Remedial Law Reviewer - Riano
Remedial Law Reviewer - Riano
Victory goes to those with homicidal instinct to succeed... the murderous mania to excel...
Dean W. Riano
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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CIVIL PROCEDURE
Rules 1 71
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;
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).
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
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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.
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
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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.
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
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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
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
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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
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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
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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.
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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 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
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
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
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.
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
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).
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
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.
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).
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
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
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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.
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
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.
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:
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.
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).
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
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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
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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
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.
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
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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
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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;
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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
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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)
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)
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
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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
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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
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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.
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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.
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(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
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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).
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
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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
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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.
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
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
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Mandamus can be issued to perform an act but not to approve a certain request
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
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.
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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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.
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.
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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.
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.
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.
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.
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
117
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.
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.
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
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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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
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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
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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.
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
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
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.
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
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;
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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
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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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
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
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.
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.
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.
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
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.
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.
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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,
153
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
155
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.
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;
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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.
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;
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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
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
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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
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.
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
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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.
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
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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);
174
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
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.
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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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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
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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.
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
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.
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;
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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
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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.
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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.
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
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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.
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.
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 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.
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
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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,
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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
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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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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.
EVIDENCE
PRECAUTIONARY PRINCIPLE
DOCUMENTARY EVIDENCE