Ateneo 2011 Remedial Law
Ateneo 2011 Remedial Law
TABLE OF CONTENTS:
1. CIVIL PROCEDURE
a. POST-JUDGMENT REMEDIES
b. PROVISIONAL REMEDIES
c. SPECIAL CIVIL ACTIONS
2. CRIMINAL PROCEDURE
3. EVIDENCE
4. SPECIAL PROCEEDINGS
5. ENVIRONMENTAL CASES
Jurisdiction
Definition – the same, as conferred by law, except you have to add that
1
Jurisdiction over the offense. This is essentially the same o Conferred by law as well.
as jurisdiction over subject matter. o Study BP 129, amended by RA 7691.
Jurisdiction over the person. This is jurisdiction over the person of Do not assume that RA 7691 tells all. There are other
the accused. laws too.
Filing fees are not necessary. Distinguish jurisdiction from venue:
o Jurisdiction is the power to hear and decide a case. Venue is
where the action is instituted and tried.
o Venue can be waived; jurisdiction, not.
What is the definition of jurisdiction?
o The power of the court to hear, try, or decide the case
Distinguish errors of jurisdiction from errors of judgment:
o As conferred by law
o When a court takes cognizance of a case over the subject
matter of which it has no jurisdiction, it commits an error of
How will the court know that it has jurisdiction? jurisdiction. It is reviewable by certiorari.
o From the allegations of the complaint. o When a court makes errors in the exercise of such jurisdiction,
o What if the defense interposes claims or defenses it is just an error of judgment, reviewable by appeal.
outside the jurisdiction of the court? What is the jurisdiction of the RTC?
It does not divest the court of its jurisdiction; o 1. Right/title/interest over real property, where value is:
otherwise, jurisdiction will be at the mercy of the Value is > 20K (OMM), > 50K (MM)
defense.
Claim for ejectment due to unpaid rentals of over
Where do you take jurisdiction over the case?
400K. Which has jurisdiction?
2
MTC. Ejectment is always under MTC, is always for recovery of money.
regardless of the claim over unpaid rentals.
Recovery of possession, not ejectment. Fair
market value of property is 1.5M. The assessed
value of the property is 80,000. Property is
located in MM. Which has jurisdiction?
RTC, based on assessed value (not FMV)
which is over 50K. “Recovery of possession”
does not necessarily mean ejectment (ex.
Accion publiciana).
Value is determined by assessed value if it
involves right, title, or interest
Ouano case?
There was discussion whether FMV or
assessed value dictates. Assessed value
wins.
o 2. Amount incapable of pecuniary estimation
Examples: rescission, reformation of contract, specific
performance
Is expropriation capable of pecuniary estimation?
Expropriation is always filed with the RTC.
Though the subject matter is capable of
pecuniary estimation, the action is
exclusively instituted in the RTC.
What about declaratory relief?
RTC always has jurisdiction, and the SC
does not except when there is an issue of
constitutionality.
There is no such thing as determination of
value; just a determination of validity.
What about support?
Even if its amount can be determined, the
law confers it to the Family Courts.
Foreclosure of mortgage?
Two views: one says that it‟s always with
the RTC, because it only covers the
security of the property. The original action
The other view is that it must be Considering that the MTC has jurisdiction over
governed by the value of the probate cases, at times, what if the value of the
security. estate is 100K? Can the probate of a will be
o 3. Family cases/marriage subject to summary procedure?
Includes support, annulment, nullity, etc. No. The rules on summary procedure
o 4. Juvenile/agrarian case explicitly exclude probate proceedings.
o 5. Other claims, where claim exceeds 300K Note that the MTC has a number of procedures.
(OMM) or 400K (MM) There are ordinary proceedings and summary
proceedings, and now, small claims.
The original text gives lower values.
When was it adjusted?
So the “not exceeding 100K (OMM) and not
exceeding 200K (MM)” only applies for
Original costs took effect March 25, summary proceedings. But it explicitly
1994 excluded probate proceedings.
1999 – adjusted OMM from 100K to What is the jurisdiction of the MTC over small
200K claims?
2004 – adjusted both MM and Not exceeding 100K.
OMM to 400K and 300K o 7. Admiralty cases – same amounts
respectively
o 8. All cases not within the exclusive jurisdiction of any court,
Always take note of the word “exceeding”
tribunal, person, or body exercising judicial or quasi-judicial
so the exact amount is for the lower court. functions
o 6. Probate of will, determination of inheritance – same
In determining the 300K/400K, can you include damages,
amounts
interest, attorney’s fees, litigation costs, etc?
o NO. Only limit the amount to the demand or the claim. The Contract of loan
“totality rule” only covers purely money claims, and does not Contract for services
include incidental claims.
o But remember that there can be a principal action for
Contract of sale
4. Affidavits of witnesses and other evidence 1. It is within the coverage of the small claims court,
exclusive of interests and costs
Is joinder allowed?
2. Arises from the same transaction or event as
Yes, as long as the aggregate amount
plaintiff‟s claim
doesn‟t exceed 100K
o What is the next step? 3. Does not require joinder of third parties
4. Not subject of another pending action
What if the defendant fails to raise such regards annulment of judgment of RTC
counterclaim? o Appellate: ordinary appeal (notice of appeal), petition for
review, over quasi-judicial bodies
It is barred.
o How will you address the problem where the claim is for
sum of money not exceeding 100K, and it is outside MM?
There is an overlap here between summary procedure and
small claims procedure. Which is preferred?
This is still open for discussion, and is not yet clear.
Sir suggests that the option is upon the complainant,
since there is concurrent jurisdiction of both small
claims court and court of summary procedure.
o How is the hearing conducted?
The judge first attempts to arrive at mediation,
conciliation, early neutral evaluation, or any mode of
JDR.
Failing that, the JDR judge also proceeds to hearing,
which must terminate within 1 day.
N.B. Sec. 21 of BP 129, as amended, provides that the RTC has
concurrent original jurisdiction for:
o 1. Certiorari, prohibition, mandamus, quo warranto, habeas
corpus, injunction, enforceable within respective regions
o 2. Actions affecting ambassadors, other public ministers, and
consuls
What is the MTC jurisdiction?
o Just the opposite of everything in RTC
o Then just add ejectment/unlawful detainer
o How do you know whether it’s ejectment/UD or claim over
real property or a title therein?
If the issue is just possession, it‟s E/UD. If it involves
rights of the parties to the property, then it‟s not.
What is the jurisdiction of the CA?
o It has both original and appellate jurisdiction.
o Original: habeas corpus, habeas data, certiorari, prohibition,
mandamus, quo warranto, writ of amparo, annulment of
judgment of RTC
N.B. Its original jurisdiction is exclusive as
What is the jurisdiction of the SC? case is death, RP, of life imprisonment.
o Also both original and appellate jurisdiction.
Jurisdiction over the person of the defendant:
prohibition, mandamus, quo warranto, writ of amparo, By submitting to the jurisdiction of the court; ex.
disciplinary actions over PLUS – Appearing in court or filing an answer or filing motion
for extension of time without disputing the court‟s
Actions against members of the Bar [concurrent
jurisdiction
with IBP];
o 2. Proper service of summons
actions against ambassadors, public
ministers, consuls, etc.;
Rule 14
This rule applies to money claims against an Can a court lose jurisdiction after acquiring it?
estate, but without judgment yet. Here, there o Generally, no.
already was a judgment in DC of Hawaii. o Exceptions:
o How do you impugn a judgment? 1. Subsequent law provides prohibition for
Lack of notice continued exercise of jurisdiction
Lack of jurisdiction 2. Law penalizing the act is repealed by a
Collusion subsequent law
Fraud 3. Accused deprived of constitutional right
4. Proceedings are terminated, abandoned, COMELEC:
declared void o When can the SC review COMELEC decisions?
5. Appeal has been perfected Only when there is GADALEJ
6. Curative law o Can the COMELEC issue writs of certiorari,
What is the principle of exercise of equity jurisdiction? prohibition, or mandamus?
When the court is called upon to decide a particular
situation and release the parties from correlative
obligations, but if it would result in adverse
consequences to the parties and the public, the court
would go beyond its powers to avoid negative
consequences in the release of the parties
CHR:
o Can it review court decisions?
No; separation of powers
o Can it issue injunctions?
No. Just fact finding and investigative.
What is the extent of the labor arbiter’s power on claims
for damages by employees?
o Action for damages incident to dismissal is part of LA‟s
powers.
o BUT NOT if the damages are based on quasi-delict not
arising from ER-EE relations.
What is the remedy for annulment of NHA awards?
o With the Office of the President.
o And then from there, Rule 65.
What are the cases under HLURB jurisdiction?
o 1. Claims of condo buyers against project owner,
developer, or dealer
o 2. Specific performance of contractual and statutory
obligations filed by condo buyers against same parties
o Does HLURB’s jurisdiction cover actions filed by
the project owner, developer, or dealer?
No. It‟s always the other way around.
No. o Temporary custody over children
What is the jurisdiction of Family Courts? o Support pendente lite
o 1. Criminal cases where one or more of the accused is What is the Katarungang Pambarangay Law?
below 18 or one or more of the victims was a minor o There must be settlement of disputes between
o 2. Petition for guardianship, custody of children, habeas individual residents of the same city or municipality,
corpus for custody of children through mediation, arbitration, or conciliation, before the
o 3. Adoption of children and revocation Katarungang Pambarangay. Compliance with this is a
condition precedent to filing a complaint or information
o 4. Annulment, nullity, and actions on status and
before the fiscal or court.
property relations of married people
o 5. Support and/or acknowledgement
What are the cases over which the lupon can take cognizance
of?
o 6. Summary judicial proceedings other the FC
o ALL cases between parties residing in the same
o 7. Declaration of status of children (abandoned, municipality or city.
dependent, neglected, etc.) and actions on parental o What is determinative, residence or postal address?
authority
o 8. Constitution of family home Residence, which is actual place which one
inhabits.
o 9. Cases against minors under the DDA
Must be more or less permanent, not
o 10. Violation of Child Abuse Act (RA 7610) merely transient.
o 11. VAWC cases But it need not be domicile or legal
What are the provisional remedies the Family Court can issue? residence; physical presence is controlling.
o Restraining order against accused or defendant if o X filed a case against Y, who lived in the same
there is finding of abuse barangay,
and Z, who didn’t. Is barangay conciliation needed?
No. At least one respondent lived elsewhere. Where are objections raised?
What are the exceptions to this rule? o For objections to referral to the lupon, raise before the punong
o [Nature of a party] barangay – else, waived
o 1. One party is the government or o Failure to refer to lupon may be raised as a ground for motion
any subdivision/instrumentality to dismiss – else, waived
o 2. One party is a public officer or employee and the dispute is
re: official functions
o 3. There is no private offended party
o 4. Complaint against juridical
entities o [Nature of complaint]
o 5. Offenses punishable by imprisonment of more than 1 year or
fine exceeding 1000 pesos
o 6. Labor disputes arising from ER-EE
o 7. Disputes arising from CARL
o 8. Action to annul judgment upon compromise
o [City/municipality requirement]
o 9. Dispute is re: real properties in different cities or
municipalities
Can be waived by the parties by consenting to submit
the case to the lupon first
o 10. Parties reside in barangays of different cities or
municipalities
Except where the barangays adjoin each other
and the parties consent to submit the case to the
lupon
o [Equity]
o 11. As determined by the President in the interest of justice, or
upon recommendation by the SOJ
o 12. Where urgent legal action is necessary to prevent injustice,
specifically:
A. criminal case where the accused is under
custody or detention
B. habeas corpus filed by one illegally detained
C. actions with provisional remedies
D. action may be barred by statute of limitations
What is the procedure before the lupon?
If it exceeds 6 months, then it can be enforced by
o 1. Pay filing fees and submit complaint action in the MTC.
o 2. Within the next day the lupon summons respondents
o Within what period may the settlement be repudiated?
and complainants for mediation 10 days, on the ground of vitiation of
o 3. Failure of mediation within 15 days from first
consent. Actions
meeting: constitute the pangkat
o 4. Pangkat has 15 days to resolve the dispute from when What are the kinds of actions?
it convenes, extendible for another 15 days
o Civil
o Who appears before the lupon or pangkat?
Protection or enforcement of a right, or prevention or
Just the parties, without counsel or representative,
redress of a wrong
except minors who may be assisted by next of Two types?
kin who are not lawyers
What is the form for settlement needed? Ordinary
o 1. In writing Special
o 2. In a language known to the parties o Criminal
o 3. Signed by them Once the information is in court, only then does it
o 4. Attested by lupon chairman become a criminal action, that has already been
prosecuted by the State through the prosecutor.
o When may it be executed by the lupon?
o Special proceedings
Within 6 months from date of settlement.
Establishes a right, status, or condition
When is a civil action commenced? No. Except: if the reliefs sought for are cognizable by
o Upon filing of original complaint in court. different tribunals. An example is an Ejectment suit
cannot include recovery for unpaid telephone, electric,
o For additional defendants later impleaded, on the date of
and water bills, which must be filed in a separate
filing of the later pleading.
action.
Are civil actions always based on a cause of action?
o No.
Distinguish ordinary civil action from special civil action?
o There is Cause of Action in ordinary civil action.
o Ex. Special Civil Action – like declaratory relief does not need
cause of action
Requisites of cause of action?
o 1. Right of one party
o 2. Obligation of the other to respect
o 3. Breach – MOST IMPT!
Distinguish cause of action from right of action:
o Right of action is the right to commence and prosecute
an action to obtain the relief sought. Elements:
1. Existence of cause of action
2. Performance of all conditions precedent to bring
the action
3. Right to bring an maintain the action must be held
by the person instituting it
What is the test of sufficiency of a complaint?
o Whether or not, admitting the facts alleged, the court can
render a valid judgment upon the same in accordance with
the prayer in the complaint
o Determined by the facts alleged, not defense alleged
What is splitting of a cause of action?
o Dividing one cause of action into different parts and making
each part a separate complaint
o Test: how many wrongs or breaches are there?
o Is splitting cause of action a ground for MTD?
No it is Res Judicata and Litis Pendentia
o Is the rule against splitting of causes of action absolute?
Can there be joinder of cause of action? is based on breach of shipping contract. In case it is void,
the alternative is to sue based on quasi-delict.
o Yes.
If you join cause of action should it arise from the same series of
o BUT it is not mandatory.
transactions, or can it be totally unrelated?
Does there have to be just one breach or numerous violations?
o Scenario 1: X versus Y (just two parties). Can join as many
o Numerous. causes of action, even if totally unrelated.
o For every cause of action, there is one breach. o Scenario 2: X versus ABCD (multiple defendants). Can only
o For as many breaches as there are, there are as many join the causes of action if it complies with the rule on
causes of action. PERMISSIVE JOINDER (series of actions arising from the
If there is a claim for sum of money, and several claims for same facts or law – Rule 3 Section 6)
damages (moral, exemplary, etc.) – are there multiple causes o Scenario 3: XYZ against A (multiple plaintiffs). Can only join
of action? the causes of action if it complies with the rule on
o No. Just one, because claims for damages are incidents of PERMISSIVE JOINDER (series of actions arising from the
the one breach (failure to pay). same facts or law – Rule 3 Section 6)
There are three promissory notes, with amounts of 50K, 100K, Can you join ordinary civil actions with special civil actions?
and 200K, and there is just one loan. There was failure to pay. o No.
How many causes of action do you have? Can you join two special civil actions?
o Three PNs, three causes of action. o No. Because they have their own special rules.
Can there be joinder of alternative causes of action? Can you join recovery of sum of money and ejectment?
o Yes. Example is shipping of goods. First cause of action
o No. Ejectment is summary proceeding, so it has its own rules. Is misjoinder of cause of action a ground for its dismissal?
What is the totality rule? o No, it will NOT cause dismissal of the principal action.
o When all of the claims are claims for sums of money, even if It is severed and these proceed with separately.
one claim falls under the jurisdiction of the MTC but the rest
may fall under the RTC, what controls is the sum of all claims.
o But you cannot do this when not all are for sums of money.
o When does the totality rule apply?
1. Single plaintiff with multiple causes of action
against the defendant
2. Multiple plaintiffs with separate causes of action
against the defendant join in a single complaint
o X’s claims against Y are both for claim of ownership for
real property: property 1 is assessed at 49K, and property
2 is assessed at 15K and both are in manila. Can X file in
the RTC?
No. While the total exceeds the 50K threshold in
Manila, neither property falls within RTC jurisdiction
so the action cannot be filed there.
There is a sum of money claim and recovery of property in Cavite.
Can you join the action in Cavite?
o Note: sum of money is determined by amount (personal).
Recovery of property is determined by location of the property
(real).
o N.B. as well that venue is not jurisdictional in civil cases, unlike
criminal cases. Note as well that venue is
waivable.
o Answer: Theoretically, you can join. But the other party is
expected to file a motion to dismiss on the ground of improper
venue. FOLLOW THE GENERAL RULE: The higher court
absorbs the claim (RTC > MTC).
What is the rule on jurisdiction over counterclaims?
o In the RTC, there is no limit to the counterclaim. In the MTC,
the counterclaim is limited to the jurisdiction of the inferior
court.
o What happens to the balance?
It‟s lost. So it‟s better to file a separate action in this
scenario.
10
Although there can only be separate proceeding The relief granted can only be limited to the res
when there is separate filing. because there is no jurisdiction to grant a personal
o The court is not duty-bound to proceed with it, especially judgment
when it appears that it has no jurisdiction. If the person appears, it becomes an action in
What is a special civil action? personam. If the person does not, jurisdiction is
limited to the property
o Covered by special rules.
What are personal and real actions?
Distinguish actions in rem, actions in personam, and
o 1. Real action is one affecting title to or recovery of possession
actions quasi-in-rem:
or partition, condemnation, or foreclosure of mortgage on real
o Action in rem is one instituted against the whole world. property
o Action in personam is one against a definite defendant. It o 2. Personal action covers all others
is intended to subject the interest of the defendant on a
Specific performance for delivery of real property is a
property to an obligation or lien.
personal action
o Action quasi-in-rem –
What are the tests to determine the nature of an action?
When jurisdiction over the person cannot be o 1. Ultimate objective test –
acquired (usually, non-residents) and instead,
jurisdiction over the res is acquired, although the
If the ultimate objective is to recover real property, it
is a real action
owner is still named as defendant, unlike true cases
in rem
o 2. Allegations and prayer test –
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What is a local action? o Natural persons
o One founded on privity of estates only and there is no privity of o Juridical persons
contracts o Those authorized by law
What is a transitory action? What is the general rule?
o One founded on privity of contracts between the parties
Atlantic Erectors:
o Collection for sum of money over construction project over
property. The plaintiff attempted to make an annotation of lis
pendens on the title of the property. HELD: You cannot do
this. This is an action in personam, not in rem, as regards the
property.
o A notice of lis pendens will only lie if it is a right, title, or
interest over real property. Outside of this, you cannot avail of
a notice of lis pendens.
Diaz:
o Rule 43, up to the CA. Attached duplicate of decision, but not
pleadings. This is enough for CA to give due course to the
petition.
PDIC:
o The main case is for declaratory relief (SCA). The question is
whether there can be execution of such (yes). There can also
be a counterclaim, even if declaratory relief is an SCA and the
counterclaim is an ordinary action.
Tolentino v. Natanauan:
o There is no res judicata between recovery of possession
and nullity of deed of sale.
o Requisites of res judicata?
A) Former judgment final
B) Court had jurisdiction
C) judgment on merits
D) Identity of parties, subject matter, causes of
action Parties
1
o All those with capacity can be a party. When can we say that a juridical person has capacity?
o For natural persons, that is the age of majority. o Duly incorporated and registered with the SEC.
Can a six year old boy be a party? [Mild segue into summons] If the defendant is a natural person, how
o Yes, but with assistance of parent, guardian, or guardian- do you serve summons?
ad- litem. o Priority is personal service. It must be served to the persons,
o A minor can sue, a minor can be sued if assisted. wherever he may be found. (Ex. The “James Yap” rule – they
tried serving it to him in Araneta)
What is the rule on married parties?
o If he cannot be found, substituted service to a a) person of
o Sue and sued jointly. sufficient age and discretion and b) residing therein. Either
o What are the exceptions? residence or office.
Judicial separation of property What is “sufficient age and discretion”? Recent
Abandonment ruling says age of majority.
Exclusive property of spouses
Should not be a transient. Must reside therein.
2
o Rule 14, Sec 11: president, managing partner, general generic term, so it can encompass any party impleaded, if he
manager, corporate secretary, treasurer, in-house counsel will benefit or be injured.
How do you serve summons to a foreign corporation? Does this concept of real party in interest apply to all cases?
o Resident agent – one named to receive summons
o Representatives and officers found in the Philippines (if it has a
branch, for instance)
What is a non-juridical entity? What is the rule? (Ex. Toro Boys)
o No separate juridical existence.
o They can be parties, as defendants, and named as such
(under the name under which they are generally and
commonly known).
o They CANNOT institute an action as a non-juridical entity.
They have to institute it individually.
How do you serve summons to a non-juridical entity?
o To anyone or person in charge of the office.
Who are those authorized by law? Give examples.
o Political parties
o Labor unions
o Archdiocese
o Estate
How do you serve summons?
o Depending on the entity – they have different rules.
Can you serve summons to a natural person in prison?
o Yes. Serve it to the warden.
For public corporations?
o Province – executive head (governor)
o City – city mayor
o Municipality – municipality mayor
Who is a real party in interest?
o A party who stands to be benefitted or prejudiced by the
judgment.
Does the concept extend even to defendants and third party
plaintiffs/defendants? What about an intervener?
o The law does not limit it to plaintiffs only – it uses “party” as a
o No. The concept of real party in interest will only apply o A) They are not indispensable, B) but ought to be joined if one
to private suits. needs complete determination of the case.
o Does it apply to a taxpayer suit? Who is an indispensable party?
No. Locus standi applies here. o If not impleaded, there can be no final determination.
o Does it apply to criminal cases? o N.B. The codal does not use the word “complete.” So they are
[Not answered, but I think not] compulsorily joined.
o What is the difference from legal standing/locus standi? What if there is a suit against joint debtors?
This is from public suit filed by a private party. o The other parties not sued are necessary parties.
There is a broader policy concern here, even if o Can you sue one of them only?
there can be benefit or injury as well. Yes. The court can issue a valid judgment,
o A Congressman does not believe in the act of the although not complete.
President, so he questions it as part of his o Can you then proceed against the other one, though not
legislative prerogative. Is he a RPII? impleaded at first?
No. Locus standi applies as well. Yes.
Thus, differentiate RPII from locus standi: What if there is a solidary obligation, not joint? Ex. X and Y
o Locus standi pertains to acts of government. By reason of solidarily owe Z PHP 100,000. Z sues.
this act, you suffered injury. o Neither necessary nor indispensable.
o You do NOT use legal standing in private suits. Only in o Can you sue X only?
public suits.
Yes.
Who is a necessary party?
o Can there be judgment? o What is the right of an individual party in interest?
Yes, because the obligation is joint and May intervene to protect his individual interest
several (solidary).
o Can you sue Y later on, having recovered from X?
No, because you recovered already.
o Can you sue at the same time?
Yes. The case can proceed against either, or both.
There is an action for recovery of title AND possession. X holds
title; Y has possession of the property. The action is just for
recovery of title. Can you sue X?
o Yes, because X is the proper party.
Same facts. Can you sue Y for recovery of title, without suing X?
o No. Y is a mere possessor. The court cannot render judgment
without impleading X. X is an indispensable party in this case.
What is the failure of failure to implead?
o If it is a necessary party, the general rule is that failure to
implead is non-prejudicial. There is no waiver of right to
implead.
BUT if there is an order to implead by the court and
there is failure to comply, there is a waiver of claim.
o If it is an indispensable party, the court should order that the
indispensable party be impleaded (Domingo).
If despite this order to implead, the plaintiff did not
comply, the case should be dismissed.
o What if the court did not notice non-joinder, and thus did
not order to implead the indispensable party, and
renders a decision?
The judgment is null and void.
What is a class suit?
o One where the subject matter of the controversy is of common
or general interest to many persons so numerous that it is
impracticable to join all as parties
o What is the rule?
The court will allow a number of them sufficiently
numerous and representative to fully protect the
interests of all to sue or defend on behalf of all
When is there substitution of parties in a civil case? There Give examples.
are three. Ex. Contract for Michael Jackson to sing in
o 1. Death a party.
Who should die? Ex. Receipt of a widow of support. When
she dies, the support from widower‟s estate
Any party. The law does not distinguish.
is gone.
This is the most common. What is the duty of the counsel after death?
o 2. Change of holder of public position (death, o 1. Give notice of death of the party within 30 days.
resignation, removal, cease to hold position)
When is the 30 day period counted?
This is a very limited application, since it just
applies to public officers.
From the FACT of death, and not from the
knowledge thereof.
o 3. Transfer of interest
o 2. Give names and addresses of the legal representatives
What are the requisites of substitution by death?
Who should be legal representatives?
o 1. A party dies
o 2. The pending action is not extinguished by reason of
Legal heirs, administrator, or executor
Venue
to practice, because the claimant still needs to file certain Yes, but it is not a strict and formal trial. You can only
documents he may not know how to execute] present the evidence attached to the claims.
o Is there a preliminary conference? o With particularity
None mentioned. As for mistake, how must it be alleged?
o Do the parties have to appear? o With particularity
Yes, or at least their representatives. Failure for the
plaintiff to appear leads to dismissal without prejudice
of the claim. Failure for the defendant to appear has
the same effect as not filing a response.
What happens after JDR?
o In a multi-sala court, the executive judge refers to the pairing
judge for hearing and decision within 5 working days from
referral
o In a single sala court: Pairing judge hears and decides the
case in the court of origin within 5 working days from referral
by JDR judge
Are there prohibited pleadings?
o Same as summary procedure
o Except in MTD, only lack of jurisdiction over the SM is the
exception.
o Why is failure to refer to the lupon not an exception?
Because the claim is below P100K (no barangay
conciliation required)
Can it be appealed?
o No. By express provision, it is final and executory.
o What then, is the remedy?
Rule 65 (petition for certiorari) – because there is no
plain, adequate, speedy remedy
Pleadings
o Arises out of the transaction constituting subject matter of Is there a period to answer a cross claim?
the action and does not require the presence of third o 10 days
parties of whom the court cannot acquired jurisdiction Do you need leave of court to file a counter or cross claim?
What is a permissive counterclaim? o No, whether it be a permissive/compulsory counterclaim or a
o Arising from an event unrelated. cross claim, no.
What is the period to answer a counterclaim? For a third party complaint, do you need leave of court?
o 10 days o Yes. You cannot just file a third party complaint.
o (In practice, you only answer a permissive counterclaim. o Who is usually the third party plaintiff?
In practice, a compulsory counterclaim is not answered.) The defendant in the main case, who feels that he
What is the remedy of the other party if the facts from which should file a complaint against someone that court
the counterclaim arises from only came about or ripened after has yet to acquire jurisdiction from.
the answer has been filed? This is the reason why there is need for leave of
o With leave of court, may be presented as a counterclaim court. You need to have the third party impleaded.
(or cross-claim) by supplemental pleading before judgment Why would you want a third party complaint?
What is a cross claim? To contribute or indemnify
20
o Classic case: car crash a hit b [Didn‟t answer]
hit If a lawyer changes his address, what is his duty?
c. C sued B. B sued A for
indemnification. o Inform the court. Failure to do so may lead to disciplinary
action.
Subrogation
What are the contents of the verification?
Any other similar ground
o What is the period to answer a third party complaint?
15 days, because it is treated as an entirely new
complaint
Based on “personal knowledge,” not “information Can the lawyer sign it?
and belief” or “knowledge, information and belief” o General rule, no. Unless there is some compelling reason.
Must it be under oath? o For example, the party‟s father is to be buried on the day of
o Yes. filing of the petition – the court allowed it.
Is it mandatory? o Also, the distance of the petition from the counsel (ex. the
o No. Only when the law requires you to verify. petitioner is in the USA and the counsel is in Manila, and there
are only 15 days to file.)
o Give examples:
Can a minor sign?
Rule 45 (Petition for review on certiorari)
o Must be assisted.
Rule 65 (Petition for certiorari)
Can a married person sign by himself or herself?
Rules 57-61 (Provisional remedies)
o One spouse is enough, but only if there is common interest.
Is it jurisdictional? (N.B. but see note below)
o No. Failure to attach is not fatal.
For co-owners or those in the same residence?
o But why do the SC and CA dismiss cases for failure
o Signature of one is enough if there is common interest. (N.B.
to attach verification?
but see note below)
Although it can be cured, the court may dismiss
2
TAKE NOTE: The key when it comes to multiple parties, all of them o 20. Rule 97 (petition to examine competency of a ward, for
have to sign. However, if there is a common interest among the parties, termination of guardianship)
a signature of a number of them may be enough. o 21. Rule 102 (application for writ of habeas corpus)
o BUT in practice, do not take chances. o 22. Rule 103 (change of name)
When is a verified pleading/motion needed?
o 1. Rule 24 (depositions pending action/depositions
pending appeal)
o 2. Rule 38 (petition for relief from judgment)
o 3. Rule 42 (petition for review: RTC to CA)
o 4. Rule 43 (appeal from quasi-judicial agency to CA)
Also: exemption from payment of lawful fees under
Rule 43
o 5. Rule 45 (petition for review on certiorari)
o 6. Rule 47 (annulment of judgment (CA))
o 7. Rule 58 (application for preliminary injunction)
o 8. Rule 59 (application for receivership)
o 9. Rule 61 (application for support pendente lite)
Also: comment on the application for support
pendente lite
o 10. Rule 64 (review of judgments/final orders of
COMELEC and COA)
o 11. Rule 65 (petition for certiorari, prohibition, or mandamus)
o 12. Rule 66 (quo warranto)
o 13. Rule 67 (expropriation)
o 14. Rule 70 (forcible entry and unlawful detainer)
N.B. covers all pleadings, including answer,
compulsory counterclaim, and cross-claim
o 15. Rule 71 (petition for indirect contempt)
o 16. ROP of envi cases, Part II: a) civil complaints, b) answer
o 17. ROP of envi cases, Part III: a) petition for writ of kalikasan,
b) return to writ of kalikasan, c) motion for ocular inspection
or production/inspection
o 18. Rule 93 (appointment of guardians)
o 19. Rule 95 (petition of guardian to sell or encumber property
of the ward)
o 23. Rule 108 (cancellation or correction of entries in in another court, tribunal, QJ agency
civil registry) o 2. If there is any other pending claim, provide status
o 24. Habeas data: a) petition for writ, b) written return o 3. If he learns about similar action, report fact within 5 days to
by respondent, c) return of service by officer executing the court
judgment Why does the law require that it is the party that signs?
o 25. Writ of amparo: a) petition, b) written return by
o Because it is only the party, and not even the lawyer, that
respondent,
knows whether there is another action.
c) motion for inspection, d) motion for production, e) For those with no separate juridical existence, who signs?
o 26. Rule 126 (Sec. 26: inventory of things seized
o All the parties, since there is no juridical personality.
under warrant)
CNFS:
What is the effect of absence of CNFS? (Note: non-compliance is
different from absence)
When is a CNFS required? o It will be dismissed. It can be re-filed because it is without
o For a complaint or other initiatory pleading prejudice.
o So a compulsory counterclaim does not require a CNFS Can it be amended to cure?
What about a juridical entity? Who can sign? o No, the defect cannot be cured by an amendment. Just re-file.
o [Anyone, as long as authorized by a board resolution] What is the effect of non-compliance? (Note: this occurs when there
What are the contents of the form? is a CNFS, but you did not respect your commitment under the CNFS)
o 1. Plaintiff/principal party shall certify under oath that he o 1. Dismissal of the case
has not filed a similar complaint involving the same issues o 2. Indirect contempt (Failure to comply with order or process of
court)
o 3. Administrative and criminal sanctions (since you lied dismissed the initial case. The second case was whether the
under oath) court approved the compromise agreement in the first
What if there is willful and deliberate forum shopping? place. These are different.
o (Meaning, it‟s not only false, but you also deliberately Sola
disregard r
it) o No need for a CNFS for a compulsory counterclaim
o 1. Dismiss the case with prejudice New Sampaguita
What kind of dismissal? o There was no forum shopping here, because the first case
Summary dismissal – cannot contest questioned whether there can be a writ of execution when the
o 2. Placed in direct contempt parties agreed to compromise in the first place, when the court
o 3. Administrative sanctions
BPI v. CA
o There was a CNFS filed in the first place. What was not
attached was the board resolution showing the authority of
the Vice President to sign the CNFS on behalf of the
company. This authorization was submitted on the MR.
o NOTE: There was a valid CNFS. There was liberal
interpretation of this provision for these reasons.
Donato
o Here, the lawyer signed the verification, not the party. This
was validly excused by the court since the party was in the US,
and could not sign the pleading in time given the 15 day
period. There was physical impossibility.
o BUT as a general rule, the lawyer cannot sign.
Young v. Seng
o There was no forum shopping, because the first case was
dismissed due to lack of cause of action. When a case is
dismissed because of that, it is without prejudice, and
that party can file the same case again.
o Failure to disclose this fact is not a violation of the CNFS.
OSM Shipping
o Requires a duplicate original or CTC for the decision being
appealed (here, NLRC decision) and not the prior one (Labor
Arbiter in this case)
Tan v. Kaakbay
o Is the rule on personal service mandatory? criminal cases.
Yes. The rule is priority is by personal service. If For civil cases, amendment may either be:
you cannot do it by personal service, you can do o 1) As a matter of right
it by registered mail, but you have to make an o 2) With leave of court
explanation.
When is it a matter right?
o In this case, it was made by registered mail and there was
o Before an answer or within 10 days of service of reply (if the
no explanation. For this reason, the decision of the court to
reply is the one being amended)
allow it was based on its reasonable discretion. BUT this is
not the rule. o What do you need to file?
Default
o 1. Can render judgment
No need to present evidence ex parte anymore in this
case.
N.B. 1: What is the rule on objections? What are the requisites to declare the other party in default?
o General rule: all objections on grounds not raised in an
o 1. Did not file answer
answer or motion to dismiss are deemed waived.
o 2. There is proof of such failure
o What are the exceptions?
You have to show the return
1. Lack of jurisdiction over SM
2. Res judicata
3. Litis pendentia
4. Prescription
o What is the fifth exception provided by jurisprudence?
5. Lack or absence of cause of action
This is different from Rule 16 (that the
pleading states no cause of action)
N.B. 2: What is the rule on failure to allege a counterclaim?
o Any compulsory counterclaim or cross claim not set-up:
barred forever
o In special proceedings – a claim against the estate must
be made in the period provided for in the notice.
Otherwise it will be forever barred. What is the exception?
If there was a suit started by the estate against you,
the claim can be raised as a counterclaim.
N.B. 3: How many kinds of default do we have?
o 1. In actions in rem, there is a general order of default.
There are no defendants, so notice is made to the
public that all oppositors have to come forward
and object. Otherwise, forever barred.
o 2. Failure to attend during pre-trial
Called “as in default” in the 1964 Rules of Court
If the defendant fails to attend, the plaintiff can
present evidence ex parte
o 3. Failure to file answer
What is the extent of relief that can be awarded o 2) It has to be under oath
by the court? o 3) State that you have a meritorious defense, without
Not exceed the kind or amount from necessarily giving an answer
that prayed for o What kind of fraud is needed?
Cannot award unliquidated damages Extrinsic fraud.
N.B. This is a new provision introduced only in o Is the fraud needed here the same fraud needed for motion
the 1997 Rules of Civil Procedure. This has not for new trial, petition for relief from judgment, and motion
been asked in the Bar examination yet. So be for annulment of judgment?
careful. YES. For all of these, you need extrinsic fraud.
o 2. Can require submission of evidence How do you set aside an order of “as in default” [or allowance
Can delegate this to the clerk of court for plaintiff to present evidence ex parte for the plaintiff]?
How can you set aside an order of default? o Saguid: Remedy is to file an MR or relief from order of default
o 1) File a motion on any of these grounds: also on the ground of FAME
1. Fraud
o Do you have to add that you have a meritorious defense?
2. Accident No need. You‟re already in pre-trial.
o When it is a dismissal without prejudice, appeal is not a When you file for a BOP, what do you want to achieve?
remedy. Your remedy is to re-file a case or file for a petition o A more definite statement of facts that appear in the complaint
for certiorari. that are not averred with sufficient particularity
o Amendment to conform to evidence – What if it was not o You are to identify the defects and the details desired.
allowed, but the evidence was proven, can there be a Can you file a motion for BOP after an answer has been filed?
valid judgment based on that evidence?
o No more, because issues have already been joined.
Yes. It is valid, even if it is not consistent with
What is the effect of filing a motion for BOP on the period?
o The period is interrupted upon filing, but you always have at o But there can be service by ordinary mail.
least five days to file the answer after. What are the requirements for personal and registered mail?
Deadline to file an answer is in 15 days. You received the o PERSONAL: Stamped, dated, and signed by the clerk of court.
complaint December 1. You filed a motion on December 5. How
many days do you have?
o TW ELVE, no t e le ve n. You don ’t c ou nt the da y c
a us in g the interruption. [VERY IMPT]
o This is the same way you count a motion to dismiss.
[Same facts] If you filed a motion for bill of particulars on
December 14, the motion is interrupted. How many days do you
have?
o You still have Five days.
What can the court do?
o 1. Grant motion
o 2. Deny it
o 3. Allow the parties to be heard
What if the court grants the BOP?
o The party directed to do so must comply within 10 days
What action can the court take on a BOP if you fail to comply?
o 1. Motion to strike out
o 2. The case can be dismissed (Virata v. SB) – Rule 17, Sec 3:
non-compliance with court order
What if the person fails to file an answer in the time left?
o Will be declared in
Filing
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How much time does the defendant have 4. Substituted service, if there is impossibility
to answer the complaint? and there are earnest efforts to serve.
Reasonable time determined by court, What is required for Sections 14, 15, and 16?
which must not be less than 60 days from o Must ask for leave of court, through motion in writing,
notice supported by affidavits setting for the grounds, to allow for
o Section 16: Temporarily absent from the Philippines such service of summons
Can he be a resident of the Philippines? o What if the leave is granted?
Yes. But he‟s just temporarily absent. Can serve summons through publication, etc.
What is the length of time needed here? Court specifies a reasonable time (not less than 60
None provided days) for defendant to answer
What is the purpose of summons?
How do you do serve summons?
o So the court can peg a date when it acquired jurisdiction over
1. Personal service outside the Philippines the person.
2. Publication AND service by What is the proof of service of summons?
registered mail in his last known address
o Sheriff‟s return.
o N.B. Both must concur. Take
note of this.
What is the proof of service by publication?
30
o 3. Affidavit showing deposit of copy of summons and order for o It seeks relief, but not a pleading.
publication in the post office – directed to be sent by registered o It does not raise a claim, nor does it raise defenses in an
mail to last known address (if applicable) answer.
What is the rule on voluntary appearance?
o It is not equivalent to summons, but if there is voluntary
appearance, summons can be dispensed with.
What is the rule on Motions to Dismiss?
o If you file a Motion to Dismiss, even if you join other grounds
other than lack of jurisdiction, you are not deemed to have
submitted to the jurisdiction of the court.
o Old rule: you have to separate the MTD based on lack
of jurisdiction.
Maximo v. Montalban:
o In this case, his residence is known and he is just
temporarily absent. So substituted service is not proper.
Samarino v. Ralu:
o Here, the sheriff did not prove that facts and circumstances
that would allow substituted service (repeated failure to
personally serve, etc.) – it must be shown in the sheriff‟s return
Ancheta:
o There are only a few remedies when the judgment is already
final and executory. Here, the petitioner filed a petition to
annul the judgment based on lack of jurisdiction over the
person (because “lack of jurisdiction” is used, it can cover both
lack of jurisdiction over both SM and the person).
Gomez v. CA:
o Does it mean that if you are talking about an in rem action you
can venture on trying to serve it personally?
You can still do personal service, in case you find
him somewhere in the Philippines by chance.
o Section 14 before limits itself to in rem or quasi in rem. It now
extends likewise to actions in personam.
Motions
What is a motion?
1
o Does a motion to dismiss take the nature of an answer? Ex. you file it December 6. The last date you can
No, because it will not lead to a joinder of issues set the hearing for is December 16.
What does EVERY motion need to have?
o Understand this along with the three day rule.
o A notice of hearing.
What is the Omnibus Motion rule?
o Directed to whom?
o Include all grounds available; or else, it is deemed waived.
o What are these exceptions?
To parties.
But also give notice to the clerk of court (even if
1. Lack of subject matter jurisdiction
2
What are the kinds of dismissal in Civil Procedure? 4. Identity of parties, SM, cause of action
o 1. There is a motion to dismiss in Rule 16, prompted by o 7. Litis pendentia
defendant. – MOST COMMON Same as RJ, but without final judgment yet
o 2. But there is also a motion to dismiss in Rule 17, filed by o 8. Prescription
the very same plaintiff who filed. o 9. Failure to comply with condition precedent
Rule 17 also covers failure to prosecute, which
Ex. Failure to refer to Katarungang pambarangay
is another form of motion to dismiss.
o 3. Demurrer to evidence
What are the grounds in Rule 16?
o 1. Lack of J over the SM
How do you determine subject matter
jurisdiction?
It is the law that confers the right to hear, try,
and decide a case
The most common source is RA 7691
amending BP 129
o 2. Lack of J over the defendant
Look again into proper service of summons
Or voluntary appearance
o 3. Improper venue
Fall back to Rule 4, or special rule under law
o 4. No legal capacity to sue
Minor – age of majority
Corporation – must be duly registered with SEC
Attorney in fact – look into scope of authority
o 5. Pleading Asserting the Claim States no COA (PACS-COA)
Does not go into the falsity or truthfulness of the claim
The pleading does not appear to state a COA
o 6. Res judicata
What are the elements?
1. Final judgment
2. J over SM and person
3. Judgment on merits
Is this waivable? When can you file a MTD?
o YES. Because it is not o Within the reglementary period. Fifteen days.
jurisdictional. How do you count a period?
Ex. Earnest efforts to compromise o Just remember the rule on interruption. [Read up Bill of
Ex. Exhaustion of administrative remedies Particulars portion – same rule for counting here, including the
Does this fall under this ground? 5 day buffer]
o Some commentators say yes. There was MTD filed on basis of lack of J over the defendant. The
But some say failure to exhaust court, instead of dismissing the action, dismissing the MTD, or
must fall under PACS-COA ordering amendment of the complaint, filed alias summons. Is this
o 10. PWEA (Payment, waiver, extinguishment, or grave abuse of discretion?
abandonment) o There was none. Instead of dismissing the case and waiting
o 11. Unenforceable under Statute of Frauds for re-filing, the court issued alias summons which will
produce the same effect.
Of all these grounds, if the court dismisses, can it be re-filed?
Preliminary hearing of the affirmative defenses. What is this?
o ALL
o You can file an answer, and the court has discretion to hold
o Except – [F,H,I]
preliminary hearing of your affirmative defenses and use it to
1. Prescription dismiss the complaint. Thus, an answer can be treated as a
2. Unenforceable under Statute of Frauds MTD.
3. Res judicata This is a new feature of the 1997 Rules of Court. This
4. Extinguish of claim or demand (PWEA) has never been asked in the Bar.
o What is the reason for this new rule? dismiss or remand it. There is no hard and fast rule.
Note: a MTD is not a prohibited pleading, but when it
Dismissal of Actions
issues summons, the court persuades parties not
to file an MTD, but to file an answer with an
affirmative defense.
o Why such court attitude?
Because issues will be joined, and pre-trial sets
in where parties can compromise.
o What is the difference between filing a MTD and an
answer?
There is no preliminary hearing of defenses in a MTD.
Obviously, in an MTD, the motion itself will be heard
anyway and that is where the grounds will be
proved. In an answer, the court can prioritize the
grounds to dismiss the case, which is why the
preliminary hearing is needed.
What actions are available to the court?
o 1. Dismiss action or claim
o 2. Deny the motion
o 3. Order amendment of the pleading
o Can the court defer resolving the motion because the
ground is not indubitable?
No, it cannot.
If the court mistakenly denies your MTD, what is your remedy?
o Petition for certiorari on Rule 65 based on GADALEJ.
o Does this petition for certiorari suspend the main
proceedings?
No. Even if there is a pending petition for certiorari,
the main proceedings will not be suspended
unless you obtain a TRO.
o The Eternal Gardens rule, which has been repeatedly
abused, invoking judicial courtesy here, does not apply
anymore.
o Can the Court of Appeals dismiss the case if it feels
the RTC committed GADALEJ? Or should it only remand?
The court, subject to its discretion, can either
What are the ways by which a plaintiff can dismiss a case? Yes.
o Filing a notice of dismissal any time before the answer is o What is the option of the counterclaimant?
served (or before his motion for summary judgment, if Within 15 days, the party would have to manifest
applicable). Dismissal is a matter of right. its willingness to prosecute it in the same action;
o What happens to the counterclaim? otherwise it will be prosecuted in a separate action.
There is no counterclaim yet, because there is When is there dismissal due to the fault of the plaintiff?
no answer. o 1. Plaintiff fails to appear on the date of presentation of his
o Can this case be re-filed? evidence in chief without just cause
Yes. o 2. Failure to prosecute his action for an unreasonable length of
o What is the exception? time
Dismissed a second time under this section. o 3. Failure to comply with the ROC or any order of the court
What if there is already an answer? – See Pingga case o How is the dismissal under this section done?
o File a motion for dismissal. 1. Upon motion of the defendant
o What happens to the counterclaim, if there is? 2. Upon court‟s own discretion
It does not get dismissed. Pingga limits the o How does this affect counterclaims?
dismissal to the complaint, not the counterclaim. Same; it can be prosecuted by the defendant in the
This abandoned BA Finance rule. same or separate action.
o Does this rule cover both permissive and o What is the effect of dismissal under this section?
compulsory
It is an adjudication upon the merits (thus with
counterclaim?
prejudice)
Pre-trial o The Judge with all “tact, patience, and impartiality,” endeavor
to arrive at a settlement of the dispute
When is pre-trial conducted? Confers with each party as to what is acceptable as a
o Rule 18 Sec 1 does not say, it just says that the ex parte compromise at the present stage
motion by the plaintiff to move the case for pre-trial must be
done “promptly”
o BUT the 2004 guidelines say it must be within 5 days after
the last pleading has been filed
What if the plaintiff fails to move for pre-trial?
o The 1997 rules are silent. Before, dismissal was the
consequence, for failure to comply with Rules of Court. But
this is not the consequence anymore, because of the 2004
rules, which gives a specific outcome.
o 2004 rules: DUTY OF THE CLERK OF COURT to move
for pre-trial.
Before actual pre-trial, a few days before, what happens?
o Preliminary conference before the clerk of court. It will be
recorded and will form part of the pre-trial record.
o They explore possibility of compromise, etc.
o This is almost like a mini pre-trial.
Expect two dates in one notice –
o One setting the preliminary conference
o One setting the pre-trial itself
On the first day of pre-trial – what is the order of the day?
o The court issues an order referring the case to a court-
annexed mediator. Forward the records to him.
o You have to pay fees for a mediator.
o For the time-being, the pre-trial proceedings are suspended.
o What is the period for suspension?
30-60 days.
But in the same order, the court will say that if within
this period, there is no compromise, there will be
resumption of pre-trial on a later day.
What if there is inability to compromise?
o Records returned to court. The court will resume pre-trial.
Judge talks to parties and their counsel separately What is the effect of failure to pre-mark?
Judge talks to only parties You can no longer present the evidence if
What do you need to submit at pre-trial? you failed to pre-mark it.
o Pre-trial brief. Unless the court allows you in the interest
o What if you fail to submit a PTB? of justice, or if newly discovered.
o What if you fail to name the witness in court?
Same effect as if you didn‟t appear at pre-trial.
You cannot present the witness anymore.
Request for admissions: Rule 129 Section 4 – Judicial Notice:
What are the other contents of the brief that you may put?
o No need for introduction of evidence
o Referral to Commissioners
o You want an admission to abbreviate the proceedings
o Explore possibility of compromise
o You are submitting just proposals. If accepted by the
other party, it becomes an admission.
o Possibility of judgment on pleadings or summary judgment
Intervention
Subpoena
Types of subpoena?
o 1. Ad testificandum: appear and testify
o 2. Duces tecum: appear and bring with him the documents or
things
N.B. He must appear too. Cannot just mail or send.
Who can issue a subpoena?
o 1. Court where witness must attend
o 2. Court where deposition is taken
o 3. Officer/body conducting investigation
o 4. Any justice of CA/SC in any case/investigation pending
o Can the OMB issue a subpoena?
Yes.
o Can the office of the prosecutor issue?
Yes.
Is the receipt of a subpoena by a respondent in a case filed before
the office of the prosecutor necessary for the office to acquire
jurisdiction over the respondent?
o No. It is totally irrelevant. Preliminary investigation before the
o There is an express provision in Rule 112(D) that says 1. Unreasonable and oppressive
failure to receive the subpoena will not bar the prosecutor 2. Relevancy of the books, documents, etc. does not
from issuing a resolution. It is not imperative. appear
Can a regular court judge subpoena a convicted person? 3. Failure to tender the costs of production
o Yes, but the judge examines if it is for a valid purpose 4. Kilometrage/witness fees
o For those under death/RP/Life and confined: must 5. Failure to describe with particularity N.B. not
be authorized by the SC to appear under subpoena in the rules
Heart of the rule on subpoena is in Section 4 (Quashing a subpoena) Can the clerk of court issue a subpoena in the absence of a judicial
o How do you quash a subpoena ad testificandum? action? (Note, this is not referring to investigation by a quasi-
1. Witness is not bound thereby judicial body.)
What is an example of this? o No.
o If the witness is not qualified. What are the consequences of failure to comply with the
subpoena?
Ex the witness is the spouse of
the person he/she is testifying o 1. Arrest
against Witness pays for the costs of arrest if failure is without
2. Witness fees and kilometrage allowed by the just cause
Rules were not tendered o 2. Contempt, if without just cause
Witness must live within 100 KM of the o To whom do these provisions not apply to?
place where hearing is conducted 1. Those who reside beyond 100KM from place where
o How do you quash a subpoena duces tecum? he is to testify
2. Detention prisoner where no permission of o What are the exceptions?
court was obtained
40
Yes; necessary to exempt it from the hearsay rule. Re-cross?
Re: irregularities on taking of deposition. What is the general o Within 3 days
rule on errors/irregularities on taking depositions? When is the period to object?
o General rule is that it is waivable o The same as the period to file the responsive pleading.
o What is the exception?
Can you take deposition even after pre-trial?
Relevance or competency of evidence failure o Yes.
to object is not a waiver
o Do you need to reserve?
Unless a timely objection could have obviated
the defect
No need, even if you do not reserve it during pre-trial.
(Jonathan Landoil)
How are written interrogatories different from oral deposition?
o The questions are in written form instead, instead of What are the consequences for non-compliance with order for
personally appearing. deposition? Can it be dismissed?
o This is usually the most relied upon form of deposition since o Yes, the court can dismiss. There can even be a judgment by
it saves time and costs, and especially if the issue to be default
discovered is not very contentious o However, in the old case of Arellano, the court dismissed the
When are cross-interrogatories submitted? case due to refusal to be subjected to deposition. But the SC
said it was wrong. In this case though, the matter subject to
o Within 10 days
deposition is an incidental matter only, not the main issue of
Re-direct? the case.
o Within 5 days o Bottom line: it IS a possible result, but fall back on materiality
of the matter
40
Depositions before action or pending appeal o Cannot be used. Must be the same party, or one represented
during the deposition taking. The general rule should apply.
If there is no pending case can you take a deposition?
o No. You file a case for the perpetuation of a testimony When could you apply for deposition pending appeal?
o So you file a case for the purpose of perpetuating a testimony
What is the special rule on venue here?
o Place where the expected adverse party resides
Ex. Ms. Bolong and Ms. Tan are fighting over a guy. Ms. Bolong is
expecting that Ms. Tan will file an action against her for malicious
mischief. Mr. Tuazon knows the truth, so Ms. Bolong is going to take
his deposition and file a verified petition in the court of the place where
Ms. Tan resides.
What are the contents of the petition?
o 1. That the petitioner expects to be a party to an action in a
court in the Philippines but is presently unable to bring it
o 2. Subject matter of expected action and his interest therein
o 3. Facts he wants to establish by the proposed testimony and
reasons for such
o 4. Names/description of expected adverse parties
and addresses if known
o 5. Names and addresses of persons to be examined and
substance of testimony expected
o What is the relief sought?
Ask for order authorizing petitioner to take
depositions of these persons
What is the requirement for notice and service?
o Petitioner serves notice upon each expected adverse party
o At least 20 days before hearing, court causes notice to be
served on:
1. Parties
2. Prospective deponents
For which can it be used?
o It can be used in any action involving the same subject matter
What if it involves the same subject matter but different parties –
but not impleaded?
1
o Before judgment becomes final o 15 days to file answers
Where filed? When must objections be filed?
o In the court where judgment was rendered o Objections must be filed within 10 days
o The taking is different from the use, again. So it can be o N.B. Fresh period applies (according to some opinions)
taken in the RTC but used in the CA. What objections may be made?
There is a pending case for certiorari, can you take a o 1. Irrelevant
deposition pending appeal?
o 2. Meant to harass
o No, certiorari is not an o 3. Not within knowledge, hearsay
appeal Interrogatories to parties What is consequence of failure to file written interrogatories to
parties?
What is the nature of interrogatories to parties? o Failure to serve and file can‟t call adverse party as witness
o Served only by parties to parties o Party not served with written interrogatories may not be
o Generally only one set, unless allowed by court (sec. 4) compelled by the adverse party to give testimony in open court
How are interrogatories to parties served? or to give deposition pending appeal
o Serve on adverse party and file in court What is the scope and use of these interrogatories?
o Serve on party, not on counsel; but counsel may answer o May relate to any matter under Rule 23 Sec. 2 for same use in
Rule 23 Sec. 4
How are answers served?
What is the effect of failure to answer?
o Answers are served on party submitting and filed in court
o Case may be dismissed if material
o Written, subscribed and sworn to under oath
2
o Or judgment by default o 2. Or truth of any material and relevant matter
How do you initiate it?
Distinguish Rules 23 and 25:
o File it in court and serve it to the other party
o Rule 23 – Party or a witness, or any person for that matter
When?
o Rule 25 – Interrogatories to PARTIES. Always to parties.
o After issues have been joined
How must the questions be answered?
The admission must be directed to whom?
o Rule 23 – there is direct, cross, re-direct, and re-cross
o The adverse party (Not the counsel – it must be served to the
o Rule 25 – Just one set of questions to be answered by the
other party) (Duque)
other party
o But the party‟s counsel may answer (Larada)
Re: time to answer
What is the effect of failure to answer or reply to a request for
o Rule 23 – no fixed time to answer, because what dictates the
admission?
period is the officer (since they have to appear before the
officer)
o It is deemed admitted.
Segue: can you call the adverse party to the witness stand?
What can the party also do in this period?
o YES! In general, YES. The answer is in Rule 132, Sec. 12 Can submit an objection
o It is different if you call on the witness the accused himself (in a What happens to the period?
criminal case) It suspends the fifteen days
What if the objection is denied, what happens to
Request for admission
the period?
The court sometimes gives extra 10 days, 5
days, etc. So it‟s really within its discretion.
What is a request for admission? asked that the first party prepare a new list to submit
o 1. Requesting to the other party that he admit the genuineness to the court within X days. Instead of submitting it to
of any material/relevant document court, the first party submitted a request for admission
What else do you need to do? to the other party. Instead of answering, the second
party kept quiet. HELD: It was an implied admission.
Attach the document so it can be examined
Does an admission cover the contents of the
document?
No, just the genuineness – so you do not
have to prove it exists and it is genuine
The contents can be up for contentions
Case: There was a pre-trial. One party submitted a
list of equipment, and wanted the other party to
accept it. The other party said it was incomplete, and
Who will suffer the cost? o This is very important although a lot of judges or litigants fail to
o The other party who refused to admit, if it is eventually take advantage of this or recognize this.
proven to be genuine or true o But this is still subject to the court‟s discretion.
o But in the meantime, advanced by the party requesting What do you attack in requests for admission? Ultimate facts or
What is the effect if you fail to ask the party to admit certain evidentiary matters?
material facts, which you could have asked and ought to be o As a matter of advice, attack the evidentiary matters.
within the personal knowledge of the latter? o Evidentiary matters are harder to deny (Ex. “Is it true that the
o You cannot present evidence on such facts. day before you were caught beating the red light and your
license was already confiscated for a prior violation?”)
There are four ways to respond to respond the request for written o No. Rule 27 is not as free as the other rules – see Solidbank
admission:
o 1. Specifically deny written admissions
o 2. Not do anything
o 3. Admit
o 4. State why he cannot truthfully admit or deny for lack of
knowledge
N.B. A denial for want of knowledge if the fact is so
plainly and necessarily within the defendant‟s
knowledge, his alleged ignorance or lack of
information will not be considered as a specific denial
Can you use an admission made in one case for another case?
o No. It can only be used for that case and for that purpose
alone.
o If it’s the same case, but for a different purpose?
It‟s actually hard to say because admissions are
not stated for a particular purpose.
Atty. Melo: So it‟s safe to say that once admitted,
it usually be used in that same case.
When an admission is made, is there any way for it to be
retracted?
o The party making the admission can withdraw or amend
o Must have “good reason.” So this is discretionary upon
the court.
o 2. POD: you have to file a motion and provide good cause. Tanda v. Aldaya:
Since this is a mode of discovery, you still don‟t have o Motion to produce must be for inspection, photocopying, etc.
particular documents in mind, though you still have to
o The document cannot be left with the court for distraint, as one o That examining party can now also ask for previous or
party here wanted to leave them with the clerk of court. subsequent examination on the same matters of the examined
Is production required for presentation of secondary evidence? party
o Yes, apart from a mode of discovery, it can be a preparatory o It must refer to the same condition. So if the examination was
act to present secondary evidence. If you require production on the other party‟s head for mental examination, she can only
and the other party refuses or says it is lost, then you can ask for similar reports on the mental condition of that party.
produce secondary evidence. What if the examined party refuses?
o But there is need for request to produce o The court may make an order for delivery of the report
o So if you get a request to produce but it is targeted to a o If there is refusal or failure to do so, and if by chance, that
specific document, most likely it is for secondary evidence examined party‟s physicians were allowed to testify, their
You applied for production of books/papers/documents, and you testimonies can be excluded.
are allowed to examine. Are you bound to present it as your What is the effect of the requested party requesting for a copy of
evidence? the report made or taking the deposition of the examining
o No, you‟re not required. It is a mode of discovery – a way of physician?
discovering evidence. If you like what you see, you still have o He waives any privilege in that action or another action
to go through the process of presenting it in court. involving the same controversy, as regards testimony of
N.B. Under 2004 guidelines, it is the duty of the judge to issue an other examining persons, whether before or after
order to the parties to avail of Modes of Discovery under Rules 23, 25- o N.B. Privilege of doctor-patient only applies to civil case, not
27 criminal case
This is so limited in its use that even the „04 guidelines do not include it o It has to be one of the main issues of the case, not just a side
When can you apply for this? matter.
o Mental or physical condition is in controversy What is the consequence if the copy of the examination is given to
the party examined, upon the latter’s request?
N.B. This is the only mode of discovery which the court can motu
propio
can issue. The other modes, you have to apply for.
What is required?
o 1. Also upon motion
o 2. And with good cause shown
When can it be done?
o When the physical or mental condition of a party is in
controversy
o Ex. Guardianship, Physical Injuries, etc.
What does “in controversy” mean?
What if there is refusal to answer questions in oral examination What if the deponent still refuses to
or interrogatories (Rule 23 or 25)? answer?
o 1. The proponent may pursue other questions o Indirect contempt
o 2. The examination may be adjourned 2. And if there was without substantial justification to
o 3. The proponent may request for a court order to compel refuse, the court may compel payment of reasonable
an answer expenses to procure the order, including attorney‟s
o What if the application for the order is granted? fees
o What if the application is denied?
1. The deponent must answer
1. The deponent need not answer
2. If the application was without substantial 1. If the denial was with good reasons
justification, the court may require the proponent or 2. The admissions sought were without substantial
counsel or counsel (or both) to pay the deponent importance
reasonable expenses to oppose the application,
including attorney‟s fees
When is there indirect contempt of court?
o 1. The deponent refuses to be sworn in
o 2. The deponent refuses to comply with court order to
answer a question
What if a party or officer/managing agent of a party refuses to obey
either: a) order to answer, b) Rule 27 (production/inspection), or c)
Rule 28 (physical/mental examination), what are the court’s
options?
o 1. The matter asked, contents of the paper/property, or
mental/physical condition – deemed established, for purposes
of the action
o 2. Order refusing to oppose claims on that matter, or submit
designated documents/thing, or introducing evidence on
physical/mental condition
o 3. Any of the following:
Striking out pleadings or some parts thereof
Staying proceedings
Dismissal of the action
Judgment by default
o 4. Arrest of the party/agent of the party
Exception?
For Rule 28 (examination of physical/mental
condition)
What if a party refuses to admit genuineness of a document or
truth of a matter of fact (Rule 26) and then it was found to be
genuine/true?
o The proponent may apply to the court for an order requiring
reimbursement of reasonable fees to procure his proof,
including attorney‟s fees
o When does the court award this?
Every time, except:
What if a party/managing agent of a party fails to appear talks about a pending criminal action, but it is no trial yet.
in deposition or fails to serve answers to written interrogatories? o You can call witnesses even before trial and obtain
o On motion and notice, the court may: their testimony.
N.B. There must be notice by the party o But there is distinction between conditional examination of
witnesses for the prosecution and condition examination for
o 1. Strike out
accused.
o 2. Dismiss action
For prosecution – examination before trial can only be
o 3. Enter judgment by default done in the court where the action is pending because
o 4. Order payment of reasonable fees including attorney‟s fees the law wants it to be harder for prosecution.
Against whom can there be no order of payment of expenses For the accused, it should be made before either any
and attorney’s fees? judge, before any member of the Bar (good standing,
o The Republic etc.), any inferior court designated or appointed by a
superior court.
Can you use modes of discovery in special proceedings? o But the law does not say it‟s deposition. But it‟s akin to such,
according to a Supreme Court decision.
o Yes.
Does physical/mental examination as a mode of discovery apply
o Special proceedings do not provide for an answer. But
in criminal trial?
the general principle of suppletory application (Rule 72, Sec.
2). o It‟s
Is there criminal deposition? inherent. Trial
o There is a Rule 119. Use it instead of Rule 23. Rule 119
Both civil and criminal procedures will not provide for conduct in o Default
examination of a witness. Where is it found? o Application of indigent
o Rules on Evidence. o “As in” default [did not appear
What is the order of presentation of evidence? during PT]
o 1. Plaintiff, to support 3. Parties agree in writing
complaint o 2. Defendant,
present defense o 3. Third
party, and so on
o 4. Parties faced with counter or cross claim, present defense
o 5. Rebutting evidence
Can it be reversed?
o Yes, it can, if there is an affirmative defense.
o Plaintiff in the usual and ordinary course of things presents
before the defendant.
o Can there be reverse order if it is a civil case?
[Check answer]
Can there be judgment without trial?
o When parties agree on facts involved in the action
o If the agreement of facts is partial, trial shall be held as to
others
What are the grounds for cancellation of hearing (actually,
postponement)?
o 1. His presence is indispensable and illness is excusable
N.B. it does not say the party must be indispensable;
just his presence
o 2. Absence of evidence, and the evidence is material and
cannot be procured despite due diligence
Who can receive evidence?
o Generally, the judge
o Exception: to the clerk of court – delegated authority to
receive evidence
1. There are default proceedings
2. Ex parte
Examples of ex parte proceedings?
Can an adoption case proceeding be delegated to the clerk Any matter can be referred to the commissioner, when?
of court for reception of evidence? o If the parties consent. ANY MATTER.
o No. But if the parties do not agree, what can be referred to the
o Always with the judge commissioner?
Can a clerk of court issue a subpoena? o 1. Requires examination of long account
o Yes, if it is a subpoena ad testificandum. If it is a o 2. Taking of account necessary for court‟s information for
subpoena duces tecum, there must be order by court. court to render judgment/execute it
Can the clerk of court resolve objections raised in an ex o 3. Question of fact arising from motion
parte proceeding? Can a commissioner issue a subpoena?
o No. o Yes.
o Just note the objections, and forward to the judge. o Can he issue a subpoena duces tecum?
o The other party is not there – who will object? Yes, as long as within the order of reference (his
Well, the clerk of court just has to note it down authority)
if clearly objectionable. What if a witness refuses to obey a subpoena issued by the
commissioner or give evidence before him?
Trial by commissioner o Deemed a contempt of the court that appointed the
commissioner
Who is a commissioner?
Can he resolve objections?
o Person authorized by the court to receive evidence
o Yes.
o Ex. auditor, referee, examiner
o N.B. this distinguishes him from a clerk of court Demurrer to evidence
When are commissioners mandatory?
When do you apply for demurrer?
o Expropriation mandatory in second stage
o Partition only optional
If the parties stipulate how the property will be
partitioned, there is no need to go to the second stage
where commissioners are required
Report of a commissioner is not a judgment. It only aids the court.
What are the options of the court?
o It may adopt, modify, or reject the report
o What if the parties stipulate that the commissioner’s
findings of fact are final?
Only questions of law shall be considered thereafter
What is the rule on objections?
o 10 days from filing of report, parties can object to the
findings of the report
o BUT, must make it before the commissioner during
proceedings, if these can be made by then – otherwise, will not
be considered by the court
Who shoulders the cost?
o The losing party, in general. But the court may
apportion Consolidation
Yes. But this is really belated. o N.B. in summary judgment, the opposing party is given 10
days notice
If you’re the defendant, when can you file?
What is the remedy against judgment on the pleadings?
o Anytime. (Note: this is on a counterclaim, so it doesn‟t kill
the general rule that only the plaintiff can file this motion) o Rule 45 certiorari, because a judgment on the pleadings does
not raise questions of fact, as the judgment is based on
Can the court motu propio render a judgment on the
pleadings alone and the judgment is final
Summary judgment the answer does not tender an issue, or it admits the material
allegations on the claim. There is no dispute.
What is summary judgment? Promissory note with no date when it is due and demandable. X
o There is no genuine issue as to a material fact . Memorize owes Y 500K. Y sues X. X claims “it’s not yet due!” Is this
this phrase.
o When is there “no genuine issue”?
When the issue does not require presentation of
evidence for its resolution, and was just set up as
sham, fictitious, contrived, set-up in bad faith, or is
unsusstantial
What is the difference between this and “the answer does not
tender an issue”?
o There is no issue as to a material fact (note: not on the issues)
But can you have a summary judgment based on a tort?
o No. Because damages here are unliquidated, and the court
has to hear the case.
When can there be summary judgment?
o Declaratory relief
o Liquidated sum of money or action to recover a debt
The court could rely on documents, papers, affidavits, depositions.
o Ex. X wants to make it appear that he does not owe Y
anything, but there is a document where he admits the
obligation. Y must file motion for summary judgment and
attach the document.
o N.B. these attachments must be sworn or certified copies
o What must the affiant show?
The he is competent to the matters stated therein,
that the facts are the admissible in evidence,
and it is based on personal knowledge
What is the requirement for the motion and hearing?
o Written motion at least 10 days before it is heard
o When can the opposing party serve opposing affidavits?
At least 3 days before the hearing
Wood Tech v. Equitable: Gives distinction of JOP and SJ. On SJ,
there could be an issue, but it is ostensibly sham or fictitious. In JOP,
something that would lead to summary judgment or judgment What is immutability of judgments?
on the pleadings?
o General rule: judgments are immutable; they cannot be
o Summary judgment; although there appears to be an issue
modified once final and executory
(X made an issue out of nothing). It is ostensible, but it‟s
actually sham or fictitious.
When is the judgment considered promulgated or rendered?
o Cannot lead to judgment on the pleadings, because there o Filing with the Clerk of court, not mere signing
was no admission of material claims. What are the exceptions?
What is the remedy of the aggrieved party against a o 1. Nunc pro tunc
summary judgment? antedated judgment, when delay or error is due to the
o Appeal court‟s fault
o Except if there is already a writ of execution, then o 2. Clerical or typographical errors
certiorari might be more applicable (because there is no o 3. Void judgments
plain, speedy, available remedy) o 4. But some judgments cannot really obtain finality – like
support
Judgments
Is the judge required to take notes during course of hearing
in order to be able to render valid judgment?
Can the court change its judgment?
o No.
o Before it becomes final (ex. appeal period), it can as a
matter of right. Is it required that the judge who heard the case is the same who
renders the decision?
o Once it becomes final, only clerical errors can be corrected.
o No. But the judge must personally review it.
Is filing of memoranda by the parties (after the trial, predicated on the finality of judgment.
after submission of evidence) required/mandatory?
Execution
o It is not mandatory. It is not essential.
o Non-submission is not fatal.
What is a separate judgment?
o If there are many claims, the court can render judgment on
one, and the action proceeds with regard to other claims
o Ex. In expropriation – there are two judgments:
1. Authority to expropriate
2. Just compensation
o Ex. Summary judgment (one case has several judgments
– summary as to the one with no genuine issue, and trial
over the ones with genuine issue)
What is the difference between a separate judgment from a
several judgment?
o Several refers to parties, separate refers to claims
Can the court render a judgment to a non-juridical entity?
o Judgment will be against the members, not the entity itself
The judgment awards attorney’s fees. What is required for it to be
valid?
o The court must state its factual, legal, and equitable
justification. They are not recoverable as a matter of right. If
there is no factual basis, then the award of attorney‟s fees
is void.
What is required for a memorandum decision?
o It must attach the findings of the lower court in an attached
annex which is made an indispensable part of the decision.
o Remote reference is not allowed.
What is a sin prejuicio judgment?
o It is not binding, because it makes reservation in favor of
some parties as to the right to do something in a separate and
further proceeding
What is a mittimus?
o Final process for carrying into effect the decision of the
appellate court and the transmittal to the court a quo. It is
50
When is execution a matter of right? Where do you file a motion for execution?
o Judgment is final and executory USUAL CASE o File it in the court that rendered the judgment.
Ex. period appeal has already lapsed o Can it be filed with the appellate court?
When is execution a matter of discretion? Same with above.
o For good reasons, when it is not yet final and executory Do you need to file a bond to apply for discretionary execution?
o Execution of several, separate, or partial judgment o The obligor needs to file a supersedeas bond to stay
Which court issues the writ of execution? discretionary execution; but the obligee does not need to file
a supersedeas bond to apply for discretionary execution.
o Court that rendered judgment
o What does the obligee need to present then?
o RTC issued a decision, it was appealed to the CA, then
to the SC. Who issues the writ of execution? Proof showing good reason
The RTC – the court of original jurisdiction o What are examples when discretionary execution vest?
o Are there instances wherein the writ will be issued by 1. Perishable goods
an appellate court, or a court other than that of original 2. Old age + sickness [?]
jurisdiction? When does judgment become final and executory?
In the interest of justice, you can apply to the o A final judgment or order is one that finally disposes of a case.
appellate court. But the general rule is that it is This is the only thing that could be subject to execution.
still the court that rendered the decision.
What is the difference between discretionary execution and
o Can the CA issue a writ of execution, other than in this
execution pending appeal?
instance?
o They are the same. And both require good reasons.
When it exercises original jurisdiction.
50
Should the writ of execution conform to the dispositive portion? o Yes, even for those immediately executory in nature.
o Execution must conform to the dispositive portion. What is o Cagayan de Oro: A lawful levy for execution is needed before
reproduced in the writ is the dispositive portion of the there can be a sale can be effected.
judgment. (Intramuros)
Is a full blown trial required for a motion for execution?
o No.
Can execution pending appeal be applied for to the TC after the
appeal has been perfected?
o For as long as the TC has jurisdiction over the case.
o See Rule 41. [This includes execution pending appeal,
provisional remedies, etc.]
Do you need a bond to stay a writ of execution that was issued
as a matter of right?
o No. You cannot stay it anymore – even with a bond. It‟s a
matter of right.
o What is the exception?
Get an injunction or TRO, claiming GADALEJ.
What are the judgments not stayed by appeal?
o Injunction, receivership, accounting, support, other
judgments saying it‟s immediately executory
Can an MR stay a motion for execution?
o The provision only says “an appeal” can stay a judgment…
theoretically, jurisdiction is still with the court of original
jurisdiction.
o But there is no clear answer.
In an ejectment case, which court issues the order of demolition?
o The court of original jurisdiction, i.e. the MTC
o What is the exception?
Mina: Discretionary execution can be entertained by
the RTC.
Who has to make reports?
o The sheriff, on any matter of execution, esp. the conduct of
such.
Is a motion for execution indispensable before the court can
execute?
1
o Can the court motu propio issue a writ of execution? Proceed to sale of the property to satisfy the
OCA v. Corpuz: Court on its own, cannot issue a judgment.
writ of execution without motion of another party o What if the judgment is for money, not property?
What is revival of judgment by an independent action? File a claim against the estate
o If you went beyond 5 years from entry of judgment, but are Section 8: Contents.
still within the prescriptive period, you can file an o Do the contents have to always be there?
independent action to execute.
No. Only to the extent applicable.
When can you file a motion for execution?
Money judgments
o Within 5 years from entry of judgment
o Payment must be in what form?
After lapse of period of ten years, can you still revive it?
In cash.
o No.
o Payment must be made to whom?
o Is it always ten years?
To the judgment obligee, if available
YES. This is the flat prescriptive period
What if he is not available?
for judgments.
Death after judgment: To his representative
o If the judgment obligee dies, then the What if he is not available?
executor/administrator applies for execution To the sheriff
o If the judgment obligor dies, and judgment is for recovery o Can payment be effected not by cash (Ex. check or PN)?
of real/personal property – there is a lien over his property Certified bank check is allowed
o What if levy has already been effected?
Or any other form of payment acceptable to the latter
2
o What if there is no cash? No. It is punitive in nature, so there must be a
Go to hearing.
How is this accomplished?
Levy on real or personal property
o What will be disposed first?
Choice of judgment obligor
If he doesn‟t make a choice, personal property is
prioritized over real property
o What if there is no property?
Go to
Garnishment
o Custodian of the funds/deposit/royalty has to make a report.
o How many days to report?
5 days from receipt of notice. The custodian/manager
has 5 days to report if there is money.
o What does the court do next?
It issues an order requiring transfer of funds.
o Can you garnish without prior demand of payment?
No.
Specific acts
o If the court requires the obligor to do something, but he
refuses, what happens?
The court can require another person to perform it.
o If the other person does not comply?
The court may consider that it has been DEEMED
complied with.
Give an example.
The court orders that there must be
execution of deed of sale in favor of Y, done
by X. X refuses. The court orders Z to
perform it. Z refuses. The court will deem it
complied with. This deed of sale will be
forwarded to the Register of Deeds or
whoever/whatever office
o Can an order for demolition be given along with the writ of
execution?
There must be motion of judgment What about mausoleums?
obligee after due hearing and after the No.
former has failed to remove the same
o [Among others]
within a reasonable time fixed by the court
o When can there be contempt? When can you apply for a motion for execution?
ONLY applies for special judgment, and there o Section 14. This also tells you the life of the writ.
is refusal to comply. o What is the life of the writ?
What are the properties exempt from judgment? 5 years, before it expires.
o Family home, homestead, and the land Sec. 15-34:
If you mortgaged your Family Home, will it still o Important parts:
be exempt from execution? Requirements of sale
No. Certificates of sale
What are homestead lands? Redemption
Public lands given to people giving them Redemption period
a chance to cultivate Who will be in possession of the property sold in
o Libraries of professionals not beyond 300K public sale
o Furniture for the family not beyond 100K Who will be entitled to fruits/profits of the property
o Beasts of burden (up to 3) What if after participating in the sale, you are unable
o Tombstones to take possession of the property – remedies
o What are the requirements for sale?
TWO NOTICE REQUIREMENT: one to the Serve copy to the judgment obligee
judgment obligor, one to the public What is the effect?
Public – posting in 3 conspicuous places (or The officer is not bound to keep the property
even by publication if assessed value of real
property is 50K+)
What if it is a perishable good or personal
property?
Perishable goods – within reasonable time
(no strict timeframe)
Personal property – at least 5 days notice
Real property – posted for 20 days
o N.B. not “at least”
What if the assessed value of the real property
exceeds 50,000, what is needed?
There must be publication
Should you notify the judgment obligor?
Perishable goods – just notice before the
sale
In all cases, notice at least 3 days before the
sale
What time must the sale be?
9 am to 2 pm, and it must be in the office of
the Clerk of Court. But usually, it is done
outside the hall of justice
What if it is personal property capable of
delivery?
It must be done in the place where the
property is located
o What is the consequence of selling without notice or
defacing/removing the notice?
Penalty of 5000 pesos recoverable in the same action
o What if there is a third party claimant?
He asserts his claim in the proceedings through an
affidavit of title
Served on the levying officer
What is the remedy of the judgment obligee? property sold
Post a bond approved by the court to 2. Price paid for each distinct parcel or lot
indemnify the claimant (value is not less 3. Whole price paid
than value of property) 4. Statement that right of redemption expires
In such a case the officer shall not be 1 year from the date of registration of the
liable for damages for taking/keeping the certificate of sale
property if the bond is filed registered with the ROD
When can there be a claim of damages for taking
o Can you redeem personal property sold on public sale?
or keeping of the property?
Only within 120 days from the date of filing
No. Personal properties cannot be redeemed,
only real properties.
of the bond
N.B. The claimant is not precluded from filing a claim Who can redeem real property?
Same wording as Rule 42. In the MNT in trial court: 15 days from judgment
o Rule 45 (petition for review on certiorari) – In the CA: for as long as it‟s an active case (no need
to wait for a judgment in the CA – as long as the CA
Same wording (15 days from notice of
has jurisdiction)
judgment/final order or of denial of MNT/MR)
Is there a MNT in the SC?
How many times can you file an MR?
o Rule 56 –
o Just once
o As a rule, an MNT cannot be entertained in the SC. resort to petition for relief from judgment. Take note, that there
o But it is left with the sound discretion of the court if it feels that must be entry of judgment, which means if there is no final
judgment yet, you can still do an MR/MNT/appeal.
it should do it in the interest of justice.
Glenn Tuazon, appellant v. Rensi Pua, appellee Ordinary appeals (Rule 40-41)
o What if it goes up to the Supreme Court?
When one goes up to the Supreme Court, it Period to appeal?
becomes petitioner v. respondent. o 15 days for notice of appeal, from receipt of notice of
And the title need not remain the same. the judgment
You do not include the CA as a respondent when o Receipt by whom?
you appeal to the SC, still the same private party. The party or the counsel
(The SC already issued a circular for this.)
o If there was notice sent to both the party and the
The lower court only becomes a respondent, for counsel, and the notice to counsel arrived earlier, what is
instance, in a petition for certiorari. If there is the reckoning point?
GADALEJ, for instance, the defendant is the
court. The private respondent just files the
The notice to counsel, because notice to counsel
is notice to the party.
response on behalf of the public respondent.
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o If you have multiple counsels, and the court clerk sent o Within 48 hours
a copy to all such, what is the reckoning point? o What about Writ of Amparo and Writ of Habeas Data
Upon the receipt of the lead counsel, as opposed cases?
to collaborating counsel.
If both are co-counsels, then receipt by either starts
the reglementary period.
o Can you extend the period of 15 days?
Not extendable
But if you file an MR and it is denied, following
Neypes (as adopted by SC 07-7), you get a fresh
period.
X set a hearing for MNT on June 20. The court
ruled on July 6, denying the MNT. X got a copy on
July 9 by registered mail.
X can still appeal. It is immaterial how
long the court took to resolve the MNT.
Fresh period of 15 days to appeal.
o X, instead of filing an MR, filed a motion for extension to
th
file the MR. He filed on the 14 day. It was denied outright.
Having the motion denied, how many days remain to file a
notice of appeal?
This is a prohibited motion, so it should be treated
as if it were not filed. The period continues to run. If
th
it was decided beyond the 15 day, then X is barred.
When is the period of appeal 30 days?
o Record on appeal (to be discussed in Rule 41)
o But you must file both notice and record. When is
the notice of appeal filed?
There is no separate time frame for the notice of
appeal. Both can be filed within the 30 day
period.
o Can you extend the period of 30 days?
No
Except when there is an authorized alteration or
modification of the record
What is the period to appeal for Habeas Corpus cases?
1
Within 5 working days, Petition for Review on Usually the judge gives an order giving the party time
Certiorari (Rule 45) – but can raise both questions to comply with filing the entire docket fee.
of fact and law Contrast the Neypes fresh period with other fresh periods in Civil
Appeal docket fee and other lawful fees – when and where do Procedure –
you pay? o Filed motion to dismiss on the 13th day. It was denied.
How many days remain for you to file an answer – the 2
o Where: to the court that rendered the decision
days or a fresh period?
o When: within the period to take appeal (so same as 15/30)
Fresh period of 5 days. (Rule 16)
o Note: this above requirement is MANDATORY
o th
If it is a bill of particulars, filed on the 13 day. 2
AND JURISDICTIONAL.
days remain or fresh period?
o What if the notice was filed within 15 days, but the
Fresh period of 5 days. (Rule 12)
docket fees were not paid within the same time (ex. 18
days)? If the notice of appeal to the MTC did not make mention to
The dismissal is not automatic – the trial court still which court the appeal will go to, is it fatal?
retains jurisdiction. It can decide whether to decide o No. The law will fill the gaps that it would be the RTC
to dismiss the appeal (failure to comply with a hearing the appeal.
mandatory and jurisdictional requirement) or to If the notice of appeal to the MTC was flawed enough to state that
continue with the appeal. the appeal will go straight to the Supreme Court, because he is
o What if he paid but the fees are short? just raising pure questions of law?
What is mandatory and jurisdictional is the payment o The court may have discretion to send it to the RTC instead.
of the whole docket fee. But of course, this is up for question.
2
If a court must to make a ruling that the appeal is erroneous, who o Upon the perfection of appeal by all the parties in due time OR
makes that decision? The trial court or the erroneously selected upon the lapse of the reglementary period given for them to
higher court? appeal lapses
o Higher court. How about record on appeal?
What if there was no copy of the notice filed to the other party?
o It is a fatal defect.
What is a record on appeal?
o It‟s a sequential compilation of the pleadings, orders, etc. of
the judge.
o Unlike a notice of appeal, which is just a statement of: a) when
you received the decision, b) that you paid appeal docket fees
within period, and c) you intend to appeal
When is a record of appeal required?
o 1. Special proceedings
o 2. Separate or multiple appeals if allowed by law or the rules
For separate appeals, the judge decides if it is
allowed. GENERAL rule: wait for all the claims to be
decided (in a case with multiple claims).
Can there be record on appeal be required for an appeal coming
from the MTC?
o Yes. For example, settlement of estate of decedent
who resided outside MM, and 300K or less.
Why is there a need for approval of the Record by the trial court?
o The court must determine whether the record of appeal
is complete.
o Note: the copy furnished to the other party also gives
him chance to scrutinize the completeness of the record.
When will you not indicate which documentary or
testimonial evidence you are including in the record in the
reference?
o When ALL of the testimonial and documentary evidence is
included. One just has to make a statement to that effect.
When is appeal perfected?
o Upon filing notice + payment of docket fees
When is the trial court’s jurisdiction lost?
o Not upon mere filing of notice, but upon APPROVAL of o What is the procedure in the CA?
the record on appeal Filing of appellant‟s and appellee‟s brief. The
When does the court lose jurisdiction over the whole case? procedure is found in Rule 44, not 41.
o Only upon final order or decision of the case o Period for filing of briefs?
o Because the record on appeal is only about a particular 45 days, appellant‟s brief (from receipt of notice of
subject matter in the trial the clerk that all evidence have been attached to
record)
If you go from the MTC to the RTC, what is the process?
45 days, appellee‟s brief (from receipt of appellant‟s
o Take note that the RTC is an appellate court here. brief)
o Parties file a memorandum to the RTC. The RTC will 20 days, for reply (from receipt of appellee‟s brief)
not reexamine the evidence and witnesses.
Coming from a loss in the RTC (exercising original
o Period for filing of briefs?
jurisdiction), what are the available remedies?
15 days, appellant‟s memorandum (from o 1. Ordinary appeal
notification of RTC clerk of receipt of complete
record/record on appeal)
o 2. Petition for review on certiorari (Rule 45)
o Residual powers:
1. Protection and preservation of rights of parties
on matter not subject of appeal
2. Approve compromises
3. Permit appeals of indigent litigants
4. Order execution of judgment pending appeal
5. Approve withdrawal of appeal
o Why are there no residual powers in Rule 43?
Because we are dealing with QJ-As, not
regular courts.
After giving due course, what may the CA require?
o 1. Set case for oral argument
o 2. Or require parties to submit memoranda within 15 days
When is the case deemed submitted for decision?
o Upon filing last memorandum or
Rules 44-56 – CA
[Appellant‟s brief]
1. Subject index
a. Like a table of contents
b. For posterity‟s sake, put this even if it‟s just short
2. Assignment of errors
a. How the lower court erred
b. Key word: “specific” errors. Not allowed to just make
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i. Nature of action a. In cases not brought up through record on appeal,
ii. Summary of proceedings appellant‟s brief must contain this as an appendix,
iii. Appealed rulings and orders, and nature of judgment [Appellee‟s brief]
b. Easiest way to do it: chronological sequence
c. Don‟t bother mentioning the irrelevant motions like 1. Subject index
motion to extend, unless there is a timing issue, etc. 2. Statement of facts
4. Statement of Facts a. Or counter-statement
a. Clear and concise statement in narrative form of the facts
3. Arguments
b. E.g. “The following facts are not disputed by both parties:”
5. Statement of issue
PROVISIONAL REMEDIES
a.Just a simple statement of what the court needs to resolve:
e.g. W/N the marriage between plaintiff and defendant
Rule 57 – attachment
should be declared void on the ground of psychological
incapacity.
6. Arguments When should jurisdiction over the defendant vest in attachment?
(Manguila, citing Davao Light and Power)
a. Must be with reference to the record
o Distinguish between issuance and implementation of the writ
b. And cite authorities
of attachment – to determine when jurisdiction is needed over
7. Relief the defendant.
8. Copy of the final order or judgment being appealed
70
o Remember you could file an attachment will the initiatory to defraud.
pleading and apply for it ex parte. You can also apply for it o 2. Embezzlement/abuse of trust by one with a fiduciary
upon motion. relationship
o To answer the question: there are three stages for attachment For all intents and purposes, this is estafa
–
1. Court issues order granting application
2. Writ of attachment issues pursuant to the order
3. Implementation of the writ
FOR THE FIRST TW O STAGES, jurisdiction over
the defendant is not yet required because it is an ex
parte application. However, when you are
implementing the writ, you need jurisdiction over the
defendant.
o Thus, how can the writ be implemented?
You have to get jurisdiction over the defendant first.
o Summons should be served prior to, or contemporaneous with
the order (for implementation). Contemporaneous is better.
o Summons belatedly served does not cure fatal defect in the
enforcement of the writ.
Either personal or substituted service.
o What are the exceptions to prior or contemporaneous
service of summons?
1. Summons cannot be served personally or by
substituted service, despite diligent efforts
2. Defendant is a resident of the RP temporarily
absent therefrom
3. Defendant is a nonresident of the RP
4. Action is in rem or quasi in rem
Grounds for attachment? MEMORIZE
o 1. Any claim for money or damages except moral/exemplary, if
the claim arises from an obligation (law, contract, quasi-
contract, delict, quasi-delict) AND defendant is about to depart
with intent to defraud
What if claim is recovery for sum of money only?
No. You could only apply for attachment if
the defendant is about to depart with intent
1
o 3. Action to recover property and there is willful How do you discharge an attachment?
fraudulent concealment of the property o 1. Most common: post a counter-bond
o 4. Action against a person who removes/conceals property
When do you post a counter-bond?
Unlike (3), this is directed against a person
Can be posted after enforcement of the writ.
o 5. Fraud in contracting the obligation or fraud in
You cannot anticipate its enforcement.
the performance thereof – most asked ground
First: If not for the fraud, the other party would
o 2. Improper, irregular, or excessive attachment
o 4. Amount due to applicant or value of the property he seeks Can you recover damages?
to recover is as much as the sum for which the order is o Yes, Section 20 – if there is improper, irregular, or excessive
granted, above all legal counterclaims attachment.
2
N.B. Section 20 applies to all provisional remedies o By reason of a third party claim (with no bond needed from the
except support pendent lite. third party claimant – just an affidavit of his title), the process
o Where can you apply for it? will be suspended.
In the trial court; during or after trial.
You can apply for it within reglementary period, or
when appeal has been perfected. AS LONG AS it is
pending, and not yet final and executory.
o If you post a counter bond, does this waive any further
claim for damages arising from wrongful attachment?
No.
What kind of damages can be recovered?
o Yu v. Ngo: Evidence required for wrongful attachment. When
there is wrongful attachment, defendant may recover actual
damages, without need of proof of bad faith. When there is
malicious attachment, defendant may recover actual, moral,
and exemplary damages.
o What is the scope of the award of actual damages from
attachment?
1. With best evidence obtainable, fact of loss or injury
2. Amount thereof
o Can actual damages cover unrealized profits?
Yes. But the amount must be supported by
independent evidence of mean income of the
business undertaken.
o How do you prove moral/exemplary damages?
Prove that the wrongful attachment was with malice or
bad faith.
How about attorney’s fees?
o Generally, attorney‟s fees cannot be awarded when moral or
exemplary damages are not granted.
o Exception: when a party incurs expenses to lift wrongfully
issued writ of attachment.
What is the procedure for terceria (third party claim)?
o The applicant has posted a bond when he applied for a writ
of attachment (to cover whatever damages defendant will
suffer due to attachment)
o Now it is the burden of the applicant to post another bond sale?
in the value of the property, to cover the third party‟s o Levy on attachment duly registered takes preference over a
damages. prior unregistered sale. The preference created by attachment
o How long can a claim for damages for taking/keeping is not defeated by the subsequent registration (to the
of property be enforced against the bond? attachment) of a prior sale, because attachment is a
Within 120 days from date of filing of the bond proceeding in rem.
What is the difference in the third party claim in execution of What is the procedure when there is an alleged irregular and
judgment (Rule 39) and Preliminary Attachment (57) or other improper issuance of attachment?
provisional remedies? o When the attachment is challenged for being illegally or
o The right of the third party claimant in attachment could improperly issued, there must be a hearing. The hearing
embraces the right to present evidence, and also the
be vindicated in the same or in a separate action. In
establishment of rights of other parties.
execution, it could only be done in a separate action.
o Why? o Mere filing of opposition is not equivalent to a hearing.
Absence of a hearing does not discharge attachment.
Because in execution, the judgment is already final.
o N.B. The discharge of an attachment, whether through
In Rural Bank, a motion was filed to release property from counterbond or irregular, improper, or excessive – can only be
attachment, giving affidavit of title to the sheriff. The court said that done through hearing.
the filing of the motion can be deemed the same as a third party
o Security case: Two ways to secure discharge of attachment.
claim (because 3P claim must be filed with sheriff). It can also be
1) Party whose property or his representative has been
treated as a form of intervention.
attached can post a security. 2) Said party can show that the
What takes precedence, levy on attachment or prior unregistered
attachment has been improperly or irregularly issued. Mere preliminary injunction:
posting of counter bond does not discharge the attachment. o Principal action – seeks a judgment for a final injunction which
There should be a specific resolution for the discharge. is separate and distinct from a preliminary injunction
What if the court renders a judgment and there is a previous o Preliminary injunction – object is just to preserve status quo
attachment, duly registered, what will the subject of execution?
o 1. If there is money duly garnished or obtained through sale of
perishable goods, the money will be
applied.
What does this refer to?
If the property attached is perishable or the
sale of the property will best subserve the
parties‟ interests, as determined by the
court, the property can be sold in public
auction
The proceeds will be deposited in court and
take the place of the property
o 2. If not sufficient, sell real or personal property that has been
attached. These have to be sold on public sale. Procedure is
consistent with Rule 39.
o 3. What if the properties attached are not sufficient to
satisfy the judgment?
Court proceeds with ordinary execution to cover the
balance.
What if the defendant filed a counterbond?
o Recovery can be sought against it; it takes the place of the
property sought to be attached, but released by the CB
Rule 58 - Injunction
o There are only two instances where there can be writ o When there is no reason to give support pendente lite.
of execution even when there is no final judgment:
1. Support pendente lite
SPECIAL CIVIL ACTIONS
2. Indigent (which the court finds that you are not
an indigent and requires you to give filing fees) Rule 62 – Interpleader
Who can apply for support in criminal cases where the accused is
charged with a crime where a child is borne by the offended party? When is interpleader proper (Requisites)?
o 1. Offended party
o 1. Conflicting claims on the same subject matter construction
o 2. Made against a person who: o 3. There must have been no breach of the documents in
question
Claims no interest over it
Or an interest which is not disputed by the claimants
Malana: Reiterates that declaratory relief
presupposes no actual breach. An action for
What is the procedure?
o 1. Action for interpleader brought to court
o 2. Court issues order requiring parties to interplead
May ask for subject matter to be delivered/paid to
court
o 3. Issue summons to parties, with complaint and order
o 4. Parties can file:
MTD (if denied, at least 5 days to file answer)
Answer
Can there be a counterclaim in an interpleader case?
o Yes.
Stuff to remember:
o In the interpleader case, the one filing the case was not
violated. There was no breach.
o The person filing the action can either have an interest which is
not in conflict with the claiming parties, or has no interest at all.
Are there filing fees for an interpleader action?
o Yes.
o However, the applicant, not being violated nor is he a Real
Party in Interest – is entitled to a lien on the judgment award
What is the difference with intervention?
o In intervention, there is already a pending case. Here, you
initiate the action.
The RTC has no exclusive jurisdiction; you can file Rule 64 – Review of judgments and Final orders of COMELEC/COA
it elsewhere like the SC. The RTC only has
exclusive jurisdiction if it is a pure question of What is the nature of this petition?
declaratory relief
o This is actually a petition for certiorari. If you file under Rule When is the case deemed submitted for decision?
64, it will be named a Petition for Certiorari o Upon submission of the comment by the respondent
o This has a limited application; it only covers decisions by o Unless the SC requires submission of memoranda or requires
the COMELEC and COA. oral argument
What is the difference in period for a Rule 64 petition as compared
to Rule 65?
o The period to file a petition for certiorari under Rule 64 is 30
days, non-extendable.
o What if there was an MR/MNT and it was denied?
If there is an MR or MNT and denied, you get
the period remaining which will always be at least 5
days (“partial fresh period”)
o N.B. this is unlike the 60 day period for Rule 65
o N.B. for Rule 65, you always get the full 60 days period even
after denial of MR/MNT
What must be the nature of the attachments?
o As with Rule 43, all the attachments in Rule 64 are certified
true copies, because you involve Quasi Judicial Agencies.
Must it be verified?
o Yes.
Is a CNFS needed?
o Yes.
After filing the petition and serving a copy with the adverse party
and the Commission, what is the next step?
o 1. If SC finds the petition sufficient in form and substance, it
orders respondents to file comment within 10 days from notice.
N.B. Comment: 18 copies too, with CTC of record and
supporting papers
o 2. SC may dismiss the petition outright if:
A. It is not sufficient in form or substance
B. it was filed manifestly for delay
C. Questions raised are too unsubstantial to warrant
further proceedings
Does the Rule 65 petition stay execution of judgment?
o No, unless the SC directs otherwise
Rule 65 – Petition for certiorari, mandamus, prohibition How does mandamus differ from prohibition?
o Limited to ministerial functions.
First rule of Rule 65: you do not talk about Rule 65. Second rule of
Rule 65: you do not talk about Rule 65. Third rule of Rule 65: You
o Here, you are requiring him to perform.
have to fight on your first night. Can the OMB be compelled by mandamus to file an information?
Real first rule of Rule 65: this is not an appeal o No. It is not ministerial.
Elements of certiorari? If you entered into a contract with X to build a house for you, and X
o 1. GADALEJ received the advance of the contract price, and X did not build
the house, can you compel his performance by mandamus?
o 2. No plain, available, speedy ordinary remedy
o No; it is not a ministerial function. It is a contractual obligation
What is prohibition? Should there be GADALEJ? – specific performance is the proper remedy.
o Yes. The same is required – GADALEJ. No plain, How can an OMB judgment be reviewed?
available, speedy ordinary remedy.
o Generally, under Rule 43.
o It is the same as certiorari.
o However, if the decision of the OMB in a criminal case is
o In prohibition, you cannot prohibit an act that has already
tainted with GADALEJ, Rule 65 Certiorari can be filed with SC.
been performed. It is already moot.
Must a petition under Rule 65 (C, P, or M) be verified?
Certiorari – whose decision can you question?
o Yes.
o Judicial or QJA
What must be included too?
Prohibition – whose decision can you question?
o 1. CNFS
o Judicial, QJA, or ministerial
o 2. For certiorari or prohibition, the copies of order, resolution, No.
or judgment (for certiorari) questioned, and all pertinent What happens after comment is filed?
documents
o 1. The court may hear the case or require submission of
What is the period to file the petition?
memoranda
o 60 days from the notice of judgment, order, or resolution
o What if an MR or MNT is denied?
Count 60 days from denial of the motion (real fresh
period rule)
N.B. this is different from Rule 64 where only the
remaining period not less than 5 days would remain
Where do you file a Rule 65 petition?
o A. For MTC, corporation, board, officer, or person:
RTC
It could be in the CA or SB, whether or not the same
is in aid of the court‟s appellate jurisdiction
o B. Act or omission of a QJA:
CA only
o C. Election cases involving act or omission of MTC or RTC:
COMELEC, in aid of appellate jurisdiction
[N.B. based on 2007 amendment]
Who defends the questioned judgment, order, etc?
o The private party interested in the judgment
o The public party will be nominally made a party but shall not
appear in or file an answer/comment to the petition or file a
pleading
What does the court do after filing of the petition?
o If sufficient in form and substance, issue an order requiring
respondent/s to comment on the petition within 10 days from
receipt of copy
o What is the rule if the petition is filed before the CA or SC?
Before giving due course, it can require the
respondents to file their comment to the petition and,
if it wants to, a reply from the petitioner
Can the respondent file a motion to dismiss
instead?
80
o 2. Or it may dismiss the petition if it is found to be: sanctions and measures on erring lawyers?
A. Patently without merit Yes, based on res ipso loquitur
B. prosecuted manifestly for delay
Quo Warranto
C. Questions raised are too unsubstantial to
require consideration Who commences an action for quo warranto?
Does Rule 65 suspend the principal case?
o Liban: Generally commenced by the government.
o No, unless the court where the petition is filed issues a TRO
o 1. President, directing the Sol-Gen
or preliminary injunction
o 2. Sol-Gen, in the name of the government, when he has good
o If there is no TRO or PI, the public respondent must
reason to believe
proceed with the principal case within 10 days from the
filing of the petition o 3. Upon the relation of another person, telling the Sol-Gen to
institute the action
N.B. else, administratively liable
What is the special requirement if it is upon the
What are the consequences of filing a petition patently
relation of another person?
without merit or manifestly for delay, or questions are too
unsubstantial for consolidation? There must be approval by the court. If not
approved by the court, the Sol-Gen will not
o 1. The court may award in favor of respondent treble
file.
costs solidarily against petition and counsel
N.B. also, the Solicitor General will require the other
o 2. Counsel may be subjected to administrative sanctions person to file indemnity for expenses/costs of the
o May the court motu propio impose disciplinary action to the court
80
N.B. the respondent will also be given prior notice and may demand books and papers in respondent‟s custody
the chance to be heard prior to the court giving What if the respondent refuses?
approval for the filing Contempt of court
o 4. The person instituting quo warranto in his own behalf must o B. Action for damages against usurper
show that he is entitled to the office in dispute.
This is where the person aggrieved himself files
What should he show?
1. His claim
2. And that he is entitled to the office
When can you file it?
o 1. Usurpation of public office, position, or franchise
o 2. Public officer who does or suffers an act constituting ground
to forfeit office
o 3. Association acting as a corporation but not duly incorporated
Quo warranto is also available if a government
corporation has offended against its chapter.
It is a prerogative writ, where the government can exercise its right
to demand proof of what right a person has over office
What is the venue?
o 1. RTC where respondent resides
o 2. CA
o 3. SC
o This is another example of concurrent jurisdiction
o What is the special rule?
If it is the Sol-Gen who institutes the action, it can be
filed in the RTCs of the City of Manila
What is the period to institute an action for quo warranto?
o One year from happening of the event (usurpation)
Can you recover damages from a quo warranto judgment?
o One year from entry of judgment entitling petitioner to the
position
What are the rights of the person adjudged entitled to the public
office?
o A. After taking oath and executing any bond required by law,
1
If there is a dispute between and among the Board of Directors of domain. Thus, strictly speaking, the power delegated to the
a private corporation, one group claiming that they have been LGUs is “inferior domain.”
usurped, is the proper remedy quo warranto? o But an LGU can expropriate.
o No. This is an intra-corporate dispute to be filed in the o What are the requisites before an LGU can exercise
regular courts (RTC) having original jurisdiction. eminent domain?
Distinguish from Quo Warranto in election cases: 1. Public use, public purpose, public welfare
o 1. Filed by any registered voter in the constituency 2. Ordinance by local legislative body authorizing
o 2. On grounds of a) ineligibility or b) disloyalty to the RP (ex. local chief executive to exercise eminent domain
Having a green card) 3. Just compensation
o 3. Within 10 days from proclamation of 4. Valid and definite offer previously made to owner
but not accepted
results Rule 67 – Expropriation What must be alleged in the expropriation complaint?
o 1. Right and purpose of expropriation
Who can expropriate?
o 2. Description of the property sought to be expropriated
o National government
o 3. Names of persons owning or claiming to own it,
o LGU or possessing it, or having interest over it
o Instrumentality of government o N.B. it must be verified
Veluso v. Panay: Can a complaint for expropriation be withdrawn?
o LGUs by themselves have no inherent power of eminent o It can be withdrawn for as long as there is no judgment yet
2
o Once there is an order for expropriation, it can no longer be When is there immediate entry allowed for expropriation under
withdrawn Rule 67?
What if the defendant has no objection? o 1. Filing of complaint + due notice to defendant and
o He files and serves a notice of appearance and manifestation
only. Thereafter, he is entitled to notices.
What if the defendant has objections?
o He files and serves an answer within the time stated in
the summons, stating his objections.
o Can there be a counter-claim, cross-claim, or third
party complaint?
No.
o Can there be amendments to the answer filed?
Generally no, but in the interest of justice, the court
may allow an extension of not more than 10 days.
o N.B. Even if the defendant initially objected and filed an
answer (not a manifestation/appearance), he is still entitled to
just compensation.
When does an order of expropriation issue?
o If the objections and defenses are overruled, or when there is
no defendant, the court issues an order of expropriation
o May the order of expropriation be appealed?
Yes, but it does not prevent the court from entering
the second stage (just compensation)
After order of expropriation, what is the second stage?
o Determination of just compensation
o The court appoints not more than 3 commissioners to
ascertain the value of the property.
Non-compliance with this step is a denial of
due process
When can the plaintiff enter the property and appropriate it for
public use?
o In general, after judgment and payment of just compensation
as determined by the court
o Or the plaintiff can continue its possession of the property if
it made a prior deposit and entry
N.B. see below
o 2. Deposit with authorized government depositary an assessed value, in general. If it is personal property, assessed
amount equivalent to the assessed value of the property too
When is there immediate entry allowed for expropriation under Government entered property (took it) and caused demolition of
the LGC? improvements. But before there was order for expropriation, the
government said “huwag na lang.” Can the government withdraw?
o 1. Filing of complaint for expropriation sufficient in form
and substance and o Yes. But it is liable for damages.
o 2. Deposit of amount equivalent to 15% of FMV of the What if there is a subsisting contract between government and the
property to be expropriated, based on latest tax declaration private person?
When is there immediate entry allowed for expropriation under o There can be no expropriation contrary to that contract.
RA 8974 (acquisition of property for right of way or for What is the nature of determination of just compensation?
government infrastructure projects)? o It is a judicial function, which is why the judiciary still has
o 1. Filing of complaint + immediate payment of 100% control over the commissioners.
assessed value of the property and the improvements (same In traversing a lot with transmission lines, is there expropriation or
rule as Rule 67) easement?
o 2. If there is no zonal valuation AND the expropriation is o There is expropriation (NPC v. Manubay)
of utmost importance: Filing of complaint + payment of
proffered value of the property
What is the nature and limitation of “public purpose”?
o 1. Trespasser, squatter, or agent of defendant occupying o Direct contempt is summary. You will not be asked to explain.
the property to frustrate the judgment Distinguish from indirect contempt.
o 2. Guest of the defendant or member of family o Contempt which is in violation of order or process of court.
o 3. Sub-lessee, co-lessee Ex. failure to comply with subpoena of court.
o 4. Transferee pendente lite or privy of defendant o There is notice and hearing.
Will the filing of another action for annulment of sale,
How do you charge? Penalty for indirect contempt?
o For direct contempt, there is no need to charge. You just need o RTC or up. Imprisonment not exceeding 6 months, Fine not
to disobey or disrespect. exceeding 30,000.
o For indirect contempt, there are two ways: o MTC not exceeding 1 month. Fine of 5,000 pesos.
1. Formal charge of the judge motu propio
2. Upon a verified complaint filed and
docketed separately
o Where do you file case for indirect contempt?
If against an RTC, file in the RTC
If against MTC, either:
RTC
Or MTC, subject to appeal to RTC
X had a main case pending in an RTC branch in Makati. X obtained
a preliminary injunction but the other party refused to comply.
Can he file a motion for indirect contempt in the same court that
issued the injunction?
o No, a motion for indirect contempt is NOT a remedy now.
o You file a verified petition (separate case).
o After it gets raffled to another branch, you can either:
Let them proceed separately
File a motion to consolidate.
What is your remedy for direct contempt?
o It‟s immediately executory, so you can stay its execution by
posting a bond.
o File a petition for certiorari or prohibition based on GADALEJ.
What is your remedy for indirect contempt?
o Remedy is an appeal.
o Judgment will only be stayed from being executed by posting a
bond.
What are the penalties for direct contempt?
o If in the RTC or higher court, imprisonment up to 10 days.
Fine not exceeding 2,000.
o In MTC, imprisonment not exceeding 1 day. Fine not
exceeding 200.
When is imprisonment imposed? o Dec 1, 2000
o When the contempt stems from the refusal or omission to What is the rule on venue and jurisdiction?
do an act which is yet in the power of the respondent to o VENUE IS JURISDICTIONAL. The place of
perform – he may be imprisoned by the court until he commission determines jurisdiction.
performs it o Contrast with civil cases where these are separate concepts.
What is difference between criminal and civil contempt? o The crime of stabbing was committed in Makati; where
o Criminal contempt disrespect of the can it be filed?
court/judiciary o Civil contempt violation of right of
ONLY in the courts of Makati.
other party
o Can there be administrative contempt? See below (QJAs) o What is the exception?
o In case of absence of rules in QJA, what is the rule? Transitory and continuing offenses, wherein one
Venue is RTC where the contemptuous act was or more of the elements happened in more than
one venue.
performed (default)
Rules of Court apply
Ex. Estafa, where the elements may be committed
in different places (ex. misappropriation in one place
and damage in another).
PART II: CRIMINAL PROCEDURE
Ex. BP22 either place of issue, or where the
check bounced
General matters, jurisdiction Can an offense be committed outside the Philippines yet be filed
here?
When did Rules on Criminal Procedure take effect? o Yes.
o 1. Exceptions under article 2 of the RPC pertaining to the DAR Law
o 2. Under the Human Security Law (Sec. 49)
Covers acts of terrorism
Even if the act was committed outside the Philippines
(ex. before a consular or embassy of the Philippines
and it was an act against an officer, or in a Phil. Ship
or airship)
Act against Philippine citizens or against a specific
ethnic group.
But there can be instances where the hearings are conducted
elsewhere. Is this an exception?
o No, it‟s not an exception, even if there are instances like
the Ampatuan case being heard in Manila instead of
Maguindanao, or Mayor Sanchez case being heard in Pasig
instead of Laguna.
o What happened here was a mere transfer of venue. What was
transferred was the VENUE OF HEARING, but the place of
institution was still the place where the crime was committed.
o Where is this rule allowing transfer of hearing found?
Found in the Constitution, and subject to approval of
the SC.
What is the jurisdiction of courts under RA 7691?
o RTC: Penalty exceeds six years imprisonment
W/N committed in MM or outside MM does not
matter at all.
Regardless of fine or accessory penalty.
o MTC: Penalty does not exceed six years imprisonment.
o What if the penalty consists of just a fine?
SC Circular 09-94
If the fine exceeds 4,000 pesos, RTC has jurisdiction.
If it does not exceed 4,000 pesos, the MTC has
jurisdiction.
What is the jurisdiction of Special Agrarian Court?
o This is important because there can be a penalty for its
violation.
o DAR court has exclusive jurisdiction over all matters
Exception to DAR‟s exclusive and original second part covers officers whose positions may not be
jurisdiction are matters pertaining to just SG27 and higher, but who are by express provision of law
compensation which goes to the courts are placed under the SB.
Also and more importantly the RTC as special Sec 4a(1g) gives the SB jurisdiction over officers in
Agrarian Reform Court also has exclusive and State-owned universities [Student Reagent is part of
original jurisdiction for prosecution of all criminal the board]
cases under the DAR Law What if the public officer is not SG27 but the office was a
What is the jurisdiction of the Sandiganbayan? constitutive element of the offense? Which court has jurisdiction?
o 1. The accused is at least a Salary Grade 27 employee. o Regular courts, subject to appeal before the SB.
o 2. And the office must be a constitutive element of the offense. o Because the SB has both original and appellate jurisdiction.
o Can you be charged of offenses falling under the RPC? What if there is one public officer falling under the SB jurisdiction
and the other is not?
Yes.
Can there be instances when you are not SG27 and still be
o They can both be charged as co-accused under the SB if at
least one is SG27.
under the SB jurisdiction?
o Esquivel v. OMB: There was a session in Sanggunian
o Yes, if there is an express provision.
involving both a Municipal Mayor and a Barangay Captain.
o Serrano: UP Student Reagent is a public officer under
The MM was charged in the SB (since he was SG27) and the
the SB‟s jurisdiction. She claimed that she did not get any Brgy. Captain was charged as co-accused, even if he was not
compensation and she was not a public officer. While the SG27. HELD: Valid, because at least one of the co-accused
first part of 4a only covers officials SG27 and above, the was SG27.
What if a co-accused is a private party? o Covers any act of malfeasance/misfeasance or omission by a
o Yes, the SB can have jurisdiction over him. public officer.
o Remember, below 15 years of age, he is exempt Can there be direct filing in a Metropolitan TC (Met. C)?
o 15 to below 18, exempt if without discernment o No. Just a MTC (Municipal Trial Court).
If with discernment, go through juvenile law o Because only MM/CCs have Metropolitan TCs.
o W hat controls is NOT the age at the time of promulgation of What is the procedure in MM, requiring PI?
judgment, but the age at the time of commission of the offense. o The entire Rule 112, Sec. 3:
What exceptional circumstances call justify an injunction to 1. File complaint
restrain criminal prosecution? (IMPT) 2. Investigating officer dismisses it or
o 1. To afford adequate protection to the constitutional rights of issues subpoena to respondent
the accused 3. Respondent submits counter-affidavit
o 2. Necessary for orderly administration of justice or to avoid 4. If subpoena impossible or no counter-affidavit,
oppression/multiplicity of actions investigating officer decides based on complaint
o 3. Double jeopardy is clearly apparent 5. If there is counter-affidavit, the officer can set up a
o 4. Charges are manifestly false and motivated by lust for clarificatory hearing
vengeance 6. Resolution
o 5. When there is clearly no prima facie case against the o N.B. Remember, all periods here are 10 days
accused and a motion to quash on that ground was denied
What is the procedure in MM, not requiring PI?
Rule 110 – institution of criminal actions o Only Rule 112, Sec 3(A):
1. File complaint
When does distinguishing between offenses committed in o Then the prosecutor already decides
and outside of MM matter?
On a BP 22 case, when is the prescriptive period deemed as
o If for purposes of jurisdiction of courts, there is no need to
interrupted? Upon filing the case in court or filing of the case
distinguish between MM and Outside MM (OMM), for purposes before the Office of the Prosecutor?
of institution of the criminal complaint, you will have to
distinguish between MM/Chartered City (CC) and OMM.
o Note that prescription is 4 years for BP 22. When Act 3326
was passed on 4 Dec 1926, preliminary investigation was
MM/CC OMM/OCC conducted by Justices of the Peace (equivalent of MTC
Requiring PI Office of the Prosecutor Office of the Prosecutor before), and so when it was filed with the JOP for PI, then
Not requiring PI Office of the Prosecutor Provincial the prescriptive period is interrupted.
Prosecutor/MTC
Falling under Rule Office of the Prosecutor Provincial 90
on summary proc. Prosecutor/MTC
(ex. BP22)
o So by filing the case with the Office of the Prosecutor, o (It cited a case where the SEC is investigating a violation of the
it interrupts the running of the period. Securities Code, and it was deemed to have interrupted the
period.)
90
Who has control and supervision of a criminal case? o Same rule applies to seduction, abduction, and acts of
o The public prosecutor. lasciviousness.
o So what are the 3-fold duties of a PP? Who can institute a rape case?
2
“Cause of accusation” is the equivalent of a cause of Yes. If there are multiple offenses in the information
action in a civil case and the accused fails to object, each offense proved
The language of the information should be in a can be used against him.
language known to the accused. Can you amend the information?
What is the reason for this?
Rule 116 says that the accused must be
properly informed of the nature and cause of
accusation against him to make a proper
arraignment and plea.
o 5. Date of commission
Do you need to provide the specific date of
commission of the offense?
No need. Just an approximation is needed.
Exception: if the date is a material element of
the offense.
Election offense
Infanticide
Is date a material element of the offense of rape?
No.
o 6. Place
Need to show that it is committed within the territorial
jurisdiction of the court
But for offenses like trespass to dwelling, violation of
domicile, election cases, arson, etc. where the
place of commission is material, you have to allege
it with particularity
o 7. Name of the offended party
Place it there, if it is known
If it is a crime against property, you describe the
property so that you will know who the offended party
is
What if it is later on discovered?
It can be inserted in the information
Only one offense per information
o Is there an exception?
o Yes. Ex. The original case is for rape, except that
Can you substitute the information for another? in the formal amendment, it was alleged that
o Yes. the age should have been 17 and not 18 due
to a typo. This will prejudice the rights of the
o We always remember amendment but forget
accused.
about substitution. So remember this. What is downgrading and exclusion?
When can you amend or substitute? o Downgrading is lessening the offense (ex. robbery to theft,
o Whether a matter of form or substance, there can murder to homicide, seduction to acts of lasciviousness)
be amendment if it is before plea. o Exclusion is removing from the information a person
o Can you still change the substance of an information o When must downgrading or exclusion take place?
after a plea?
Before plea.
No.
o What are the requirements for exclusion or downgrading?
o Can you still change a matter of form after a plea?
1. Upon motion of prosecution
Yes, as long as it will not prejudice the right of
the accused.
2. With leave of court
What is the test to know w/n it will prejudice the 3. With consent of the offended party
rights of the accused? What is difference between exclusion before plea and discharge
If the original defense of the accused will of the accused as State witness?
have to be changed due to the change in o If exclusion, there is no need to submit an affidavit. In
the formal amendment. discharge, you have to.
o In exclusion before plea, double jeopardy has not yet attached o Can you consolidate a Writ of Amparo case with a civil
so you can be charged again later on. In discharge as State case or an admin case?
witness, it is tantamount to an acquittal so double jeopardy No.
sets in.
What is substitution?
o The information will be substituted with a new one to be filed, if
the prosecution cannot prove the offense charged in the prior
information
o The accused will not be released until a new information has
been filed as a substitute
o 4. The acts from which the civil liability arises from were What will be suspended?
not committed The criminal case.
What is a prejudicial question? o Where do you file a motion to suspend on the ground of
o A criminal case will be suspended when there is a pending prejudicial question?
civil case which must be suspended until the prejudicial 1. The court
question is resolved. 2. The prosecutor conducting PI
o What are the requisites? o When do you file the motion to suspend?
1. The civil action was filed first
Anytime before the prosecution rests its case Distinguish from inquest?
o Can an administrative case suspend a criminal case on o Inquest is conducted by an inquest prosecutor, when one is
the ground of prejudicial question? caught under the three exceptional circumstances provided in
No. law
o Can another criminal case suspend a criminal case on the
ground of prejudicial question?
No.
What is an independent civil action?
o One that can proceed independent of a criminal case
o Arts. 31-34 of the NCC
o Art. 2176 of the NCC (quasi-delict)
If there is an independent civil case filed before the criminal case,
is the independent civil case suspended?
o No.
o If there is a criminal case filed ahead, do you need to
reserve the independent civil action?
No. YOU DO NOT RESERVE AN INDEPENDENT
CIVIL ACTION.
o Can it proceed side by side with a criminal case?
Yes.
Compare with a reserved civil action (i.e. not
independent).
It cannot proceed side by side.
o Must an independent civil action be reserved?
No need to be reserved, and it will not be suspended
If the civil action was instituted ahead of the criminal, and there
was a judgment stating that there was no civil liability, is the
offended party barred from filing another criminal action?
o No. Again, the burden of proof is different.
What is PI?
o Where the prosecutor determines whether there is
probable cause to file a case against a respondent
Who can conduct preliminary investigation? prosecutor?
o City prosecutors, and their assistants, Provincial Assistant prosecutor prepares it, and then
prosecutors and their assistants the city prosecutor approves it
o OMB, and if they authorize the Special Prosecutor he can too City prosecutor has discretion to dismiss the
What is the procedure for PI? complaint, file the information himself, or ask
another assistant/State prosecutor to file it
o 1. After receiving affidavit-complaint, the prosecutor
will determine within 10 ten days whether there is probable
o Regardless of recommendation
cause Can a resolution be issued by an assistant
Raffle prosecutor even without approval of the City
prosecutor?
Assigned to assistant prosecutor
No.
o 2. Assistant prosecutor issues a subpoena to the respondent
o 3. The respondent will issue a counter affidavit within 10 days
What if the City prosecutor does not
agree with the recommendation of the
In practice there can be a reply or rejoinder, but this assistant prosecutor?
is not provided by the rules
o He has discretion to reverse it.
o 4. Optional clarificatory hearing
If the assistant prosecutor believes that there is
o 5. Resolution
probable cause, he prepares a resolution AND an
Who prepares the resolution? information. Information is filed in court and
The Assistant prosecutor resolution served to the parties. If he does not find
that there is probable cause, he only prepares a
Is it the city prosecutor or the assistant
resolution. But regardless, no resolution can be
issued without the approval of the City or Provincial You were sued for slight physical injuries in MM, and it was not in
prosecutor. flagrante delicto, so it was on the basis of affidavit complaint.
Can you file a complaint with the OMB? What happens?
o Yes, and he will then investigate. He can also motu propio
investigate.
o Can the NBI conduct preliminary investigation?
No.
Is service of a subpoena and receipt thereof necessary for the
Office of the Prosecutor to obtain jurisdiction over the
respondent?
o No.
o There is still no case filed against him, just an investigation.
o Even if he does not get to file a counter affidavit, there can still
be a resolution issued against him.
X is arrested, accused of possessing illegal drugs, without a
warrant. What is the procedure?
o 1. X is taken to the police station
o 2. X can choose to apply for preliminary investigation, or have
them proceed with inquest
If X applies for preliminary investigation, what
happens?
You sign a waiver of Art. 125 of RPC
Will X be released?
If he applies for bail.
Where does X apply for PI?
Before the inquest prosecutor.
Where do you apply for bail?
With the Executive Judge. (This is a
“trade secret”)
What is the procedure if someone is arrested for vagrancy, without
warrant?
o Note that vagrancy does not need preliminary investigation, so
the information can be directly filed with the MTC.
o Can you apply for bail?
Yes, because you were already arrested.
o There is no need for preliminary investigation. the crime was committed
o So the prosecutor will determine probable cause, then will Second kind – the arresting officer has personal
knowledge
file the information in court.
o Is there a need for the respondent to file a counter If a person is arrested with a warrant can he be placed on inquest?
affidavit here, and is there need for preliminary o No.
investigation? What if he was arrested for an offense for which he was previously
No. charged, and then he escaped from detention and he was arrested
When are inquest proceedings applicable? without a warrant?
o It must be due to a warrantless arrest: o Inquest must be conducted.
B. A crime has been committed and the police o Within 15 days, file a Petition for Review to the DOJ.
officer has personal knowledge that the person o Must the petition be verified?
committed the crime Yes.
C. Escaped from confinement or escape o Can the period be extended?
o Also, it must be for an offense that requires PI (at least 4y, No.
2m, 1d) o If the DOJ decision is adverse, to where do you go?
If no need for PI, just file affidavit-complaint to
Rule 43, to the CA
the office of the prosecutor.(Because only 3A is
required) (Or Rule 65, to the CA if there was GADALEJ)
o How do we distinguish (A) from (B)? Only to the SC if it‟s the OMB
First kind – the arresting officer was there when
(Or Office of the President if punishable by reclusion So when does the court issue a warrant of arrest?
perpetua or higher) Only when there is failure by the accused to
o Can you have the DOJ review the resolution if the appear in court despite repeated notice
offense What is an example of a crime involving summary
in question does not require a PI? procedure?
No. This is clear in the circular. The offense must
require, for its charging, at least preliminary
investigation OR has gone through reinvestigation.
What is reinvestigation?
There was a regular PI, and you were not
satisfied with it, so one files for a
reinvestigation with the Office of the
Prosecutor or in court.
This is not provided in the rules.
Do all offenses in the RTC require PI?
o Yes, because all offenses charged in the RTC exceed 6
years (and PI is for 4y,2m,1d)
Once the information is filed in court, what can the judge do?
o 1. Issue a warrant of arrest, after personally determining the
existence of probable cause
o 2. Dismiss the case for absence of probable cause
o 3. The court can call for a hearing to determine probable cause
So what are the options for a judge in an RTC case?
o Just these three.
What about the MTC? – Distinguish:
o A. Not exceeding 6y, but more than 4y,2m,1d:
See above [the three options]. So it‟s like the RTC.
o B. Below 4y,2m,1d, more than 6m
Same as three above, but the issuance of the warrant
is up to the discretion of the court. If the court
believes the offense is not so grave, it may not issue
a warrant and will just issue summons.
o C. Not more than 6m, falling under the rule on SP
The court cannot issue a warrant of arrest. Instead,
the court requires you to file a counter affidavit
BP 22 2. Informing the accused imperils the arrest
When can you file a motion for determination of probable What is the duty of the arresting officer if the arrest is without a
cause? o After filing of information, but before the judge warrant?
has acted on it oCan you file after issuance of a warrant of o 1. State authority to arrest
arrest? o 2. Cause of the arrest
No.
o Exceptions to this?
Will the filing of a petition for review suspend the issuance of
a warrant of arrest?
1. Engaged in commission of the offense
o No. The mere filing of a petition for review will not suspend 2. Pursued immediately after offense
the issuance of a warrant of arrest. 3. Flees/forcible resistance
o What it suspends is the arraignment. 4. Informing accused imperils arrest
o For how long? What about arrest by a private person?
60 days suspension of o 1. State cause of arrest
o 2. And intent to arrest him
arraignment. Rule 113 – Arrest
What are the other circumstances where there can be arrest
without warrant?
Does the arresting officer need to show the warrant of arrest?
o 1. Judicial bondsman may arrest him to surrender accused
o 1. Inform cause of arrest
to court
o 2. And that a warrant had been issued for his arrest
o 2. Attempt to depart the country
o Exception to this?
o 3. Person who has been lawfully arrested and has escaped
1. Flees/forcible resistance
After arrest what do you do? What if you did not ask for a preliminary
o 1. Bring him to the police station investigation?
o 2. He will be incarcerated until he files for bail o An information can be filed
What if he does not apply for bail? o Afterwards, there is arraignment
He will stay in the city jail in the pendency Rule 114 – Bail
of the case.
If it‟s a non-bailable offense, it‟s a different
procedure. the executive judge.
Just wait for arraignment. After waiver of 125, what is the next step?
What if he applies for bail? o Go to preliminary investigation.
Rule 114
Expat is out on bail, he always leave every few weeks, can he do that?
Leave without approval of court? ANS: NO. Accused out on bail cannot
depart from Philippines without securing approval of the court. If he departs
without securing such approval, he can be arrested without a warrant.
If accused is charged with vagrancy and has been in detention for almost 2
years, what should the judge do with the accused?
o 1. During arraignment
o If the value of probability of paternity is less than 99.9% -
merely corroborative
o 2. During trial
o If the value is 99.9% or higher – it is a disputable presumption
o 3. Before records are elevated on appeal (accused informed
o Why is it just a disputable presumption?
of right to counsel by clerk of court at this point)
o 4. In the CA – Because you can still argue that it would have been
physically impossible for one to do it, or there is no
When the accused signed his appeal by himself
access, and that there is someone who could have
Or accused is in prison similar DNA makeup (twins, for instance).
2
o Differentiate corroborative from cumulative evidence? before or during trial.
Corroborative proving same point, but different In Constitution, any time as long as the
kind and character of evidence action is pending.
Cumulative Same kind and character,
o What is the remedy for speedy trial
under the
proving same point
Constitution?
D. Right to be present in the course of the proceedings
o What is the consequence of his absence in the hearing?
There can be a trial in absentia if there already is
arraignment and the accused is unjustifiably absent
o When is his presence mandatory?
The general rule is the he must be present at all
stages of the proceeding.
o Can this be waived?
Yes.
o Where and when should it be waived?
There should be a stipulation in the conditions of bail.
So as a rule, it cannot be waived.
o What if the private complainant is absent?
It‟s fine.
E. The right to public trial
o General rule is that the trial is public
o When can the public be excluded?
Found in Rule 119, Sec 21. (offensive to
decency/public morals)
o Does public trial include public viewing on TV or radio
broadcast?
No. It opens room for lawyers to grandstand.
o Also recognized in evidence:
F. Right to speedy trial
o How many kinds of speedy trial?
1. Speedy disposition of the case (constitutional law)
2. Right to speedy trial (criminal law)
o What is the difference?
In the Crim Pro concept, you can invoke it anytime
3
Habeas Corpus Mental/physical examination of accused
Because your continuous detention has no more legal basis Other criminal charges
o What if it’s in criminal procedure? Extraordinary remedies against
Certiorari interlocutory orders
Prohibition Pre-trial proceedings, as long as not
Mandamus exceeding 30 days
o Rule 119 has a computation. How long is the maximum time Orders of inhibition or change/transfer of
between the arraignment and trial? venue
80 days Prejudicial question
If you don‟t follow number days, you could expect a MTD Any period not exceeding 30 days when the
on ground of violation of right to speedy trial accused is actually under advisement
o Entire period of trial? [Unavailable, unable]
180 days 2. Absence or unavailability of an essential witness
o But why are a lot of cases that do not commence in time, and Absent whereabouts unknown
are not dismissed due to violation of this right?
Unavailability whereabouts known
Because of the exclusions.
3. There is a co-accused over whom the court has
o What are the exclusions?
not acquired jurisdiction or for whom time for trial has
1. Other proceedings: not run and no motion for separate trial is granted
4
4. Mental incompetence or physical inability of the prosecution/accused. This is the equivalent of Rule
accused to stand trial 23 depositions in criminal trial.
[Upon motions] Purposes for prosecution:
5. Prosecution dismissed information upon motion
and then filed another charge for the same case – the
time limit between the dismissal and the subsequent
charge
6. Continuance granted by the court motu propio or
on motion
Memorize this list. Rule 119 Sec 3.
o Cases:
In one case, Pre-trial happened after 7 years. Delay
was brought about by extraordinary remedies, like a
Rule 65 certiorari. The right to speedy trial was
invoked, but the SC said there was a valid exclusion
But as a rule, extraordinary remedies must
not be entertained and will not stop an
ongoing criminal trial. Of course, there are
special cases.
In another case, there were 20 postponements. The
witness requested by the prosecution was in the
custody of the NBI, but did not bring the witness in.
This was reasonable delay, and the prosecution was
acting in GF.
o What is “VCO”?
Vexatious, capricious, oppressive
VCO delays violate the right to speedy trial
G. Right to confront witnesses presented against him
o Basically, can cross examine
H. Right to have compulsory processes to secure attendance of
witnesses and production of evidence
o Can apply for subpoena ad testificandum and duces tecum
o Right to modes of discovery:
Can apply modes of discovery in criminal cases.
Rule 119, Secs. 12, 13, 15 Conditional
examination of witnesses for the
1. Sick or infirm, or unavailable o What is the effect of silence?
D. Improvident plea
o If the conviction is supported by
other evidence, the SC will render
What is an improvident plea? judgment
o Plea of guilty without fully understanding o 2. Plea of non-guilty
consequences of the plea
A. Conditional plea
o X pleaded guilty to homicide. He didn’t
What is this equivalent to?
know that if he pleaded guilty, there
o It‟s akin to a plea of not guilty
won’t be any hearing anymore. Can he
withdraw the improvident plea? B. Refusal to enter a plea
Yes. The court assumes it‟s not guilty
When can it be withdrawn? Can a representative enter a plea of not
o Any time before judgment of conviction guilty?
becomes final (after appeal) o No. The accused must be the one
to enter the plea.
What are the further actions of the court in
case of an improvident plea?
[Should the accused be present during
promulgation of judgment?]
o If the sole basis of conviction is the
improvident plea, it is remanded for further
o Yes. o Dismissal of the case.
o Is there an exception to this rule? o Is it always dismissal?
Yes, for light offenses. No. The court can order amendment. [No period
The accused can be provided.]
represented.
C. Direct plea of not guilty
D. Say guilty but present exculpatory evidence
When is there suspension of arraignment?
o 1. Accused suffers from unsound mental condition
o 2. Prejudicial question
o 3. Petition for review pending with DOJ
Not exceed 60 days
o 4. Pending incidents:
A. Motion to quash
B. Motion for inhibition
C. Motion for bill of particulars
Can there be a bill of particulars in a
criminal case?
o Yes. Apply before enter of plea.
What is required?
o Identify defects and details
o 4. Surrebuttal
o 5. Submission of memoranda
o Are rebuttal and surrebutal necessary?
No. This is upon court‟s discretion.
Likewise, with submission of memoranda.
o Can it be reversed?
Yes, when there is self defense and other
exculpatory defenses
Discharge of the accused as state witness – requisites?
o 1. There is no direct evidence
So for this, you have no one who can point to the
perpetrator.
What is the opposite of direct evidence?
Circumstantial evidence
o 2. There is absolute necessity for the
evidence o 3. Could be corroborated in its
material points o4. Not the most guilty
o 5. Not convicted of a crime involving moral turpitude
When can an application for discharge be made?
o Before the prosecution rests its case
o What does the applicant need to do or submit?
Submitting sworn affidavit
o What happens to the statement?
Becomes part of the evidence of prosecution
o What happens to the accused?
Becomes acquitted
o If the application is denied, what happens to the
statement?
It‟s inadmissible
o Does double jeopardy set in, if under WPP? When do you file motion for demurrer in criminal case?
No, because there is no plea. o 1. Non-extendible period of 5 days from prosecution resting its
So he can be prosecuted afterwards (!) case
When do you file a demurrer to evidence? o And then?
o Civil – after plaintiff has completed presentation of evidence Prosecution can oppose the motion in non-extendible
period of 5 days from receipt
o Criminal – after the prosecution rests
o And then?
Do you need leave of court?
If leave is granted, accused has non-extendible
o In criminal: you don‟t need to, but there are period of 10 days from notice to file the demurrer
serious consequences if you do not secure leave.
Prosecution can oppose the demurrer in non-
If you file with leave of court and it‟s denied, the extendible period of 10 days from receipt
accused can still present evidence In criminal cases, if the demurrer is denied, can you file a petition
If you file without leave of court and it‟s denied, for certiorari?
the accused will not be able to present evidence – o No. You cannot file a petition for certiorari. You have to wait
there will be a judgment for judgment.
o In civil: no need for leave of court
What’s the effect of a grant of demurrer in a civil case?
o N.B. demurrer in criminal case on the court’s own
o It‟s a final disposition of the case.
initiative (motu propio) after giving prosecution chance to
be heard is allowed o In a criminal case?
It‟s a dismissal. It amounts to an acquittal.
o If the demurrer is granted and the accused is acquitted,
Or if the facts from which the civil liability might
can the accused adduce evidence on the civil aspect of rise from were not committed
the case?
Does the prosecution have remedy against an acquittal?
Despite the acquittal, the court can still hear the case o Note than an acquittal is immediately executory.
as to the civil aspect, unless there is a declaration that
the fact from which the civil liability would arise does
o But if there is GADALEJ (P v. Hernandez) – you can file
for certiorari
not exist.
So if the accused was not able to present evidence in
Before you challenge an acquittal this way, you
have to secure consent of the Solicitor General
the civil aspect, it is a void judgment.
Recall: Exclusions to the 180-day rule for trial to finish from its first day.
And this is only for exceptional circumstances
o How long before the proceedings terminate? o When duly certified by the division, and then forwarded to the
clerk of court, who will give notice of promulgation on paper
30 days from
Can a judgment be modified?
granting Rule 120 – Judgments o Yes, before it is final and
(NT/MR/Appeals)
. MR/MNT
When?
o 15 days A statutory right, and affirmed in the ROC
o Is Neypes applicable (fresh period rule)? 2. Offended party
Yes. 3. People of the Philippines
Grounds for MNT? When may the private offended party appeal?
o 1. Errors of law/irregularities prejudicing substantive rights of
accused during trial
o 2. Newly discovered evidence
Material
Could not have been discovered with
reasonable diligence
Would probably change judgment
o How long does the court have to commence a new
trial from the order granting an MNT?
30 days from the notice of such order
Extendable up to 180 days from notice, if the period
is impractical
Ground for MR?
o 1. Errors of law or fact requiring no further proceedings
Can you file MNT in the CA?
o Yes
o What ground?
Newly discovered evidence only
o What is the period?
From perfection of appeal until the court loses
jurisdiction
Can you file MR in the CA?
o Yes, but just one.
Ordinary appeal
2
Same. Parties submit memoranda. implemented). How do you appeal?
Criminal: Court of original jurisdiction is the RTC, and he was o There is automatic review to the Court of Appeals, even in the
convicted for homicide. Appeal? absence of a notice of appeal.
o Go to the Court of Appeals, through Notice of appeal filed with o The case is with the CA. What can the CA do?
the RTC.
o Compare/contrast with RTC in civil action:
Go to the CA, through Notice of appeal filed with
RTC. OR file a record of appeal.
So still the same.
o What is the procedure followed by the CA in criminal
cases?
File appellant‟s brief (Rule 124), within 30 days
File appellee‟s brief, within 30 days
Reply brief, within 20 days
o Compare/contrast with civil cases:
45/45/20 days
Sample scenarios
o The judge. Not the prosecutor. o But was the search warrant valid?
o Wherelse is probable cause required, apart Yes. The search warrant can be valid, but
from application for search warrant? the implementation was invalid.
1. Preliminary investigation
o There were illegal items seized from apartment C. How
can you prevent these goods from being used in a
2. Rule 113, warrantless arrest (personal criminal trial?
knowledge that crime has been committed)
Motion to suppress.
3. Warrant of arrest o Differentiate motion to quash from motion to suppress.
4. Search and seizure
Motion to quash is before implementation of the
o What is required for the judge to do? search warrant.
Personal examination and determination by the Motion to suppress is after implementation and
judge of the complainant/applicant and witnesses. before presentation in court.
It does not involve mere submission of affidavits. o What if there is no way to describe with particularity the
Give an example of a search based on a warrant, where the place, esp. when it is a province?
It‟s possible to say “kilometer 30.” But this can‟t 1. DDL,
apply for cities or municipalities. 2. IP code,
To whom must a search warrant be served?
3. illegal possession of firearms,
o The lawful occupant.
4. illegal gambling,
o In the absence of the lawful occupant?
To a relative.
o In the absence of the occupant or relative?
To two witnesses of sufficient age and
discretion residing in that locality.
When the items are seized, to whom must the receipt be given?
o To the lawful occupant or relative
o If there are two witnesses, the receipt will be left in the
premises where they were seized
When can it be conducted?
o The warrant must provide that search is in day time
o N.B. Unless affidavit asserts the property is on the person or
place ordered to be searched, in which case, it is day or night
What is the duty of the officer after the search?
o He should present an inventory of the items. Failure to submit
inventory makes him liable for contempt.
Dangerous Drugs Law: what are the special rules?
o The inventory must be made at the scene of the crime. (For
normal crimes, it can be done in court or police station or
wherever.)
o The person must make a physical science report to track
the chain of custody.
What is the rule as to search and arrest?
o The general rule is that the arrest must come before the
search and seizure.
o Or, the search and seizure must be contemporaneous to
arrest.
If you apply for a search warrant in QC, can it be applied outside
of the territorial jurisdiction?
o As a general rule, no.
o But allowed as an exception for violations of:
5. Heinous crimes,
6. AML, What is the general rule?
7. Violation of tariff and customs code. o Provisional remedies in civil procedure are applicable to
criminal procedure.
o You have to apply before an executive judge before the
City of Manila or Quezon City. This will be effective What about replevin?
anywhere in the Philippines. o Does not apply because it can only be filed before an answer,
Re: Seizure of fake goods (ex. fake Adidas) – What is the role but in a criminal case, there is no answer.
of the private party? What are the grounds for attachment in criminal cases?
o The private party can submit documents and pleadings to o 1. The accused is about to abscond or depart with intent to
support the application of the NBI. defraud
The place of manufacture of the fake goods is in Cavite, and o 2. Claim for money or property that has been embezzled with
place of sale is in San Juan. Where do you apply? abuse of trust (estafa)
o Either place. o 3. Accused resides outside the Philippines
o 4. Accused has concealed/removed/disposed his property
Rule 127 – Provisional remedies
Situation Period Remarks
PRELIMINARY
INVESTIGATION
Filing of complaint *start of criminal
procedure*
Initial action of Within 10 days from Either dismissing or
prosecutor (no PI) filing of complaint prosper
Initial action of Within 10 days from Dismiss case or issue
prosecutor (with PI) filing of complaint subpoena to
respondent
Respondent submits Within 10 days from If respondent cannot be complaint;
counter-affidavit receipt of subpoena subpoenaed or did not Arraigned within 10
submit counter-affidavit days from date of raffle;
within 10 days, Pre-trial within 10 days
prosecutor resolves from arraignment
based on complaint Suspension of Maximum 60 days from
alone arraignment due to filing of petition
Clarificatory hearing Within 10 days from (Optional) petition for review filed
submission of counter- with Sec. of DOJ
affidavits Filing of motion to Any time before he is
Termination of Within 5 days from first quash arraigned
clarificatory hearing hearing
Resolution Within 10 days after TRIAL
investigation Time for accused to At least 15 days from
Forward record of case Within 5 days from prepare for trial plea of not guilty
to provincial or city resolution Commencement of trial Within 30 days from
prosecutor or receipt of pre-trial order
OMB/deputy Commencement of trial Within 30 days from Allow extension up to
Action by the provincial Within 10 days from Can: a) dismiss or b) after MNT granted notice of the order 180 days, by the court
or city prosecutor or receipt file information Entire trial period Maximum 180 days
OMB/deputy from first day of trial
Judge determines Within 10 days from If judge doubts Exclusion from 180 day Maximum 30 days
probable cause filing of information or existence of probable limit of delay due to
complaint cause, he may opt to: pre-trial proceedings or
Prosecutor to present Within 5 days from The 10 days to period in which
additional evidence notice determine extends to accused is actually
upon judicial order 30 days under advisement
(Post inquest) Filing of Within 5 days from the Examination of witness Order by court (upon Before a judge,
complaint or time he learns of its for defense (aka modes application of accused) member of bar in good
information in court filing of discovery for criminal issued at least 3 days standing, or inferior
without preliminary action) before the examination court
investigation – accused Leave of court to file Within 5 days after Non-extendible
may ask for preliminary demurrer to evidence prosecution rests its
investigation case
Opposition by Within 5 days from Non-extendible
ARRAIGNMENT and prosecution to the receipt of the motion
PRE-TRIAL motion
After being granted Within 10 days from Non-extendible
Arraignment of person Within 30 days from This same period must
leave, filing of demurrer notice
not under preventive date court acquires cover pre-trial
to evidence
detention jurisdiction over him
Reopening of trial to Anytime before finality Terminate proceedings
Arraignment of person Raffled within 3 days Remember the 3:10:10
avoid miscarriage of of conviction within 30 days from
under preventive from filing of rule
justice order granting it
detention information or
JUDGMENT, o 3. Testimonial
REMEDIES Whether it’s object, documentary or testimonial, what is required?
Surrender of convicted Within 15 days from Surrender and file
o They have to pass the test of admissibility (Rule 128, Sec. 3)
accused, after initially promulgation of motion to avail of post-
failing to appear in judgment judgment remedies
promulgation of (because these will not Direct: proves fact in dispute without
judgment avail anymore) need for inference or presumption
Availing of post- Within 15 days from
judgment remedies of notice, after proving
above-stated person justifiable reasons for Primary: best evidence; affords
non-appearance greatest certainty of fact
Appeal from judgment *follow usual periods in Positive: witness affirms that a fact
appeal did or did not occur. Positive trumps negative, when witnesses equally credible
Submission of Within 30 days of
appellant‟s brief receipt of notice from
clerk of transmittal of
evidence Corroborative: Different kind and
Submission of character proving the same point
appellee‟s brief
Prima facie: that which suffices to
prove a fact, until contradicted by other evidence
General provisions
probans? o Factum probandum is what Is the court bound to take judicial notice of municipal orders?
must be proved o Factum probans is o MTC judge required, if ordinance came from municipality
what is used to prove it or city where they sit
o RTC judge No. Except when a) required by statute; b)
Judicial notice and judicial admissions
inferior court took judicial notice of an ordinance in the
case being appealed before RTC
When is it mandatory?
o What about memorandum circulars issued by
o 1. States – existence, territorial extent, political history, departments?
forms of government, symbols of nationality
No. The court is not expected to take notice of these
o 2. Law of nations, admiralty, maritime courts of the world, less important matters.
and their seals o What about customs and foreign laws?
o 3. Political constitution and history of the Philippines, No, these must be proved in court
official acts of legislative, executive, judicial departments of
Philippines
Are courts bound to take judicial notice of cases pending in the
same court or decided in that court?
o 4. Laws of nature, measure of time, geographical divisions
o No. The courts will not and cannot, even if it came from the When can there be taking of judicial notice?
same court. o 1. During trial – on any matter and with hearing
o What are the requisites for the exceptional circumstance o 2. After trial and before judgment – same, but only on matters
when a marked but unoffered piece of evidence decisive of a material issue in a case
referencing a prior decided case fell under judicial notice
(note, if it were offered, no need to resort to judicial
notice)? (Basis: Tabuena v. CA)
1. Without objection by the other party
2. With knowledge of the other party
3. At the request or with consent of the parties
4. The case is clearly referred to
5. It is actually withdrawn from the archives
6. It is admitted as part of the record of the case
What is covered by discretionary judicial notice?
o 1. Matters of public knowledge
Example: Death of Corazon Aquino
o 2. Capable of unquestionable demonstration
What is this? If repeated in a regular manner, it will
establish that fact.
Examples:
Mathematical computation
Statistics
Effects of poison, etc.
Do surveys fall under this?
No, because methods change, samples
change, etc.
o 3. Ought to be known to judges due to their judicial function
Can a judge take judicial notice of proceedings
pending in other courts?
No.
He‟s not bound to know all the cases filed.
What about pending cases in his own sala?
No.
Unless he takes the consent of the parties.
o 3. After appeal – same, but only on matters decisive of in utterances in a trial
a material issue in a case o Do you need proof as to judicial admissions?
Can every matter be subject of judicial notice? No.
o Yes, during the hearing. When is there a judicial admission?
o You are not limited to the enumerations provided in law. o Made in the same pending proceedings
o What is the need for a hearing? o What if made in prior proceedings?
Check propriety of taking judicial notice These already become extrajudicial
There was an insurance recovery claim, dated September 2009. admissions, which are by nature disputable
It was not alleged in the claim that the loss happened on the What are covered?
day Ondoy struck Manila. Can the other party request the court o 1. Statements in pleadings (ex. complaint or
to take judicial notice (or can the court motu propio take judicial answer) o 2. Statements made during testimonial
notice) of this fact? presentation o 3. Depositions or other documents
o Yes. o 4. Pre-trial
Differentiate between legislative facts and adjudicative facts: o 5. Documents submitted in court
o Legislative facts: general facts of political, social, or o Can they be withdrawn?
economic nature Yes.
o Adjudicative facts: those applicable to the facts in the When?
present case
1. There was no intent to make such an admission
Judicial admissions:
2. Or there was palpable mistake
o Statement made as to a fact in issue made in a pleading or
What is the nature of admissions made in amended pleadings? What is chain of custody?
o They are mere extra-judicial admissions. Thus, they have to o Before an object can be received in evidence, one must: A)
be offered in evidence first. present all the persons who handled the object and show what
Rule 130
Object evidence
1
they did to it; B) and that during the time they had it in their What is demonstrative evidence?
possession, no other person had access to that thing.
o Evidence that adds to or explains.
o The purpose is to show that evidence was not tampered with.
o Maps, charts, graphs, etc.
Does non-production of object evidence render
o Is it the same as demonstration?
testimonial evidence re: the object inadmissible?
o No. This just goes into weight. No. Demonstration is when you ask for a re-
enactment or display of how an act was done or re:
Are experiments admissible? facts.
o Yes.
o When is it not? Documentary evidence
2
o Why are these documentary evidence? itself
It can be in any material, as long as it is a writing or o What if all you want to establish is the
inscription. existence of a document, do you need to present
What about text mesage? the original?
3
N.B. However in practice, try to always present the o Or printing 5 copies of the same
original. document, and then sign all
o What is the original? What if I print and sign one, then make
1. The one the contents of which are the subject of inquiry my secretary produce four copies?
Is the copy made an original just because o The four copies are not originals
the contents thereof are the subject of I executed a document by 8 counterparts
inquiry? (ex. bills in set), signed four here in
o No. You still have to go to the original. Manila on Feb. 28 and shipped four to HK,
Do you need to authenticate an original which were signed on Mar. 1. Are they all
document even if it appears to be an original? original, even if executed in different
o Yes, even if it appears to be an original. dates?
2. Document is in two or more copies executed at or about o Yes, they can be regarded as
the same time with identical contents originals.
Usual examples: o N.B. You have to stipulate in the
o Carbon copies contract (“execution by
counterparts”) that even if not
o Computers that shoot straight through to
the Xerox machine, and then sign all
4
executed on or about the same Agreement containing the
time, they are all originals. basic terms
3. Entry is repeated in the regular course of business, o Ex. A demand letter
one copied from another at or near the time of the
transaction
N.B. this refers to “entry” not “execution,” but
you do not sign the books
o Does “execution” in number 2 include formalities like
notarization and affixing signature?
It depends on what form is required from the contract.
What are the exceptions to the Best Evidence Rule?
o 1. The original has been lost, destroyed, or cannot be
produced in court
Not through the fault or bad faith of the offeror
Must there be exercise of diligence?
Yes, the offeror must attempt to procure the
original
In cases of loss or destruction, can you present
secondary evidence?
Yes. You need to lay the basis first.
What do you need to do?
o 1. Prove that the document exists
and it was duly executed
o 2. Prove cause of unavailability
The actual presentation of secondary
evidence will only come after laying the
basis.
What are the types of secondary evidence that
you can present?
1. Copy of the document
2. Recital of its contents in an authentic
document
o Ex. Secretary‟s certificate, in case
of loss of the minutes
o Ex. There is a mother contract,
and there is a Memorandum of
o Must it be a verbatim copy or is which cannot be examined in court without
paraphrasing fine? great loss of time
Verbatim copy 2. Provide access to the other party to the
original documents
3. Testimony of a witness
What must be proved by these documents?
Must it be in this order?
The fact sought to be established must be
Yes. Follow this order. the general result of the whole
o 2. Original is in the adverse party‟s custody or control What if the voluminous documents are financial
What are the requisites? documents for the past 20 years, and the
fact sought to proved is the profit/gain for this
1. Document exists
period?
2. There is reasonable notice to produce it given
You can present a summary because you
to the other party
are proving the general result of a whole.
3. There is failure to produce What do you need to present?
Does this lead to presentation of secondary You just need to present a summary of the
evidence? documents
Yes When do you need to present the original?
o 3. Original constitutes voluminous documents When the contents thereof are the subject of
Requisites? the inquiry – no matter how voluminous they
1. Prove voluminous nature of the documents, are.
o 4. Original which is in the custody of a public officer or When is a photocopy inadmissible under the Rules on Electronic
recorded in a public office Evidence?
Can you present the original? o 1. There is genuine dispute as to the authenticity of the original
No, because it‟s in the custody of that officer o 2. Unfair or inequitable under the circumstances to admit it
or office.
What do you present?
A certified true copy given by the public
officer in custody thereof.
Give an example.
NSO Birth Certificate.
Just the Xerox copy of buy-bust money is presented in court.
Admissible?
o Yes, because you are just proving the money exists, and not
the contents of the money.
o Test: What is being proved?
That the money exists.
Not the content of the money as a document.
If you want to prove payment, can you just present the
witness who was there at the time payment was made, and not the
receipt? o Yes. The BER does not apply because what is being
proved is
the fact of payment, even when there is a receipt.
o Test: What is being proved?
That there was payment.
Not the content of the specific receipt.
How does the BER apply to Electronic evidence?
o An electronic document is regarded as the equivalent of
the original under the BER if:
1. It is a printout or output readable by sight or other
means
2. It is shown to reflect the data accurately
What is the rule on electronic documents?
o In general, they are the functional equivalent of original
documents
When a document is altered or amended by the parties, what is and instead presented a reconstruction made after the film was
the original? released. Barred by BER?
o The amended or altered document o Yes. The fact at issue is the content of the drawings, so the
original must have been presented. X could not properly prove
X was ejected from his seat in ABC airline. Protesting, he told the
in this case, moreover, that the original drawings were lost
purser about the incident. The purser recorded in his notebook that without his fault.
X was ejected from his seat. Does BER prohibit testimony re:
the purser’s act because the notebook was not presented?
What is the Parole Evidence Rule?
o No. The fact at issue is the ouster, not the contents of the o When the contents of a document are reduced to writing, it is
notebook. considered as containing all the terms agreed upon – as
between the parties and their successors in interest.
X was being investigated for alleged perjury in a senatorial
investigation for malversation charges. The chief counsel in the
o No other evidence of such terms can be presented.
investigation testified as X‟s statements in the investigation. X What are the exceptions?
objected, claiming the transcript is the best evidence and the chief o 1. Intrinsic ambiguity, mistake, or imperfection in the written
counsel‟s investigation is barred by BER. Correct? agreement
o No. The issue here is not the contents of the transcript Must it be ambiguous on its face?
but what X said in the investigation. The issue is not re: No. The ambiguity must be intrinsic.
contents of a document.
Give an example.
X claimed that a movie infringed on his copyright over original
designs for a vehicle. X was unable to present his original designs, In a will, the testator said “I give half my
property to my son Buboy.” When the will
was being probated, it turns out there were X approached Y, asking for money for tuition fee of his
two sons with the nickname Buboy. son. X said he intended to mortgage his property. Y
What mistake is contemplated? asked him to sign
Mistake of fact, and the mistake was mutual
What are the requisites?
o 1. Mistake is of fact
o 2. Mistake is mutual
o 3. Mistake must be alleged and
proved by clear and convincing
evidence
What do you do with the contract?
o Reform.
o When do you not reform?
When there was no
meeting of the minds.
Example, X thought it was
the property in Batangas,
Y thought it was the
property in Cavite.
Give an example.
o Contract of sale of property. X
thought it was Batangas, Y thought
it was Batangas. But it was actually
in Cavite.
Give an example of imperfection in the written
agreement?
The provision says that the offended party
must pay damages, when it fact, the offender
must pay.
Another: X and Y entered into a contract of
sale of property, over a Batangas property.
But the technical specifications provided
were those of the Cavite property.
o 2. The failure of the written agreement to express the true
intent and agreement of the parties
Give an example.
a document, but that contract it was amended from a 20-year agreement
provided for an absolute sale to a 10- year agreement
o 3. Validity of the written agreement is at issue What is the rule?
Can a contract void on its face be 1. The separate oral agreement must be A)
made valid by presentation of collateral and B) it must relate to a subject
extraneous evidence? distinct from that to which the contract
No. This provision does not applies
contemplate contracts that are 2. Or if there is a new contract
by nature void, to make them What if the document expressly states that all the
legal. rights and obligations of the parties are
What situations are covered under this? written therein?
1. No contract ever existed Even when there are collateral
2. Minds of the parties never met agreements, they cannot be presented
on the terms of the contract What is required?
3. No consideration upon which o The party questioning it must put it in issue in his pleadings
an agreement was formed What if a party fails to object, invoking the PER?
o 4. Existence of other terms agreed to by the o It will be deemed a waiver.
parties/their successors-in-interest after execution of If the party presenting parol evidence is not a party to the contract,
the written agreement
will the PER apply?
Give an example.
o No. The PER only binds the parties to the contract.
There is an original contract and
What if there is a suspensive condition in the contract? original OR
o When the operation of a contract is made to depend on the 2. It is unjust or inequitable to admit a copy in lieu of
occurrence of the event as a condition precedent, it may be the original
proved by parol evidence.
o This is not varying the terms of the agreement, because
there is legally no contract in existence.
To what kind of documentary evidence does PER apply?
o Written agreement. A receipt is not a written agreement.
Testimonial evidence
1
o What is the work product doctrine? What if he is an optometrist?
One party cannot inquire into the No, because he/she is not a doctor of
memoranda and files of the opposing client medicine
unless there is necessity or justification. What if he is an ophthalmologist?
C. Doctor-patient Covered
o What are the requisites? What about neurologist?
1. Claimed in a civil case Covered
2. Person is authorized to practice medicine What about psychologist?
3. Person acquired the info in his No, he must pursue further studies to be a
professional capacity doctor
4. Info is necessary for him to act in that What about psychiatrist?
capacity Covered
5. Disclosure of the information would tend
Who is an obstetrician?
to blacken the client‟s reputation
o Can you invoke this privilege in a criminal case? For pregnancy
2
o The husband wanted to present the findings of the doctor 2. Made to him in official confidence
on his spouse. Is the information covered by the 3. When the court finds public interest would suffer by
privilege? disclosure
No. The husband is not authorized to practice
medicine.
o Can the privilege be waived?
Yes.
o What if the doctor is merely presenting hypothetical facts
and is acting as an expert witness, is this covered?
No.
D. Priest-Penitent
o Requisites?
1. Confession made to minister or priest in his
professional character, and in the course of discipline
enjoined by the practice of denomination
2. Confession is of penitentiary character
o A protestant religion does not require confession through
a priest. If a protestant approaches her pastor and asks
for a confession and discloses information in the course
thereof, can the pastor invoke the privilege?
No. It should be enjoined by the religious institution to
which he/she belongs.
Just like a Catholic confessing to a nun – not covered
by the privilege.
o What if a group requires a public confession before a
crowd?
Not covered by the privilege.
o If “confession” was to simply ask for guidance from a
minister, is it covered?
No.
o Should the penitent be a member of that religious
institution to which the priest belongs to?
No. The priest will not ask anyway.
E. State Secrets
o What are the requisites?
1. Communication to public officer
o Who is the subject of the privilege? o What is this?
The public office, as regards State secrets Nobody may be compelled to testify against a direct
o Is this waivable? ascendant or descendant
Yes. It should be done by the court, after application. o Is this waivable?
E. Executive privilege
Yes.
2. Quasi-offenses Theft
Espiritu was placed on the stand and was asked about o 10. Learned treatises
matters he conversed about with Estrada. He started o 11. Prior testimony
talking, and there was an objection that is was hearsay.
Declarations Reputation Entries
Dying declaration As to pedigree Course of business
Declaration against Common reputation Official record 3. Would not have made that statement had it not
interest been true
Declaration about Commercial lists
pedigree
Res gestae Learned treatises
Prior testimony
[Declarations]
1. Dying declaration
o Requisites
1. The dying person is under the consciousness of
his impending death
2. Declaration relates to the
facts/circumstances pertaining to the death
3. He should eventually die
4. The recipient of the information should be
competent to testify
o Does this extend to civil cases?
Yes.
As long as it pertains to the circumstances regarding
his death.
o There is a dying person on the floor and he calls X. He
told X to tell his wife to handle his bank account, tell his
children to manage the properties, etc. Is this the proper
subject of a dying declaration?
No. It does not cover circumstances re: his death.
o What if he doesn’t die?
It becomes part of res gestae
o What if the dying declarant made an ante-
mortem statement, in writing, be presented in evidence?
Yes, because this exception covers memoranda.
2. Declaration against interest
o Requisites?
1. The person is dead/unavailable
2. Made statement against his interest
o Extends to declaration against pecuniary interest, But the relationship should be between the declarant
proprietary interest, criminal acts, etc. and the person whose pedigree is in question
o Why is this reliable? 4. Res gestae
Because by human nature, nobody will make o What are the kinds of res gestae?
a prejudicial statement against himself A. Spontaneous statements
3. Act or declaration about pedigree B. Verbal acts
o What must be in issue? o Requisites of spontaneous statements?
The pedigree of a person, even if not directly – 1. Startling occurrence
as long as it is relevant
2. Spontaneous statements
o Requisites?
1. The declarant is dead/unavailable
3. Relating to the circumstances of the occurrence
o What is to be testified on?
2. Declarant related by birth or marriage to the
person whose pedigree is in question His spontaneous statement
3. The relationship between the declarant and the o Why is this reliable?
person whose pedigree is in question is shown No time to fabricate
by independent evidence After 24 hours, is it still a startling occurrence?
4. Declaration was made prior to the controversy
Depends on how startled the person still is.
So there is no motive to falsify If he was able to go out malling already, etc.,
o Must the witness be related to the declarant? then there was time to fabricate.
No. He need not be. o What are verbal acts?
Statements made contemporaneous to an equivocal o Requisites?
act and characterizing it
Give an example of an equivocal act.
X handed a wad of cash to Y. This can
mean anything.
Give an example of a contemporaneous act
characterizing the equivocal act.
“I am lending this to you.”
NOTE: If Y testified, it‟s not hearsay because it was
told to him personally. If a third person who
overheard it testified, this is when the exception
applies.
5. Prior testimony/deposition of a witness
o Requisites?
1. Witness is dead/unable to testify
2. Identity of parties
3. Identity of issues
4. Opportunity to cross-examine in the prior case
[Reputation]
Yes.
How do you develop a reputation re: marriage?
1
What is direct examination? When the original cross-examination has ended
o Examination-in-chief of the prosecution presenting to and the witness is simply recalled
the witness facts relevant to the issue What is redirect examination?
o What is examination-in-chief? o Allow a witness to explain or supplement matters raised in
cross-examination
One that establishes what the prosecution seeks
to prove o May the courts allow questions on matters not raised on
cross?
Evidence-in-chief is what your witness will testify on
in direct examination. So if you have eight Yes, in their sound discretion.
witnesses, you have eight evidences-in-chief What is re-cross examination?
What is cross examination? o To examine matters raised in re-direct
o 1. Test the accuracy and truthfulness of witness‟ testimony o May the courts still allow questions on matters not raised
o 2. To elicit all information from the witness on redirect?
o What matters can be raised, in general? Yes, again in their sound discretion
“Matters touched upon on direct examination or What is the rule on recalling witnesses?
connected therewith… and to elicit all important o It cannot be done without leave of court, which
facts bearing upon the issue” exercises discretion based on the interests of justice
So this is more on accord with the English rule, rather What are leading questions?
than the American rule. Thus, matters are not
limited to those raised on direct. o Questions which suggest to the witnesses the answer which
o When does cross examination become a mere privilege? the examining party desires
2
Are leading questions allowed? o What is the only evidence that cannot be used in
o As a rule, not allowed in direct examination. impeaching?
o When else can you ask leading questions? Evidence of bad character (remember, this only
applies on rebuttal)
1. Cross examination
2. On preliminary matters
Ex. “Mr. X, you said a while ago you were an
employee of the petitioner corporation. Are
you an employee?”
3. Witness is ignorant, child of tender years, feeble-
minded, or deaf-mute
And there is some difficulty to get direct and
intelligible answers
4. Unwilling or hostile witness
N.B. There must be a court declaration to
make a person a hostile witness
Who is a hostile witness?
o 1. Adverse interest
o 2. Unjustified reluctance to testify
o 3. Misled the party into calling him
5. Adverse witness – adverse party or
officer/director/managing agent of juridical person
who is an adverse party
What are the two ways to impeach the witness?
o 1. Prior inconsistent statement
o 2. Contradictory evidence
N.B. cannot impeach through contradictory evidence
on mere collateral matters
o 3. Reputation of the witness for honesty/truth/integrity of the
witness is bad
o 4. Producing court record for conviction for an offense
May a party impeach his own witness?
o As a rule, no.
o Except when the witness is unwilling, hostile, or the adverse
party and the examining party has to have the court declare
him as a hostile witness
o May the other party still cross-examine the o What is the evidence?
hostile witness? If the witness has independent recollection, then the
Yes. testimony is the evidence.
What are the two kinds of memorandum? If he has no independent recollection, the
o 1. Present recollection revived memorandum itself is the evidence. But it must be
taken with caution.
Memorandum written by him or under his direction:
What is the rule of completeness?
A. When the fact occurred or
o When a party gives as evidence part of an act, writing,
immediately after
declaration, conversation, or record, the other party may
B. Any other time when it was still fresh inquire into the whole of that evidence.
in his memory o What if it is one letter in a “chain” of letters?
o 2. Past recollection recorded
Admitting one necessarily allows the other letters in
Witness has no recollection but states that the the chain to be admitted
writing correctly reflected the transaction when o What if part is privileged?
made It is waived.
o When do these apply?
In both cases he knew, he was in charge, or he Authentication of documents
prepared it. That‟s why he can testify. So even if
there is no independent recollection, he can testify. N.B. Whether public or private, the document must be authenticated.
o What is the purpose? What are the kinds of public documents?
To refresh his memory
o 1. Written official acts or records of sovereign authority o 1. Genuineness of the handwriting by anyone who saw the
Whether Philippines or other country document executed or written
o 2. Documents duly acknowledged before a notary public o 2. Evidence of genuineness of the signature/handwriting of the
except wills maker
Not just notarized, but must be acknowledged How is genuineness of handwriting proved?
Except last wills and testaments
o 3. Private documents recorded in a public office
Ex. affidavit of adverse claim in a R.O.D.
What are private documents?
o All other documents not falling under the prior three
What is the distinction?
o Public documents are admissible without further proof of due
execution and genuineness; private writings must be proved as
to authenticity and due execution
o Public documents bind even third persons as evidence;
private documents only bind the parties as evidence
How do you authenticate acts of sovereign authority?
o Certified true copy or official publication
o If it is from a foreign country?
Certification from foreign service officer
How do you authenticate a duly acknowledged document before
a Notary Public?
o Certificate of acknowledgement of the document itself
o If by chance, your copy is lost, where do you go?
You could get a certified true copy from the RTC who
commissioned him to notarize documents (he
submits the books to the RTC)
How do you authenticate private documents recorded in a
public
office?
o Can be proved by original record or a certified true copy
o Can there be a certificate of no record?
Yes.
How do you authenticate a private document?
o 1. Witness believes it to be the handwriting of such What is alteration?
person because: o When there is one, you have to account for it
A. he saw the person write it or 1. There is consent
B. he has seen writing purporting to be his, upon 2. There is knowledge
which the witness has acted upon or was
charged, thus acquiring knowledge of such
3. Did not change the meaning
A. other writing admitted or treated as genuine by Can you impugn judicial records?
the party against whom the evidence is offered or o Yes.
B. proved to be genuine by the judge o How?
What private documents need not be authenticated? 1. Want of jurisdiction
o 1. Ancient document 2. Collusion
o 2. Admitted by the adverse party 3. Fraud
o 3. Immaterial
Offer of evidence
o 4. Document need only be identified
What is an ancient document – requisites? What is the rule on formal offer?
o 1. Document existing for at least 30 years o Evidence must be offered, or else the court will not consider it
o 2. Unblemished as evidence
o 3. In the custody of one who must be with possession over it When is it made?
o After the documents as marked, and all the witnesses are 1. Incompetent
presented 2. Irrelevant
Is offer of testimonial evidence the same? 3. improprer
o It‟s not, because it‟s made before you present the witness What is proffer of evidence?
When is objection made?
o Evidence offered orally: made immediately after offer is made
o Evidence offered in writing: within 3 days after notice of offer,
unless court allows different period
o Question propounded in oral examination: as soon as ground
becomes reasonably apparent
o FOR ALL: must specify grounds for objection
What is a continuing objection?
o Objection of the same character after the grant or denial of the
same objection
o A one-time statement covering objections of the same
character
o Does it have to be ruled upon by the court?
No.
When does the court rule on the objection?
o Immediately after it was made. No need to state the reason for
overruling or sustaining it.
Except if the objection was on two grounds;
court must state which ground was sustained.
o What is the exception?
If the court needs reasonable time to decide. But the
ruling must still be given during trial to give the party
who posed the objection to meet the situation
o What if the evidence is erroneously rejected?
Can be ground for new trial.
UNLESS it would not have changed the decision.
What is the rule on striking out answers?
o It applies when the witness answered the question even
before the adverse party had the chance to object
And the objection is meritorious
o Upon motion, what answers can the court strike out?
o This is tender of excluded evidence o But plea of guilty in open court is sufficient.
o So for instance an excluded witness can still be What is needed for administrative cases in QJAs?
presented through an affidavit showing her qualifications and o Substantive evidence
the substance of her testimony – so it can be considered on
o Where else does this standard apply?
appeal
Investigations in the workplace
Weight and sufficiency of evidence QJAs that proceed like the NLRC
Circumstantial evidence
What is the equipoise rule for preponderance of evidence?
o Can it be a basis of conviction?
o When there is equipoise, the party with the burden of
proof fails
Yes
When the evidence of one side is stronger than the other, does
There should be more than one circumstance
it mean there is already preponderance of evidence? And when taken together, they form proof beyond
o No. One must still rely on the strength of one‟s case reasonable doubt
rather than weakness of the other. o Can it be the basis of identification?
Judicial settlement
What is the “limited and special jurisdiction” of the probate court? 2. All other powers granted by law
o General rule: probate court cannot pass upon issues of What issues can be resolved by the probate court?
ownership; can only pass judgment on jurisdiction or o 1. Identity of the will
probate of a will o 2. Due execution of the will
o EXCEPTIONS: o 3. Capacity of the testator
1. For purposes of inclusion in inventory Maloles II v. Phillips: In the lifetime of the testator, he filed an
If all of the parties are heirs and they admission for probate. So when the nephew filed a motion to intervene,
submit the issue of ownership to the the proceedings have already terminated. That‟s why when the
probate court and there is no third party deemed executrix filed for letters of administration in another court, that
prejudiced court said that the first court having jurisdiction over the first probate
Question of collation or advancement proceedings must have jurisdiction.
Alipio: Creditor collecting from CPG for a debt cannot sue the surviving o What about intrinsic validity?
spouse; must file a claim in the settlement of the estate of the Cannot raise these issues as a general rule.
decedent. Exception: when seen on the face of the will, or for
Reyes: An adoption decree cannot be subject to collateral attack in a
practical purposes.
probate proceeding. Does prescription apply in the probate of wills?
Settlement of estate of a person presumed dead – how is
the estate dealt with?
o He is entitled to the balance of his estate after payment
of debts
o Balance may be recovered by mere motion in the same
case where he was declared presumptively dead
2
o If assignment of share occurs before settlement of estate, After appeal, may the court still appoint administrators?
no interest anymore. o Yes.
Is the fact that an administrator lacks capacity a o Nature of appeal in spec pro is record of appeal, so after the
jurisdictional issue? appeal, the court only loses jurisdiction over the subject of
o No. If the administrator is not an interested party, the motion
to dismiss filed by the opponent must not be based on lack of J
by the court, but lack of legal capacity of the administration.
o Administrator‟s capacity is not jurisdictional
o Even if the will stated that the heirs should religiously pay o The general rule is that heirs are bound by the
the debt, the creditors must still file claims within the contracts entered into by the predecessor-in-interest.
settlement proceedings. There is no getting around Rule o Except if non-transmissible by:
86. 1. Nature
X was the administrator of an estate. X hired Atty. Y. X died. 2. Stipulation
Does the claim of Atty. Y for fees survive notwithstanding X’s 3. Provision of law
death?
o Yes. The claim of the attorney survives because it is Actions by and against executors and administrators
against estate, not the administrator.
o A claim against a person, in her capacity as administrator, What are the claims filed against the executor or administrator by
name?
o 1. Recovery of real/personal property o BUT if there is third person who asserts right to property
o 2. Claim for damages caused by the deceased contrary to decedent‟s, court has no authority to resolve the
o 3. All other actions/claims that survive issue. Separate action instituted to recover the property.
Villegas:
o When the property was
fraudulently conveyed in favor of
o The civil liability that completely arose from criminal liability
the E/A
was extinguished upon death. Cannot file claim against
estate.
o What is the effect?
o Remember which claims survive and which don‟t The creditors obtain a lien over the
(culpa criminal doesn‟t, for instance, but culpa properties recovered
contractual does)
Payment of debts of the estate
What if there is embezzlement before the letters are issued?
o The fraudulent person is liable for double the value of the The estate sometimes has debts. In this case, how must they
property sold, embezzled, alienated, etc., for the benefit of be paid?
the estate o First, from the personal estate.
o The E/A files the action
o Second, from real property not disposed of by will.
Who may file an action to recover property transferred in fraud o Third, retention to meet contingent claims
of creditors?
Kept for within 2 years after the expiration of period
o The E/A, with the prompting of the creditors (who pay of claims by creditors
After 2 years, distribute property to heirs. But the a probate proceeding in another country
creditor, if the action ripens, may still go against the What is the procedure involved?
heirs (not the estate anymore)
What is the time to pay the debts?
o Not exceeding one year in the first instance
Can it be extended?
o Yes, for not more than six months
What if the estate is insolvent?
o Follow concurrence and preference of credits
When the estate of partner has become insolvent, how must
claims against his separate property be prioritized?
o 1. Those owing to separate creditors
o 2. Those owing to partnership creditors
o 3. Those owing to partners by way of
Escheat
o Hearing scheduled not more than 6 months from petition If you are an heir up until when can you still recover an
escheated property?
What is the publication notice?
o Five years from the date of such judgment
o Publish 6 consecutive weeks
o Can a donee (but not an heir) recover the property?
What is proved in the hearing?
Yes, he is an interested party, because he claims
o Prove that there is no heir
a right to the escheated property. He may appear
Where does the property go? or oppose petition for escheat.
o Personal property to municipality or city where he What is the effect of a judgment in escheat?
last resided o Conclusive against all persons with actual or
o Real property municipality or city where it is located constructive notice
o What if the deceased never resided in the Philippines? Tan:
Whole estate assigned to municipality or city where o Solicitor General is now the one that files the complaint –
it is located but then, allow City (old Rules)
o Purpose of escheated estate: o 39 years of absence without hearing of that person: enough
– can presume death
Guardianship benefit of the ward, but one can show it by implication
– by establishing that it is for the wards‟ benefit
Where do you institute petition for guardianship? o How long does the order of sale’s effectivity last?
o Where the minor or incompetent is found 1 year from the order
o Ex. Judge from La Union cannot take cognizance of case o What else can the proceeds of the sale be approved for?
over incompetent living in Pampanga
In what particular court, if the person is a minor (over person
or property)?
o Family courts
For incompetent (not a minor) – as regards property:
o Follow 300K/400K usual rule
o This shows if MTC or RTC
If over person of incompetent (not a minor) regardless of amount
of property:
o Always RTC
Who can petition?
o Relative, friend, other person, or DSWD
o Can the minor himself do so?
Yes, as long as he is at least 14 years old
What are the grounds?
o 1. Death, continued absence, incapacity of parents
o 2. suspension, termination, deprivation of parental authority
o 3. remarriage of surviving parent, if latter is unsuitable
to exercise parental authority
o 4. best interest of minor
Must a parent still apply for guardianship?
o If the property of the child exceeds P50K you need to
petition for guardianship over the property
When can the guardian sell or encumber the property of the ward?
o 1. The property of the estate is insufficient to maintain the
ward and his family
o 2. For education of the ward
o 3. For the benefit of the ward
Need not explicitly state that the alienation is for the
Investment of the same What happens before hearing?
Who is preferred to become the guardian? o Social worker does case study on child
o The natural parent of the ward Who are incompetents?
Parent is preferred over other guardians unless o 1. Suffering from civil interdiction
there is good reason shown. Mere allegation of o 2. Hospitalized lepers
moral unfitness is not valid per se o 3. Prodigals
o In default – o 4. Illiterate deaf and dumb
1. Surviving GP; if several, court chooses
Ex. Grade 3, mind of 6 year old, illiterate –
2. Older brother or sister over 21 unless unfit/DQ shows incompetence
3. Actual custodian over 21 unless unfit/DQ o 5. Unsound mind
4. Any other person, in court‟s sound discretion o 6. Those who cannot without outside care take care of
Procedure: their property
o 1. Petition To what situation can a spouse apply for guardianship over
o 2. Time and place of hearing set property of the other spouse?
o No. The guardianship court cannot pass upon issues of o 3. Failed to render account or return for 30 days
ownership. It is the duty of the guardian to bring the proper o 4. Resigned from position
action.
What are the conditions of the bond of the guardian?
o 1. Inventory within 3 months of appointment or discovery
of property
o 2. Faithfully execute duties of trust for ward‟s best interest
o 3. Render account: a) upon order of the court or when
required by the rules, and b) upon termination of guardianship
Contrast with settlement of estate: in settlement,
account is every one year
o 4. Perform all orders of the court
What are the duties of the guardian?
o 1. Settle accounts of the ward
o 2. Demand, sue for, and receive all debts due
May compound or discharge, on receiving fair
and just dividend of the estate and effects
o 3. Appear and represent the ward in actions and special
proceedings
Can the guardian join in partition proceedings of property held
by the ward as a joint or co-owner?
o Yes, but after hearing only, with notice to the relatives of
the ward and upon establishing necessity and propriety of
the action.
When is the guardianship required to render an inventory to
court?
o 1. 3 months from appointment
o 2. 3 months from discovery of property not included in
the original inventory
o 3. Inventory and account from application of an
interested person
Grounds to terminate guardianship?
o 1. Became insane or otherwise incapable of discharging
Trustees o Must apply for appointment as trustee before the local
courts, or else, the trust can be declared vacant
Who is a trustee? What are the conditions of the bond?
o Can be made to carry in effect the provisions of a will or o 1. Make an inventory of all real and personal
a written instrument property belonging to him as trustee
o Appointed/confirmed in the probate court (if carrying out a o 2. Faithfully discharge trust according to law, will, or
will) or the RTC where the property is located (for written instrument o 3. Render account at least once a year, and upon
instrument) court order o 4. Upon expiration of trust, settle accounts in court
When can the court appoint a new trustee under a will or under and deliver
a written instrument? property
o 1. When the testator in aw ill omitted to appoint a trustee in What are the requisites for the removal and resignation of the
the Philippines, and such appointment is necessary to carry trustee?
into effect the will‟s provisions o 1. Petition by party beneficially interested in the trust
o 2. When a trustee under a written instrument declines, o 2. Notice to the trustee
resigns, dies, or is removed before the object of the trust is
o 3. Hearing
accomplished
o What is the power of the new trustee? What are the grounds for removal and resignation of the trustee?
Adoption
1
4. At least 27 years old and 16 years older o Inter-country: RTC where adoptee resides
than adoptee, except: Who must adopt?
Adopter is biological parent o Husband and wife, jointly
Adopter is spouse of adoptee‟s parent o What are the exceptions?
o Qualifications for adopter under inter-country adoption act: 1. Spouse adopting LC of the other
Same as common qualifications, plus: 2. Spouse adopting own child
1. Country has diplomatic relations with Other spouse must consent
the Philippines
3. Spouses legally separated
2. At least 27 years old and 16 years older
What are the legal effects of adoption?
than adoptee, except:
o 1. All legal ties between the biological parents and the adoptee
Adopter is biological parent
are severed
Adopter is spouse of adoptee‟s parent Except when it is the biological parent that is
3. If married, the spouse must jointly file for adoption the adopter
4. Has capacity to act under national laws o 2. The adoptee becomes the LC of the adopter
and undergone counseling in the Philippines o 3. Adopter and adoptee obtain reciprocal successional rights
5. Agrees to uphold UNCRC, Philippine Law, (just them)
and R&R of Inter-country adoption act When can adoption be rescinded?
Where to file application for adoption?
o 1. Repeated physical or verbal abuse by adopter
o Domestic: RTC where adopter resides
o 2. Attempt on life of adoptee
2
o 3. Sexual assault or violence administrative proceeding. (Take note of this; new law and
never asked in the Bar.)
o 4. Abandonment/failure to comply with obligations
Who may rescind the adoption?
3. Legal adoption
o Just the adoptee. The adopter can never rescind the adoption.
What is the effect of rescission?
o 1. It restores the parental authority of the biological parents,
if the adoptee is still a minor or incapacitated
o 2. The amended birth certificate is cancelled
o 3. Rights to succession are restored, but not as far as there
are already vested rights
When is inter-country adoption allowed?
o Only as a last resort, and when it is in the best interest of
the child.
Case study: There was a child who was left outside of the house of a
childless couple and having noticed that no one is claiming the child,
the couple adopted the child. But they secured a birth certificate and
filled in the child’s details (simulation of birth), without applying for
legal adoption. The child grew up and when she applied for a visa to
the US, she was denied because she was found to not be the natural
child of the mother (who is sterile). What are implications and what
actions must be taken to correct the situation?
b) recover and preserve evidence What is the effect of filing a criminal action?
c) identify witnesses o The petition for WOA is always consolidated with it,
whether filed ahead or later
d) determine cause, manner, location, time of
death or disappearance What is the quantum of proof required for petition for WOA?
e) indentify and apprehend the person or o Substantial evidence
persons involved o On the defense?
f) bring suspected offenders to court Private persons: ordinary diligence in duties
o Is a general denial of allegations allowed in WOA? Public officials: extraordinary diligence in duties
Manila: Juvenile
and Domestic
Correction or relations
RTC withcourt Record on Once a week for
cancellation jurisdiction over appeal 3 weeks
place of registry
Clerical or LCR where Civil Registrar Once a week for
typographical record is, General 2 weeks
error – 9048 LCR of (affidavit
residence, or published)
Phil. consulate if
nonresident
ENVIRONMENTAL CASES
Civil Procedure
Special proceedings
2
What is the precautionary principle?
o When there is lack of full scientific certainty in establishing a
causal link between human acts and environmental
damage, the burden of proof that it is not harmful falls on
those taking the purportedly harmful action or policy
o What is given the benefit of doubt?
Constitutional right of people to a balanced
and healthful ecology
o What are considered in applying the precautionary
principle?
1. Threats to human life or health
2. Inequity to present or future generations
3. Prejudice to the environment without legal
consideration of the environmental rights of
those affected
What is the rule on documentary evidence?
o 1. Photographic, video, or similar evidence of events, acts,
transactions of wildlife, by-products, or derivatives, forest
products or mineral resources subject of a case are
admissible if authenticated by the person who took the photo,
a person present during its taking, or some other person
competent to authenticate it
o 2. Entries in official records in the performance of duty of a
public officer are prima facie evidence of the facts stated
therein