed the evidence on bail, while a court is not required to
crime aggravated by the circumstance of try the merits of the case, he must nevertheless
reiteration; conduct a summary hearing to determine the
b) That he has previously escaped from legal weight of the evidence for purposes of the bail.
confinement, evaded sentence, or violated
the conditions of his bail without valid A judge should not hear a petition for bail in
justification; capital offenses on the same day that the petition
c) That he committed the offense while was filed. He should give the prosecution a
under probation, parole, or under reasonable time within which to oppose the
conditional pardon; same. Neither is he supposed to grant bail solely
d) That the circumstances of his case on the belief that the accused will not flee during
indicate the probability of flight if released the pendency of the case by reason of the fact
on bail; or that he had even voluntarily surrendered.
e) That there is undue risk that he may Voluntary surrender is merely a mitigating
commit another crime during the circumstance in decreasing the penalty but is not
pendency of the appeal. a ground for granting bail to an accused charged
with a capital offense.

a) Financial ability of the accused to give g) Probability of the accused appearing at

bail; the trial;
b) Nature and circumstances of the offense; h) Forfeiture of other bail;
c) Penalty for the offense charged; i) The fact that the accused was a fugitive
d) Character and reputation of the accused; from justice when arrested; and
e) Age and health of the accused; j) Pendency of other cases where the
f) Weight of the evidence against the accused is on bail.
accused;
Excessive bail shall not be required. months of imprisonment and/or fine of
P2,000.00 under RA 6036.
BAIL WHEN NOT REQUIRED 2) Where the accused has applied for probation
and before the same has been resolved but
1) When the offense charged is a violation of an no bail was filed or the accused is incapable
ordinance, light felony or a criminal offense of filing one, in which case he may be
the imposable penalty does not exceed 6 released on recognizance.
 151

3) In case of youthful offender held for physical Upon application of the bondsmen, with due
or mental examination, trial or appeal, if notice to the prosecutor, the bail may be
unable to furnish bail and under the cancelled upon surrender of the accused or proof
circumstances under PD 603, as amended. of his death.
4) When the law or these Rules so provide.
5) When a person has been in custody for a The bail shall be deemed automatically cancelled
period equal to or more than the possible upon acquittal of the accused, dismissal of the
maximum imprisonment prescribed for the case, or execution of the judgment of conviction.
offense charged, he shall be released In all instances, the cancellation shall be without
immediately, without prejudice to the prejudice to any liability on the bail.
continuation of the trial or the proceedings on
appeal. APPLICATION NOT A BAR TO OBJECTIONS
6) A person accused of an offense with a IN ILLEGAL ARREST, LACK OF OR
maximum penalty of destierro, he shall be IRREGULAR PRELIMINARY INVESTIGATION
released after 30 days of preventive
imprisonment. The posting of the bail does not constitute a
waiver of any question on the irregularity
INCREASE OR REDUCTION OF BAIL attending the arrest of person. He can still
question the same before arraignment,
After the accused is admitted to bail, the court otherwise, the right to question it is deemed
may, upon good cause, either increase or reduce waived.
its amount.
An application for or admission to bail shall not
When increased, the accused may be committed bar the accused from challenging the validity of
to custody if he does not give bail in the his arrest or the legality of the warrant issued
increased amount within a reasonable period. therefor, or from assailing the regularity or
questioning the absence of a preliminary
An accused held to answer a criminal charge, who investigation of the charge against him, provided
is released without bail upon filing of the that he raises them before entering his plea.
complaint or information, may, at any subsequent
stage of the proceedings whenever a strong The arraignment of an accused is not a
showing of guilt appears to the court, be required prerequisite to the conduct of hearings on his
to give bail in the amount fixed, or in lieu thereof, petition for bail. A person is allowed to petition for
committed to custody. bail as soon as he is deprived of his liberty by
virtue of his arrest or voluntary surrender. Bail
FORFEITURE AND CANCELLATION OF BAIL should be granted before arraignment; otherwise
the accused may be precluded from filing a
When the presence of the accused is required, his motion to quash.
bondsmen shall be notified to produce him on a
given date and time. If the accused fails to HOLD DEPARTURE ORDER & BUREAU OF
appear, his bail shall be declared forfeited and IMMIGRATION WATCHLIST
the bondsmen given thirty (30) days within which
to produce their principal and to show cause why Supreme Court Cir. No. 39-97 dated June 19,
no judgment should be rendered against them for 1997 limits the authority to issue hold departure
the amount of their bail. Within the said period, orders to the RTCs in criminal cases within their
the bondsmen must: exclusive jurisdiction. Consequently, MTC judges
a) produce the body of their principal or give have no authority to issue hold-departure orders;
the reason for his non-production; and neither does it has authority to cancel one which
b) explain why the accused did not appear he issued.
before the court when first required to do
so. A court has the power to prohibit a person
admitted to bail from leaving the Philippines. This
Failing in these two requisites, a judgment shall is necessary consequence of the nature and
be rendered against the bondsmen, jointly and function of a bail bond. Where it appears that the
severally, for the amount of the bail. The court accused had the propensity to evade or disobey
shall not reduce or otherwise mitigate the liability lawful orders, the issuance of a hold departure
of the bondsmen, unless the accused has been order is warranted.
surrendered or is acquitted.
 152

The secretary of justice may issue a he must be provided with one. These rights
watchlist order in the following cannot be waived except in writing and in the
circumstances: presence of counsel;
1) Against the accused, irrespective of 2) No torture, force, violence, intimidation or any
nationality, in criminal cases pending trial other means which vitiate the free will shall
before the RTC; be used against him. Secret detention places,
2) Against the respondent, irrespective of solitary, incommunicado, or other similar
nationality, in criminal cases pending forms of detention are prohibited;
preliminary investigation, petition for 3) Any confession or admission in violation of
review, or motion for reconsideration Self-Incrimination Clause shall be inadmissible
before DOJ or any of its provincial or city in evidence against him;
offices. 4) The law shall provide for penal and civil
3) Against any person, either motu proprio, sanctions as well as compensation to aid
or upon request of any government rehabilitation of victims of torture or similar
agency, including commissions, task practice, and their families.
forces or similar entities created by the
office of the President, pursuant to Anti UNDER RA 7834
Trafficking in Persons Acts of 2003,
and/or in connection with any The following are the rights of persons arrested,
investigation being conducted by it, or in detained or under custodial investigation:
the interest of national security, public 1) To be assisted by counsel at all times;
safety of public health. 2) Shall be informed , in a language known to
and understood by him, of his right to
remain silent and to have competent and
RIGHTS OF THE ACCUSED (RULE115)
independent counsel, preferably of his
own choice, who shall at all times be
RIGHTS OF ACCUSED AT THE TRIAL allowed to confer privately with him;
3) The custodial investigation report shall be
1) To be PRESUMED INNOCENT until the contrary read and adequately explained to him by
is proved beyond reasonable doubt. his counsel or by the assisting counsel in
2) To be INFORMED OF THE NATURE AND CAUSE the language or dialect known him;
OF THE ACCUSATION against him. otherwise, such investigation report shall
3) To be PRESENT AND DEFEND IN PERSON AND be null and void;
BY COUNSEL AT EVERY STAGE OF THE 4) Any extrajudicial confession made by him
PROCEEDINGS, from arraignment to shall be in writing and signed in the
promulgation of the judgment. presence of his counsel or upon a valid
4) To TESTIFY AS A WITNESS IN HIS OWN BEHALF waiver, and in the presence of his any
but subject to cross-examination on matters immediate family members, otherwise,
covered by direct examination. His silence such extrajudicial confession shall be
shall not in any manner prejudice him; inadmissible in any proceeding;
5) To be EXEMPT FROM BEING COMPELLED TO 5) Any waiver under the provisions of Art.
BE A WITNESS AGAINST HIMSELF. 125 of the RPC or under custodial
6) To CONFRONT AND CROSS-EXAMINE THE investigation, shall be in writing signed by
WITNESSES against him at the trial. such person in the presence of his
7) To have COMPULSORY PROCESS issued to counsel; otherwise such waiver shall be
secure the attendance of witnesses and null and void and of no effect;
production of other evidence in his behalf. 6) Shall be allowed visits by his or
8) To have SPEEDY, IMPARTIAL AND PUBLIC conferences with any member of his
TRIAL. immediate family, or any medical doctor
9) To appeal in all cases allowed and in the or priest or religious minister chosen by
manner prescribed by law. him or by his counsel, or by any national
NGO duly accredited by the Office of the
RIGHTS OF PERSONS UNDER CUSTODIAL President.
INVESTIGATION
THREE RIGHTS ARE MADE AVAILABLE
1) To be informed of his rights to remain silent BY SEC. 12(1):
and to have competent and independent
counsel preferably of his own choice. If the a) The right to remain silent
person cannot afford the services of counsel,
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Under the right against self- b) Judgment is generally void if the accused
incrimination in Sec. 17, only an has not been arraigned;
accused has the absolute right to c) There can be no arraignment in absentia;
remain silent. A person who is not an d) If the accused went to trial without
accused may assume the stance of arraignment, but his counsel had the
silence only when asked an opportunity to cross-examine the
incriminatory question. witnesses of the prosecution and after
Under Sec. 12, however, a person prosecution, he was arraigned, the defect
under investigation has the right to was cured.
refuse to answer any question. His
silence, moreover, may not be used ARRAIGNMENT AND PLEA, HOW MADE
against him.
a) The accused must be arraigned before the
b) The right to counsel Example of those court where the complaint or information was
who are not impartial counsel are: filed or assigned for trial. The arraignment
1) Special counsel, private or public shall be made in open court by the judge or
prosecutor, counsel of the police, or a clerk by furnishing the accused with a copy of
municipal attorney whose interest is the complaint or information, reading the
adverse to that of the accused; same in the language or dialect known to him,
2) a mayor, unless the accused and asking him whether he pleads guilty or
approaches him as counselor or not guilty.
adviser; b) When the accused is under preventive
3) a barangay captain; detention, his case shall be raffled and its
4) any other whose interest may be records transmitted to the judge to whom the
adverse to that of the accused. case was raffled within three (3) days from
the filing of the information or complaint. The
c) The right to be informed of his rights accused shall be arraigned within ten (10)
the right guaranteed here is more than what days from the date of the raffle. The pre-trial
is shown in television shows where the police conference of his case shall be held within ten
routinely reads out the rights from a note (10) days after arraignment.
card; he must also explain their effects in c) The private offended party shall be required
practical terms. to appear at the arraignment for purposes of
plea-bargaining, determination of civil liability,
CUSTODIAL INVESTIGATION and other matters requiring his presence. In
case of failure of the offended party to appear
The right to custodial investigation begins only despite due notice, the court may allow the
when the investigation is no longer a general accused to enter a plea of guilty to a lesser
inquiry into an unsolved crime but has begun to offense which is necessarily included in the
focus on a particular suspect, the suspect has offense charged with the conformity of the
been taken into police custody, the police carry trial prosecutor alone.
out a process of interrogations that lends itself to d) The arraignment shall be held within thirty
eliciting incriminating statements. (30) days from the date the court acquires
jurisdiction over the person of the accused.
It has extended to situations in which an The time of the pendency of a motion to
individual has not been formally arrested but has quash or for a bill of particulars or other
merely been invited for questioning. causes justifying suspension of the
arraignment shall be excluded in computing
the period.
ARRAIGNMENT AND PLEA (RULE 116)
WHEN SHOULD PLEA OF NOT GUILTY BE
It is the mode of implementing the constitutional ENTERED
right to be informed of the nature of the
accusation against him, and to fix the identity of a) The accused so pleaded;
the accused. b) When he refuses to plead;
c) Where in admitting the act charged, he
SOME RULES ON ARRAIGNMENT: sets up matters of defense or with a lawful
a) Trial in absentia is allowed only after justification;
arraignment; d) When he enters a conditional plea of guilt;
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e) Where, after a plea of guilt, he introduces It is a plea without information as to all the
evidence of self-defense or other circumstances affecting it; based upon a
exculpatory circumstances ; and mistaken assumption or misleading
f) When the plea is indefinite or ambiguous. information or advise.
Conviction based on an improvident plea of
WHEN MAY AN ACCUSED ENTER A PLEA OF guilty may set aside only when such plea is
GUILTY TO A LESSER OFFENSE the sole basis of the judgment.
At any time before the judgment of conviction
AT ARRAIGNMENT, the accused, with the consent becomes final, the court may permit the
of the offended party and the prosecutor, may be withdrawal of an improvident plea of guilty, to
allowed by the trial court to plead guilty to a be substituted by a plea of not guilty, even
lesser offense which is necessarily included in the after judgment has been promulgated but
offense charged. before the same becomes final.
A plea of not guilty can likewise be withdrawn
AFTER ARRAIGNMENT BUT BEFORE TRIAL, the so that the accused may instead plead guilty
accused may still be allowed to plead guilty to to the same offense, but for obvious reasons,
said lesser offense after withdrawing his plea of this must be done before promulgation of
not guilty. No amendment of the complaint or judgment.
information is necessary. When the accused pleads guilty but presents
exculpatory evidence, his plea shall be
It has been held that the accused can still plead deemed withdrawn and a plea of not guilty
guilty to a lesser offense after the prosecution shall be entered for him.
has rested.
GROUNDS FOR SUSPENSION OF
If accused entered a plea to a lesser offense ARRAIGNMENT
without the consent of the offended party and the
prosecutor and he was convicted, his subsequent Upon motion by the proper party, the
conviction in the crime charged would not place arraignment shall be suspended in the following
him in double jeopardy. cases:
1) The accused appears to be suffering from
ACCUSED PLEAD GUILTY TO CAPITAL an unsound mental condition which
OFFENSE, WHAT THE COURT SHOULD DO effectively renders him unable to fully
understand the charge against him and to
The court should accomplish three (3) things; plead intelligently thereto. In such case,
1) It should conduct searching inquiry into the court shall order his mental
the voluntariness and full comprehension examination and, if necessary, his
of the consequences of the plea; confinement for such purpose.
2) It should require the prosecution to prove 2) There exists a prejudicial question; and
the guilt of the accused and the precise 3) A petition for review of the resolution of
degree of culpability; and the prosecutor is pending at either the DOJ
3) It should inquire whether or not the or the Office of the President; provided
accused wishes to present evidence on his that the period of suspension shall not
behalf and allow him if he so desires. exceed sixty (60) days counted from the
filing of the petition with the reviewing
SEARCHING INQUIRY office.

Searching question means more than informing MOTION TO QUASH (RULE 117)
cursorily the accused that he faces a jail term. It
also includes the exact lengthy of imprisonment
under the law and the certainty that he will serve A motion to quash is a hypothetical admission of
at the national penitentiary or a penal colony. the facts alleged in the information, hence the
court in resolving the motion cannot consider
It is intended to undermine the degree of facts contrary to those alleged in the information
culpability of the accused in order that the court or which do not appear on the face of the
may be guided in determining the proper penalty. information, except those admitted by the
prosecution.
IMPROVIDENT PLEA
The motion to quash must be filed before the
arraignment. Thereafter, no motion to quash can
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be entertained by the court, the only exceptions extinguished only when the death of
being those in Sec. 9 which adopts the omnibus the offender occurs before final
motion rule, subject to said exceptions. Sec. 3 judgment.
has been amended to separately refer to lack to b. By service of the sentence;
jurisdiction over the offense, not over the person c. By amnesty, which completely
of the accused since, by filing a motion to quash extinguishes the penalty and all its
on other grounds, the accused has submitted effects;
himself to the jurisdiction of the court. d. By absolute pardon;
e. By prescription of the crime;
GROUNDS f. By prescription of the penalty;
g. By the marriage of the offended
1) That the facts charged do not constitute an woman in
offense; i. Seduction
2) That the court trying the case has no ii. abduction or
jurisdiction over the offense charged; iii. acts of lasciviousness (Art. 344
3) That the court trying the case has no RPC)
jurisdiction over the person of the accused; 8) That it contains averments which, if true,
4) That the officer who filed the information had would constitute a legal excuse or
no authority to do so; justification; and
5) That it does not conform substantially to the 9) That the accused has been previously
prescribed form; convicted or acquitted of the offense charged,
6) That more than one offense is charged except or the case against him was dismissed or
when a single punishment for various offenses otherwise terminated without his express
is prescribed by law; consent.
7) That the criminal action or liability has been
extinguished - Grounds that are not waived even if not alleged:
a. By the death of the convict, as to the a) Failure to charge an offense;
personal penalties; as to pecuniary b) Lack of jurisdiction;
penalties, liability therefor is c) Extinction of criminal action or liability;
d) Double jeopardy.

MOTION TO QUASH DEMURER TO EVIDENCE

Rule 117 Section 23, Rule 119
When filed At any time before accused enters plea After the prosecution rests its case
Grounds a) That the facts charged do not constitute
an offense; Insufficiency of evidence
b) That the court trying the case has no
jurisdiction over the offense charged;
c) That the court trying the case has no
jurisdiction over the person of the
accused;
d) That the officer who filed the information
had no authority to do so;
e) That it does not conform substantially to
the prescribed form;
f) That more than one offense is charged
except when a single punishment for
various offenses is prescribed by law;
g) That the criminal action or liability has
been extinguished;
h) That it contains averments which, if true,
would constitute a legal excuse or
justification; and
i) That the accused has been previously
convicted or acquitted of the offense
charged, or the case against him was
dismissed or otherwise terminated
without his express consent.
Effect if If the motion to quash is sustained, the If leave of court is granted,
 156

granted court may order that another complaint or the accused shall file the
information be filed except as provided in demurrer to evidence within
section 6 of this rule. a non-extendible period of
If the order is made, the accused, if in ten (10) days from notice.
custody, shall not be discharged The prosecution may
unless admitted to bail. oppose the demurrer to
If no order is made or if having been evidence within 10 days
made, no new information is filed from receipt of the motion.
within the time specified in the order
or within such further time as the
court may allow for good cause, the
accused, if in custody, shall be
discharged unless he is also in custody
of another charge.
The remedy of prosecution is to amend
the information to correct the defects
thereof, except on the grounds of (g) and
(j); of the prosecution may appeal the
quashal of information or complaint
Effect if The usual course to take is for the accused to An accused who files a
denied proceed with trial, and in case of conviction, demurrer to evidence with
to appeal therefrom and assign as error the leave of court does not lose the
denial of the motion to quash, right to present evidence in the
event his motion is denied.
On the other hand, if he files
the demurrer without leave of
court and the same is denied,
he loses the right to present
evidence, in which event the
case will be deemed submitted
for decision.
Remedies if The order denying the motion to quash is The order denying the motion for
denied interlocutory and therefore not appealable, leave of court to file demurrer to
nor can it be the subject of a petition for evidence or to demur itself shall
certiorari. not be reviewable by appeal or
certiorari before judgment.

A special civil action may lie against an order i) Where the charges are manifestly false
of denial of a motion to quash, as an and motivated by the lust for
exception to the general rule, in any of the vengeance;
following instances: j) When there is clearly no prima facie
a) Where there is necessity to afford case against the accused; and
protection to the constitutional rights k) To avoid multiplicity of actions.
of the accused;
b) When necessary for the orderly EFFECTS OF SUSTAINING THE MOTION TO
administration of justice or to avoid QUASH
oppression or multiplicity of actions;
c) Where there is prejudicial question If the motion to quash is sustained, the court may
which is sub judice; order that another complaint or information be
d) When the acts of the officer are filed except as provided in section 6 of this rule.
without or in excess of authority; a) If the order is made, the accused, if in
e) Where the prosecution is under an custody, shall not be discharged unless
invalid law, ordinance or regulation; admitted to bail.
f) When double jeopardy is clearly b) If no order is made or if having been
apparent; made, no new information is filed within
g) Where the court has no jurisdiction the time specified in the order or within
over the offense; such further time as the court may allow
h) Where it is a case of persecution rather for good cause, the accused, if in custody,
than prosecution;
 157

shall be discharged unless he is also in the former complaint or information under any of
custody of another charge. the following instances:
1) the graver offense developed due to
EXCEPTION TO THE RULE THAT SUSTAINING supervening facts arising from the same
THE MOTION IS NOT A BAR TO ANOTHER act or omission constituting the former
PROSECUTION charge;
2) the facts constituting the graver charge
1) An order sustaining the motion to quash is not became known or were discovered only
a bar to another prosecution for the same after a plea was entered in the former
offense unless the motion was based on the complaint or information; or
grounds specified in Sec. 3(g) and (i) that 3) the plea of guilty to the lesser offense was
the criminal action or liability has been made without the consent of the
extinguished and that the accused has been prosecutor and of the offended party
previously convicted or in jeopardy of being except as provided in section 1(f) of Rule
convicted, or acquitted of the offense 116.
charged.
2) An order denying a motion to quash is PROVISIONAL DISMISSAL
interlocutory and not appealable and
generally, such denial cannot be controlled by 1) A case shall not be provisionally dismissed
certiorari; and the denial of a motion to quash except with the express consent of the
grounded on double jeopardy is not accused and with notice to the offended party.
controllable by mandamus 2) The provisional dismissal of offenses
punishable by imprisonment not exceeding
DOUBLE JEOPARDY six (6) years or a fine of any amount, or both,
shall become permanent one (1) year after
No person shall be twice put in jeopardy of issuance of the order without the case having
punishment for the same offense. If an act is been revived.
punished by a law and an ordinance, conviction 3) With respect to offenses punishable by
or acquittal under either shall constitute a bar to imprisonment of more than six (6) years, their
another prosecution for the same act (Sec. 21, provisional dismissal shall become permanent
Art. III, Constitution). two (2) years after issuance of the order
without the case having been revived.
The requirements of double jeopardy are: 4) The raison detre for the requirement of the
a) Valid indictment; express consent of the accused to a
b) Competent court; provisional dismissal of a criminal case is to
c) Valid arraignment; bar him from subsequently asserting that the
d) Valid plea entered; revival of the criminal case will place him in
e) Case is dismissed or terminated without double jeopardy for the same offense or for an
the express consent of the accused. offense necessarily included therein.

When an accused has been convicted or PRE-TRIAL (RULE 118)

acquitted, or the case against him dismissed or
otherwise terminated WITHOUT HIS EXPRESS The court shall, after arraignment and within
CONSENT by a court of competent jurisdiction, thirty (30) days from the date the court acquires
upon a valid complaint or information or other jurisdiction over the person of the accused,
formal charge sufficient in form and substance to unless a shorter period is, order a pre-trial
sustain a conviction and after the accused had conference. Its main objective is to achieve an
pleaded to the charge, the conviction or acquittal expeditious resolution of the case.
of the accused or the dismissal of the case shall
be a bar to another prosecution for the offense MATTERS TO BE CONSIDERED DURING PRE
charged, or for any attempt to commit the same TRIAL
or frustration thereof, or for any offense which
necessarily includes or is necessarily included in 1) plea bargaining;
the offense charged in the former complaint or 2) stipulation of facts;
information. 3) marking for identification of evidence of
the parties;
However, the conviction of the accused shall not 4) waiver of objections to admissibility of
be a bar to another prosecution for an offense evidence;
which necessarily includes the offense charged in
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5) modification of the order of trial if the

accused admits the charge but interposes Cases that may be referred:
a lawful defense; and 1) All civil cases and the civil liability of
6) such matters as will promote a fair and criminal cases covered by the Rule on
expeditious trial of the criminal and civil Summary Procedure, including the civil
aspects of the liability for violation of B.P. 22, except
those which by law may not be
WHAT THE COURT SHOULD DO WHEN compromised;
PROSECUTION AND OFFENDED PARTY 2) Special proceedings for the settlement of
AGREE TO THE PLEA OFFERED BY THE estates;
ACCUSED 3) All civil and criminal cases filed with a
certificate to file action issued by the
The agreements shall be approved by the court. Punong Barangay or the Pangkat ng
Provided that the agreement on the plea of the Tagapagkasundo under the Revised
accused should be to a lesser offense necessarily Katarungang Pambarangay Law;
included in the offense charged. 4) The civil aspect of Quasi-Offenses under
Title 14 of the Revised Penal Code;
PRE-TRIAL AGREEMENT 5) The civil aspect of less grave felonies
punishable by correctional penalties not
All agreements or admissions made or entered exceeding 6 years imprisonment, where
during the pre-trial conference shall be reduced in the offended party is a private person;
writing and signed by the accused and counsel; 6) The civil aspect of estafa, theft and libel;
otherwise, they cannot be used against the 7) All civil cases and probate proceedings,
accused. testate and intestate, brought on appeal
from the exclusive and original jurisdiction
NON-APPEARANCE DURING PRE-TRIAL granted to the first level courts;
8) All cases of forcible entry and unlawful
detainer brought on appeal from the
If the counsel for the accused or the prosecutor
exclusive and original jurisdiction granted
does not appear at the pre-trial conference and
to the first level courts;
does not offer an acceptable excuse for his lack
9) All civil cases involving title to or
of cooperation, the court may impose proper
possession of real property or an interest
sanctions or penalties.
therein brought on appeal from the
exclusive and original jurisdiction granted
PRE-TRIAL ORDER
to the first level courts; and
10) All habeas corpus cases decided by the
After the pre-trial conference, the court shall
first level courts in the absence of the
issue an order reciting the actions taken, the
Regional Trial Court judge, that are
facts stipulated, and evidence marked. Such
brought up on appeal from the special
order shall bind the parties, limit the trial to
jurisdiction granted to the first level
matters not disposed of, and control the course of
courts.
the action during the trial, unless modified by the
court to prevent manifest injustice.
The following CASES SHALL NOT BE REFERRED
TO CAM AND JDR:
REFERRAL OF SOME CASES FOR COURT 1) Civil cases which by law cannot be
ANNEXED AND MEDIATION AND JUDICIAL compromised;
DISPUTE RESOLUTION (AM 11-1-6-SC 2) Other criminal cases not covered under
PHILJA) paragraphs 3 to 6 above;
3) Habeas Corpus petitions;
4) All cases under Republic Act No. 9262
CONCEPT OF COURT DIVERSION OF (Violence against Women and Children);
PENDING CASES and
5) Cases with pending application for
The diversion of pending court cases both to Restraining Orders/Preliminary Injunctions.
Court-Annexed Mediation (CAM) and to Judicial
Dispute Resolution (JDR) is plainly intended to put However, in cases covered under 1, 4 and 5
an end to pending litigation through a where the parties inform the court that they have
compromise agreement of the parties and agreed to undergo mediation on some aspects
thereby help solve the ever-pressing problem of thereof, e.g., custody of minor children,
court docket congestion.
 159

separation of property, or support pendente lite, The JDR judge shall not preside over the trial of
the court shall refer them to mediation. the case when the parties did not settle their
dispute at JDR.
PROCEDURE
CRIMINAL CASES
Judicial proceedings shall be divided into two
stages: If settlement is reached on the civil aspect of the
1) From the filing of a complaint to the criminal case, the parties, assisted by their
conduct of CAM and JDR during the pre- respective counsels, shall draft the compromise
trial stage, and agreement which shall be submitted to the court
2) pre-trial proper to trial and judgment. The for appropriate action.
judge to whom the case has been
originally raffled, who shall be called the Action on the criminal aspect of the case will be
JDR Judge, shall preside over the first determined by the Public Prosecutor, subject to
stage. The judge, who shall be called the the appropriate action of the court.
trial judge, shall preside over the second
stage. If settlement is not reached by the parties on the
civil aspect of the criminal case, the JDR judge
At the initial stage of the pre-trial conference, the shall proceed to conduct the trial on the merits of
JDR judge briefs the parties and counsels of the the case should the parties file a joint written
CAM and JDR processes. Thereafter, he issues an motion for him to do so, despite confidential
Order of Referral of the case to CAM and directs information that may have been divulged during
the parties and their counsels to proceed to the the JDR proceedings. Otherwise, the JDR Judge
PMCU bringing with them a copy of the Order of shall turn over the case to a new judge by re-
Referral. The JDR judge shall include in said raffle in multiple sala courts or to the originating
Order, or in another Order, the pre-setting of the court in single sala courts, for the conduct of
case for JDR not earlier than forty-five (45) days pretrial proper and trial.
from the time the parties first personally appear
at the PMCU so that JDR will be conducted PRE-TRIAL PROPER
immediately if the parties do not settle at CAM.
Where no settlement or only a partial settlement
All incidents or motions filed during the first stage was reached, and there being no joint written
shall be dealt with by the JDR judge. If JDR is not motion submitted by the parties, as stated in the
conducted because of the failure of the parties to last preceding paragraphs, the JDR judge shall
appear, the JDR judge may impose the turn over the case to the trial judge, determined
appropriate sanctions and shall continue with the by re-raffle in multiple sala courts or to the
proceedings of the case. originating court in single sala courts, as the case
may be, to conduct pre-trial proper, as mandated
If the parties do not settle their dispute at CAM, by Rules 18 and 118 of the Rules of Court.
the parties and their counsels shall appear at the
preset date before the JDR judge, who will then
conduct the JDR process as mediator, neutral TRIAL (RULE119)
evaluator and/or conciliator in order to actively
assist and facilitate negotiations among the Continuous trial is one where the courts are
parties for them to settle their dispute. As called upon to conduct the trial with utmost
mediator and conciliator, the judge facilitates the dispatch, with judicial exercise of the courts
settlement discussions between the parties and power to control the trial to avoid delay and for
tries to reconcile their differences. As a neutral each party to complete the presentation of
evaluator, the judge assesses the relative evidence with the trial dates assigned to him.
strengths and weaknesses of each party's case
and makes a non-binding and impartial INSTANCES WHEN PRESENCE OF ACCUSED
evaluation of the chances of each party's success IS REQUIRED BY LAW
in the case. On the basis of such neutral
evaluation, the judge persuades the parties to a The only instances when the presence of the
fair and mutually acceptable settlement of their accused is required by law and when the law may
dispute. forfeit the bond if he fails to appear are:
1) On arraignment;
2) On promulgation of judgment except for
light offenses;
 160

3) For identification purposes; where the prosecution witness may, while in the
4) When the court with due notice requires witness stand, point to him as the accused.
so.
REMEDY WHEN ACCUSED IS NOT BROUGHT
REQUISITE BEFORE TRIAL CAN BE TO TRIAL WITHIN THE PRESCRIBED PERIOD
SUSPENDED ON ACCOUNT OF ABSENCE OF
WITNESS If the accused is not brought to trial within the
time limit, the information may be dismissed on
To warrant postponement due to absence of a motion of the accused on the ground of denial of
witness, it must appear: his right to speedy trial. The dismissal shall be
a) That the witness is really material and subject to the rules on double jeopardy.
appears to the court to be so;
b) That the party who applies for Failure of the accused to move for dismissal prior
postponement has not been guilty of to trial shall constitute a waiver of the right to
neglect; dismiss under this section.
c) That the witness can be had at the
time to which the trial has been REQUISITES FOR DISCHARGE OF ACCUSED
deferred; and TO BECOME A STATE WITNESS
d) That no similar evidence could be
obtained. When two or more persons are jointly charged
The non-appearance of the prosecution at the with the commission of any offense, upon motion
trial, despite due notice, justifies a provisional of the prosecution before resting its case, the
dismissal or an absolute dismissal, depending court may direct one or more of the accused to
on the circumstances. be discharged with their consent so that they
Any period of delay resulting from the may be witnesses for the state when, after
absence or unavailability of an essential requiring the prosecution to present evidence and
witness shall be excluded in computing the the sworn statement of each proposed state
time within which trial must commence. witness at a hearing in support of the discharge,
the court is satisfied that:
TRIAL IN ABSENTIA 1) There is absolute necessity for the
testimony of the accused whose discharge
The Constitution permits trial in absentia of an is requested;
accused after his arraignment who unjustifiably 2) There is no other direct evidence available
fails to appear during the trial notwithstanding for the proper prosecution of the offense
due notice. The purpose of trial in absentia is to committed, except the testimony of said
speed up the disposition of criminal cases. accused;
3) The testimony of said accused can be
The REQUISITES OF TRIAL IN ABSENTIA are: substantially corroborated in its material
a) The accused has been arraigned; points;
b) He has been duly notified of the trial; and 4) Said accused does not appear to be the
c) His failure to appear is justified. most guilty; and
5) Said accused has not at any time been
The waiver of the accused of appearance or trial convicted of any offense involving moral
in absentia does not mean that the prosecution is turpitude.
thereby deprived of its right to require the
presence of the accused for purposes of Evidence adduced in support of the discharge
identification by the witnesses which is vital for shall automatically form part of the trial. If the
conviction of the accused, except where he court denies the motion for discharge of the
unqualifiedly admits in open court after his accused as state witness, his sworn statement
arraignment that he is the person named as shall be inadmissible in evidence.
defendant in the case on trial. Such waiver does
not mean a release of the accused from his EFFECTS OF DISCHARGE OF ACCUSED AS
obligation under the bond to appear in court STATE WITNESS
whenever required.
The order shall amount to an acquittal of the
He can still be subpoenaed to appear for discharged accused and shall be a bar to future
identification purposes, without violating his right prosecution for the same offense, unless:
against self-incrimination as he will not take the a) The accused fails or refuses to testify
stand to testify but merely to be present in court, against his co-accused in accordance with
 161

his sworn statement constituting the basis Memorandum decision is one in which the
for his discharge. appellate court may adopt by reference, the
b) If he was granted immunity and fails to findings of facts and conclusions of law contained
keep his part of the agreement, his in the decision appealed from.
confession of his participation in the
commission of the offense is admissible in REQUISITES OF A JUDGMENT
evidence against him.
It must be written in the official language,
The court shall order the discharge and exclusion personally and directly prepared by the judge and
of the said accused from the information. signed by him and shall contain clearly and
Admission into such Program shall entitle such distinctly a statement of the facts and the law
State Witness to immunity from criminal upon which it is based.
prosecution for the offense or offenses in which
his testimony will be given or used. CONTENTS OF JUDGMENT

DEMURRER TO EVIDENCE If the judgment is of conviction, it shall state:

1) the legal qualification of the offense
After the prosecution rests its case, the court constituted by the acts committed by the
may dismiss the action on the ground of accused and the aggravating or mitigating
insufficiency of evidence (1) on its own circumstances which attended its
initiative after giving the prosecution the commission;
opportunity to be heard or (2) upon demurrer 2) the participation of the accused in the
to evidence filed by the accused with or offense, whether as principal, accomplice,
without leave of court. or accessory after the fact;
If the court denies the demurrer to evidence 3) the penalty imposed upon the accused;
filed with leave of court, the accused may and
adduce evidence in his defense. 4) the civil liability or damages caused by his
When the demurrer to evidence is filed wrongful act or omission to be recovered
without leave of court, the accused waives from the accused by the offended party, if
the right to present evidence and submits the there is any, unless the enforcement of
case for judgment on the basis of the the civil liability by a separate civil action
evidence for the prosecution. has been reserved or waived.
The motion for leave of court to file demurrer
to evidence shall specifically state its grounds In case the judgment is of acquittal, it shall state
and shall be filed within a non-extendible whether the evidence of the prosecution
period of five (5) days after the prosecution absolutely failed to prove the guilt of the accused
rests its case. The prosecution may oppose or merely failed to prove his guilt beyond
the motion within a non-extendible period of reasonable doubt. In either case, the judgment
five (5) days from its receipt. shall determine if the act or omission from which
If leave of court is granted, the accused shall the civil liability might arise did not exist.
file the demurrer to evidence within a non-
extendible period of ten (10) days from PROMULGATION OF JUDGMENT; INSTANCES
notice. The prosecution may oppose the OF PROMULGATION OF JUDGMENT IN
demurrer to evidence within a similar period ABSENTIA
from its receipt.
The order denying the motion for leave of The judgment is promulgated by reading it in the
court to file demurrer to evidence or the presence of the accused and any judge of the
demurrer itself shall not be reviewable by court in which it was rendered. However, if the
appeal or by certiorari before judgment. conviction is for a light offense, the judgment
may be pronounced in the presence of his
JUDGMENT (RULE 120) counsel or representative. When the judge is
absent or outside the province or city, the
judgment may be promulgated by the clerk of
Judgment means the adjudication by the court court.
that the accused is guilty or is not guilty of the
offense charged, and the imposition of the proper If the accused is confined or detained in another
penalty and civil liability provided for by law on province or city, the judgment may be
the accused. promulgated by the executive judge of the
Regional Trial Court having jurisdiction over the
 162

place of confinement or detention upon request errors of law or FAME, or newly

of the court which rendered the judgment. The irregularities discovered evidence
court promulgating the judgment shall have committed during the
authority to accept the notice of appeal and to trial, or newly
approve the bail bond pending appeal; provided, discovered evidence
that if the decision of the trial court convicting Ground for MR error Grounds for MR
the accused changed the nature of the offense of law or fact Excessive damages,
from non-bailable to bailable, the application for insufficient evidence,
bail can only be filed and resolved by the or decision is contrary
appellate court. to law
Filed any time before Filed within the
The proper clerk of court shall give notice to the judgment of conviction period for taking an
accused personally or through his bondsman or becomes final appeal
warden and counsel, requiring him to be present Should include all the
at the promulgation of the decision. If the grounds then
accused was tried in absentia because he jumped available and those
bail or escaped from prison, the notice to him not so included shall
shall be served at his last known address. be deemed waived.
When granted, the There may be partial
In case the accused fails to appear at the original judgment is grant
scheduled date of promulgation of judgment always set aside or
despite notice, the promulgation shall be made vacated and a new
by recording the judgment in the criminal docket judgment rendered
and serving him a copy thereof at his last known
address or thru his counsel.
GROUNDS FOR NEW TRIAL
If the judgment is for conviction and the failure of
the accused to appear was without justifiable a) That errors of law or irregularities prejudicial
cause, he shall lose the remedies available in to the substantial rights of the accused have
these rules against the judgment and the court been committed during the trial;
shall order his arrest. Within fifteen (15) days b) That new and material evidence has been
from promulgation of judgment, however, the discovered which the accused could not with
accused may surrender and file a motion for reasonable diligence have discovered and
leave of court to avail of these remedies. He shall produced at the trial and which if introduced
state the reasons for his absence at the and admitted would probably change the
scheduled promulgation and if he proves that his judgment.
absence was for a justifiable cause, he shall be
allowed to avail of said remedies within fifteen GROUNDS FOR RECONSIDERATION
(15) days from notice.
The court shall grant reconsideration on the
WHEN DOES JUDGMENT BECOME FINAL ground of errors of law or fact in the judgment,
(FOUR INSTANCES) which requires no further proceedings.
a) After the lapse of the period for perfecting REQUISITES BEFORE A NEW TRIAL MAY BE
an appeal; GRANTED ON GROUND OF NEWLY
b) When the sentence has been partially or DISCOVERED EVIDENCE
totally satisfied or served;
c) When the accused has waived in writing a) The evidence was discovered after trial;
his right to appeal; or b) The evidence could not have been discovered
d) Has applied for probation. and produced at the trial even with exercise
of reasonable diligence;
MNT OR MR IN MNT OR MR IN c) The evidence is material, not merely
CRIMINAL CASES CIVIL CASES cumulative, corroborative or impeaching;
Either on motion of Must be upon motion d) It must go to the merits as it would produce a
accused, or the court of a party, cant be different result if admitted.
motu proprio with motu proprio
consent of the EFFECTS OF GRANTING A NEW TRIAL OR
accused RECONSIDERATION
Grounds for MNT Grounds for MNT
 163

a) When a new trial is granted on the ground of In the case of Judith Yu vs. Judge Samson, Feb. 9,
errors of law or irregularities committed 2011, the SC held that the Neypes doctrine is
during the trial, all the proceedings and applicable in criminal cases.
evidence affected thereby shall be set aside
and taken anew. The court may, in the
APPEAL (RULE 122)
interest of justice, allow the introduction of
additional evidence.
b) When a new trial is granted on the ground of An appeal opens the whole case for review and
newly-discovered evidence, the evidence this includes the review of the penalty, indemnity
already adduced shall stand and the newly- and the damages involved.
discovered and such other evidence as the
court may, in the interest of justice, allow to EFFECT OF AN APPEAL
be introduced shall be taken and considered
together with the evidence already in the Upon perfection of the appeal, the execution of
record. the judgment or order appealed from is stayed as
c) IN ALL CASES, when the court grants new trial to the appealing party. The civil appeal of the
or reconsideration, the original judgment shall offended party does not affect the criminal aspect
be set aside or vacated and a new judgment of the judgment or order appealed from.
rendered accordingly.
The trial court loses jurisdiction over the, except:
APPLICATION OF NEYPES DOCTRINE IN 1) To issue orders for the protection and
CRIMINAL CASES preservation of the rights of the parties
which do not involve any matter litigated
This rule was adopted TO STANDARDIZE THE by the appeal;
APPEAL PERIODS provided in the Rules to afford 2) To approve compromises offered by the
fair opportunity to review the case and, in the parties prior to the transmission of the
process, minimize errors of judgment. Obviously, records on appeal to the appellate court.
the new 15 day period may be availed of only if
either motion is filed and was denied; otherwise, WHERE TO APPEAL
the decision becomes final and executory after
the lapse of the original appeal period provided in a) To the Regional Trial Court, in cases decided
Rule 41 by the MTCs;
b) To the Court of Appeals or to the Supreme
If the motion is denied, the movants has a fresh Court in the proper cases provided by law, in
period of 15 days from receipt or notice of the cases decided by the RTC; and
order denying or dismissing the motion for c) To the Supreme Court, in cases decided by the
reconsideration within which to file a notice to Court of Appeals.
appeal.
HOW APPEAL TAKEN
This fresh period rule applies only to Rule 41
governing appeals from the RTC but also to Rule a) The appeal to the RTC, or to the CA in cases
40 governing appeals from MTC to RTC, Rule 42 decided by the RTC in the exercise of its
on petitions for review from the RTC to the CA, original jurisdiction, shall be taken by filing a
Rule 43 on appeal from quasi-judicial agencies to NOTICE OF APPEAL with the court which
the CA, and Rule 45 governing appeals by rendered the judgment or final order appealed
certiorari to the SC. from and by serving a copy thereof upon the
adverse party.
Neypes ruling shall not be applied where no b) The appeal to the CA in cases decided by the
motion for new trial or motion for reconsideration RTC in the exercise of its appellate jurisdiction
has been filed in which case the 15-day period shall be by PETITION FOR REVIEW under Rule
shall run from notice of the judgment. 42.
c) The appeal to the SC in cases where the
The fresh period rule does not refer to the period penalty imposed by the RTC is reclusion
within which to appeal from the order denying the perpetua, or life imprisonment, or where a
motion for new trial because the order is not lesser penalty is imposed but for offenses
appealable. committed on the same occasion or which
arose out of the same occurrence that gave
rise to the more serious offense for which the
penalty of death, reclusion perpetua, or life
 164

imprisonment is imposed, shall be by filing a e) Patently without merit;

NOTICE OF APPEAL. f) Prosecuted manifestly for delay; or
d) No notice of appeal is necessary in cases g) The questions raised therein are too
where the death penalty is imposed by the unsubstantial to require consideration.
RTC. The same shall be automatically
reviewed by the SC.
SEARCH AND SEIZURE (RULE 126)
Except as provided in the last paragraph
of section 13, Rule 124, all other appeals
to the Supreme Court shall be by PETITION NATURE OF SEARCH WARRANT
FOR REVIEW ON CERTIORARI under Rule
45. The constitutional right against unreasonable
search and seizure refers to the immunity of
EFFECT OF APPEAL BY ANY OF SEVERAL ones person, whether a citizen or alien, from
ACCUSED interference by government, included in whish is
his residence, his papers and other possession.
a) An appeal taken by one or more of several
accused shall not affect those who did not The overriding function of the constitutional
appeal, except insofar as the judgment of the guarantee is to protect personal privacy and
appellate court is favorable and applicable to human dignity against unwarranted intrusion by
the latter. the State.
b) The appeal of the offended party from the
civil aspect shall not affect the criminal aspect The right of the people to be secure in their
of the judgment or order appealed from. persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
GROUNDS FOR DISMISSAL OF APPEAL nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall
a) Failure on the part of the appellant to file brief issue except upon probable cause to be
within the reglementary period, except when determined personally by the judge after
he is repsented by counsel de officio; examination under oath or affirmation of the
b) Escape f the appellant from prison or complainant and the witnesses he may produce,
confinement; and particularly describing the place to be
c) When the appellant jumps bail; searched and the persons or things to be seized
d) Flight of the appellant for a foreign country (Sec. 2, Art. III, Constitution).
during the pendency of the appeal;

SEARCH WARRANT (RULE 126) WARRANT OF ARREST (RULE 113)

A search warrant is an order in writing issued in Arrest is the taking of a person into custody in
the name of the People of the Philippines, order that he may be bound to answer for the
signed by a judge and directed to a peace commission of an offense (Sec. 1, Rule 113).
officer, commanding him to search for personal
property described therein and bring it before
the court (Sec. 1, Rule 126).
Requisites: Requisites for arrest warrant issued by RTC
A search warrant shall not issue except upon judge under Sec. 5, Rule 112:
probable cause in connection with one specific a) Within 10 days from the filing of the
offense to be determined personally by the complaint or information
judge after examination under oath or b) The judge shall personally evaluate the
affirmation of the complainant and the witness resolution of the prosecutor and its
he may produce, and particularly describing the supporting evidence.
place to be searched and the things to be seized c) If he finds probable cause, he shall issue a
which may be anywhere in the Philippines (Sec. warrant of arrest
4, Rule 126). d) In case of doubt on the existence of
probable cause
e) The judge may order the prosecutor to
present additional evidence within 5 days
from notice; and
f) The issue must be resolved by the court
within 30 days from the filing of the
complaint of information
 165

Search or seizure without warrant, when lawful: Arrest without warrant, when lawful:
1) Consented search; a) When, in his presence, the person to be
2) As an incident to a lawful arrest; arrested has committed, is actually
3) Searches of vessels and aircrafts for violation committing, or is attempting to commit an
of immigration, customs and drug laws; offense;
4) Searches of moving vehicles; b) When an offense has just been committed
5) Searches of automobiles at borders or and he has probable cause to believe
constructive borders; based on personal knowledge of facts or
6) Where the prohibited articles are in plain circumstances that the person to be
view; arrested has committed it; and
7) Searches of buildings and premises to c) When the person to be arrested is a
enforce fire, sanitary and building prisoner who has escaped from a penal
regulations; establishment or place where he is serving
8) Stop and frisk operations; final judgment or is temporarily confined
9) Exigent and emergency circumstances (in while his case is pending, or has escaped
times of war and within the area of military while being transferred from one
operation) confinement to another (Sec. 5, Rule 113).

APPLICATION FOR SEARCH WARRANT, issue the warrant, which must be substantially in
WHERE FILED the form prescribed by these Rules.

An application for search warrant shall be filed PERSONAL EXAMINATION BY JUDGE OF THE
with the following: APPLICANT AND WITNESSES
a) Any court within whose territorial
jurisdiction a crime was committed. The judge must, before issuing the warrant,
b) For compelling reasons stated in the personally examine in the form of searching
application, any court within the judicial questions and answers, in writing and under oath,
region where the crime was committed if the complainant and the witnesses he may
the place of the commission of the crime produce on facts personally known to them and
is known, or any court within the judicial attach to the record their sworn statements,
region where the warrant shall be together with the affidavits submitted.
enforced.
However, if the criminal action has already been PARTICULARITY OF PLACE TO BE
filed, the application shall only be made in the SEARCHED AND THINGS TO BE SEIZED
court where the criminal action is pending.
The warrant must particularly describe the place
PROBABLE CAUSE to be searched and the persons or things to be
seized.
Probable cause is defined as such facts and
circumstances which could lead a reasonably The rule is that a description of the place to be
discreet and prudent man to believe that an searched is sufficient if the officer with the
offense has been committed and that the objects warrant can, with reasonable effort, ascertain and
sought in connection with the offense are in the identify the place intended to be searched. Where
place sought to be searched. there are several apartments in the place to be
searched, a description of the specific place can
Requisites for issuing search warrant A be determined by reference to the affidavits
search warrant shall not issue except upon supporting the warrant that the apartment to be
probable cause in connection with one specific searched is the one occupied by the accused. The
offense to be determined personally by the judge searching party cannot go from one apartment to
after examination under oath or affirmation of the the other as the warrant will then become a
complainant and the witness he may produce, general warrant.
and particularly describing the place to be
searched and the things to be seized which may PERSONAL PROPERTY TO BE SEIZED
be anywhere in the Philippines.
A search warrant may be issued for the search
Issuance and form of search warrant If the and seizure of personal property:
judge is satisfied of the existence of facts upon a) Subject of the offense;
which the application is based or that there is b) Stolen or embezzled and other proceeds,
probable cause to believe that they exist, he shall or fruits of the offense; or
 166

c) Used or intended to be used as the means hold that a peaceful submission and silence of
of committing an offense. the accused in a search or seizure is not a
It is not necessary that the property to consent or an invitation thereto, but is merely a
be searched or seized should be demonstration of regard to the supremacy of the
owned by the person against whom law.
the search is issued; it is sufficient that
the property is under his control or
possession. 3. SEARCH OF MOVING VEHICLE

EXCEPTIONS TO SEARCH WARRANT In carrying out warrantless searches of moving

REQUIREMENT vehicles, peace officers are limited to routine
checks, that is, the vehicles are neither really
searched nor their occupants subjected to
1. SEARCH INCIDENTAL TO LAWFUL ARREST
physical or body searches, the examination of the
vehicles being limited to visual inspection.
A person lawfully arrested may be searched for
dangerous weapons or anything which may have Warrantless search for moving vehicle is justified
been used or constitute proof in the commission on the ground that it is not practicable to secure
of an offense without a search warrant. a warrant because the vehicle can be quickly
moved out of the locality or jurisdiction in which
The law requires that there first be a lawful arrest the warrant must be sought.
before a search can be made. The process cannot
be reversed. Thus, in a buy-bust operation
4. CHECK POINTS; BODY CHECKS IN
conducted to entrap a drug pusher, the law
AIRPORT
enforcement agents may seize the marked
money found on the person of the pusher
immediately after the arrest even without arrest A warrantless search conducted at police or
and search warrants. military checkpoints has been upheld for as long
as the vehicle is neither searched nor its
This is absolutely limit a warrantless search of a occupants subjected to body search, and the
person who is lawfully arrested to his or her inspection of the vehicle is merely limited to
person at the time of and incident to his or her visual search.
arrest and to dangerous weapons or anything
which may be used as proof of the commission of Routine inspections are not regarded as violative
the offense. Such warrantless search obviously of an individuals right against unreasonable
cannot be made in any other than the place of search.
arrest.
The search is limited to the following instances:
1) where the officer merely draws aside the
2. CONSENTED SEARCH
curtain of a vacant vehicle which is parked
on the public fair grounds;
Rights may be waived, unless the waiver is 2) simply looks into a vehicle;
contrary to law, public order, morals, or good 3) flashes a light therein without opening the
customs, or prejudicial to a third person with a cars doors;
right recognized by law. 4) where the occupants are not subjected to
a physical or body search;
To constitute a valid waiver of a constitutional 5) where the inspection of the vehicles is
right, it must appear: limited to a visual search or visual
a) that the right exists, inspection; and
b) the person involved had knowledge either 6) where the routine check is conducted in a
actual or constructive, of the existence of fixed area.
such right, and
c) said person has an actual intention to
5. PLAIN VIEW SITUATION
relinquish the right.
As the constitutional guarantee is not dependent
upon any affirmative act of the citizen, the courts It recognizes that objects inadvertently falling in
do not place the citizen in the position of either plain view of an officer who has the right to be in
contesting an officers authority by force, or the position to have that view, are subject to
waiving his constitutional rights, but instead they seizure without warrant.
 167

It is usually applied where a police officer is not

searching for evidence against the accused, but 7. ENFORCEMENT OF CUSTOM LAWS
nonetheless inadvertently comes across an
incriminating object. The intention is to prevent smuggling and to
secure the collection of the legal duties, taxes
It is also been suggested that even if an object is and other charges.
observed in plain view, the seizure of the subject
will not be justified where the incriminating Under the Tariff and Customs Code, Customs
nature of the object is not apparent; it must be officers are authorized to make arrest, search and
immediately apparent to the police that the items seizure of any vessel, aircraft, cargo, articles,
that they observe may be evidence of a crime, animals or other movable property when the
contraband or otherwise subject to seizure. same is subject to forfeiture or liable for any fine
under the customs and tariff laws, rules and
The elements of plain viewseizure are: regulations and may at any time enter, pass
1) prior valid intrusion based on the valid through or search any land or inclosure or any
warrantless arrest in which the police are warehouse, store or other building without being
legally present in the pursuit of their a dwelling house.
official duties;
2) the evidence was inadvertently discovered A dwelling house may be entered or searched
by the police who had the right to be only upon warrants issued by judge upon sworn
where they are; application showing probable cause and
3) the evidence must be immediately particularly describing the placed to be searched
apparent; and and person or things to be searched.
4) plain view justified mere seizure of
evidence without further search.
8. SEARCHES OF AUTOMOBILES AT
BORDERS OR CONSTRUCTIVE BORDERS
6. STOP AND FRISK SITUATION

A person who was carrying a bag and acting 9. SEARCHES OF BUILDINGS AND PREMISES
suspiciously could be searched by police officers TO ENFORCE FIRE, SANITARY AND
and the unlicensed firearm seized inside the bag BUILDING REGULATIONS
is admissible in evidence, being an incident of a
lawful arrest.
10. EXIGENT AND EMERGENCY
A person roaming around in a place where drug CIRCUMSTANCES
addicts usually are found, whose eyes were red
and who was wobbling like a drunk, could be
legally searched of his person and the illegal drug 11. IN TERMS OF WAR WITHIN THE AREA OF
seized from him is admissible in evidence against MILITARY OPERATION
him.

A stop and frisk serves a two-fold interest:

a) the general interest of effective criminal REMEDIES FROM UNLAWFUL SEARCH AND
protection and detection which underlie SEIZURE
the recognition that a police officer may,
under appropriate circumstances and in A motion to quash a search warrant and/or to
an appropriate manner, approach a person suppress evidence obtained thereby may be filed
for purposes of investigating possible in and acted upon only by the court where the
criminal behavior even without probable action has been instituted. If no criminal action
cause; and has been instituted, the motion may be filed in
b) the more pressing interest of safety and and resolved by the court that issued search
self-preservation which permit the police warrant. However, if such court failed to resolve
officer to take steps to assure himself that the motion and a criminal case is subsequently
the person with whom he deals is not filed in another court, the motion shall be
armed with a deadly weapon that could resolved by the latter court.
unexpectedly and fatally be used against
him. Alternative remedies of the accused adversely
affected by a search warrant are the following:
 168

1) Motion to quash the search warrant with 4) When the accused resides outside the
the issuing court; or Philippines.
2) Motion suppress evidence with the court
trying the criminal case. Rule 57 on preliminary attachment applies on
the procedure to secure an attachment in the
The remedies are alternative, not cumulative. If cases authorized under Rule 127.
the motion to quash is denied, a motion to At the commencement of the action or at any
suppress cannot be availed of subsequently. time before entry of judgment, a plaintiff or
Replevin may also be proper if the objects are any proper party may have the property of
legally possessed. the adverse party attached as security for the
satisfaction of any judgment that may be
recovered in the following cases:
PROVISIONAL REMEDIES (RULE 127)
1) In an action for the recovery of a
specified amount of money or
NATURE damages, other than moral and
exemplary, on a cause of action arising
The provisional remedies in civil actions, insofar from law, contract, quasi-contract,
as they are applicable, may be availed of in delict or quasi-delict against a party
connection with the civil action deemed instituted who is about to depart from the
with the criminal action. Philippines with intent to defraud his
creditors;
An application for recovery of damages on the
bond posted for purposes of said provisional
remedies shall be made in the same action and,
generally, cannot be the subject of a separate
action. 2) In an action for money or property
embezzled or fraudulently misapplied
The provisional remedies are proper only where or converted to his own use by a public
the civil action for the recovery of civil liability ex officer, or an officer or a corporation,
delicto has not been expressly waived or the right or an attorney, factor, broker, agent, or
to institute such civil action separately is not clerk, in the course of his employment
reserved, in those cases where such reservation as such, or by any other person in a
may be made. fiduciary capacity, or for a willful
violation of duty;
KINDS OF PROVISIONAL REMEDIES 3) In an action to recover the possession
of property unjustly or fraudulently
ATTACHMENT taken, detained or converted, when
the property, or any part thereof, has
been concealed, removed, or disposed
When the civil action is properly instituted in the
of to prevent its being found or taken
criminal action as provided in Rule 111, the
by the applicant or an authorized
offended party may have the property of the
person;
accused attached as security for the satisfaction
4) In an action against a party who has
of any judgment that may be recovered from the
been guilty of a fraud in contracting
accused in the following cases:
the debt or incurring the obligation
1) When the accused is about to abscond
upon which the action is brought, or in
from the Philippines;
the performance thereof;
2) When the criminal action is based on a
5) In an action against a party who has
claim for money or property embezzled or
removed or disposed of his property,
fraudulently misapplied or converted to
or is about to do so, with intent to
the use of the accused who is a public
defraud his creditors; or
officer, officer of a corporation, attorney,
6) In an action against a party who does
factor, broker, agent or clerk, in the course
not reside and is not found in the
of his employment as such, or by any
Philippines, or on whom summons may
other person in a fiduciary capacity, or for
be served by publication.
a willful violation of duty;
3) When the accused has concealed,
removed, or disposed of his property, or is
about to do so; and
 169

EVIDENCE (Rules 128 134)

any liability, and is not those allowed by law

CONCEPT OF EVIDENCE admissible in evidence to be compromised,
against the offeror. an offer of
Evidence is the means, sanctioned by the Rules compromise by the
of Court, of ascertaining in a judicial proceeding accused may be
the truth respecting a matter of fact. It is only a received in evidence
means of ascertaining the truth. This truth should as an implied
depend upon the evidence submitted in a court in admission of guilt.
accordance with the rules. Generally, there is no The accused enjoys
presumption for or the presumption of
Generally, the manner of proving factual against a party, except innocence.
allegations is through witnesses who are placed in some civil cases
in the witness stand to testify on what they such as in a
personally know or to identify relevant contractual suit
documents. They are presented voluntarily or against the carrier,
through the coercive process of subpoena duces there exists a
tecum. presumption against
the defendant.

Evidence is also secured by resorting to modes of

discoveries, such as: EVIDENCE PROOF
a) Taking of depositions of any person, oral or Medium of proof / Effect and result of
written (Rule 23); Means to the end evidence / End result.
b) Serving of interrogatories to parties (Rule FACTUM FACTUM PROBANS
25); PROBANDUM
c) Serving of requests for admission by the Proposition to be Material evidencing
adverse party (Rule 25); established the proposition
d) Production and inspection of documents
(Rule 27); and
e) Examination of physical and mental ADMISSIBILITY OF EVIDENCE
conditions of persons (Rule 28).
Two axioms of admissibility:
A matter may also be proved by means of affidavit, such a) None but facts having rational probative
as in motions based on facts not appearing on record, in value are admissible (relevance).
cases covered by the Rules on Summary Procedure, and b) All facts having rational probative value
those filed in administrative or quasi-judicial bodies. are admissible unless some specific rules
SCOPE OF THE RULES OF EVIDENCE forbid (competence).

The rules of evidence are guided by the principle ADMISSIBILITY OF WEIGHT OF

of uniformity. As a general policy, the rules of EVIDENCE EVIDENCE
evidence shall be the same in all courts and in all Pertains to the ability of Pertains to the effect
trials and hearings. the evidence to be of evidence
allowed and accepted admitted
EVIDENCE IN CIVIL EVIDENCE IN subject to its relevancy
CASES CRIMINAL CASES and competence
The party having the The guilt of the
burden of proof must accused has to be
prove his claim by a proven beyond REQUISITES FOR ADMISSIBILITY OF
preponderance of reasonable doubt. EVIDENCE
evidence.
An offer of compromise Except in cases of a) That it is relevant to the issue; and
is not an admission of criminal negligence or
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b) That it is competent, that is, that it does not It refers to a situation where incompetent
belong to that class of evidence which is evidence was erroneously received by the court
excluded by the law or the rules. despite objection from the other party. It will not
apply where the evidence was admitted without
RELEVANCE OF EVIDENCE AND objection because of a waiver of the admissibility
COLLATERAL MATTERS of the evidence. So, where the objection was
incorrectly overruled, the court must allow the
Relevance - evidence must have such a relation other party to introduce evidence to contradict
to the fact in issue as to induce belief in its the evidence improperly admitted. This is reasons
existence or non-existence. of fairness.

Collateral matters - evidence on collateral DIRECT AND CIRCUMSTANTIAL EVIDENCE

matters shall not be allowed, except when it
tends in any reasonable degree to establish the DIRECT EVIDENCE is that which proves the fact
probability or improbability of the fact in issue or in dispute without the aid of any inference or
to corroborate or supplement facts established presumption. Evidence which if believed proves
previously by direct evidence. the existence of a fact in issue without
a) Prospectant collateral matters those interference or presumption.
preceding of the fact in issue but pointing
forward to it, like moral character, motive, CIRCUMSTANTIAL EVIDENCE is the proof of
conspiracy; facts from which, taken collectively, the existence
b) Concomitant collateral matters those of the particular fact in dispute may be inferred
accompanying the fact in issue and as a necessary or probable consequence.
pointing to it, like alibi, or opportunity and
incompatibility; In a criminal case, circumstantial evidence is
c) Retrospectant collateral matters those sufficient for conviction provided the following
succeeding the fact in issue but pointing requisites concur:
backward to it, like flight and 1) There is more than one circumstances;
concealment, behavior of the accused 2) The facts from which the inferences are
upon being arrested, fingerprints or derived are proven; and
footprints, articles left at the scene of the 3) The combination of all the circumstances
crime which may identify the culprit. is such as to produce a conviction beyond
reasonable doubt.
MULTIPLE ADMISSIBILITY
POSITIVE AND NEGATIVE EVIDENCE
There are times when proffered evidence is
admissible for two or more purposes. Sometimes Testimony is positive when the witness affirms
it is admissible for one purpose but inadmissible that a fact did or did not exist and is entitled
for another or vice versa. It may also be to greater weight.
admissible against one party but not against It is negative when he says that he did not
another. This kind of evidence is to b received see or know of the factual occurrence. It is
provided it meets the relevancy and competency considered to be a very weak defense and can
tests for which it is offered. never overcome an affirmative or positive
testimony particularly when it comes from the
CONDITIONAL ADMISSIBILITY mouth of a credible witness.

Evidence which appears to be immaterial is COMPETENT AND CREDIBLE EVIDENCE

admitted by the court and the proponent may ask
that the evidence be conditionally admitted in the Competent evidence is one that is not excluded
meantime subject to the condition that he is by law or the rules. If the test of relevance is logic
going to establish its relevancy and competency and common sense, the test of competence is the
at a later time. If a promise thus made is not law or the rules. Competence, in relation to
fulfilled, the court may strike out the evidence evidence in general, refers to eligibility of an
thus conditionally admitted, if a motion is made evidence to be received as such.
by the opposite party.
A witness may be competent, and yet give
CURATIVE ADMISSIBILITY incredible testimony; he may be incompetent,
and yet his evidence, if received, be perfectly
credible.
 171

found or otherwise established in the action. It is

COMPETENT CREDIBLE EVIDENCE not evidence in itself but it is an assumption
EVIDENCE resulting from the evidence. They merely affect
Competency is a Credibility concerns the burden of offering evidence. In a sense, it is
question which arises the degree of credit to an inference which is mandatory unless rebutted.
before considering the be given to his
evidence given by the testimony; A. CONCLUSIVE PRESUMPTIONS
witness; (JURIS ET DE JURE)
Denotes the personal Denotes the veracity of
qualification of the the testimony It is conclusive when the presumption becomes
witness irrebuttable upon the presentation of the
evidence tending to rebut the presumption is not
admissible. This presumption is in reality a rule of
substantive law. Examples:
BURDEN OF PROOF BURDEN OF
EVIDENCE Whenever a party has, by his own declaration,
Denotes the duty of Means the necessity act, or omission, intentionally and deliberately led
establishing the truth of a of going forward with another to believe a particular thing true, and to
given proposition or issue the evidence to meet act upon such belief, he cannot, in any litigation
by such quantum of the prima facie case arising out of such declaration, act or omission,
evidence as the law created against him be permitted to falsify it:
demands in the case in
which the issue arises. The tenant is not permitted to deny the title of his
It remains with the party It shifts from side to landlord at the time of the commencement of the
alleging facts and never side as the trial of relation of landlord and tenant between them.
shifts to the other party. the case progresses
He who alleges the
affirmative of the issue
has the burden of proof,
and the same never B. DISPUTABLE PRESUMPTIONS
parts. (JURIS TANTUM)

It is disputable or rebuttable or it may be

PRESUMPTIONS contradicted or overcome by other evidence.
When evidence that rebuts the presumption is
A presumption is an assumption of fact resulting introduced, the force of the presumption
from a rule of law which requires such fact to be disappears.
assumed from another fact or group of facts
a) That a person is innocent of crime or should receive a fair and reasonable
wrong; interpretation, so as to secure a just, speedy and
b) That an unlawful act was done with an inexpensive disposition of every action or
unlawful intent; proceeding.
c) That a person intends the ordinary
consequences of his voluntary act;
QUANTUM OF EVIDENCE (WEIGHT AND
d) That a person takes ordinary care of his
SUFFICIENCY OF EVIDENCE [RULE 133])
concerns;
e) That evidence willfully suppressed would
be adverse if produced (Rule 131, Sec 3). A. PROOF BEYOND REASONABLE DOUBT

LIBERAL CONSTRUCTION OF THE RULES OF required for conviction of an accused in

EVIDENCE criminal case
the logical and inevitable result of the
The rules of evidence must be liberally construed. evidence on record, exclusive of any other
Rules of procedure are mere tools intended to consideration, of the moral certainty of the
facilitate rather than to frustrate the attainment guilt of the accused or that degree of proof
of justice. A strict and rigid application of the which produces conviction in an unprejudiced
rules must always be eschewed if it would mind. It does not mean such degree of proof
subvert their primary objective of enhancing as, excluding possibility of error, produces
substantial justice. It means that the words
 172

absolute certainty. Moral certainty only is There are matters which must be admitted
required. without need for evidence. All these matters
which the court may take cognizance of without
B. CLEAR AND CONVINCING EVIDENCE evidence are called matters of judicial notice.

that measure or degree of proof which will The function of judicial notice is to abbreviate
produce in the mind of the trier of facts a firm litigation by the admission of matters that need
belief or conviction as to the allegations no evidence. It takes the place of proof and is of
sought to be established. equal force. It displaces evidence and fulfils the
it is more than preponderance but not to the purpose for which the evidence is designed to
extent of such moral certainty as is required fulfil.
beyond reasonable doubt as in criminal cases.
It is often said that to overcome a disputable a. MANDATORY when the matter is subject to
presumption of law, clear and convincing a mandatory judicial notice, no motion of hearing
evidence is required (use to contradict the is necessary for the court to take judicial notice of
presumption of validity and regularity in favor a fact. These are:
of a notarial or public document; the law a) the existence and territorial extent of
enforcers have regularly performed their states;
duties requires that proof of frame-up; an b) the political history, forms of government
accused who invokes self-defense). and symbols of nationality of states;
c) the law of nations;
This standard should be lower than proof beyond d) the admiralty and maritime courts of the
reasonable doubt but higher than preponderance world and their seals;
of evidence. e) the political constitution and history of the
Philippines;
C. PREPONDERANCE OF EVIDENCE f) the official acts of the legislative,
executive and judicial departments of the
Philippines;
required in civil cases
g) the laws of nature;
that which is of greater weight or more
h) the measure of time; and
convincing than that which is offered in
i) the geographical divisions.
opposition to it; synonymous with the terms
greater weight of evidence or greater
b. DISCRETIONARY - A court may take judicial
weight of credible evidence. It means
notice of matters:
probably the truth. It is evidence which is
a) which are of public knowledge; or
more convincing to the court as worthy of
b) capable of unquestionable demonstration;
belief than that which is offered in opposition
or
thereto.
c) ought to be known to judges because of
their judicial functions.
D. SUBSTANTIAL EVIDENCE
The principles of discretionary judicial notice will
required in administrative proceedings or apply here the following requisites are met:
quasi-judicial bodies a) The matter must be of common
such relevant evidence as a reasonable mind knowledge;
might accept as adequate to support a b) The matter must be settled beyond
conclusion reasonable doubt (if there is nay
more than a scintilla but may be somewhat uncertainty about the matter, then
less than preponderance, even if other evidence must be adduced); and
reasonable minds might conceivably opine c) The knowledge must exist within the
otherwise. (SC said that in administrative jurisdiction of the court.
cases against judges/sherrifs are highly penal
in nature and requires proof beyond JUDICIAL ADMISSIONS
reasonable doubt).
Judicial admissions are conclusive upon the party
JUDICIAL NOTICE AND JUDICIAL making them, while extrajudicial admissions or
ADMISSIONS other admissions are, as a rule, and where the
elements of estoppels are not present, disputable
and needs to be formally offered in evidence.
MATTERS OF JUDICIAL NOTICE
 173

Declaration of a party favorable to himself are not Law of nations is subject to mandatory judicial
admissible as proof of the facts asserted. notice under Sec. 1, Rule 129. Under the
Philippine Constitution, the Philippines adopts the
They may be express or implied, implied generally accepted principles of international law
admissions by a defendant of material facts as part of the law of the land. They are therefore
alleged in a complaint include technically in the nature of local laws and hence,
1) keeping silent on such material facts, are subject to a mandatory judicial notice.
2) denying such material facts without
setting forth the matters upon which he MTCs must take judicial notice of municipal
relies to support his denial, and ordinances in force in the municipality in which
3) asserting lack of knowledge or information they sit.
of the truth of the material allegations
when the same is plainly and necessarily RTCs should also take judicial notice of municipal
within the knowledge of defendant. ordinances in force in the municipalities within
their jurisdiction but only when so required by
EFFECT OF JUDICIAL ADMISSIONS law. (i.e. the charter of City of Manila requires all
courts sitting therein to take judicial notice of all
An admission, verbal or written, made by a party ordinances passed by the city council.) Such
in the course of the proceedings in the same court must take judicial notice also of municipal
case, does not require proof. Under Sec. 4, Rule ordinances on appeal to it from the inferior court
129, the following are the effects of judicial in which the latter took judicial.
admissions:
1) They do not require proof; and The CA may take judicial notice of municipal
2) They cannot be contradicted because they ordinances because nothing in the Rules prohibits
are conclusive upon the party making it. it from taking cognizance of an ordinance which is
capable of unquestionable demonstration.
HOW JUDICIAL ADMISSIONS MAY BE
CONTRADICTED RULES OF ADMISSIBILITY (RULE 130)
Judicial admissions can be contradicted:
1) That it was made through palpable OBJECT (REAL) EVIDENCE; NATURE OF
mistake; or OBJECT EVIDENCE
2) No such admission was in fact made.
These exceptions may negate the Objects as evidence are those addressed to
admission. But before the court may allow the senses of the court. When an object is
a party to relieve him of the effects of relevant to the fact in issue, it may be
admissions or to withdraw therefrom, he exhibited to, examined or viewed by the
has to show, by proper motion, justifiable court.
reason or palpable mistake. Real evidence is also called autoptic
preference, which is inspection by the court of
JUDICIAL NOTICE OF FOREIGN LAWS, LAW a thing itself and its conditions, to enable the
OF NATIONS AND MUNICIPAL ORDINANCE court to effectively exercise its judicial power
of receiving and weighing the evidence. It is
Foreign laws may not be taken judicial notice of knowledge acquired by the court from
and have to be proven like any other fact by an inspection or by direct self-perception or
official publication or by a duly attested and autopsy of the evidence.
authenticated copy thereof. It must be alleged Physical evidence is evidence of the highest
and proved. The provisions of the foreign law order. It speaks more eloquently than a
may also be the subject of judicial admission hundred witnesses.
under Sec. 4, Rule 129. Absent any of the
foregoing evidence or admission, the foreign law REQUISITES FOR ADMISSIBILITY OF (REAL)
is presumed to the same as that in the EVIDENCE
Philippines, under the so-called doctrine of
processual presumption. a) The object must be relevant to the fact in
issue (to be relevant, the evidence must
However, the court may take judicial notice of the have a relationship to the fact in issue);
treatise containing the foreign law. b) The object must be competent (must not
be excluded by the rules);
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c) The object must be authenticated before it crime was committed and take a view without the
is admitted (it must be shown that it is the previous knowledge of the parties. Such
very thing which is the subject matter of inspection or view is part of the trial since
the suit); evidence is thereby being received.
d) The authentication must be made by a
competent witness; and CHAIN OF CUSTODY IN RELATION TO
e) The object must be formally offered in SECTION 21 OF THE COMPREHENSIVE
evidence. DANGEROUS DRUGS ACT OF 2002

CATEGORIES OF OBJECT EVIDENCE The purpose of chain of custody is to guaranty

the integrity of the physical evidence and to
For purposes of authentication of an object or for prevent the introduction of evidence which is not
laying the foundation for the exhibit, object authentic.
evidence may be classified into the following:
a) Unique Objects - Object that have readily The PDEA shall take charge and have custody of
identifiable marks (like serial number of a all dangerous drugs, plant sources of dangerous
calibre 45 pistol); drugs, controlled precursors and essential
b) Objects Made Unique - Objects that are chemicals, as well as instruments/paraphernalia
made readily identifiable (like a typical and/or laboratory equipment so confiscated,
knife, witness may identify by placing seized and/or surrendered, for proper disposition
marks on it); and in the following manner:
c) Non-Unique Objects - Objects with no 1) The apprehending team having initial
identifying marks and cannot be marked custody and control of the drugs shall,
(like drop of blood, oil, and drugs, the immediately after seizure and
proponent must establish a chain of confiscation, physically inventory and
custody). photograph the same in the presence of
the accused and any elected public official
DEMONSTRATIVE EVIDENCE who shall be required to sign the copies of
the inventory and be given a copy thereof;
Demonstrative evidence is tangible evidence that 2) Within 24 hours upon confiscation/seizure,
merely illustrates a matter of importance in the the same shall be submitted to the PDEA
litigation. Common types of demonstrative Forensic Laboratory for a qualitative and
evidence include photographs, motion pictures quantitative examination;
and recordings, x-ray pictures, scientific tests, 3) A certification of the forensic laboratory
demonstrations and experiments, maps, examination results, which shall be done
diagrams, models, summaries, and other under oath by the forensic laboratory
materials created especially for the litigation. examiner, shall be issued within 24 hours
after the receipt of the subject item/s;
In contrast to demonstrative evidence, object 4) After the filing of the criminal case, the
evidence is a tangible object that played some Court shall, within 72 hours, conduct an
actual role in the matter that gave rise to the ocular inspection of the confiscated,
litigation. For instance, the knife used in the seized and/or surrendered dangerous
altercation that forms the basis for the lawsuit. drugs, plant sources of dangerous drugs,
and controlled precursors and essential
The foundation for demonstrative evidence does chemicals, including the instruments/
not involve showing that the object was the one paraphernalia and/or laboratory
used in the underlying event. Rather, the equipment, and through the PDEA shall
foundation generally involves showing that the within 24 hours thereafter proceed with
demonstrative object fairly represents or the destruction or burning of the same, in
illustrates what it is alleged to illustrate. the presence of the accused or the
person/s from whom such items were
VIEW OF AN OBJECT OR SCENE confiscated and/or seized, or his/her
representative or counsel, a
The inspection may be made inside or outside the representative from the media and the
courtroom. An inspection or view outside the DOJ, civil society groups and any elected
courtroom should be made in the presence of the public official.
parties or at least with previous notice to them. It 5) The Board shall then issue a sworn
is error for the judge for example, to go alone to certification as to the fact of destruction or
the land in question, or to the place where the burning of the subject item/s which,
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together with the representative sample/s DNA testing means verified and credible
in the custody of the PDEA, shall be scientific methods which include the extraction of
submitted to the court having jurisdiction DNA from biological samples, the generation of
over the case; and DNA profiles and the comparison of the
6) The alleged offender or his/her information obtained from the DNA testing of
representative or counsel shall be allowed biological samples for the purpose of
to personally observe all of the above determining, with reasonable certainty, whether
proceedings and his/her presence shall not or not the DNA obtained from two or more
constitute an admission of guilt. In case distinct biological samples originates from the
the said offender or accused refuses or same person (direct identification) of if the
fails to appoint a representative after due biological samples originate from related persons
notice in writing to the accused or his/her (kinship analysis).
counsel within 71 hours before the actual
burning or destruction or the evidence in APPLICATION FOR DNA TESTING ORDER
question, the SOJ shall appoint a member
of the PAO to represent the former; The appropriate court may, at any time, either
7) After the promulgation and judgment in motu propio or on application of any person who
the criminal case wherein the has a legal interest in the matter in litigation,
representative sample/s was presented as order a DNA testing. Such order shall issue after
evidence in court, the trial prosecutor shall due hearing and notice to the parties upon a
inform the Board of the final termination of showing of the following:
the case and, in turn, shall request the a) A biological sample exists that is relevant
court for leave to turn over the said to the case;
representative sample/s to the PDEA for b) The biological sample:
proper disposition and destruction within 1) Was not previously subjected to the
24 hours from receipt of the same. type of DNA testing now requested;
or
2) Was previously subjected to DNA
RULE ON DNA EVIDENCE (A.M. NO. 06-11-5- testing but the results may require
SC) confirmation for good reasons;
c) The DNA testing uses a scientifically valid
technique;
Notes: d) The DNA testing has the scientific
DNA report is a documentary evidence potential to produce new information that
DNA testing order is executory, unless is relevant to the proper resolution of the
there is an injunction case; and
The Rule on DNA Evidence is the primary e) The existence of other factors, if any,
rule to be applied whenever DNA evidence which the court may consider as
is offered, used or proposed to be offered potentially affecting the accuracy of
or used as evidence in criminal and civil integrity of the DNA testing.
actions and special proceedings.
This rule shall not preclude a DNA testing, without
MEANING OF DNA need of prior court order, at the behest of any
party, including law enforcement agencies, before
DNA means deoxyribonucleic acid, which is the a suit or proceeding is commenced.
chain of molecules found in every nucleated cell
of the body. The totality of an individuals DNA is POST-CONVICTION DNA TESTING; REMEDY
unique for the individual, except identical twins.
Post-conviction DNA testing may be available,
DNA evidence constitutes the totality of the DNA without need of prior court order, to the
profiles, results and other genetic information prosecution or any person convicted by final and
directly generated from DNA testing of biological executory judgment provided that
samples. a) a biological sample exists,
b) such sample is relevant to the case,
DNA profile means genetic information derived and
from DNA testing of a biological sample obtained c) the testing would probably result in the
from a person, which biological sample is clearly reversal or modification of the
identifiable as originating from that person; judgment of conviction.
 176

Remedy - The convict or the prosecution may file

for a writ of habeas corpus in the court of origin if In evaluating whether the DNA testing
he results of the post-conviction DNA testing are methodology is reliable, the court shall consider
favorable to the convict. In case the court, after the following:
due hearing finds the petition to be meritorious, it a) The falsifiability of the principles or
shall reverse or modify the judgment of methods used, that is, whether the theory
conviction and order the release of the convict, or technique can be and has been tested;
unless continued detention is justified for a lawful b) The subjection to peer review and
cause. publication of the principles or methods;
c) The general acceptance of the principles
ASSESSMENT OF PROBATIVE VALUE OF or methods by the relevant scientific
DNA EVIDENCE AND ADMISSIBILITY community;
d) The existence and maintenance of
The following are the guidelines to be used in standards and controls to ensure the
assessing the probative value of the DNA correctness of data generated;
evidence: e) The existence of an appropriate reference
a) How the samples were collected; population database; and
b) How they were handled; f) The general degree of confidence
c) The possibility of contamination of the attributed to mathematical calculations
samples; used in comparing DNA profiles and the
d) The procedure followed in analyzing the significance and limitation of statistical
samples; calculations used in comparing DNA
e) Whether the proper standards and profiles.
procedures were followed in conducting
the tests; and DOCUMENTARY EVIDENCE
f) The qualification of the analyst who
conducted the test. Documentary evidence is evidence supplied by
written instruments, or derived from conventional
The determination of the probative value of the symbols, such as letters, by which ideas are
DNA evidence rests upon the sound judicial represented on material substances; documents
assessment taking into considerations the produced for the inspection of the court or judge.
following matters: It includes books, papers accounts and the like.
a) The chair of custody, including how the
biological samples were collected, how Documents as evidence consist of writing or any
they were handled, and the possibility of material (not only writing) containing letters,
contamination of the samples; words, numbers, figures, symbols or other modes
b) The DNA testing methodology, including of written expressions offered as proof of their
the procedure followed in analyzing the contents.
samples, the advantages and
disadvantages of the procedure, and REQUISITES FOR ADMISSIBILITY
compliance with the scientifically valid
standards in conducting the tests; a) The document must be relevant to the fact
c) The forensic DNA laboratory, including in issue
accreditation by any reputable standards- b) The document must be competent
setting institution and the qualification of c) The document must be authenticated
the analyst who conducted the tests. If the before it is admitted
laboratory is not accredited, the relevant d) The authentication must be made by a
experience of the laboratory in forensic competent witness; and
casework and credibility shall be properly e) The document must be formally offered in
established; and evidence.
d) The reliability of the testing result, as
herein after provided. BEST EVIDENCE RULE

The provisions of the Rules of Court concerning MEANING OF THE RULE

the appreciation of evidence shall apply
suppletorily. It requires the highest grade of evidence
obtainable to prove a disputed fact. It cannot be
RULES ON EVALUATION OF RELIABILITY OF invoked unless the contents of writing is the
THE DNA TESTING METHODOLOGY
 177

subject of judicial inquiry , in which case the another at or near the time of the
best evidence is the original writing itself. transaction, all the entries are likewise
equally regarded as originals.
The best evidence refers to that which the law or
the rules consider as the best evidence to prove REQUISITES FOR INTRODUCTION OF
the fact in dispute. The best evidence is the SECONDARY EVIDENCE
evidence which the case in its nature is
susceptible and which is within the power of the The offeror must satisfy first the requirements for
party to produce. Evidence cannot be received laying the basis for the presentation of secondary
which indicates on its face that it is secondary, evidence. Laying the basis involves explaining to
that is, merely substitutionary in its nature, and the satisfaction of the court the reason for the
that the original source of information is in inability to offer the original of the document, in
existence and accessible. The underlying purpose the following:
is the prevention of fraud. 1) The execution or existence of the original;
2) The loss and destruction of the original or
WHEN APPLICABLE its nonproduction in court;
3) Unavailability of the original is not due to
When the subject of inquiry is the contents of a bad faith on the part of the offeror.
document, no evidence shall be admissible other
than the original document itself, except in the If the offeror has successfully laid the basis for
following cases: the presentation of the secondary evidence, then
a) When the original has been lost or the original need not be presented. However, one
destroyed, or cannot be produced in court, must observe the order in which the secondary
without bad faith on the part of the evidence is to be offered. This is because not
offeror; every secondary evidence can be offered. The
b) When the original is in the custody or following order must therefore, be observed:
under the control of the party against a) A copy of the original;
whom the evidence is offered, and the b) If there is no copy, then a recital of its
latter fails to produce it after reasonable contents in some authentic document;
notice; c) In default of hereof, by the testimony of
c) When the original consists of numerous witnesses in the order stated.
accounts or other documents which
cannot be examined in court without great When original document is unavailable -
loss of time and the fact sought to be When the original document has been lost or
established from them is only the general destroyed, or cannot be produced in court, the
result of the whole; and offeror, upon proof of its execution or existence
d) When the original is a public record in the and the cause of its unavailability without bad
custody of a public officer or is recorded in faith on his part, may prove its contents by a
a public office. copy, or by a recital of its contents in some
It applies only to documentary evidence. authentic document, or by the testimony of
witnesses in the order stated.
MEANING OF ORIGINAL
When original document is in adverse
The original does not necessarily mean the one party's custody or control - If the document is
first written; its meaning is relative only to the in the custody or under the control of the adverse
particular issue. The original is the document party, he must have reasonable notice to produce
whose contents are to be proved. it. If after such notice and after satisfactory proof
of its existence, he fails to produce the document,
Sec. 4, Rule 130 has clarified what constitutes the secondary evidence may be presented as in the
original of a document: case of its loss.
a) The original of a document is one the
contents of which are the subject of Evidence admissible when original
inquiry; document is a public record - When the
b) When a document is in two or more copies original of a document is in the custody of a
executed at or about the same time, with public officer or is recorded in a public office, its
identical contents, all such copies are contents may be proved by a certified copy
equally regarded as originals; and issued by the public officer in custody thereof.
c) When an entry is repeated in the regular
course of business, one being copied from
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b) The reliability of the manner in which its

RULES ON ELECTRONIC EVIDENCE
originator was identified;
A.M. NO. 01-7-01-SC)
c) The integrity of the information and
communication system in which it is
recorded or stored, including but not
MEANING OF ELECTRONIC EVIDENCE; limited to the hardware and computer
ELECTRONIC DATA MASSAGE programs or software used as well as
programming errors;
Electronic evidence is that which use of d) The familiarity of the witness or the
electronic data message as evidence. person who made the entry with the
Electronic data message refers to information communication and information system;
generated, sent, received or stored by e) The nature and quality of the information
electronic, optical or similar means. which went into the communication and
Electronic documents as functional equivalent information system upon which the
of paper-based documents. Whenever a rule electronic data message or electronic
of evidence to the term of writing, document, document was based; or
record, instrument, memorandum or any f) Other factors which the court may
other form of writing, such term shall be consider as affecting the accuracy or
deemed to include an electronic document. integrity of the electronic document or
electronic data message.
Electronic document refers to information or
the representation of information, data, figures, METHOD OF PROOF: affidavit of evidence -
symbols or other modes of written expression, All matters relating to the admissibility and
described or however represented, by which a evidentiary weight of an electronic document
right is established or an obligation extinguished, may be established by an affidavit stating facts of
or by which a fact may be proved and affirmed, direct personal knowledge of the affiant or based
which is received, recorded, transmitted, stored, on authentic records. The affidavit must
processed, retrieved or produced electronically. It affirmatively show the competence of the affiant
includes digitally signed documents and any to testify on the matters contained therein.
print-out or output, readable by sight or other
means, which accurately reflects the electronic METHOD OF PROOF: cross-examination of
data message or electronic document. deponent - The affiant shall be made to affirm
The term electronic document may be the contents of the affidavit in open court and
used interchangeably with electronic data may be cross-examined as a matter of right by
message. the adverse party.

PROBATIVE VALUE OF ELECTRONIC AUTHENTICATION OF ELECTRONIC

DOCUMENTS OR EVIDENTIARY WEIGHT; DOCUMENTS AND ELECTRONIC
METHOD OF PROOF SIGNATURES

An electronic document is admissible in evidence The person seeking to introduce an electronic

if it complies with the rules on admissibility document in any legal proceeding has the burden
prescribed by the Rules and related laws and is of proving its authenticity.
authenticated in the manner prescribed by the
Rules on Electronic Evidence. Before any private electronic document offered as
authentic is received in evidence, its authenticity
In assessing the evidentiary weight of an must be proved by any of the following means:
electronic document, the following factors may be a) By evidence that it had been digitally
considered: signed by the person purported to have
a) The reliability of the manner or method in signed the same;
which it was generated, stored or b) By evidence that other appropriate
communicated, including but not limited security procedures or devices as may be
to input and output procedures, controls, authorized by the Supreme Court or by
tests and checks for accuracy and law for authentication of electronic
reliability of the electronic data message documents were applied to the document;
or document, in the light of all the or
circumstances as well as any relevant c) By other evidence showing its integrity
agreement; and reliability to the satisfaction of the
judge.
 179

readable by sight or other means, shown to

A document electronically notarized in reflect the data accurately.
accordance with the rules promulgated by the
Supreme Court shall be considered as a public When a document is in two or more copies
document and proved as a notarial document executed at or about the same time with identical
under the Rules of Court. contents, or is a counterpart produced by the
same impression as the original, or from the
An electronic signature or a digital signature same matrix, or by mechanical or electronic re-
authenticated in the manner prescribed recording, or by chemical reproduction, or by
hereunder is inadmissible in evidence as the other equivalent techniques which accurately
functional equivalent of the signature or a person reproduces the original, such copies or duplicates
on a written document. shall be regarded as the equivalent of the
original.
An electronic signature may be authenticated in
any of the following manners: Notwithstanding the foregoing, copies or
a) By evidence that a method or process was duplicates shall not be admissible to the same
utilized to establish a digital signature and extent as the original if:
verify the same; a) A genuine question is raised as to the
b) By any other means provided by law; or authenticity of the original; or
c) By any other means satisfactory to the b) In the circumstances it would be unjust or
judge as establishing the genuineness of inequitable to admit a copy in lieu of the
the electronic signature. original.

Upon the authentication of an electronic A memorandum, report, record or data

signature, it shall be presumed that: compilation of acts, events, conditions, opinions,
a) The electronic signature is that of the or diagnoses, made by electronic, optical or other
person to whom it correlates; similar means at or near the time of or from
b) The electronic signature was affixed by transmission or supply of regular course of
that person with the intention of conduct of a business activity, and such was the
authenticating or approving the electronic regular practice to make the memorandum,
document to which it is related or to report, record, or data compilation by electronic,
indicate such persons consent to the optical or similar means, all of which are shown
transaction embodied therein; and by the testimony of the custodian or other
c) The methods or processes utilized to affix qualified witnesses, is excepted from the rule on
or verify the electronic signature without hearsay evidence.
error or fault.
The presumption may be overcome by evidence
Upon the authentication of a digital signature, of the untrustworthiness of the source of
it shall be presumed, in addition to those information of the method or circumstances of
mentioned in the immediately preceding the preparation, transmission or storage thereof.
section, that:
a) The information contained in a AUDIO, PHOTOGRAPHIC, VIDEO AND
certificate is correct; EPHEMERAL EVIDENCE
b) The digital signature was created
during the operational period of a Audio, photographic and video evidence of
certificate; events, acts or transactions shall be admissible
c) The message associated with a digital provided it shall be shown, presented or
signature has not been altered from displayed to the court and shall be identified,
the time it was signed; and explained or authenticated by the person who
d) A certificate had been issued by the made the recording or by some other person
certification authority indicated competent to testify on the accuracy thereof.
therein.
Ephemeral electronic communications shall be
ELECTRONIC DOCUMENTS AND THE proven by the testimony of a person who was a
HEARSAY RULE party to the same or has personal knowledge
thereof. In the absence or unavailability of such
An electronic document shall be regarded as the witnesses, other competent evidence may be
equivalent of an original document under the admitted.
Best Evidence Rule if it is a printout or output
 180

If the foregoing communications are recorded or long as the pleader puts in issue in the pleading
embodied in an electronic document, then the any of the matters set forth in the rule such as:
provisions of Rule 5 (authentication of electronic a) An intrinsic ambiguity, mistake or
documents) shall apply. imperfection in the written agreement;
b) The failure of the written agreement to
Ephemeral electronic communication refers to express the true intent and agreement of
telephone conversations, text messages, the parties thereto;
chatroom sessions, streaming audio, streaming c) The validity of the written agreement; or
video, and other electronic forms of d) The existence of other terms agreed to by
communication the evidence of which is not the parties or their successors in interest
recorded or retained. after the execution of the written
agreement.
The terms "agreement" includes wills.
PAROL EVIDENCE RULE (RULE 130)
BEST EVIDENCE PAROL EVIDENCE
RULE RULE
APPLICATION OF THE PAROL EVIDENCE The issue is contents There is no issue as to
RULE of a writing. contents of a writing.
Secondary evidence The purpose for the offer
When the terms of an agreement have been is offered to prove of parol evidence is to
reduced to writing, it is considered as containing the contents of a change, vary, modify,
all the terms agreed upon, and there can be writing, which is not qualify, or contradict the
between the parties and their successors in allowed unless the terms of a complete
interest, no evidence of such terms other than case falls under any written agreement,
the contents of the written agreement. of the exceptions. which is not allowed
unless the case falls
It seeks to preserve what the parties have under any of the
reduced in writing and prohibits evidence alliunde exceptions.
or oral testimonial evidence from being presented Establishes Not concerned with the
to vary the terms of, or add stipulations to, the preference for the primacy of evidence but
written agreement. In other words, any oral original document presupposes that the
evidence of an agreement should be excluded over a secondary original is available.
when the existing agreement is already in writing. evidence thereof.
Precludes the Precludes the admission
Oral testimony cannot prevail over a written admission of of other evidence to
agreement of the parties, the purpose being to secondary evidence prove the terms of a
give stability to written agreements and to if the original document other than the
remove the temptation and possibility of perjury, document is contents of the
which would be afforded if parol evidence were available. document itself.
admissible. Can be invoked by Can be invoked only be
any litigant to an the parties to the
The rule is based on the presumption that the action whether or document and their
parties have made the written instrument the not said litigant is a successors in interest.
only repository and memorial of the truth and party to the
whatever is not found in the instrument must document involved.
have been waived and abandoned by the parties. Applies to all forms Applies to written
Hence, parol evidence cannot serve the purpose of writing. agreements (contracts)
of incorporation into the contract additional and wills.
contemporaneous conditions which are not
mentioned at all in the writing, unless the case
falls under any of the exceptions to the rule.
AUTHENTICATION AND PROOF OF
WHEN PAROLE EVIDENCE CAN BE DOCUMENTS (RULE 132)
INTRODUCED
MEANING OF AUTHENTICATION -
Introducing parol evidence means offering Authentication is the process of evidencing the
extrinsic or extraneous evidence that would due execution and genuineness of a document.
modify, explain or add to the terms of the written Evidence when presented in court is not
agreement. Parol evidence can be introduced as presumed authentic. The general rule therefore is
 181

to prove its authenticity unless it is self- HANDWRITING

authenticating.
The handwriting of a person may be proved by:
PUBLIC VERSUS PRIVATE DOCUMENTS a) any witness who believes it to be the
handwriting of such person because he
For the purpose of their presentation evidence, has seen the person write, or
documents are either public or private. Public b) has seen writing purporting to be his upon
documents are: which the witness has acted or been
a) The written official acts, or records of the charged, and has thus acquired knowledge
official acts of the sovereign authority, of the handwriting of such person.
official bodies and tribunals, and public
officers, whether of the Philippines, or of a Evidence respecting the handwriting may also be
foreign country; given by a comparison, made by the witness or
b) Documents acknowledge before a notary the court, with writings admitted or treated as
public except last wills and testaments; genuine by the party against whom the evidence
and is offered, or proved to be genuine to the
c) Public records, kept in the Philippines, of satisfaction of the judge.
private documents required by law to the
entered therein. Note: The identification of handwriting should
All other writings are private. (20a) not rest, therefore, on the apparent similarity
or dissimilarity of one feature but should be
WHEN A PRIVATE WRITING REQUIRES based on the examination of all the basic
AUTHENTICATION; PROOF OF A PRIVATE characteristics of the handwriting under study.
WRITING
PUBLIC DOCUMENTS AS EVIDENCE
A private writing is not self-authenticating. It
requires proof of their due execution and Public documents are:
authentication before they can be received in a) The written official acts, or records of the
evidence. The due execution and authenticity official acts of the sovereign authority,
must be proved either: official bodies and tribunals, and public
a) By anyone who saw the document officers, whether of the Philippines, or of a
executed or written; or foreign country;
b) By evidence of the genuineness of the b) Documents acknowledged before a notary
signature or handwriting of the maker public except last wills and testaments;
and
Any other private document need only be c) Public records, kept in the Philippines, of
identified as that which it is claimed to be. private documents required by law to be
entered therein.
WHEN EVIDENCE OF AUTHENTICITY OF A
PRIVATE WRITING IS NOT REQUIRED Public documents are of two classes:
(ANCIENT DOCUMENTS) a) Those issued by competent public officials
by reason of their office, and
1) When the genuineness and due execution b) Those executed by private individuals
of the document is admitted by the which are authenticated by notaries
adverse party; public.
2) When such genuineness and due
execution are immaterial to the issue; Documents consisting of entries in public records
3) When the document is an ancient made in the performance of a duty by a public
document. officer are prima facie evidence of the facts
therein stated. All other public documents are
REQUISITE OF AN ANCIENT DOCUMENT evidence, even against a third person, of the fact
which gave rise to their execution and of the date
1) More than thirty (30) years old; of the latter.
2) Found in the proper custody;
3) Unblemished by any alteration or by any PROOF OF OFFICIAL RECORD
circumstance of suspicion; and
4) It must on its face appear to be genuine. The record of public documents (official acts),
when admissible for any purpose, may be
HOW TO PROVE GENUINENESS OF A evidenced
 182

a) by an official publication thereof or performance of official duties and the

b) by a copy attested by the officer having presumption of regularity of judicial
the legal custody of the record, or by his proceedings, and the burden of proof lies on
deputy, and accompanied, if the record is the part of the party who challenges the
not kept in the Philippines, with a validity of judicial records.
certificate that such officer has the
custody. PROOF OF NOTARIAL DOCUMENTS

If the office in which the record is kept is in a A document acknowledged before a notary public
foreign country, the certificate may be made by a becomes a public instrument and renders it
secretary of the embassy or legation, consul admissible in court without further proof of its
general, consul, vice consul, or consular agent or authenticity.
by any officer in the foreign service of the
Philippines stationed in the foreign country in HOW TO EXPLAIN ALTERATIONS IN A
which the record is kept, and authenticated by DOCUMENT
the seal of his office.
The party producing a document as genuine
ATTESTATION OF A COPY which has been altered and appears to have been
altered after its execution, in a part material to
Whenever a copy of a document or record is the question in dispute, must account for the
attested for the purpose of evidence, the alteration.
attestation must state, in substance, that the
copy is a correct copy of the original, or a specific He may show that the alteration was made by
part thereof, as the case may be. The attestation another, without his concurrence, or was made
must be under the official seal of the attesting with the consent of the parties affected by it, or
officer, if there be any, or if he be the clerk of a was otherwise properly or innocently made, or
court having a seal, under the seal of such court. that the alteration did not change the meaning or
language of the instrument. If he fails to do that
PUBLIC RECORD OF A PRIVATE DOCUMENT the document shall not be admissible in
evidence.
An authorized public record of a private
document may be proved by the original record, DOCUMENTARY EVIDENCE IN AN
or by a copy thereof, attested by the legal UNOFFICIAL LANGUAGE
custodian of the record, with an appropriate
certificate that such officer has the custody. Documents written in an unofficial language shall
not be admitted as evidence, unless
PROOF OF LACK OF RECORD accompanied with a translation into English or
Filipino. To avoid interruption of proceedings,
A written statement signed by an officer having parties or their attorneys are directed to have
the custody of an official record or by his deputy such translation prepared before trial.
that after diligent search no record or entry of a
specified tenor is found to exist in the records of
his office, accompanied by a certificate as above TESTIMONIAL EVIDENCE
provided, is admissible as evidence that the
records of his office contain no such record or QUALIFICATIONS OF A WITNESS
entry.
A prospective witness must show that he has the
HOW A JUDICIAL RECORD IS IMPEACHED following abilities:
1) To Observe the testimonial quality of
Any judicial record may be impeached by perception
evidence of: 2) To Remember the testimonial quality of
a) want of jurisdiction in the court or judicial memory
officer, 3) To Relate the testimonial quality of
b) collusion between the parties, or narration
c) fraud in the party offering the record, in 4) To Recognize a duty to tell the truth the
respect to the proceedings testimonial quality of sincerity.
which must be clear, convincing and more
than merely preponderant, in order to All persons who can perceive, and perceiving,
overcome the presumption of regularity in the can make known their perception to others,
 183

may be witnesses. Religious or political belief, without the consent of the affected
interest in the outcome of the case, or spouse, except in a civil case by one
conviction of a crime unless otherwise against the other, or in a criminal case for
provided by law, shall not be a ground for a crime committed by one against the
disqualification. other or the latter's direct descendants or
ascendants.
Loss of the perceptive sense after the f) Parental and filial privilege -- No person
occurrence of the fact does not affect the may be compelled to testify against his
admissibility of the testimony. parents, other direct ascendants, children
or other direct descendants.
A blind man can testify to what he saw prior
to his blindness or a deaf man, to what he RELATIVE DISQUALIFICATION
heard prior to his deafness. But a person
incapable of perception is pro tanto incapable (a) DEAD MANS STATUTE Parties or
of testifying. assignors of parties to a case, or persons
in whose behalf a case is prosecuted,
A witness may have been capable of against an executor or administrator or
perceiving, yet incapable of narration. He may other representative of a deceased
have no powers of speech, and have no person, or against a person of unsound
means of expressing himself by signs. He may mind, upon a claim or demand against the
have become insane since the occurrence he estate of such deceased person or against
is called upon to relate. A person incapable of such person of unsound mind, cannot
narration is pro tanto incapable of testifying. testify as to any matter of fact occurring
before the death of such deceased person
COMPETENCY VERSUS CREDIBILITY or before such person became of unsound
OF A WITNESS mind.

Competency of a witness refers to the basic (b) DISQUALIFICATION BY REASON OF

qualifications of a witness as his capacity to PRIVILEGED COMMUNICATION
perceive and to communicate the same to others. 1. The husband or the wife, during or
It also includes the absence of any of the after the marriage, cannot be
disqualifications imposed upon a witness. examined without the consent of
the other as to any communication
Credibility of the witness refers to the received in confidence by one from
believability of the witness and has nothing to do the other during the marriage
with the law or the rules. It refers to the weight except in a civil case by one
and the trustworthiness or reliability of the against the other, or in a criminal
testimony. case for a crime committed by one
against the other or the latter's
DISQUALIFICATIONS OF WITNESSES direct descendants or ascendants;
2. An attorney cannot, without the
ABSOLUTE DISQUALIFICATION consent of his client, be examined
as to any communication made by
a) Those who cannot perceive. the client to him, or his advice
b) Those who can perceive but cannot make given thereon in the course of, or
their perception known. with a view to, professional
c) Mentally incapacity Those whose employment, nor can an attorney's
mental condition, at the time of their secretary, stenographer, or clerk
production for examination, is such that be examined, without the consent
they are incapable of intelligently making of the client and his employer,
known their perception to others. concerning any fact the knowledge
d) Mentally immaturity Children whose of which has been acquired in such
mental maturity is such as to render them capacity;
incapable of perceiving the facts 3. A person authorized to practice
respecting which they are examined and medicine, surgery or obstetrics
of relating them truthfully. cannot in a civil case, without the
e) Marital disqualification During their consent of the patient, be
marriage, neither the husband nor the examined as to any advice or
wife may testify for or against the other treatment given by him or any
 184

information which he may have (e) SANCTITY OF THE BALLOT voters

acquired in attending such patient may not be compelled to disclose for
in a professional capacity, which whom they voted.
information was necessary to
enable him to act in that capacity, (f) TRADE SECRETS
and which would blacken the (g) INFORMATION CONTAINED IN TAX
reputation of the patient; RETURNS (RA 2070, as amended by RA
4. A minister or priest cannot, without 2212).
the consent of the person making
the confession, be examined as to DISQUALIFICATION BY REASON OF MENTAL
any confession made to or any CAPACITY OR IMMATURITY
advice given by him in his
professional character in the The following persons cannot be witnesses:
course of discipline enjoined by the a) Those whose mental condition, at the time
church to which the minister or of their production for examination, is
priest belongs; such that they are incapable of
5. A public officer cannot be intelligently making known their
examined during his term of office perception to others;
or afterwards, as to b) Children whose mental maturity is such as
communications made to him in to render them incapable of perceiving the
official confidence, when the court facts respecting which they are examined
finds that the public interest would and of relating them truthfully.
suffer by the disclosure.
Regardless of the nature or cause of mental
(c) NEWSMANS PRIVILEGE -- Without disability, the test of competency to testify is as
prejudice to his liability under the civil and to whether the individual has sufficient
criminal laws, the publisher, editor, understanding to appreciate the nature and
columnist or duly accredited reporter of obligation of an oath and sufficient capacity to
any newspaper, magazine or periodical of observe and describe correctly the facts in regard
general circulation cannot be compelled to to which he is called to testify.
reveal the source of any news-report or
information appearing in said publication Basic requirements of a childs competency as a
which was related in confidence to such witness:
publisher, editor or reporter unless the a) Capacity of observation;
court or a House or committee of b) Capacity of recollection;
Congress finds that such revelation is c) Capacity of communication.
demanded by the security of the State (RA
1477); In ascertaining whether a child is of sufficient
intelligence according to the foregoing
(d) BANK DEPOSITS -- All deposits of requirements, it is settled rule that the trial
whatever nature with banks or banking court is called upon to make such
institutions in the Philippines including determination.
investments in bonds issued by the
Government of the Philippines, its political DISQUALIFICATION BY REASON OF
subdivisions and its instrumentalities, are MARRIAGE (SPOUSAL IMMUNITY)
hereby considered as of an absolutely
confidential nature and may not be As a general rule, during their marriage, neither
examined, inquired or looked into by any the husband nor the wife may testify for or
person, government official, bureau or against the other without the consent of the
office, except upon written permission of affected spouse. The requisites of this rule are
the depositor, or in cases of impeachment, the following:
or upon order of a competent court in 1) That the spouse for or against whom the
cases of bribery or dereliction of duty of testimony is offered is a party to the case;
public officials, or in cases where the 2) That the spouses are legally married (valid
money deposited or invested is the until annulled);
subject matter of the litigation (RA 1405). 3) Testimony is offered during the existence
of marriage;
4) The case is not one of the exceptions
provided in the rule.
 185

the action;
The exceptions are the following: Applies only if the Can be claimed even
1) Where the testimony was made outside marriage is existing at after the marriage has
the marriage; the time the testimony been dissolved;
2) In a civil case by one spouse against the is offered;
other; or Ceases upon the death Continues even after
3) In a criminal case for a crime committed or either spouse; the termination of the
by one spouse against the other or the marriage;
latters direct descendant or ascendants. Constitutes a total Applies only to
prohibition against any confidential
DISQUALIFICATION BY REASON OF DEATH testimony for or against communications
OR INSANITY OF ADVERSE PARTY the spouse of the between the spouses.
(SURVIVORSHIP OR DEAD MANS STATUTE) witness;
The prohibition is a The prohibition is the
This rule applies only to a civil case or a special testimony for or against examination of a
proceeding. The following are the elements for the other. spouse as to matters
the application of the rule: related in confidence
a) The plaintiff is the person who has a claim to the other spouse.
against the estate of the decedent or
person of unsound mind;
b) The defendant in the case is the executor BETWEEN ATTORNEY AND CLIENT
or administrator or a representative of the
deceased or the person of unsound mind;
c) The suit is upon a claim by the plaintiff For the rule to apply, it is required that:
against the estate of said deceased or 1) There is an attorney and client relation;
person of unsound mind; 2) The privilege is invoked with respect to a
d) The witness is the plaintiff, or an assignor confidential communication between them
of that party, or a person in whose behalf in the course of or with a view to
the case is prosecuted; and professional employment; and
e) The subject of the testimony is as to any 3) The client has not given his consent to the
matter of fact occurring before the death attorneys testimony thereon; or
(ante litem motam) of such deceased If the attorneys secretary, stenographer
person or before such person became of or clerk is sought to be examined, that
unsound mind. both the client and the attorney have not
given their consent thereto.

DISQUALIFICATION BY REASON OF The rule applies when the attorney has been
PRIVILEGED COMMUNICATIONS consulted in his professional capacity, even if no
fee has been paid therefor. Preliminary
communications made for the purpose of creating
BETWEEN HUSBAND AND WIFE the attorney-client relationship are within the
privilege. However, if the communications were
not made for the purpose of creating that
The application of the rule requires the presence relationship, they will not be covered by the
of the following elements: privilege even if thereafter the lawyer becomes
1) There must be a valid marriage between the counsel of the party in a case involving said
the husband and the wife; statements.
2) The privilege is invoked with respect to a
confidential communication between the
spouses during said marriage; and BETWEEN PHYSICIAN AND PATIENT
3) The spouse against whom such evidence
is being offered has not given his or her
consent to such testimony. For the disqualification to apply, it is necessary
that:
MARITAL MARITAL PRIVILEGE a) The physician is authorized to practice
DISQUALIFICATION (SEC. 24) medicine, surgery or obstetrics;
(SEC. 22) b) The information was acquired or the
advice or treatment was given by him in
Can be invoked only if Can be claimed
his professional capacity for the purpose
one of the spouses is a whether or not the
of treating and curing the patient;
party to the action; spouse is a party to
 186

c) The information, advice or treatment, if c) Disclosure is essential to the proper

revealed, would blacken the reputation of disposition of the case;
the patient; and d) The benefit to be gained by a correct
d) The privilege is invoked in a civil case, disposition of the litigation was greater
whether the patient is a party thereto or than any injury which could inure to the
not. relation by a disclosure of the information.

The privilege does not apply where:

a) The communication was not given in PARENTAL AND FILIAL TESTIMONIAL
confidence; PRIVILEGE RULE
b) The communication is irrelevant to the
professional employment;
No person may be compelled to testify against his
c) The communication was made for an
parents, other direct ascendants, children or
unlawful purpose, as when it is intended
other direct descendants.
for the commission or concealment of a
crime;
Under Art. 215 of the Family Code, the
d) The information was intended to be made
descendant may be compelled to testify against
public; or
his parents and grandparents if such testimony is
e) There was a waiver of the privilege either
indispensable in prosecuting a crime against the
by the provisions of contract or law.
descendant or by one parent against the other.
The privilege survives the death of the
patient.

EXAMINATION OF A WITNESS (RULE 132)

BETWEEN PRIEST AND PENITENT

The examination of witnesses presented in a trial

A minister or priest cannot, without the or hearing shall be done in open court, and under
consent of the person making the confession, oath or affirmation. Unless the witness is
be examined as to any confession made to or incapacitated to speak, or the question calls for a
any advice given by him in his professional different mode of answer, the answers of the
character in the course of discipline enjoined witness shall be given orally.
by the church to which the minister or priest
belongs. The entire proceedings shall be recorded by
The communication must be made pursuant means of shorthand or stenotype or by other
to confessions of sin. Where the penitent means of recording found suitable by the court. A
discussed business arrangements with the transcript of the record of the proceedings made
priest, the privilege does not apply. by the official stenographer, stenotypist or
recorder and certified as correct by him shall be
deemed prima facie a correct statement of such
INVOLVING PUBLIC OFFICERS proceedings.

RIGHTS AND OBLIGATIONS OF A WITNESS

The disqualification because of privileged
communications to public officers requires that:
A witness must answer questions, although his
a) It was made to the public officer in official
answer may tend to establish a claim against
confidence; and
him. However, it is the right of a witness:
b) Public interest would suffer by the
1) To be protected from irrelevant, improper,
disclosure of such communications, as in
or insulting questions, and from harsh or
the case of State secrets. Where no public
insulting demeanor;
interest would be prejudiced, this rule
2) Not to be detained longer than the
does not apply.
interests of justice require;
3) Not to be examined except only as to
Exceptions to the rule:
matters pertinent to the issue;
a) What is asked is useful evidence to
4) Not to give an answer which will tend to
vindicate the innocence of an accused
subject him to a penalty for an offense
person;
unless otherwise provided by law; or
b) Disclosure would lessen the risk of false
5) Not to give an answer which will tend to
testimony;
degrade his reputation, unless it be to the
very fact at issue or to a fact from which
 187

the fact in issue would be presumed. But a The order in which an individual witness may be
witness must answer to the fact of his examined is as follows:
previous final conviction for an offense. 1) Direct examination by the proponent;
2) Cross-examination by the opponent;
ORDER IN THE EXAMINATION OF AN 3) Re-direct examination by the
INDIVIDUAL WITNESS proponent;
4) Re-cross-examination by the opponent.
5) Recalling the witness

DIRECT Direct examination is the examination- Purpose is to build up the theory of the
EXAMINATION in-chief of a witness by the party case by eliciting facts about the clients
presenting him on the facts relevant to cause of action or defense.
the issue.
CROSS Upon the termination of the direct Cross-examination aims to:
EXAMINATION examination, the witness may be a) Test the accuracy and truthfulness
cross-examined by the adverse party of the witness and his freedom from
as to any matters stated in the direct interest or bias or the reverse; and
examination, or connected therewith, b) Elicit all important facts bearing
with sufficient fullness and freedom to upon the issue, not only of those
test his accuracy and truthfulness and covered in the direct examination
freedom from interest or bias, or the but also on all other matters
reverse, and to elicit all important relevant to the issue/s pleaded.
facts bearing upon the issue.
RE-DIRECT After the cross-examination of the Principal objects are:
EXAMINATION witness has been concluded, he may a) to prevent injustice to the witness
be re-examined by the party calling and the party who has called him
him, to explain or supplement his by affording an opportunity to the
answers given during the cross- witness to explain the testimony
examination. On re-direct given on cross-examination,
examination, questions on matters not b) to explain any apparent
dealt with during the cross- contradiction or inconsistency in his
examination, may be allowed by the statements, and
court in its discretion. c) complete the answer of a witness,
or add a new matter which has
been omitted, or correct a possible
misinterpretation of testimony.
RE-CROSS Upon the conclusion of the re-direct A witness cannot be recalled without
EXAMINATION examination, the adverse party may leave of court, which may be granted
re-cross-examine the witness on only upon showing of concrete,
matters stated in his re-direct substantial grounds.
examination, and also on such other
matters as may be allowed by the
court in its discretion.
RECALLING THE After the examination of a witness by Aims to correct or explain his prior
WITNESS both sides has been concluded, the testimony; or lay the proper foundation
witness cannot be recalled without for his impeachment, but this is
leave of the court. The court will grant permitted only with the discretion of
or withhold leave in its discretion, as the court.
the interests of justice may require.

accused shall enjoy the right to meet the

Cross-examination of a witness is the absolute witnesses face to face.
right, not a mere privilege, of the party against
whom he is called; and with regard to the LEADING AND MISLEADING QUESTIONS
accused, it is a right granted by the Constitution. (SEC. 10, RULE 132)
Sec. 14(2), Art. III thereof provides that the
 188

A question which suggests to the witness the d) By prior acts or conduct inconsistent with
answer which the examining party desires is a his testimony;
leading question. It is not allowed, except: e) By showing social connections, occupation
1) On cross examination; and manner of living.
2) On Preliminary matters; f) By showing interest.
3) When there is difficulty in getting direct g) By showing intent and motive.
and intelligible answers from a witness
who is ignorant, or a child of tender years, The party producing a witness is not allowed to
or is of feeble mind, or a deaf-mute; impeach his credibility.
4) Of an unwilling or hostile witness; or
5) Of a witness who is an adverse party or an A witness may be considered as unwilling or
officer, director, or managing agent of a hostile only if so declared by the court upon
public or private corporation or of a adequate showing of his adverse interest,
partnership or association which is an unjustified reluctance to testify, or his having
adverse party. misled the party into calling him to the witness
6) In all stages of examination of a child if stand. The unwilling or hostile witness so
the same will further the interests of declared, or the witness who is an adverse party,
justice (Sec. 20, AM 004-07-SC). may be impeached by the party presenting him in
all respects as if he had been called by the
A misleading question is one which adverse party, except by evidence of his bad
assumes as true a fact not yet testified to by character. He may also be impeached and cross-
the witness, or contrary to that which he has examined by the adverse party, but such cross
previously stated. It is not allowed (Sec. 10). examination must only be on the subject matter
The adverse party should object thereto or of his examination-in-chief.
ask the court to expunge the answer from the
records, if he has already given his answer. HOW THE WITNESS IS IMPEACHED BY
EVIDENCE OF INCONSISTENT STATEMENTS
METHODS OF IMPEACHMENT OF ADVERSE (LAYING THE PREDICATE)
PARTYS WITNESS
Before a witness can be impeached by evidence
To impeach means to call into question the that he has made at other times statements
veracity of the witnesss testimony by means of inconsistent with his present testimony:
evidence offered for that purpose, or by showing a) the statements must be related to him,
that the witness is unworthy of belief. with the circumstances of the times and
Impeachment is an allegation, supported by places and the persons present, and
proof, that a witness who has been examined is b) he must be asked whether he made such
unworthy of credit. statements, and if so, allowed to explain
them. If the statements be in writing they
A witness be impeached by the party against must be shown to the witness before any
whom he was called: question is put to him concerning them.
a) By contradictory evidence;
b) By evidence that his general reputation for A witness cannot be impeached by evidence of
truth, honesty, or integrity is bad; or contradictory or prior inconsistent statements
c) By evidence that he has made at other until the proper foundation or predicate has been
times statements inconsistent with his laid by the party against whom said witness was
present testimony; called.
d) But not by evidence of particular wrongful
acts, except that it may be shown by the Laying the predicate means that it is the duty of a
examination of the witness, or the record party trying to impugn the testimony of a witness
of the judgment, that he has been by means of prior or subsequent inconsistent
convicted of an offense. statements, whether oral or in writing, to give the
witness a change to reconcile his conflicting
Other modes of impeachment aside from those declaration.
provided by the Rules are:
a) By producing the record of his conviction Where no predicate is laid during the trial proof of
of an offense; alleged inconsistent statements of the witness,
b) By showing improbability or whether verbal or written, cannot be admitted on
unreasonableness of testimony; objection of the adverse party, or be pointed out
c) By showing bias, prejudice or hostility;
 189

on appeal for the purpose of destroying the which are

credibility of the witness. inconsistent with his
claims in an action.
An exception to the rule requiring the laying of Broader than Specific type of
foundation for the admissibility of evidence of confession. admission which refers
inconsistent statements has been allowed in the only to an
case of dying declarations. acknowledgment of
guilt
EVIDENCE OF THE GOOD CHARACTER OF A May be implied like Cannot be implied, but
WITNESS admission by should be a direct and
silence. positive
Evidence of the good character of a witness is not acknowledgment of
admissible until such character has been guilt.
impeached. The law presumes every person to be May be judicial or May be judicial or
reputedly truthful until evidence shall have been extrajudicial. extrajudicial.
produced to the contrary. May be adoptive,
which occurs when a
Character evidence not generally person manifests his
admissible; exceptions. assent to the
statements of
a) In Criminal Cases: another person.
1) The accused may prove his good moral
character which is pertinent to the
moral trait involved in the offense RES INTER ALIOS ACTA RULE
charged.
2) Unless in rebuttal, the prosecution may Res inter alios acta alteri nocere debt means that
not prove his bad moral character "things done to strangers ought not to injure
which is pertinent it to the moral trait those who are not parties to them It has two
involved in the offense charged. branches, namely:
a) The rule that the rights of a party cannot
Note that in criminal cases, the be prejudiced by an act, declaration, or
prosecution goes first. Hence, it cannot omission of another; and
present evidence on the bad moral b) The rule that evidence of previous conduct
character of the accused on its or similar acts at one time is not
evidence in chief. admissible to prove that one did or did not
The good or bad moral character of the do the same act at another time.
offended party may be proved if it
tends to establish in any reasonable The rule has reference to extrajudicial
degree the probability or improbability declarations. Hence, statements made in open
of the offense charged. court by a witness implicating persons aside from
his own judicial admissions are admissible as
b) In Civil Cases: declarations from one who has personal
Evidence of the moral character of a knowledge of the facts testified to.
party in a civil case is admissible only
when pertinent to the issue of Exceptions to the first branch of the rule:
character involved in the case. a) Admission by a co-partner or agent (Sec.
29, Rule 130);
ADMISSION CONFESSION b) Admission by a co-conspirator (Sec. 30,
An act, declaration The declaration of an Rule 130); and
or omission of a accused acknowledging c) Admission by privies (Sec. 31, Rule 130).
party as to a his guilt of the offense
relevant fact. charged, or of any ADMISSION BY A PARTY
offense necessarily The act, declaration or omission of a party as to a
included therein. relevant fact may be given in evidence against
It is a voluntary It is a statement by the him.
acknowledgment accused that he
made by a party of engaged in conduct ADMISSION BY A THIRD PARTY
the existence of the which constitutes a
truth of certain facts crime.
 190

The rights of a party cannot be prejudiced by an Three exceptions are recognized to the rule that
act, declaration, or omission of another, except declarations of the transferor, made subsequent
as hereinafter provided. to the transfer, are inadmissible:
1) Where the declarations are made in the
ADMISSION BY A CO-PARTNER OR AGENT presence of the transferee, and he
The act or declaration of a partner or agent of the acquiesces in the statements, or asserts
party within the scope of his authority and during no rights where he ought to speak;
the existence of the partnership or agency, may 2) Where there has been a prima facie case
be given in evidence against such party after the of fraud established, as where the thing
partnership or agency is shown by evidence other after the sale or transfer, remains with the
than such act or declaration. The same rule seller or transferor;
applies to the act or declaration of a joint owner, 3) Where the evidence establishes a
joint debtor, or other person jointly interested continuing conspiracy to defraud, which
with the party. conspiracy exists between the vendor and
the vendee.
For the admission of a co-partner or agent to be
admissible, the following requisites must concur: ADMISSION BY SILENCE
a) The declaration or act of the partner and An act or declaration made in the presence and
agent must have been made or done within the hearing or observation of a party who
within the scope of his authority; does or says nothing when the act or declaration
b) The declaration or act of the partner and is such as naturally to call for action or comment
agent must have been made or done if not true, and when proper and possible for him
during the existence of the partnership or to do so, may be given in evidence against him.
agency, and the person making the
declaration still a partner or an agent; and The common sense of mankind is expressed in
c) The existence of the partnership or the popular phrase, silence gives consent which
agency is proven by evidence other than is but another form of expressing the maxim of
the declaration or act of the partner and the law, qui tacet cosentire videtur.
agent.
Before the silence of a party can be taken as an
ADMISSION BY A CONSPIRATOR admission of what is said, the following requisites
Conspiracy exists when two or more persons must concur:
come to an agreement concerning the a) Hearing and understanding of the
commission of a felony and decide to commit it. statement by the party;
Once conspiracy is proven, the act of one is the b) Opportunity and necessity of denying the
act of all. The statement therefore of one may be statements;
admitted against the other co-conspirators as an c) Statement must refer to a matter affecting
exception to the rule of res inter alios acta. his right;
d) Facts were within the knowledge of the
For the exception to apply, the following party; and
requisites must concur: e) Facts admitted or the inference to be
1) The declaration or act be made or done drawn from his silence would be material
during the existence of the conspiracy; to the issue.
2) The declaration or act must relate to the
conspiracy; and CONFESSIONS
3) The conspiracy must be shown by
evidence other than the declaration or act. The declaration of an accused acknowledging his
guilt of the offense charged, or of any offense
ADMISSION BY PRIVIES necessarily included therein, may be given in
evidence against him.
Privity means mutual succession of relationship to
the same rights of property. Privies are those who Any confession or admission obtained in violation
have mutual or successive relationship to the of this or Section 17 hereof shall be inadmissible
same right of property or subject matter, such as in evidence against him (Sec. 12, Art. III,
personal representatives, heirs, devisees, Constitution).
legatees, assigns, voluntary grantees or
judgment creditors or purchasers from them with Confession is an acknowledgment in express
notice of the facts. words, by the accused in a criminal case, of the
truth of the offense charged, or of some essential
 191

parts thereof. To be valid, confessions must be HEARSAY RULE

voluntarily and freely made.
A witness can testify only to those facts which he
Exceptions to the rule that confessions of an knows of his personal knowledge; that is, which
accused may be given in evidence against him are derived from his own perception, except as
and incompetent against his co-accused: otherwise provided in these rules.
a) When several accused are tried together,
confession made by one of them during Generally, hearsay evidence is inadmissible
the trial implicating the others is evidence because the person who testifies does so based
against the latter. on matters not of his personal knowledge but
b) When one of the defendants is discharged based on the knowledge of another who is not in
from the information and testifies as a court and cannot therefore, b cross-examined.
witness for the prosecution, the confession The one in courts is the person who merely
made in the course of his testimony is repeats matters witnessed personally by another.
admissible against his co-defendants, if This type o evidence is inadmissible because of
corroborated by indisputable proof. its inherent unreliability.
c) If a defendant after having been apprised
of the confession of his co-defendant Hearsay evidence may be in writing. For instance,
ratifies or confirms said confession, the an affidavit is hearsay unless the affiant affirms
same is admissible against him. the same in court and is subject to cross-
d) Interlocking confessions -- Where several examination.
extra-judicial confession had been made
by several persons charged with an A hearsay testimony involves an outside-
offense and there could have been no declarant and an in-court witness. It is the outside
collusion with reference to said several declarant who says something based on what he
confessions, the facts that the statements has perceived. His statement is heard by
therein are in all material respects someone who is the one testifies in court as to
identical, is confirmatory of the confession what he heard.
of the co-defendant, and is admissible
against his other co-defendants. If the witness offers the statement of the outside
e) A statement made by one defendant after declarant to prove the truth of such statement
his arrest, in the presence of this co- (the one which he heard) the testimony of the
defendant, confessing his guilt and witness is hearsay. If its offered merely to prove
implicating his co-defendant who failed to that he heard the statement without reference to
contradict or deny it, is admissible against its truth or falsity, his testimony is not hearsay.
his co-defendant.
f) When the confession is of a conspirator If what he heard is relevant to an issue in the
and made after conspiracy in furtherance case, it will fall under the category of
of its object, the same is admissible independent relevant statements which means
against his co-conspirator; and statements which are relevant as to their tenor or
g) The confession of one conspirator made to the fact that they were uttered and not as to
after the termination of a conspiracy is whether they are true or false.
admissible against his co-conspirator if
made in his presence and assented to by MEANING OF HEARSAY
him, or admitted its truth or failed to
contradict or deny it. It also means the evidence not of what the
witness himself knows but of what he has heard
SIMILAR ACTS AS EVIDENCE from others.

Evidence that one did or did not do a certain REASON FOR EXCLUSION OF HEARSAY
thing at one time is not admissible to prove that EVIDENCE
he did or did not do the same or a similar thing at
another time; but it may be received to prove a Hearsay evidence is inadmissible according to the
specific intent or knowledge, identity, plan, general rule. The real basis for the exclusion is
system, scheme, habit, custom or usage, and the the fact that hearsay testimony is not subject to
like. Evidence of collateral offenses must not be the tests which can ordinarily be applied for the
received as substantive evidence of the offenses ascertainment of the truth of testimony, since the
on trial. declarant is not present and available for cross-
examination.
 192

opportunity to test the credibility of hearsay

In criminal cases the admission of hearsay statements by observing the demeanor of the
evidence would be a violation of the person who made them.
constitutional provision that the accused shall
enjoy the right of being confronted with the EXCEPTIONS TO THE HEARSAY RULE
witnesses testifying against him and to cross- (DEVFLECTD WI-CAP)
examine them. Moreover, the court is without the
1) Dying declaration; 9) Declaration against interest;
2) Entries in the course of business; 10) Waiver;
3) Verbal acts; 11) Independently relevant evidence;
4) Family reputation or tradition regarding 12) Commercial lists and the like;
pedigree; 13) Act or declaration about pedigree; and
5) Learned treatises; 14) Part of res gestae.
6) Entries in official records;
7) Common reputation;
8) Testimony or deposition at a former
proceeding;
impending death. It is this consciousness which is
The statements from which the facts in issue may assumed to be the compelling motive to tell the
be inferred may be testified to by witnesses truth. Any statement he makes not related to the
without violating the hearsay rule. Of this kind circumstances of his death is inadmissible as a
are: dying declaration.

Statements of a person: The dying declaration is admissible in ANY CASE

a) showing his state of mind, that is his provided the subject of inquiry in that case is the
mental condition, knowledge, belief, death of the declarant.
intention, ill-will and other emotion;
b) showing his physical condition, as illness It is required that the declarant should die. If he
and the like; lives, he may testify personally based on his
c) from which an inference may be made as personal knowledge. If he is unable to testify, his
to the state of mind of another, that is, declaration could be admitted as a statement
knowledge, belief, motive, good or bad made by a person immediately subsequent to a
faith, etc. of the latter; startling occurrence (could be considered part of
d) which may identify the date, place, and res gestae).
person in question; and
e) showing the lack of credibility of a witness. DECLARATION AGAINST INTEREST

DYING DECLARATION The declaration made by a person deceased, or

unable to testify, against the interest of the
The declaration of a dying person, made under declarant, if the fact asserted in the declaration
the consciousness of an impending death, may was at the time it was made so far contrary to
be received in any case wherein his death is the declarant's own interest, that a reasonable man
subject of inquiry, as evidence of the cause and in his position would not have made the
surrounding circumstances of such death. declaration unless he believed it to be true, may
be received in evidence against himself or his
REQUISITES: successors in interest and against third persons.
1) That death is imminent and the declarant
is conscious of that fact; Requisites for the exception to apply:
2) That the declaration refers to the cause a) That the declarant is dead or unable to
and surrounding circumstances of such testify;
death; b) That it relates to a fact against the interest
3) That the declaration relates to facts which of the declarant;
the victim is competent to testify to; and c) That at the time he made said declaration
4) That the declaration is offered in a case the declarant was aware that the same
wherein the declarants death is the was contrary to his aforesaid interest; and
subject of the inquiry. d) That the declarant had no motive to falsify
and believed such declaration to be true.
The most significant element is that the
declaration must have been conscious of his ADMISSION BY DECLARATION
 193

PRIVIES AGAINST INTEREST c) The witness testifying to the reputation or

One of 3 exceptions Exception to hearsay tradition regarding the pedigree of the
to res inter alios acta person concerned must be a member of
Evidence against the Evidence against even the family of said person, either by
successor in interest the declarant, his consanguinity or affinity.
of the admitter successor in interest,
or 3rd persons COMMON REPUTATION
Admitter need not Declarant is dead or
be dead or unable to unable to testify
testify Requisites for the admissibility of the
exception:
Relates to title to Relates to any interest
a) The facts must be of public or general
property
interest and more than thirty years old;
Admission need not Declaration must be
b) The common reputation must have been
be against the against the interest of ancient (more than 30 years old or one
admitters interest the declarant generation old);
c) The reputation must have been one
formed among the class of persons who
ACT OR DECLARATION ABOUT PEDIGREE were in a position to have some sources of
information and to contribute intelligently
to the formation of the opinion; and
The word "pedigree" includes relationship, family
genealogy, birth, marriage, death, the dates The common reputation must have been existing
when and the places where these facts occurred, previous to the controversy.
and the names of the relatives. It embraces also
facts of family history intimately connected with Requisites for the admissibility of common
pedigree. reputation respecting marriage:
a) The common reputation must have been
Pedigree is the history of family descent which is formed previous to the controversy; and
transmitted from one generation to another by b) The common reputation must have been
both oral and written declarations and by formed in the community or among the
traditions. class of persons who are in a position to
have sources of information and to
Requisites for applicability: contribute intelligently to the formation of
a) Declarant is dead or unable to testify; the opinion.
b) Necessity that pedigree be in issue; Requisites for the admissibility of common
c) Declarant must be a relative of the person reputation respecting moral character:
whose pedigree is in question; a) That it is the reputation in the place where
d) Declaration must be made before the the person in question is best known;
controversy occurred; and b) That it was formed ante litem motam.
e) The relationship between the declarant
and the person whose pedigree is in Character refers to the inherent qualities of the
question must be shown by evidence person, rather than to any opinion that may be
other than such act or declaration. formed or expressed of him by others. Reputation
applies to the opinion which others may have
FAMILY REPUTATION OR TRADITION formed and expressed of his character.
REGARDING PEDIGREE
Monuments and inscriptions in public places may
be received as evidence of common reputation.
Entries in family bibles or other family books or
charts, engravings on rings, family portraits and
the like, may be received as evidence of PART OF THE RES GESTAE
pedigree.
Statements made by a person while a startling
Requisites for the exception to apply: occurrence is taking place or immediately prior or
a) There is a controversy in respect to the subsequent thereto with respect to the
pedigree of any members of a family; circumstances thereof, may be given in evidence
b) The reputation or tradition of the pedigree as part of the res gestae. So, also, statements
of the person concerned existed ante litem accompanying an equivocal act material to the
motam or pervious to the controversy; and
 194

issue, and giving it a legal significance, may be startling characterized

received as part of the res gestae. occurrence; must be
b) The statement equivocal;
Res gestae is from the Latin meaning things must relate to the b) Verbal acts must
done. As applied to a crime, res gestae means circumstances of characterize or
the complete criminal transaction from its the startling explain the
beginning or starting point in the act of the occurrence; equivocal act;
accused until the end is reached. c) The statement c) Equivocal act
must be must be relevant
The general classes of declarations to which the spontaneous. to the issue;
term res gestae is usually applied are (a) d) Verbal acts must
spontaneous statements, and (b) verbal acts. be
contemporaneou
SPONTANEOUS VERBAL ACTS s with equivocal
STATEMENTS act.
Statement or Utterances which
exclamation made accompany some
immediately after act or conduct to ENTRIES IN THE COURSE OF BUSINESS
some exciting which it is desired to
occasion by a give a legal effect.
participant or When such act has Requisites for admissibility:
spectator and intrinsically no a) Entries must have been made at or near
asserting the definite legal the time of the transaction to which they
circumstances of that significance, or only refer;
occasion as it is an ambiguous one, b) Entrant must have been in a position to
observed by him. its legal purport or know the facts stated in the entries;
tenor may be c) Entries must have been made by entrant
ascertained by in his professional capacity or in the
considering the performance of his duty;
words accompanying d) Entries were made in the ordinary or
it, and these regular course of business of duties;
utterances thus e) Entrant must be deceased or unable to
enter merely as testify.
verbal part of the
act. ENTRIES IN OFFICIAL RECORDS
The res gestae is the The res gestae is the
startling occurrence equivocal act
Entries in official records made in the
Spontaneous Verbal act must be
performance of his duty by a public officer of the
exclamation may be contemporaneous
Philippines, or by a person in the performance of
prior to, simultaneous with or must
a duty specially enjoined by law, are prima facie
with, or subsequent accompany the
evidence of the facts therein stated.
to the startling equivocal act to be
occurrence. admissible.
Reason for Reason for COMMERCIAL LISTS AND THE LIKE
admissibility: admissibility:
Trustworthiness and The motive, Evidence of statements of matters of interest, to
necessitybecause character and object persons engaged in an occupation contained in a
statements are made of an act are list, register, periodical, or other published
instinctively, and frequently indicated compilation is admissible as tending to prove the
because said natural by what was said by truth of any relevant matter so stated if that
and spontaneous the person engaged compilation is published for use by persons
utterances are more in the act. engaged in that occupation and is generally used
convincing than the and relied upon by them therein.
testimony of the
same person on the
LEARNED TREATIES
stand.
Requisites for Requisites for
admissibility: admissibility: A published treatise, periodical or pamphlet on a
a) There must be a a) Act or occurrence subject of history, law, science or art is
 195

admissible as tending to prove the truth of a c) Presentation of the authorities or

matter stated therein if the court takes judicial standards upon which his opinion is based.
notice, or a witness expert in the subject testifies
that the writer of the statement in the treatise, Before one may be allowed to testify as an expert
periodical or pamphlet is recognized in his witness, his qualification must first be established
profession or calling as expert in the subject. by the party presenting him, i.e., he must be
shown to possess the special skill or knowledge
TESTIMONY OR DEPOSITION AT A FORMER relevant to the question to which he is to express
TRIAL an opinion. Common subjects of expert
testimony: handwriting, typewritten documents,
The testimony or deposition of a witness fingerprints, ballistics, medicine, value of
deceased or unable to testify, given in a former properties and services.
case or proceeding, judicial or administrative,
involving the same parties and subject matter, CHARACTER EVIDENCE
may be given in evidence against the adverse
party who had the opportunity to cross-examine Character evidence, as a general rule, is not
him. admissible in evidence because the evidence of a
persons character does not prove that such
If the witness has been subjected to cross- person acted conformity with such character or
examination in a former trial, the rule is satisfied, trait in a particular occasion. Exceptions:
and the former testimony may now be used. a) In criminal cases, the prosecution may not
at the outset prove the bad moral
OPINION RULE character of the accused which is
pertinent to the moral trait involved in the
GENERAL RULE: the opinion of a witness is not offense charged. If the accused, however,
admissible. The witness must testify to facts in his defense attempts to prove his good
within their knowledge and may not state their moral character then the prosecution can
opinion, even on their cross-examination. introduce evidence of such bad moral
character at the rebuttal stage.
EXCEPTIONS: b) Also in criminal case, the good or bad
1) OPINION OF EXPERT WITNESS - On a moral character of the offended party may
matter requiring special knowledge, skill, always be proved by either party as long
experience or training which he possesses, as such evidence tends to establish the
that is, when he is an expert thereon may probability or improbability of the offense
be received in evidence. Expert testimony charged.
is not admissible as to a matter not in c) In civil cases, the moral character of either
issue. party thereto cannot be proved unless it is
2) OPINION OF ORDINARY WITNESSES: pertinent to the issue of character
a) The identity of a person about involved in the case.
whom he has adequate knowledge; d) In both civil and criminal cases, the bad
b) A handwriting of a person with moral character of a witness may always
which he has sufficient familiarity; be proved by either party but not evidence
c) The mental sanity or a person with of his good character, unless it has been
whom he is sufficiently acquainted; impeached.
and
d) The witness impression of the With respect to the nature or substance of the
emotion, behavior, condition or character evidence which may be admissible, the
appearance of a person. rules require that:
Reason: it is for the court to form an opinion a) With respect to the accused, such
concerning the facts in proof of which character evidence must be pertinent to
evidence is offered. the moral trait involved in the offense
charged;
OPINION OF EXPERT WITNESS b) With respect to the offended person, it is
sufficient that such character evidence
It is sufficient that the following factors are may establish in any reasonable degree
present: the probability or improbability of the
a) Training and education; offense charged, as in prosecutions for
b) Particular, first-hand familiarity with the rape or consented abduction wherein the
facts of the case; and victims chastity may be questioned, and
 196

in prosecution for homicide wherein the WITNESS (SEC. 25)

pugnacious, quarrelsome or trouble-
seeking character of the victim is a proper The prosecutor, counsel or the guardian ad litem
subject of inquiry; and may apply for an order that the testimony of the
c) With respect to witnesses, such character child be taken in a room outside the courtroom
evidence must refer to his general and be televised to the courtroom by live-link
reputation for truth, honesty or integrity, television.
that is, as affecting his credibility.
The court may order that the testimony of the
child be taken by live-link television if there is a
RULE ON EXAMINATION OF A CHILD
substantial likelihood that the child would suffer
WITNESS (A.M. NO. 004-07-SC)
trauma from testifying in the presence of the
accused, his counsel or the prosecutor as the
APPLICABILITY OF THE RULE case may be. The trauma must be of a kind which
would impair the completeness or truthfulness of
Unless otherwise provided, this Rule shall govern the testimony of the child. The child shall
the examination of child witnesses who are therefore testify in a room separate from the
victims of crime, accused of a crime, and courtroom.
witnesses to crime. It shall apply in all criminal
proceedings and non-criminal proceedings VIDEOTAPED DEPOSITION OF A CHILD
involving child witnesses. WITNESS

MEANING OF CHILD WITNESS The prosecutor, counsel, or guardian ad litem

may apply for an order that a deposition be taken
Any person who at the time of giving testimony is of the testimony of the child and that it be
below the age of 18 years. In child abuse cases, a recorded and preserved on videotape. The judge
child includes one over 18 years but is found by shall preside at the videotaped deposition of a
the court as unable to fully take care of himself or child. Objections to deposition testimony or
protect himself from abuse, neglect, cruelty, evidence and the grounds for the objection shall
exploitation, or discrimination because of a be stated and shall rule upon at the time of the
physical or mental disability or condition. taking of the deposition.

COMPETENCY OF A CHILD WITNESS The videotaped deposition shall be preserved and

stenographically recorded. The videotape and the
Every child is presumed qualified to be a witness. stenographic notes shall be transmitted to the
However, the court shall conduct a competency clerk of the court where the case is pending for
examination of a child (only by the judge, or safekeeping and shall be made a part of the
court) , motu propio or on motion of a party, record. The videotaped deposition and
when it finds that substantial doubt exists stenographic notes shall be subject to a
regarding the stability of the child to perceive, protective order.
remember, communicate, distinguish truth from
falsehood, or appreciate the duty to tell the truth If, at the time of trial, the court finds that the
in court. The court has the duty of continuously child is unable to testify, the court may admit into
assessing the competence of the child throughout evidence the videotaped deposition of the child in
his testimony. lieu of his testimony at the trial.

EXAMINATION OF A CHILD WITNESS After the original videotaping but before or during
trial, any party may file any motion for additional
The examination of a child witness presented in a videotaping on the ground of newly discovered
hearing or any proceeding shall be done in open evidence.
court. Unless the witness is incapacitated to
speak, or the question calls for a different mode HEARSAY EXCEPTION IN CHILD ABUSE
of answer, the answers of the witness shall be CASES
given orally. The party who presents a child
witness or the guardian ad litem of such child A statement made by a child describing any act
witness may, however, move the court to allow or attempted act of child abuse, not otherwise
him to testify in the manner provided in this Rule. admissible under the hearsay rule, may be
admitted in evidence in any criminal or non-
LIVE-LINK TV TESTIMONY OF A CHILD criminal proceeding subject to the following rules:
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a) Before such hearsay statement may be the guardian ad litem, issue additional orders to
admitted, its proponent shall make known protect the privacy of the child.
to the adverse party the intention to offer
such statement and its particulars to
provide him a fair opportunity to object. If
OFFER AND OBJECTION (RULE 132)
the child is available, the court shall, upon
OFFER OF EVIDENCE
motion of the adverse party, require the
child to be present at the presentation of
the hearsay statement for cross-
examination by the adverse party. When The court shall consider no evidence which has
the child is unavailable, the fact of such not been formally offered. The purpose for which
circumstance must be proved by the the evidence is offered must be specified.
proponent.
b) In ruling on the admissibility of such WHEN TO MAKE AN OFFER
hearsay statement, the court shall
consider the time, content and testimony of a witness - the offer must be
circumstances thereof which provide made at the time the witness is called to
sufficient indicia of reliability. testify.
Documentary and object evidence shall be
The child witness shall be considered unavailable offered after the presentation of a party's
under the following situations: testimonial evidence. Such offer shall be done
a) Is deceased, suffers from physical orally unless allowed by the court to be done
infirmity, lack of memory, mental illness, in writing.
or will be exposed to sever psychological
injury; or OBJECTION
b) Is absent from the hearing and the
proponent of his statement has been Objection to evidence offered orally must be
unable to procure his attendance by made immediately after the offer is made.
process or other reasonable mean. Objection to a question propounded in the
course of the oral examination of a witness
When the child witness is unavailable, his shall be made as soon as the grounds therefor
hearsay testimony shall be admitted only if shall become reasonably apparent.
corroborated by other admissible evidence. An offer of evidence in writing shall be
objected to within three (3) days after notice
SEXUAL ABUSE SHIELD RULE of the offer unless a different period is allowed
by the court. In any case, the grounds for the
objections must be specified.
a) The following evidence is NOT ADMISSIBLE in Grounds for objection: Hearsay;
any criminal proceeding involving alleged Argumentative; Leading; Misleading;
child sexual abuse: Incompetent; Irrelevant; Best evidence rule;
a. Evidence offered to prove that the Parole evidence rule; Question has no basis
alleged victim engaged in other sexual
behavior; and REPETITION OF AN OBJECTION
b. Evidence offered to prove the sexual
pre-disposition of the alleged victim. When it becomes reasonably apparent in the
b) EXCEPTION: Evidence of specific instances of course of the examination of a witness that the
sexual behavior by the alleged victim to prove questions being propounded are of the same
that a person other than the accused was the class as those to which objection has been made,
source of semen, injury, or other physical whether such objection was sustained or
evidence shall be admissible. overruled, it shall not be necessary to repeat the
objection, it being sufficient for the adverse party
PROTECTIVE ORDERS to record his continuing objection to such class of
questions.
Protection of privacy and safety - Any videotape
or audiotape of a child that is part of the court RULING
record shall be under a protective order. The
court may, motu propio or on motion of any The ruling of the court must be given
party, the child, his parents, legal guardian, or immediately after the objection is made, unless
the court desires to take a reasonable time to
 198

inform itself on the question presented; but the offense charged is imprisonment not
ruling shall always be made during the trial and exceeding 6 months or a fine not
at such time as will give the party against whom exceeding P1,000 or both, irrespective
it is made an opportunity to meet the situation of other imposable penalties,
presented by the ruling. accessory or otherwise, or of the civil
liability arising therefrom; and in
STRIKING OUT OF AN ANSWER offenses involving damages to
property through criminal negligence,
Should a witness answer the question before the where the imposable fine does not
adverse party had the opportunity to voice fully exceed P1,000.
its objection to the same, and such objection is e. In offenses involving damage to
found to be meritorious, the court shall sustain property through criminal negligence,
the objection and order the answer given to be where the imposable fine does not
stricken off the record. On proper motion, the exceed P10,000.00
court may also order the striking out of answers
which are incompetent, irrelevant, or otherwise Note: The Rule shall not apply in a civil case
improper. where the cause of action is pleaded with
another cause of action subject to the
ordinary procedure, nor to criminal case
TENDER OF EXCLUDED EVIDENCE where the offense charged is necessary
If documents or things offered in evidence are related to another criminal case subject to the
excluded by the court, the offeror may have ordinary procedure.
the same attached to or made part of the
record. EFFECT OF FAILURE TO ANSWER
If the evidence excluded is oral, the offeror Should the defendant fail to answer the
may state for the record the name and other complaint within 10 days from service of
personal circumstances of the witness and the summons, the court shall MOTU PROPIO or
substance of the proposed testimony. ON MOTION of the plaintiff, shall render
judgment as may be warranted by the
Note: Supreme Court Rulings as of facts alleged in the complaint and limited
December 2010 included to what is prayed for therein.

This is without prejudice to the

REVISED RULES ON SUMMARY PROCEDURE applicability of Sec. 4, Rule 18 if there are
two or more defendants.

(MeTC, MTC and MCTC) PRELIMINARY CONFERENCE AND

APPEARANCES OF PARTIES
CASES COVERED BY THE RULE
a preliminary conference shall be held not
1) CIVIL CASES later than 30 days after the last answer is
a. All cases of forcible entry and unlawful filed. The rules on pre-trial in ordinary
detainer irrespective of the amount of cases shall be applicable to the
damages or unpaid rentals sought to preliminary conference unless inconsistent
be recovered. with the provisions of the Rule.
b. All other cases, except probate The failure of the plaintiff to appear in the
proceedings where the total amount of preliminary conference shall be cause for
the plaintiffs claim does not exceed the dismissal of his complaint. The
P100,000 outside, or P200,000 in defendant who appears in the absence of
Metro Manila, exclusive of interest and the plaintiff shall be entitled to judgment
costs. on his counterclaim. All cross-claims shall
be dismissed.
2) CRIMINAL CASES If a sole defendant shall fail to appear, the
a. Violation of Bouncing Checks Law (BP plaintiff shall be entitled to judgment as
22); warranted by the allegations in the
b. Violation of traffic laws, rules and complaint and limited to the reliefs prayed
regulations; for therein. The Rule shall not apply where
c. Violations of rental laws; one of two or more defendants sued under
d. All other criminal cases where the a common cause of action who had
penalty prescribed by law for the
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pleaded a common defenses shall appear deprived of his liberty or one acting
at the preliminary conference. in his behalf;
c) Actions coupled with provisional
remedies, such as preliminary
injunction, attachment, replevin
KATARUNGANG PAMBARANGAY (Secs. 399 and support pendente litem;
422, LGC) d) Where the action may be barred by
the statute of limitations;
10) Labor disputes or controversies arising
from employer-employee relationship.
SUBJECT MATTER FOR AMICABLE 11) Where the dispute arises from the
SETTLEMENT Comprehensive Agrarian Reform Law;
12) Actions to annul judgment upon a
The lupon of each barangay shall have authority compromise which can be filed directly in
to bring together the parties actually residing in court.
the same municipality or city for amicable
settlement of all disputes The court in which non-criminal cases not falling
within the authority of the lupon under the Code
EXCEPT: are filed may, at any time before trial, motu
1) Where one party is the government or any propio refer the case to the lupon concerned for
subdivision or instrumentality thereof; amicable settlement.
2) Where one party is a public officer or
employee, and the dispute relates to the VENUE
performance of his official functions;
3) Offenses punishable by imprisonment 1) Disputes between persons actually residing in
exceeding one (1) year or a fine exceeding the same barangay;
P5,000; 2) Those involving actual residents of different
4) Offenses where there is no private barangays within the same city or
offended party; municipality;
5) Where the dispute involves real properties 3) All disputes involving real property or any
located in different cities or municipalities interest therein where the real property or the
unless the parties thereto agree to submit larger portion thereof is situated;
their differences to amicable settlement 4) Those arising at the workplace where the
by an appropriate lupon; contending parties are employed or at the
6) Disputes involving parties who actually institution where such parties are enrolled for
reside in barangays of different cities or study, where such workplace or institution is
municipalities, except where such located.
barangay units adjoin each other and the Objections to venue shall be raised in the
parties thereto agree to submit their mediation proceedings before the punong
differences to amicable settlement by an barangay; otherwise, the same shall be
appropriate lupon; deemed waived. Any legal question which
7) Such other classes of disputes which the may confront the punong barangay in
President may determine in the interest of resolving objections to venue herein
justice or upon the recommendation of the referred to may be submitted to the
Secretary of Justice; Secretary of Justice, or his duly designated
8) Any complaint by or against corporations, representative, whose ruling thereon shall
partnerships, or juridical entities. The be binding.
reason is that only individuals shall be
parties to barangay conciliation WHEN PARTIES MAY DIRECTLY GO TO
proceedings either as complainants or COURT
respondents;
9) Disputes where urgent legal action is 1) Where the accused is under detention;
necessary to prevent injustice from being 2) Where a person has otherwise been
committed or further continued, specially deprived or personal liberty calling for
the following: habeas corpus proceedings;
a) A criminal case where the accused 3) Where actions are coupled with provisional
is under police custody or remedies such as preliminary injunction,
detention; attachment, delivery of personal property,
b) A petition for habeas corpus by a and support pendente lite; and
person illegally detained or
 200

4) Where the action may otherwise be barred a) For money owed under any of the
by the statute of limitations. following:
1. Contract of Lease;
EXECUTION 2. Contract of Loan;
3. Contract of Services;
The amicable settlement or arbitration award 4. Contract of Sale; or
may be enforced by execution by the lupon within 5. Contract of Mortgage;
six (6) months from the date of the settlement. b) For damages arising from any of the
After the lapse of such time, the settlement may following:
be enforced by action in the appropriate city or 1. Fault or negligence;
municipal court. 2. Quasi-contract; or
3. Contract;
REPUDIATION c) The enforcement of a barangay
amicable settlement or an arbitration
Any party to the dispute may, within ten (10) award involving a money claim
days from the date of the settlement, repudiate covered by this Rule pursuant to Sec.
the same by filing with the lupon chairman a 417 of RA 7160.
statement to that effect sworn to before him,
where the consent is vitiated by fraud, violence, COMMENCEMENT OF SMALL CLAIMS
or intimidation. Such repudiation shall be ACTION
sufficient basis for the issuance of the
certification for filing a complaint before the A small claims action is commenced by filing with
court. the court an:
1) accomplished and verified Statement of
Claim in duplicate;
2) a Certification of Non-forum Shopping;
3) two (2) duly certified photocopies of the
RULE OF PROCEDURE FOR SMALL CLAIMS
actionable document/s subject of the
CASES (AM No. 08-8-7-SC, as amended)
claim;
4) the affidavits of witnesses and other
evidence to support the claim.
SCOPE AND APPLICABILITY OF THE RULE
No evidence shall be allowed during the
This Rule shall govern the procedure in actions hearing which was not attached to or
before the: submitted together with the Claim, unless
a) Metropolitan Trial Courts; good cause is shown for the admission of
b) Municipal Trial Courts in Cities; additional evidence. No formal pleading,
c) Municipal Trial Courts; and other than the Statement of Claim is
d) Municipal Circuit Trial Courts necessary to initiate a small claims action.

for payment of money where the value of the RESPONSE

claim DOES NOT EXCEED P100,000.00
exclusive of interest and costs. The defendant shall file with the court and serve
on the plaintiff a duly accomplished and verified
The MTCs shall apply this Rule in all actions which Response within a non-extendible period of ten
are: (10) days from receipt of summons. The response
a) purely civil in nature where the claim or shall be accompanied by certified photocopies of
relief prayed for by the plaintiff is solely documents, as well as affidavits of witnesses and
for payment or reimbursement of sum of other evidence in support thereof. No evidence
money; and shall be allowed during the hearing which was not
b) the civil aspect of criminal actions, either attached to or submitted together with the
filed before the institution of the criminal Response, unless good cause is shown for the
action, or reserved upon the filing of the admission of additional evidence. The grounds for
criminal action in court, pursuant to Rule the dismissal of the claim, under Rule 16 of the
111 of the Revised Rules of Criminal Rules of Court, should be pleaded.
Procedure.
EFFECT OF FAILURE TO FILE RESPONSE
These claims or demands may be:
 201

Should the defendant fail to file his Response set for hearing, the court shall ascertain what
within the required period, and likewise fail to defense he has to offer and proceed to hear,
appear at the date set for hearing, the court shall mediate or adjudicate the case on the same day
render judgment on the same day, as may be as if a Response has been filed.
warranted by the facts.
PROHIBITED PLEADINGS AND MOTIONS
Should the defendant fail to file his Response
within the required period but appears at the date
a) Motion to dismiss the complaint; g) Petition for certiorari, mandamus, or
b) Motion for a bill of particulars; prohibition against any interlocutory order
c) Motion for new trial, or for reconsideration issued by the court;
of a judgment, or for reopening of trial; h) Motion to declare the defendant in default;
d) Petition for relief from judgment; i) Dilatory motions for postponement;
e) Motion for extension of time to file j) Reply;
pleadings, affidavits, or any other paper; k) Third-party complaints; and
f) Memoranda; l) Interventions.

and shall exert efforts to bring the parties to an

APPEARANCES amicable settlement of their dispute.

The parties shall appear at the designated date of Any settlement or resolution of the dispute shall
hearing PERSONALLY. Appearance through a be reduced into writing, signed by the parties and
representative must be for a valid cause. The submitted to the court for approval.
representative of an individual-party must:
1) not be a lawyer; and Settlement discussions shall be strictly
2) must be related to or next-of-kin of the confidential and any reference to any settlement
individual-party. made in the course of such discussions shall be
Juridical entities shall not be represented by a punishable by contempt.
lawyer in any capacity.
The representative must be authorized under a FINALITY OF JUDGMENT
Special Power of Attorney to enter into an
amicable settlement of the dispute and to enter After the hearing, the court shall render its
into stipulations or admissions of facts and of decision on the same day and the same shall be
documentary exhibits. final and unappealable and if it is in favor of the
plaintiff, the judgment shall be executed upon his
EFFECT OF FAILURE TO APPEAR motion.

Failure of the plaintiff to appear shall be cause for

the dismissal of the claim without prejudice. The
defendant who appears shall be entitled to RULES OF PROCEDURE FOR
judgment on a permissive counterclaim. ENVIRONMENTAL CASES (AM No. 09-6-8-
SC)
Failure of the defendant to appear shall have the
same effect as failure to file a Response. This rule
shall not apply where one of two or more
defendants sued on a common cause of action
appear. SCOPE AND APPLICABILITY OF THE RULE

Failure of both parties to appear shall cause the These Rules shall govern the procedure in civil,
dismissal with prejudice of both the claim and criminal and special civil actions before the RTCs
counterclaim. and MTCs involving enforcement or violations of
environmental and other related laws, rules and
HEARING; DUTY OF THE JUDGE regulations.

At the beginning, the judge shall read aloud a CIVIL PROCEDURE

short statement explaining the nature, purpose
and the rule of procedure of small claims cases
PROHIBITION AGAINST TEMPORARY
RESTRAINING ORDER AND PRELIMINARY
 202

INJUNCTION dispute. The judge may issue a consent

decree approving the agreement between the
Except the Supreme Court, no court can issue a parties in accordance with law, morals, public
TRO or writ of preliminary injunction against order and public policy to protect the right of
lawful actions of government agencies that the people to a balanced and healthful
enforce environmental laws or prevent violations ecology.
thereof except the Supreme Court. Evidence not presented during the pre-trial,
except newly discovered evidence, shall be
PRE-TRIAL CONFERENCE; CONSENT DECREE deemed waived.
(SEC. 5, RULE 3) CONSENT DECREE refers to a judicially-
approved settlement between concerned
The judge shall put the parties and their parties based on public interest aspect in
counsels under oath, and they shall remain environmental cases and encourages the
under oath in all pre-trial conferences. parties to expedite the resolution of litigation.
The judge shall exert best efforts to persuade
the parties to arrive at a settlement of the PROHIBITED PLEADINGS AND MOTIONS
(SEC. 2, RULE 2)
d) Motion to declare the defendant in default;
a) Motion to dismiss the complaint; e) Reply and rejoinder; and
b) Motion for a bill of particulars; f) Third party complaint.
c) Motion for extension of time to file
pleadings, except to file answer, the
extension not to exceed fifteen (15) days;

Motion for postponement, motion for new trial The executive judge of the multiple sala court
and petition for relief from judgment shall only be before raffle or the presiding judge of a single-
allowed in certain conditions of highly meritorious sala court as the case may be, may issue ex
cases or to prevent a manifest miscarriage of parte a TEPO effective for only seventy-two (72)
justice. The satisfaction of these conditions is hours from date of the receipt of the TEPO by the
required since these motions are prone abuse party or person enjoined. Within said period, the
during litigation. court where the case is assigned, shall conduct a
summary hearing to determine whether the TEPO
Motion for intervention is permitted in order to may be extended until the termination of the
allow the public to participate in the filing and case.
prosecution of environmental cases, which are
imbued with public interest. The court handling the case shall periodically
monitor the existence of acts that are the subject
Petitions for certiorari are likewise permitted matter of the TEPO and may lift the same at any
since these raise fundamentally questions of time as circumstances may warrant.
jurisdiction.
An applicant is exempt from the posting of a
TEMPORARY ENVIRONMENTAL PROTECTION bond. While the TEPO may be issued ex parte,
ORDER (TEPO) this is more of the exception. The general rule on
the conduct of a hearing pursuant to due process
Temporary Environmental Protection Order remains.
(TEPO) - refers to an order issued by the court
directing or enjoining any person or government JUDGMENT AND EXECUTION (RULE 5)
agency to perform or desist from performing an
act in order to protect, preserve or rehabilitate Any judgment directing the performance of acts
the environment. for the protection, preservation or rehabilitation
of the environment shall be executory pending
The TEPO shall be issued it appears from the appeal UNLESS restrained by the appellate court.
verified complaint with a prayer for the issuance
of an Environmental Protection Order (EPO) that It may not be stayed by the posting of a bond and
the matter is of extreme urgency and the the sole remedy lies with the appellate court. The
applicant will suffer grave injustice and appellate court can issue a TRO to restrain the
irreparable injury. The applicant shall be execution of the judgment and should the
exempted from the posting of a bond for the appellate court act with grave abuse of discretion
issuance of a TEPO. in refusing to act on the application for a TRO, a
 203

petition for certiorari under Rule 65 can be

brought before the Supreme Court. STRATEGIC LAWSUIT AGAINST PUBLIC
PARTICIPATION (SLAPP) refers to an action
RELIEFS IN A CITIZENS SUIT whether civil, criminal or administrative, brought
against any person, institution or any government
Any Filipino citizen in representation of others, agency or local government unit or its officials
including minors or generations yet unborn, may and employees, with the intent to harass, vex,
file an action to enforce rights or obligations exert undue pressure or stifle any legal recourse
under environmental laws. that such person, institution or government
agency has taken or may take in the enforcement
If warranted, the court may grant to the plaintiff of environmental laws, protection of the
proper reliefs which shall include the protection, environment or assertion of environmental rights.
preservation or rehabilitation of the environment
and the payment of attorneys fees, costs of suit A legal action filed to harass, vex, exert undue
and other litigation expenses. It may also require pressure or stifle any legal recourse that any
the violator to submit a program of rehabilitation person, institution or the government has taken
or restoration of the environment, the costs of or may take in the enforcement of environmental
which shall be borne by the violator, or to laws, protection of the environment or assertion
contribute to a special trust fund for that purpose of environmental rights shall be treated as a
subject to the control of the court. SLAPP.

PERMANENT ENVIRONMENTAL In a case is a SLAPP the defendant may file an

PROTECTION ORDER answer interposing as a defense that the case is
a SLAPP. The hearing on the defense of a SLAPP
The court may convert the TEPO to a permanent shall be summary in nature. The party filing the
EPO or issue a writ of continuing mandamus action assailed as a SLAPP shall prove by
directing the performance of acts which shall be preponderance of evidence that the action is not
effective until the judgment is fully satisfied. a SLAPP and is a valid claim.

The court may, by itself or through the The defense of a SLAPP shall be resolved within
appropriate government agency, monitor the thirty (30) days after the summary hearing. If the
execution of the judgment and require the party court dismisses the action, the court may award
concerned to submit written reports on a damages, attorneys fees and costs of suit under
quarterly basis or sooner as may be necessary, a counterclaim if such has been filed. The
detailing the progress of the execution and dismissal shall be with prejudice. If the court
satisfaction of the judgment. The other party rejects the defense of a SLAPP, the evidence
may, at its option, submit its comments or adduced during the summary hearing shall be
observations on the execution of the judgment. treated as evidence of the parties on the merits
of the case. Since a motion to dismiss is a
prohibited pleading, SLAPP as an affirmative
WRIT OF CONTINUING MANDAMUS
defense should be raised in an answer along with
other defenses that may be raised in the case
CONTINUING MANDAMUS is a writ issued by a alleged to be a SLAPP.
court in an environmental case directing any
agency or instrumentality of the government or
SPECIAL PROCEDURE / PROCEEDING
officer thereof to perform an act or series of acts
decreed by final judgment which shall remain
effective until judgment is fully satisfied. WRIT OF KALIKASAN (WOK)

The concept of continuing mandamus was The writ is a extraordinary remedy available to a
originally enunciated in the case of Concerned natural or juridical person, entity authorized by
Residents of Manila Bay vs. MMDA, GR 171947- law, peoples organization, non-governmental
98, Dec. 18, 2008. The Rules now codify the Writ organization, or any public interest group
of Continuing Mandamus as one of the principal accredited by or registered with any government
remedies which may be availed of in agency, on behalf of persons whose constitutional
environmental cases. right to a balanced and healthful ecology is
violated, or threatened with violation by an
STRATEGIC LAWSUIT AGAINST PUBLIC unlawful act or omission of a public official or
PARTICIPATION employee, or private individual or entity,
 204

involving environmental damage of such environmental damage subject of the writ to be

magnitude as to prejudice the life, health or filed with the SC or CA. The applicant is exempted
property of inhabitants in two or more cities or from payment of docket fees.
provinces.
PROHIBITED PLEADINGS AND MOTIONS
Those who may file for this remedy must
represent the inhabitants prejudiced by the
f) Third-party complaint;
a) Motion to dismiss; g) Reply; and
b) Motion for extension of time to file return; h) Motion to declare respondent in default.
c) Motion for postponement;
d) Motion for a bill of particulars;
e) Counterclaim or cross-claim;
b) When any agency or instrumentality of
DISCOVERY MEASURES the government or officer thereof
unlawfully excludes another from the
A party may file a verified motion for the use or enjoyment of such right.
following reliefs:
a) Ocular Inspection - the court may order 2) REQUISITES CONTINUING MANDAMUS
any person in possession or control of a) There must be a clear legal right or
a designated land or other property to duty;
permit entry for the purpose of b) The act to be performed must be
inspecting or photographing the practical;
property or any relevant object or c) Respondent must be exercising a
operation thereon. ministerial duty;
b) Production or inspection of documents d) The duty or act to be performed must
or things - the court may order any be in connection with the enforcement
person in possession, custody or or violation of an environmental law,
control of any designated documents, rule or regulation or a right; and
papers, books, accounts, letters, e) There is no other plain, speedy, and
photographs, objects or tangible adequate remedy in the ordinary
things, or objects in digitized or course of law.
electronic form, which constitute or
contain evidence relevant to the
petition or the return, to produce and The petition shall be filed with the Regional Trial
permit their inspection, copying or Court exercising jurisdiction over the territory
photographing by or on behalf of the where the actionable neglect or omission
movant. occurred or with the Court of Appeals or the
Supreme Court. The petitioner shall be exempt
WRIT OF CONTINUING MANDAMUS from the payment of docket fees.

A writ issued by a court in an environmental case If warranted, the court shall grant the privilege of
directing any agency or instrumentality of the the writ of continuing mandamus requiring
government or officer thereof to perform an act respondent to perform an act or series of acts
or series of acts decreed by final judgment which until the judgment is fully satisfied and to grant
shall remain effective until judgment is fully such other reliefs as may be warranted resulting
satisfied. The petition shall contain a sworn from the wrongful or illegal acts of the
certification of non-forum shopping. respondent. Upon full satisfaction of the
judgment, a final return of the writ shall be made
1) GROUNDS FOR CONTINUING MANDAMUS to the court by the respondent. If the court finds
a) When any agency or instrumentality of that the judgment has been fully implemented,
the government or officer thereof the satisfaction of judgment shall be entered in
unlawfully neglects the performance of the court docket.
an act which the law specifically enjoins
as a duty resulting from an office, trust The issuance of a TEPO is made available as an
or station in connection with the auxillary remedy prior to the issuance of the writ
enforcement or violation of an itself. As a special civil action, the WoCMa may be
environmental law rule or regulation or availed of to compel the performance of an act
a right therein; specifically enjoined by law. Its availability as a
 205

special civil action likewise complements its role can only be filed with the SC or any station of the
as a final relief in environmental civil cases and in CA.
the WOK, where continuing mandamus may
likewise be issued should the facts merit such Discovery measures. The Rule on the WCM
relief. does not contain any provision for discovery
measures, unlike the Rule on WOK which
incorporates the procedural environmental right
WRIT OF CONTINUING MANDAMUS VS. of access to information through the use of
WRIT OF KALIKASAN discovery measures such as ocular inspection
order and production order.
Subject matter. WoCMa is directed against the
unlawful neglect in the performance of an act Damages for personal injury. The WCM allows
which the law specifically enjoins as a duty damages for the malicious neglect of the
resulting from an office, trust or station in performance of the legal duty of the respondent,
connection with the enforcement or violation of identical Rule 65. In contrast, no damages may
an environmental law rule or regulation or a right be awarded in a petition for the issuance of a
therein; or (a) the unlawful exclusion of another WOK consistent with the public interest character
from the use or enjoyment of such right and in of the petition. A party who avails of this petition
both instances, there is no other plain, speedy but who also wishes to be indemnified for injuries
and adequate remedy in the ordinary course of suffered may file another suit for the recovery of
law. A writ of kalikasan is available against damages since the Rule on WOK allows for the
unlawful act or omission of a public official or institution of separate actions.
employee, or private individual or entity,
involving environmental damage of such CRIMINAL PROCEDURE
magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or
provinces. In addition, magnitude of WHO MAY FILE
environmental damage is a condition sine qua
non in a petition for the issuance of a writ of Any offended party, peace officer or any public
kalikasan and must be contained in the verified officer charged with the enforcement of an
petition. environmental law.

Who may file. A writ of continuing mandamus INSTITUTION OF CRIMINAL AND CIVIL
is available to a broad range of persons such as ACTION
natural or juridical person, entity authorized by
law, peoples organization, NGO, or any public When a criminal action is instituted, the civil
interest group accredited by or registered with action for the recovery of civil liability arising
any government agency, on behalf of persons from the offense charged, shall be deemed
whose right to a balanced and healthful ecology instituted with the criminal action UNLESS the
is violated or threatened to be violated. complainant
a) waives the civil action
Respondent. The respondent in a petition for b) reserves the right to institute it separately
continuing mandamus is only the government or c) institutes the civil action prior to the
its officers, unlike in a petition for writ of criminal action.
kalikasan, where the respondent may be a private
individual or entity. Unless the civil action has been instituted
prior to the criminal action, the reservation of
Exemption from docket fees. The application the right to institute separately the civil action
for either petition is exempted from the payment shall be made during arraignment.
of docket fees.
ARREST WITHOUT WARRANT; WHEN VALID
Venue. A petition for the issuance of a writ of (SEC. 1, RULE 11)
continuing mandamus may be filed in the
following: (a) the RTC exercising jurisdiction over A peace officer or an individual deputized by the
the territory where the actionable neglect or proper government agency may, without a
omission occurred; (b) the CA; or (c) the SC. warrant, arrest a person:
Given the magnitude of the damage, the a) When, in his presence, the person to be
application for the issuance of a writ of kalikasan arrested has committed, is actually
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committing or is attempting to commit an paraphernalia, tools or instruments of the

offense; or crime were seized.
b) When an offense has just been committed, f) The proceeds shall be held in trust and
and he has probable cause to believe deposited with the government depository
based on personal knowledge of facts or bank for disposition according to the
circumstances that the person to be judgment.
arrested has committed it.
c) Individuals deputized by the proper BAIL
government agency who are enforcing
environmental laws shall enjoy the WHERE TO FILE
PRESUMPTION OF REGULARITY under Bail may be filed with the court where the
Section 3(m), Rule 131 of the Rules of case is pending, or in the absence or
Court when effecting arrests for violations unavailability of the judge thereof, with
of environmental laws. any regional trial judge, metropolitan trial
judge, municipal trial judge or municipal
PROCEDURE IN THE CUSTODY AND circuit trial judge in the province, city or
DISPOSITION OF SEIZED ITEMS municipality.
If the accused is arrested in a province,
Custody and disposition of seized items shall be city or municipality other than where the
in accordance with the applicable laws or rules case is pending, bail may also be filed with
promulgated by the concerned government any Regional Trial Court of said place, or if
agency. no judge thereof is available, with any
metropolitan trial judge, municipal trial
In the absence of applicable laws or rules judge or municipal circuit trial judge
promulgated by the concerned government therein.
agency, the following procedure shall be If the court grants bail, the court may
observed: issue a hold-departure order in
a) The apprehending officer having initial appropriate cases.
custody and control of the seized items,
equipment, paraphernalia, conveyances DUTIES OF THE COURT
and instruments shall physically inventory Before granting the application for bail, the judge
and whenever practicable, photograph the must read the information in a language known to
same in the presence of the person from and understood by the accused and require the
whom such items were seized. accused to sign a written undertaking, as follows:
b) Thereafter, the apprehending officer shall a) To appear before the court that issued the
submit to the issuing court the return of warrant of arrest for arraignment purposes
the search warrant within five (5) days on the date scheduled, and if the accused
from date of seizure or in case of fails to appear without justification on the
warrantless arrest, submit within five (5) date of arraignment, accused waives the
days from date of seizure, the inventory reading of the information and authorizes
report, compliance report, photographs, the court to enter a plea of not guilty on
representative samples and other behalf of the accused and to set the case
pertinent documents to the public for trial;
prosecutor for appropriate action. b) To appear whenever required by the court
c) Upon motion by any interested party, the where the case is pending; and
court may direct the auction sale of seized c) To waive the right of the accused to be
items, equipment, paraphernalia, tools or present at the trial, and upon failure of the
instruments of the crime. The court shall, accused to appear without justification
after hearing, fix the minimum bid price and despite due notice, the trial may
based on the recommendation of the proceed in absentia.
concerned government agency. The sheriff
shall conduct the auction. ARRAIGNMENT
d) The auction sale shall be with notice to the
accused, the person from whom the items The court shall set the arraignment of the
were seized, or the owner thereof and the accused within fifteen (15) days from the time it
concerned government agency. acquires jurisdiction over the accused, with notice
e) The notice of auction shall be posted in to the public prosecutor and offended party or
three conspicuous places in the city or concerned government agency that it will
municipality where the items, equipment,
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entertain plea-bargaining on the date of the stages of the proceeding up to

arraignment. promulgation of decision;
6) Require the parties to submit to the
PLEA-BARGAINING branch clerk of court the names,
addresses and contact numbers of
On the scheduled date of arraignment, the court witnesses that need to be summoned by
shall consider plea-bargaining arrangements. subpoena; and
Where the prosecution and offended party or 7) Consider modification of order of trial if
concerned government agency agree to the plea the accused admits the charge but
offered by the accused, the court shall: interposes a lawful defense.
1) Issue an order which contains the plea-
bargaining arrived at; AGREEMENTS OR ADMISSIONS - All
2) Proceed to receive evidence on the agreements or admissions made or entered
civil aspect of the case, if any; and during the pre-trial conference shall be reduced in
3) Render and promulgate judgment of writing and signed by the accused and counsel;
conviction, including the civil liability otherwise, they cannot be used against the
for damages. accused. The agreements covering the matters
referred to in Section 1, Rule 118 of the Rules of
Plea-bargaining is considered at arraignment Court shall be approved by the court.
in order to avoid the situation where an initial
plea is changed in the course of the trial in Record of proceedings. All proceedings during
view of a successful plea bargain. the pre-trial shall be recorded, the transcripts
prepared and the minutes signed by the parties
PRE-TRIAL or their counsels.

After the arraignment, the court shall set the PRE- PRE-TRIAL ORDER - The court shall issue a pre-
TRIAL CONFERENCE within thirty (30) days. It trial order within ten (10) days after the
may refer the case to the branch clerk of court, if termination of the pre-trial, setting forth the
warranted, for a preliminary conference to be set actions taken during the pre-trial conference, the
at least three (3) days prior to the pre-trial. facts stipulated, the admissions made, evidence
marked, the number of witnesses to be presented
DUTY OF THE JUDGE and the schedule of trial. The order shall bind the
1) Place the parties and their counsels under parties and control the course of action during
oath; the trial.
2) Adopt the minutes of the preliminary
conference as part of the pre-trial SUBSIDIARY LIABILITY
proceedings, confirm markings of exhibits In case of conviction of the accused and
or substituted photocopies and admissions subsidiary liability is allowed by law, the court
on the genuineness and due execution of may, by motion of the person entitled to recover
documents, and list object and testimonial under judgment, enforce such subsidiary liability
evidence; against a person or corporation subsidiarily liable
3) Scrutinize the information and the under Article 102 and Article 103 of the Revised
statements in the affidavits and other Penal Code.
documents which form part of the record
of the preliminary investigation together SLAPP IN CRIMINAL CASES
with other documents identified and
marked as exhibits to determine further Upon the filing of an information in court and
admissions of facts as to: before arraignment, the accused may file a
a. The courts territorial jurisdiction motion to dismiss on the ground that the criminal
relative to the offense(s) charged; action is a SLAPP.
b. Qualification of expert witnesses;
and The hearing on the defense of a SLAPP shall be
c. Amount of damages; summary in nature. The party seeking the
4) Define factual and legal issues; dismissal of the case must prove by substantial
5) Ask parties to agree on the specific trial evidence that his acts for the enforcement of
dates and adhere to the flow chart environmental law are a legitimate action for the
determined by the court which shall protection, preservation and rehabilitation of the
contain the time frames for the different environment. The party filing the action assailed
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as a SLAPP shall prove by preponderance of duty especially enjoined by law, are prima facie
evidence that the action is not a SLAPP. evidence of the facts therein stated.

The court shall grant the motion if the accused

establishes in the summary hearing that the
criminal case has been filed with intent to harass,
vex, exert undue pressure or stifle any legal
recourse that any person, institution or the
government has taken or may take in the
enforcement of environmental laws, protection of
the environment or assertion of environmental
rights. If the court denies the motion, the court
shall immediately proceed with the arraignment
of the accused.

EVIDENCE

PRECAUTIONARY PRINCIPLE

Precautionary principle states that when

human activities may lead to threats of serious
and irreversible damage to the environment that
is scientifically plausible but uncertain, actions
shall be taken to avoid or diminish that threat.

When there is a lack of full scientific certainty in

establishing a casual link between human activity
and environmental effect, the court shall apply
the precautionary principle in resolving the case
before it. The constitutional right of the people to
a balanced and healthful ecology shall be given
the benefit of the doubt.

In applying the precautionary principle, the

following factors, among others, may be
considered:
a) threats to human life or health;
b) inequity to present or future generations;
or
c) prejudice to the environment without legal
consideration of the environmental rights
of those affected.

DOCUMENTARY EVIDENCE

Photographic, video and similar evidence of

events, acts, transaction of wildlife, wildlife by-
products or derivatives, forest products or
mineral resources subject of a case shall be
admissible when authenticated by the person
who took the same, by some other person
present when said evidence was taken, or by any
other person competent to testify on the
accuracy thereof.

Entries in official records made in the

performance of his duty by a public officer of the
Philippines, or by a person in performance of a