Eneral Rinciples: Substantive Law Remedial Law

GENERAL PRINCIPLES
I. GENERAL PRINCIPLES
7.
Court decisions (Herrera, Vol. I, p. 2, 2007

ed.)
A. CONCEPT OF REMEDIAL LAW

Q: What is procedural rule?
Q: What is the concept of remedial law?
A: It is a branch of public law, which prescribes the
procedural rules to be observed in litigations,
whether civil, criminal, or administrative, and in
special proceedings, as well as the remedies or
reliefs available in each case. (2006 Bar Question)
Q: What is the importance of remedial law?
A: It plays a vital role in the administration of
justice. It lies at the very core of procedural due
process, which means a law which hears before it
condemns, which proceeds upon inquiry and
renders judgment only after trial, and contemplates
an opportunity to be heard before judgment is
rendered (Herrera, Vol. I, p. 1, 2007 ed.)
B. SUBSTANTIVE LAW AS DISTINGUISHED FROM
REMEDIAL LAW
A: Procedural rule is the judicial process for

enforcing rights and duties recognized by
substantive law and for justly administering remedy
and redress for their disregard or infraction.
Note: If the rule takes away a vested right, it is not
procedural. If the rule creates a right such as the right
to appeal, it may be classified as substantive matter;
but if it operates as a means of implementing an
existing right, then the rule deals merely with
procedure (Fabian v. Desierto, G.R. No. 129742, Sept.
16, 1998).
Q: How are remedial laws implemented in our

system of government?
A: They are implemented through the judicial
system, including the prosecutory service of courts
and quasi-judicial agencies. (2006 Bar Question)
Q: Distinguish substantive and remedial law
C. RULE-MAKING POWER OF THE SUPREME COURT
A:
1. LIMITATIONS ON THE RULE-MAKING POWER OF

THE SUPREME COURT
Substantive Law
Remedial Law
Part of the law which
Refers to the legislation
creates, defines or
providing means or
regulates rights concerning methods whereby causes
life, liberty or property or
of action may be
the powers of agencies or
effectuated, wrongs
instrumentalities for the
redressed and relief
administration of public
obtained (also known as
affairs.
Adjective Law).
Does not create vested
Creates vested rights.
rights
Retroactive in
Prospective in application.
application
The Supreme Court is
expressly empowered to
Cannot be enacted by the
promulgate procedural
Supreme Court.
rules. (2006 Bar
Question)
Q: What are the principal sources of remedial law?

A:
1.
2.
3.
4.
5.
6.
Constitution
Different laws creating the judiciary,
defining and allocating jurisdiction to
courts of different levels
Procedural laws and rules promulgated by
the Supreme Court
Circulars
Administrative orders
Internal rules
Q: What are the limitations on the rule-making

power of the Supreme Court?
A:
1.
2.
3.
It shall provide a simplified and

inexpensive procedure for the speedy
disposition of cases.
The rules must be uniform for all the
courts of the same grade.
The rules must not diminish, increase or
modify substantive rights (Cruz, Philippine
Political Law, p. 281, 2002 ed.)
2. POWER OF THE SUPREME COURT TO AMEND

AND SUSPEND PROCEDURAL RULES
Q:
May the Supreme Court suspend the

application of the Rules of Court and exempt a
case from its operation?
A: Yes. In the interest of just and expeditious

proceedings, the Supreme Court may do so because
the Rules were precisely adopted with the primary
objective of enhancing fair trial and expeditious
justice. (Republic v. CA, G.R. No. L-31303, May 31,
1978)
ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

UNIVERSITY OF SANTO TOMAS
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
VICE CHAIR FOR MANAGEMENT AND FINANCE: JEANELLE C. LEE
Facultad de Derecho Civil
VICE CHAIRS FOR LAY-OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ
UST GOLDEN NOTES 2011

D. NATURE OF PHILIPPINE COURTS
1. MEANING OF A COURT
Q: What is a court?
Q: Distinguish Courts of general jurisdiction from

special jurisdiction.
A: It is an organ of the government, belonging to

the judicial department, whose function is the
application of laws to controversies brought before
it and the public administration of justice. (Blacks
Law Dictionary)
2. COURT AS DISTINGUISHED FROM A JUDGE
Q: Distinguish court from a judge
Court
Entire body in which the
judicial power is vested
May exist without a
present judge
Disqualification of a
judge does not affect
the court
Judge
Only an officer or
member of the court
There may be a judge
without a court
May be disqualified
3. CLASSIFICATION OF PHILIPPINE COURTS

Q: What are the classifications of Philippine
courts?
A:
1.
2.
3.
5. COURTS OF GENERAL AND SPECIAL

JURISDICTION
Regular courts (Supreme Court, Court of

Appeals,
Regional
Trial
Courts,
Metropolitan Trial Courts, Municipal Trial
Courts in Cities, Municipal Trial Courts ,
Municipal Circuit Trial Courts)
Special courts (Sandiganbayan, Court of
Tax Appels, Shari'a District Courts, Shari'a
Circuit Courts)
Quasi-courts or Quasi-judicial agencies
(e.g Civil Service Commission)
4. COURTS OF ORIGINAL AND APPELLATE

JURISDICTION
A:
Courts of General
jurisdiction
Takes cognizance of all
cases , civil or criminal,
of a particular nature, or
courts whose judgment
is conclusive until
modified or reversed on
direct attack, and who
are competent to decide
on their own jurisdiction
6. CONSTITUTIONAL AND STATUTORY COURTS

Q: Distinguish constitutional court from statutory
court.
A:
Constitutional Court
Created by the constitution
e.g. SC
Cannot be abolished by
Congress without amending
the Constitution
Q: Distinguish Courts of law from equity.

A:
Courts of Law
Any tribunal duly
administering the
laws of the land
Courts of Equity
Any tribunal administering
justice outside the law, being
ethical rather than jural and
belonging to the sphere of
morals rather than of law. It is
grounded on the precepts of
conscience and not on any
sanction of positive law, for
equity finds no room for
application where there is law.
(Herrera, Vol. I, p. 18, 2007 ed.)
Decides a case
according to what
the promulgated
law is
Adjudicates a controversy
according to the common
precepts of what is right and
just without inquiring into the
terms of the statutes
A:
Courts of Appellate
jurisdiction
Superior Courts reviewing
and deciding cases
previously decided by a
lower court
Statutory Court
Created by law
e.g. CTA
May be abolished by
Congress by just simply
repealing the law
which created those
courts
7. COURTS OF LAW AND EQUITY
Q: Distinguish Courts of original jurisdiction from

Courts of appellate jurisdiction.
Courts of Original
jurisdiction
Courts exercising
jurisdiction in the first
instance
Courts of Special
jurisdiction
Takes cognizance of
special jurisdiction for a
particular purpose, or are
clothed with special
powers for the
performance of specified
duties, beyond which
they have no authority of
any kind
REMEDIAL LAW TEAM:

ADVISER: JUDGE MYRA B. QUIAMBAO, JUSTICE OSCAR C. HERRERA, JR., JUSTICE JAIME M. LANTIN, JUDGE CESAR D. STAMARIA, SR.;
SUBJECT HEAD: ANGELI P. ALBAA; ASST. SUBJECT HEADS: DARRELL L. BAGANG, DIANE CAMILLA R. BORJA, YRIZ TAMIE A. MARIANO,
MA. KATRINA NADINE G. JUANENGO; MEMBERS: AKEMI B. AIDA, TERESE RAY-ANNE O. AQUINO, GRETCHEN C. SY, RHONDEE E. DUMLAO,
KRISTINE P. MIJARES, DONNA GRAGASIN, EDELISE D. PINEDA, SHERY PAIGE A. LIM, MARA KHRISNA CHARMINA F. MENDOZA, UNICA AMOR
R. MANANQUIL, MICHAEL ANGELO V. FLORES; CONTRIBUTORS: VICENTE JAN O. PLATON III, RONN ROBBY D. ROSALES
GENERAL PRINCIPLES
Q: What are courts of record?
A: These are courts whose proceedings are enrolled
and which are bound to keep written records of all
trials and proceedings handled by them. R.A. No.
6031 mandates all Municipal Trial Courts to be
courts of record.
8. PRINCIPLE OF JUDICIAL HIERARCHY
Q: What is the policy of Judicial Hierarchy or
hierarchy of courts?
A: A higher court will not entertain direct resort to
it unless the redress desired cannot be obtained in
the appropriate courts. The Supreme Court is a
court of last resort and must so remain if it is to
satisfactorily perform assigned to it. (1996 Bar
Question)
9. DOCTRINE OF NON-INTERFERENCE OR
DOCTRINE OF JUDICIAL STABILITY
Q: What is Doctrine of Non-Interference or Judicial
Stability?
A: Courts of equal and coordinate jurisdiction
cannot interfere with each others orders. Thus, the
RTC has no power to nullify or enjoin the
enforcement of a writ of possession issued by
another RTC. The principle also bars a court from
reviewing or interfering with the judgment of a coequal court over which it has no appellate
jurisdiction or power of review.
Note: GR: No court has the authority to interfere by
injunction with the judgment of another court of
coordinate jurisdiction or to pass upon or scrutinize
and much less declare as unjust a judgment of another
court.
XPN: The doctrine does not apply where a third party
claimant is involved (Santos v. Bayhon, G.R. No. 88643,
July 23, 1991).


II. JURISDICTION
Q: Distinguish jurisdiction over the subject matter

from jurisdiction over the person.
Q: What is jurisdiction?
A:
A: It is the power and authority of a court to try,
hear, and decide a case and to carry its judgments
into effect (Latin: juris and dico, which literally
means I speak of the law).
Q: Is the statement that Jurisdiction is conferred
by substantive law accurate?
A: No, because only jurisdiction over the subject
matter is conferred by substantive law. Jurisdiction
over the parties, issues and res is governed by
procedural laws.
A. JURISDICTION OVER THE PARTIES
1. HOW JURISDICTION OVER THE PLAINTIFF IS
ACQUIRED
Q: How is jurisdiction over the plaintiff acquired?
A: It is acquired from the moment of filing the
complaint, petition or initiatory pleading.
2. HOW JURISDICTION OVER THE DEFENDANT IS
ACQUIRED
Q: How is jurisdiction over the defendant
acquired?
A: It is acquired either:
a. By his voluntary appearance in court and
his submission to its authority
b. By service of summons
c. Other coercive process upon him
Note: Jurisdiction over the defendant is not essential
in actions in rem or quasi in rem as long as the court
has jurisdiction over the res (Herrera, Vol. I, p. 114,
2007 ed.)
B. JURISDICTION OVER THE SUBJECT MATTER

1. MEANING OF JURISDICTION OVER THE SUBJECT
MATTER
Q: What is jurisdiction over the subject matter?
Jurisdiction Over the Subject

Matter
Determined by the allegations
of the complaint (Riano, Civil
Procedure: A Restatement for
the Bar, p. 144, 2009 ed.)
XPN: Where the real issues
are evident from the record
of the case, jurisdiction over
the subject matter cannot be
made to depend on how the
parties word or phrase their
pleadings (Herrera, Vol. I, p. 2,
2007 ed.) e.g. in ejectment
cases in which the defendant
averred the defense of the
existence of tenancy
relationship between the
parties (Ibid p.148)
Jurisdiction Over the

Person
Acquired by the filing
of the petition in case
of the plaintiff or by
arrest (Rule 113), by
valid service of
summons or voluntary
submission to the
courts authority in
case of the defendant
(Ibid. p. 158)
Note: Tenancy relationship is

not presumed and it is not
enough that it is alleged. There
must be evidence to prove that
it exists and that all its
elements
are
established
(Salmorin v. Zaldivar, G.R. No.
169691, July 23, 2008).
Conferred by law which may

be either the Constitution or
a statute (Ibid. p. 143)
Cannot be conferred by the
agreement of the parties, by
contract or by parties silence
or acquiescence Ibid. p. 144)
It is sometimes made
to depend, indirectly
at least, on the partys
volition
GR: The appearance of
the defendant in
whatever form is
submission to the
jurisdiction of the
court
XPN: If the
appearance is to
object or question the
courts jurisdiction
(Ibid. p. 161)
Note: In criminal cases,
jurisdiction over the
accused is always
required
A: It is the power to deal with the general subject

involved in the action, and means not simply
jurisdiction of the particular case then occupying
the attention of the court but jurisdiction of the
class of cases to which the particular case belongs.
It is the power or authority to hear and determine
cases to which the proceeding in question belongs.
REMEDIAL LAW TEAM:

JURISDICTION
2. JURISDICTION VERSUS THE EXERCISE OF
JURISDICTION
Q: Distinguish jurisdiction from exercise of
jurisdiction.
A: Jurisdiction is the authority to hear and decide
cases. On the other hand, exercise of jurisdiction is
any act of the court pursuant to such authority,
which includes making decisions.
3. ERROR OF JURISDICTION AS DISTINGUISHED
FROM ERROR OF JUDGMENT
5. DOCTRINE OF PRIMARY JURISDICTION

Q: What is Doctrine of Primary Jurisdiction?
A: Courts will not resolve a controversy involving a
question which is within the jurisdiction of an
administrative tribunal, especially where the
question demands the exercise of sound
administrative discretion requiring the special
knowledge and experience of said tribunal in
determining technical and intricate matters of fact
(Villaflor v. CA, G.R. No. 95694, Oct. 9, 1997).
Q: Distinguish error of jurisdiction from error of

judgment.
Q: What is Doctrine of Ancillary Jurisdiction?
A:
A: It involves the inherent or implied powers of the

court to determine issues incidental to the exercise
of its primary jurisdiction.
Error of Jurisdiction
One where the court,
officer or quasi-judicial
body acts without or in
excess of jurisdiction, or
with grave abuse of
discretion
Renders a judgment void
or at least voidable
Correctible by certiorari
There is an exercise of
jurisdiction in the
absence of jurisdiction
Error of Judgment
One that the court may
commit in the exercise of
jurisdiction; it includes
errors of procedure or
mistakes in the courts
findings
Does not make the courts
decision void
Correctible by appeal
The court acted with
jurisdiction but
committed procedural
errors in the appreciation
of the facts or the law
(1989 Bar Question)
4. HOW JURISDICTION IS CONFERRED AND

DETERMINED
Note: discussion on how jurisdiction is conferred is on
page 4.
Q: What are the instances in which jurisdiction

cannot be conferred?
A:
1.
2.
3.
4.
5.
6.
By the administrative policy of any court;

A courts unilateral assumption of
jurisdiction;
An erroneous belief by the court that it
has jurisdiction;
By the parties through a stipulation e.g.
contract;
The agreement of the parties acquired
through, or waived, enlarged or
diminished by, any act or omission of the
parties;
Parties silence, acquiescence or consent
(Riano, Civil Procedure: A Restatement for
the Bar, p. 143, 11th ed.).
Note: Under its ancillary jurisdiction, a court may

determine all questions relative to the matters
brought before it, regulate the manner in which a trial
shall be conducted, determine the hours at which the
witnesses and lawyers may be heard, and grant an
injunction, attachment or garnishment.
6. DOCTRINE OF ADHERENCE TO JURISDICTION

Q: What is Doctrine of Adherence to Jurisdiction or
Continuity of Jurisdiction?
A:
GR: Jurisdiction, once attached, cannot be
ousted by subsequent happenings or events
although of a character which would have
prevented jurisdiction from attaching in the first
instance, and the court retains jurisdiction until
it finally disposes of the case.
XPNs:
1. Where a subsequent statute expressly
prohibits the continued exercise of
jurisdiction;
2. Where the law penalizing an act which is
punishable is repealed by a subsequent
law;
3. When accused is deprived of his
constitutional right such as where the
court fails to provide counsel for the
accused who is unable to obtain one and
does not intelligently waive his
constitutional right;
4. Where the statute expressly provides, or
is construed to the effect that it is
intended to operate as to actions pending
before its enactment;


5.
6.
7.
When the proceedings in the court

acquiring jurisdiction is terminated,
abandoned or declared void;
Once appeal has been perfected;
Curative statutes (Herrera, Vol. I, p. 106,
2007 ed.).
because it cannot be tolerated by reason

of public policy (Filipinas Shell Petroleum
Corp. v. Dumlao, G.R. No. L-44888, Feb. 7,
1992).
3.
Q: Does retroactivity of a law affect jurisdiction?

A: No. Jurisdiction being a matter of substantive
law, the established rule is that statute in force at
the time of the commencement of the action
determines jurisdiction. (Herrera, Vol. I, p. 105,
2007 ed.)
7. OBJECTIONS TO JURISDICTION OVER THE
SUBJECT MATTER
Q: What is the effect of lack of jurisdiction over
the subject matter?
A: When it appears from the pleadings or evidence
on record that the court has no jurisdiction over the
subject matter, the court shall dismiss the same.
(Sec. 1, Rule 9). The court may on its own initiative
object to an erroneous jurisdiction and may ex
mero motu take cognizance of lack of jurisdiction at
any point in the case and has a clearly recognized
right to determine its own jurisdiction (Riano, Civil
Procedure: A Restatement for the Bar, p. 154, 2009
ed.).
Q: May jurisdiction of the court be raised or
questioned at any time?
A:
GR: Yes. The prevailing rule is that jurisdiction
over the subject matter may be raised at any
stage of the proceedings (Riano, Civil Procedure:
A Restatement for the Bar, p. 154, 2009 ed.).
Note: Jurisdiction can be questioned even for the first
time on appeal (Herrera, Vol. I, p. 91, 2007 ed.)
XPNs:
1. Estoppel by laches. SC barred a belated
objection to jurisdiction that was raised
only after an adverse decision was
rendered by the court against the party
raising the issue of jurisdiction and after
seeking affirmative relief from the court
and after participating in all stages of the
proceedings(Tijam v. Sibonghanoy, G.R.
No. L-21450, Apr. 15, 1968).
2.
Public policy One cannot question the

jurisdiction which he invoked, not
because the decision is valid and
conclusive as an adjudication, but
A party who invokes the jurisdiction of

the court to secure affirmative relief
against his opponents cannot repudiate
or question the same after failing to
obtain such relief (Tajonera v. Lamaroza,
G.R. No. L-48907, 49035, Jan. 19, 1982).
Note: Under the Omnibus Motion Rule, a motion

attacking a pleading like a motion to dismiss shall
include all grounds then available and all objections
not so included shall be deemed waived. The defense
of lack of jurisdiction over the subject matter is
however, a defense not barred by the failure to invoke
the same in a motion to dismiss already filed. Even if a
motion to dismiss was filed and the issue of
jurisdiction was not raised therein, a party may, when
he files an answer, raise the lack of jurisdiction as an
affirmative defense because this defense is not barred
under the omnibus motion rule.
Q: Will the failure to exhaust administrative

remedies affect the jurisdiction of the court?
A:
GR: No. It is not jurisdictional but the case will
be dismissed on the ground of lack of cause of
action. It only renders the action premature.
(Carale v. Abarintos, G.R. No. 120704, March 3,
1997; Pestanas v. Dyogi, 81 SCRA 574)
XPN:
Before a party may be allowed to invoke the
jurisdiction of the courts, he is expected to have
exhausted all means of administrative redress
(Herrera, Vol. I, p. 267, 2007 ed.).
XPNS TO THE XPN:
1. Question raised is purely legal;
2. When the administrative body is in
estoppels;
3. When the act complained of is patently
illegal;
4. When there is need for judicial
intervention;
5. When the respondent acted in disregard
of due process;
6. When the respondent is the alter-ego of
the President, bear the implied or
assumed approval of the latter;
7. When irreparable damage will be
suffered;
8. When there is no other plain, speedy and
adequate remedy;
REMEDIAL LAW TEAM:

JURISDICTION
9.
When strong public interest is involved;

and
10. In quo warranto proceedings (Herrera,
Vol. I, p. 268, 2007 ed.)
involving the status of the parties or suits

involving the property in the Philippines
of non-resident defendants.
E. JURISDICTION OF COURTS
Note: The rule on exhaustion of administrative

remedies and doctrine of primary jurisdiction applies
only when the administrative agency exercises quasijudicial
or
adjudicatory
function
(Associate
Communications and Wireless Services v. Dumalao,
G.R. 136762, Nov. 21, 2002).
8. EFFECT OF ESTOPPEL ON OBJECTIONS TO

JURISDICTION
Q: What is the effect of estoppel by failure to
object lack of jurisdiction?
A: The active participation of a party in a case is
tantamount to recognition of that courts
jurisdiction and will bar a party from impugning the
courts jurisdiction. This only applies to exceptional
circumstances. (Francel Realty Corp. v. Sycip, 469
SCRA 424; Concepcion v. Regalado, GR 167988, Feb.
6, 2007).
C. JURISDICTION OVER THE ISSUES
Q: What is jurisdiction over the issues?
A: It is the power of the court to try and decide
issues raised in the pleadings of the parties or by
their agreement in a pre-trial order or those tried
by the implied consent of the parties. It may also be
conferred by waiver or failure to object to the
presentation of evidence on a matter not raised in
the pleadings
D. JURISDICTION OVER THE RES OR PROPERTY IN
LITIGATION
Q: How is jurisdiction over the res acquired?
A: It is acquired either by:
1. The seizure of the property under legal
process.
2. As a result of the institution of legal
proceedings, in which the power of the
court is recognized and made effective.
(Banco Espaol Filipino vs. Palanca, 37
Phil. 291).
3. The court by placing the property of thing
under its custody (custodia legis).
Example: attachment of property.
4. The court through statutory authority
conferring upon it the power to deal with
the property or thing within the courts
territorial jurisdiction. Example: suits
Q: Which court has jurisdiction over the following?

A:
1. Boundary dispute between municipalities
RTCs are courts of general jurisdiction. Since
there is no legal provision specifically
governing jurisdiction over boundary disputes
between a municipality and an independent
component city of the same province, it
follows that RTCs have the power and
authority to hear and determine such
controversy (Municipality of Kananga v.
Madrona, G.R. No. 141375, Apr. 30, 2003).
2. Expropriation
It is within the jurisdiction of the RTC because
it is incapable of pecuniary estimation. It does
not involve the recovery of sum of money.
Rather, it deals with the exercise by the
government of its authority and right to take
property for public use.
3. Labor dispute
An action for damages for abuse of right as an
incident to dismissal is within the exclusive
jurisdiction of the labor arbiter. But the labor
arbiter has no jurisdiction for claims of
damages based on quasi-delict which has no
reasonable connection with the employeremployee relations claims under the Labor
Code (Ocheda v. CA, G.R. No. 85517, Oct. 16,
1992).
Note: Where no employer-employee relationship
exists between the parties and no issue involved
may be resolved by reference to the Labor Code,
other labor statutes or any collective bargaining
agreement, it is the regular courts that has
jurisdiction (Jaguar Security Investigation Agency
v. Sales, G.R. No. 162420, Apr. 22, 2008).
4. Forcible entry and unlawful detainer

The MTC has exclusive original jurisdiction. In
such cases, when the defendant raises the
question of ownership in his pleadings and the
question of possession cannot be resolved
without deciding the question of ownership,
the issue of ownership shall be resolved only to
determine the issue of possession. All
ejectment cases are covered by the Rule on
Summary Procedure and are within the
jurisdiction of the inferior courts regardless of
whether they involve questions of ownership.


The courts in ejectment cases may determine
questions of ownership whenever necessary to
decide the question of possession (Gayoso v.
Twenty-Two Realty Development Corp., G.R.
No. 147874, July 17, 2006; Santiago v. Pilar
Development Corp., G.R. No. 153628, July 20,
2006).
Authority to conduct administrative
investigations over local elective officials
and to impose preventive suspension
over elective provincial or city officials
It is entrusted to the Secretary of Local
Government and concurrent with the
Ombudsman upon enactment of R.A. 6770.
There is nothing in the Local Government Code
of 1991 to indicate that it has repealed,
whether expressly or impliedly, the pertinent
provisions of the Ombudsman Act (Hagad v.
Dadole, G.R. No. 108072, Dec. 12, 1995).
for reconsideration in accordance with Rule 45

of the Rules of Court (Sec. 27, R.A. 6770).
7. Public school teachers
Generally, the Ombudsman must yield to the
Division School Superintendent in the
investigation of administrative charges against
public school teachers (Ombudsman v. Galicia,
G.R. No. 167711, Oct. 10, 2008).
5.
6. Appeals involving orders arising from

administrative disciplinary cases originating
from the Office of the Ombudsman
It may be appealed to the Supreme Court by
filing a petition for certiorari within 10 days
from receipt of the written notice of the order,
directive or decision or denial of the motion
8.
Enforcement of a money claim against a
local government unit
Commission on Audit (COA) has the primary
jurisdiction to pass upon the money claim. It is
within the COA's domain to pass upon money
claims against the government or any subdivision
thereof as provided for under Section 26 of the
Government Auditing Code of the Philippines.
Courts may raise the issue of primary jurisdiction
sua sponte (on its own will or motion; means to
act spontaneously without prompting from
another party) and its invocation cannot be
waived by the failure of the parties to argue it as
the doctrine exists for the proper distribution of
power between judicial and administrative
bodies and not for the convenience of the parties
(Euro-Med Laboratories, Phil., Inc. v. Province of
Batangas, G.R. No. 148106, July 17, 2006).
1. SUPREME COURT
Civil Cases
Criminal Cases
Exclusive Original
Petitions for issuance of writs of certiorari, prohibition and Petitions for issuance of writs of certiorari,
mandamus against the following:
prohibition and mandamus against the following:
1. Court of Appeals
1. Court of Appeals
2. Commission on Elections En Banc
2. Sandiganbayan
3. Commission on Audit
4. Sandiganbayan
Appellate
1. In all criminal cases involving offenses from
1. Appeal by petition for review on certiorari:
which the penalty is reclusion perpetua or life
a. Appeals from the CA;
imprisonment and those involving other
b. Appeals from the CTA;
offenses, which although not so punished
c. Appeals from RTC exercising original jurisdiction in
arose out of the same occurrence or which
the following cases:
may have been committed by the accused on
i. If no question of fact is involved and the case
the same occasion
involves:
a)
2.
Constitutionality or validity of treaty,

international or executive agreement, law,
presidential decree, proclamation, order,
instruction, ordinance or regulation
b) Legality of tax, impost, assessments, or toll,
or penalty in relation thereto
c) Cases in which jurisdiction of lower court is
in issue
ii. All cases in which only errors or questions of
law are involved.
Special civil action of certiorari filed within 30 days against
the COMELEC / COA
Note: In criminal cases, when the penalty imposed

is life imprisonment or reclusion perpetua, appeal
is automatic to the CA. (A.M. No. 04-9-05-SC;
People v. Mateo y Garcia, G.R. No. 147678-87, July
7, 2004)
2.
3.
4.
5.
Criminal cases in which the death penalty is

imposed by the Sandiganbayan
Appeals from the CA;
Appeals from the Sandiganbayan;
Appeals from RTC in which only errors or
questions of law are involved.
REMEDIAL LAW TEAM:

JURISDICTION
1.
Concurrent
With CA
Petitions for issuance of writs of certiorari, prohibition and Petitions for issuance of writs of certiorari,
mandamus against the following:
prohibition and mandamus against the RTC and
a. NLRC under the Labor Code.
lower courts.
Note: The petitions must first be filed with the CA, otherwise,
they shall be dismissed. (St. Martin Funeral Home v. CA, G.R.
No. 130866, Sept. 16, 1998).
b.
c.
d.
Civil Service Commission

Quasi-judicial agencies (file with the CA first)
RTC and lower courts;
2.
Petitions for issuance of writ of kalikasan (Sec. 3, Rule 7,

A.M. No. 09-6-8-SC).
With CA and RTC
1. Petitions for habeas corpus and quo warranto; and
Petitions for issuance of writs of certiorari,
2. Petitions for issuance of writs of certiorari, prohibition and prohibition and mandamus against the lower courts
mandamus against the lower courts or other bodies
or bodies.
With CA, SB and RTC
1. Petitions for the issuance of writ of amparo
Petitions for the issuance of writ of amparo and writ
2. Petition for writ of habeas data, where the action involves
of habeas data
public data or government office
With RTC
With Sandiganbayan
Actions affecting ambassadors and other public ministers and
Petitions for mandamus, prohibition, certiorari,
consuls
injunctions and ancillary writs in aid of its appellate
jurisdiction including quo warranto arising or that
may arise in in cases filed under EO Nos. 1, 2, 14 and
14-A
Note:
1.
2.
g.
The following cases must be decided by the
SC en banc:
a. All cases involving the constitutionality
of a treaty, international or executive
agreement, or law;
b. Cases involving the constitutionality,
application or operation of presidential
decrees,
proclamations,
orders,
instructions, ordinances and other
regulations;
c. A case where the required number of
vote in a division is not obtained;
d. A doctrine or principle laid down in a
decision rendered en banc or by
division is modified, or reversed;
e. All other cases required to be heard en
banc under the Rules of Court (Sec. 5,
Art. VIII, 1987 Constitution).
Environmental laws and regulations covered
by the writ of kalikasan includes but not
limited to the following:
a. Act No. 3572 - Prohibition Against
Cutting of Tindalo,Akli, and Molave
Trees;
b. P.D. No. 705 - Revised Forestry Code;
c. P.D. No. 856 - Sanitation Code;
d. P.D. No. 979 - Marine Pollution Decree;
e. P.D. No. 1067 - Water Code;
f.
P.D.
No.
1151
Philippine
Environmental Policy of 1977;
h.
i.
j.
k.
l.
m.
n.
o.
p.
q.
P.D. No. 1433 - Plant Quarantine Law

of 1978;
P.D. No. 1586 - Establishing an
Environmental
Impact
Statement
System Including Other Environmental
Management Related Measures and
for Other Purposes;
R.A. 3571 - Prohibition Against the
Cutting, Destroying or Injuring of
Planted or Growing Trees, Flowering
Plants and Shrubs or Plants of Scenic
Value along Public Roads, in Plazas,
Parks, School Premises or in any Other
Public Ground;
R.A. 4850 - Laguna Lake Development
Authority Act;
R.A. 6969 - Toxic Substances and
Hazardous Waste Act;
R.A. 7076 - Peoples Small-Scale Mining
Act;
R.A. 7586 - National Integrated
Protected Areas System Act including
all laws, decrees, orders, proclamations
and issuances establishing protected
areas;
R.A. 7611 - Strategic Environmental
Plan for Palawan Act;
R.A. 7942 - Philippine Mining Act;
R.A. 8371 - Indigenous Peoples Rights
Act;
R.A. 8550 - Philippine Fisheries Code;


r.
s.
3.
R.A. 8749 - Clean Air Act;

R.A. 9003 - Ecological Solid Waste
Management Act;
t.
R.A. 9072 - National Caves and Cave
Resource Management Act;
u. R.A. 9147 - Wildlife Conservation and
Protection Act;
v. R.A. 9175 - Chainsaw Act;
w. R.A. 9275 - Clean Water Act;
x. R.A. 9483 - Oil Spill Compensation Act
of 2007;
y. Provisions in CA No. 141, The Public
Land Act; R.A. 6657, Comprehensive
Agrarian Reform Law of 1988; R.A.
7160, Local Government Code of 1991;
R.A. 7161, Tax Laws Incorporated in the
Revised Forestry Code and Other
Environmental Laws (Amending the
NIRC); R.A. 7308, Seed Industry
Development Act of 1992; R.A. 7900,
High-Value Crops Development Act;
R.A. 8048, Coconut Preservation Act;
R.A. 8435, Agriculture and Fisheries
Modernization Act of 1997; R.A. 9522,
The Philippine Archipelagic Baselines
Law; R.A. 9593, Renewable Energy Act
of 2008; R.A. 9637, Philippine Biofuels
Act; and
z. Other existing laws that relate to the
conservation,
development,
preservation, protection and utilization
of the environment and natural
resources (Sec. 2, Rule 1, A.M. No. 096-8-SC).
The
following
are
intra-corporate
controversies within the jurisdiction of the
RTC:
a. Cases involving devises or schemes
employed by or any acts, of the board
b.
c.
d.
of directors, business associates, its

officers or partnership, amounting
fraud or misrepresentation which may
be detrimental to the interest of the
public and/or the stockholders,
partners, members of the associations
or organizations registered with the
Security and Exchange Commission;
Controversies arising out of intracorporate or partnership relations,
between and among stockholders,
members or associates, respectively;
and between such corporation,
partnership or association and the
state in so far as it concerns their
individual franchise or right to exist as
such entity;
Controversies in the election or
appointments of directors, trustees,
officers or managers of such
corporation,
partnerships
or
associations; and
Petitions of corporations, partnerships
or associations to be declared in the
state of suspension of payments in
cases
where
the
corporation,
partnership or association posses
sufficient property to cover all its debts
but foresees the impossibility of
meeting them when they respectively
fall due or in cases where the
corporation, partnership or association
has no sufficient assets to cover its
liabilities but is under the management
of a Rehabilitation Receiver or
Management Committee (Sec. 5.2,
SRC).
2. COURT OF APPEALS
Civil Cases
Criminal Cases
Exclusive Original
Actions for annulment of judgments of RTC based upon
1. Actions for annulment of judgments of RTC (Sec. 9
extrinsic fraud or lack of jurisdiction (Sec. 9 B.P. 129).
B.P. 129).
2. Crimes of Terrorism under the Human Security Act
of 2007 or R.A. 9372
Appellate
1. Final judgments, decisions, resolutions, orders,
Judgments or decisions of RTC (except those appealable
awards of:
to the SC or SB):
a. RTC
a. exercising its original jurisdiction;
i.
In the exercise of its original jurisdiction;
b. exercising its appellate jurisdiction; and
ii.
In the exercise of its appellate jurisdiction;
c. where the imposable penalty is:
b. Family Courts;
i.
life imprisonment or reclusion perpetua;
c. RTC on the questions of constitutionality,
ii.
a lesser penalty for offenses committed on
validity of tax, jurisdiction involving questions of
the same occasion or which arose from the
fact, which should be appealed first to the CA;
same occurrence that gave rise to the offense
d. Appeals from RTC in cases appealed from MTCs
punishable reclusion perpetua or life
which are not a matter of right.
imprisonment (Sec. 3, Rule 122).
2. Appeal from MTC in the exercise of its delegated
iii.
Death (Sec. 10, Rule 122).
10
REMEDIAL LAW TEAM:

JURISDICTION
3.
4.
5.
6.
1.
2.
1.
2.
jurisdiction (R.A. 7691).

Appeals from Civil Service Commission;
Appeals from quasi-judicial agencies under Rule 43;
Appeals from the National Commission on
Indigenous Peoples (NCIP); and
Appeals from the Office of the Ombudsman in
administrative disciplinary cases (Mendoza-Arce v.
Office of the Ombudsman, G.R. No. 149148, Apr. 5,
2002).
Concurrent
With SC
1.
Petitions for issuance of writs of Petitions for issuance of writs of certiorari, prohibition
certiorari, prohibition and mandamus against and mandamus against the RTCs and lower courts.
the following:
a. NLRC under the Labor Code.
b. Civil Service Commission
c. Quasi-judicial agencies
d. RTCs and other lower courts.
2.
Petitions for issuance of writ of
kalikasan (Sec. 3, Rule 7, A.M. No. 09-6-8-SC).
With SC and RTC
Petitions for habeas corpus and quo warranto; and
Petitions for issuance of writs of certiorari, prohibition
Petitions for the issuance of writs of certiorari, and mandamus against the lower courts or bodies.
prohibition and mandamus against the lower courts
With SC, SB and RTC
Petitions for the issuance of writ of amparo
Petitions for the issuance of writ of amparo and writ of
Petition for writ of habeas data, where the action habeas data
involves public data or government office
3. COURT OF TAX APPEALS

Tax Cases
Criminal Cases
Exclusive Original
In tax collection cases involving final and executory All criminal cases arising from violation of the NIRC of the
assessments for taxes, fees, charges and penalties where TCC and other laws, part of laws, or special laws
the principal amount of taxes and fees, exclusive of administered by the BIR or the BOC where the principal
charges and penalties claimed is less than P1M tried by the amount of taxes and fees, exclusive of charges and
proper MTC, MeTC and RTC.
penalties claimed is less that P1M or where there is no
specified amount claimed (the offenses or penalties shall
be tried by the regular courts and the jurisdiction of the
CTA shall be appellate)
Appellate
In tax collection cases involving final and executory 1. Over appeals from the judgment, resolutions or
assessments for taxes, fees, charges and penalties where
orders of the RTC in tax cases originally decided by
the principal amount of taxes and fees, exclusive of
them, in their respective territorial jurisdiction,
charges and penalties claimed is less than P1M tried by the 2. Over petitions for review of the judgments,
proper MTC, MeTC and RTC.
resolutions or orders of the RTC in the exercise of
their appellate jurisdiction over tax cases originally
decided by the MeTCs, MTCs, and MCTCs in their
respective jurisdiction
Concurrent
With CIR
1. Decisions in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges,
penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR;
2. Inaction by CIR in cases involving disputed assessments, refunds of IR taxes, fees or other charges, penalties in
relation thereto, or other matters arising under the NIRC or other laws administered by BIR, where the NIRC or
other applicable law provides a specific period of action, in which case the inaction shall be deemed an implied
denial;
With RTC
Decisions, orders or resolutions of the in local taxes originally decided or resolved by them in the exercise of their
original or appellate jurisdiction;
11

With Commissioner of Customs
Decisions in cases involving liability for customs duties, fees or other charges, seizure, detention or release of
property affected, fines, forfeitures or other penalties in relation thereto, or
2.
Other matters arising under the Customs law or other laws, part of laws or special laws administered by BOC;
With Central Board of Assessment Appeals
Decisions in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real property
originally decided by the provincial or city board of assessment appeals;
With Secretary of Finance
Decision on customs cases elevated to him automatically for review from decisions of the Commissioner of Customs
which are adverse to the government under Sec. 2315 of the Tariff and Customs Code;
With Secretary of Trade and Industry and the Secretary of Agriculture
Decisions of Secretary of Trade and Industry in the case of non-agricultural product, commodity or article, and the
Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping duties and
counterveiling duties under Secs. 301 and 302, respectively, of the Tariff and Customs Code, and safeguard measures
under RA 8800, where either party may appeal the decision to impose or not to impose said duties.
1.
4. SANDIGANBAYAN
Civil Cases
Criminal Cases
Exclusive Original
Cases involving violations of:
1. Violation of R.A. 3019 (Anti-Graft and Corrupt Practices
a. EO No. 1 (Creating the PCGG);
Act) where one or more of the accused are officials
b. EO
No.
2
(Illegal
Acquisition
and
occupying the following positions in the government,
Misappropriations of Ferdinand Marcos, Imelda
whether in permanent. Acting or interim capacity, at the
Marcos their close relatives, subordinates,
time of the commission of the offense:
business associates, dummies, agents or
a. Officials occupying a position classified as Grade 27
nominees);
or higher of the Compensation and Position
c. EO No. 14 [Cases involving the ill-gotten wealth
Classification Act of 1989 (R.A. 6758) in the:
of the immediately mentioned persons (Marcos
i.
Executive branch including those occupying
and dummies)]; and
the position of regional director; and
d. EO No. 14-A (amendments to EO No. 14) (Sec. 2,
ii.
All other national or local officials.
R.A. 7975 as amended by R.A. 8294).
b. Members of Congress
c. Members of the judiciary without prejudice to the
Constitution; and
d. Chairmen and members of the Constitutional
Commissions without prejudice to the Constitution.
2. Felonies or offenses, whether simple or complexed with
other crimes committed by the public officials and
employees above mentioned in relation to their office;
and
3. Cases filed pursuant to EO Nos. 1, 2, 14 and 14-A (Sec. 2,
R.A. 7975 as amended by R.A. 8249).
Appellate
Appeals from final judgments, resolutions or orders of the
RTC, whether in the exercise of their original or appellate
jurisdiction, in cases involving public officials or employees
not otherwise mentioned in the preceding enumeration.
Concurrent
With SC
Petitions for certiorari, prohibition, mandamus,

Petitions for certiorari, prohibition, mandamus, habeas
habeas corpus, injunction and other ancillary writs in
corpus, injunction and other ancillary writs in aid of its
aid of its appellate jurisdiction, including quo
appellate jurisdiction, including quo warranto arising in cases
warranto arising in cases falling under Executive Order falling under Executive Order Nos. 1, 2, 14 and 14-A.
Nos. 1, 2, 14 and 14-A.
With SC, CA and RTC
Petitions for the issuance of writ of amparo and writ
of habeas data.
habeas data.
Q: Governor Charles of Tarlac was charged with

indirect bribery before the Sandiganbayan for
12
accepting a car in exchange for the award of a

series of contracts for medical supplies. The
REMEDIAL LAW TEAM:

JURISDICTION
Sandiganbayan, after going over the information,
found the same to be valid and ordered the
suspension of Charles. The latter contested the
suspension claiming that under the law (Sec. 13,
R.A. 3019), his suspension is not automatic upon
the filing of the information and his suspension
under Sec. 13, R.A. 3019 is in conflict with Sec. 5 of
the Decentralization Act of 1967 (R.A. 5185). The
Sandiganbayan overruled Charles contention
stating that the suspension under the
circumstances is mandatory. Is the court's ruling
correct?
A: Yes. Charles suspension is mandatory, although

not automatic. It is mandatory after the
determination of the validity of the information in a
pre-suspension hearing. The purpose of the
suspension is to prevent the accused public officer
from frustrating or hampering his prosecution by
intimidating or influencing witnesses or tampering
with evidence or from committing further acts of
malfeasance while in office. (2001 Bar Question)
5. REGIONAL TRIAL COURTS

Civil Cases
Criminal Cases
Exclusive Original
1. Criminal cases not within exclusive jurisdiction of
1. Actions in which the subject of litigation is incapable
any court, tribunal or body (Sec. 20, BP 129).
of pecuniary estimation;
a. Includes criminal cases where the penalty
2. Actions involving title to or possession of real
provided by law exceeds 6 years imprisonment
property or any interest therein where the assessed
irrespective of the fine (R.A. 7691).
value exceeds P20,000 or P50,000 in Metro Manila,
b. Includes criminal cases not falling within the
except forcible entry and unlawful detainer;
exclusive original jurisdiction of the
3. Actions in admiralty and maritime jurisdiction where
Sandiganbayan where the imposable penalty is
demand or claim exceeds P300,000 or P400,000 in
imprisonment more than 6 years and none of
Metro Manila;
the accused is occupying positions classified as
4. Matters of probate, testate or intestate, where gross
Grade 27 and higher (Sec. 4, P.D. 1606 as
value of estate exceeds P300,000 or P400,000 in
amended by R.A. 8249).
Metro Manila;
2. Cases where the only penalty provided by law is a
5. Cases not within the exclusive jurisdiction of any
fine exceeding P4,000;
court, tribunal, person or body exercising judicial or
3. Other laws which specifically lodge jurisdiction in
quasi-judicial function;
the RTC:
6. Civil actions and special proceedings falling within
a. Law on written defamation or libel;
exclusive original jurisdiction of Juvenile and
b. Decree on Intellectual Property;
Domestic Relations Court and Court of Agrarian
c. Violations of Dangerous Drugs Act regardless
Reforms;
of the imposable penalty except when the
7. Other cases where the demand, exclusive of interest,
offender is under 16 and there are Juvenile and
damages, attorneys fees, litigation expenses and
Domestic Relations Court in the province.
costs, or value of property in controversy exceeds
4.
Cases falling under the Family Courts in areas where
P300,000 or P400,000 in Metro Manila (Sec. 19, BP
there are no Family Courts (Sec.24, B.P. 129).
129 as amended by R.A. 7691); and
5.
Election offenses (Omnibus election code) even if
8. Intra-corporate controversies under Sec. 5.2 of the
committed by an official with salary grade of 27 or
Securities and Regulation Code.
higher
Concurrent
With SC, SB and CA
1. Writ of amparo
2. Writ of habeas data
habeas data
With SC
Actions affecting ambassadors and other public ministers
and consuls [Sec. 21 (2) of BP 129]
With SC and CA
1. Certiorari, prohibition and mandamus against lower
courts and bodies;
2. Habeas corpus and quo warranto;
With MTC
Cases involving enforcement or violations of
environmental and other related laws, rules and
regulations (Sec. 2, Rule 1, A.M. No. 09-6-8-SC).
Special
13

SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and domestic relations cases,
agrarian cases, urban land reform cases not falling within the jurisdiction of any quasi-judicial body and other special
cases in the interest of justice (Sec. 23, BP 129).
Appellate
GR: All cases decided by lower courts (MTC etc.) in their respective territorial jurisdictions.
XPN: Decisions of lower courts in the exercise of delegated jurisdiction.
Q: What is the test to determine whether an

action is capable of pecuniary estimation?
A: The criterion is the nature of the principal action
or the remedy sought. If it is primarily for the
recovery of a sum of money, the claim is considered
capable of pecuniary estimation, and whether
jurisdiction is in the MTCs or in the RTCs would
depend on the amount of the claim.
However, where the basic issue is something other

than the right to recover a sum of money, where
the money claim is purely incidental to, or a
consequence of, the principal relief sought like
specific performance suits and in actions for
support, or for annulment of a judgment or
foreclosure of mortgage, such actions are incapable
of pecuniary estimation, and are cognizable
exclusively by the RTCs (Barangay Piapi v. Talip,
G.R. No. 138248, Sept. 7, 2005).
6. FAMILY COURTS
Civil Cases
1.
2.
3.
4.
5.
6.
7.
8.
Criminal Cases
Exclusive Original
1. Where one or more of the accused is/are below 18
Petitions for guardianship, custody of children, habeas
years of age but not less than 9 years of age;
corpus in relation to minor;
2. When one or more of the victims is a minor at the time
Petitions for adoption of children and its revocation;
of the commission of the offense (R.A. 8369, Act
Complaints for annulment and declaration of nullity of
establishing the family courts);
marriage and those relating to marital status and
3. Cases against minors cognizable under the Dangerous
property relations of spouses or those living together
Drugs Act, as amended; and
under different status and agreements; and petitions
4. Violations of R.A. 7610 or the Special Protection of
for dissolution of conjugal partnership of gains;
Children Against Child Abuse, Exploitation and
Petitions for support and/or acknowledgment;
Discrimination Act, as amended by R.A. 7658; and
Summary judicial proceedings under the Family Code
5. Cases of domestic violence against:
of the Philippines;
a.
Women involving acts of gender-based violence
Petitions for declaration of status of children as
that result, or likely to result in physical, sexual or
abandoned, dependent or neglected children,
psychological harm or suffering to women; and
petitions for voluntary or involuntary commitment of
other forms of physical abuse such as battering or
children, the suspension, termination, or restoration of
threats and coercion which violate a womans
parental authority and other cases cognizable under
personhood, integrity and freedom of movement;
PD 603, EO 56 (Series of 1986) and other related laws;
b. Children which include the commission of all
and
forms of abuse, neglect, cruelty, exploitation,
Petitions for the constitution of the family home
violence and discrimination and all other
(rendered unnecessary by Art. 153, Family Code) (Sec.
conditions prejudicial to their development (Sec.
5, R.A. 8369).
5, R.A. 8369)
7. METROPOLITAN TRIAL COURTS/MUNICIPAL TRIAL COURTS

Civil Cases
Criminal Cases
Exclusive Original
1. Actions involving personal property where the value of the 1.
property does not exceed P300,000 or, in Metro Manila
P400,000;
2. Actions for claim of money where the demand does not
2.
exceed P300,000 or, in Metro Manila P400,000;
3. Probate proceedings, testate or intestate, where the value
of the estate does not exceed P300,000 or, in Metro Manila
P400,000;
3.
Note: In the foregoing, claim must be exclusive of interest,
damages, attorneys fees, litigation expense, and costs (Sec. 33,
BP 129 as amended by R.A. 7691).
14
4.
All offenses punishable with imprisonment not

exceeding 6 years irrespective of the amount of
fine and regardless of other imposable
accessory or other penalties;
In offenses involving damage to property
through criminal negligence where the
imposable fine does not exceed P10,000 (Sec.
32, BP 129 as amended by R.A. 7691);
Where the only penalty provided by law is a
fine not exceeding P4,000 (Admin. Circular No.
09-94, June 14, 1994); and
Those covered by the Rules on Summary
Procedure, i.e.
REMEDIAL LAW TEAM:

JURISDICTION
4. Actions involving title to or possession of real property or
any interest therein where the value or amount does not
exceed P20,000 or, in Metro Manila P50,000 exclusive of
interest damages, attorneys fees, litigation expense, and
costs; (2008 Bar Question)
5. Maritime claims where the demand or claim does not
exceed P300,000 or, in Metro Manila P400,000 (Sec. 33, BP
129 as amended by R.A. 7691);
6. Inclusion or exclusion of voters (Sec. 138, BP 881);
7. Those covered by the Rules on Summary Procedure:
a. Forcible entry and unlawful detainer;
b. Other civil cases except probate where the total amount of
the plaintiffs claims does not exceed P100,000 or, in Metro
Manila P200,000 exclusive interest and costs (as amended
by A.M. No. 02-11-09-SC).
8. Those covered by the Rules on Small Claims, i.e. actions for
payment of money where the claim does not exceed
P100,000 exclusive of interest and costs.
a.
Violations of traffic laws, rules and

regulations;
b. Violations of the rental law;
c. Violations of municipal or city ordinances;
d. Violations of BP 22 (A.M. No. 00-11-01-SC);
e. All other criminal cases where the penalty
is imprisonment not exceeding 6 months
and/or a fine of P 1,000 irrespective of
other penalties or civil liabilities arising
therefrom.
5. All offenses committed by public officers and
employees in relation to their office, including
government-owned
or
controlled
corporations, and by private individuals
charged as co-principals, accomplices or
accessories, punishable with imprisonment not
more than 6 years or where none of the
accused holds a position classified as Grade
27 and higher (Sec. 4, P.D. 1606 as amended
by R.A. 8249).
Delegated
Cadastral or land registration cases covering lots where:

a. There is no controversy or opposition;
b. Contested but the value does not exceed P100,000 (Sec.
34, BP 129 as amended by R.A. 7691).
Note: The value shall be ascertained by the affidavit of the
claimant or agreement of the respective claimants (Sec. 34, BP 129
as amended by R.A. 7691).
Special
Petition for habeas corpus in the absence of all RTC judges in
Application for bail in the absence of all RTC judges in
the province or city (Sec. 35, BP 129).
the province or city.
Concurrent
With RTC
Cases involving enforcement or violations of environmental
and other related laws, rules and regulations (Sec. 2, Rule 1,
A.M. No. 09-6-8-SC).
8. SHARIAH COURTS
Exclusive Original
1. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim
Personal Laws;
2. All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills,
issuance of letters of administration or appointment of administrators or executors regardless of the nature or
aggregate value of the property;
3. Petitions for the declaration of absence and death for the cancellation or correction of entries in the Muslim
Registries mentioned in Title VI, Book Two of the Code of Muslim Personal Laws;
4. All actions arising from the customary contracts in which the parties are Muslims, if they have not specified which
law shall govern their relations; and
5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and
processes in aid of its appellate jurisdiction.
Concurrent
With all civil courts
1. Petitions by Muslim for the constitution of a family home, change of name and commitment of an insane person to an
asylum;
2. All other personal and legal actions not mentioned in paragraph 1 (d) wherein the parties involved are Muslims except
those for forcible entry and unlawful detainer, which shall fall under the exclusive jurisdiction of the Municipal Circuit
Court; and
3. All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved
belongs exclusively to Muslims.
15

F. JURISDICTION OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND
BARANGAY CONCILIATION
Katarungang Pambarangay Law
To effect an amicable settlement of
disputes among family and barangay
members at the barangay level without
judicial recourse and consequently help
relieve the courts of docket congestion.
(Preamble of P.D. 1508) (1999 Bar
Qestion)
1.
2.
3.
4.
For disputes between residents of

the same barangay: the dispute must
be brought for settlement in the said
barangay.
different but adjoining barangays
and the parties agree to submit their
differences to amicable settlement:
within the same city or municipality
where any of the respondents reside
at the election of the complainant.
For disputes involving real property
or any interest when the parties
thereto agree to submit their
differences to amicable settlement
by an appropriate lupon therein shall
be brought in the barangay where
the real property or larger portion
thereof is situated.
For disputes arising at the workplace
where the contending parties are
employed or at the institution where
such parties are enrolled for study
shall be brought in the barangay
where such workplace or institution
is located.
All disputes involving parties who

actually reside in the same city or
municipality may be the subject of the
proceedings for amicable settlement in
the barangay.
16
Rule on Small Claims Cases

Purpose / Object
To provide a simpler and more
inexpensive and expeditious means
of settling disputes involving purely
money claims than the regular civil
process
1.
2.
3.
4.
Where to file
Metropolitan Trial Courts
Municipal Trial Courts in Cities
Municipal Trial Courts
Municipal Circuit Trial Courts
Rules on Summary Procedure

To achieve an expeditious and
inexpensive determination of the
cases defined to be governed by
the Rules on Summary Procedure
1.
2.
3.
4.
Metropolitan Trial Courts

Municipal Trial Courts in Cities
Municipal Trial Courts
Municipal Circuit Trial Courts
Cases Covered
Civil Cases
Small claims cases civil claims 1. All cases of forcible entry and
which are exclusively for the
unlawful detainer irrespective of
payment or reimbursement of a
the amount of damages or unpaid
sum of money not exceeding
rentals sought to be recovered.
P100,000 exclusive of interest and
Where attorneys fees are
costs, either
awarded, the same shall not
1. Purely civil in nature where
exceed P20,000; and
the claim or relief prayed for 2. All other civil cases, except
by the plaintiff is solely for
probate proceedings, where the
payment or reimbursement of
total amount of plaintiffs claim
sum of money, or
does not exceed P100,000 or
2. The civil aspect of criminal
does not exceed P200,000 in
actions, either filed before the
Metro Manila, exclusive of
institution of the criminal
interests and costs (A.M. No. 02action, or reserved upon the
11-09-SC, Nov. 25, 2005).
filing of the criminal action in
court, pursuant to Rule 111 of
the Revised Rules of Criminal
Procedure.
REMEDIAL LAW TEAM:

JURISDICTION
These claims or demands may be:
1. For money owed under any of
the following:
a. Contract of Lease
b. Contract of Loan
c. Contract of Services
d. Contract of Sale
e. Contract of Mortgage
2. For damages arising from any
of the following:
a. Fault or negligence
b. Quasi-contract
c. Contract
3. The enforcement of a
barangay amicable settlement
or an
arbitration award
involving a money claim
covered by this Rule pursuant
to Sec. 417
Criminal Cases
When punishable by imprisonment of
not more than 1 year or fine of not more
than 5,000. (Sec. 408, LGC)
1.
2.
3.
4.
5.
6.
Where one party is the government

or
any
subdivision
or
instrumentality thereof;
Where one party is a public officer
or employee, and the dispute
relates to the performance of his
official functions;
Offenses
punishable
by
imprisonment exceeding 1 year or a
fine exceeding P5,000.00;
Offenses where there is no private
offended party;
Where the dispute involves real
properties located in different cities
or municipalities unless the parties
by an appropriate lupon;
Disputes involving parties who
actually reside in barangays of
different cities or municipalities,
except where such barangay units
adjoin each other and the parties
1. Violations of traffic laws, rules

and regulations;
2. Violations of the rental law;
3. Violations of municipal or city
ordinances;
4. Violations of B.P. 22 or the
Bouncing Checks Law (A.M. No.
00-11-01-SC, Apr. 15, 2003);
5. All other criminal cases where
the penalty is imprisonment not
exceeding 6 months and/or a
fine of P 1,000 irrespective of
other penalties or civil liabilities
arising therefrom; and
6. Offenses involving damage to
property
through
criminal
negligence where the imposable
fine is not exceeding P10,000.
1.
2.
Cases excluded
Criminal actions are excluded
pursuant
to
certain
Constitutional
limitations
granting the accused in all
criminal prosecutions the
right to be heard by himself
and counsel (Sec. 14[2], Bill
of Rights). An example is a
case for libel or slander.
However, the civil aspect of a
criminal action which seeks
recovery of money as
damages may be heard as a
small claim if reserved or
instituted separately prior to
the filing of the criminal case.
Some civil cases regardless of
how little the amount
involved cannot be filed as
small claims. Examples are a
suit to force a person to fix a
damaged good or a demand
for the fulfillment of an
This Rule shall not apply to a civil

case where the plaintiff's cause of
action is pleaded in the same
complaint with another cause of
action subject to the ordinary
procedure; nor to a criminal case
where the offense charged is
necessarily related to another
criminal case subject to the
ordinary procedure.

17
7.
8.

by an appropriate lupon;
Such other classes of disputes
which the President of the
Philippines may determine in the
interest of justice; and
Violations of R.A. 9262, VAWC Act.
obligation which is not purely

for money.
G. TOTALITY RULE
Q: What is the Aggregate or Totality Rule?
A: Where there are several claims or causes of
actions between the same or different parties
embodied in one complaint, the amount of the
demand shall be the totality of the claims in all
causes of action irrespective of whether the causes
of action arose out of the same or different
transaction (Rule 2, Sec.5 [d]).
18
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
III. CIVIL PROCEDURE
A. ACTIONS
1. MEANING OF ORDINARY CIVIL ACTIONS
Q: What is an ordinary civil action?
A: It is a formal demand of ones legal rights in a
court of justice in the manner prescribed by the
court or by law. It is governed by ordinary rules.
2. MEANING OF SPECIAL CIVIL ACTIONS
Q: What is a special civil action?
A: It has special features not found in ordinary civil
actions. It is governed by ordinary rules but subject
to specific rules prescribed Rules 62-71.
3. MEANING OF CRIMINAL ACTIONS
Q: What is a criminal action?
A: It is one by which the state prosecutes a person
for an act or omission punishable by law (Sec.3 (b),
Rule1).
4. CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS
Q: Distinguish action from special proceeding.
A:
Action
Special Proceeding
Purpose
Civil action:
To establish a status, a right
1. To protect a right
or a particular fact (Sec. 3
2. Prevent or redress a Rule 1). Specific kinds of
wrong.
special proceedings are
found in rule 72 rule 109
Criminal action:
E.g. settlement of estate,
Prosecute a person for
escheat, guardianship, etc.
an act or omission
(Riano, Civil Procedure: A
punishable by law (Sec.
Restatement for the Bar, p.
3, Rule 1)
121, 2009 ed.)
Application
Where a party litigant
Where his purpose is to
seeks to recover
seek the appointment of a
property from another,
guardian for an insane
his remedy is to file an
person, his remedy is a
action.
special proceeding to
establish the fact or status
of insanity calling for an
appointment of
guardianship. (Herrera, Vol.
I, p. 370, 2007 ed.)
Governing Law
Ordinary rules
Special rules supplemented
supplemented by special by ordinary rules
rules
Court
Heard by courts of limited
jurisdiction
Procedure
Initiated by a pleading
Initiated by a petition and
and parties respond
parties respond through an
through an answer
opposition
Heard by courts of
general jurisdiction
5. REAL ACTIONS AND PERSONAL ACTIONS

Q: Distinguish real actions from personal actions.
A:
Real Action
Personal Action
Scope
When it affects title to or
Personal property is
possession of a real
sought to be recovered
property, or an interest
or where damages for
therein (Sec. 1, rule 4)
breach of contract are
sought
Basis
When it is founded upon the Founded on privity of
privity of a real estate. That contract such as
means that realty or interest damages, claims of
therein is the subject matter money, etc.
of the action.
Note: It is important that the
matter in litigation must also
involve any of the following
issue:
1. Title to
2. Ownership
3. Possession
4. Partition
5. Foreclosure of mortgage
6. Any interest in real
property.
Venue
Venue of action shall be
Venue of action is the
commenced and tried in the place where the
proper court which has
plaintiff or any of the
jurisdiction over the area
principal plaintiffs
wherein the real property
resides or any of the
involved, or a portion
defendants resides, at
thereof is situated. (Rule 4,
the election of the
sec 1)
plaintiff (Rule 2 sec 2)
Example
An action to recover
Action for a sum of
possession of real property
money
plus damages
Note: An action to annul or
rescind a sale of real property
has as its fundamental and
prime objective the recovery
of real property (Emergency
Loan Pawnshop, Inc. vs. Court
of appeals, 353 SCRA 89;
Riano, p. 122, 2009 ed.)

19

6. LOCAL AND TRANSITORY ACTIONS
Q: Distinguish local action from transitory actions.
A:
Local Action
Transitory Action
Venue
Must be brought in a
Dependent on the place
particular plac where the where the party resides
subject property is
regardless of where the
located, unless there is
cause of action arose.
an agreement to the
Subject to Sec. 4, Rule 4
contrary.
Privity of contract
No privity of contract and Founded on privity of
the action is founded on contract between the
privity of estate only
parties whether debt or
covenant (Paper Industries
Corporation of the
Philippines v. Samson, G.R.
No. L-30175, Nov. 28,
1975).
Example
Action to recover real
Action to recover sum of
property
money
7. ACTIONS IN REM, IN PERSONAM AND QUASI IN REM

Q: Distinguish actions in rem, in personam and quasi in rem
A:
Action In Rem
Action In Personam
Action Quasi In Rem
Nature
A proceeding to subject the property A proceeding to enforce
A proceeding to subject the property of
of such persons to the discharge of
personal rights and obligations the named defendant or his interests
the claims assailed.
brought against the person
therein to the obligation or lien
burdening the property.
Purpose
A proceeding to determine the state
An action to impose a
Deals with the stauts, ownership or
or condition of a thing
responsibility or liability upon
liability of a particular property but
a person directly
which are intended to operate on these
questions only as between the particular
parties to the proceedings and not to
ascertain or cut-off the rights or
interests of all possible claimants.
(Domagas vs. Jensen, 448 SCRA 663)
Scope
Directed against the thing itself
Directed against particular
Directed against particular persons
Directed against the whole world
persons
Required jurisdiction
Jurisdiction over the person of the Jurisdiction over the person of Jurisdiction over the person of the
defendant is not required.
the defendant is required
defendant is not required as long as
Jusrisdiction over the RES is required
jurisdiction over the res is acquired
through publication in a newspaper
of general circulation.
Effect of judgment
Judgment is binding upon the whole Judgment is binding only upon
Judgment will be binding only upon the
world.
parties impleaded or their
litigants, privies, successor in interest
successors-in-interest
but the judgment shall be executed
against a particular property. The RES
involve will answer the judgment.
Example
1. Probate proceeding
1. Action for specific
1. Action for partition
2. Cadastral proceeding
performance
2. Action to foreclose real estate
3. Land registration proceeding
2. Action for breach of
mortgage attachment
contract
3. Action for ejectment
4. Action for a sum of money;
for damages (Riano, Civil
Procedure: A Restatement
for the Bar,p.130, 2009 ed.)
20
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
B. CAUSE OF ACTION
3. FAILURE TO STATE A CAUSE OF ACTION
1. MEANING OF CAUSE OF ACTION
Q: Distinguish failure to state cause of action from

absence or lack of cause of action
Q: What is a cause of action?

A:
A: It is the act or omission by which a party violates
a rights of another (Sec. 2, Rule 2).
2. CAUSE OF ACTION VERSUS RIGHT OF ACTION
Q: Distinguish cause of action from right of action
A:
Cause of Action
It is the act or omission
by which a party
violates the rights of
another ( Sec. 2, Rule 2)
Right of Action
Remedial right or right to
relief granted by law to a
party to institute an action
against a person who has
committed a delict or
wrong against him
Requisites
1. The existence of a
1. There must be a good
legal right of the
cause (existence of a
plaintiff
cause of action)
2. A correlative duty of
2. A compliance with all
the defendant to
the conditions precedent
respect ones right
to the bringing of the
3. An act or omission of
action
the defendant in
3. The action must be
violation of the
instituted by the proper
plaintiffs right.
party.
Nature
It is actually predicated
It is procedural in
on substantive law or
character is the
on quasi delicts under
consequence of the
NCC.
violation of the right of the
plaintiff (Riano, Civil
for the Bar , p. 4, 2009 ed.)
Basis
Based on the allegations Basis is the plaintiffs cause
of the plaintiff in the
of action
complaint
Effect of Affirmative defense
Not affected by
Affected by affirmative
affirmative defenses
defenses
(fraud, prescription,
estoppel, etc.)
Note: The rule is There is no right of action where
there is no cause of action. (Ibid p.4)
Failure to state cause of

action
Insufficiency in the
allegations of the
complaint
Lack of cause of action
Failure to prove or
establish by evidence
ones stated cause of
action
As a ground for dismissal
Raised in a motion to
Raised in a demurrer to
dismiss under Rule 16
evidence under Rule 33
before a responsive
after the plaintiff has
pleading is filed
rested his case
Determination
Determined only from
Resolved only on the basis
the allegations of the
of the evidence he has
pleading and not from
presented in support of his
evidentiary matters
claim
4. TEST OF THE SUFFICIENCY OF A CAUSE OF

ACTION
Q: What is the test of sufficiency of the statement
of a cause of action?
A:
1.
Whether or not admitting the facts

alleged, the court could render a valid
verdict in accordance with the prayer of
the complaint (Misamis Occidental II
Coop., Inc. vs. David, 468 SCRA 63; Riano,
p. 92, 2009 ed.)
2.
The sufficiency of the statement of cause

of action must appear on the face of the
complaint and its existence is only
determined by the allegations of the
complaint (Viewmaster Construction Corp.
vs. Roxas, 335 SCRA 540; Riano, Civil
Procedure: A Restatement for the Bar, p.
93, 2009 ed)
Note: The truth or falsity of the allegations is beside

the point because the allegations in the complaint are
hypothetically admitted. Thus a motion to dismiss on
the ground of failure to state a cause of action,
hypothetically admits the matters alleged in the
complaint (Riano, Civil Procedure: A Restatement for
the Bar, p92, 2009 ed.)

21

5. SPLITTING A SINGLE CAUSE OF ACTION AND ITS
EFFECTS
Q: What is splitting a cause of action?
A: It is the act of instituting two or more suits on
the basis of the same cause of action (Sec. 4, Rule
2). It is the act of dividing a single or indivisible
cause of action into several parts or claims and
bringing several actions thereon. It is a ground for
the dismissal of others. The rule against splitting of
a cause of action aims to avoid multiplicity of suits,
conflicting decisions and unnecessary vexation and
harassment of defendants. It applies not only to
complaints but also to counterclaims and crossclaims. (1999 Bar Question)
Note: An action for forcible entry should include not
only the plea for restoration of possession but also
claims for damages arising out of the forcible entry
(Progressive Development Corporation, Inc. vs. CA, 301
SCRA 637; Riano, Civil Procedure: A Restatement for
the Bar, p. 108, 2009 ed.)
Q: What are the rules on splitting a single cause of

action?
Note: When the causes of action accrue in favor of the

same plaintiff and against the same defendant, it is not
necessary to ask whether or not the causes of action
arose out of the same transaction or series of
transactions. Also a joinder of causes of action is only
permissive not compulsory, hence a party may desire
to file a single suit for each of his claims.
Q: Is misjoinder of causes of action a ground for

dismissal?
A: No. A misjoined cause of action may, on motion
of a party or on initiative of the court, be severed
and proceeded with separately (Sec. 6 Rule 2).
Q: The complaint filed before the RTC states two
causes of actions, one for rescission of contract
and other for the recovery of 100, 000.00 both of
which arose out of the same transaction. Is the
joinder of the two causes of action proper?
A: Yes. Both are ordinary civil actions and thus,
neither requires special rules. Since the action for
rescission falls under the jurisdiction of the RTC, the
joinder may be made in said court provided the
venue lies therein (Sec. 5, Rule 2; 1996 Bar
Question; Riano, Civil Procedure: A Restatement for
the Bar, p.120, 2009 ed.)
A:
C. PARTIES TO CIVIL ACTIONS
1. Prohibited by the Rules of Court. A party

may not institute more than one suit for a
single cause of action. (Sec.3, Rule 2)
2. The rule against splitting a single cause of
action applies not only to complaints but
also to counterclaims and cross-claims.
(Mariscal vs. Court of Appeals, 311 SCRA 51)
1. REAL PARTIES IN INTEREST; INDISPENSABLE

PARTIES; REPRESENTATIVES AS PARTIES;
NECESSARY PARTIES; INDIGENT PARTIES;
ALTERNATIVE DEFENDANTS
Q: What are the kinds of parties in a civil action?
6. JOINDER AND MISJOINDER OF CAUSES OF

ACTION
A:
1.
2.
3.
4.
5.
6.
Q: What is a joinder of causes of action?

A: It is the assertion of as many causes of action a
party may have against another in one pleading
alone (Sec. 5, Rule 2).
Note: Joinder of causes of action must be subject to
the following conditions:
1. The party shall comply with the rules on joinder
of parties;
2. The joinder shall not include special civil actions
governed by special rules;
3. Where causes of action pertain to different
venues, the joinder may be allowed in the RTC
provided one of the causes of action falls within
the jurisdiction of said court and venue lies
therein
4. Where claims in all causes of action are for
recovery of money, the aggregate amount
claimed shall be the test for jurisdiction. (Sec 5,
Rule 2)
22
Real parties in interest

Indispensable parties
Representatives as parties
Necessary parties
Indigent parties
Pro-forma parties
Q: Who is a real party in interest?

A: He is the party who stands to be benefited or
injured by the judgment in the suit, or the party
entitled to the avails of the suit (Sec. 2 Rule 3).
Q: Distinguish an indispensable party from a
necessary party.
A:
Indispensable Parties
Parties in interest
without whom no final
determination can be
Necessary Parties
A necessary party is one
who is not indispensable but
who ought to be joined as a
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
had of an action shall
be joined either as
plaintiffs
or
defendants.
(Sec.7,
Rule 3)
Must be joined under
any and all conditions
because the court
cannot
proceed
without him (Riano,
Civil Procedure: A
Restatement for the
Bar, p. 224, 2009 ed.)
No valid judgment if
they are not joined
Note: In the absence of
an indispensable party
renders all subsequent
actions of the court null
and void for want of
authority to act, not
only as to the absent
parties but even as to
those present (Riano,
Civil
Procedure:
A
Restatement for the
Bar, p. 221, 2009 ed.)
party if complete relief is to

be accorded as to those
already parties, or for a
complete determination or
settlement of the claim
subject of the action. (Sec.8,
Rule 3)
Note: Should be joined
whenever possible, the action
can proceed even in their
absence because his interest
is separable from that of
indispensable party (Ibid
p.224)
The
case
may
be
determined in court but the
judgment therein will not
resolve
the
entire
controversy if a necessary
party is not joined
Note: Whenever in any
pleading in which a claim is
asserted a necessary party is
not joined, the pleader shall
set forth his name, if known,
and shall state why he is
omitted. Should the court find
the reason for the omission
unmeritorious, it may order
the inclusion of the omitted
necessary party if jurisdiction
over his person may be
obtained. The failure to
comply with the order for his
inclusion, without justifiable
cause, shall be deemed a
waiver of the claim against
such party.
The non-joinder of an indispensable or a necessary

party is not by itself ipso facto a ground for the
dismissal of the action. The court should order the
joinder of such party and non-compliance with the
said order would be a ground for the dismissal of the
action (Feria, Civil Procedure Annotated, Vol. I, p. 239,
2001 ed.)
Note: Parties may be dropped or added by order of the
court on motion of any party or on its own initiative at
any stage of the action and on such terms as are just. Any
claim against a misjoined party may be severed and
proceeded with separately. (Sec. 11, Rule 3)
Q: May a party sue the defendants in the

alternative?
A: Yes. Where the plaintiff is uncertain against who
of several persons he is entitled to relief, he may
join any or all of them in the alternative, although a
right to relief against one may be inconsistent with

a right to relief against the other (Sec. 13, Rule 3).
Q: May an action be prosecuted in the name of
other party other than the real party in interest?
A: No. Every action must be prosecuted and
defended in the name of the real party-in-interest
(Sec. 2, Rule 3). Even where the action is allowed to
be prosecuted or defended by a representative
party or someone acting in a fiduciary capacity, the
beneficiary shall be included in the title of the case
and shall be deemed to be a real party-in-interest
(Sec.3 Rule 3; Riano, p. 219, 2009 ed.)
Note: An agent acting in his own name and for the
benefit of an undisclosed principal may sue or be sued
without joining the principal except when the contract
involves things belonging to the principal.
Q: Who is an indigent party?

A: He is one who has no money or property
sufficient and available for food, shelter and basic
necessities for himself and his family. (Sec. 21 Rule
3)
Note: Indigent litigants (a) whose gross income and that
of their immediate family do not exceed an amount
double the monthly minimum wage of an employee and
(b) who do not own real property with a fair market value
as stated in the current tax declaration of more than three
hundred thousand (P300,000.00) pesos shall be exempt
from payment of legal fees. (Sec. 19, Rule 141).
Q: What is the rule on indigent litigants?

A: If the applicant for exemption meets the salary
and property requirements under Sec. 19, Rule 141,
then the grant of the application is mandatory. On
the other hand, when the application does not
satisfy one or both requirements, then the
application should not be denied outright; instead,
the court should apply the indigency test under
Sec. 21, Rule 3 and use its sound discretion in
determining the merits of the prayer for exemption
(Algura v. LGU of Naga, G.R. No. 150135, Oct. 30,
2006).
Note: While the authority to litigate as an indigent
party may be granted upon an ex parte application and
hearing, it may be contested by the adverse party at
any time before judgment is rendered (Sec. 21, Rule
3).
Q: What does the authority include, if one is

authorized as an indigent party?
A: An exemption from the payment of:
1. Docket fees and other lawful fees

23

2.
Transcript of stenographic notes. (Sec. 21,

Rule 3)
Note: The amount of the docket and other lawful fees

which the indigent was exempted from paying shall be
a lien on any judgment rendered in the case favorable
to the indigent, unless otherwise provided (Sec. 21,
Rule 3).
The basis for the exemption from legal and filing fees is
the free access clause embodied in Sec. 11, Art. III,
1987 Constitution. (Re: Query of Mr. Roger C.
Prioreschi re exemption from legal and filing fees of
The Good Shepherd Foundation, Inc., A.M. No. 09-6-9SC, Aug. 19, 2009)
Q: Who is a pro forma party?

A: One who is joined as a plaintiff or defendant, not
because such party has any real interest in the
subject matter or because any relief is demanded,
but merely because the technical rules of pleadings
require the presence of such party on the record.
(Samaniego vs. Agulia, G.R. No. 125567, June 27,
2000)
2. COMPULSORY AND PERMISSIVE JOINDER OF
PARTIES
and allows the amendment of the complaint at any

stage of the proceedings, through motion or on
order of the court on its own initiative (Sec. 11, Rule
3; Republic v. Sandiganbayan, G.R. No. 152154, July
15, 2003). However, when the order of the court to
implead an indispendable party goes unheeded, the
court may order the dismissal of the case. The court
is fully clothed with the authority to dismiss a
complaint due to the fault of the plaintiff as when,
among others, he does not comply with the order
of the court (Sec. 3, Rule 17; Plasabas vs. CA, GR No.
166519; Riano, Civil Procedure: A Restatement for
the Bar p. 223, 2009 ed.)
4. CLASS SUIT
Q: What is a class suit?
A: It is an action where one or some of the parties
may sue for the benefit of all if the requisites for
said action are complied with. (Riano, Civil
ed.)
Q: What are its requisites?
A:
1.
Q: When is there a compulsory joinder of parties?

A: The joinder of parties becomes compulsory when
the one involved is an indispensable party. Clearly,
the rule directs a compulsory joinder of
indispensable parties, (Riano, Civil Procedure: A
Restatement for the Bar, p. 222, 2009 ed.)
Q: What are the requisites of permissive joinder of
parties?
A:
1.
2.
3.
Right to relief arises out of the same

transaction or series of transactions
(connected with the same subject matter
of the suit);
There is a question of law or fact common
to all the plaintiffs or defendants; and
Joinder is not otherwise provided by the
provisions of the Rules on jurisdiction and
venue (Sec. 6, Rule 3).
3. MISJOINDER AND NON-JOINDER OF PARTIES

Q: Is the misjoinder or non-joinder of an
indispensable party a ground for the dismissal of
the action or annulment of judgment?
A: No. The Rules prohibit the dismissal of a suit on
the ground of non-joinder or misjoinder of parties
24
2.
3.
4.
Subject matter of the controversy is one

of common or general interest to many
persons;
Parties affected are so numerous that it is
impracticable to bring them all before the
court;
Parties bringing the class suit are
sufficiently numerous or representative of
the class and can fully protect the
interests of all concerned (Sec. 12 Rule 3);
and
Representatives sue or defend for the
benefit of all (Sec.12, Rule 3)
5. SUITS AGAINST ENTITIES WITHOUT JURIDICAL

PERSONALITY
Q: What is the rule on suits against entities
without juridical personality?
A: When two or more persons not organized as an
entity with juridical personality enter into a
transaction, they may be sued under the name by
which they are generally or commonly known. In
the answer of such defendant, the names and
addresses of the persons composing said entity
must all be revealed (Sec. 15, Rule 3).
Note: Persons associated in an entity without juridical
personality may be sued under the name by which they
are generally or commonly known, but they cannot sue
under such name.
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Question)
6. EFFECT OF DEATH OF PARTY LITIGANT

Q: What is the effect of the death of a party upon
a pending action?
A:
1.
2.
3.
Purely personal the death of either of

the parties extinguishes the claim and the
action is dismissed.
Not purely personal claim is not
extinguished and the party should be
substituted by his heirs, executor or
administrator. In case of minor heirs, the
court may appoint a guardian ad litem for
them.
Action for recovery of money arising from
contract and the defendant dies before
entry of final judgment it shall not be
dismissed but instead shall be allowed to
continue until entry of judgment. A
favorable judgment obtained by the
plaintiff shall be enforced in the manner
provided in the rules for prosecuting
claims against the estate of a deceased
person. (Sec. 20, Rule 3, 1999 Bar
Question)
Note: The substitute defendant need not be

summoned. The order of substitution shall be served
upon the parties substituted for the court to acquire
jurisdiction over the substitute party. (Riano, Civil
Procedure: A Restatement for the Bar, p. 232, 2009 ed.)
If there is notice of death, the court should await
appointment of legal representative; otherwise,
subsequent proceedings are void.
D. VENUE
1. VENUE VERSUS JURISDICTION
Q: Distinguish venue from jurisdiction.
A:
Venue
The
place,
or
geographical area where
an action is to be filed
and tried.
May be waived by:
1. Failure
to
object
through a motion to
dismiss or through an
affirmative defense.
2. Stipulation of the
parties.
Procedural
May be changed by the
written agreement of the
parties
Jurisdiction
Power of the court to
hear and decide a case
Establishes a relation
between plaintiff and
defendant, or petitioner
and respondent.
GR: Not a ground for a
motu proprio dismissal
XPN: In cases subject to
summary procedure.
It is a ground for a motu

proprio dismissal. (Riano,
Civil
Procedure:
A
Restatement for the Bar,
p. 210, 2009 ed.)
Q: Can a complaint be dismissed by the court motu

proprio based on improper venue?
A: No. Improper venue is not one of the grounds
wherein the court may dismiss an action motu
proprio. (Universal Corp. vs. Lim, G.R. No. 154338,
Oct. 5, 2007). Unless and until the defendant
objects to the venue in a motion to dismiss, the
venue cannot be truly said to be improperly laid,
because the venue although technically wrong may
be acceptable to the parties for whose convenience
the rules on venue have been devised. (Dacuycuy
vs. Intermediate Appellate Court, 195 SCRA 641)
2. VENUE OF REAL ACTIONS
Q: What is the venue of real actions?
A: The venue is local, hence the venue is the place
where the real property involved or, any portion
thereof, is situated (Sec. 1, Rule 4).
3. VENUE OF PERSONAL ACTIONS
Q: What is the venue of personal actions?
A: The venue is transitory, hence the venue is the
residence of the plaintiff or defendant at the option
of the plaintiff. (Sec. 3, Rule 4).
4. VENUE OF ACTIONS AGAINST NON-RESIDENTS
Q: Where should the action be commenced and
tried if the defendant is a non-resident?
A:
1.
Defendant does not reside and is found in

the Philippines:
a. Personal actions shall be
commenced and tried in the court of
the place where the plaintiff resides
b. Real actions shall be commenced
and tried in the court of the place
where the property is located.
2.
Defendant does not reside and is not

found in the Philippines:
Cannot be waived
Substantive
Cannot be the subject of
the agreement of the
parties.
(2006
Bar
Establishes a relation
between the court and
the subject matter.

25

a.
b.
If the action affects the personal

status of the plaintiff the action
may be commenced and tried in the
court of the place where the plaintiff
resides.
If it involves any property of the nonresident defendant the action may
be commenced and tried where the
property or any portion thereof is
situated (Sec. 3, Rule 4).
2.
3.
4.
5.
6.
Solely
Exclusively in this court
In no other court save
Particularly
Nowhere else but/except
Q: When is stipulation on venue void?

A: It is void and unenforceable when it is contrary
to public policy (Sweet Lines v. Teves, G.R. No.
28324, Nov. 19, 1978)
5. WHEN THE RULES ON VENUE DO NOT APPLY

Q: In what instances does the rule on venue of
action inapplicable?
A:
1.
2.
In cases where a specific rule or law

provides otherwise (e.g. an action for
damages arising from libel).
Where the parties have validly agreed in
writing before the filing of the action on
the exclusive venue (Sec. 4, Rule 4).
6. EFFECTS OF STIPULATIONS ON VENUE

Q: What is rule on the stipulations on venue?
A: The parties may agree on a specific venue which
could be in a place where neither of them resides
(Universal Robina Corp. vs. Lim, 535 SCRA 95). The
parties may stipulate on the venue as long as the
agreement is in writing, made before the filing of
the action, and exclusive. (Sec.4[b], Rule 4)
Q: What makes a stipulation on venue exclusive?
A: Venue is exclusive when the stipulation clearly
indicates, through qualifying and restrictive words
that the parties deliberately exclude causes or
actions from the operation of the ordinary
permissive rules on venue and that they intended
contractually to designate a specific venue to the
exclusion of any other court also com petent and
accessible to the parties under the ordinary rules on
venue of actions (Philippine Banking Corp. v.
Tensuan, G.R. No. 106920, Dec. 10, 1993)
Note: A stipulation that the parties agree to sue and
be sued in the courts of Manila is not restrictive or
exclusive to prevent the filing of the suit in the places
provided for by the rules (Riano, Civil Procedure: A
Q: What are examples of words with restrictive

meanings?
A:
1.
26
Note: When the action is no longer based on the

agreement but on the tortuous act of sending
collection telegrams despite the fact that the
obligation had already been paid, venue is no longer
based on the written stipulation but at the election of
the plaintiff as fixed by law. (Zoleta v. Ramillo, G.R. No.
L-58080, Feb. 15, 1982)
E. PLEADINGS
Q: What are pleadings?
A: Pleadings are the written statements of the
respective claims and defenses of the parties
submitted to the court for appropriate judgment.
(Sec.1, Rule 6)
Note: Pleadings cannot be oral because they are
clearly described as written statements. (Riano, Civil
Procedure: A Restatement for the Bar, p. 51, 2009 ed.)
1. KINDS OF PLEADINGS
Q: What are the kinds of pleadings?
A:
1.
2.
3.
4.
5.
6.
Complaint
Counterclaim
Cross-claim
Third party claim
Reply
Answer
a. COMPLAINT
Q: What is a complaint?
A: It is a concise statement of the ultimate facts
constituting the plaintiffs cause or causes of action,
with a specification of the relief sought, but it may
add a general prayer for such further relief as may
be deemed just or equitable.
Note: A pleading alleging the plaintiffs cause or causes
of action. The names and residences of the plaintiff
and defendant must be stated. (Sec. 3, Rule 6)
Only
REMEDIAL LAW TEAM:
CIVIL PROCEDURE
b. ANSWER
Q: What is an answer?
A: It is the pleading where the defendant sets forth
his affirmative or negative defenses (Sec. 4 Rule 6).
It may likewise be the response to a counterclaim
or a cross-claim.
Note: An answer Is a compulsory pleading. This
pleading may be an answer to the complaint, an
answer to counter claim or an answer to a cross-claim
(Riano, Civil Procedure: A Restatement for the Bar, p.
323, 2009 ed.)
(1) NEGATIVE DEFENSES

(2) NEGATIVE PREGNANT
(3) AFFIRMATIVE DEFENSES
Q: What are the two kinds of defenses that may be
set forth in the answer?
A:
1.
2.
Affirmative defenses allegation of a

new matter which while hypothetically
admitting the material allegations in the
pleading would nevertheless prevent or
bar recovery by the claiming party. It is in
the nature of confession and avoidance
Negative defenses specific denial of the
material facts or facts alleged in the
pleading essential to establish the
plaintiffs cause of action (Sec. 5, Rule 6).
Q: What are insufficient denials or denials

amounting to an admission?
A:
1.
2.
General denial
Denial in the form of a negative pregnant
Q: What is negative pregnant?

A: A denial which does not qualify as a specific
denial. It is conceded to be actually an admission
(Riano, Civil Procedure: A Restatement for the Bar,
p. 327, 2009 ed.). It is a form of denial which, at the
same time, involves an affirmative implication
favorable to the opposing party. It is in effect an
admission of the averment to which it is directed. It
is said to be a denial pregnant with an admission of
the substantial facts in the pleading responded to.
(Regalado, Remedial Law Compendium, Vol. I, p.
177, 2005 ed.)
Note: Where a fact is alleged with some qualification
or modifying language and the denial is conjunctive, a
negative pregnant exists, and only the qualification or
modification is denied, while the fact itself is admitted.
A denial in a form of negative pregnant is an

ambiguous pleading, since it cannot be ascertained
whether it is the fact or only the qualification that is
intended to be denied (Galofa v. Nee Bon Sing, G.R.
No. L-22018, Jan. 17, 1968).
c. COUNTERCLAIMS
Q: What is counterclaim?
A: It is any claim which a defending party may have
against an opposing party (Sec. 6, Rule 6). It
partakes of a complaint by the defendant against
the plaintiff (Pro-Line Sports Inc., v. CA, G.R. No.
118192, Oct. 23, 1997)
Note: The filing of counterclaim gives rise to
complaints, namely, the one filed by plaintiff by way of
original complaint and the one filed by defendant by
way of a counterclaim (Riano, Civil Procedure: A
Restatement for the Bar, p.330, 2009 ed.) A
counterclaim may be asserted against an original
counter-claimant and a cross-claim may also be filed
against an original cross-claimant. (Sec.9, Rule 6)
(1) COMPULSORY COUNTERCLAIM

(2) PERMISSIVE COUNTERCLAIM
Q: Distinguish the two kinds of counterclaim.
A:
Compulsory
Counterclaim
One which arises out of
or is necessarily
connected with the
transaction or
occurrence that is the
subject matter of the
opposing partys claim
(Sec.7, Rule 6)
It does not require for
its adjudication the
presence of third parties
of whom the court
cannot acquire
jurisdiction
Barred if not set up in
the action (Sec. 2, Rule
9)
Need not be answered;
No default
Not an initiatory
pleading.
Need not be
accompanied by a
certification against
forum shopping and
certificate to file action
Permissive Counterclaim
It does not arise out of nor
is it necessarily connected
with the subject matter of
the opposing partys claim
It may require for its

adjudication the presence
of third parties over
whom the court cannot
acquire jurisdiction
Not barred even if not set
up in the action
Must be answered,:
Otherwise, default
Initiatory pleading. (Riano,
Civil Procedure: A
Restatement for the Bar,
p. 336, 2009 ed.)
Must be accompanied by
a certification against
forum shopping and
whenever required by
law, also a certificate to

27

by the Lupong
Tagapamayapa.
The court has

jurisdiction to entertain
both as to the amount
and nature (Sec. 7, Rule
6; Ibid p.331)
file action by the Lupong

Tagapamayapa (Santo
Tomas University v. Surla,
G.R. No. 129718, Aug. 17,
1998) (2007 Bar
Question).
Must be within the
jurisdiction of the court
where the case is pending
and cognizable by regular
courts of justice
otherwise, defendant will
have to file it in separate
proceeding which requires
payment of docket fee
Note: A plaintiff who fails or who chooses not to

answer a compulsory counterclaim may not be
declared in default, principally because the issues
raised in the counterclaim are deemed automatically
joined by the allegations of the complaint (Gojo v.
Goyala, G.R. No. 26768, Oct. 30, 1970).
In an original action before the RTC, the counterclaim
may be considered compulsory regardless of the
amount (Sec. 7, Rule 6).
(3) EFFECT ON THE COUNTERCLAIM WHEN THE

COMPLAINT IS DISMISSED
Q: What is the effect of the dismissal of a
complaint on the counterclaim?
the right of the defendant to prosecute

his counterclaim in the same or separate
action (Sec. 3, Rule 17; Riano, Civil
340, 2009 ed.)
Q: Fe filed a suit for collection of P387,000 against
Ramon in the RTC of Davao City. Aside from
alleging payment as a defense, Ramon in his
answer set up counterclaims for P100,000 as
damages and P30,000 as attorney's fees as a result
of the baseless filing of the complaint, as well as
for P250,000 as the balance of the purchase price
of the 30 units of air conditioners he sold to Fe.
Suppose that instead of alleging payment as a
defense in his answer, Ramon filed a motion to
dismiss on that ground, at the same time setting
up his counterclaims, and the court grants his
motion. What will happen to his counterclaims?
A: Since Ramon filed only a motion to dismiss, not
an answer, the dismissal of the complaint would
also bring about the dismissal of his counterclaims
but he can file a separate action for his permissive
counterclaims. The compulsory counterclaims are
deemed waived when he filed a motion to dismiss
the complaint instead of answering the same
(Financial Building Corp. v. Forbes Park Association,
Inc., G.R. No. 133119, Aug. 17, 2000). (2008 Bar
Question)
d. CROSS-CLAIMS
A:
1.
2.
3.
28
If no motion to dismiss has been filed, any

of the grounds for dismissal under rule 16
may be pleaded as an affirmative defense
in the answer, and in the discretion of the
court, a preliminary hearing may be had
thereon as if a motion to dismiss has been
filed (Sec. 6, Rule 16). After hearing, when
the complaint is dismissed, the
counterclaim, compulsory or permissive is
not dismissed.
When the plaintiff himself files a motion
to dismiss his complaint after the
defendant has pleaded his answer with a
counterclaim. If the court grants the
motion, the dismissal shall be limited to
the complaint. It shall be without
prejudice to the right of the defendant to
prosecute his counterclaim in a separate
action unless within 15 days from notice
of the motion, manifests his preference to
have his counterclaim resolved in the
same action (Sec. 2, Rule 17).
When the complaint is dismissed through
the fault of the plaintiff and at a time
when a counterclaim has already been set
up, the dismissal is without prejudice to
Q: What are the requirements for a cross-claim?

A:
1.
2.
3.
A claim by one party against a co-party;

It must arise out of the subject matter of
the complaint or of the counterclaim; and
The cross-claimant is prejudiced by the
claim against him by the opposing party.
(Sec. 8, Rule 6)
Q: What is the effect if a cross-claim was not set

up?
A:
GR: Barred if not set up. (Sec.2, Rule 9)
XPN: If it is not asserted through oversight,
inadvertence, or excusable negligence, it may still
be set up with leave of court by amendment of the
pleadings. (Sec.10, Rule 11)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
e. THIRD (FOURTH, ETC.) PARTY COMPLAINTS
Surety & Insurance Co., G.R. No. L-27802, Oct. 26,

1968).
Q: What is a third (fourth, etc.) party complaint?

A: A third (fourth, etc.) party complaint is a claim
that a defending party may, with leave of court, file
against a person not a party to the action, called
the third (fourth, etc.) party defendant, for
contribution, indemnity, subrogation or any other
relief, in respect of his opponent's claim. (Sec.11,
Rule 6)
Q: Distinguish a third-party complaint from the
rules on bringing in new parties.
A: A third-party complaint is proper when not one
of the third-party defendants therein is a party to
the main action. Whereas in bringing in new
parties, if one or more of the defendants in a
counterclaim or cross-claim is already a party to the
action, then the other necessary parties may be
brought in under the rules on bringing in new
parties
Q: Why is leave of court necessary in third (fourth,
etc.) -party complaint?
A: To obviate delay in the resolution of the
complaint such as when the third-party defendant
cannot be located; or unnecessary issues may be
introduced; or the introduction of a new and
separate controversy. (Herrera, Vol. I, p. 705, 2007
ed.)
Q: What are the tests to determine whether the
third-party complaint is in respect of plaintiffs
claim?
A:
1.
2.
3.
Whether it arises out of the same

transaction on which the plaintiffs claim
is based, or, although arising out of
another or different transaction, is
connected with the plaintiffs claim;
Whether the third-party defendant would
be liable to the plaintiff or to the
defendant for all or part of the plaintiffs
claim against the original defendant; and
Whether the third-party defendant may
assert any defenses which the third-party
plaintiff has or may have to the plaintiffs
claim.
Note: Where the trial court has jurisdiction over the

main case, it also has jurisdiction over the third party
complaint, regardless of the amount involved as a
third-party complaint is merely auxiliary to and is a
continuation of the main action (Republic v. Central
A third party complaint is not proper in an action for

declaratory relief. (Commissioner of Customs v.
Cloribel, G.R. No. L-21036, June 30, 1977).
Note: The court is vested with the discretion to allow
or disallow a party to an action to implead an
additional party. Thus, a defendant has no vested right
to file a third party complaint (China Banking
Corporation vs. Padilla, G.R no. 143490, Feb. 2, 2007;
Riano, p. 342, 2009 ed.).
Q: Abby obtained a favorable judgment against

UNICAP for a sum of money. For failure to get full
payment, Abby went after UNICAPs debtor Ben.
Ben is a policy holder of Insular. The courts sheriff
then served a notice of garnishment to Insular
over several account receivables due to Ben.
Insular refused to comply with the order alleging
adverse claims over the garnished amounts. The
trial court ordered Insular to release to Abby the
said account receivables of Ben under the policies.
Insular then filed a petition for certiorari with the
CA alleging that the trial judge gravely abused his
discretion when he issued the garnishment order
despite its adverse claim on the garnished
amounts. The CA gave due course to the petition
and annulled the order of the trial court. Is the
Court of Appeals correct?
A: No. Neither an appeal nor a petition for certiorari
is the proper remedy from the denial of a thirdparty claim. Since the third-party claimant is not
one of the parties to the action, he could not,
strictly speaking, appeal from the order denying its
claim, but should file a separate reinvindicatory
action against the execution creditor or a complaint
for damages against the bond filed by the judgment
creditor in favor of the sheriff. The rights of a thirdparty claimant should be decided in a separate
action to be instituted by the third person (Solidum
v. CA, G.R. No. 161647, June 22, 2006).
f. COMPLAINT-IN-INTERVENTION
Q: What is a complaint-in-intervention?
A: An intervention pleading filed for the purpose of
asserting a claim against either or all of the original
parties.
g. REPLY
Q: Is the filing of a reply necessary?
A:
GR: No.

29

Note: If a party does not file such reply. All the
new matters that were alleged in the answer are
deemed controverted (Sec. 10, Rule 6)
XPNs:
1. Where the answer alleges the defense of
usury in which case a reply under oath
should be made. Otherwise, the
allegation of usurious interest shall be
deemed admitted.
2. Where the defense in the answer is based
on an actionable document, a reply under
oath pursuant to Sec. 8 of Rule 8 must be
made. Otherwise, the genuineness and
due execution of the document shall be
deemed admitted.
2. PLEADINGS ALLOWED IN SMALL CLAIM CASES
AND CASES COVERED BY THE RULES ON
SUMMARY PROCEDURE
3. PARTS OF A PLEADING
a. CAPTION
Q: What should the caption contain?
A: The caption sets forth the name of the court, the
title of the action, and the docket number if
assigned. (Sec. 1, Rule 7)
Q: What should the title of the caption indicate?
A: It should indicate the names of the parties. They
shall all be named in the original complaint or
petition but in subsequent pleadings, it shall be
sufficient if the name of the first party on each side
be stated with an appropriate indication when
there are other parties. (Sec. 1, Rule 7)
b. SIGNATURE AND ADDRESS
Q: What are the pleadings allowed in a summary

procedure?
Q: What is the rule regarding the signature and

address?
A:
A: The complaint must be signed by the plaintiff or

counsel representing him indicating his address.
This address should not be a post office box. An
unsigned pleading produces no legal effect.
However, the court may, in its discretion, allow
such deficiency to be remedied if it shall appear
that the same was due to mere inadvertence and
not intended for delay. Counsel who deliberately
files an unsigned pleading, or signs a pleading in
violation of this Rule, or alleges scandalous or
indecent matter therein, or fails to promptly report
to the court a change of his address, shall be
subject to appropriate disciplinary action (Sec. 3,
Rule 7)
1.
2.
3.
4.
Complaint
Compulsory counterclaim
Cross-claims pleaded in the answer
Answer to these pleadings (Sec. 3, Rules
on Summary Procedure; Riano, p. 177,
2009 ed.)
Q: What are the prohibited pleadings, motions and

petitions in small claims?
A:
1.
Motion to dismiss the complaint except

on the ground of lack of jurisdiction.
2. Motion for a bill of particulars.
3. Motion for new trial, or for
reconsideration of a judgment, or for
reopening of trial.
4. Petition for relief from judgment.
5. Motion for extension of time to file
pleadings, affidavits, or any other paper.
6. Memoranda.
7. Petition for certiorari, mandamus, or
prohibition against any interlocutory
order issued by the court.
8. Motion to declare the defendant in
default.
9. Dilatory motions for postponement.
10. Reply.
11. Third-party complaints.
12. Interventions. (Sec.14 of A.M. No. 08-8-7SC)
30
c. VERIFICATION AND CERTIFICATION AGAINST

FORUM SHOPPING
Q: How are pleadings verified?
A: It is verified by an affidavit. This affidavit declares
that the:
1. Affiant has read the pleading; and
2. Allegations therein are true and correct of
his personal knowledge or based on
authentic records (Sec. 4, Rule 7)
Q: Is verification necessary in pleadings?
A: No, except when otherwise specifically required
by law or rule, pleadings need not be under oath,
verified or accompanied by affidavit. (Sec. 4, Rule 7)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: What is the significance of verification?
2.
A: it is intended to secure an assurance that the

allegations in a pleading are true and correct and
not the product of the imagination or a matter of
speculation, and that the pleading is filed in good
faith. The absence of a proper verification is cause
to treat the pleading as unsigned and dismissible
(Chua vs. Torres, 468 SCRA 358; Riano, Civil
ed.)
3.
Q: What are the pleadings that should be verified?
A: The following should be verified:
1. Petition for relief from judgment
2. Petition for review from the RTCs to the
CA
3. Petition for review from the CTA and
quasi-judicial agencies to the CA
4. Appeal by certiorari from the CA to the SC
5. Petition for annulment of judgments or
final orders and resolutions
6. Complaint for injunction
7. Application for appointment of receiver
8. Application for support pendente lite
9. Petition for certiorari against the
judgments, final orders or resolutions of
constitutional commissions
10. Petition for certiorari, prohibition,
mandamus, quo warranto
11. Complaint for expropriation
12. Complaint for forcible entry or unlawful
detainer
13. Petition for indirect contempt
14. Petition for appointment of general
guardian
15. Petition for leave to sell or encumber
property of an estate by a guardian
16. Petition
for
the
declaration
of
competency of a ward
17. Petition for habeas corpus
18. Petition for change of name
19. Petition for voluntary judicial dissolution
of a corporation;
20. Petition for correction or cancellation of
entries in Civil Registry. (1996 Bar
Question)
It does not necessarily render the

pleading defective. It is only a formal and
not a jurisdictional requirement. The
requirement is a condition affecting only
the form of the pleading (Benguet Corp. v.
Cordillera Caraballo Mission, Inc., G.R. No.
155343, Sept. 2, 2005) and noncompliance
therewith
does
not
necessarily render it fatally defective
(Sarmiento v. Zaranta, G.R. No. 167471,
Feb. 5, 2007)
The absence of verification may be
corrected by requiring an oath. The rule is
in keeping with the principle that rules of
procedure are established to secure
substantial justice and that technical
requirements may be dispensed with in
meritorious cases (Pampanga Sugar
Development Co., Inc. v. NLRC, G.R. No.
112650, May 29, 1997)
Q: What is the nature of the certification against

non-forum shopping?
A: It is a mandatory requirement in filing a
complaint and other initiatory pleadings asserting a
claim or relief (Sec. 5, Rule 7). This rules applies as
well to special civil actions since a since rules for
ordinary civil action are suppletory (Riano, Civil
ed.).
Q: Who executes certification against forumshopping?
A: It is the plaintiff or principal party who executes
the certification under oath (Sec. 5, Rule 7). It must
be signed by the party himself and cannot be signed
by his counsels. (Digital Microwave Corp. v. CA, G.R.
No. 128550, Mar. 16, 2000). It is the plaintiff who is
in the best position to know whether he or it
actually filed or caused the filing of a petition. (Far
Eastern Shipping Co. v. CA, G.R. No. 130068, Oct. 1,
1998)
Q: What are the undertakings of a party under the
certification against forum shopping?
A:
Q: What are the effects of lack of verification?
1.
That the party has not commenced or

filed any claim involving the same issues
in any court, tribunal, or quasi-judicial
agency and, to the best of his knowledge,
no such other action or claim is pending
2.
That if there is such other pending action

or claim, a complete statement of the
present status thereof
A:
1.
A pleading required to be verified but

lacks the proper verification shall be
treated as an unsigned pleading (Sec. 4 as
amended by A.M. 00-2-10, May 1, 2000).
Hence, it produces no legal effect (Sec. 3,
Rule 7)

31

3.
That if he should therefore learn that the

same or similar action or claim has been
filed or is pending, he shall report that
fact within five days therefrom to the
court wherein his aforesaid complaint or
initiatory pleading has been filed (Sec. 5,
Rule 7)
filing of the certification 14 days before the

dismissal of the petition. In Uy v. LandBank,
supra, the Court had dismissed Uys petition for
lack of verification and certification against nonforum shopping. However, it subsequently
reinstated the petition after Uy submitted a
motion to admit certification and nonforum shopping certification. In all these cases,
there were special circumstances or compelling
reasons that justified the relaxation of the rule
requiring verification and certification on nonforum shopping.
Q: What is the effect of non-compliance with the

rule on certification against forum shopping?
A: It is not curable by mere amendment and shall
be a cause for the dismissal of action (Sec.5, Rule 7).
Note: When the case is dismissed due to noncompliance with the certification, filing fees cannot be
recovered.
Q: Is substantial compliance allowed by the

courts?
A:
GR: No. The rule is that the certificate of nonforum shopping must be signed by all the
petitioners or plaintiffs in a case and the signing
by only one of them is insufficient.

undertakings?
A: It has the same effect as the submission of false
certification. Hence, such failure shall constitute
indirect contempt of court without prejudice to the
corresponding
administrative
and
criminal
sanctions. (Sec. 5 Rule 7).
XPN: However, the Court has also stressed that

the rules on forum shopping, which were
designed to promote and facilitate the orderly
administration of justice, should not be
interpreted with such absolute literalness as to
subvert its own ultimate and legitimate
objective. The rule of substantial compliance
may be availed of with respect to the contents
of the certification. This is because the
requirement of strict compliance with the
provisions regarding the certification of nonforum shopping merely underscores its
mandatory nature in that the certification
cannot be altogether dispensed with or its
requirements completely disregarded. It does
not thereby interdict substantial compliance
with
its
provisions
under
justifiable
circumstances. (Cavile v. Heirs of Clarita Cavile,
448 Phil 302, 2003)
Q: What is the effect of submission of a false

certification?
A: It shall constitute indirect contempt of court,
without
prejudice
to
the
corresponding
administrative and criminal actions (Sec. 5, Rule 7)
Q: What is the effect of willful and deliberate
forum shopping of the party or his counsel?
A: It shall be a ground for summary dismissal. This
dismissal is with prejudice and shall constitute
direct contempt as well as cause for administrative
sanctions (Sec. 5, Rule 7).
Q: Is belated filing allowed by the courts?
Q: When should the rule on forum shopping be

invoked?
A:
GR: No. The lack of certification against
forum shopping is generally not curable by the
submission thereof after the filing of the
petition.
XPN: In certain exceptional circumstances,
however, the Court has allowed the belated
filing of the certification. In Loyola v. Court of
Appeals, et al. (245 SCRA 477 [1995]), the Court
considered the filing of the certification one day
after the filing of an election protest
as substantial compliance with the requirement.
In Roadway Express, Inc. v. Court of Appeals, et
al. (264 SCRA 696 [1996]), the Court allowed the
32
A:
GR:
It should be raised at the earliest
opportunity in a motion to dismiss or a similar
pleading.
Note: Invoking it in the later stages of the
proceedings or on appeal may result in the
dismissal of the action which invokes forum
shopping.
XPNs: It may be invoked in the later stages only

if the violation arises from or will result in:
1. The loss of jurisdiction over the subject
matter
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
2.
3.
4.
The pendency of another action between

the same parties for the same cause
Barring of the action by a prior judgment
The Statute of Limitations has been
crossed (Young v. Keng Seng, G.R.
No.143464, Mar. 5, 2003).
Q: Mayor Miguel, Mayor of City Koronadal, filed

an action against RD Corporation for the
annulment of the deed of absolute sale over
several real properties of City of Koronadal
alleging irregularities thereto with the RTC. The
said deed of absolute sale was authorized by
Mayor Miguels predecessor, Mayor de Jesus. The
RTC dismissed the petition because the
certification against forum shopping was signed by
the City Legal Officer of City of Koronadal and not
by Mayor Miguel. Is the RTC correct?
A: Yes. It is the mayor, not the City Legal Officer,
who has the authority to file suits for the recovery
of funds and property on behalf of the city even
without the prior authorization from the
Sanggunian. Here, Mayor Miguel had the authority
to institute the action against RD Corporation.
However, being the proper party to file such suits,
Mayor Miguel must necessarily be the one to sign
the certification against forum-shopping, and not
the City Legal Officer, who, despite being an official
of the City, was merely its counsel and not a party
to the case (City of Caloocan v. CA, G.R. No. 145004,
May 3, 2006).
(1) REQUIREMENTS OF A CORPORATION
EXECUTING THE VERIFICATION/CERTIFICATION OF
NON-FORUM SHOPPING
A: No. When the petitioner in a case is a

corporation, the certification against forum
shopping should be signed by its duly authorized
director or representative. The authorized director
or representative of the corporation should be
vested with authority by a valid board resolution. A
proof of said authority must be attached with the
certification (PAL v. FASAP, G.R. No. 143088, Jan.
24, 2006).
d. EFFECT OF THE SIGNATURE OF COUNSEL IN A
PLEADING
Q: What is the effect of lawyers signature?
A: The signature of counsel constitutes:
1. A certificate by him that he has read the
pleadings;
2. That to the best of his knowledge,
information and belief there is good
ground to support it; and
3. That it is not interposed for delay. (Sec. 3,
Rule 7)
4. ALLEGATIONS IN A PLEADING
a. MANNER OF MAKING ALLEGATIONS
Q: What is the rule when making a pleading?
A: Every pleading shall contain in a methodical and
logical form a plain, concise and direct statement of
the ultimate facts, omitting the statement of mere
evidentiary facts. (Sec. 1, Rule 6)
Q: What are Ultimate facts?
Q: What is the rule when the plaintiff is a juridical

person?
A: The certification against forum shopping where
the plaintiff is a juridical entity like a corporation,
may be executed by properly authorized person.
This person may be a lawyer of a corporation. As
long as he is duly authorized by the corporation and
has personal knowledge of the facts required to be
disclosed in the certification, such may be signed by
the authorized lawyer (National Steel Corporation
vs. CA, 388 SCRA 85; Riano, Civil Procedure: A
Q: Corporation XYZ is the petitioner in a civil case.
Alexander, president of corporation XYZ, signed
the certification against forum shopping in behalf
of said corporation without presenting any proof
of authority from the corporation. Is the
certification against forum shopping valid? If not,
how may it be cured?
A: They refer to the essential facts of the claim. A

fact is essential if it cannot be stricken out without
leaving the statement of the cause of action
insufficient. (Ceroferr Realty Corporation vs. Court
of Appeals, 376 SCRA 144)
(1) CONDITION PRECEDENT
Q: What is condition precedent?
A: It refers to matters which must be complied with
before a cause of action arises. (Riano, Civil
ed.)
Q: What is the rule on conditions precedent?
A: When a claim is subject to a condition precedent,
the compliance of the same must be alleged in the
pleading. Otherwise it will be a ground for dismissal

33

for failure to state a cause of action. Such as tender
of payment before consignation, prior resort to
barangay conciliation when necessary, and etc
(Riano, Civil Procedure: A Restatement for the Bar,
p. 97, 2009 ed.).
(2) FRAUD, MISTAKE, MALICE, INTENT,
KNOWLEDGE AND OTHER CONDITION OF THE
MIND, JUDGMENTS, OFFICIAL DOCUMENTS OR
ACTS
Q: What is the rule in making averments of fraud
or mistake?
A: The circumstances constituting such fraud or
mistake must be stated with particularity (Sec. 5,
Rule 8). The complaint must state with particularity
the fraudulent acts of the adverse party. These
particulars would necessarily include the time,
place, and specific acts of fraud committed against
him (Riano, Civil Procedure: A Restatement for the
Bar, p. 98, 2009 ed.).
Q: How are actionable documents pleaded?

A: By setting forth:
1. The substance of such document in the
pleading and attaching said document
thereto as an exhibit
2. Said document verbatim in the pleading
(Sec. 7, Rule 8).
Note: A variance in the substance of the document set
forth in the pleading and the document annexed
thereto does not warrant the dismissal of the action
(Convets, Inc. v. National Development Co., G.R. No. L10232, Feb. 28, 1958). However, the contents of the
document annexed are controlling.
c. SPECIFIC DENIALS
Q: What are the kinds of specific denial?
A:
1.
Q: What is the rule in making averments of malice,

intent, knowledge or other conditions of the mind
of a person?
A: The circumstances constituting such may be
averred generally (Sec.5, Rule 8).
Q: What is the rule in pleading an official
document or act?
A: It is sufficient to aver that the document was
issued in compliance with law. With respect to an
act, it is likewise sufficient to allege that the act was
done also in compliance with law (Sec.9, Rule 8;
Riano, Civil Procedure: A Restatement for the Bar, p.
98, 2009 ed.).
b. PLEADING AN ACTIONABLE DOCUMENT
Q: What is an actionable document?
A: Referred to as the document relied upon by
either the plaintiff and the defendant. (Araneta, Inc.
vs. Lyric Factor Exchange, Inc. 58 Phil 736) E.g. A
promissory note in an action for collection of a sum
of money. (Riano, Civil Procedure: A Restatement
for the Bar, p. 101, 2009 ed.)
Note: This manner of pleading a document applies
only to an actionable document, i.e., one which is the
basis of an action or a defense. Hence, if a document
does not have the character of an actionable
document, it need not be pleaded strictly in the
manner prescribed by the rules (Ibid p.102)
34
2.
3.
Absolute denial defendant specifies

each material allegation of fact the truth
of which he does not admit and,
whenever practicable, shall set forth the
substance of the matters upon which he
relies to support his denial.
Partial denial defendant denies only a
part of an averment. In this kind he shall
specify so much of it as is true and
material and shall deny only the
remainder.
Disavowal of knowledge defendant
alleges that he is without knowledge or
information sufficient to form a belief as
to the truth of a material averment made
in the complaint.
(1) EFFECT OF FAILURE TO MAKE SPECIFIC DENIALS

Q: What is the effect of failure to make specific
denial?
A: Material averments except as to the amount of
unliquidated damages, not specifically denied are
deemed admitted. If the allegations are deemed
admitted, there is no more triable issue between
the parties and if the admissions appear in the
answer of the defendant, the plaintiff may file a
motion for judgment on the pleadings under Rule
34 (Riano, Civil Procedure: A Restatement for the
Bar, p. 324, 2009 ed.)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
(2) WHEN A SPECIFIC DENIAL REQUIRES AN OATH
6. DEFAULT
Q: When is a specific denial must be coupled with

an oath?
a. DECLARATION OF DEFAULT
Q: When is a declaration of default proper?
A:
1.
A denial of an actionable document (Sec.
8, Rule 8)
2.
A denial of allegations of usury in a
complaint to recover usurious interest (Sec. 11,
Rule 8)
A: If the defending party fails to answer within the

time allowed therefor, the court shall upon motion
of the claiming party with notice to the defending
party, and proof of such failure, declare the
defending party in default (Sec. 3, Rule 9, Rules of
Court). (Riano, p. 507, 2005 ed.)
5. EFFECT OF FAILURE TO PLEAD

a. FAILURE TO PLEAD DEFENSES AND OBJECTIONS
Q: May defenses not pleaded in a motion to
dismiss or in the answer still be raised?
A:
GR: No, they are deemed waived.
XPNs: These defenses may be raised at any
stage of the proceedings even for the first time
on appeal (Tijam v. Sibonghanoy, G.R. No. L21450, Apr. 15, 1968):
1. Lack of jurisdiction over the subject
matter;
Q: In what situations where declaration of default

is proper?
A: It is proper in 3 situations:
1. Defendant did not file any answer or
responsive pleading despite valid service
of summons;
2. Defendant filed an answer or responsive
pleading but beyond the reglementary
period; and
3. Defendant filed an answer to the court
but failed to serve the plaintiff a copy as
required by the Rules.
b. EFFECT OF AN ORDER OF DEFAULT
Note: It may however, be barred by laches.
Q: What are the effects of an order of default?

2.
3.
4.
Litis pendentia;
Res judicata; and
Statute of limitations (Sec. 1, Rule 9)
A:
1.
b. FAILURE TO PLEAD A COMPULSORY

COUNTERCLAIM AND CROSS-CLAIM
2.
Q: May a compulsory counterclaim or cross-claim
not set up in the answer still be raised
subsequently?
A:
GR: A compulsory counterclaim or cross-claim
not set up in the answer is deemed barred (Sec.
2, Rule 9).
XPN: If the compulsory counterclaim or crossclaim is an after-acquired counterclaim, that is,
such claim matured after filing of the answer, it
may be pleaded by filing an amended answer or
a supplemental answer or pleading (Sec. 9, Rule
11).
3.
c. RELIEF FROM AN ORDER OF DEFAULT

Q: What are the reliefs from an order of default?
A:
1.
Note: Counterclaims or cross-claims omitted through

oversight, inadvertence, or excusable neglect or when
justice requires may be set up by amendment before
judgment. Leave of court is necessary (Sec. 10, Rule
11).
The party declared in default loses his

standing in court. The loss of such
standing prevents him from taking part in
the trial [Sec. 3(a), Rule 9];
While the defendant can no longer take
part in the trial, he is nevertheless
entitled to notices of subsequent
proceedings [Sec. 3 (a), Rule 9]. It is
submitted that he may participate in the
trial, not as a party but as a witness; and
A declaration of default is not an
admission of the truth or the validity of
the plaintiffs claims (Monarch Insurance
v. CA, G.R. No. 92735, June 8, 2000).
After notice of order and before judgment

The defendant must file a verified
motion to set aside the order of default
upon proper showing that:

35

a.
b.
2.
3.
4.
His failure to answer was due to

fraud, accident, mistake or excusable
negligence; and
That he has a meritorious defense.
[Sec. 3(b), Rule 9] (2000 & 1999 Bar
Question)
f. ACTIONS WHERE DEFAULT ARE NOT ALLOWED

Q: When is default not allowed?
A:
1.
2.
After judgment and before judgment

becomes final and executory He may file
a motion for new trial under Rule 37. He
may also appeal from the judgment as
being contrary to the evidence or the law
(Talsan Enterprises, Inc. v. Baliwag
Transit, Inc., G.R. No. 169919, Sept. 11,
2009)
After the judgment becomes final and
executory he may file a petition for
relief from judgment under Rule 38
(Balangcad v. Justices of the CA, G.R. No.
83888, Feb. 12, 1992) (2006, 1998 Bar
Question)
Where the defendant has however, been
wrongly or improvidently declared in
default, the court can be considered to
have acted with grave abuse of discretion
amounting to lack or excess of jurisdiction
and when the lack of jurisdiction is patent
in the face of the judgment or from the
judicial records, he may avail of the
special civil action of certiorari under Rule
65 (Balangcad v. Justices of the CA, G.R.
No. 83888, Feb. 12, 1992)
3.
Actions for annulment;

Declaration of nullity of marriage and
legal separation [Sec. 3(e), Rule 9]; and
In special civil actions of certiorari,
prohibition and mandamus where
comment instead of an answer is
required to be filed.
7. FILING AND SERVICE OF PLEADINGS

Q: What papers are required to be filed and
served?
A: Every judgment, resolution, order, pleading
subsequent to the complaint, written motion,
notice, appearance, demand, offer of judgment or
similar papers shall be filed with the court, and
served upon the parties affected. (Sec.4, Rule 13)
a. PAYMENT OF DOCKET FEES
Q: What is the significance of paying the docket
fees?
A: A complaint is not considered filed unless the
proper amount of the docket fee is paid. Thus, if the
proper docket fee is not paid, the period of
prescription continues to run.
b. FILING VERSUS SERVICE OF PLEADINGS
d. EFFECT OF A PARTIAL DEFAULT

Q: What is filing?
Q: What is the effect of partial default?
A: It is the act of presenting the pleading or other
paper to the clerk of court. (Sec. 2, Rule 13)
A:
GR: The court will try the case against all
defendants upon the answer of some.
XPN: Where the defense is personal to the one
who answered, in which case, it will not
benefit those who did not answer e.g. forgery.
(1995 Bar Question)
e. EXTENT OF RELIEF
Q: What is service?
A: It is the act of providing a party with a copy of
the pleading or paper concerned. If any party has
appeared by counsel, service upon him shall be
made upon his counsel or one of them, unless
service upon the party himself is ordered by the
court. (Sec. 2, Rule 13)
Q: What is the extent of relief?

A: The judgment shall not exceed the amount or be
different in kind from that prayed for nor award
unliquidated damages [Sec. 3(d), Rule 9]. However,
if the court orders submission of evidence,
unliquidated damages may be awarded based on
such.
36
c. PERIODS OF FILING OF PLEADINGS

Q. When should a responsive pleading be filed?
A:
Answer to an original
complaint
Periods for Filing an

Answer
Within 15 days after
service
of
summons,
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Defendant is a foreign
private juridical entity
and has a resident
agent
and has no resident
agent but has an agent
/ officer in the
Philippines
and has no resident
agent nor agent/
officer.
(Summons to be served
to SEC which will then
send a copy by
registered mail within
10 days to the home
office of the foreign
private corporation)
Service of summons by
publication
Non-resident defendant
to whom
extraterritorial service
of summons is made
Answer to amended
complaint (Matter of
right)*
Answer to amended
complaint (Not a
matter of right)*
Counterclaim or crossclaim
Third (fourth, etc.)
party complaint
Supplemental
complaint
unless a different period is

fixed by the court (Sec. 1,
Rule 11).
service of summons (Sec.6,
in relation to Sec.5[a], Rule
2, A.M. NO. 00-8-10-SC
2000-11-21)
service of summons to
said agent or officer (Sec.6,
in relation to Sec.5[b], Rule
2, A.M. NO. 00-8-10-SC
2000-11-21)
receipt of summons by the
home office of the foreign
private entity
d. MANNER OF FILING
Q: What are the modes of filing?
A:
1.
2.
By presenting the original copies thereof,

plainly indicated as such, personally to
the clerk of court; or
By sending them through registered mail
(Sec. 3, Rule 13)
Note: Filing by mail should be through the registry

service which is made by deposit of the pleading in the
post office, and not through other means of
transmission.
e. MODES OF SERVICE
Q: What are the modes of service?
A:
1.
2.
Within the time specified
in the order which shall
not be less than 60 days
after notice (Sec. 15, Rule
14)
Not be less than 60 days
after notice (Sec. 15, Rule
14)
Within 15 days from
service
of
amended
complaint (Sec. 3. Rule 11)
Within 10 days counted
from notice of the court
order admitting the same
(Sec. 3, Rule 11)
Within 10 days from
service (Sec. 4, Rule 11)
Like an original defendant
15, 30, 60 days as the
case may be (Sec. 5;
Regalado, Vol. I, p. 212,
2005 ed.)
Within 10 days from
notice of order admitting
the same unless a different
period is fixed by the court
(Sec. 7, Rule 11)
Note: Upon motion and on such terms as may be just,

the court may extend the time to plead provided in
these Rules. The court may also, upon like terms, allow
an answer or other pleading to be filed after the time
fixed by these Rules. (Sec.11, Rule 11)
3.
Personal service (Sec. 6, Rule 13);

Service by registered mail (Sec. 7, Rule
13); or
Substituted service (Sec. 8, Rule 13).
(1) PERSONAL SERVICE
Q: How is personal service done?

A: By:
1.
2.
3.
Delivering personally a copy to the party

or his counsel;
Leaving a copy in counsels office with his
clerk or with a person having charge
thereof; or
Leaving the copy between 8 a.m. and 6
p.m. at the partys or counsels residence,
if known, with a person of sufficient age
and discretion residing therein if no
person found in his office, or if his office is
unknown, or if he has no office (Sec. 6,
Rule 13).
(2) SERVICE BY MAIL
Q: How is service by mail done?

A:
1.
By depositing the copy in the post office

in a sealed envelope, plainly addressed to
the party or his counsel at his office, if
known, otherwise at his residence, if
known, with postage fully prepaid, and
with instructions to the postmaster to
return the mail to the sender after 10
days if undelivered; or

37

2.
If no registry service is available in the

locality of either the sender or the
addressee, service may be done by
ordinary mail (Sec. 7, Rule 13).
2.
3.
(3) SUBSTITUTED SERVICE

Q: How and when is substituted service made?
4.
A: If service of pleadings, motions, notices,
resolutions, orders and other papers cannot be
made under the two preceding sections, the office
and place of residence of the party or his counsel
being unknown, service may be made by delivering
the copy to the clerk of court, with proof of failure
of both personal service and service by mail (Sec. 8,
Rule 13).
(7) PROOF OF FILING AND SERVICE

Q: What are the proofs of filing?
A:
GR: Filing is proven by its existence in the
record of the case.
(4) SERVICE OF JUDGMENTS, FINAL ORDERS OR

RESOLUTIONS
XPN: If it is not in the record, and:

1. If filed personally proved by the written
or stamped acknowledgement of its filing
by the clerk of court on a copy of the
same; or
2. If filed by registered mail proved by the
registry receipt and the affidavit of the
person who did the mailing with a full
statement of:
a. The date and place of depositing the
mail in the post office in a sealed
envelope addressed to the court;
b. With postage fully paid; and
c. With instructions to the postmaster
to return the mail to the sender after
10 days if undelivered. (Sec. 12, Rule
13)
Q: How is service of judgment of final orders or

resolutions done?
A: By:
1.
2.
3.
Service by ordinary mail upon expiration

of 10 days after mailing, unless the court
otherwise provides.
Service by registered mail upon actual
receipt by the addressee, or 5 days from
the date he received the first notice of the
postmaster, whichever date is earlier
(Sec. 10, Rule 13).
Substituted service at the time of such
delivery (Sec. 8, Rule 13).
Personal service;
Registered mail; or
Publication, if party is summoned by
publication and has failed to appear in the
action (Sec. 9, Rule 13)
Note: No substituted service.
(5) PRIORITIES IN MODES OF SERVICE AND FILING

Q: What are the priorities in modes of service and
filing?
Q: What are the proofs of service?

A:
GR: Whenever practicable, the service and filing
shall be done personally.
A:
1.
XPN: With respect to papers emanating from

the court, a resort to other modes must be
accompanied by a written explanation why the
service or filing was not done personally (Sec.
11, Rule 13)
2.
Note: A violation of this rule may be cause to consider
the paper as not filed (Sec. 11, Rule 13).
(6) WHEN SERVICE IS DEEMED COMPLETE

Q: When is service deemed complete?
A:
1.
Personal service upon actual delivery.
3.
Proof of personal service:

a. Written Admission of the party
served; or
b. Official return of the server or
c. Affidavit of the party serving,
containing the date, place and
manner of service.
Proof of service by ordinary mail:
a. Affidavit
of
mailer
showing
compliance of Sec. 7, Rule 13; and
b. Registry receipt issued by the mailing
officer (Sec. 13, Rule 13)
Registered mail:
a. Affidavit; and
b. Registry receipt issued by the mailing
office.
Note: The registry return card shall be filed

immediately upon its receipt by the sender, or in lieu
38
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
thereof the unclaimed letter together with the
certified or sworn copy of the notice given by the
postmaster to the addressee. (Sec. 13, Rule 13)
Q: What is a notice of lis pendens?

A: In an action affecting the title or the right of
possession of real property, the plaintiff and the
defendant, when affirmative relief is claimed in his
answer, may record in the office of the registry of
deeds of the province in which the property is
situated a notice of the pendency of the action.
Note: Only from the time of filing such notice for
record shall a purchaser, or encumbrancer of the
property affected thereby, be deemed to have
constructive notice of the pendency of the action, and
only of its pendency against the parties designated by
their real names. (Sec.14, Rule 13)
8. AMENDMENT
Q: How are pleadings amended?
A: By:
1.
2.
Note: Plaintiff may amend his complaint even if the

same was dismissed on motion of the defendant
provided that the dismissal order is not yet final.
(Arranz vs. Manila Surety and Fidelity Co., Inc., L128441, June 30, 1960)
c. FORMAL AMENDMENT
Q: What is the rule on formal amendments?
A: A defect in the designation of the parties and
other clearly clerical or typographical errors may be
summarily corrected by the court at any stage of
the action, at its initiative or on motion, provided
no prejudice is caused thereby to the adverse party
(Sec. 4, Rule 10).
d. AMENDMENTS TO CONFORM TO OR
AUTHORIZE PRESENTATION OF EVIDENCE
Q: When may amendment be made to conform to
or authorize presentation of evidence?
A:
1.
Adding or striking out an allegation or the

name of any party; or
Correcting a mistake in the name of a
party or a mistaken or inadequate
allegation or description in any other
respect (Sec. 1, Rule 10)
Note: Failure to amend does not affect the

result of the trial of said issue.
2.
a. AMENDMENT AS A MATTER OF RIGHT

Q: When is amendment considered as a matter of
right?
A: It is considered as a matter of right at any time
before a responsive pleading is served or, in the
case of a reply, at any time within ten (10) days
after it is served (Sec. 2, Rule 10).
Note: A motion to dismiss is not a responsive pleading
and its filing does not preclude the exercise of the
plaintiffs right to amend his complaint. (Riano, p. 246,
2009 ed.
b. AMENDMENTS BY LEAVE OF COURT

Q: When is leave of court required?
A:
1.
2.
If the amendment is substantial (Sec. 3,

Rule 10); and
A responsive pleading had already been
served (Siasoco v. CA, G.R. No.
132753. Feb. 15, 1999) (1994 Bar
Question)
When issues not raised by the pleadings

are tried with the express or implied
consent of the parties.
Amendment may also be made to

authorize presentation of evidence if
evidence is objected to at the trial on the
ground that it is not within the issues
made by the pleadings, if the
presentation of the merits of the action
and the ends of substantial justice will be
subserved thereby (Sec. 5, Rule 10).
e. DIFFERENT FROM SUPPLEMENTAL PLEADINGS

Q: Distinguish an amended pleading from a
supplemental pleading.
A:
Amended Pleading
Refer to the facts existing
at the time of filing of
original pleading
Supersedes the original
May be amended without
leave of court before a
responsive pleading is
filed.
Amendment must be
appropriately marked.
Supplemental Pleading
Refers to facts occurring
after the filing of the
original pleading.
Merely supplements the
original pleading.
Always with leave of
court
There is no such
requirement
in
supplemental pleadings
(Herrera, Vol. I, p. 854,

39

2007 ed.)
f. EFFECT OF AMENDED PLEADING

Q: What is the effect of an amended pleading?
A: An amended pleading supersedes the pleading it
amends. However, admissions in the superseded
pleading can still be received in evidence against
the pleader. Claims or defenses alleged therein but
not incorporated or reiterated in the amended
pleading are deemed waived (Sec. 8, Rule 10).
F. SUMMONS
1. NATURE AND PURPOSE OF SUMMONS IN
RELATION TO ACTIONS IN PERSONAM, IN REM
AND QUASI IN REM
Q: What is the nature of summons?
A: It is the writ by which the defendant is notified of
the action brought against him (Gomez vs. Court of
Appeals, G.R. No. 127692, March 10, 2004). An
important part of that notice is a direction to the
defendant that he must answer the complaint
within a specified period, and that unless he so
answers, plaintiff will take judgment by default and
may be granted the relief applied for (Sec. 2, Rule
14). (Riano, p. 411 , 2005 ed.)
Q: What are the purposes of summons?
A:
1.
2.
Actions in personam
a. To acquire jurisdiction over the
person of the defendant; and
b. To give notice to the defendant that
an action has been commenced
against him (Umandap v. Sabio, Jr.,
G.R. No. 140244, Aug. 29, 2000)
Actions in rem and quasi in rem not to
acquire jurisdiction over the defendant
but mainly to satisfy the constitutional
requirement of due process (Gomez v. CA,
G.R. No. 127692, Mar. 10, 2004).
2. VOLUNTARY APPEARANCE
Note: Voluntary appearance cures the defect in

the service of summons.
XPN: Special appearance in court to challenge

its jurisdiction over the person of the defendant
and the inclusion in a motion to dismiss of other
grounds shall not be deemed a voluntary
appearance (Sec. 20, Rule 15; La Naval Drug
Corp. v. CA, G.R. No. 103200, Aug. 31, 1994).
3. PERSONAL SERVICE
Q: When is personal service of summons proper?
A: Only if the suit is one strictly in personam. The
service of summons must be made by service in
person on the defendant. This is effected by
handing a copy of the summons to the defendant in
person, or if he refuses to receive it, by tendering
the copy of the summons to him (Sec. 6, Rule 14).
(Riano, p. 423 , 2005 ed.)
4. SUBSTITUTED SERVICE
Q: When is substituted service of summons
proper?
A: In our jurisdiction, for substituted service of
summons to be valid, it is necessary to establish the
following:
1. The impossibility of service of summons in
person within a reasonable time;
2. The efforts exerted to locate the person to
be served; and
3. Service upon a person of sufficient age and
discretion in the same place as the
defendant or some competent person in
charge of his office or regular place of
business (Sabio, Jr., 339 SCRA 243 [2000];
Hamilton vs. Levy, G.R. No. 139283,
November 15, 2000). (Riano, p. 427 , 2005
ed.)
5. CONSTRUCTIVE SERVICE (BY PUBLICATION)
Q: Is leave of court required in constructive service
of summons?
A: This service always requires permission of the
court.
Q: What is the effect of voluntary appearance

before the court? Explain.
A:
GR: The defendants voluntary appearance shall
be equivalent to service of summons and the
consequent submission of ones person to the
jurisdiction of the court (Sec. 20, Rule 14).
40
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
a. SERVICE UPON A DEFENDANT WHERE HIS
IDENTITY IS UNKNOWN OR WHERE HIS
WHEREABOUTS ARE UNKNOWN
b. SERVICE UPON RESIDENTS TEMPORARILY
OUTSIDE THE PHILIPPINES
Q: When is constructive service of summons
proper?
A:
1.
2.
Service upon a defendant where his

identity is unknown or where his
whereabouts are unknown. When the
defendant is designated as an unknown
and cannot be ascertained by diligent
inquiry, Sec. 14, Rule 14 allows service of
summons by publication in a newspaper
of general circulation and in such places
and for such time as the court may
order. (Riano, p. 432 , 2005 ed.)
Service upon residents temporarily
outside the Philippines. When any action
is commenced against a defendant who
ordinarily resides within the Philippines,
but who is temporarily out of it, service
may, by leave of court, be also effected
out of the Philippines (Sec. 16, Rule 14).
6. EXTRA-TERRITORIAL SERVICE, WHEN ALLOWED

Q: When is extra-territorial service of summons
allowed?
by any other manner the court may deem

sufficient. (Riano, p. 439-440, 2005 ed.)
7. SERVICE UPON PRISONERS AND MINORS

Q: How is service of summons upon prisoner
made?
A: Service shall be effected upon him by the officer
having the management of such jail or institution
who is deemed deputized as a special sheriff for
said purpose. (Sec. 9, Rule 14)
Q: How is service of summons upon minors made?
A: Service shall be made upon him personally and
on his legal guardian if he has one, or if none, upon
his guardian ad litem whose appointment shall be
applied for by the plaintiff. In the case of a minor,
service may also be made on his father or mother.
(Sec. 10, Rule 14)
8. PROOF OF SERVICE
Q: How is proof of service done?
A: It shall be made in writing by the server and shall
set forth the manner, place, and date of service;
shall specify any papers which have been served
with the same; and shall be sworn to when made by
a person other than a sheriff or his deputy (Sec 18,
Rule 14).
Q: How is proof of service by publication done?
A: The defendant must be a non-resident defendant

who is at the same time not found in the Philippines
at the time summons is to be served. In addition,
the action commenced against him must be any of
the following:
1.
2.
3.
4.
An action that affects the personal status

of the plaintiff;
An action that relates to, or the subject of
which is the property within the
Philippines in which the defendant has or
claims a lien or interest, actual or
contingent;
An action in which the relief demanded
consists, wholly or in part, in excluding
the defendant from any interest therein;
An action where the property of the
defendant has been attached in the
Philippines.
A: It is done through the following:

1. Affidavit of the printer, his foreman or
principal clerk, business or advertising
manager, to which affidavit a copy of the
publication shall be attached; and
2. Affidavit showing the deposit of a copy of
the summons and order for publication in
the post office (Sec. 19, Rule 14).
G. MOTIONS
1. MOTIONS IN GENERAL
a. DEFINITION OF A MOTION
Q: What is a motion?
A: It is an application for relief other than by a
pleading. (Sec. 1, Rule 15)
Note: In any of the above instances,

extraterritorial service is permissible with
leave of court and may be effected by
personal service, summons by publication or
41

b. MOTIONS VERSUS PLEADINGS
Q: What is the rule on hearing of motions?
Q: Distinguish a motion from a pleading.
A:
GR: Every written motion shall be set for
hearing by the applicant.
XPN: Motions which the court may act upon
without prejudicing the rights of the adverse
party (Sec. 4, Rule 15).
A: A pleading is a written statement of the

respective claims and defenses of the parties
submitted to the court for appropriate
judgment (Sec. 1, Rule 6). It may be in the form of a
complaint, counterclaim, cross-claim, third-party
complaint, or complaint-in-intervention, answer or
reply (Sec. 2, Rule 6).
A motion on the other hand is an application for
relief other than a pleading(Sec. 1, Rule 15).
e. OMNIBUS MOTION RULE

Q: What is the Omnibus Motion Rule?
A:
c. CONTENTS AND FORMS OF MOTIONS

Q: Should a motion be in writing?
A:
GR: All available grounds for objection in

attacking a pleading, order, judgment, or
proceeding should be invoked at one time;
otherwise, they shall be deemed waived (Sec. 8,
Rule 15).
GR: Yes.
XPN: Those made in open court or in the course
of hearing or trial (Sec. 2, Rule 15).
Q: What are the contents of a motion?
A: The contents of a motion are:
1. the relief sought to be obtained;
2. the ground upon which it is based; and
3. if required by the Rules or necessary to
prove facts alleged therein, shall be
accompanied by supporting affidavits and
other papers. (Sec. 3, Rule 15)
Q: May a motion pray for judgment?
A:
GR: No.
XPN: Motion for:
1. judgment on the pleadings;
2. summary judgment; or
3. Judgment on demurrer to evidence.
d. NOTICE OF HEARING AND HEARING OF
MOTIONS
XPN: The court may dismiss the case motu

proprio based on:
1. Lack of jurisdiction over the subject
matter;
2. Litis pendentia;
3. Res judicata; and
4. Barred by statute of limitations (Sec. 1,
Rule 9)
f. LITIGATED AND EX-PARTE MOTIONS
Q: What is a litigated motion?
A: It is a motion which affects the substantial rights
of the parties. A hearing is required.
Q: What is an ex-parte motion?
A: It is taken or granted at the instance and for the
benefit of one party, and without notice to or
contestation by any party adversely affected
(Regalado, Remedial Law Compendium, p. 264,
2009 ed.)
g. PRO-FORMA MOTIONS
Q: What shall the notice of hearing specify?
Q: What is a pro-forma motion?
A: It shall specify the time and date of the hearing

which shall not be later than ten (10) days after the
filing of the motion and it shall be addressed to the
parties concerned (Sec. 5, Rule 15).
A: It is that which does not comply with the rules on

motion and is considered as one filed merely to
delay the proceedings (Marikina Development
Corp., v. Flojo, G.R. No. 110801, Dec. 8, 1995).
Note: Failure to comply with the mandatory

requirements of the rule regarding notice of hearing is
pro forma and presents no question which merits the
attention of the court (Bacelonia v. CA, G.R. No.
143440, Feb. 11, 2003).
42
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
2. MOTIONS FOR BILL OF PARTICULARS
2.
a. PURPOSE AND WHEN APPLIED FOR
3.
Q: What is a bill of particulars and when can it be

availed of?
A: Before responding to a pleading, a party may
move for a definite statement or for a bill of
particulars of any matter which is not averred with
sufficient definiteness or particularity to enable him
properly to prepare his responsive pleading. If the
pleading is a reply, the motion must be filed within
10 days from service thereof (Sec. 1, Rule12). (2003
Bar Question)
Note: Its purpose is to aid in the preparation of a
responsive pleading. An action cannot be dismissed on
the ground that the complaint is vague or definite.
(Galeon v. Galeon, G.R. No. L-30380, Feb. 28, 1973).
b. ACTIONS OF THE COURT

Q: What are the actions taken by the court
regarding the motion for bill of particulars?
A: The court may either:
1. Deny it;
2. Grant it outright; or
3. Allow the parties the opportunity to be heard
(Sec. 2, Rule 12).
c. COMPLIANCE WITH THE ORDER AND EFFECT OF
NON-COMPLIANCE
Q: When must be the compliance be effected?
A: If the motion is granted, either in whole or in
part, it must be effected within ten (10) days from
notice of the order, unless a different period is fixed
by the court (Sec. 3, Rule 12).
Note: Bill of particulars may be filed either on a
separate or in an amended pleading, serving a copy
thereof on the adverse party.

order of a bill of particulars?
Note: If the plaintiff failed to comply with the period,

the court upon motion of the defendant may strike out
the paragraph where ambiguity lies. If the entire
complaint is ambiguous, such is striken out and there
is no more case.
d. EFFECT ON THE PERIOD TO FILE A RESPONSIVE

PLEADING
Q: What is the effect of a motion for bill of
particulars on the period to file a responsive
pleading?
A: After service of the bill of particulars or of a more
definite pleading, or after notice of denial of his
motion, the moving party may file his responsive
pleading within the period to which he was entitled
at the time of filing his motion, which shall not be
less than five (5) days in any event (Sec. 5, Rule12).
Q: Within the period for filing a responsive
pleading, the defendant filed a motion for bill of
particulars that he set for hearing on a certain
date. However, the defendant was surprised to
find on the date set for hearing that the trial court
had already denied the motion on the day of its
filing, stating that the allegations of the complaint
were sufficiently made.
1. Did the judge gravely abuse his
discretion in acting on the motion
without waiting for the hearing set for
the motion?
2. If the judge grants the motion and orders
the plaintiff to file and serve the bill of
particulars, can the trial judge dismiss
the case if the plaintiff does not comply
with the order?
A:
1.
A:
1.
If the order is not obeyed or in case of

insufficient compliance therewith, the
court:
a. May order the striking out of the
pleading or the portion thereof to
which the order is directed; or
b. Make such order as it may deem just
(Sec. 4, Rule 12)
If plaintiff, his compliant will be stricken

off and dismissed (Sec. 3, Rule 17)
If defendant, his answer will be stricken
off and his counterclaim dismissed, and
he will be declared in default upon
motion of the plaintiff (Sec. 4, Rule 17;
Sec. 3, Rule 9).
2.
No. Sec. 2, Rule 12 authorizes the court to

either deny or grant said motion outright
or allow the parties an opportunity to be
heard. The court is not mandated to
conduct a hearing.
Yes. Sec. 4, Rule 12 authorizes the court
to order the striking out of the pleading
affected, hence the dismissal of the
complaint. To the same end is the
provision of Sec. 3, Rule 17 when the
plaintiff fails to comply for no justifiable

43

cause with any order of the court or with
the Rules. (2008 Bar Question)
8.
That the claim or demand set forth in the

plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;
9.
That the claim on which the action is

founded is unenforceable under the
provisions of the statute of frauds;
3. MOTION TO DISMISS
a. GROUNDS
Q: What are the grounds for a motion to dismiss
under Rule 16?
10. That a condition precedent for filing the

claim has not been complied with.(Sec. 1,
Rule 16)
A:
1.
That the court has no jurisdiction over the

person of the defending party;
2.

subject matter of the claim;
3.
That venue is improperly laid;
4.
That the plaintiff has no legal capacity to

sue;
Note: The issue of the plaintiffs lack of legal
capacity to sue cannot be raised for the first
time on appeal where the defendant dealt
with the former as a party in the
proceeding.
5.
That there is another action pending

between the same parties for the same
cause;
Note: Litis pendentia requires concurrence
of the following requisites:
a. Identity of the parties
b. Identity of rights asserted and reliefs
prayed for, being founded on the same
facts
c. Identity with respect to the two
preceding particulars, such that any
judgment that may be rendered in the
pending case would amount to red
adjudicate in the other case. (Lim vs.
Vianzon, G.R. No. 137187, Aug.3, 2006)
6.
That the cause of action is barred by a

prior judgment or by the statute of
limitations;
Note: The requisites of res judicata include:
The former judgment must be final
a. The court which rendered it has
jurisdiction over the subject matter
and the parties
b. Judgment must be on the merits
c. There must be identity of parties,
subject matter and causes of action
7.
That the pleading asserting the claim

states no cause of action;
Note: Curable by amendment
44
Note: Not jurisdictional in nature, hence,

deemed waived if not raised.
b. RESOLUTION OF MOTION
Q: What are the three courses of action which the
trial court may take in resolving a motion to
dismiss?
A:
1.
2.
3.
Dismiss the action or claims;

Deny the motion; or
Order the amendment of the pleading
(Sec. 3, Rule 16).
Note: The court shall not defer the resolution of the

motion for the reason that the ground relied upon is
not indubitable. In every case, the resolution shall
state clearly and distinctly the reasons therefor (Sec. 3,
Rule16).
c. REMEDIES OF PLAINTIFF WHEN THE COMPLAINT

IS DISMISSED
Q: What are the remedies of the plaintiff when the
complaint is dismissed?
A: If the dismissal is without prejudice, the plaintiff
may re-file the complaint. If the dismissal is with
prejudice, the plaintiff may file an appeal. (Riano,
Civil Procedure: A Restatement for the Bar, p. 319-320,
2009 ed.)
d. REMEDIES OF THE DEFENDANT WHEN THE

MOTION IS DENIED
Q: What are the remedies of the defendant when
the motion is denied?
A: File an answer and proceed with the trial. If
decision is adverse, appeal therefrom and raise as
error the denial of the motion to dismiss. If there is
grave abuse of discretion amounting to lack or
excess of jurisdiction, certiorari or prohibition may
lie under Rule 65. If there is unlawful neglect of the
performance of an act which the law specifically
enjoins, mandamus is the proper remedy. (Riano,
Civil Procedure: A Restatement for the Bar, p. 319,
2009 ed.)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
e. EFFECT OF DISMISSAL OF COMPLAINT ON
CERTAIN GROUNDS
Q: What is the effect of dismissal on the following
grounds:
1. Cause of action is barred by prior judgment or
by the statute of limitations;
2. Claim or demand has been paid, waived,
abandoned, or otherwise extinguished; and
3. Claim is unenforceable under the statute of
frauds?
A: Dismissal is with prejudice and constitutes res
judicata. The language of the rule, particularly on
the relation of the words abandoned and
otherwise extinguished to the phrase claim or
demand deemed set forth in the plaintiffs
pleading is broad enough to include within its
ambit the defense of bar by laches. However, the
trial court must set a hearing on the motion where
the parties shall submit not only their arguments on
the questions of law but also their evidence on the
questions of fact involved (Pineda v. Heirs of Eliseo
Guevarra, G.R. No. 168557, Feb. 19, 2007).
f. WHEN THE GROUNDS PLEADED AS AFFIRMATIVE
DEFENSES
Q: When can the grounds for motion to dismiss be
pleaded as affirmative defense?
A: If no motion to dismiss has been filed, any of the
grounds for dismissal provided for in the Rules may
be pleaded as an affirmative defense in the answer
and, in the discretion of the court, a preliminary
hearing may be had thereon as if a motion to
dismiss had been filed.
The dismissal of the complaint shall be without
prejudice to the prosecution in the same or
separate action of a counterclaim pleaded in the
answer. (Sec. 6, Rule 16)
g. BAR BY DISMISSAL
Q: What are the grounds for dismissal that may
bar the refiling of the same action or claim?
A:
1.
2.
3.
4.
Res judicata;
Prescription;
Extinguishment of the claim or demand;
and
Unenforceability under the State of
Frauds. (Sec. 5, Rule 16)
h. DISTINGUISH FROM DEMURRER TO EVIDENCE

UNDER RULE 33
Q: Distinguish motion to dismiss under Rule 16
from motion to dismiss under Rule 33.
A:
Rule 16 (Motion to
Dismiss)
Grounded
on
preliminary objections
May be filed by any
defending
party
against whom a claim
is asserted in the
action
Should be filed within
the time for but prior
to the filing of the
answer
If denied, defendant
answers, or else he
may be declared in
default.
If granted, plaintiff
may appeal or if
subsequent case is not
barred, he may re-file
the case
Rule 33 (Demurrer to
Evidence)
Based on insufficiency of
evidence
May be filed only by the
defendant
against
the
complaint of the plaintiff
May be filed only after the

plaintiff has completed the
presentation of his evidence
(Regalado, Remedial Law,
Compendium Vol. I, p. 267,
2005 ed.)
If denied, defendant may
present
evidence.
If granted, but on appeal
the order of dismissal is
reversed, the defendant
loses his right to present
evidence
(Riano,
Civil

45

H. DISMISSAL OF ACTIONS
1. DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-DISMISSAL RULE
2. DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON EXISTING COUNTERCLAIM
3. DISMISSAL DUE TO THE FAULT OF PLAINTIFF
Q: Distinguish the different types of dismissal under Rule 17.
A:
Dismissal upon notice by plaintiff (Sec. 1,
Rule 17)
A complaint may be dismissed by the
plaintiff by filing a notice of dismissal at
any time before service of the answer or
of a motion for summary judgment.
Upon such notice being filed, the court
shall issue an order confirming the
dismissal. Unless otherwise stated in the
notice, the dismissal is without prejudice,
except that a notice operates as
adjudication upon the merits when filed
by a plaintiff who has once dismissed in a
competent court an action based on or
including the same claim.
It is a matter of right.
GR: A dismissal without prejudice i.e. the
complaint can be re-filed
XPNs:
1. The notice of dismissal by the
plaintiff provides that the dismissal is
with prejudice; or
2. The plaintiff has once dismissed in a
competent court an action based on
or including the same claim (Twodismissal rule) (Sec. 1, Rule 17)
3. Even where the notice of dismissal
does not provide that it is with
prejudice but it is premised on the
fact of payment by the defendant of
the claim involved (Serrano v.
Cabrera, G.R. No. L-5189, Sept. 21,
1953)
Since there is no answer yet filed by the
adverse party, no counterclaim
recoverable
Dismissal upon motion of plaintiff

(Sec. 2, Rule 17)
After service of the answer or a motion
for summary judgment by the adverse
party.
Dismissal due to fault of

plaintiff (Sec. 3, Rule 17)
1. If, for no justifiable cause,
the plaintiff fails to appear
on the date of the presentation of his evidence in
chief on the complaint.
2. If the plaintiff fails to
prosecute his action for an
unreason-nable length of
time (nolle prosequi).
3. If the plaintiff fails to
comply with the Rules or
any order of the court.
Matter of discretion upon the court. A

complaint shall not be dismissed at the
plaintiff's instance save upon approval
of the court and upon such terms and
conditions as the court deems proper
(Sec. 2, Rule 17).
Matter of evidence.
GR: It is a dismissal without prejudice,
GR: Dismissal is with prejudice

because it has an effect of an
adjudication on the merits.
XPN: Unless otherwise declared
by the court (Sec. 3, Rule 17)
XPN: If the order of dismissal specifies

that it is with prejudice (Sec. 2, Rule 17)
Note: A class suit shall not be dismissed
or compromised without the approval of
the court.
If a counterclaim has been pleaded by a
defendant prior to the service upon him
of the plaintiff's motion for dismissal, the
dismissal shall be limited to the
complaint.
GR: It is also without prejudice to the

right of defendant to prosecute his
counterclaim in a separate action.
XPN: Unless within 15 days from notice
of the motion he manifests his
preference to have his counterclaim
resolved in the same action (Sec. 2,
Rule 17).
Dismissal upon motion of the

defendant or upon the court's
own motion is without
prejudice to the right of the
defendant to prosecute his
counterclaim on the same or
separate action
Note: The plaintiffs failure to appear at the trial after he has presented his evidence and rested his case does not
warrant the dismissal of the case on the ground of failure to prosecute. It is merely a waiver of his right to cross-examine
and to object to the admissibility of evidence (Jalover v. Ytoriaga, G.R. No. L-35989, Oct. 28, 1977). The provision of this
rule shall also apply to the dismissal of any counterclaim, cross-claim, or third-party complaint (Sec. 4, Rule17).
46
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: When does the two-dismissal rule apply?
A: It applies when the plaintiff has:
1. Twice dismissed the actions;
2. Based on or including the same claim; and
3. In a court of competent jurisdiction
the Bar, p. 265, 2009 ed.)
Note: The second notice of dismissal will bar the refiling of the action because it will operate as an
adjudication of the claim upon the merits. In other
words, the claim may only be filed twice, the first
being the claim embodied in the original complaint.
(Riano, Civil Procedure: A Restatement for the Bar, p.
265, 2009 ed.)
4. DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM

OR THIRD-PARTY COMPLAINT
Q: What is the effect of dismissal upon a
counterclaim, which was already pleaded?
A:
1.
2.
3.
If a counterclaim has already been

pleaded by the defendant prior to the
service upon him of the plaintiffs motion
to dismiss, and the court grants the said
motion to dismiss, the dismissal shall be
limited to the complaint.
The defendant if he so desires may
prosecute his counterclaim either in a
separate action or in the same action.
Should he choose to have his
counterclaim resolved in the same action,
he must notify the court of his preference
within fifteen (15) days from notice of the
plaintiffs motion to dismiss.
The dismissal of the complaint does not
carry with it the dismissal of the
counterclaim. (Riano, Civil Procedure: A
Restatement for the Bar, pp. 266-267,
2009 ed.)
Q: What rule governs the dismissal of

counterclaim,
cross-claim,
or
third-party
complaint?
A: The rule on the dismissal of a complaint applies
to the dismissal of any counterclaim, cross-claim, or
third-party claim. A voluntary dismissal by the
claimant alone by notice pursuant to Sec. 1, Rule 17
shall be made before a responsive pleading or a
motion for summary judgment is served or, if there
is none, before the introduction of evidence at the
trial or hearing (Sec. 4, Rule 17).
I. PRE-TRIAL
1. CONCEPT OF PRE-TRIAL
Q: What is pre-trial?
A: It is a procedural device by which the court is
called upon, after the filing of the last pleading, to
compel the parties and their lawyers to appear
before it, and negotiate an amicable settlement or
otherwise make a formal statement and embody in
a single document the issues of fact and law
involved in the action, and such other matters as
may aid in the prompt disposition of the action
(Herrera, Vol. I, p. 1074, 2007 ed.).
Q: When is pre-trial conducted?
A: After the last pleading has been served and filed,
it shall be the duty of the plaintiff to promptly move
ex parte that the case be set for pre-trial. (Sec.1,
Rule 18)
2. NATURE AND PURPOSE
Q: What is the nature of pre-trial?
A: It is mandatory (Sec. 2, Rule 18).
Q: What are the purposes of pre-trial?
A: The court shall consider the following purposes:
1. Possibility of an amicable settlement or of
a submission to alternative modes of
dispute resolution;
2. Simplification of the issues;
3. Necessity or desirability of amendments
to the pleadings;
4. Possibility of obtaining stipulations or
admissions of facts and of documents to
avoid unnecessary proof;
5. Limitation of the number of witnesses;
6. Advisability of a preliminary reference of
issues to a commissioner;
7. Propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid
ground therefore be found to exist;
8. Advisability or necessity of suspending
the proceedings; and
9. Such other matters as may aid in the
prompt disposition of the action. (Sec. 2,
Rule 18)

47

3. NOTICE OF PRE-TRIAL
5.
Q: To whom shall notice of pre-trial be served?

A: It shall be served on counsel, or on the party who
has no counsel. The counsel served with such notice
is charged with the duty of notifying the party
represented by him (Sec. 3, Rule 18).
6.
4. APPEARANCE OF PARTIES; EFFECT OF FAILURE

TO APPEAR
Q: Who has the duty to appear at the pre-trial?
A: The parties and their counsel.
Q: What is the effect of a partys failure to appear
during the pre-trial?
A: Plaintiffs failure to appear during the pre-trial
shall be a cause for dismissal of the action, with
prejudice, unless otherwise ordered by the
court. Defendants non-attendance during the pretrial shall be a cause to allow the plaintiff to present
evidence ex parte and the court to render judgment
on the basis thereof (Sec. 5, Rule 18). (1992 Bar
Question)
Note: The non-appearance of a party may be excused
only if a valid cause is shown therefore or if a
representative shall appear in his behalf fully
authorized in writing to enter into an amicable
settlement, to submit to alternative modes of dispute
resolution, and to enter into stipulations or admissions
of facts and of documents. (Sec.4, Rule 18)
A manifestation of their having availed or

their intention to avail themselves of
discovery procedures or referral to
commissioners; and
The number and names of the witnesses,
and the substance of their respective
testimonies and the approximate number
of hours that will be required by the
parties for the presentation of their
respective witnesses (Sec. 6, Rule 18).
Q: What is the effect of failure to file a pre-trial

brief?
A: It shall have the same effect as failure to appear
at the pre-trial (A.M. No. 03-1-09-SC, July 13, 2004).
6. DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE
AND PRE-TRIAL IN CRIMINAL CASE
Q: Distinguish pre-trial in civil cases from pre-trial
in criminal cases.
A:
Pre-trial in civil case
It is set when the plaintiff
moves ex parte to set the
case for pre-trial (Sec. 1,
Rule 18)
The motion to set the

case for pre-trial is made
after the last pleading
has been served and filed
(Sec. 1, Rule 18)
5. PRE-TRIAL BRIEF, EFFECT OF FAILURE TO FILE

Q: When should the parties file with the court and
serve on the adverse party their pre-trial briefs?
A: They shall file their respective pre-trial briefs in
such a manner as shall ensure their receipt thereof
at least three (3) days before the date of the pretrial (Sec. 6, Rule 18).
Q: What should a pre-trial brief contain?
A:
1.
2.
3.
4.
48
A statement of their willingness to enter

into amicable settlement or alternative
modes of dispute resolution, indicating
the desired terms thereof;
A summary of admitted facts and
proposed stipulation of facts;
The issues to be tried or resolved;
The documents or exhibits to be
presented, stating the purpose thereof;
It considers the
possibility of an amicable
settlement as an
important objective.
Requires the proceeding

during the preliminary
conference to be
recorded in the minutes
of preliminary
conference to be signed
by both parties and/or
counsel. The rule allows
either the party or his
counsel to sign the
minutes (A.M. No. 03-109-SC).
Sanctions for nonappearance in a pre-trial
are imposed upon the
plaintiff and the
Pre-trial in criminal case

It is ordered by the court
and no motion to set the
case for pre-trial is
required from either the
prosecution or the
defense
The pre-trial is ordered by
the court after
arraignment and within
thirty (30) days from the
date the court acquires
person of the accused.
It does not include the
possibility of amicable
settlement of criminal
liability as one of its
purposes (Sec. 1, Rule
118).
All agreements or
admissions made or
entered during the pretrial conference shall be
reduced in writing and
signed by both the
accused and counsel,
otherwise, they cannot be
used against the accused
(Sec. 2, Rule 18)
The sanctions in a
criminal case are imposed
upon the counsel for the
accused or the prosecutor
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
defendant in a civil case
(Sec. 4, Rule 18).
(Sec. 3, Rule 18)
Specifically required to
be submitted in a civil
case (Sec. 6, Rule 18)
Not specifically required

in a criminal case.
7. ALTERNATIVE DISPUTE RESOLUTION (ADR)

Q: What are the other modes of solving disputes?
A:
1.
Alternative Dispute Resolution (ADR)

a. Arbitration
i. Domestic Arbitration
ii.
iii.
2.
3.
4.
5.
6.
7.
Construction Disputes
International
Commercial
Arbitration
b. Mediation
c. Conciliation
d. Early Neutral Evaluation
e. Mini-trial
Court-Annexed Mediation
Appellate Court Mediation
Judicial Dispute Resolution
Katarungang Pambarangay Law
Small Claims Cases
Rules on Summary Procedure
Q: Distinguish the other modes of solving disputes.

A:
ADR
1.
2.
To actively promote party

autonomy in the resolution
of disputes or the freedom
of the parties to make their
own arrangements to
resolve their disputes.
To achieve speedy and
impartial justice and unclog
court dockets.
Subject to the terms of the

contract or the submission
agreement,
the
arbitrators
selected must, within 5 days
from notice of appointment, if
the parties to the controversy
reside within the same city or
province, or within 15 days after
appointment if the parties reside
in different provinces, set a time
and place for the hearing of the
matters submitted to them. (Sec.
12, R.A. 876)
Court-Annexed Mediation/Judicial Dispute

Resolution (A.M. No, 11-1-6-SC-PHILJA)
Purpose / Object
The purposes of CAM and JDR is to put an
end to pending litigation through
compromise agreement of the parties and
thereby help solve the ever-pressing
problem of court docket congestion. It is
also intended to empower the parties to
resolve their own disputes and give
practical effect to the State Policy expressly
stated in the ADR Act of 2004 (R.A. No.
9285)
Where to File
Court acquiring jurisdiction of the case
since mediation is part of the mandatory
pre-trial
Appellate Court Mediation
1.
2.
After mediation has failed in

the lower courts, Appellate
Court Mediation provides an
added option to put an end to
costly and long-drawn
litigation.
It facilitates the interest-based
settlement of the dispute
through proposals coming from
the parties or suggested by the
mediator and accepted by the
parties.
Court of Appeals
Note: Court-annexed mediation should be

distinguished from court-referred mediation.
The former is conducted under the courts
auspices after such court has acquired
jurisdiction of the dispute while the latter is
mediation ordered by the court to be
conducted in accordance with the parties
agreement when an action is prematurely
commenced in violation of such agreement.
The first stage is the CAM where the judge
refers the parties to the Philippine Mediation
Center (PMC) for the mediation of their
dispute by trained and accredited mediators.
Upon failing to secure a settlement of the
dispute during the first stage, a second
attempt is made at the JDR stage, where the
JDR judge becomes a mediator-conciliatorearly neutral evaluator in a continuing effort
to secure a settlement

49
Any dispute or controversy

which may thereafter arise
between parties to a contract
pursuant to an arbitration clause
or any controversy or dispute
wherein the parties agree to
submit to an alternative dispute
resolution system
1.
2.
3.
4.
5.
6.
7.
8.
9.
50
Labor disputes under the

Labor Code
Civil status of persons
Validity of a marriage
Any ground for legal
separation
Jurisdiction of courts
Future legitime
Criminal liability
Those which by law
cannot be compromised
Dispute resolution
services provided by
Cases Covered
1. All civil cases and the civil liability of
criminal cases covered by the Rule on
Summary Procedure, including the civil
liability for violation of B.P. 22, except
those which by law may not be
compromised;
2. Special
proceedings
for
the
settlement of estates;
3. All civil and criminal cases filed with a
certificate to file action issued by
the Punong Barangay or the Pangkat ng
Tagapagkasundo under
the
Revised Katarungang Pambarangay Law
4. The civil aspect of Quasi-Offenses
under Title 14 of the Revised Penal Code;
5. The civil aspect of less grave felonies
punishable by correctional penalties not
exceeding 6 years imprisonment, where
the offended party is a private person;
6. The civil aspect of estafa, theft and
libel;
7. All civil cases and probate
proceedings, testate and intestate,
brought on appeal from the exclusive and
original jurisdiction granted to the first
level courts under Section 33, par. (1) of
the Judiciary Reorganization Act of 1980;
8. All cases of forcible entry and
unlawful detainer brought on appeal
from the exclusive and original
jurisdiction granted to the first level
courts under Section 33, par. (2) of the
Judiciary Reorganization Act of 1980;
9. All civil cases involving title to or
possession of real property or an interest
therein brought on appeal from the
exclusive and original jurisdiction granted
to the first level courts under Section 33,
par.(3) of the Judiciary Reorganization Act
of 1980; 13 and
10. All habeas corpus cases decided by
the first level courts in the absence of the
Regional Trial Court judge, that are
brought up on appeal from the special
jurisdiction granted to the first level
courts under Section 35 of the Judiciary
Reorganization Act of 1980.
Cases Excluded
1. Civil cases which by law cannot be
compromised (Article 2035, New Civil
Code);
1.
2.
3.
4.
Civil cases brought on ordinary

appeal or petition for review.
Appeals from final orders,
awards, judgments, resolutions
of the Court of Tax Appeals and
quasi-judicial agencies in the
exercise of their quasi-judicial
functions through petition for
review or certiorari that
questions a decision for having
been rendered in grave abuse
of discretion amounting to lack
of jurisdiction.
Special civil actions for
certiorari,
except
those
involving pure questions of
law.
Habeas corpus (court order
directing law enforcement
officials or custodians of
detained persons to produce
that person in court) cases
involving custody of minors,
with the consent of the parties,
provided that the minor is not
detained for commission of a
criminal offense.
Criminal cases cognizable by
the Katarungang Pambarangay
(Barangay Justice System)
under R.A. 7160 or offenses
punishable by imprisonment
not exceeding one year or a
fine not exceeding P5,000 or
both
such
fine
and
imprisonment.
1.
Civil cases, which by law cannot

be compromised.
2.
Criminal cases except those

which involve habeas corpus of
minors not detained for a
criminal offense.
3.
Habeas corpus petitions

involving custody of minors
when the subject is detained
for commission of a criminal
offense.
2. Other criminal cases not covered under

paragraphs 3 to 6 above;
3. Habeas Corpus petitions;
4. All cases under Republic Act No. 9262
(Violence against Women and Children);
and
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
government agencies
where mediators or
arbitrators are selected by
government agencies:
a. Mining Act;
b. Consumer Act; or
c. HLURB Resolution
No. R-586
5. Cases with pending application for

Restraining Orders/Preliminary Injunctions.
4.
Cases with pending application

for restraining
orders/preliminary injunctions,
unless both parties request for
mediation
Note: The table for Katarungang Pambarangay Law, Small Claims Cases and Rules on Summary Procedure are found on
p.17
Q: Distinguish the different kinds of the ADR system.

A:
Arbitration
Mediation
Conciliation
It is a voluntary
dispute
resolution
process in which one
or more arbitrators,
appointed
in
accordance with the
agreement of the
parties, or rules
promulgated
pursuant to R.A.
9285,
resolve
a
dispute by rendering
an award. It results
in the adjudication of
a dispute.
It is a voluntary
process in which an
impartial and neutral
third
party
(mediator), selected
by the disputing
parties,
facilitates
communication and
negotiation,
and
assists the parties in
reaching a voluntary
agreement regarding
a dispute.
Definition
A process whereby
the parties request a
third
person
or
persons to assist
them in their attempt
to reach an amicable
settlement of their
dispute arising out of
or relating to a
contractual or other
legal relationship (Art.
1 [3],
UNCITRAL
Model
Law
on
Conciliation)
Arbitrator acts as
out-of-court judge
and
settles
the
dispute
extrajudicially.
Mediator does not

render an award but
only arranges the
facts
to
be
negotiated so that
parties can come to
a
compromise
agreement.
He assists the parties
in
reaching
a
mutually agreeable
settlement of their
dispute
through
direct negotiations.
He
actively
participates
in
resolving
the
dispute, and then
gives an opinion.
He
makes
a
determination of the
facts and applies the
law to those facts to
resolve a dispute
independently of the
actual result desired
by the parties.
The award may be

final and binding if so
agreed
by
the
parties.
To
be
executory, it must
first be confirmed by
The decision or
opinion
is
not
binding
on
the
parties.
It
is
recommendatory in
nature. The mediator
Functions
A
conciliator
participates only in
the preliminary steps
of
facilitating
discussion between
the parties and helps
them
frame
the
issues for discussion.
Effect of decision
He does not render a
decision. The dispute
is left to be settled by
the
parties
themselves.
Early Neutral
Evaluation
Mini-Trial
It is a process
wherein parties and
their lawyers are
brought together
early in a pre-trial
phase to present
summaries of their
cases and receive a
non-binding
assessment by an
experienced,
neutral
person,
with expertise in
the subject or the
substance of the
dispute.
It is a structured
dispute
resolution
method in which the
merits of a case are
argued before a
panel comprising of
senior
decision
makers
with
or
without the presence
of a neutral third
person after which
the parties seek a
negotiated
settlement.
Early
neutral
Evaluator assesses
or reviews the
issues submitted by
the parties and
tenders
its
evaluation which is
non-binding.
Panel renders a
decision based on
the merits of the
arguments of the
parties.
The assessment is
not binding upon
the parties.
It need not be
confirmed by the
courts.

51

the RTC.
merely suggests a
solution
to
the
dispute.
Q: What is the State policy in alternative dispute

resolution?
A: The state policy in ADR is to actively promote
party autonomy in the resolution of disputes or the
freedom of the parties to make their own
arrangements in resolving their disputes.
functions in any ADR system. An ADR practitioner

refers to individuals acting as mediator, conciliator,
arbitrator or neutral evaluator. (Sec.3[b] of R.A. No.
9285)
J. INTERVENTION
Q: What is intervention?
Q: What is the Constitutional basis of alternative

dispute resolution?
A: The State shall promote the principle of shared
responsibility between workers and employers and
the preferential use of voluntary modes in settling
disputes, including conciliation, and shall enforce
their mutual compliance therewith to foster
industrial peace. (Par. 2, Sec. 3, Art. XIII, 1987
Constitution)
Q: What is the legal basis of alternative dispute
resolution?
A: The legal basis would be, the contracting parties
may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided
they are not contrary to law, morals, good customs,
public order, or public policy. (Art. 1306, NCC)
Q: What is an alternative dispute resolution
system?
A: It means any process or procedure used to
resolve a dispute or controversy, other than by
adjudication of a presiding judge of a court or an
officer of a government agency in which a neutral
third party participates to assist in the resolution of
issues, which includes arbitration, mediation,
conciliation, early neutral evaluation, mini-trial, or
any combination thereof. (Sec.3[a] of R.A. No. 9285)
A: It is a legal proceeding by which a third person is

permitted by the court to become a party by
intervening in a pending action after meeting the
conditions and requirement set by the Rules of
Court. This person who intervenes is one who is not
originally impleaded in the action (First Philippine
Holdings Corp. v. Sandiganbayan, G.R. No. 88345,
Feb. 1, 1996)
Note: Right to intervene is not an absolute right as it
can be secured only in accordance with the terms of
the applicable statute or rule. Riano, Civil Procedure: A
1. REQUISITES FOR INTERVENTION

Q: What are the requisites for intervention?
A:
1.
Note: A motion is necessary because leave

of court is required before a person may be
allowed to intervene.
2.
Note: Its purposes are to:

1. Actively promote party autonomy in the
resolution of disputes or the freedom of the
parties to make their own arrangements to
resolve their disputes;
2. Achieve speedy and impartial justice; and
3. Unclog court dockets.
3.
Q: Distinguish alternative dispute resolution
provider from an alternative dispute resolution
practitioner.
A: An ADR provider means institutions or persons
accredited as mediator, conciliator, arbitrator,
neutral evaluator, or any person exercising similar
52
There must be a motion for intervention

filed before rendition of judgment by the
trial court (Sec. 1, Rule 19);
4.
The movant must show in his motion that

he has:
a. Legal interest in the matter in
controversy;
b. Legal interest in the success of either
of the parties;
c. Legal interest against both parties; or
d. So situated as to be adversely
affected by a distribution or other
disposition of the property in the
custody of the court or of an officer
thereof (Sec. 1, Rule 19);
Intervention will not unduly delay or
prejudice the adjudication of the rights of
original parties; and
Intervenors rights may not be fully
protected in a separate proceeding
(Mabayo Farms, Inc. vs. CA, GR 140058,
Aug. 1, 2002).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: Is intervention an independent proceeding?
Q: May intervention be allowed after judgment

has been rendered by the court?
A:
GR: No. It is not an independent proceeding
but is ancillary and supplemental to an existing
litigation. Hence, the final dismissal of the
principal action results into the dismissal of said
ancillary action.
A:
GR: After rendition of judgment, a motion to
intervene is barred, even if the judgment itself
recognizes the right of the movant. The motion
to intervene must be filed at any time before
rendition of judgment by the trial court (Sec. 2,
Rule 19).
XPN: When intervention has been allowed and

the complaint-in-intervention has already been
filed before plaintiffs action had been expressly
dismissed (Metrobank v. RTC-Manila, G.R. No.
89909, Sept. 21, 1990). (2000 Bar Question)
XPNs:
1. With respect to indispensable parties,
intervention may be allowed even on
appeal (Falcasantos v. Falcasantos, G.R.
No. L-4627, May 13, 1952);
2. When the intervenor is the Republic (Lim
v. Pacquing, G.R. No. 115044, Jan. 27,
1995);
3. Where necessary to protect some interest
which cannot otherwise be protected,
and for the purpose of preserving the
intervenors right to appeal (Pinlac v. CA,
G.R. No. 91486, Sept. 10, 2003); or
4. May be allowed during the pendency of
the appeal, where the interest of justice
so required (Tahanan Dev. Corp. v. CA,
G.R. No. L-55771, Nov. 15, 1982).
Q: What does legal interest mean?

A: It must be one that is actual and material, direct
and of an immediate character, not merely
contingent or expectant so that the intervenor will
either gain or lose by the direct legal operation of
the judgment. (Riano, Civil Procedure: A
2. TIME TO INTERVENE
Q: When is the time to intervene?
A: The motion to intervene may be filed any time
before rendition of judgment by the trial court. A
copy of the pleading-in-intervention shall be
attached to the motion and served on the original
parties. (Sec. 2, Rule 19)
Q: When shall the intervenor file a pleading-inintervention?

A:
1.
Q: What is the procedure for intervention?

A:
2.
1. The intervenor shall file a motion for
intervention attaching thereto his pleading-inintervention.
1. If the purpose is to assert a claim
against either or all of the original
parties the pleading shall be called
a complaint-in-intervention.
2. If the pleading seek to unite with the
defending party in resisting a claim
against the latter file an answer-inintervention. (Sec 3, Rule 19)
2. The motion and the pleading shall be
served upon the original parties.
3. The answer to the complaint-inintervention shall be filed within fifteen
(15) days from notice of the order
admitting the same, unless a different
period is fixed by the courts. (Sec.4, Rule
19)
He shall file a complaint-in-intervention if

he asserts a claim against either or all of
the original parties; or
An answer-in-intervention if he unites
with the defending party in resisting a
claim against the latter. (Sec. 3, Rule 19)
Q: When should an answer to complaint-inintervention be filed?

A: It shall be filed within fifteen (15) days from
notice of the order admitting the same, unless a
different period is fixed by the court (Sec. 4, Rule
19).
3. REMEDY FOR THE DENIAL OF MOTION TO
INTERVENE
Q: What is the remedy for the denial of motion to
intervention?
A: The remedy of the aggrieved party is appeal.
Mandamus will not lie except in case of grave abuse
of discretion.

53

K. SUBPOENA
Q: What is the rule when application for subpoena

to a prisoner is made?
Q: What is a subpoena?
A: It is a process directed to a person requiring him
to attend and to testify at the hearing or the trial of
an action, or at any investigation conducted under
the laws of the Philippines, or for taking of his
deposition (Sec. 1, Rule 21).
1. SUBPOENA DUCES TECUM
A: The judge or officer shall examine and study

carefully such application to determine whether the
same is made for a valid purpose and no prisoner
sentenced to death, reclusion perpetua or life
imprisonment and is confined in prison shall be
brought outside the said penal institution for
appearance or attendance in any court unless
authorized by the SC (Sec. 2, Rule 21).
Q: What is subpoena duces tecum?
Q: What are the contents of subpoena?
A: A process directed to a person requiring him to

bring with him any books, documents, or things
under his control (Sec. 1, Rule 21).
A: It shall state the name of the court and the title

of the action or investigation, shall be directed to
the person whose attendance is required, and in
the case of a subpoena duces tecum, it shall also
contain a reasonable description of the books,
documents or things demanded which must appear
to the court prima facie relevant (Sec. 3).
2. SUBPOENA AD TESTIFICANDUM
Q: What is subpoena ad testificandum?
A: A process directed to a person requiring him to
attend and to testify at the hearing or trial of an
action or at any investigation conducted by
competent authority or for the taking of his
deposition (Sec. 1, Rule 21).
Q: Distinguish subpoena from summons.
A:
Subpoena
Summons
An order to appear and

testify or to produce books
and documents
May be served to a nonparty
Needs tender of
kilometrage, attendance fee
and reasonable cost of
production fee
Order to answer
complaint
Q: What is the rule on subpoena for depositions?

A: Proof of service of a notice to take a deposition,
as provided in Secs. 15 and 25, Rule 23, shall
constitute sufficient authorization for the issuance
of subpoenas for the persons named in said notice
by the clerk of the court of the place in which the
deposition is to be taken. The clerk shall not,
however, issue a subpoena duces tecum to any such
person without an order of the court (Sec. 5, Rule
21).
Q: How is service of subpoena made?
Served on the
defendant
Does not need tender
of kilometrage and
other fees
3. SERVICE OF SUBPOENA
A: It shall be made in the same manner as personal

or substituted service of summons (Sec. 6, Rule 21).
Note: Service of a subpoena shall be made by the
sheriff, by his deputy, or by any other person specially
authorized, who is not a party and is not less than
eighteen (18) years of age (Sec. 6, Rule 21).
Q: What should be delivered and tendered to the

person whom subpoena is served?
Q: Who issues subpoena?

A:
1.
2.
3.
4.
54
The court before whom the witness is

required to attend;
The court of the place where the
deposition is to be taken;
The officer or body authorized by law to
do so in connection with investigations
conducted by said officer or body; or
Any Justice of the SC or of the CA in any
case or investigation pending within the
Philippines. (Sec. 2, Rule 21)
A: The original shall be exhibited and a copy thereof

delivered to the person on whom it is served,
tendering to him the fees for one days attendance
and the kilometrage allowed by the Rules. If the
subpoena is duces tecum, the reasonable cost of
producing the books, documents or things
demanded shall also be tendered (Sec. 6, Rule 21).
Note: When a subpoena is issued by or on behalf of
the Republic of the Philippines or an officer or agency
thereof, the tender need not be made (Sec. 6, Rule 21).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: Why must service of subpoena be made?
when the subpoena was served (Sec. 4,

Rule 21).
A: The service must be made so as to allow the

witness a reasonable time for preparation and
travel to the place of attendance (Sec. 6, Rule 21).
L. MODES OF DISCOVERY
Q: What are the different modes of discovery?
4. COMPELLING ATTENDANCE OF WITNESSES;

CONTEMPT
A:
1.
2.
Q: What is the effect of failure to comply with

subpoena?
3.
4.
5.
A:
GR: The court or judge which issued the
subpoena may issue a warrant for the arrest of
the witness and make him pay the cost of such
warrant and seizure, if the court should
determine that his disobedience was willful and
without just cause. The refusal to obey a
subpoena without adequate cause shall be
deemed contempt of the court issuing it (Secs. 8
and 9, Rule 21).
XPNs:
1. Where the witness resides more than 100
km. from his residence to the place where
he is to testify by the ordinary course of
travel,
generally,
by
overland
transportation (viatory right); or
2. When the permission of the court in
which the detention prisoners case is
pending was not obtained (Sec. 10, Rule
21).
6.
Note: The modes of discovery are cumulative. They are

not alternative nor mutually exclusive.
Q: What are the basic purposes of the rules of

discovery?
A:
1.
2.
3.
5. QUASHING OF SUBPOENA
4.
Q: How to quash a subpoena?
A:
Subpoena duces tecum: Upon motion promptly
made and, in any event, at or before the time
specified therein:
1. If it is unreasonable and oppressive, or
2. The relevancy of the books, documents or
things does not appear, or
3. If the person is whose behalf the
subpoena is issued fails to advance the
reasonable cost of the production thereof
(Sec. 4, Rule 21).
4. That the witness fees and kilometrage
allowed by the Rules were not tendered
when the subpoena was served
Subpoena ad testificandum:
1. That the witness is not bound thereby.
2. That the witness fees and kilometrage
allowed by the Rules were not tendered
Depositions pending action (Rule 23)

Depositions before action or pending
appeal (Rule 24)
Interrogatories to parties (Rule 25)
Admission by adverse party (Rule 26)
Production or inspection of documents
and things (Rule 27)
Physical and mental examination of
persons (Rule 28)
5.
To enable a party to obtain knowledge of

material facts within the knowledge of
the adverse party or of third parties
through depositions;
To obtain knowledge of material facts or
admissions from the adverse party
through written interrogatories;
To obtain admissions from the adverse
party regarding the genuineness of
relevant documents or relevant matters
of fact through requests for admissions;
To inspect relevant documents or objects,
and lands or other property in the
possession and control of the adverse
party; and
To determine the physical or mental
condition of a party when such is in
controversy (Koh vs. IAC, 144 SCRA 259).
1. DEPOSITIONS PENDING ACTION; DEPOSITIONS

BEFORE ACTION OR PENDING APPEAL
a. MEANING OF DEPOSITION
Q: What is deposition?
A: A deposition is the taking of the testimony of
any person, whether he be a party or not, but at the
instance of a party to the action. This testimony is
taken out of court. Deposition may be:
a. An oral examination
b. Written interrogatories (Sec 1, Rule 23)

55

Q: When can depositions may be availed of?
XPN: If the deposition or any part thereof is

offered in evidence for any purpose (Sec. 8, Rule
23).
A:
a.
b.
During a pending action (Rule 23)

deposition de benne esse
Before action or Pending appeal (Rule 24)
deposition in perpetuam rei memoriam
XPN to the XPN: Introduction of deposition

does not make the deponent his witness:
1. If the deposition is used for impeaching or
contradicting the deponent (Sec. 8, Rule
23); or
2. If the adverse party uses the deposition of
the other party (Sec. 4[b], Rule 23)
Q: When may plaintiff be permitted to take

depositions?
A:
GR: Before answer is served because plaintiff
must await joinder of issues.
XPN: In cases of special circumstances. There
must be some necessity or good reason for
taking the testimony immediately or that it
would be prejudicial to the party seeking the
order to be compelled to await joinder of issue.
E.g.: witness is aged or infirm, or about to leave
the courts jurisdiction. (Herrera, Vol. II, pp. 1213, 2007 ed.)
Q: May a party rebut a deposition?

A: Yes. At the trial or hearing, any party may rebut
any relevant evidence contained in a deposition
whether introduced by him or by any other party
(Sec.9, Rule 23).
Q: Before whom may depositions be taken?
A:
1.
If within the Philippines

a. Judge;
b. Notary public; or
c. Any person authorized to administer
oaths, as stipulated by the parties in
writing (Sec. 10, Rule 23).
2.
If outside the Philippines

a. On notice, before a secretary of
embassy or legation, consul-general,
consul, vice-consul, or consular agent
of the Philippines;
b. Before such person or officer as may
be appointed by commission or
letters rogatory; or
c. Any person authorized to administer
oaths, as stipulated by the parties in
writing (Sec. 11, Rule 23).
Q: When is leave of court necessary when taking

depositions? When is it not necessary?
A:
1. It is necessary
a. Before service of an answer but after the
jurisdiction has been acquired over the
defendant or over the property subject of
the action
b. If the deposition to be taken is that of a
prisoner. (sec 1, Rule 23)
2. It is not necessary when an answer has already
been served and the deponent is not confined in
prison. (sec. 1, Rule 23)
Q: What is the effect of substitution of parties?
A: It does not affect the right to use depositions
previously taken; and when an action has been
dismissed and another action involving the same
subject is afterward brought between the same
parties or their representatives or successors-ininterest, all depositions lawfully taken and duly filed
in the former action may be used in the latter as if
originally taken therefor (Sec. 5, Rule 23).
Q: Should the deponent be deemed a witness of
the party taking his deposition?
A:
GR: No (Sec. 7, Rule 23).
56
Q: When shall letters rogatory or commission be

issued?
A: They shall be issued only when necessary or
convenient, on application and notice, and on such
terms and with such direction as are just and
appropriate (Sec. 12, Rule 23).
Q: Distinguish commission from letters rogatory.
A:
Commission
Letters Rogatory
Instrument issued by a
Instrument sent in the name
court of justice, or
and by authority of a judge or
other competent
court to another, requesting
tribunal, to authorize
the latter to cause to be
a person to take
examined, upon interrogatories
depositions or do any
filed in a case pending before
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CIVIL PROCEDURE
other act by authority
of such court or
tribunal.
Issued to a nonjudicial foreign officer

who will directly take
the testimony.
the former, a witness who is

within the jurisdiction of the
judge or court to whom such
letters are addressed.
Issued to the appropriate
judicial officer of the foreign
country who will direct
somebody in said foreign
country to take down
testimony.
Applicable rules of
procedure are those
of the requesting
court.
Applicable rules of procedure

are those of the foreign court
requested to act.
Resorted to if
permission of the
foreign country is
given.
Resorted to if the execution of

the commission is refused in
the foreign country. (There
must be a showing that the
commission is inadequate or
ineffective)
Leave of court is not

necessary.
Leave of court is necessary.
not known, a general description sufficient to

identify him or the particular class or group to
which he belongs (Sec. 15, Rule 23).
Note: On motion of any party upon whom the notice is
served, the court may for cause shown enlarge or
shorten the time (Sec. 15, Rule 23)
Q: When may the court make orders for the

protection of parties and deponents?
A: After notice is served for taking a deposition by
oral examination, upon motion seasonably made by
any party or by the person to be examined and for
good cause shown, the court in which the action is
pending may make orders for the protection of
parties and deponents (Sec. 16, Rule 23).
Q: What are the orders that the court may make
for the protection of parties and deponents?
A:
Q: Who are disqualified to be a deposition officer?
1.
2.
A:
1.
2.
3.
4.
One who is related to the deponent

within the 6th degree of consanguinity or
affinity;
An employee or attorney of one of the
parties;
One who is related to the attorney of the
deponent within the same degree or
employee of such attorney; and
One who is financially interested in the
action (Sec. 13, Rule 23).
3.
4.
5.
6.
Q: May the parties stipulate in writing for the

taking of depositions?
A: Yes. They may do so before any person
authorized to administer oaths, at any time, or
place, in accordance with the Rules, and when so
taken may be used like other depositions (Sec. 14,
Rule 23).
Q: What is the requirement in taking deposition
upon oral examination?
A: A party desiring to take the deposition of any
person upon oral examination shall give reasonable
notice in writing to every other party to the action
(Sec. 15, Rule 23).
Q: What shall the notice state?
A: It shall state the time and place for taking the
deposition and the name and address of each
person to be examined, if known, and if the name is
7.
8.
That the deposition shall not be taken;

That it may be taken only at some
designated place other than that stated in
the notice;
That it may be taken only on written
interrogatories;
That certain matters shall not be inquired
into;
That the scope of the examination shall
be held with no one present except the
parties to the action and their officers or
counsel;
That after being sealed, the deposition
shall be opened only by order of the
court, or that secret processes,
developments, research need not be
closed;
That the parties shall simultaneously file
specified documents or information
enclosed in sealed envelopes to be
opened as directed by the court; or
The court may make any other order
which justice requires to protect the party
or
witness
from
annoyance,
embarrassment, or oppression (Sec. 16,
Rule 23).
Q: What are the duties of the officer before whom

the deposition is to be taken?
A: He shall put the witness on oath and shall
personally, or by someone acting under his
discretion and in his presence, record the testimony
of the witness (Sec. 17, Rule 23).
Note: The testimony shall be taken stenographically
unless the parties agree otherwise (Sec. 17, Rule 23)

57

4.
Q: What objections shall be noted by the officer
upon the deposition?
A: All objections made at the time of the
examination to the:
1. Qualifications of the officer taking the
deposition;
2. Manner of taking the deposition;
3. Evidence presented;
4. Conduct of any party; or
5. Any other objection to the proceedings
(Sec. 17, Rule 23).
Note: A deposition officer has no authority to rule on
the objection (Herrera, Vol. II, p. 34, 2007 ed.)
Q: What may the parties do if they cannot

participate in the oral examination?
A: The parties may transmit written interrogatories
to the officers, who shall propound them to the
witness and record the answers verbatim (Sec. 17,
Rule 23).
Q: What is the consequence if a party or the
witness refuses to be sworn or refuses to answer
any question after being directed to do so by the
court of the place in which the deposition is being
taken?
A: The refusal may be considered contempt of that
court (Sec. 2, Rule 129).
Q: When shall the deposition be submitted to the
witness for examination?
A: It shall be submitted when the deposition is fully
transcribed and shall be read to or by him, unless
such examination and reading are waived by the
witness and by the parties (Sec. 19, Rule 23).
Wtness refuses to sign (Sec. 19, Rule 23)
Q: What is the effect if the witness does not sign

the deposition?
A: The officer shall sign it and state on the record
the fact of the waiver or of the illness or absence of
the witness or the fact of refusal to sign together
with the reason given therefor, if any, and the
deposition may then be used as fully as though
signed, unless on a motion to suppress under Sec.
29 (f), Rule 23, the court holds that the reasons
given for the refusal to sign require rejection of the
deposition in whole or in part (Sec. 19, Rule 23).
Q: What are the duties of the officer after the
taking of the deposition?
A: He shall:
1. Certify on the deposition that the witness
was duly sworn to by him and that the
deposition is a true record of the
testimony given by the witness;
2. Then securely seal the deposition in an
envelope indorsed with the title of the
action and marked "Deposition of (here
insert the name of witness)";
3. Promptly file it with the court in which
the action is pending or send it by
registered mail to the clerk thereof for
filing (Sec. 20, Rule 23); and
4. Give prompt notice of its filing to all the
parties (Sec. 21, Rule 23).
Note: Failure to comply with this requirement is a
mere defect in form which cannot affect the
admissibility of the deposition. (Herrera, Vol. II, p. 38,
2007 ed.)
Q: When shall the officer furnish a copy of the

deposition to any party or to the deponent?
Q: What shall be done with the changes which the

witness desire to make?
A: He shall furnish a copy upon payment of

reasonable charges therefor (Sec. 22, Rule 23).
A: Any changes in form or substance shall be

entered upon the deposition by the officer with a
statement of the reasons given by the witness for
making them (Sec. 19, Rule 23).
Q: What is the consequence of failure to attend of

the party giving notice?
Q: Is the signing of deposition necessary?

A:
A: The court may order the party giving the notice

to pay such other party the amount of the
reasonable expenses incurred by him and his
counsel in so attending, including reasonable
attorneys fees (Sec. 23, Rule 23).
GR: Yes, it shall be signed by the witness.

XPN:
1. Parties by stipulation waive the signing;
2. Witness is ill;
3. Witness cannot be found; or
58
Q: What is the consequence of failure of party

giving notice to serve subpoena?
A: If because of such failure, the witness does not
attend, and if another party attends in person or by
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CIVIL PROCEDURE
counsel because he expects the deposition of that
witness to be taken, the court may order the party
giving the notice to pay to such other party the
amount of the reasonable expenses incurred by him
and his counsel in so attending, including
reasonable attorneys fees (Sec. 24, Rule 23).
Q: How is deposition upon written interrogatories
done?
5.
A: A party desiring to take the deposition of any
person upon written interrogatories shall serve
them upon every other party with a notice stating
the name and address of the person who is to
answer them and the name or descriptive title and
address of the officer before whom the deposition
is to be taken. Within ten (10) days thereafter, a
party so served may serve cross-interrogatories
upon the party proposing to take the deposition.
Within five (5) days thereafter, the latter may serve
re-direct interrogatories upon a party who has
served cross-interrogatories. Within three (3) days
after being served with re-direct interrogatories, a
party may serve recross-interrogatories upon the
party proposing to take the deposition (Sec. 25,
Rule 23).
Note: The duties of the officer under Secs. 17, 19, 20,
21 & 22 of Rule 23 shall also be followed on deposition
upon written interrogatories (Secs. 26 & 27, Rule 23).
6.
occurring at the oral examination in the

manner of taking the deposition in the
form of the questions or answers, in the
oath or affirmation, or in the conduct of
the parties and errors of any kind which
might be obviated, removed, or cured if
promptly prosecuted, are waived unless
reasonable objection thereto is made at
the taking of the deposition.
As to form of written interrogatories
Objections to the form of written
interrogatories submitted under Secs. 25
and 26 are waived unless served in
writing upon the party propounding them
within the time allowed for serving
succeeding cross or other interrogatories
and within 3 days after service of the last
interrogatories authorized.
As to manner of preparation Errors and
irregularities in the manner in which the
testimony is transcribed or the deposition
is prepared, signed, certified, sealed,
indorsed, transmitted, filed, or otherwise
dealt with by the officer under Secs. 17,
19, 20 and 26 are waived unless a motion
to suppress the deposition or some part
thereof is made with reasonable
promptness after such defect is, or with
due diligence might have been,
ascertained (Sec. 29, Rule 23)
Q: What is the effect of errors and irregularities in

depositions?
Q: Who may file a petition for deposition before

action?
A:
A: Any person who wants to perpetuate his own

testimony or that of another person regarding any
matter that may be cognizable in any court of the
Philippines (Sec. 1, Rule 24).
1.
2.
3.
4.
As to notice All errors and irregularities

in the notice for taking a deposition are
waived unless written objection is
promptly served upon the party giving the
notice.
As to disqualification of officer
Objection to taking a deposition because
of disqualification of the officer before
whom it is to be taken is waived unless
made before the taking of the deposition
begins or as soon thereafter as the
disqualification becomes known or could
be discovered with reasonable diligence.
As to competency or relevancy of evidence
Objections to the competency of
witness or the competency, relevancy, or
materiality of testimony are not waived
by failure to make them before or during
the taking of the deposition, unless the
ground, of the objection is one which
might have been obviated or removed if
presented at that time.
As to oral examination and other
particulars Errors and irregularities
Q: What are the contents of the petition?

A: The petition shall be entitled in the name of the
petitioner and shall show:
1. that the petitioner expects to be a party
to an action in a court of the Philippines
but is presently unable to bring it or cause
it to be brought;
2. the subject matter of the expected action
and his interest therein;
3. the facts which he desires to establish by
the proposed testimony and his reasons
for desiring to perpetuate it;
4. the names or a description of the persons
he expects will be adverse parties and
their addresses so far as known; and
5. The names and addresses of the persons
to be examined and the substance of the
testimony which he expects to elicit from

59

each, and shall ask for an order
authorizing the petitioner to take the
depositions of the persons to be
examined named in the petition for the
purpose of perpetuating their testimony
(Sec.2, Rule 24)
3.
Q: What is the rule on notice and service of

depositions before action?
A: The petitioner shall serve a notice upon each
person named in the petition as an expected
adverse party, together with a copy of the petition,
stating that the petitioner will apply to the court, at
a time and place named therein, for the order
described in the petition. At least twenty (20) days
before the date of the hearing, the court shall cause
notice thereof to be served on the parties and
prospective deponents in the manner provided for
service of summons. (Sec. 3, Rule 24)
Q: What are the contents of the motion for
deposition pending appeal?
any purpose by any party if the court

finds that: DR. USE
a. The witness is Dead
b. The witness Resides more than 100
kilometers from the place of trial or
hearing, or is out of the Philippines.
Unless it appears that his absence
was procured by the party offering
the deposition
c. The witness is Unable to testify
because of age, sickness, infirmity or
imprisonment
d. The party offering the deposition has
been unable to procure the
attendance of the witness by
Subpoena
e. Upon application and notice, that
such Exceptional circumstances exist
as to make it desirable in the interest
of justice (Sec. 4, Rule 23)
Q: What is the dual function of depositions?

A:
A: The motion shall state:

1. The names and addresses of the persons
to be examined
2. The substance of the testimony which he
expects to elicit from each
3. The reason for perpetuating their
testimony. (Sec. 7, Rule 24).
Note: If the court finds that the perpetuation of the
testimony is proper to avoid a failure or delay of
justice, it may make an order allowing the depositions
to be taken, and thereupon the depositions may be
taken and used in the same manner and under the
same conditions as are prescribed under Rule 23. (Sec.
7, Rule 24)
b. USES; SCOPE OF EXAMINATION
1.
Rule 23 method of discovery, with use

on trial not necessarily contemplated; and
2.
Rule 24 a method of presenting

testimony.
Q: What is the use of deposition pending appeal?

A: Depositions are taken pending appeal with the
view to their being used in the event of further
proceeding in the court of origin or appellate court.
(Sec. 7, Rule 24)
Note: The deposition taken under this Rule is
admissible in evidence in any action subsequently
brought involving the same subject matter (Sec. 6, Rule
24)
Q: To whom may the deposition be used against?

A: Any part or all of the deposition, so far as
admissible under the rules of evidence, may be
used against:
1. Any party who was present or
represented at the taking of the
deposition; or
2. One who had due notice of the deposition
(Sec. 4, Rule 23)
Q: What are the uses of depositions?
A:
1.
2.
60
Contradicting
or
impeaching
the
testimony of the deponent as a witness;
Any purpose by the adverse party where
the deponent is a party; or
Q: What is the scope of the examination of the

deponent?
A: Unless otherwise ordered by the court as
provided by Sec. 16 or 18, Rule 23, the deponent
may be examined regarding any matter, not
privileged, which is relevant to the subject of the
pending action, whether relating to the claim or
defense of any other party, including the:
1. Existence;
2. Description;
3. Nature;
4. Custody;
5. Condition;
6. Location of any books, documents, or
other tangible things; and
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CIVIL PROCEDURE
7.
The identity and location of persons

having knowledge of relevant facts (Sec.
2, Rule 23).
Q: Distinguish protection order from motion to

terminate or limit examination.
A:
c. WHEN MAY OBJECTIONS TO ADMISSIBILITY BE

MADE
Q: What is the rule on objections to admissibility
of deposition?
A: Subject to the provisions of Sec. 29, Rule 23,
objection may be made at the trial or hearing to
receiving in evidence any deposition or part thereof
for any reason which would require the exclusion of
the evidence if the witness were then present and
testifying (Sec. 6, Rule 23)
d. WHEN MAY TAKING OF DEPOSITION BE
TERMINATED OR ITS SCOPE LIMITED
Q: What are the grounds for the termination or
limitation of the examination?
A:
1.
2.
3.
Upon a showing that the examination is

being conducted in bad faith;
In such manner as unreasonably to annoy,
embarrass or oppress the deponent or
party (Sec. 18, Rule 23); or
When the constitutional privilege against
self-incrimination is invoked by deponent
or his counsel (Herrera, Vol. II, p. 37, 2007
ed.).
Note: If the order made terminates the examination,

it shall be resumed thereafter only upon the order of
the court in which the action is pending. Upon demand
of the objecting party or deponent, the taking of the
deposition shall be suspended for the time necessary
to make a notice for an order. In granting or refusing
such order, the court may impose upon either party or
upon the witness the requirement to pay such costs or
expenses as the court may deem reasonable (Sec. 18,
Rule 23).
Q: When may taking of deposition be terminated

or its scope limited?
A: At any time during the taking of the deposition,
on motion or petition of any party or of the
deponent. (Sec. 18, Rule 23)
Protection Order (Sec.

16, Rule 23)
Provides protection to
the party or witness
before the taking of
deposition.
The Motion is filed with
the court in which the
action is pending.
Motion to Terminate or
Limit Examination (Sec.
18, Rule 23)
Provides such protection
during the taking of
deposition.
Motion or petition is filed
in the court in which the
action is pending or the
RTC of the place where
the deposition is being
taken.
Q: What is the rule on objections to admissibility

of deposition?
A: Subject to the provisions of Sec. 29, Rule 23,
objection may be made at the trial or hearing to
receiving in evidence any deposition or part thereof
for any reason which would require the exclusion of
the evidence if the witness were then present and
testifying (Sec. 6, Rule 23).
2. WRITTEN INTERROGATORIES TO ADVERSE
PARTIES
Q: What is the purpose of interrogatories to
parties?
A: For eliciting material and relevant facts from any
adverse party (Sec. 1, Rule 25).
Q: Distinguish
particulars.
interrogatories
from
bill
of
A:
Interrogatories
Interrogatories to parties
are not directed to a
particular
pleading.
Instead, they seek to
disclose all material and
relevant facts from a
party (Sec 1, Rule 25)
Bill of Particulars
Designed
to
clarify
ambiguities in a pleading
or to state with sufficient
definiteness allegations
in a pleading. It is
therefore directed to a
pleading (Sec 1, Rule 12)

61

Q: Distinguish depositions upon written
interrogatories under Rule 23, Section 25 from
interrogatories to parties under Rule 25.
A:
Depositions Upon Written
Interrogatories to
Interrogatories to Parties
Parties (Rule 25)
(Sec. 25, Rule 23)
Deponent
Party or ordinary witness
Party only
Procedure
With intervention of the No
intervention.
officer authorized by the Written interrogatories
Court to take deposition
are directed to the
party himself
Not served upon the
adverse party directly. They Served directly upon
are instead delivered to the the adverse party (Sec
officer before whom the 1, Rule 25)
deposition is to be taken.
(Sec 26, Rule 23)
Scope
Direct, cross, redirect, reOnly one set of
cross
interrogatories
Interrogatories
15 days to answer
No fixed time
unless extended or
reduced by the court
Q: What is
interrogatories?
the
procedure
in
taking
A: The mode of discovery is availed of by filing and

serving upon the adverse party written
interrogatories to be answered by the party served.
If the party is a juridical entity, it shall be answered
by any of its officers competent to testify in its
behalf. (Sec 1, Rule 25) The interrogatories shall be
answered fully in writing and shall be signed and
sworn to by the person making them.
Q: How many interrogatories may a party serve?
A: No party may, without leave of court, serve more
than one set of interrogatories to be answered by
the same party (Sec. 4, Rule 25).
Q: How are interrogatories answered?
A: The interrogatories shall be answered fully in
writing and shall be signed and sworn to by the
person making them. The party upon whom the
interrogatories have been served shall file and
serve a copy of the answers on the party submitting
the interrogatories within fifteen (15) days after
service thereof, unless the court, on motion and for
good cause shown, extends or shortens the time
(Sec. 2, Rule 25).
62
Note: The party against whom it is directed may make

objections to the interrogatories. (Sec. 2, Rule 25)
Judgment by default may be rendered against a party
who fails to serve his answer to written
interrogatories. (Sec.3[c], Rule 29)
Q: How can a party make objections to the

interrogatories?
A: Objections shall be presented to the court within
10 days after service of the interrogatories. The
filing of the objections shall have the effect of
deferring the filing and service of the answer to the
interrogatories (Sec. 3, Rule 25).
Q: Is leave of court necessary before a party may
be served with written interrogatories?
A:
GR: It is not necessary after answer has been
served, for the first set of interrogatories.
XPN: It is necessary before answer has been
served because, at that time, the issues are not
yet joined and the disputed facts are not yet
clear.
Q: What is the scope and use of interrogatories?
A: Interrogatories may relate to any matters that
can be inquired into under section 2 of Rule 23, and
the answers may be used for the same purposes
provided in section 4 of the same Rule (Sec. 5, Rule
25).
a. CONSEQUENCES OF REFUSAL TO ANSWER
Q: What are the consequences of refusal to
answer?
A:
(1) If a party or other deponent refuses to answer
any question upon oral examination, the
examination may be completed on other
matters or adjourned as the proponent of the
question may prefer. The proponent may
thereafter apply to the proper court of the place
where the deposition is being taken, for an
order to compel an answer. The same
procedure may be availed of when a party or a
witness refuses to answer any interrogatory
submitted under Rules 23 or 25.
If the application is granted, the court shall
require the refusing party or deponent to
answer the question or interrogatory and if it
also finds that the refusal to answer was
without substantial justification, it may require
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
the refusing party or deponent or the counsel
advising the refusal, or both of them, to pay the
proponent the amount of the reasonable
expenses incurred in obtaining the order,
including attorneys fees.
If the application is denied and the court finds
that it was filed without substantial justification,
the court may require the proponent or the
counsel advising the filing of the application, or
both of them, to pay to the refusing party or
deponent the amount of the reasonable
expenses incurred in opposing the application,
including attorneys fees (Sec. 1, Rule 29).
(2) If a party or other witness refuses to be sworn
or refuses to answer any question after being
directed to do so by the court of the place in
which the deposition is being taken, the refusal
may be considered a contempt of that court
(Sec. 2, Rule 29).
(3) If any party or an officer or managing agent of a
party refuses to obey an order made under
section 1 of this Rule requiring him to answer
designated questions, or an order under Rule 27
to produce any document or other thing for
inspection, copying, or photographing or to
permit it to be done, or to permit entry upon
land or other property, or an order made under
Rule 28 requiring him to submit to a physical or
mental examination, the court may make such
orders in regard to the refusal as are just, and
among others the following:
(a) An order that the matters regarding
which the questions were asked, or the
character or description of the thing or
land, or the contents of the paper, or the
physical or mental condition of the party,
or any other designated facts shall be
taken to be established for the purposes of
the action in accordance with the claim of
the party obtaining the order;
(b) An order refusing to allow the
disobedient party to support or oppose
designated claims or defenses or
prohibiting him from introducing in
evidence designated documents or things
or items of testimony, or from introducing
evidence of physical or mental condition;
(c) An order striking out pleadings or parts
thereof, or staying further proceedings
until the order is obeyed, or dismissing the
action or proceeding or any part thereof,
or rendering a judgment by default against
the disobedient party;
(d) In lieu of any of the foregoing orders or
in addition thereto, an order directing the
arrest of any party or agent of a party for

disobeying any of such orders except an
order to submit to a physical or mental
examination (Sec. 3, Rule 29).
b. EFFECT OF FAILURE TO SERVE WRITTEN
INTERROGATORIES
Q: What is the effect of failure to serve written
interrogatories?
A:
GR: A party not served with written
interrogatories may not be compelled by the
adverse party to give testimony in open court,
or to give a deposition pending appeal.
XPN: When allowed by the court and there is
good cause shown and the same is necessary to
prevent a failure of justice (Sec. 6, Rule 25).
Note: The sanctions adopted by the rules is not one of
compulsion in the sense that the party is being
compelled to avail of the discovery mechanics, but one
of negation by depriving him of evidentiary sources
which would otherwise have been accessible to him.
3. REQUEST FOR ADMISSION

Q: What admissions may be requested from the
adverse party?
A: Admission of the:
1. Genuineness of any material and relevant
document described in and exhibited with
the request; or
2. Truth of any material and relevant matter
of fact set forth in the request (Sec. 1,
Rule 26).
Note: The request for admission must be served
directly upon the party; otherwise, the party to whom
the request is directed cannot be deemed to have
admitted the genuineness of any relevant document
described in and exhibited with the request or relevant
matters of fact set forth therein on account of failure
to answer the request for admission (Briboneria v. CA,
G.R. No. 101682, Dec. 14, 1992).
However, the answer to a request for admission
properly served which was signed and sworn to by the
counsel of the party so requested, is sufficient
compliance with this rule, especially in the light of
counsels authority under Secs. 21 and 23, Rule 138
(Nestle Philippines, Inc. v. CA, G.R. No. 102404, Feb. 1,
2002)

63

Q: When may request for admission be made?
A: At any time after issues have been joined, a
party may file and serve upon any other party a
written request for the admission by the latter.
(Sec. 1, Rule 26).
a. IMPLIED ADMISSION BY ADVERSE PARTY
Q: When is there an implied admission?
A:
GR: Each of the matters of which an admission
is requested shall be deemed admitted.
XPN: Unless, the party to whom the request is
directed files and serves upon the party
requesting the admission a sworn statement
either denying specifically the matters of which
an admission is requested or setting forth in
detail the reasons why he cannot truthfully
either admit or deny those matters (Sec. 2, Rule
26).
Q: When should objections to any request for

admission be submitted?
A: They shall be submitted to the court by the party
requested within the period for and prior to the
filing of his sworn statement and his compliance
therewith shall be deferred until such objections
are resolved, which resolution shall be made as
early as practicable (Sec. 2[b], Rule 26).
Q: May an admission be withdrawn?
A: Yes. The court may allow the party making the
admission to withdraw or amend the admission
upon such terms as may be just (Sec. 4, Rule 26).
d. EFFECT OF FAILURE TO FILE AND SERVE
REQUEST FOR ADMISSION
Q: What is the effect of failure to file and serve
request for admission?
Note: When the defendant is silent on the plaintiffs

request for admission, he is deemed to have impliedly
admitted the facts set forth therein (Herrera, Vol. II, p.
56, 2007 ed.)
A: A party who fails to file and serve a request for

admission on the adverse party on material and
relevant facts at issue shall not be permitted to
present evidence on such facts unless otherwise
allowed by the court for good cause shown and to
prevent a failure of justice (Sec. 5, Rule 26).
b. CONSEQUENCES OF FAILURE TO ANSWER

REQUEST FOR ADMISSION
4. PRODUCTION OR INSPECTION OF DOCUMENTS

OR THINGS
Q: What is the effect for failure to answer a

request for admission?
Q: What may the court order under this mode of

discovery?
A: The facts or documents are deemed admitted.

Under the Rules, each of the matters of which an
admission is requested shall be deemed admitted
unless within a period designated in the request
which shall not be less than 15 days after service
thereof, or within such further time as the court
may allow on motion, the party to whom the
request is directed files and serves upon the party
requesting the admission a sworn statement either
denying specifically the matter of which an
admission is requested or setting forth in detail the
reason why he cannot truthfully either admit or
deny those matters. (Sec. 2, Rule 26)
A: Upon motion of any party showing good cause

therefor, the court in which an action is pending
may order any party to:
1. Produce and permit the inspection and
copying or photographing, by or on behalf
of the moving party, or of any designated
documents, papers, books, accounts,
letters, photographs, objects or tangible
things, not privileged, which constitute or
contain evidence material to any matter
involved in the action and which are in his
possession, custody or control; or
2. Permit entry upon designated land or
other property in his possession or
control for the purpose of inspecting,
measuring, surveying, or photographing
the property or any designated relevant
object or operation thereon (Sec. 1, Rule
27).
c. EFFECT OF ADMISSION
Q: What is the effect of admission?
A: Any admission made by a party pursuant to such
request is for the purpose of the pending action
only and shall not constitute an admission by him
for any other purpose nor may the same be used
against him in any other proceeding (Sec. 3, Rule
26).
64
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: What are the limitations on the request for
production or inspection of documents or things?
A:
1.
A:
1.
2.
3.
Should not be privileged;

Should constitute or contain evidence
material to any matter involved in the
action and which are in his (the party
ordered) possession, custody, or control
(Sec. 1, Rule 27); and
In the petition, the papers and documents
to be produced must be sufficiently
described.
2.
A motion must be filed by the party

seeking the production or inspection of
documents and things and the motion
must show good cause supporting the
same. (Sec 1, Rule 27)
The order shall specify the time, place and
manner of making the inspection and
taking copies and photographs, and may
prescribe such terms and conditions as
are just. (Sec 1, Rule 27)
5. PHYSICAL AND MENTAL EXAMINATION OF

PERSONS
Q: What are privileged communications?

Q: When may physical and mental examination of
persons be ordered?
A:
1.
2.
3.
4.
5.
6.
Communication between:
a. Husband and wife
b. Attorney and client
c. Physician and patient
d. Priest and penitent
e. Public officers and public interest
Editors may not be compelled to disclose
the source of published news
Voters may not be compelled to disclose
for whom they voted
Trade secrets
Information contained in tax census
returns; and
Bank deposits.
Q: Distinguish the rule on production or inspection

of documents or things under Rule 27 from
subpoena duces tecum.
A: It may be ordered in an action in which the

physical or mental condition of a party is in
controversy (Sec. 1, Rule 28).
Note: Since the results of the examination are
intended to be made public, the same are not covered
by the physician-patient privilege.
Q: What is the procedure to avail physical and

mental examination of persons?
A:
1.
2.
A:
Production or Inspection
of Documents or Things
Essentially a mode of
discovery.
Limited to the parties to
the action.
Issued only upon motion
with notice to the
adverse party.
Subpoena Duces Tecum

Means of compelling
production of evidence
It may be directed to any
person whether a party
or not.
Issued upon an ex parte
application.
3.
4.
A motion must be filed showing good

cause for the examination, with notice to
the other parties as well aside from the
party to be examined. (Sec 2, Rule 28)
The motion shall specify the time, place,
manner, conditions and scope of the
examination and by the person/s by
whom it is made. (Sec 2, Rule 28)
The party examined may request the
party causing the examination to be made
to deliver to him a copy of a detailed
written report of the examining physician
setting out his findings and conclusions.
(Sec 3, Rule 28)
The party causing the examination to be
made shall be entitled upon request to
receive from the party examined a like
report of any examination, previously or
thereafter made, of the same mental or
physical condition. (Sec 3, Rule 28)
Note: This mode of discovery does not authorize the

opposing party or the clerk of court or other
functionaries of the court to distrain the articles or
deprive the person who produced the same of their
possession, even temporarily (Tanda v. Aldaya, GR No.
L-13423, Nov. 23, 1959).
Q: What is the effect if the party refuses to deliver

the report upon request to the person causing the
examination to be made?
Q: What is the procedure to avail the production

or inspection of documents or things?
A: The court may order requiring the delivery on

such terms as are just. (Sec 3, Rule 28)

65

Q: What is the effect if the physician refuses or
fails to make a report?
1.
A: The court may exclude his testimony. (Sec 3, Rule

28)
2.
Q: What is the effect if the party examined
requests and obtains a report on the results of the
examination?
A:
He has to furnish the other party a copy

of the report of any previous or
subsequent examination of the same
physical and mental condition (Sec. 3,
Rule 28)
He waives any privilege he may have in
that action or any other involving the
same
controversy
regarding
the
testimony of every other person who has
so examined or may thereafter examine
him (Sec. 4, Rule 28).
6. CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES OF DISCOVERY

Q: What are the sanctions in case of refusal to comply with the modes of discovery?
A:
Refusal to answer any question upon oral examination
Order to compel an answer;
Contempt;
Require payment of reasonable fees incurred by the proponent;
Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of
the party obtaining the order.
5. Dismiss the action or the proceeding;
6. Render a Judgment by default against the disobedient party;
7. Refuse to allow the disobedient party to support or oppose claims or defenses;
8. Strike out all or any part of the pleading of the disobedient party;
9. Stay further proceedings until order is obeyed;
10. Order the arrest of the refusing party.
Refusal to produce document or thing for inspection, copying or photographing
1. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of
2. Refuse to allow the disobedient party to support or oppose claims or defenses;
7. Render a Judgment by default against the disobedient party
8. Order the arrest of the refusing party.
Refusal to submit to Physical or Mental examination
1. Designated facts shall be taken to be established for the purposes of the action in accordance with the claim of
2. Prohibit the disobedient party to introduce evidence of physical and mental conditions;
7. Render a Judgment by default against the disobedient party
Refusal to the request for admission by adverse party
1. Require payment of reasonable fees incurred by the proponent (Secs. 1-4)
2. Each of the matters of which an admission is requested is deemed admitted (Sec. 5, Rule 26).
1.
2.
3.
4.
Note: The remedy of the party, in this case, is to file a motion to be relieved of the consequences of the implied admission. The
amendment of the complaint per se cannot set aside the legal effects of the request for admission since its materiality has not
been affected by the amendment.
Note: Expenses and attorneys fees are not to be imposed upon the Republic of the Philippines. The matter of how, and
when, the above sanctions should be applied is one that primarily rests on the sound discretion of the court where the
case is pending, having always in mind the paramount and overriding interest of justice (Zepeda v. China Banking Corp.,
G.R. No. 172175, Oct. 9, 2006).
66
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
M. TRIAL
Q: When is a case ready for trial?
Q: What is a trial?
A: It is a judicial process of investigating and
determining the legal controversies starting with
the production of evidence by the plaintiff and
ending with his closing arguments (Riano, Civil
ed.)
Q: Is trial necessary?
A:
GR: When an issue exists, trial is necessary.
Decision should not be made without trial.
XPNs: There is no need for trial in the following
cases:
1. Where the pleadings of the parties tender
no issue at all, a judgment on the
pleadings may be directed by the court
(Rule 34);
2. Where from the pleadings, affidavits,
depositions and other papers, there is
actually no genuine issue, the court may
render a summary judgment (Rule 35);
3. Where the parties have entered into a
compromise or an amicable settlement
either during the pre-trial or while the
trial is in progress (Rule 18; Art. 2028,
NCC);
4. Where the complaint has been dismissed
with prejudice (Sec. 5, Rule 16; Sec. 3,
Rule 17; last. par., Sec. 5, Rule 7);
5. Where the case falls under the operation
of the Rules on Summary Procedure (Rule
17);
6. Where, the parties agree in writing, upon
the facts involved in the litigation, and
submit the case for judgment on the facts
agreed upon, without the introduction of
evidence. If however, there is no
agreement as to all the facts in the case,
trial may be held only as to the disputed
facts (1996 Bar Question).
A: When the issues are joined. Issues are joined

when all the parties have placed their respective
theories and the terms of the dispute are placed
before the court.
Q: What is the rule on notice of trial?
A: Upon entry of a case in the trial calendar, the
clerk shall notify the parties of the date of its trial in
such manner as shall ensure his receipt of that
notice at least five (5) days before such date. (Sec.1,
Rule 30)
1. ADJOURNMENTS AND POSTPONEMENTS
Q: What is the rule on adjournment and
postponement of trial?
A: A court may adjourn a trial from day to day, and
to any stated time, as the expeditious and
convenient transaction of business may require, but
shall have no power to adjourn a trial for a longer
period than one month for each adjournment, nor
more than three months in all, except when
authorized in writing by the Court Administrator,
Supreme Court. (Sec 2, Rule 30)
Note: A motion for postponement should not be filed
on the last hour especially when there is no reason
why it could not have been presented earlier (Republic
vs Sandiganbayan)
A motion for continuance or postponement is not a
matter of right but is addressed to the sound
discretion of the court, and its action thereon will not
be disturbed by the appellate courts in the absence of
clear and manifest abuse of discretion resulting in the
denial of substantial justice.
2. REQUISITES OF MOTION TO POSTPONE TRIAL

Q: What are
postponements?
the
criteria
in
granting
Q: Distinguish trial from hearing.

A:
A:
Trial
Reception of
evidence and other
processes.
The period for the
introduction of
evidence by both
parties.
Hearing
Not confined in trial but
embraces several stages of
litigation, including the pretrial stage.
Does not necessarily imply
presentation of evidence in
open court but the parties are
afforded the opportunity to
be heard.
1.
2.
Reason for the postponement;

Merits of the case of the movant
a. FOR ABSENCE OF EVIDENCE
Q: What are the requisites of a motion to

postpone trial for absence of evidence?
A: Affidavit showing:
a. The evidence is material or relevant

67

b.
That due diligence has been used to

procure it
Note: But the adverse party may avoid it by admitting

the facts sought to be proven by the absent evidence,
even if he objects or reserves the right to their
admissibility. (Sec.3, Rule 30)
b. FOR ILLNESS OF PARTY OR COUNSEL

Q: What are the requisites of a motion to
postpone trial for illness of party or counsel?
A: Affidavit showing:
a. Presence of such party or counsel at
the trial is indispensable;
b. Character of illness is such as to
render his non-attendance excusable
3. AGREED STATEMENT OF FACTS
Q: Distinguish stipulation of facts in civil cases visa-vis criminal cases.
A:
Civil Cases
May be signed by the
counsel alone who has a
special power of
attorney.
May be made verbally or
in writing.
Criminal Cases
Must be signed both by
the counsel and the
accused.
Strict. It must always be
in writing.
Q: What is the rule on stipulation of facts?

A: The parties to any action may agree, in writing,
upon the facts involved in the litigation, and submit
the case for judgment on the facts agreed upon,
without the introduction of evidence. If the parties
agree only on some of the facts in issue, the trial
shall be held as to the disputed facts in such order
as the court shall prescribe (Sec. 7, Rule 30)
Note: Stipulation of facts is not permitted in actions
for annulment of marriage and for legal separation.
4. ORDER OF TRIAL; REVERSAL OF ORDER
Q: What is the procedure in trial?
A: Subject to the provisions of Sec. 2, Rule 31, and
unless the court for special reasons otherwise
directs, the trial shall be limited to the issues stated
in the pre-trial order and shall proceed as follows:
68
Plaintiff shall adduce evidence in support of his

complaint
Defendant shall then adduce evidence in support
of his defense, counterclaim, cross-claim and
third party complaint
Third party defendant, if any, shall adduce

evidence of his defense, counterclaim, crossclaim and fourth-party complaint
Fourth party, and so forth, if any, shall adduce

evidence of the material facts pleaded by them
Parties against whom any counterclaim or crossclaim has been pleaded, shall adduce evidence in
support of their defense, in the order to be
prescribed by the court
Parties may then respectively adduce rebutting

evidence only, unless the court, for good reasons
and in the furtherance of justice, permits them to
adduce evidence upon their original case
Upon admission of the evidence, the case shall

be deemed submitted for decision, unless the
court directs the parties to argue or to submit
their respective memoranda or any further
pleadings
Note: If several defendants or third party defendants
and so forth having separate defenses appear by
different counsel, the court shall determine the
relative order of presentation of their evidence (Sec. 5,
Rule 30)
Q: When is a reverse order of trial allowed?

A: Where the defendant, in his answer, relies upon
an affirmative defense, a reverse order of trial shall
take place. Since the defendant admits the
plaintiffs claim but seeks to avoid liability based on
his affirmative defense he shall proceed first to
prove his exemption.
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
5. CONSOLIDATION OR SEVERANCE OF HEARING
OR TRIAL
2.
Q: Distinguish consolidation from severance.

A:
If filed with the different branches of the

same RTC and one of such cases has not
been partially tried. (Raymundo v. Felipe,
G.R. No. L-30887, Dec. 24, 1971)
Q: When may civil actions be suspended?

Consolidation
Involves several actions

having
a
common
question of law or fact
which may be jointly
tried (Sec.1, Rule 31).
Severance
Contemplates a single
action having a number
of claims, counterclaims,
cross-claims, third-party
complaints, or issues
which may be separately
tried.
A:
1.
2.
Q: What are the requisites for consolidation?

A:
1.
2.
Actions involving a common question of

law or fact; and
There must be at least 2 actions pending
before the same court (Sec.1, Rule 31).
Q: What are the ways of consolidating cases?

A:
Recasting the
Cases
Reshaping of
the cases by
amending the
pleading,
dismissing
some
cases
and retaining
only one case.
There must be
joinder
of
causes
of
action and of
parties.
Consolidation
Proper
It is a joint trial
with
joint
decision, the
cases retaining
their original
docket
numbers.
Test-Case
Method
By hearing only
the principal case
and suspending
the hearing on
the other cases
until
judgment
has
been
rendered in the
principal
case.
The cases retain
their
original
docket numbers
(Riano,
Civil
Procedure, p. 96,
2009 ed.).
Q: What is the rule on consolidation of cases?

A:
If willingness to discuss a possible

compromise is expressed by one or both
parties; or
If it appears that one of the parties,
before the commencement of the action
or proceeding, offered to discuss a
possible compromise but the other party
refused the offer (Sec. 8, Rule 30; Art.
2030, NCC).
6. DELEGATION OF RECEPTION OF EVIDENCE

Q: May the judge delegate the reception of
evidence?
A:
GR: No. The judge shall personally receive and
resolve the evidence to be adduced by the
parties.
XPN: The reception of evidence may be
delegated to the Clerk of Court, under the
following conditions:
1. The delegation may be made only in
defaults or ex parte hearings, and in any
case where the parties agree in writing;
2. The reception of evidence shall be made
only by the clerk of that court who is a
member of the bar;
3. Said clerk shall have no power to rule on
objections to any question or to
admission of evidence or exhibits; and
4. He shall submit his report and transcripts
of the proceedings, together with the
objections to be resolved by the court,
within 10 days from the termination of
the hearing (Sec. 9, Rule 30).
7. TRIAL BY COMMISSIONERS
GR: Consolidation is discretionary upon the

court to avoid multiplicity of suits, guard against
oppression or abuse, prevent delay, clear
congested dockets, and simplify the work of the
trial court and save unnecessary costs and
expenses.
XPNs: Consolidation becomes a matter of duty
when:
1. If two or more cases are pending before
the same judge; or
Q: Who is a commissioner?
A: A person to whom a case pending in court is
referred, for him to take testimony, hear the parties
and report thereon to the court, and upon whose
report, if confirmed, judgment is rendered.
Q: Distinguish delegation to clerk of court under
Rule 30 from trial by commissioner under Rule 32.

69

A:
b. POWERS OF THE COMMISSIONER
Delegation to Clerk of
Court
Delegation is made
during trial.
Clerk of court must be a
lawyer.
Clerk of court cannot rule
on objections or on the
admissibility of evidence.
Trial by Commissioner
Commissioner can be
appointed even after the
case has become final
and executory.
Commissioner need not
be a lawyer.
Commissioner can rule
on objections or on
admissibility of evidence.
Q: What is the rule on trial by commissioner?

A:
GR: Discretionary upon the courts.
XPNS:
1.
2.
3.
4.
Expropriation (Rule 67);

Partition (Rule 69);
Settlement of estate of a deceased person
in case of contested claims; and
Submission of accounting by executors or
administrator.
Note: An irregularity in the appointment of a

commissioner must be seasonably raised in the trial
court where the defect could still be remedied. It can
be waived by consent of the parties, express or
implied.
a. REFERENCE BY CONSENT OR ORDERED ON

MOTION
Q: How may a case be referred to a commissioner?
A: By written consent of both parties, the court may
order any or all of the issues in a case to be referred
to a commissioner to be agreed upon by the parties
or to be appointed by the court (Sec. 1, Rule 32).
Q: When may a case be referred to a
commissioner if the consent of the parties are not
given?
A:
1.
2.
3.
4.
70
When the trial of an issue of fact requires

the examination of a long account on
either side;
When the taking of an account is
necessary for the information of the court
before judgment;
When a question of fact, other than upon
the pleadings, arises upon motion or
otherwise, in any stage of a case; or
For carrying a judgment or order into
effect (Sec. 2, Rule 32).
Q: What are the powers of a commissioner?

A:
1.
2.
3.
4.
5.
Power to regulate the proceedings in

every hearing before him;
Do all acts and take all measures
necessary or proper for the efficient
performance of his duties under the order
of reference;
Issue subpoenas ad testificandum and
duces tecum;
Swear witnesses; and
Rule upon the admissibility of evidence
(Sec.3, Rule 32).
Note: Requirement of hearing cannot be dispensed

with as this is the essence of due process.
Q: What is the effect of failure of parties to appear

before a commissioner?
A: The commissioner may proceed ex parte or, in
his discretion, adjourn the proceedings to a future
day, giving notice to the absent party or his counsel
of the adjournment (Sec.6, Rule 32)
c. COMMISSIONERS REPORT; NOTICE TO PARTIES
AND HEARING ON THE REPORT
Q: What is a commissioners report?
A: Upon completion of the trial or hearing or
proceeding before the commissioner, he shall file
with the court his report in writing upon the
matters submitted to him by the order of reference.
When his powers are not specified or limited, he
shall set forth his findings of fact and conclusions or
law in his report. He shall attach in his report all
exhibits, affidavits, depositions, papers and the
transcript, if any, of the evidence presented before
him (Sec. 9).
Note: The commissioners report is not binding upon
the court which is free to adopt, modify, or reject, in
whole or in part, the report. The court may receive
further evidence or recommit the report with
instructions (Sec. 11, Rule 32; Baltazar vs. Limpin, 49
Phil. 39).
Q: What is the rule on notice of filing of the

report?
A: Upon the filing of the report, the parties shall
be notified by the clerk, and they shall be allowed
ten (l0) days within which to signify grounds of
objections to the findings of the report, if they so
desire. Objections to the report based upon
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
grounds which were available to the parties during
the proceedings before the commissioner, other
than objections to the findings and conclusions
therein set forth, shall not be considered by the
court unless they were made before the
commissioner. (Sec.10, Rule 32)
appeal the order of dismissal is reversed he shall be

deemed to have waived the right to present
evidence. (Sec.1, Rule 33)
Note: GR: Notice of the filing of the report must be

sent to the parties for the purpose of giving them an
opportunity to present their objections (Santos vs.
Guzman, 45 Phil. 646). The failure to grant the parties,
in due form, this opportunity to object, may, in some
instances, constitute a serious error in violation of
their substantial rights (Govt. vs. Osorio, 50 Phil. 864).
A:
XPN: The rule, however, is not absolute. In Manila

Trading and Supply Co. vs. Phil. Labor Union, 71 Phil.
539, it was ruled that although the parties were not
notified of the filing of the commissioners reports, and
the court failed to set said report for hearing, if the
parties who appeared before the commissioner were
duly represented by counsel and given an opportunity
to be heard, the requirement of due process has been
satisfied, and a decision on the basis of such report,
with the other evidence of the case is a decision which
meets the requirements of fair and open hearing.
Q: What should be heard

commissioners report hearing?
during
Q: What is the effect of filing of demurrer to

evidence?
Motion Granted
but
Reversed on Appeal
Movant shall have the Movant is deemed to have
right to present his waived his right to present
evidence
evidence. The decision of
the appellate court will be
based only on the
evidence of the plaintiff as
the defendant loses his
right to have the case
remanded for reception of
his evidence.
Denial is interlocutory,
hence, not appealable. Order of the court is an
Sec. 1, Rule 36 (that adjudication on the merits.
judgment should state Hence, the requirement in
clearly and distinctly the Sec. 1, Rule 36 should be
facts and the law on which complied with.
it is based), will not apply.
Motion Denied
the
A: In the hearing to be conducted on the

commissioners report, the court will review only so
much as may be drawn in question by proper
objections. It is not expected to rehear the case
upon the entire record (Kreidt vs. McCullough and
Co., 37 Phi. 474).
Note: A demurrer to evidence under Rule 33 is in

effect, a motion to dismiss but is not the same as what
is described in Rule 16.
Q: Distinguish a demurrer to evidence from a

motion to dismiss.
A:
Motion to
Dismiss
(Rule 16)
N. DEMURRER TO EVIDENCE
Q: What is demurrer to evidence?
A: It is a motion to dismiss based on the ground of
insufficiency of evidence and is presented after the
plaintiff rests his case (Regalado, Vol. I, p. 391, 2005
ed.). The aim of this rule is to discourage prolonged
litigation.
When
to file
Grounds
Note: There is only a one side trial, i.e. it is only the

plaintiff who has presented evidence.
Q: When may a party to the case move for

dismissal based on insufficiency of evidence?
A: After the plaintiff has completed the
presentation of his evidence, the defendant may
move for dismissal on the ground that upon the
facts and the law the plaintiff has shown no right to
relief. If his motion is denied, he shall have the right
to present evidence. If the motion is granted but on
If
denied
If
granted
Before filing of
answer
The 10 grounds
enumerated
in
Rule 16
The
defendant
may
file
his
responsive
pleading.
The
complaint
may be refiled
depending on the
ground
of
dismissal.
Demurrer to
Evidence
(Rule 33)
After the plaintiff
rests its case or after
the completion of the
presentation
of
evidence
That upon the facts
and the law, the
plaintiff has shown no
right to relief
The defendant may

present his evidence.
The complaint may
NOT be filed. The
remedy
of
the
plaintiff is to appeal
from the dismissal.

71

Q: ABS Co. is the operator of several buses. One of
the buses owned by ABS Co. rammed with a dump
truck causing the instantaneous death of Nilo, one
of the passengers of the ill-fated bus.
Consequently, Nestor, son of Nilo, filed a
complaint against ABS Co. for damages. After
Nestor had rested his case, ABS Co. filed a
demurrer to evidence, contending that Nestor's
evidence is insufficient because it did not show (1)
that ABS Co. was negligent and (2) that such
negligence was the proximate cause of the
collision. Should the court grant or deny
defendant's demurrer to evidence? Reason briefly.
2. EFFECT OF DENIAL
Q: What is the effect of denial of demurrer to
evidence?
A:
1.
2.
3.
A: No, the court should not grant defendants

demurrer to evidence. Under the Rules of Court,
after the plaintiff has completed the presentation
of his evidence, the defendant may move for
dismissal on the ground that upon the facts and the
law the plaintiff has shown no right to relief.
Here, Nestor has shown that he is entitled to the
relief he is asking for. ABS Co. is a common carrier.
Under Article 1756 of the Civil Code, in case of
death of or injuries to passengers, common carriers
are presumed to have been at fault or to have acted
negligently, unless they prove that they observed
extraordinary diligence. Proof that the defendant
was negligent and that such negligence was the
proximate cause of the collision is not required.
Thus, without proof that ABS Co. has exercised
extraordinary diligence, the presumption of
negligence stands. (2004 Bar Question)
4.
3. EFFECT OF GRANT
Q: What is the effect of granting the demurrer to
evidence?
A:
1.
The case shall be dismissed.
Note: The plaintiff may file an appeal and if that

appeal was granted, the defendant loses his right
to present evidence. (Sec.1, Rule 33)
2.
Upon appeal, the appellate court

reversing the order granting the demurrer
should not remand the case to the trial
court. Instead, it should render judgment
based on the evidence submitted by the
plaintiff.
(Radiowealth
Finance
Corporation vs Del Rosario, 335 SCRA 288)
3.
The demurrer to evidence abbreviates

judicial proceedings.
Q: What is judgment on demurrer to evidence?

A: It is a judgment rendered by the court dismissing
a case upon motion of the defendant, made after
plaintiff has rested his case, on the ground that
upon the facts presented by the plaintiff and the
law on the matter, plaintiff has not shown any right
to relief.
The defendant shall have the right to

present his evidence (Sec. 1, Rule 33)
The court shall set the date for the
reception of the defendants evidence.
An order denying a demurrer to evidence
not
appealable
(because
it
is
interlocutory)
XPN: It can be subject to petition for
certiorari in case of grave abuse of
discretion or an oppressive exercise of
judicial authority.
The right to present evidence after denial
of demurrer to evidence does not apply
to election cases.
1. GROUND
4. WAIVER OF RIGHT TO PRESENT EVIDENCE
Q: On what ground may the demurrer to evidence

be filed?
Q: When is there a waiver of right to present

evidence?
A: The only ground for demurrer to evidence is that

the plaintiff has no right to relief.
A: If the demurrer is granted but on appeal the

order of dismissal is reversed, the defendant is
deemed to have waived his right to present
evidence (Sec.1, Rule 33)
72
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
5. DEMURRER TO EVIDENCE IN A CIVIL CASE VERSUS DEMURRER TO EVIDENCE IN A CRIMINAL CASE
Q: Distinguish demurrer to evidence in civil cases from demurrer to evidence in criminal cases.
A:
Leave of court
If granted
Civil Case
Not required
The Plaintiff may appeal from the order of
dismissal of the case
Criminal Case
With or Without
The Plaintiff cannot make an appeal from the
order of dismissal due to the constitutional
prohibition against double jeopardy
The Defendant may adduce his evidence only if
the demurrer is filed with leave of court.
The Defendant may proceed to adduce his

evidence
If denied
If the plaintiff
appeals from
the order of
dismissal
How
can
demurrer be
denied?
If there was no leave of court, accused can no

longer present his evidence and submits the
case for decision based on the prosecutions
evidence
If the court finds plaintiffs evidence insufficient,
it will grant the demurrer by dismissing the
complaint. The judgment of dismissal is
appealable by the plaintiff. If plaintiff appeals
and judgment is reversed by the appellate court,
it will decide the case on the basis of the
plaintiffs evidence with the consequence that
the defendant already loses his right to present
evidence. No res judicata in dismissal due to
demurrer
If the court finds the prosecutions evidence

insufficient, it will grant the demurrer by
rendering judgment acquitting the accused.
Judgment of acquittal is not appealable;
double jeopardy sets in
The plaintiff files a motion to deny motion to

demurrer to evidence.
O. JUDGMENTS AND FINAL ORDERS
The court may motu proprio deny the motion.
5.
Q: What is a judgment?
A: It is a final consideration and determination by a
court of the rights of the parties, upon matters
submitted to it in an action or proceeding.
Q: What are the kinds of judgment?
A:
6.
1.
2.
3.
4.
Judgment upon compromise It is one

conferred on the basis of a compromise
agreement entered into between the
parties.
Judgment by confession It is one
rendered by the court when a party
expressly agrees to the other partys
claim or acknowledges the validity of the
claim against him.
Judgment upon the merits It is one that
is rendered after consideration of the
evidence submitted by the parties during
the trial of the case.
Clarificatory judgment It is rendered to
clarify an ambiguous judgment or one
difficult to comply with.
7.
8.
9.
Judgment nunc pro tunc (Now for then)

A judgment intended to enter into the
record the acts which had already been
done, but which do not appear in the
records. Its only function is to record
some act of the court which was done at
a former time, but which was not then
recorded, in order to make the record
speak the truth, without any changes in
substance or any material respect.
Judgment sin perjuicio Judgment
without a statement of the facts in
support of its conclusion to be later
supplemented by the final judgment. This
is not allowed.
Judgment by default (Sec. 3, Rule 9)
Rendered by the court following a default
order or after it received, ex parte,
plaintiffs evidence.
Judgment on the pleadings (Rule 34)
Proper when an answer fails to tender an
issue because of a general or insufficient
denial of the material allegations of the
complaint or when the answer admits the
material allegations of the adverse party's
pleading.
Summary judgment (Rule 35) One
granted by the court for the prompt

73

disposition of civil actions wherein it
clearly appears that there exists no
genuine issue or controversy as to any
material fact.
Several judgment (Sec. 4, Rule 36) It is
one rendered by a court against one or
more defendants and not against all of
them, leaving the action to proceed
against the others.
Separate judgment (Sec. 5, Rule 36) It is
one rendered disposing of a claim among
several others presented in a case, after a
determination of the issues material to a
particular claim and all counterclaims
arising out of the transaction or
occurrence which is the subject matter of
said claim.
Special judgment (Sec. 11, Rule 39) One
which can only be complied with by the
judgment obligor because of his personal
qualifications or circumstances or one
that requires the performance of an act
other than:
a. Payment of money; and
b. Sale of real and personal property.
Judgment for specific acts (Sec. 10, Rule
39) Applicable in cases of:
1. Conveyance, delivery of deeds, or
other specific acts, vesting title;
2. Sale of real or personal property;
3. Delivery or restitution of real
property;
4. Removal of improvements on
property subject of execution; or
5. Delivery of personal property.
Judgment on demurrer to evidence (Rule
33) A judgment rendered by the court
dismissing a case upon motion of the
defendant, made after plaintiff has rested
his case, on the ground that upon the
facts presented by the plaintiff and the
law on the matter, plaintiff has not shown
any right to relief.
Conditional judgment It is one the
effectivity of which depends upon the
occurrence or non-occurrence of an
event.
Final judgment One which disposes of
the whole subject matter or terminates
the particular proceedings or action,
leaving nothing to be done by the court
but to enforce by execution what has
been determined.
A:
Q: What are those which are not considered as

decisions?
A:
10.
11.
12.
13.
14.
15.
16.
74
1.
2.
3.
Resolutions of Supreme Court denying the

petitions to review decisions of Court of
Appeals.
Minute Resolutions if issued by SC
denying or dismissing a petition or a
motion for reconsideration for lack of
merit, it is understood that the challenged
decision or order is deemed sustained.
Interlocutory Orders those that
determine incidental matters that do not
touch on the merits of the case or put an
end to the proceedings. E.g. Order
denying a motion to dismiss, granting an
extension of time or authorizing an
amendment.
Note: Appeal is not proper to question an
interlocutory order. The proper remedy to
question an interlocutory order is a petition
for certiorari under Rule 65.
1. JUDGMENT WITHOUT TRIAL

Q: What is a judgment without trial?
A: The theory of summary judgment is that
although an answer may on its face appear to
tender issuesrequiring trialyet if it is
demonstrated by affidavits, depositions, or
admissions that those issues are not genuine, but
sham or fictitious, the Court is justified in
dispensing with the trial and rendering summary
judgment for plaintiff. The court is expected to act
chiefly on the basis of the affidavits, depositions,
admissions submitted by the movants, and those of
the other party in opposition thereto. The hearing
contemplated (with 10-day notice) is for the
purpose of determining whether the issues are
genuine or not, not to receive evidence on the
issues set up in the pleadings. A hearing is not thus
de riguer. The matter may be resolved, and usually
is, on the basis of affidavits, depositions,
admissions. Under the circumstances of the case, a
hearing would serve no purpose, and clearly
unnecessary. The summary judgment here was
justified, considering the absence of opposing
affidavits to contradict the affidavits (Galicia vs.
Polo, L-49668, Nov. 14, 1989; Carcon Devt. Corp. vs.
CA, GR 88218, Dec. 17, 1989).
2. CONTENTS OF A JUDGMENT
Q: What are the two parts of a judgment?
1.
2.
Ratio decidendi the body of judgment

Fallo The dispositive portion of the
judgment. It is also the part of judgment
that is subject to execution because this is
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
the judgment of the court itself, i.e. if the
petition is granted or denied and the
relief granted.
Note: in the above cases, the material facts alleged in

the complaint shall always be proved (Sec. 1, Rule 34)
4. SUMMARY JUDGMENTS
Q: How should a conflict between the parts of a
decision be resolved?
GR: If there is a conflict between the ratio decidendi
and the fallo, the fallo should prevail. Reason: the
fallo is the final order while the ratio decidendi is
merely a statement ordering nothing.
XPN: If there is a mere mistake in the fallo and the
the ratio decidendi is so clear that it states a
conclusion, the latter should prevail. (Poland
Industrial Limited vs. National Development
Company, 467 SCRA 500)
Q: What are the requisites of a valid judgment?
A:
1.
2.
3.
4.
5.
6.
Authority of the court to hear and

determine the case.
Jurisdiction over the parties and the
subject matter
The parties must have been given an
opportunity to adduce evidence.
The evidence must have been considered
by the tribunal in deciding the case.
The judgment must be in writing,
personally and directly prepared by the
judge.
The judgment must state clearly the facts
and the law on which it is based, signed
by the judge and filed with the clerk of
court.
NOTE: Only for decisions and final orders on
merits and does not apply to those resolved
through incidental matters.
3. JUDGMENT ON THE PLEADINGS
Q: What is a summary judgment?

A: A summary judgment or accelerated judgment is
a procedural technique to promptly dispose of
cases where the facts appear undisputed and
certain from the pleadings, depositions, admissions
and affidavits on record, of for weeding out sham
claims or defenses at an early stage of the litigation
to avoid the expense and loss of time involved in a
trial. Its object is to separate what is formal or
pretended denial or averment from what is genuine
and substantial so that only the latter may subject a
party-in-interest to the burden of trial. Moreover,
said summary judgment must be premised on the
absence of any other triable genuine issues of fact.
Otherwise, the movants cannot be allowed to
obtain immediate relief. A genuine issue is such
issue of fact which requires presentation of
evidence as distinguished from a sham, fictitious,
contrived or false claim (Monterey Foods Corp. vs.
Eserjose, GR 153126, Sept. 11, 2003).
Q: What are
judgments?
the
requisites
of
summary
A:
1.
2.
There must be no genuine issue as to any

material fact, except for the amount of
damages; and
The party presenting the motion for
summary judgment must be entitled to a
judgment as a matter of law.
a. FOR THE CLAIMANT
Q: When is a claimant allowed to file for summary

judgment?
Q: When is there a judgment based on pleadings?
Note: Judgment must be on motion of the claimant. It

cannot be rendered by the court motu proprio.
A: A party seeking to recover upon a claim,

counterclaim, or cross-claim or to obtain a
declaratory relief may, at any time after the
pleading in answer thereto has been served, move
with supporting affidavits, depositions or
admissions for a summary judgment in his favor
upon all or any part thereof (Sec. 1, Rule 35).
Q: What are cases where judgment on the

pleadings will not apply?
b. FOR THE DEFENDANT
A: Where an answer fails to tender an issue, or

otherwise admits the material allegations of the
adverse partys pleading, the court may, on motion
of that party, direct judgment on such pleading.
A:
1.
2.
3.
Actions for the declaration of nullity of a

marriage
Actions for annulment of marriage
Actions for legal separation
Q: When is a defendant allowed to file for

summary judgment?
A: A party against whom a claim, counterclaim, or
cross-claim is asserted or a declaratory relief is
sought may, at any time, move with supporting

75

affidavits, depositions or admissions for a summary
judgment in his favor as to all or any part thereof
(Sec. 2, Rule 35).
d. AFFIDAVITS AND ATTACHMENTS

Q: What are the rules on affidavits and
attachments on summary judgments?
c. WHEN THE CASE NOT FULLY ADJUDICATED

A:
Q: What happens when a case is not fully
adjudicated?
A: If on motion, judgment is not rendered upon the
whole case of for all the reliefs sought and a trial is
necessary, the court at the hearing of the motion,
by examining the pleadings and the evidence
before it and by interrogating counsel shall
ascertain what material facts exist without
substantial controversy and what are actually and
in good faith controverted. It shall thereupon make
an order specifying the facts that appear without
substantial controversy, including the extent to
which the amount of damages or other relief is not
in controversy, and directing such further
proceedings in the action as are just. The facts so
specified shall be deemed established, and the trial
shall be conducted on the controverted facts
accordingly (Sec. 4, Rule 35).
1.
2.
Supporting and opposing affidavits shall

be made on personal knowledge, shall set
forth such facts as would be admissible in
evidence, and shall show affirmatively
that the affiant is competent to testify to
the matters stated therein. Certified true
copies of all papers or parts thereof
referred to in the affidavit shall be
attached thereto or served therewith
(Sec. 5, Rule 35).
Should it appear to its satisfaction at any
time that any of the affidavits presented
pursuant to the Rules are presented in
bad faith, or solely for the purpose of
delay, the court shall forthwith order the
offending party or counsel to pay to the
other party the amount of the reasonable
expenses which the filing of the affidavits
caused him to incur, including attorneys
fees. It may, after hearing, further
adjudge the offending party or counsel
guilty of contempt (Sec. 6, Rule 35).
5. JUDGMENT ON THE PLEADINGS VERSUS SUMMARY JUDGMENTS
Answer
Notice
Termination
Who can file
Basis of the
judgment
Judgment on the pleadings

Answer does not tender an issue
Movants must give a 3-day notice of hearing

Entire case may be terminated
Only the plaintiff or the defendants as far as
the counterclaim, cross-claim or third-party
complaint is concerned can file the same
Based only on the pleadings alone, hence,
only on the complaint and the answer
6. RENDITION OF JUDGMENTS AND FINAL ORDERS

Q: What is a rendition of judgment?
A: Rendition of judgment is the filing of the same
with the clerk of court. It is not the pronouncement
of the judgment in open court that constitutes the
rendition. Even if the judgment has already been
put in writing and signed, it is still subject to
amendment if it has not yet been filed with the
clerk of court and before its filing does not yet
constitute the real judgment of the court (Ago vs.
76
Summary judgments
There is an issue tendered in the answer, but it is
not genuine or real issue as may be shown by
affidavits and depositions that there is no real issue
and that the party is entitled to judgment as a
matter of right
Opposing party is given 10 days notice
May only be partial
Either the plaintiff or the defendant may file it
Based on the pleadings, affidavits, depositions, and

admissions
CA, 6 SCRA 530). It is not the writing of the

judgment or its signing which constitutes rendition
of the judgment (Castro vs. Malazo, 99 SCRA 164).
Q: How should a judgment be prepared?
A: A judgment or final order determining the merits
of the case shall be in writing personally and
directly prepared by the judge, stating clearly and
distinctly the facts and the law on which it is based,
signed by him, and filed with the clerk of the court
(Sec. 1, Rule 36).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
its periods, not more than six (6) months from the
entry of the judgment or final order (Sec. 3, Rule 38).
7. ENTRY OF JUDGMENT AND FINAL ORDER

Q: What is an entry of judgment?
P. POST JUDGMENT REMEDIES
A: The entry of judgment refers to the physical act

performed by the clerk of court in entering the
dispositive portion of the judgment in the book of
entries of judgment and after the same has become
final and executory. The record shall contain the
dispositive portion of the judgment or final order
and shall be signed by the clerk of court, with a
certificate by said clerk that the judgment has
already become final and executory (Sec. 2, Rule
36).
Q: What happens if no appeal was filed on time?
A: If no appeal or motion for new trial or
reconsideration is filed within the time provided in
the Rules, the judgment or final order shall
forthwith be entered by the clerk in the book of
entries of judgments. (Sec. 2, Rule 36)
Note: There are some proceedings the filing of which is
reckoned from the date of the entry of judgment: (a)
the execution of a judgment by motion is within five
(5) years from the entry of the judgment (Sec. 6, Rule
39); (b) the filing of a petition for relief has, as one of
Q: What are the available remedies to the

aggrieved party after rendition of judgment?
A: The remedies against a judgment may refer to
those remedies before a judgment becomes final
and executory and those remedies after the same
becomes executory.
1. Before a judgment becomes final and executory,
the aggrieved party may avail of the following
remedies:
a. Motion for Reconsideration;
b. Motion for New Trial; and
c. Appeal
2. After the judgment becomes executory, the
losing party may avail of the following:
a. Petition for relief from judgment;
b. Action to annul judgment;
c. Certiorari; and
d. Collateral attack of a judgment.
1. MOTION FOR NEW TRIAL OR RECONSIDERATION

a. GROUNDS
b. WHEN TO FILE
Q: Distinguish motion for new trial from motion for reconsideration.
A:
MOTION FOR NEW TRIAL
MOTION FOR RECONSIDERATION
Grounds
1. Extrinsic fraud, accident, mistake or excusable negligence (FAME)
which ordinary prudence could not have guarded against and by
reason of which the rights of the aggrieved party was impaired; or
2. Newly discovered evidence, which could not with reasonable
diligence, have been discovered and produced at the trial, and which
if presented, would probably alter the result (Sec. 1, Rule 37).
Requisites
1. Must be in writing;
2. Affidavit of the existence of FAME and newly discovered evidence;
Note: Whenever a remedy is allowed on the ground of FAME, an affidavit
of merit is obligatory.
3. Affidavit of merit setting forth the particular facts claimed to
constitute a meritorious cause of action;
4. In case of newly discovered evidence:
a.
Affidavit of new witnesses; and
b. Duly authenticated documents to be introduced.
1.
2.
3.
1.
2.
The damages awarded are

excessive;
The evidence is insufficient to satisfy
the decision or final order; or
The decisionor final order is contrary
to law (Sec. 1, Rule 37).
Must point out specifically the
conclusion of judgment;
Express reference to testimonial or
documentary evidence or to
provisions of law.
Both shall be made in writing stating the ground / grounds therefor, a written notice of which shall be served by the
movant on the adverse party. (Sec. 2, Rule 37) Such written notice is that prescribed in Sec4 and 5 of Rule 15.
The requirements are mandatory and non-compliance therewith is fatal and renders the motion pro forma or a mere
scrap of paper and will not toll the reglementary period for appeal.
When to file
77

A motion for new trial or reconsideration should be filed within the period for taking an appeal. Hence, it must be filed
before the finality of the judgment (Sec. 1, Rule 37). No motion for extension of time to file a motion for reconsideration
shall be allowed. In DistilleriaLimtuaco vs. CA, 143 SCRA 92, it was said that the period for filing a motion for new trial is
within the period for taking an appeal.
Note:
The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from.
Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days
from notice of the judgment or final order (Sec. 3, Rule 41). A record on appeal shall be required only in special
proceedings and other cases of multiple or separate appeals (Sec. 3, Rule 40).
Second motion may be allowed so long as based on grounds not existing
or available at the time the first motion was made. (Sec. 5, Rule 37)
If granted, the original judgment or final order shall be vacated, and the
action shall stand for trial de novo. The recorded evidence taken upon the
former trial, insofar as the same is material and competent to establish
the issues, shall be used at the new trial without retaking the same (Sec. 6,
Rule 37).
Single motion rule (applicable only on a

judgment or final order but not to
interlocutory order) (Sec. 5, Rule 37)
No new trial or hearing will take place and
the judgment will be based on the
pleadings submitted by the parties. If
granted, the court may amend such
judgment or final order accordingly (Sec.
3, Rule 37).
Note: The amended judgment is in the

nature of a new judgment which
supersedes the original judgment.
If denied, the remedy is to appeal from the judgment or final order (Sec. 9, Rule 37).
Available even on appeal but only on the ground of newly discovered

evidence.
Available against judgments or final

orders of both the trial and appellate
courts.
Both must be resolved within 30 days from the time it is submitted for resolution
Both are prohibited motions under Summary Procedure
COMMON PROVISIONS
Q: What is the period to file motion for new trial
or reconsideration?
A: Within the period for taking an appeal or within
15 days after notice to the appellant of the
judgment or final order appealed from. Where a
record on appeal is required the appellant shall file
a notice of appeal and a record on appeal within 30
days after notice of the judgment or final order
(Section 1, Rule 40).
Note: No extension of time to file a Motion for New
Trial or Motion for Reconsideration shall be allowed.
Q: When is a record of appeal required?

A: A record of appeal is required only in:
1. Special proceedings;
2. Other cases of multiple or separate
appeal (Section 3, Rule 40)
Q: What is the effect of filing a MNT/ MR on the
period to appeal?
A: The filing of a timely motion interrupts the
period to appeal (Section 2, Rule 40; Section 3, Rule
41).
78
c. DENIAL OF THE MOTION; EFFECT

Q: What is the effect if the MNT or MR is denied?
A: The movant has a fresh period of 15 days from
the receipt or notice of the order denying or
dismissing the motion within which to file a notice
of appeal (fresh period rule). (Neypes v. CA, G.R.
No.141524, Sept. 14, 2005)
d. GRANT OF THE MOTION; EFFECT
Q: What is the effect of a grant of the motion?
A: If a new trial be granted in accordance with the
provisions of the rules, the original judgment shall
be vacated or set aside, and the action shall stand
for trial de novo; but the recorded evidence taken
upon the former trial so far as the same is material
and competent to establish the issues, shall be used
at the new trial without retaking the same (Sec. 6).
The filing of the motion for new trial or
reconsideration interrupts the period to
appeal (Sec. 2, Rule 40; Sec. 3, Rule 41).
If the court grants the motion (e.g., it finds that
excessive damages have been awarded or that the
judgment or final order is contrary to the evidence
or law), it may amend such judgment or final order
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
accordingly (Sec. 3). The amended judgment is in
the nature of a new judgment which supersedes
the original judgment. It is not a mere supplemental
decision which does not supplant the original but
only serves to add something to it (Esquivel vs.
Alegre, 172 SCRA 315). If the court finds that a
motion affects the issues of the case as to only a
part, or less than all of the matters in controversy,
or only one, or less that all of the parties to it, the
order may grant a reconsideration as to such issues
if severable without interfering with the judgment
or final order upon the rest (Sec. 7).
e. REMEDY WHEN MOTION IS DENIED, FRESH 15DAY PERIOD RULE
Q: What is the remedy if the motion is denied?
A: The remedy is to appeal from the judgment or
final order itself subject of the motion for
reconsideration or new trial (Sec. 9, Rule 37, Rules
of Court). The movant has a fresh period of fifteen
days from receipt or notice of the order denying or
dismissing the motion for reconsideration within
which to file a notice of appeal. It is no longer
assailable by certiorari. (Sec.9, Rule 37, A.M. No. 077-12-SC).
Q: When does the fresh period rule apply?
A: It applies to:
1. Rule 40 MTC to RTC
2. Rule 41 Appeals from RTC
3. Rule 42 Petition for Review from RTC to CA
4. Rule 43 Appeals from quasi-judicial agencies
to CA
5. Rule 45 Appeals by certiorari to the SC
Q: What happens if the motion is filed without the

required affidavits?
A: Non- compliance with the requirements of the
Rules would reduce the motion to a mere proforma motion.
Note: Under Sec. 2,Rule 37 a proforma motion shall
not toll the reglementary period of appeal.
Q: What is a proforma motion?

A: A proforma motion is one which does not
satisfy the requirements of the rules and one which
will be treated as a motion intended to delay the
proceedings (Marikina Development Corporation v.
Flojo, 251 SCRA 87).
MOTION FOR NEW TRIAL
Q: What is a Motion for New Trial?
A: It is a motion for the rehearing of a case already
decided by the court but before the judgment
rendered thereon becomes final and executory,
whereby errors of law or irregularities are
expunged from the record or new evidence is
introduced, or both steps are taken.
Q: What are the requisites of newly discovered
evidence as a ground for New Trial?
A:
1.
2.
Note: The fresh period rule does not refer to the

period within which to appeal from the order denying
the motion for reconsideration, but to the period
within which to appeal from the judgment itself
because an order denying a motion for reconsideration
is not appealable.
3.
Q: When should the motion be resolved?

A: The motion shall be resolved within 30 days from
the time it is submitted for resolution (Section 4,
Rule 37).
The evidence was discovered after trial;

Such evidence could not have been
discovered and produced at the trial with
reasonable diligence; and
Such evidence is material, not merely
cumulative, corrobative or impeaching,
and is of such weight that if admitted
would probably change the judgment
(BERRY RULE) (CIR v. A. Soriano
Corporation, GR No. 113703 January 31,
1997).
Q: Distinguish Newly Discovered Evidence from

Forgotten Evidence.
A:
Q: Is a MNT/ MR a prerequisite for taking an

appeal or petition for review?
A: A final MNT/ MR is not a prerequisite to an
appeal, a petition for review or petition for review
on certiorari. And since the purpose is to expedite
the final disposition of cases, a strict or prospective
application of said ruling is in order (Habaluyas v.
Japson, GR No. 70895, May 30, 1986).
NEWLY DISCOVERED
EVIDENCE
Evidence
was
not
available to a party
during a trial, and was
discovered
only
thereafter.
FORGOTTEN EVIDENCE
Evidence was already
available to a party and
was
not
presented
through inadvertence or
negligence
of
the
counsel; it is not a ground
for new trial.

79
Q: Distinguish extrinsic fraud from intrinsic fraud.

A:
EXTRINSIC FRAUD
Connotes any fraudulent
scheme executed by the
prevailing party outside
trial against the losing
party who because of
such fraud was prevented
from presenting his side
of the case
INTRINSIC FRAUD
Refers to the acts of party
during trial which does
not
affect
the
presentation of the case
Q: Distinguish Motion for New Trial from Motion

for Reopening of the Trial.
A: The purpose of a motion for reconsideration is

precisely to request the court or the quasi- judicial
body to take a second look at its earlier judgment
and correct any errors it may have committed
therein (Reyes v. Pearlbank Securities, GR No.
171435, July 30, 2008).
Q: Is a second motion for reconsideration allowed?
A: A second motion for reconsideration is not
allowed. The prohibition on a second motion
applies only when the motion is directed against a
judgment or a final order. The rule does not apply
to a motion for reconsideration of an interlocutory
order.
Q: When may there be partial reconsideration?
A:
MOTION FOR
NEW TRIAL
A motion must be
filed
Proper only after
promulgation of
judgment
Based
upon
specific grounds
mentioned in Sec.
37 in civil cases
and Sec. 121 in
criminal cases
MOTION FOR REOPENING OF

TRIAL
The judge may act motu propio
May properly be presented only
after either or both parties have
formally offered and closed
their evidence before judgment
Controlled by no other than the
paramount interest of justice,
resting entirely on the sound
discretion of the court, the
exercise of such shall not be
reviewable on appeal UNLESS a
clear abuse thereof is shown.
A: If the court finds that a motion affects the issues

of the case as to only a part, or less than all of the
matters in controversy, or only one, or less than all,
of the parties to it, the order may grant a
reconsideration as to such issues if severable
without interfering with the judgment or final order
upon the rest (Sec. 7, Rule 37).
Q: In a case filed by Pedro against Juan, the latter
received the adverse decision of the RTC on March
1, 2008. On March 14, 2008, Juan filed a motion
for reconsideration. Juan received the decision of
the trial court dismissing his motion on April 1,
2008. When should Juan file his notice of appeal to
the CA?
Q: Is a second motion for new trial allowed?

A: Yes. A second motion for new trial is authorized
by the Rules. A motion for new trial shall include all
grounds then available. Those not so included are
deemed waived. However, when a ground for a
new trial was not existing or available when the first
motion was made, a second motion for new trial
may be filed within the period allowed but
excluding the time during which the first motion
had been (Section 5, Rule 37)
MOTION FOR RECONSIDERATION
Q: What is a motion for reconsideration?
A: A motion for reconsideration under Rule 37 is
one that is directed against a judgment or a final
order. It is not the motion for reconsideration of an
interlocutory order which for instance precedes a
petition for certiorari.
Q: What is the purpose of a MR?
80
A: Juan has 15 days from the receipt of the decision

of the trial court denying his motion for
reconsideration to file his notice of appeal. To
standardize the appeal periods provided in the
Rules of Court and to afford litigants fair
opportunity to appeal their cases, the SC deemed it
practical to allow a fresh period of 15 days within
which to file the notice of appeal in the RTC,
counted from receipt of the order dismissing a
motion for a new trial or motion for
reconsideration.
Sec. 3, Rule 41 of the 1997 Rules of Civil Procedure
states that the appeal shall be taken within 15 days
from notice of judgment or final order appealed
from. The order denying the motion for new trial or
reconsideration is the final order (Fresh period
rule) (Neypes v. CA, G.R. No. 141524, Sept. 14,
2005).
2. APPEALS IN GENERAL
Q: Is the right to appeal part of due process?
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
A: The right to appeal is not part of due process but
a mere statutory privilege that has to be exercised
only in the manner and in accordance with the
provisions of law (Stolt- Nielsen v. NLRC, GR No.
147623, December 13, 2005).
Q: What are the basic guidelines as regards
appeal?
A:
a.
No trial de novo shall be made. The
appellate courts must decide the case on the
basis of the record, except when the
proceedings were not duly recorded as when
there was absence of a qualified stenographer
(Sec. 22[d], BO 129; Rule 21[d], Interim Rules);
b. There can be no new parties;
c. There can be no change of theory (Naval vs.
CA, 483 SCRA 102);
d. There can be no new matters (Ondap vs.
Aubga, 88 SCRA 610);
e. There can be amendments of pleadings to
conform to the evidence submitted before the
trial court (Dayao vs. Shell, 97 SCRA 407);
f. The liability of solidarity defendant who did
not appeal is not affected by appeal of solidarity
debtor (Mun. of Orion vs. Concha, 50 Phil. 679);
g. Appeal by guarantor does not inure to the
principal (Luzon Metal vs. Manila Underwriter,
29 SCRA 184);
h. In ejectment cases, the RTC cannot award
to the appellant on his counterclaim more than
the amount of damages beyond the jurisdiction
of the MTC (Agustin vs. Bataclan, 135 SCRA
342);
i.
The appellate court cannot dismiss the
appealed case for failure to prosecute because
the case must be decided on the basis of the
record (Rule 21, Interim Rules).
Q: Distinguish Notice of Appeal from Record on
Appeal?
A:
NOTICE OF APPEAL
Deemed perfected as to
him upon the filing of the
notice of appeal.
If decision is made by the
courts of 1st level, notice of
appeal need not state the
court to which the appeal is
being taken (Sec.3, Rule 40)
because there is only one
court to which it shall be
made RTC
If decision is made by the
RTC in its original

jurisdiction, notice of
appeal to the RTC must
disclose where appeal is to
be taken. (Sec 5, rule 41)
Period available is 15 days
before the judgment
becomes final and executor
appeal beyond that

period)
If required, the
appellant has 30 days
to file and serve both
notice and record on
appeal.
Should indicate:
If required, copies of
1.Parties to the appeal;
both the notice of
2.Judgment or final order or
appeal and the record
part thereof appealed from; on appeal shall be filed
3.Material dates showing the In court and served to
timeliness of the appeal
the adverse party.
Q: What are those cases which allow multiple

appeals?
A: The civil cases which admit of multiple appeals
are:
1. Actions for recovery of property with
accounting;
2. Actions for partition of property with
accounting;
3. Special civil actions of eminent domain
and foreclosure of mortgage; and
4. Special proceedings.
Q: What is the rationale for allowing multiple
appeals?
A: To enable the rest of the case to proceed in the
event that a separate and distinct issue is resolved
by the court and held to be final (Roman Catholic
Archbishop of Manila v. CA, GR No. 111324, July 5,
1996).
a. JUDGMENT AND FINAL ORDERS SUBJECT TO
APPEAL
Q: What kind of judgments and final orders are
subject to appeal?
RECORD ON APPEAL
Required only in
Special Proceedings
and other cases of
multiple or separate
appeals.
A: An appeal may be taken only from judgments or

final orders that completely dispose of the case
(Sec.1, Rule 41). An interlocutory order is not
appealable until after the rendition of the judgment
on the merits.
Deemed perfected as
to him with respect to
the subject matter
thereof upon its
approval. (30 days is
the period for filing,
only the court may
approve the record on
b. MATTERS NOT APPEALABLE

Q: What cases are not appealable?
A:
1. Order denying a petition for relief or any
similar motion seeking relief from judgment;
2. Interlocutory order;

81

3. Order disallowing or dismissing an appeal;
4. Order denying a motion to set aside a
judgment by consent, confession or
compromise on the ground of fraud,
mistake or duress, or any other ground
vitiating consent;
5. Order of execution;
6. Judgment or final order for or against one or
more of several parties or in separate
claims, counterclaims, cross-claims and
third-party complaints, while the main case
is pending, unless the court allows an appeal
therefrom; and
7. Order dismissing an action without
prejudice (Sec. 1 as amended by A.M. No.
07-7-12-SC).
Q: Can the court consider errors not raised in the

assignment of errors?
A:
GR: No. The court as a rule shall not consider errors
not raised in the assignment of errors
XPN: Sec. 5, Rule 51 precludes its absolute
application. The court may consider an error not
raised on appeal provided the same falls within any
of the following categories:
a.
b.
c.
Note: The order denying a motion for new trial or

reconsideration has been deleted from the list by
virtue of A.M. No. 07-7-12-SC.
Q: Can a question that was never raised in the

courts below be allowed to be raised for the first
time on appeal?
A:
GR: No. A question that was never raised in the
courts below cannot be allowed to be raised for the
first time on appeal without offending basic rules of
fair play, justice and due process (Bank of
Commerce vs. Serrano, 451 SCRA 484). For an
appellate court to consider a legal question, it
should have been raised in the court below (PNOC
vs. CA, 457 SCRA 32). It would be unfair to the
adverse party who would have no opportunity to
present evidence in contra to the new theory,
which it could have done had it been aware of it at
the time of the hearing before the trial court. it is
true that this rule admits of exceptions as in cases
of lack of jurisdiction, where the lower court
committed plain error, where there are
jurisprudential developments affecting the issues,
or when the issues raised present a matter of public
policy (Baluyot vs. Poblete, GR 144435, Feb. 6,
2007).
XPNs: The rule admits of exceptions as in cases of:
a. Lack of jurisdiction;
b. Where the lower court committed plain
error;
c. Where
there
are
jurisprudential
developments affecting the issues, or
when the issues raised present a matter
of public policy (Baluyot v. Poblete GR No.
144435, February 6, 2007).
d.
e.
It is an error that affects the jurisdiction

over the subject matter;
It is an error that affects the validity of
the judgment appealed from;
It is an error which affects the
proceedings;
It is an error closely related to or
dependent on an assigned error and
properly argued in the brief; or
It is a plain and clerical error.
Q: What is the basis of the courts power to rule

on such issues not raised on appeal?
A: The court is imbued with sufficient authority and
discretion to review matters, not otherwise
assigned as errors on appeal, as it finds that the
consideration is necessary in arriving at a complete
and just resolution of the case or to serve the
interest of justice or to avoid dispensing piecemeal
justice (Asian Terminals, Inc. v.NLRC, 541 SCRA 105,
2007).
c. REMEDY AGAINST JUDGMENTS AND ORDERS
WHICH ARE NOT APPEALABLE
Q: What is the remedy in cases where appeal is
not allowed?
A:
GR: In those instances where the judgment or final
order is not appealable, the aggrieved party may
file the appropriate special civil action under Rule
65 (Sec. 1 Rule 41).
XPN: An order denying a motion for new trial or a
motion for reconsideration may no longer be
assailed by way of Rule 65 as per A.M. No. 07- 712, the proper ground is to appeal from the
judgment (Sec. 9, Rule 37).
d. MODES OF APPEAL
Q: What are the different modes of appeal?
A:
1.
82
Ordinary appeal (Rule 40 and 41)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
a.
b.
Notice on appeal
Record on appeal
2.
3.
Petition for review (Rule 42, 43)

Appeal by certiorari(Rule 45)
Q: Distinguish the following modes of appeal.

A:
MODE OF APPEAL
Ordinary Appeal (MTC to RTC)

Rule 40
a. Notice of Appeal
b.
Record of Appeal
Ordinary Appeal (RTC to CA)

Original Jurisdiction Rule 41
a. Notice of Appeal
b.
Record of Appeal
Petition for Review (RTC to CA)

Appellate Jurisdiction Rule 42
Petition for Review (QuasiJudicial Bodies to CA)

Rule 43
PERIOD OF APPEAL
Within 15 days after notice

to the appellant of the
judgment or final order
appealed (Sec 2. Rule 40).
PERIOD OF APPEAL IF A MR
OR MNT WAS FILED
(Neypes Doctrine)
ISSUES THAT MAY BE

RAISED
Within 15 days from receipt

of the order denying motion
for reconsideration or new
trial.
Questions of fact or
mixed questions of fact
and law.

of the judgment or final
order (Sec 2. Rule 40).

to the appellant of the
appealed (Sec 3. Rule 41).

trial.

order (Sec 3. Rule 41).
Note: appeal in habeas
corpus cases shall be taken
within 48 hours from notice
order appealed from (AM
No. 01-1-03-SC, June 19,
2001)
Within 15 days from notice
of the decision to be
reviewed or from the denial
of a MR or new trial (Sec. 1
Rule 42).
Note: The court may grant
an additional period of 15
days provided the extension
is sought:
a.
Upon proper motion;
and
b. Upon payment of the
full amount of the
docket and other lawful
fees
before
the
expiration
of
the
reglementary period.
of judgment or final order or
of last publication (Sec. 4,
Rule 43).
Questions of fact or of
law or mixed question of
fact and law that has
been raised in the court
below and is within the
issues framed by the
parties (Sec. 15, Rule 44).
Questions of fact, of law,

or mixed questions of fact
and law
trial.

trial.
Questions of fact, of law,

or mixed questions of fact
and law (Sec. 3, Rule 43).
Note: The appeal shall not
stay the award, judgment,
final order unless the CA
directs otherwise (Sec. 12,
Rule 43).

83

Petition
for
Review
on
Certiorari
Rule 45
1. RTC to SC (Sec 2c,
Rule 41);
2. CA to SC (Sec. 1,
Rule 45);
3. Sandiganbayan to SC
(Sec. 1, Rule 45);
4. CTA en banc to SC
(Sec. 11, RA 9282;
Sec. 1 Rule 45 as
amended by AM No.
07- 7-12- SC);
5. Appeals from a
judgment or final
order in a petition
for a writ of amparo
to the SC (AM No.
07-9-12- SC); and
6. Appeals from a
judgment or final
order in a petition
for a writ of Habeas
Data (AM No. 08-116-SC).
Within 15 days from notice

of the judgment, final order
or resolution appealed from,
or within 15 days from notice
of the denial of the
petitioners motion for new
trial
or
motion
for
reconsideration filed in due
time (Sec. 2, Rule 45).
Note: The SC may for
justifiable reason grant an
extension of 30 days only
within which to file the
petition provided:
a.
There is a motion for
extension of time duly
filed and served;
b. There is full payment of
the docket and other
lawful fees and the
deposit for costs; and
c.
The motion is filed and
served
and
the
payment
is
made
before the expiration of
the
reglementary
period (Sec. 2, Rule 45).

trial
Only questions of law

(Sec. 1, Rule 45).
Note: This fresh period rule applies Rule 40,41,42,43, and 45. Accordingly, this rule was adopted to standardize the
appeal periods provided in the Rules to afford fair opportunity to review the case and, in the process, minimize errors of
judgment. Obviously, the new 15 day period may be availed of only if either motion is filed; otherwise, the decision
becomes final and executory after the lapse of the original appeal period provided in Rule 41. (Neypes vs. CA, GR
141524, Sept. 14, 2005)
BEFORE FINALITY OF JUDGMENT

(1) ORDINARY APPEAL
(2) PETITION FOR REVIEW
(3) PETITION FOR REVIEW ON CERTIORARI
Q: Distinguish an ordinary appeal from a petition for review.
A:
Ordinary Appeal
A matter of right
All the records are elevated from the court of origin
Notice or record on appeal is filed with the court of origin
As to duration of residual powers: Until the records are
transmitted to the appellate court.
Petition for Review

Discretionary
No records are elevated unless the court decrees it
Filed with the CA
As to duration of residual powers: Until the CA gives due
course to the petition.
Q: Distinguish Rule 45, Rule 64 and Rule 65.

A:
Review of Judgments, Final
Orders or Resolutions (Rule 64)
Petition for Certiorari(Rule 65)
Petition is based only on questions of

law.
Petition is based on questions of

law.
Petition is based on questions of

jurisdiction, that is, whether the
lower court acted without
jurisdiction or in excess of jurisdiction
or with grave abuse of discretion.
It is a mode of appeal.
It is a mode of appeal but the

petition used is Rule 65.
It is a mode of review.
Appeal by Certiorari(Rule 45)
84
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Involves the review of the judgment

final orders or resolutions of the CA,
Sandiganbayan, CTA, RTC or other
courts on the merits
Filed within 15 days from notice of
judgment, final order or resolution
appealed from.
Stays the judgment or order appealed
from
Involves review of judgments,

final orders or resolutions of
COMELEC and COA.
Note: CSC judgments, final orders or
resolutions are governed by Rule 43
Filed within 30 days from notice of

judgment, final order or
resolution sought to be reviewed.
Does not stay the execution
unless SC shall direct otherwise
upon such terms as it may deem
just.
May be directed against an

interlocutory order of a court or
where there is no appeal or any
other plain, speedy or adequate
remedy.
Filed not later than 60 days from
notice of judgment, order or
resolution appealed from.
Unless a writ of preliminary
injunction or temporary restraining
order is issued, it does not stay the
challenged proceeding
The judge, court, quasi-judicial
agency, tribunal, corporation, board,
officer or person shall be public
respondents who are impleaded in
the action.
Motion for reconsideration or for
new trial is required.
If a motion for reconsideration or
new trial is filed, another 60 days
shall be given to the petitioner (A.M.
No. 02-03-SC)
The appellant and the appellee are

the original parties to the action, and
the lower court or quasi-judicial
agency is not impleaded.
The COMELEC and COA shall be

public respondents who are
impleaded in the action.
Motion for reconsideration is not

required.
The filing of MNT or MR, if

allowed under the procedural
rules of the Commission, shall
interrupt period fixed.
The court is in the exercise of its

appellate jurisdiction and power of
review.
The court is in the exercise of its

appellate jurisdiction and power
of review.
Court exercises original jurisdiction.
Filed with the SC.
Filed with the SC.
Filed with the RTC, CA,

Sandiganbayan or COMELEC. (1991,
1998, 1999 Bar Question)
e. ISSUES TO BE RAISED ON APPEAL
Procedure: A Restatement for the Bar, pp.

445-446, 2009 ed.)
Q: What issues are to be considered in appeal?

f. PERIOD OF APPEAL
A:
GR: Only errors assigned in the brief may be
considered on appeal
XPNs:
1. Grounds not assigned as errors but affecting
the jurisdiction over the subject matter
2. Matters not assigned as errors on appeal but
are evidently plain or clerical errors within
the contemplation of law;
consideration of which is necessary in arriving
at a just decision and complete resolution of
the case or to serve the interest of justice or
to avoid dispensing piecemeal justice;
4. Matters not specifically assigned as errors on
appeal but raised in the trial court and are
matters of record having some bearing on the
issue submitted which the parties failed to
raise or which the lower court ignored;
closely related to an error assigned; and
upon which the determination of a question
properly assigned is dependent. (Riano, Civil
Q: What is the period to appeal?

A: Within 15 days from notice of the judgment or
final order appealed from.
Where record on appeal is required: Within 30 days
from notice of the judgment or final order. In
habeas corpus cases, 48 hours from notice of
judgment or final order appealed from.
Note: Where both parties are appellants, they may file
a joint record on appeal (Sec. 8, Rule 41). The period
shall be interrupted by a timely Motion for New Trial
or Motion for Reconsideration.
Q: May a period of appeal be extended?

A: Yes, under the sound discretion of the court. The
mere filing of the motion for extension of time to
perfect the appeal does not suspend the running of
the reglementary period.
Q: What is the effect if the extension of the period
to appeal is granted/denied?

85

A: If granted, and the notice thereof is served
AFTER the expiration of the period to appeal, the
extension must be computed from the date of
notice.
Note: If no action is taken on the motion for extension,
or if it is denied after the lapse of the period to appeal,
THE RIGHT TO APPEAL IS LOST.
Q: What is the effect of judgment on those who

failed to appeal?
A:
1. As to affirmative relief an appellee who
has himself not appealed may not obtain
from the appellate court any affirmative
relief other than what was granted in the
decision of the lower court
g. PERFECTION OF APPEAL
2. As to reversal of judgment
GR: Binding only on the parties in the appealed
case and does not affect or inure to the benefit
of those who did not join or were not made
parties to the appeal
Q: When is an appeal perfected? What is its

effect?
A:
1. Appeal by notice of appeal perfected as
to the party upon filing of the notice of
appeal in due time and upon payment of
the appellate court docket fee.
Effect: the court loses jurisdiction
over the case upon the perfection of
the appeal filed in due time and the
expiration of the time to appeal of
the other parties
2.
Appeal by record on appeal perfected as

to the party with respect to the subject
matter thereof upon the approval of the
record on appeal filed in due time and
upon payment of the appellate court
docket fee.
XPN: Where the rights of the parties appealing

are so interwoven and dependent on each other
as to be inseparable, in which case a reversal as
to one operates as a reversal to all.
Note: Even if the appeal was filed out of time, the
court still has jurisdiction to admit and give due course
to it, PROVIDED there are justifiable reasons (e.g. in
the exercise of the equity jurisdiction of the courts,
where a stringent application of the rule would not
serve the demands of substantial justice). This is
tantamount to a valid order granting the extension if
any is prayed for.
Q: Is the perfection of an appeal jurisdictional?

A:
GR: Yes. Perfection of appeal within the
reglementary period is jurisdictional.
Effect: The court loses jurisdiction

only over the subject matter upon
the approval of the records on
appeal filed in due time and the
expiration of the time to appeal of
the other parties
3.
Appeal by petition for review upon the

timely filing of a petition for review and
the payment of the corresponding docket
and other lawful fees, the appeal is
deemed perfected as to the petitioner.
Effect: RTC loses jurisdiction over the
case upon the perfection of the
appeal and the expiration of the time
to appeal of the other parties.
Note: In either case, prior to the transmittal of the

original record or record on appeal to the appellate
court, the trial court may, motuproprio or on motion,
dismiss the appeal for having been taken out of time
or for non-payment of the docket and other lawful
fees on time. The court may also exercise its residual
powers.
XPN: When there has been extrinsic fraud,

accident, mistake, or excusable negligence
(FAME), resort to Petition for relief from
judgment under rule 38. (Habaluyas v. Japson,
142 SCRA 208 (1986)).
Q: What is the effect of a perfected appeal?
A:
GR: Judgment is not vacated by appeal, but is
merely stayed and may be affirmed, modified
or reversed or findings of facts or conclusions
of law may be adopted by reference.
XPN: Not applicable to civil cases under the
Rules on Summary Procedure which provides
that the decision of the RTC in civil cases
governed by said Rule including forcible entry
and unlawful detainer cases, shall be
immediately executory without prejudice to a
further appeal that maybe taken therefrom.
Q: Would nonpayment of docket fees result to
the dismissal of the case?
86
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
A:
GR: Payment of docket fee is jurisdictional. Without
such payment, the appellate court does not acquire
jurisdiction over the subject matter of the action
and the decision sought to be appealed from
becomes final and executory (Regalado v. Go, GR
No. 167988, February 6, 2007).
Q: Where to appeal from a judgment or final order

of a Municipal Court?
However: the rule must be qualified:

1. The failure to pay appellate court docket
fee within the reglementary period allows
only
discretionary
dismissal,
not
automatic dismissal, of the appeal;
2. Such power should be used in the
exercise of the courts sound discretion
(Republic v. Spouses Luriz, GR No. 158992,
January 26, 2007).
Q: When should the appeal be taken?
A: An appeal from a judgment or final order of

Municipal Trial Court may be taken to the Regional
Trial Court exercising jurisdiction over the area to
which the former pertains (Section 1, Rule 40).
A:
1. An appeal may be taken within 15 days after
notice to the appellant of the judgment or
final order appeals from (Section 2, Rule 40);
2. Where a record of appeal is required, the
appellant shall file a notice of appeal and a
record on appeal within 30 days after notice
of the judgment or final order (Section 2, Rule
40).
h. APPEAL FROM JUDGMENTS OR FINAL ORDERS

OF THE MTC
Q: Discuss the procedure of appeal from decisions
of the MTC to the RTC.
A:
Appeal decision of MTC by filing notice of appeal
within 15 days or 30 days where a record on
appeal is required from receipt of judgment.
Q: How should the RTC decide an appeal from an

order of a lower court dismissing a case without
trial or those rendered without jurisdiction?
A:
1.
Copies of the notice, and record on appeal when

required, shall be served on the adverse party.
The MTC clerk transmits record to the RTC

within 15 days from perfection of appeal.
Parties are given notice that the records

have been received by the RTC.
1.
2.
Within 15 days from notice of appeal

appellant submits memorandum to the RTC.
Within 15 days from receipt of appellants
memorandum
appellee
files
his
memorandum.
Note: Failure of the appellant to file a memorandum

shall be a ground for the dismissal of the appeal.
2.
If the lower court dismissed the case without

trial on the merits, RTC may:
a) Affirm- in such case, it is a declaration of
the merits of the dismissal;
b) Affirm and the ground of dismissal is lack
of jurisdiction over the subject matter
the action of the RTC is a mere
affirmation of the dismissal. The RTC shall
try the case on the merits as if the case
was originally filed with it;
c) Reverse it shall remand the case for
further proceedings.
If the case was tried on the merits by the lower
court without jurisdiction over the subject
matter, the RTC shall not dismiss the case if it
has original jurisdiction, but shall decide the
case, and shall admit amended pleadings and
additional evidence (Sec. 8, Rule 40).
Q: What if the case is dismissed for lack of

jurisdiction?
A: The order of dismissal is one without prejudice
and the plaintiff may simply refile the complaint in
the court with the proper jurisdiction because:
GR: The order dismissing an action without
prejudice is not appealable (Section 1g, Rule 41)
XPN: Section 8, Rule 40 allows an appeal from an
order of the MTC dismissing a case for lack of
jurisdiction.

87

i. APPEAL FROM JUDGMENTS OR FINAL ORDERS
OF THE RTC
Within 30 days after perfection of the appeals, the

RTC clerk shall verify the records and transmit the
same to the appellate court and shall furnish the
parties with copies of his letter of transmittal of
the records to the appellate court
Q: What are the three modes of appeal from the

decisions of the RTC?
A:
1.
2.
3.
Ordinary appeal or appeal by writ of error

where judgment was rendered in a civil
or criminal action by the RTC in the
exercise of original jurisdiction (governed
by Rule 41, taken to the CA on questions
of fact or mixed questions of fact and
law);
Petition for review where judgment was
rendered by the RTC in the exercise of
appellate jurisdiction (governed by Rule
42, brought to the CA on questions of
fact, of law, or mixed questions of fact
and law); or
Petition for review on certiorari to the
SC (governed by Rule 45, elevated to the
SC only on questions of law).
Note: Rule 41 refers to appeals from RTC exercising

original jurisdiction. An appeal on pure questions of
law cannot be taken to the CA and such improper
appeal will be dismissed pursuant to Sec. 2, Rule 50
(Regalado, Remedial Law Compendium, Vol. 1, p. 526,
2007 ed.).
ORDINARY APPEAL OR APPEAL BY WRIT OF ERROR

FROM THE RTC TO THE CA
Q: What may be the subject of an appeal under
Rule 41?
A: An appeal may be taken from a judgment or final
order that completely disposes of the case or of a
particular matter therein when declared by the
Rules to be appealable (Section 1, Rule 41).
Q: When does Rule 41 on Ordinary Appeal apply?
A: Rule 41 applies to appeals from the judgment or
final orders of the RTC in the exercise of its original
jurisdiction (Section 2a, Rule 41).
Q: Discuss the procedure of appeal from decisions
RTC to the CAunder Rule 41?
A:
Appeal the decision of the RTC by filing notice of
appeal within 15 days or 30 days where a record
on appeal is required from receipt of judgment
.
Upon receipt of the original records and documents
and upon payment of docket fees, the clerk of court
of the CA shall docket the case and notify the parties
Within 45 days from the receipt of the notice of the

clerk of court, the appellant shall file a brief with
proof of service to the appellant
Within 45 days from the receipt of the appellants

brief, the appellee shall file his own brief with proof
of service to the appellant
Within 20 days from the receipt, the appellant may

file a reply brief
Note: In petitions for certiorari, prohibition,
mandamus, quo warranto and habeas corpus cases,
briefs are not filed. Instead the parties shall file their
memoranda within a non- extendible period of 30 days
from the receipt of notice that all the evidences are
already attached to the record (Sec 10, Rule 44).
Q: What is the title of the case when appealed to

the CA under Rule 41?
A: In all cases appealed to the CA under Rule 41, the
title of the case shall remain as it was in the court of
origin but the party appealing the case shall be
referred to as the appellant and the adverse party
appellee (Sec 1. Rule 44).
Q: Distinguish a brief from a memorandum.
A:
Brief
Ordinary
appeals
Memorandum
Certiorari, prohibition, mandamus, quo
warranto and habeas corpus cases
Filed within
45 days
Filed within 30 days
Contents
specified by
rules
Shorter, briefer, only one issue

involved No subject index or
assignment of errors, just facts and law
applicable
Copies of the notice, and record on appeal when

required, shall be served on the adverse party.
88
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: What are the contents of appellants brief?
A: The appellants brief shall contain, in the order
herein indicated, the following:
1.
2.
3.
4.
5.
6.
7.
8.
A subject index of the matter in the brief

with a digest of the arguments and page
references, and a table of cases
alphabetically arranged, textbooks and
statutes cited with references to the
pages where they are cited;
An assignment of errors intended to be
urged, which errors shall be separately,
distinctly and concisely stated without
repetition and numbered consecutively;
Under the heading "Statement of the
Case," a clear and concise statement of
the nature of the action, a summary of
the proceedings, the appealed rulings and
orders of the court, the nature of the
judgment and any other matters
necessary to an understanding of the
nature of the controversy, with page
references to the record;
Under the heading "Statement of Facts,"
a clear and concise statement in a
narrative form of the facts admitted by
both parties and of those in controversy,
together with the substance of the proof
relating thereto in sufficient detail to
make it clearly intelligible, with page
references to the record;
A clear and concise statement of the
issues of fact or law to be submitted to
the court for its judgment;
Under the heading "Argument," the
appellants
arguments
on
each
assignment of error with page references
to the record. The authorities relied upon
shall be cited by the page of the report at
which the case begins and the page of the
report on which the citation is found;
Under
the
heading
"Relief,"
a
specification of the order or judgment
which the appellant seeks; and
In cases not brought up by record on
appeal, the appellants brief shall contain,
as an appendix, a copy of the judgment or
final order appealed from (Sec. 13, Rule
44).
Q: What are the contents of the appellees brief?

A: The appellees brief shall contain, in the order
herein indicated, the following:
1.
A subject index of the matter in the brief

with a digest of the arguments and page
references, and a table of cases
2.
3.
alphabetically arranged, textbooks and

statutes cited with references to the
pages where they are cited;
Under the heading "Statement of Facts,"
the appellee shall state that he accepts
the statement of facts in the appellants
brief, or under the heading "CounterStatement of Facts," he shall point out
such insufficiencies or inaccuracies as he
believes exist in the appellants statement
of facts with references to the pages of
the record in support thereof, but without
repetition of matters in the appellants
statement of facts; and
Under the heading "Argument," the
appellee shall set forth his arguments in
the case on each assignment of error with
page references to the record. The
authorities relied on shall be cited by the
page of the report at which the case
begins and the page of the report on
which the citation is found (Sec. 14).
Q: What is the purpose of an appellants /

appellees brief?
A: To present to the court in a concise form the
points and question in controversy, and by fair
argument on the facts and law of the case, to assist
the court in arriving at a just and proper conclusion/
decision (De Liano v. CA (2006)).
Q: What is meant by Residual Jurisdiction of the
court?
A: The term refers to the authority of the trial court
to issue orders for the protection and preservation
of the rights of the parties.
The concept of residual jurisdiction is available at a
stage in which the court is normally deemed to
have lost jurisdiction over the case or the subject
matter involved in the appeal. There is no residual
jurisdiction to speak of where no appeal or petition
has even been filed (Fernandez v. CA, 458 SCRA
454).
Q: What are the Residual Jurisdiction/Powers
exercised by the trial court?
A:
1.
2.
Issue orders for the protection and

preservation of the rights of the parties
which do not involve any matter litigated
by the appeal.
Approve compromise agreements by
parties after judgment has been
rendered, (there is no rule that forbids

89
3.
4.
5.
litigants to settle amicably even if there is

a judgment already)
Permit appeals of indigent litigants.
Order execution pending appeal in
accordance with sec. 2, rule 39.
Allow withdrawal of appeal.
4.
Note: Provided these are done prior to the

transmittal of the original record or the
record on appeal even if the appeals have
already been perfected or despite the
approval of the record on appeal (Section 9,
Rule 41).
5.
RULE 42: PETITION FOR REVIEW FROM THE RTC TO

THE CA
Q: When does Rule 42 apply?
A: Rule 42 applies to an appeal from the judgment
or final order of the RTC to the CA in cases decided
by the former in the exercise of its appellate
jurisdiction.
Q: The RTC affirmed the appealed decision of the
MTC. You are the counsel of the defeated party
and he tells you to appeal the RTC's decision.
1. What mode of appeal will you adopt?
2. Within what time and in what court
should you file your appeal?
Must be accompanied by clearly

legible duplicate originals or true
copies of the judgments or final
orders of both lower courts, certified
correct by the clerk of court of the
Regional Trial Court, the requisite
number of plain copies thereof and of
the pleadings and other material
portions of the record as would
support the allegations of the
petition.
There must be a certification against
forum shopping (Sec. 2, Rule 42).
Q: What is the effect of failure to comply with the

requirements?
A:The failure of the petitioner to comply with
any of the foregoing requirements regarding

the payment of the docket and other lawful
fees, the deposit for costs, proof of service of
the petition, and the contents of and the
documents which should accompany the
petition shall be sufficient ground for the
dismissal thereof (Sec. 3, Rule 45).
Q: Is a petition for review a matter of right?
The mode of appeal is by petition for

review under Rule 42 of the Rules of
Court.
The period of appeal is within 15 days
from notice of the decision subject of the
appeal or of the denial of a motion for
new trial or reconsideration filed in due
time to the CA. (1998 Bar Question)
A: It is not a matter of right but discretionary on the

CA. It may only be given due course if it shows on
its face that the lower court has committed an error
of fact and/or law that will warrant a reversal or
modification of the decision or judgment sought to
be reviewed or dismiss the petition if it finds that it
is patently without merit, or prosecuted manifestly
for delay, or the questions raised therein are too
unsubstantial to require consideration. (Sec. 42)
Q: What are the contents of the petition for

review?
Q: What are the contents of comment to the

petition?
A:
A:
A:
1.
2.
1.
2.
3.
90
State the full names of the parties to

the case, without impleading the
lower courts or judges thereof either
as petitioners or respondents;
Indicate the specific material dates
showing that it was filed on time;
Set forth concisely a statement of the
matters involved, the issues raised,
the specification of errors of fact or
law, or both, allegedly committed by
the Regional Trial Court, and the
reasons or arguments relied upon for
the allowance of the appeal;
1.
2.
3.
State whether or not he accepts the

statement of matters involved in the
petition;
Point out the insufficiencies or
inaccuracies in petitioners statement of
facts and issues; and
State the reasons why the petition should
be denied or dismissed. (Sec. 5, Rule 42)
Q: Is the doctrine of residual jurisdiction applicable

to Appeals under Rule 42?
A: Yes, provided that such residual jurisdiction/
power is exercised before the CA gives due course
to the petition (Section 8, Rule 42).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: What is the effect of an appeal to the judgment
or final order?
2.
A: The appeal, as a rule, shall stay the judgment or

final order; unless the CA, the law or the rules shall
provide otherwise.
3.
Note: Civil cases decided under the Rules on Summary

Procedure shall not be stayed (Section 8b, Rule 42).
Q: Give some instances where the CA may act as a

trial court.
A:
1.
2.
3.
4.
5.
6.
7.
8.
In annulment of judgment under Secs. 5

and 6, Rule 47. Should the CA find prima
facie merit in the petition, the same shall
be given due course and summons shall
be served on the respondent, after which
trial will follow, where the procedure in
ordinary civil cases shall be observed.
When a motion for new trial is granted by
the CA, the procedure in the new trial
shall be the same as that granted by a RTC
(Sec. 4, Rule 53).
A petition for habeas corpus shall be set
for hearing (Sec. 12, Rule 102).
In petition for writs of amparo and habeas
data, a hearing can be conducted.
Under Sec. 12, Rule 124 of the Rules of
Criminal Procedure, the CA has the power
to try cases and conduct hearings, receive
evidence and perform any and all acts
necessary to resolve factual issues which
fall within its original and appellate
jurisdiction.
The CA can grant a new trial based on the
ground of newly-discovered evidence
(Sec. 14, Rule 124).
The CA under Sec. 6, Rule 46, whenever
necessary to resolve factual issues, may
conduct hearing thereon or delegate the
reception of the evidence of such issues
to any of its members or to an
appropriate agency or office.
Human Security Act. (2008 Bar Question)
Q: What are the grounds for the Court of Appeals

to dismiss an appeal?
A: Under Sec.1 Rule 50, the CA, upon its own
motion or upon the motion of the appellee an
appeal may be dismissed on the following grounds:
1.
Failure of the record on appeal to show

on its face that the appeal was taken
within the period fixed by the Rules;
4.
5.
6.
7.
8.
9.
Failure to file the notice of appeal or the

record on appeal within the period
prescribed by the Rules;
Failure of the appellant to pay the docket
and other lawful fees as provided in
Section 5 Rule 40 and Sec. 4 of Rule 41;
Unauthorized alterations, omissions or
additions in the approved record on
appeal as provided in Sec.4 of Rule 44
Failure of the appellant to serve and file
the required number of copies of his brief
or memorandum within the time
provided by the Rules;
Absence of specific assignment of errors
in the appellants brief, or of page
references to the record as required in
Sec.13, paragraphs (a), (c), (d) and (f) of
Rule 44;
Failure of the appellant to take the
necessary steps for the correction or
completion of the record within the time
limited by the court in its order;
Failure of the appellant to appear at the
preliminary conference under Rule 48 or
to comply with orders, circulars, or
directives of the court without justifiable
cause; and
The fact that the order or judgment
appealed from is not appealable (En Banc
Resolution, February 17, 1998)
Note: The grounds are discretionary upon the

appellate court. The very wording of the rule uses the
word may instead of shall. This indicates that it is
only directory and not mandatory. Sound discretion
must be exercised in consonance with the tenets of
justice and fair play, keeping in mind the
circumstances obtaining in each case (Mercury Drug
Corporation vs. De Leon, G.R. No. 165622, October 17,
2008.)
RULE 45: APPEAL BY CERTIORARI TO THE SC

Q: Is the appeal under Rule 45 a matter of right?
A: An appeal or review under Rule 45 is not a
matter of right, but of sound judicial discretion with
the exception of cases where the penalty of death,
or reclusion perpetua where the an appeal is a
matter of right leaving the reviewing court without
any discretion (People v. Flores, GR No. 170565,
January 31, 2006).
Q: When does Appeal by Certiorari under Rule 45
apply?
A: Appeal by certiorari to the Supreme Court or
petition for review on certiorari applies in the
following cases:

91

1.
2.
3.
4.
5.
6.
Appeal from a judgment or final order of

the RTC in cases where only questions of
law are raised or are involved and the
case is one decided by the said court in
the exercise of its original jurisdiction
(Section 2c, Rule 41);
Appeal from the judgment, final order or
resolutions of the Court of Appeals where
the petition shall raise only questions of
law (Section 1, Rule 45);
Appeal from the judgment, final order or
resolutions of the Sandiganbayan where
the petition shall raise only questions of
law (Section 1, Rule 45);
Appeals from the decision or ruling of the
Court of Tax Appeals en banc (Section 11,
RA 9282; Section 1, Rule 45 as amended
by AM No, 07-7-12-SC);
Appeals from a judgment or final order in
a petition for writ of amparo to the
Supreme Court which may raise questions
of fact, questions of law or of both fact
and law (AM No. 08-1-16-SC, Rule on the
Writ of Amparo (Section19) October 24,
2007);
Appeal from judgment or final order in a
petition for the writ of Habeas Data. The
appeal may raise questions of fact or law
or both (AM No. 08-1-16-SC, Rule on the
Writ of Habeas Data (Section 19) February
2, 2008).
Q: When is there a question of law? How does it

differ from a question of fact?
A: There is a question of law when the doubt or
difference arises as to what the law is on a certain
set of facts.
A question of fact on the other hand is when the
doubt or difference arises as to the truth or
falsehood of the facts alleged.
but only from judgments and final orders of the

court enumerated in Sec. 1 thereof. Appeals from
judgments and final orders of quasi-judicial
agencies are now required to be brought to the CA
on a verified petition for review, under the
requirements and conditions in Rule 43 which was
precisely formulated and adopted to provide for a
uniform rule of appellate procedure for quasijudicial agencies. (Fabian v. Desierto, G.R. No.
129742, Sept. 16, 1998)
Q: Is the mode of appeal prescribed under Rule 45
applicable to criminal cases?
A: Yes. Except in criminal cases where the penalty
imposed is death, reclusion perpetua or life
imprisonment (Section 9, Rule 45).
Q: Can a case decided by the RTC in the exercise of
its appellate jurisdiction be appealed by way of a
petition for review on certiorari under Rule 45?
A: No, where a case is decided by the RTC in the
exercise of its appellate jurisdiction, regardless of
whether the appellant raises questions of fact, of
law or mixed questions of fact and law, the appeal
shall be brought to the CA by filing a petition for
review under Rule 42 (Quezon City v. ABS-CBN
Broadcasting Corporation, GR No. 166408 October
6, 2008).
Q: Discuss the procedure for filing an appeal by
certiorari.
A:
RTC, Sandiganbayan or RTC renders decision.
Aggrieved party files a petition for review on

certiorari within 15 days from notice of final
judgment or order of lower court or notice of denial
of motion for reconsideration or new trial.
Q: May a petition for review on certiorari include

prayer for the grant of provisional remedies?
A: The petition for review on certiorari may include
an application for a writ of preliminary injunction or
other provisional remedies. The petitioner may also
seek the same provisional remedies by verified
motion filed in the same action or proceeding at
any time during its pendency (Sec. 1, Rule 45 as
amended by A.M. No. 07-7-12-SC).
Q: Does Rule 45 include appeals from quasijudicial bodies?
A: No. Under the present Rule 45, appeals may be
brought through a petition for review on certiorari
92
Petitioner serves copies on adverse parties and the

lower court and pays the corresponding docket fees.
SC may either dismiss the petition, or require the

appellee to comment.
If given due course, parties may submit memoranda.
SC may affirm, reverse, or modify judgment of the

lower court.
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
With the SC (Section 5 (1)
Article
VIII,
1987
Constitution).
Within 20 days from the receipt, the appellant may

file a reply brief
Note: the petition shall raise only questions of law,

which must be distinctly set forth. Appeals to the SC
are made only by verified petitions for review on
certiorari,
Q: When may the SC, on its own initiative, deny

the petition for review?
A:
1.
2.
3.
XPN: appeals from judgements of the RTC in criminal

cases where the penalty imposed is life imprisonment
or reclusion perpetua (elevated by ordinary appeal), or
death penalty (subject to automatic review).
The appeal is without merit;

Prosecuted manifestly for delay; or
That the questions raised therein are too
unsubstantial to require consideration
(sec.5, Rule 45)
Q: Distinguish Certiorari under Rule 45 and

Certiorari under Rule 65.
j. APPEAL FROM JUDGMENT OR FINAL ORDERS OF

THE CA
A:
Q: May a reversal of judgment benefit a party who

did not join or was not made a party to the
appeal?
CERTIORARI (RULE 45)

Mode of appeal which
seeks to review final
judgments and orders
(Section 2, Rule 41)
Raises questions of law

It shall be filed within
15 days from notice of
appealed from
Does not require prior

motion
for
reconsideration
Stays the judgment
sought to be appealed
The parties are the

original parties with the
appealing party as the
petitioner
and
the
adverse
party
as
respondent
without
impleading the lower
court or its judge
(Section 4a, Rule 45).
Filed with the SC
(Section 1, Rule 45).
CERTIORARI (RULE 65)

Special civil action; an
original action (Rule 65). It
may be directed against an
interlocutory order or
matters where no appeal
may be taken from (Section
1, Rule 41)
Raises
questions
of
jurisdiction
It shall be filed not later
than 60 days from notice of
judgment,
order
or
resolution sought to be
assailed and in case a MR
or motion for new trial is
timely filed, whether such
motion is required or not,
the 60 day period shall be
counted from the notice of
denial of said motion
Requires as a general rule,
a prior MR
Does
not
stay
the
judgment or order subject
of the petition unless
enjoined or restrained.
The tribunal, board, officer
exercising judicial or quasijudicial
functions
is
impleaded as respondent
(Section 5 Rule 65).
Filed with the RTC (Section

21, BP 129);
With the CA (Section 9, BP
129);
A:
GR: The reversal of a judgment on appeal is
generally binding only on the parties in the
appealed case and does not affect or inure to
the benefit of those who did not join or were
not made parties to the appeal.
XPN: Where the rights of such parties are so
interwoven and dependent on each other as to
be inseparable due to community of interests.
Q: When may the SC review the findings of fact of
the CA?
A:
GR: CAs findings of fact are final and conclusive
and cannot be reviewed on appeal to the SC.
The SC shall not entertain questions of fact
because its jurisdiction is limited to reviewing
errors of law (Natividad v. MTRCB, GR No.
161422, December 13, 2007).
XPNs:
1. The conclusion of the CA is grounded
entirely on speculations, surmises
and conjectures;
2. The inference made is manifestly
mistaken, absurd or impossible;
3. There is grave abuse of discretion;
4. The judgment is based on
misapprehension of facts;
5. The findings of facts are conflicting;
6. The CA in making its findings went
beyond the issues of the case and
the same is contrary to the
admissions of both appellant and
appellee;

93

7.
The findings are contrary to those of

the trial court;
8. The findings of facts are conclusions
without citation of specific evidence
on which they are based;
9. The facts set forth in the petition as
well as in the petitioners main and
reply briefs are not disputed by the
respondents;
10. The findings of fact of the CA are
premised on the supposed absence
of evidence and contradicted by the
evidence on record; or
11. Those filed under Writs of amparo,
habeas data, or kalikasan.
k. APPEAL FROM JUDGMENTS OR FINAL ORDERS
OF THE CTA
Q: Where should the appeal from the decision of
the CTA en banc be taken?
A: A party adversely affected by a decision or ruling
of the CTA en banc may file with the SC a verified
petition for review on certiorari pursuant to Rule 45
(Sec. 12, R.A. 9282; A.M. No. 07-7-12-SC).
Q: Melissa filed with the BIR a complaint for
refund of taxes paid, but it was not acted upon.
So, she filed a similar complaint with the CTA
raffled to one of its divisions. Melissa's complaint
was dismissed. Thus, she filed with the CA a
petition for certiorari under Rule 65. Does the CA
have jurisdiction over Melissa's petition?
A: No. A decision of a division of the CTA is
appealable within 15 days to the CTA en banc. On
the other hand, a party adversely affected by a
decision or ruling of the CTA en banc may file with
the SC a verified petition for review on certiorari
pursuant to Rule 45 of the Rules of Court.
R.A. 9282 expanded the jurisdiction of the CTA and
elevated the same to the level of a collegiate court
equivalent to the rank of the CA. Hence, the CA no
longer has jurisdiction to review the decisions of
the CTA en banc. (2006 Bar Question)
l. REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF THE COA
m. REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF THE COMELEC
n. REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF THE CSC
Q: What is the remedy of a party aggrieved by the
decision of the COMELEC, COA and CSC?
A: A judgment, resolution or final order of the

COMELEC and the COA may be brought by the
aggrieved party to the SC on certiorari under Rule
65 by filing the petition within 30 days from notice
(Sec. 2, Rule 64).
On the other hand, judgments, final orders or
resolutions of the CSC may be taken to the CA
under Rule 43 of the Rules of Court (Sec. 1, 3 Rule
43).
o. REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF THE OMBUDSMAN
Q: Does the CA have jurisdiction to review the
decisions in criminal and administrative cases of
the Ombudsman?
A: It depends
1.
In administrative disciplinary cases, the

rulings of the Office of the Ombudsman
are appealable to the CA under Rule 43.
Note: The provision of Section 27 of RA 6770 (The

Ombudsman Act of 1987) insofar as it allowed a
direct appeal to the Supreme Court was declared
unconstitutional as it increased the appellate
jurisdiction of the SC without the advice and
concurrence of the Court (Fabian v. Deseirto, 356
SCRA 787).
2.
In criminal cases, the ruling of the

Ombudsman shall be elevated to the SC
by way of Rule 65. Where the findings of
the ombudsman on the existence of
probable cause in criminal cases is tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction, the
aggrieved party may file a petition for
certiorari with the SC under Rule 65
(Enemecio vs. Office of the Ombudsman,
419 SCRA 82)

decision of the Sandiganbayan?
A: Decisions and final orders of the Sandiganbayan
shall be appealable to the SC by way of certiorari
under Rule 45 raising pure questions of law (Section
1, Rule 45).
p. REVIEW OF FINAL JUDGMENTS OR FINAL
ORDERS OF THE NLRC
decision of the NLRC?
A: The remedy is to promptly move for the
reconsideration of the decision and if denied, to
94
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
timely file a special civil action of certiorari under
Rule 65 within 60 days from notice of the decision.
In observance of the doctrine of hierarchy of courts,
the petition for certiorari should be filed in the CA
(St. Martin Funeral Homes vs. NLRC, G.R. No.
130866, September 16, 1998). If filed with SC it shall
be dismissed instead of referring the action to the
CA (A.M. No. 99-2-01-SC).
Note: Those judgments and final orders or resolutions
of the Employees Compensation Commission should
be brought to the CA through a petition for review
under Rule 43.
q. REVIEW OF FINAL JUDGMENTS OR FINAL

ORDERS OF QUASI- JUDICIAL AGENCIES
Q: What is a quasi-judicial agency?
A: An organ of the government other than a court
and other than a legislature, which affects the
rights of private parties through either adjudication
or rule-making.
Q: What are the agencies included under Rule 43?
A:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
Civil Service Commission;

Central Board of Assessment Appeals;
Securities and Exchange Commission;
Office of the President;
Land Registration Authority;
Social Security Commission;
Civil Aeronautics Board;
Bureau of Patents, Trademarks and
Technology Transfer;
National Electrification Administration;
Energy Regulatory Board;
National
Telecommunications
Commission;
Department of Agrarian Reform under
R.A. 6657;
GSIS;
Employee Compensation Commission;
Agricultural Inventions Board;
Insurance Commission;
Philippine Atomic Energy Commission;
Board of Investments;
Construction
Industry
Arbitration
Commission; and
Voluntary Arbitrators authorized by law
(Sec. 1 Rule 43).
Note: The office of the Prosecutor is NOT a quasijudicial body and its action approving the filing of
information is not appealable to the CA under Rule 43.
Q: Where should the judgments and final orders of

quasi- judicial bodies be appealed?
A: Appeals from judgment and final orders of quasijudicial bodies/ agencies enumerated in Rule 43 are
now required to be brought to the CA under the
requirements and conditions set forth in Rule 43
(Carpio v. Sulu Resource Dev. Corp., 387 SCRA 128).
Q: What issues may be raised on appeal?
A: The appeal under Rule 43 may raise issues
involving questions of fact, of law or mixed
questions of fact and law (Section 3, Rule 43).
Q: What are the contents of comment to the
petition and when must it be filed?
A: The comment shall be filed within 10 days from
notice in 7 legible copies and accompanied by
clearly legible certified true copies of such material
portions of the record referred to therein together
with other supporting papers.
The comment shall:
1. Point out the insufficiencies or
inaccuracies in petitioners statement of
facts and issues; and
2. State the reasons why the petition should
be denied or dismissed. (Sec. 9 Rule 43)
Note: The appellate court may also require the filing of
a reply, but further submissions are governed by the
resolution in AM No. 99-2-04.
Q; What is the effect of the appeal on the award,

judgment, final order or resolution?
A: The appeal shall not stay the award, judgment,
final order or resolution sought to be reviewed
unless the CA shall direct otherwise upon such
terms as it may deem such (Section 12, Rule 43).
decision of a Quasi-judicial Agency?
A: Within 15 days from:
1. Notice of the award, judgment, final order
or resolution; or
2. Date of publication, if publication is
required by law for its effectivity; or
3. Denial of petitioners MNT or MR, the
aggrieved party must file a verified
petition for review under rule 43 in 7
legible copies with the CA. Furnish a copy
to the lower court and adverse party. The
appeal may involve questions of fact, of
law, or mixed questions of fact and law.
Q: Is extension of time to file petition for review
allowed?

95

A: Yes. Upon proper motion and the payment of the
full amount of the docket fee before the expiration
of the reglementary period, the CA may grant
additional period of 15 days only within which to
file a petition for review. No further extension shall
be granted except for the most compelling reason
and in no case to exceed 15 days. (Sec. 4, Rule 43)
Q: Distinguish appeal from RTC as appellate court
under Rule 42 and appeal from quasi-judicial
agencies under Rule 43.
A:
RTC as
Appellate
Court (Rule
42)
Appeal from Quasi-judicial agencies

(Rule 43)
Decision is
stayed by an
appeal.
GR:
Decision
is
immediately
executory. It is not stayed by an
appeal
XPN: CA shall direct otherwise upon
such terms as it may deem just
Factual
findings not
conclusive to
CA.
Factual findings are conclusive upon

CA if supported by substantial
evidence.
Q: Is Rule 43 applicable where the resolution was

issued by a quasi-judicial agency with grave abuse
of discretion?
A: No, Rule 43 is not applicable where the petition
contains an allegation that the challenged
resolution is patently illegal and was issued with
grave abuse of discretion and beyond respondents
jurisdiction. The appropriate remedy is Rule 65 on
certiorari.
Q: When is the withdrawal of an appeal a matter
of right?
A: As a matter of right, appellant may withdraw his
appeal at any time before the filing of the
appellees brief. Thereafter, it is in the discretion of
the court.
AFTER FINALITY OF JUDGMENT
3. RELIEF FROM JUDGMENTS, ORDERS AND OTHER
PROCEEDINGS
Q: What is the nature of petition for relief from
judgment? What is its purpose?
A: It is a legal remedy whereby a party seeks to set
aside a judgment rendered against him by a court
whenever he was unjustly deprived of a hearing or
was prevented from taking an appeal because of
fraud, accident, mistake or excusable neglect
96
(Quelnan v. VHF Philippines, G.R. No. 138500, Sept.

16, 2005).
Q: Purcon was hired as a seaman, he was
repatriated due to his ailment. After undergoing
some medications, he went back to work but was
not re-hired due to lack of vacany. Purcon then
filed a case for reimbursment of medical expenses
with the NLRC. The LA dismissed the complaint for
lack of merit. A memorandum of appeal with the
NLRC was filed but was dismissed. Petitioner filed
petition for review on certiorari under Rule 65
with the CA which was also denied, the MR was
likewise denied. This prompted the petitioner to
file with the SC a petition for review on certiorari
under Rule 45 which was denied. As a last
recourse, petitioner filed a petition for relief from
judgment. Whether or not the petitioner can avail
of a petition for relief from judgment after the
denial of the SC of his petition for review?
A: No. A petition for relief from judgment is not an
available remedy in the Court of Appeals and
Supreme Court. It should be filed with the same
court which rendered the decision. While Rule 38
uses the phrase "any court," it refers only to
Municipal/Metropolitan and Regional Trial Courts.
If a petition for relief from judgment is not among
the remedies available in the CA, with more reason
that this remedy cannot be availed of in the
Supreme Court.
This Court entertains only
questions of law. A petition for relief raises
questions of facts on fraud, accident, mistake, or
excusable negligence, which are beyond the
concerns of this Court (Purcon v. MRM Philippines
Inc., GR No. 182718, September 26, 2008).
Q:
Distinguish
motion
for
new
trial/reconsideration from petition for relief from
judgment.
A:
Motion for New Trial /
Reconsideration
Available before judgment
becomes final and
executory.
Petition for Relief from

Judgment
Available after judgment has
become final and executory.
Applies to judgments or
final orders only.
Applies to judgments, final

orders and other
proceedings:
e.g. land registration; special
proceedings; order of
execution.
Grounds for motion for

new trial:
1. Fraud,
accident,
mistake or excusable
negligence;
2. Newly
discovered
Grounds:
Fraud, accident, mistake or
excusable negligence.
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Note: The bond is conditioned that if the petition is
dismissed or the petitioner fails on the trial of the case
upon its merits, he will pay the adverse party all
damages and costs that may be awarded to him by
reason of issuance of such injunction or the other
proceedings following the petition.
evidence
Grounds for motion for
reconsideration: the
damages awarded are
excessive; that the
evidence is insufficient to
justify the decision or final
order, or that the decision
or final order is contrary to
law (Sec. 1).
Filed within the time to
appeal.
The order of denial is not
appealable. The remedy is
to appeal from judgment
or final order.
Legal remedy.
Motion need not be
verified.
a. GROUNDS FOR AVAILING OF THE REMEDY

Q: What are the grounds for petition for relief?
Filed within 60 days from
knowledge of the judgment
and within 6 months from
entry of judgment(1990 Bar
Question)
The order of denial is not
appealable; the remedy is
appropriate special civil
action under Rule 65
Equitable remedy.
A:
1.
A judgment or final order is entered,

or any other proceeding is thereafter
taken against a party in any court
through fraud, accident, mistake, or
excusable negligence (Sec. 1, Rule
38); or
2.
The petitioner has been prevented from

taking an appeal by fraud, accident,
mistake, or excusable negligence (Sec. 2,
Rule 38).
Petition must be verified.
Note: A party who has filed a timely motion for new

trial cannot file a petition for relief after the former is
denied. The two remedies are exclusive of one
another. The remedy is to appeal from the judgment
(Section 9,Rule 38; Francisco v. Puno, 108 SCRA 427).
Q: Where should the petition be filed?

A:
1.
Q: Who may file the petition for relief from

judgment?
A: A petition for relief from judgment together with
a motion for new trial and a motion for
reconsideration are remedies available only to
parties in the proceedings where the assailed
judgment is rendered. A person who was never a
party to the case, or even summoned to appear
therein, cannot avail of a petition for relief from
judgment. (Alaban v. CA, 470 SCRA 697)
Q: What are the duties of the court after an
answer to the petition has been filed
A: After the hearing and the court finds the
allegations therein not true, it shall dismiss the
petition.
If the allegations are true, the court shall set aside
the judgment, final order or proceeding complained
of. (Sec. 6, Rule 38)
Q: Is the remedy of preliminary injunction
available pending the resolution of the petition for
relief?
A: Yes. The court may grant such preliminary
injunction as may be necessary for the preservation
of the rights of the parties upon the filing of a bond
(Sec. 5, Rule 38).
2.
If the petition is filed because of the first

ground, the petition shall be filed in such
court and in the same case (not in
another or higher court). The petition
shall pray that the judgment, order or
proceeding be set aside (Sec. 1, Rule 38).
If the petition is filed under the second
ground, the petition shall likewise be filed
in such court and in the same case (not in
another or higher court) but the prayer
this time is that the appeal be given due
course (Sec. 2, Rule 38)
b. TIME TO FILE PETITION
Q: When should the petition for relief be filed?

A:
1.
2.
Within sixty (60) days after the petitioner

learns of the judgment, final order, or
other proceeding to be set aside; and
Not more than six (6) months from entry
of such judgment, order or other
proceeding (Sec. 3).
Note: These two periods must concur and are also not
extendible and never interrupted (Riano, Civil
ed.).
Q: May a defendant who has been declared in

default right away avail of a petition for relief from
the judgment subsequently rendered in the case?

97

A: No. The remedy of petition for relief from
judgment is available only when the judgment or
order in question is already final and executory, i.e.,
no longer appealable. As an extraordinary remedy,
it may be availed only in exceptional cases where
no other remedy is available. (2007 Bar Question)
c. CONTENTS OF THE PETITION
Q: What is the form and contents of the petition
for relief?
A:
1.
2.
3.
The petition for relief must be verified;

It must be supported by affidavit showing
the FAME relied upon; and
The affidavit of merit accompanying the
petition must also show facts constituting
the petitioners good or substantial cause
of action or defense.
Note: An affidavit of merit serves as the jurisdictional

basis for the court to entertain a petition for relief.
However, it is not a fatal defect to warrant a denial of
the petition, so long as the facts required to be set out
also appear in the verified petition.
Q: When shall the court issue an order to answer?

A:When the petition is sufficient in form and
substance to justify relief, the court in which it is
filed, shall issue an order requiring the adverse
parties to answer the same within fifteen (15) days
from the receipt thereof (Sec. 4, Rule 38).
remedies are no longer available through no fault of

the petitioner (Sec. 1, Rule 47).
Q: Who may avail this remedy?
A: A person need not be a party to the judgment
sought to be annulled. What is essential is that he
can prove his allegation that the judgment was
obtained by the use of fraud and collusion and he
would be adversely affected thereby (Islamic
Dawah Council v. CA, G.R. No. 80892, Sept. 29,
1989).
The extraordinary action to annul a final judgment
is restricted to the grounds provided by law to
prevent it from being used by a losing party to
make a mockery of a duly promulgated decision
that has long become final and executory.
A:
Judgments of RTC
Filed with the CA
Basis It has exclusive
original jurisdiction over
said action under Sec. 9
(2), BP 129
CA may dismiss the case
outright; it has the
discretion on whether or
not to entertain the
petition.
Judgments of MTC
Filed with the RTC
Basis RTC as a court of
general jurisdiction
under Sec. 19 (6), BP 129
RTC has no such
discretion. It is required
to consider it as an
ordinary civil action.
a. GROUNDS FOR ANNULMENT

4. ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS
Q: What are the grounds for the annulment of

judgment of the RTC?
Q: What is annulment of judgment?

A:
A: It is a remedy in law independent of the case
where the judgment sought to be annulled was
rendered. The purpose of such action is to have the
final and executor judgment set aside so that there
will be renewal of litigation.
1.
2.
Note: A co-equal court cannot annul the final

judgment of a similar court. CA has exclusive
jurisdiction over actions for annulment of judgments of
RTC. An action to annul a judgment or final order of
MTC shall be filed in the RTC having jurisdiction in the
former and it shall be treated as an ordinary civil
action. (Secs. 1 &10, Rule 47).
Q: When may it be availed of?

A: The remedy of annulment of judgment may be
availed of when the ordinary remedies of new trial,
appeal, petition for relief or other appropriate
98
3.
Extrinsic fraud or collateral fraud not a

valid ground if it was availed of, or could
have been availed of in a motion for new
trial or petition for relief.
Lack of jurisdiction over the subject
matter and over the person May be
barred by estoppels by laches, which is
that failure to do something which should
be done or to claim or enforce a right at a
proper time or a neglect to do something
which one should do or to seek or enforce
a right at a proper time. (1998 Bar
Question)
Denial of due process (Alaban v. CA, G.R.
No. 156021, Sept. 23, 2005).
Q: What is extrinsic fraud?
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
A: Fraud is regarded as extrinsic where it prevents a
party from having a trial or from preventing a party
from having a trial or from presenting his entire
case to the court, or where it operates upon
matters pertaining not to the judgment itself but to
the manner in which it is procured (Alaban v. CA,
GR no. 156021, September 23, 2005).
amount of the dishonored check. The trial court

ruled in favor of Jenny. Allied remitted to the
sheriff a managers check amounting to P800,000
drawn on Rheas account which was duly received
by Jenny. Rhea filed a petition in the CA seeking to
annul and set aside the trial courts decision on the
ground of extrinsic fraud. The appellate court
granted Rheas petition. Is the CA correct?
Q: What is meant by lack of jurisdiction?

A: Lack of jurisdiction as a ground for annulment of
judgment refers to either lack of jurisdiction over
the person of the defending party or over the
subject matter of the claim.
b. PERIOD TO FILE ACTION
Q: What is the period to file an action?
A:
1.
2.
If based on extrinsic fraud, the action

must be filed within four (4) years from its
discovery.
If based on lack of jurisdiction, the action
must be brought before the action is
barred by laches or estoppel (Sec. 2, Rule
47).
c. EFFECTS OF JUDGMENTS OF ANNULMENT

Q: What is the effect of a judgment of annulment?
A: If based on lack of jurisdiction- It shall have the
effect of setting aside the questioned judgment or
final order and rendering the same null and void
but the judgment of annulment is without prejudice
to the refilling of the original action in the proper
court (Sec.7, Rule 47)
Note: The prescriptive period for the refilling of the
action shall be deemed suspended from the filing of
such original action until the finality of the judgment of
annulment. But shall not however, be suspended
where the extrinsic fraud is attributable to the plaintiff
in the original action (Sec. 8, Rule 47).
If based on extrinsic fraud- The court, upon motion,

may order the trial court to try the case as if a
motion for new trial was granted (Sec. 9, Rule 47).
Q: Rhea took out a loan of P1 Million from Jenny.
To secure the loan, Rhea issued Jenny an Allied
check in the amount of P750,000 which, however,
was dishonored due to a material alteration. Rhea
then remitted P600,000 to Jenny as partial
payment of the loan with the balance payable at a
later date. Prior to the due date for the payment
of the balance, Jenny filed an action for a sum of
money and damages against Allied for the full
A: Yes. Annulment of judgment is a remedy in law

independent of the case where the judgment
sought to be annulled is promulgated. It can be
filed by one who was not a party to the case in
which the assailed judgment was rendered. Here,
Rhea may avail of the remedy of annulment of
judgment under Rule 47. The ordinary remedies of
new trial, appeal and petition for relief were not
available to her for the simple reason that she was
not made a party to the suit against Allied
(Villanueva v. Nite, G.R. No. 148211, July 25, 2006).
5. COLLATERAL ATTACK OF JUDGMENTS
Q: What is a collateral attack on judgment?
A: It is made in another action to obtain a different
relief; an attack on the judgment is made as an
incident in said action. This is proper only when the
judgment, on its face is null and void, as where it is
patent that the court which rendered such
judgment has no jurisdiction (Co vs. Court of
Appeals, 196 SCRA 705).
Q. EXECUTION, SATISFACTION AND EFFECT OF
JUDGMENTS
Q: What is execution?
A: It is a remedy provided by law for the
enforcement or satisfaction of a final judgment.
1. DIFFERENCE BETWEEN FINALITY OF JUDGMENT
FOR PURPOSES OF APPEAL; FOR PURPOSES OF
EXECUTION
Q: What is meant by final judgment?
A:
1.
The term final when used to describe a

judgment may be used in two senses. In
the first, it refers to a judgment that
disposes of a case in a manner that leaves
nothing more to be done by the court in
respect thereto. In this sense, a final
judgment is distinguished from an
interlocutory order which does not finally
terminate or dispose of the case (Rudecon
Management Corp. vs. Singson, 454 SCRA
612).

99

2.
In another sense, the word final may

refer to a judgment that is no longer
appealable and is already capable of
being executed because the period for
appeal has elapsed without a party having
perfected an appeal or if there has been
appeal, it has already been resolved by a
highest possible tribunal (PCGG vs.
Sandiganbayan, 455 SCRA 526). In this
sense, the judgment is commonly
referred to as one that is final and
executory.
1.
Note: Once a judgment becomes final and

executory, the prevailing party can have it
executed as a matter of right, and the
issuance of a writ of execution becomes the
ministerial duty of the court. Once a
decision becomes final and executory, it is
the ministerial duty of the presiding judge to
issue a writ of execution except in certain
cases, as when subsequent events would
render execution of judgment unjust
(Mangahas vs. Paredes, GR 157866, Feb. 14,
2007).
Q: Distinguish final judgments for purposes of

appeal from final judgments for purposes of
execution.
2.
A:
Final Judgments for
purposes of appeal
Final Judgments for

purposes of execution
Dispose of, adjudicate, or

determine the right of the
parties.
Becomes final and

executory by operation
of law.
After lapse of period to
appeal and no appeal
was perfected, no
further action can be
had.
Execution of judgment a
matter of right.
Still subject to appeal
Execution of judgment not

a matter of right.
2. WHEN EXECUTION SHALL ISSUE

a. AS A MATTER OF RIGHT
Q: When shall execution be issued?
A: Execution is a matter of right upon the expiration
of the period to appeal and no appeal was
perfected from a judgment or order that disposes
of the action or proceeding (Sec. 1, Rule 39)
3.
4.
A:
GR: Execution of judgment is a matter of right
on the part of the winning party. The court
cannot refuse execution.
XPN:
1. When the judgment has already been
executed by the voluntary compliance
thereof by the parties (Cunanan v. CA,
G.R. No. L-25511, Sept. 28, 1968);
Note: This is a situation where there is a
satisfaction of the judgment without need
for its execution by the court.
2.
3.
4.
100
When the judgment has been novated by

the parties (Dormitorio v. Fernandez, G.R.
No. L-25897, Aug. 21, 1976);
Note: The parties, despite the existence of a
judgment, are at liberty to novate a
judgment by entering into a compromise. A
compromise is a contract recognized by
substantive law (Art. 2028, NCC).
Q: When is an execution a matter of right?

A: Execution will issue as a matter of right when:
Judgment debtor has renounced or

waived his right to appeal;
The period for appeal has lapsed without
an appeal having been filed;
Having been filed, the appeal has been
resolved and the records of the case have
been returned to the court of origin
(Florendo v. Paramount Insurance Corp,
now MAA General Insurance Inc., GR No.
167976, January 20, 2010).
Q: May the court which rendered the judgment

refuse to issue writ of execution?
Q: How is an execution issued?

A: Execution shall issue upon motion. Therefore,
there is a need to file a motion for the issuance of a
writ of execution. Even in judgments which are
immediately executory, there must be a motion to
that effect and a hearing called for that purpose.
Also, under SC circular no. 24-94, a motion for the
issuance of a writ of execution must contain a
notice to the adverse party (Lou vs. Siapno, 335
SCRA 181 and Pallada vs. RTC of Kalibo, Aklan, Br.1,
304 SCRA 440)
The judgment has become final and

executory(Section 1, Rule 39);
When a petition for relief is filed and a

preliminary injunction is granted in
accordance with Sec. 5, Rule 38;
When the judgment sought to be
executed is conditional (Co Unjieng v.
HijosMabalacat Sugar Co., G.R. No. L-
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
5.
6.
7.
32644, Oct. 4, 1930) or is incomplete (Del

Rosario v. Villegas, G.R. No. L-25726, Nov.
22, 1926);
When facts and circumstances transpire
which would render execution inequitable
or unjust (Bacharach Corp. v. CA, G.R. No.
128349, Sept. 25, 1998);
When execution is sought more than 5
years from its entry without the judgment
having been revived;
When execution is sought against
property exempt from execution under
Sec. 13, Rule 39; or When the refusal to
execute the judgment.
1.
2.
3.
4.
Q: Where should you file an application for

discretionary execution?
A:
1.
b. AS A MATTER OF DISCRETION
Q: When is execution discretionary?
A:
1.
2.
3.
4.
5.
Execution pending appeal; and

While trial court has jurisdiction over the
case and is in possession of either the
original record or record on appeal;
When trial court has lost jurisdiction but
has not transmitted records of the case to
the appellate court; and
When trial court has lost jurisdiction and
has transmitted records (motion for
execution pending appeal with appellate
court).
Execution of several, separate or partial
judgment(Florendo
v.
Paramount
Insurance Corp, now MAA General
Insurance Inc., GR No. 167976, January
20, 2010)..
Note: As such exception, the courts discretion in

allowing it must be strictly construed and firmly
grounded on the existence of good reasons.
Good reasons, has been held, to consist of
compelling circumstances that justify immediate
execution lest the judgment becomes illusory.
Circumstances must be superior, outweighing the
injury or damages that might result should the
losing party secure a reversal of the judgment.
Lesser reasons would make of execution pending
appeal, instead of an instrument of solicitude and
justice, a tool of oppression and inequity
(Florendov.
ParamountInsurance
Corp.
(nowrenamed MAA General Insurance Inc.), G.R.
No. 167976, Jan. 20, 2010).
Q: What are the requisites for discretionary

execution?
A:
There must be a motion filed by the

prevailing party with notice to the
adverse party;
There must be a hearing of the motion for
discretionary execution;
There must be good reasons to justify the
discretionary execution; and
The good reasons must be stated in a
special order (Sec. 2, Rule 39)
a.
b.
2.
The motion for discretionary execution

shall be filed with the trial court:
While it has jurisdiction over the case and
While it is in possession of either the
original record or the record on appeal; or
After the trial court has lost jurisdiction,
the motion for execution pending appeal
may be filed in the appellate court
(Bangkok Republic Company Limited vs.
Lee, G.R. No. 159806, January 20, 2006).
Q: What is the remedy where the judgment

subject to discretionary execution is reversed or
annulled?
A: The trial court may, on motion, issue such orders
of restitution or reparation of damages as equity
and justice may warrant under the circumstances
(Sec. 5, Rule 39).
Q: In a complaint filed by Granger for rescission
and damages, the RTC ruled against JP Latex,
defendant. On Aug. 5, 2006, Granger moved for
the execution pending appeal of the decision.
Upon receipt of the decision, JP Latex filed a
motion for reconsideration (MR). The RTC granted
the execution pending appeal without acting on
the motion for reconsideration. Is the order of the
trial court correct?
A: No. Discretionary execution is allowed only when
the period to appeal has commenced but before
the trial court loses jurisdiction over the case. The
period to appeal where a motion for
reconsideration has been filed commences only
upon the receipt of the order disposing of the MR.
The pendency of a MR, therefore, prevents the
running of the period to appeal.
The MR filed by JP Latex had not been acted upon
by the RTC before it ruled on the motion for
execution pending appeal. The pendency of the
MR has prevented the period to appeal from even
commencing. The period within which a party may

101

move for an execution pending appeal of the RTCs
decision has not yet started. Thus, where there is
pending MR, an order of execution pending appeal
is improper and premature. (JP Latex Technology,
Inc. v. Ballons Granger Balloons, Inc., et. al., G.R.
No. 177121, Mar. 16, 2009)
A: It may be stayed upon approval by the proper

court of a sufficient supersedeas bond filed by the
party against whom execution is directed,
conditioned upon the performance of the judgment
or order allowed to be executed in case it shall be
finally sustained in whole or in part (Sec. 3 Rule 39).
Q: How may a discretionary execution be stayed?

3. HOW JUDGMENT IS EXECUTED
Q: How can a judgment be executed?
A:
Judgment is executed by motion within 5 years

from date of its entry
Execution is a matter of
right after expiration of
period to appeal and no
appeal is perfected.
Discretionary execution
upon good reasons
stated in a special order
after due hearing.
If the winning party does not

move for execution within 5
years but before 10 years from
the date of entry of judgment,
the same can only be revived by
means of new action / petition.
Sheriff executes writ of execution
Losing party is made to indemnify thru:

1. Payment with interest;
2. Levy and sale of personal property;
3. Levy and sale of real property;
4. Delivery of personal and/or real property.
Note: 5 and 10 year periods not applicable to judgment for support and special proceedings.
a. EXECUTION BY MOTION OR BY INDEPENDENT

ACTION
Q: What are the modes of execution of judgment?
A:
a.
b.
Execution by motion-if the enforcement

of the judgment is sought within 5 years
from the date of its entry; and
Execution by independent action -if the
five year period has elapsed and before it
is barred by statute of limitations (Sec. 6,
Rule 39)
Q: When is there a need to file an independent

action for execution?
A: There is a need for the prevailing party to file an
independent action for the revival of the judgment
before the action is barred by statute of limitations
when a writ of execution is issued by motion of the
102
prevailing party after 5 years from the date of entry

of judgment, such motion is considered null and
void (Tag Fibers, Inc. vs. NLRC, 344 SCRA 29; Terry
vs. People, 314 SCRA 669)
Q: Can execution be effected by motion after five
years?
A:
GR:No, execution of a judgment can no longer be
effected after 5 years. The remedy would be to file
an independent action for the revival of the
judgment.
XPNs: The court in certain instances allowed
execution of the judgment by mere motion despite
the lapse of the 5 year period. In instances where
the delay in the execution of the judgment were
through causes attributable to the judgment debtor
or when the delay is incurred for his benefit.
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: What is revival of judgment?
A: This means that from the date of the finality of
judgment, no motion was filed for the execution of
said judgment, thus the need for its enforcement by
action.
Q: When should the action for revival of judgment
be filed?
A: The action to revive a judgment must be filed
within 10 years from the date of judgment became
final because an action to enforce a judgment
prescribes in 10 years from the finality of the
judgment.
Q: What are the defenses available in an action for

enforcement?
A:
1. Prescription;
2. Satisfaction of claim; and
3. Counterclaims.
Q: Will execution issue upon death of a party?
A:
a.
b.
Q: What is the nature of a revived judgment?
A: A revived judgment is deemed a new judgment
separate and distinct from the original judgment.
Q: How do you enforce a revived judgment?
A: A revived judgment may be enforced by motion
within 5 years from the date of its entry and
thereafter by action also before it is barred by the
statute of limitations (Sec. 6, Rule 39).
Q: May the period to execute the judgment be
stayed?
A: Yes: by agreement of the parties; by injunction;
or by taking an appeal or writ of error.
Q: What is the effect of an appeal to the execution
of the judgment?
A:
GR: An appeal perfected in due time stays the
execution of a judgment.
XPNs: There are judgments which by express
provision of law not stayed by appeal:
1.
Those judgments which by express

provision of the rules are immediately
executor and are not stayed by appeal
(Sec. 4, Rule 39);
Note: These are: judgment for injunction,
receivership, accounting and support unless
the court rule otherwise.
2.
Those judgments that have become the

object of discretionary execution (Sec. 2,
Rule 39).
Death of an obligee execution will issue

in any case, upon application of his
executor, administrator, or successor-ininterest
Death of an obligor
- Death before levy:
Action for recovery of real or
personal property or any lien
execution will issue.
Action for a sum of money
execution will NOT issue. The judgment
obligee should file a claim against the
estate of the judgment obligor under
Rule 86
- Death after levy:
Execution will issue against his
executor, administrator, or successorin-interest because the property is
already separated from the estate of
the deceased and is deemed in
custodia legis.
b. ISSUANCE AND CONTENT OF A WRIT OF

EXECUTION
Q: What is a writ of execution?
A: It is a judicial writ issued to an officer authorizing
him to execute the judgment of the court.
Q: What is the lifetime of a writ of execution?
A: The writ is enforceable within 5 years from the
entry of judgment as provided for in Sec. 6 of Rule
39.
Q: What are the contents of a writ of execution?
A:
1.
2.
3.
4.
The name of the court which granted the

motion;
The case number;
The dispositive portion of the judgment
or order subject of the execution; and
Shall require the sheriff or other proper
officer to whom it is directed to enforce

103

the writ according to its terms (Sec.8, Rule
39)
Note: The motion for execution and the writ of
execution must state specifically the amount of
interest, costs, damages, rents, or profits due as of the
date of issuance of the writ, aside from the principal
obligation.
a.
b.
Q: Is a writ of execution subject to a motion to

quash?
A: A writ of execution may be quashed on certain
grounds:
1. When the writ of execution varies the
judgment;
2. When there has been a change in the
situation of the parties making the
execution inequitable or unjust;
3. When execution is sought to be enforced
against a property exempt from
execution;
4. When it appears that the controversy has
never been submitted to the judgment of
the court;
5. When the terms of the judgment are not
clear enough and there remains room for
interpretation thereof;
6. When it appears that the writ of
execution has been improvidently issued;
7. When it appears that the writ of
execution is defective in substance, or is
issued against the wrong party, or that
the judgment debt has been paid or
otherwise satisfied or the writ is issued
without authority (Reburiano v. CA, 301
SCRA 342).
c. EXECUTION OF JUDGMENTS FOR MONEY
Q: What are the 3 ways to enforce a judgment for
money?
c.
Demand from the obligor the immediate

payment of the full amount stated in the
judgment including the lawful fees in
cash, certified check payable to the
judgment obligee or any other form of
payment acceptable to him.
If the judgment obligor cannot pay all or
part of the obligation in cash, certified
check or other mode of payment, the
officer shall levy upon the properties of
the judgment obligor. The judgment
obligor shall have the option to choose
which property or part thereof may be
levied upon. If the judgment obligor does
not exercise the option, the officer shall
first levy on the personal properties, if
any, and then on the real properties if the
personal properties are insufficient to
answer for the personal judgment but the
sheriff shall sell only so much of the
property that is sufficient to satisfy the
judgment and lawful fees.
The officer may levy on the debts due the
judgment debtor including bank deposits,
financial interests, royalties, commissions
and other personal property not capable
of manual delivery in the possession or
con troll of third parties. This is called
garnishment. (Sec. 9, rule 39)
Q: What is levy?
A: It is the act by which an officer sets apart or
appropriates a part of the whole of the property of
the judgment debtor for purposes of the execution
sale.
Q: What is garnishment?
A: It is the act of appropriation by the court when
the property of the debtor is in the hands of third
persons.
A:
1.
2.
3.
Immediate payment on demand

Satisfaction by levy
The judgment obligor exercises
discretion to choose which property
to levy; if not exercised, the officer
shall levy first on personal property,
then on real property. The sheriff
shall only sell property sufficient to
satisfy the judgment and other
lawful fees.
Garnishment of debts and credits.
Q: What are the steps in executing a judgment for

money?
A:
104
Note: The garnishee or the third person who is in the

possession of the property of the judgment debtor is
deemed a forced intervenor.
Q: Distinguish attachment from garnishment.

A: Attachment refers to corporeal property in the
possession of the judgment debtor.
Garnishment refers to money, stocks, credits and
other incorporeal property which belong to the
judgment debtor but is in the possession or under
the control of a third person. (1999 Bar Question)
Q: The writ of execution was returned unsatisfied.
The judgment obligee subsequently received
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
information that a bank holds a substantial
deposit belonging to the judgment obligor. If the
bank denies holding the deposit in the name of the
judgment obligor but your client's informant is
certain that the deposit belongs to the judgment
obligor under an assumed name, what is your
remedy to reach the deposit?
1.
Q: How is money judgment implemented if the

obligee is absent at the time of payment?
In case of conveyance, if a party fails to

comply with the time specified, the court
may direct the act to be done at the cost
of the disobedient party.
In case of delivery or restitution of real
properties, the officer shall demand the
losing party to peaceably vacate the
property within 3 working days, and
restore possession to the judgment
oblige; otherwise the officer shall oust
such disobedient party.
In case of removal of improvements on
property subject of execution, the officer
shall not destroy, demolish or remove
improvements except upon special order
of the court.
In judgments for the delivery of personal
property, the officer shall take possession
of the same and forthwith deliver it to the
party entitled to satisfy any judgment for
money as therein provided.
A: Sec. 9, Rule 39 lays down the procedure to be

followed by the sheriff in implementing money
judgments.
Q: How can judgment be executed for the

following specific acts if the judgment debtor
refuses/fails to comply therewith?
When the judgment obligee is not present at the

time the judgment obligor makes the payment, the
sheriff is authorized to receive it. However, the
money received must be remitted to the clerk of
court within the same day or, if not practicable,
deposited in a fiduciary account with the nearest
government depository bank. Sheriffs are not
permitted to retain the money in their possession
beyond the day when the payment was made or to
deliver the money collected directly to the
judgment oblige (Pea, Jr. v. Regalado II, A.M. No.
P-10-2772 (formerly A.M. OCA I.P.I No. 07-2615-P),
Feb. 16, 2010).
A:
2.
A: A motion may be filed for a court order requiring

the proper bank officer to appear in court for
examination under oath as to such bank deposit,
and subsequently move for a court order
authorizing the filing of an action against such bank
for the recovery of the judgment obligors
deposit/interest therein and to forbid a transfer or
other disposition of such deposit/interest within
120 days from notice of the order (Secs. 37 and
43).(2008 Bar Question)
3.
4.
Judgments for
Specific Act (Sec.
10)
Conveyance,
delivery of deeds,
or other specific
acts, vesting title.
Sale of real and
personal property
d. EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS

Q: What are considered specific acts?
A:
1.
2.
3.
4.
5.
Conveyance, delivery of deeds, or other

specific acts vesting title;
Sale of real or personal property;
Delivery or restitution of real property;
Removal of improvements on property
subject of execution; and
Judgments for the delivery of personal
property.
Q: What are the steps in executing a judgment for

specific acts?
A:
Delivery or
restitution of real
property
Removal of
improvements on
property subject of
execution
Delivery of
personal property
Manner of Execution
Court can appoint some other
person at the expense of the
disobedient party and the act
done shall have the same effect as
if the required party performed it.
Sell such property and apply the
proceeds in conformity with the
judgment.
If the party refuses to deliver, a
writ of execution directing the
sheriff to cause the defendant to
vacate is in the nature of a
haberefaciaspossesionemand
authorizes the sheriff to break
open the premises where there is
no occupant therein.
If party refuses to vacate
property, remedy is not contempt.
The sheriff must oust the party.
But if demolition is involved, there
must be a special order.
The officer may destroy, demolish
or remove the improvements
upon special order of the court,
issued upon motion of the
judgment obligee.
The officer shall take possession
and deliver to the party entitled
thereto.

105
Q: May a judgment debtor be cited in contempt in

case of refusal to comply with judgment of the
court?
whom the same is rendered, or upon any other

person required thereby, or by law, to obey the
same, and such party or person may be punished
for contempt if he disobeys such judgment (Sec 11,
Rule 39).
A:
GR: The judgment debtor cannot be cited in
contempt of court. Generally, contempt is not a
remedy to enforce a judgment.
XPN:
1. Refusal to perform a particular act or
special judgments under Sec. 11 where he
may be cited in contempt.
2. In case of the provisional remedy of
support pendente lite under Rule 61, the
judgment debtor may still be cited for
contempt even if the decision is not a
special judgment and requires the latter
to pay money.
Note: If a party refuses to:
a. Vacate the property the sheriff must oust
the party. A demolition order from the court
is required to effect removal of an
improvement constructed by the defeated
party.
b. Deliver the sheriff will take possession and
deliver it to the wining party
c. Comply the court can appoint some other
person at the expense of the disobedient
party and the act shall have the same effect
as if the required party performed it.
e. EXECUTION OF SPECIAL JUDGMENTS

Q: What is a special judgment?
A: It is a judgment that can be complied with only
by the obligor himself. It requires the performance
of any other act other than payment of money, or
the sale or delivery of real or personal property.
Q: What is the effect of failure to comply with
special judgments?
A: Failure to comply with special judgment under
Section 11 is punishable by contempt by
imprisonment.
Q: How is execution of special judgments
executed?
A:When a judgment requires the performance of
any act other than those mentioned in the two
preceding sections, a certified copy of the judgment
shall be attached to the writ of execution and shall
be served by the officer upon the party against
106
f. EFFECT OF LEVY ON THIRD PERSON

Q: What is the effect of levy on execution as to
third persons?
A: It creates a lien in favor of the judgment obligee
over the right, title and interest of the judgment
obligor in such property at the time of the levy,
subject to liens and encumbrances then existing
(Sec. 12).
Q: Aiza obtained a judgment for money against
Bert. The sheriff enforcing the corresponding writ
went to Celywho, is the pledgee of a ring Bert had
given as security for a loan and insisted on taking
possession of the ring for the purpose of
eventually selling it at the execution sale to satisfy
the judgment debt of Bert to Aiza. Does Cely have
the obligation to surrender the ring to the sheriff?
Explain.
A: No, because Cely has the right to retain the ring
in his possession until the loan is paid (Art. 2098,
NCC). If the sheriff should take possession of the
ring, Cely may file a third-party claim. (1987 Bar
Question)
Q: What are the remedies available to a thirdparty claimant in levy of real property?
A:
1.
2.
3.
4.
Summary hearing before the court which

authorized the execution;
Terceriaor third party claim filed with the
sheriff;
Action for damages on the bond posted
by judgment creditors; or
Independent reinvindicatory action. (Sec.
16, Rule 39)
The remedies are cumulative and may be resorted

to by the third party claimant independently of or
separately from the others.
Note: The officer shall not be liable for damages for
the taking or keeping of the property, to any thirdparty claimant if there is a bond filed by the winning
party. If there is no bond, the sale cannot proceed.
However, the judgment obligee can claim damages
against a third-party claimant who filed a frivolous or
plainly spurious claim, and such judgment obligee can
institute proceedings therefor in the same or separate
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: What are other properties ESPECIALLY exempt
from execution?
4. PROPERTIES EXEMPT FROM EXECUTION
A:
Q: What are the properties exempt from
execution?
A:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
The judgment obligors family home as

provided by law, or the homestead in
which he resides, and land necessarily
used in connection therewith;
Ordinary tools and implements personally
used by him in his trade, employment or
livelihood;
3 horses, cows, or carabaos, or other
beasts of burden, such as the judgment
obligor may select necessarily used by
him in his ordinary occupation;
His necessary clothing and articles for
ordinary personal use, excluding jewelry;
Household
furniture
and
utensils
necessary for housekeeping, and used for
that purpose by the judgment obligor and
his family, such as the judgment obligor
may select, of a value not exceeding
P100,000;
Provisions for individual or family use
sufficient for 4 months;
The professional libraries and equipment
of
judges,
lawyers,
physicians,
pharmacists,
dentists,
engineers,
surveyors, clergymen, teachers, and other
professionals, not exceeding P300,000 in
value;
1 fishing boat and accessories not
exceeding the total value of P100,000
owned by a fisherman and by the lawful
use of which he earns his livelihood;
So much of the salaries, wages, or
earnings of the judgment obligor for his
personal services within the 4 months
preceding the levy as are necessary for
the support of his family;
Lettered gravestones;
Monies, benefits, privileges, or annuities
accruing or in any manner growing out of
any life insurance;
The right to receive legal support, or
money or property obtained as such
support, or any pension or gratuity from
the government; and
Properties specially exempted by law.
But no article or species of property mentioned

above shall be exempt from execution issued upon
a judgment recovered for its price or upon a
judgment of foreclosure of a mortgage hereon (Sec.
13).
1.
Property mortgaged to DBP (Sec 26, CA

458)
2. Property taken over by Alien Property
Administration (Section 9[f], US Trading
with the Enemy Act)
3. Savings of national prisoners deposited
with the Postal Savings Bank (Act 2489)
4. Backpay of pre-war civilian employees (RA
304)
5. Philippine Government backpay to
guerillas (RA 897)
6. Produce, work animals, and farm
implements of agricultural lessees,
subject to limitations (Sec 21, RA 6389)
7. Benefits from private retirement systems
of companies and establishments, with
limitations (RA 4917)
8. Labor wages, except for debts incurred
for food, shelter, clothing, and medical
attendance (Art 1708, NCC)
9. Benefit payments from the SSS (Sec 16 RA
1161 as amended by PDs 24, 65, and 177)
10. Copyrights and other rights in intellectual
property under the former copyright law
(PD 49 cf Sec 239.3, RA 8293); and
11. Bonds issued under RA1000 (NASSCO v.
CIR L-17874 31 August 1963) (Regalado, F.
th
Remedial Law Compendium Vol. 1, 9 ed.,
pp. 481-482)
5. PROCEEDINGS WHEN PROPERTY IS CLAIMED BY
THIRD PERSONS
Q: When can you file a third party claim?
A: At any time, so long as the sheriff has the
possession of the property levied upon, or before
the property is sold under execution.
Q: What are the requisites for a claim by a third
person?
A: Requisites for a claim by a third person:
1.
2.
3.
4.
The property is levied;

The claimant is a person other than the
judgment obligor or his agent;
Makes an affidavit of his title thereto or
right to the possession thereof stating the
grounds of such right or title; and
Serves the same upon the officer making
the levy and the judgment obligee.

107

Q: What is the procedure for a 3rd party claim?
A: 3rd party should make an affidavit of his title
thereto, or right of possession thereof, and should
serve such affidavit upon the sheriff and a copy
thereof to the judgment obligee.
Q: What is the duty of the officer if the property
sought to be levied on is claimed by another
person and proper proof of ownership or
possession is served upon the officer making levy?
A: If the property levied on is claimed by any person
other than the judgment obligor or his agent, and
such person makes an affidavit of his title thereto
or right to the possession thereof, stating the
grounds of such right or title, and serves the same
upon the officer making the levy and a copy thereof
upon the judgment obligee, the officer shall not be
bound to keep the property, unless such judgment
obligee, on demand of the officer, files a bond
approved by the court to indemnify the third-party
claimant in a sum not less than the value of the
property levied on. In case of disagreement as to
such value, the same shall be determined by the
court issuing the writ of execution. No claim for
damages for the taking or keeping of the property
may be enforced against the bond unless the action
therefor is filed within one hundred twenty (120)
days from the date of the filing of the bond.
The officer shall not be liable for damages for the
taking or keeping of the property, to any third-party
claimant if such bond is filed. Nothing herein
contained shall prevent such claimant or any third
person from vindicating his claim to the property in
a separate action, or prevent the judgment obligee
from claiming damages in the same or a separate
action against a third-party claimant who filed a
frivolous or plainly spurious claim.
Q: Allen obtained a money judgment against Bob.
After the finality of the decision, the court issued a
writ of execution for the enforcement thereof.
Conformably with the said writ, the sheriff levied
upon certain properties under Bob's name. Cathy
filed a third-party claim over said properties
claiming that Bob had already transferred the
same to him. Allen moved to deny the third-party
claim and to hold Bob and Cathy jointly and
severally liable to him. After due hearing, the
court denied the third-party claim and rendered
an amended decision declaring Bob and Cathy
jointly and severally liable to Allen for the money
judgment. Is the ruling of the court correct'?
Explain.
108
A: No, Cathy has not been impleaded as a party

defendant. He cannot be held liable for the
judgment against Bob without a trial. In fact, since
no bond was filed by Allen, the sheriff is liable to
Cathy for damages. Cathy can file a separate action
to enforce his third-party claim. It is in that suit that
Allen can raise the ground of fraud against Cathy.
However, the execution may proceed where there
is a finding that the claim is fraudulent (Tanongan v.
Samson, G.R. No. 140889, May 9, 2002). (2005 Bar
Question)
Q: If the writ of execution is issued in the name of
the Republic of the Philippines and the property
object of the levy is being claimed by a third
person, is there a necessity for filing a bond?
A: When the writ of execution is issued in favor of
the Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be
required, and in case the sheriff or levying officer is
sued for damages as a result of the levy, he shall be
represented by the Solicitor General and if held
liable therefor, the actual damages adjudged by the
court shall be paid by the National Treasurer out of
such funds as may be appropriated for the purpose.
a. IN RELATION TO THIRD PARTY CLAIM IN
ATTACHMENT AND REPLEVIN
Certain remedies available to a third person not
party to the action but whose property is the
subject of execution:
1.
2.
Terceria By making an affidavit of his title

thereto or his right to possession thereof,
stating the grounds of such right or title. The
affidavit must be served upon the sheriff and
the attaching party (Sec. 14, Rule 57). Upon
service of the affidavit upon him, the sheriff
shall not be bound to keep the property under
attachment except if the attaching party files a
bond approved by the court. the sheriff shall
not be liable for damages for the taking or
keeping of the property, if such bond shall be
filed.
Exclusion or release of property Upon
application of the third person through a
motion to set aside the levy on attachment,
the court shall order a summary hearing for
the purpose of determining whether the
sheriff has acted rightly or wrongly in the
performance of his duties in the execution of
the writ of attachment. The court may order
the sheriff to release the property from the
erroneous levy and to return the same to the
third person. In resolving the application, the
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
3.
4.
court cannot pass upon the question of title to

the property with any character of finality but
only insofar as may be necessary to decide if
the sheriff has acted correctly or not (Ching vs.
CA, 423 SCRA 356).
Intervention This is possible because no
judgment has yet been rendered and under
the rules, a motion for intervention may be
filed any time before the rendition of the
judgment by the trial court (Sec. 2, Rule 19).
Accion Reinvindicatoria The third party
claimant is not precluded by Sec. 14, Rule 57
from vindicating his claim to the property in
the same or in a separate action. He may file a
separate action to nullify the levy with
damages resulting from the unlawful levy and
seizure. This action may be a totally distinct
action from the former case.
6. RULES ON REDEMPTION
Q: Is the right of redemption available to any type

of property?
A: No. There is no right of redemption as to
personal properties for the sale is absolute. Such
right is available only to real properties.
Q: Distinguish a judgment obligor from a
redemptioner? What are their rights as regards
redemption of real property?
A:
JUDGMENT
OBLIGOR
Judgment obligor,
or his successor in
interest (e.g.
transferee,
assignee, heirs, joint
debtors)
Within 1 year from

the date of
registration of the
certificate of sale.
REDEMPTIONER
One who has a lien by by virtue
of an attachment judgment,
judgment, or mortgage on the
property sold, SUBSEQUENT to
the lien under which the
property was sold (Sec. 27)
Note: If creditors lien is prior
to the judgment, he is not a
redemptioner because his
interests in his lien are fully
protected.
1. Within 1 year from the
date of registration of the
certificate of sale if he is
the first redemptioner, or
2. Within 60 days from the
last redemption, if he be a
subsequent
redemptioner, provided
that the judgment debtor
has not exercised his right
of redemption.
Once he redeems,
no further
redemption is
allowed. The person
to whom
redemption was
made must execute
and deliver to the
judgment obligor a
certificated of
redemption.
Further redemption is allowed,

even after lapse of 1 year, as
long as each redemption is
made within 60 days after the
last.
Note: The period of redemption is not suspended by

an action to annul the foreclosure sale. The periods for
redemption are not extendible; but the parties may
agree on a longer period, in such case, it would be a
conventional redemption.
Note: A surety is not a successor in interest. The right
of redemption cannot be levied on by judgment
creditor.
Q: Can redemption be made in other forms than

cash?
A: Yes. The rule is liberal in allowing redemption
and it has been allowed in the case of a cashiers
check and certified bank checks.
Q: Who may redeem the real property sold?
A: Real property sold, or any part thereof sold
separately, may be redeemed by the following
persons:
1. Judgment obligor, or his successor in interest
in the whole or any part of the property;
2. Redemptioner a creditor having a lien by
virtue of an attachment, judgment or
mortgage on the property sold, or on some
part thereof, subsequent to the lien under
which the property was sold.
Note: A mortgagee can be a redemptioner even if his
mortgage has not yet matured, but his mortgage
contract must have been executed after the entry of
judgment. Generally in judicial foreclosure sale, there
is no right of redemption, but only equity of
redemption. In sale of estate property to pay off debts
of the estate, there is no redemption at all. Only in
extrajudicial foreclosure sale and sale on execution is
there the right of redemption.
Q: What are the requirements to enable the

redemptioner or judgment obligor to redeem the
real property?
A: The judgment obligor, or redemptioner, may
redeem the property from the purchaser at any

109

time within 1 year from the date of the registration
of the certificate of sale by paying the purchaser:
1. the amount of his purchase;
2. amount of any assessments or taxes which the
purchaser may have paid after purchase;
3. if the purchaser be also a creditor having a
prior lien to that of the redemptioner, other
than the judgment under which such purchase
was made, the amount of such other lien; and
4. With 1 percent per month interest up to the
time of redemption.
2.
3.
4.
Reversal or setting aside of

judgment;
The fact that the property was
exempt from execution; or
If a third person has vindicated his
claim to the property (Sec. 34).
Q: What is the remedy of purchaser of real

property sold on execution in the above
situations?
A:
1.
Q: Is the bona fide tender or delivery of the

redemption price required in offer to redeem?
2.
A:
3.
GR: The offer to redeem must be accompanied

with a bona fide tender or delivery of the
redemption price.
XPN: The right to redeem is exercised through
the filing of a complaint to redeem in the
courts.
Q: What are the rights of a judgment debtor?
7. EXAMINATION OF JUDGMENT OBLIGOR WHEN

JUDGMENT IS UNSATISFIED
Q: What is the effect when the judgment was
returned unsatisfied?
A:
1.
A:
1.
2.
3.
4.
5.
To remain in possession of the property

until the expiration of period of
redemption;
To collect rents and profits until the
expiration of period of redemption (Sec.
32);
To use the property in the same manner it
was previously used;
To make necessary repairs; and
Use it in the ordinary course of husbandry
(Sec. 31).
2.
3.
Q: When is the purchaser entitled to possession

and conveyance of the property sold on
execution?
4.
A: The purchaser is entitled to possession and

conveyance of the property if no redemption is
made within one (1) year from the date of the
registration of the certificate of sale (Sec. 33).
5.
Q: What are the instances when the purchaser

may recover the purchase price from the judgment
obligor?
6.
A:
1.
2.
110
If the purchaser or his successor-ininterest fails to recover possession of the

property sold on execution sale; or
Is evicted due to:
1. Irregularities in the proceedings
concerning the sale;
Bring an action against the judgment

creditor;
File a motion for revival of judgment in his
name against the judgment debtor; or
Bring an action to recover possession of
property.
The judgment creditor may cause

examination of the judgment debtor as to
his property and income (Sec. 36) (2008
Bar Question);
The judgment creditor may cause
examination of the debtors of the
judgment debtor as to any debt owed by
him or to any property of the judgment
debtor in his possession (Sec. 37);
If the court finds, after examination, that
there is property of the judgment debtor
either in his own hands or that of any
person, the court may order the property
applied to the satisfaction of the
judgment (Sec. 37);
If the court finds the earnings of the
judgment debtor are more than sufficient
for his familys needs, it may order
payment in fixed monthly installments
(Sec. 40);
The court may appoint a receiver for the
property of the judgment debtor not
exempt from execution or forbid a
transfer or disposition or interference
with such property (Sec. 41);
If the court finds that the judgment
debtor has an ascertainable interest in
real property either as mortgagor,
mortgagee, or otherwise, and his interest
can be ascertained without controversy,
the court may order the sale of such
interest (Sec. 42); and
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
7.
If the person alleged to have the property

of the judgment debtor or be indebted to
him, claims an adverse interest in the
property, or denies the debt, the court
may authorize the judgment creditor to
institute an action to recover the
property, forbid its transfer and may
punish disobedience for contempt (Sec.
43).
Q: Anna, a Manila resident, sued Betsie resident of

Malolos, Bulacan, in the RTC Manila for a sum of
money. The trial court rendered judgment holding
Anna liable for the entire amount prayed for in the
complaint. After the judgment had become final, a
writ of execution was issued by the court. As the
writ was returned unsatisfied, Anna filed a motion
for an order requiring Betsie to appear before it
and be examined regarding his property and
income. How should the court resolve the motion?
A: The RTC Manila should deny the motion. Betsie
resides in Malolos, Bulacan. When a writ of
execution is returned unsatisfied, the judgment
obligee, at any time after such return is made, shall
be entitled to an order from the court which
rendered the said judgment, requiring such
judgment obligor to appear and be examined
concerning his property and income before such
court or before a commissioner appointed by it.
However, no judgment obligor shall be so required
to appear before a court or commissioner outside
the province or city in which such obligor resides or
is found (Sec. 36). (2002 Bar Question)
8. EXAMINATION OF OBLIGOR OF JUDGMENT
OBLIGOR
Q: How is examination of obligor of judgment
obligor done?
A: Court may order to be examined any person or
corporation who has property of the debtor in
order to bind the credits due to debtor.
Note: The garnishee becomes a forced intervenor,
requiring him to pay his debt not to the judgment
debtor but to the creditor (a form of involuntary
novation).
Note: A party or other person may be compelled, by
an order of subpoena, to appear before the court or
commissioner to testify as provided in Sec 36 & 37.
Failure to obey may be punished by contempt. If
examination is before a commissioner, he must take it
in writing and certify it to the court. All examinations
and answers must be under oath.
9. EFFECT OF JUDGMENT OR FINAL ORDERS
A:
1.
2.
3.
4.
5.
If judgment or final order is on a specific

thing, the same is conclusive upon the
title to thing (Sec. 47, Rule 39).
With respect to a probate of a will, or the
administration of the estate of a deceased
person, the same is conclusive upon the
will or administration but the probate of
the will or the granting of letters of
administration shall only be prima facie
evidence of the death of the testator or
intestate and not a conclusive
presumption of death (Sec.47, Rule 39).
With respect to the personal, political or
legal condition or status of a particular
person or his relationship to another, the
judgment or final order is conclusive upon
the condition, status or relationship
(Sec.47, Rule 39).
In other cases, if the judgment be with
respect to the matter directly adjudged or
as to any other matter that could have
been raised in relation thereto, the
judgment or final order is conclusive
between the parties and their successors
in interest by title subsequent to the
commencement of the action or special
proceeding, litigating for the same thing
and under the same title and the same
capacity, relationship (Sec.47, Rule 39).
In any other litigation between the same
parties or their successors in interest, that
only is deemed to be adjudged in a
former judgment or final order which
appear upon its face to have been
adjudged, or which was actually and
necessarily included therein or necessary
thereto (Sec.47, Rule 39).
Q: When the judgment is final and executory, is it

always ministerial upon the court to order
execution?
A:
GR: Trial Court has ministerial duty to order
execution of final and executor judgments. It
cannot refuse execution and is compellable by
mandamus.
XPN: (Same as grounds to Quash writ of execution)
1. Change in the situation of the parties
which makes the execution inequitable or
unjust;
2. Writ of execution varies judgment;
3. Controversy was never submitted to the
judgment of the court;
4. Execution is sought against property
exempt from execution;
Q: What is the effect of final judgments?

111

5.
Terms of the judgment are not clear and

leaves room for interpretation;
6. Writ of execution is improvidently issued;
7. Writ of execution is defective in
substance;
8. Writ of execution is issued against the
wrong party;
9. Judgment debtor has been paid or
otherwise satisfied; and
10. Writ of execution was issued without
authority.
Note: In the above exceptions, remedy is certiorari
(Rule 65)
Q: When may execution of final and executory

judgment be enjoined?
A:
1.
2.
3.
4.
Upon fling of a petition for relief from

judgment;
Attack against a judgment which is void
for lack of jurisdiction, or obtained
through fraud;
On equitable grounds; and
In cases falling under the 10 exceptions
above.
Q; Discuss the effect of judgment under paragraph

A and B of Section 47
A:
In Rem (Par. a)
The decision is
conclusive upon the title
of the thing, the will or
administration or the
condition, status or
relationship of the
person.
i.e. land registration
cases
Q: What are the requisites of res judicata?

A:
1.
2.
3.
4.
Note: judgment for support is not final in a sense that

it cannot be modified. Support depends not only on
the varying conditions affecting the ability of the
oblgor to pay, but also upon the ever-changing needs
of the beneficiary himself.
A:
GR: Final and executor judgments cannot be
amended or modified. Any amendment which
substantially affects a final and executor judgment
is null and void for lack of jurisdiction.
XPN: Judgment may be modified as to:
1. Clerical errors or mistakes - errors not as a
result of exercise of judicial functions
2. To clarify ambiguity; or
3. To enter nunc pro tunc orders to make a
present record of an order which the
court rendered at a previous terms but,
by inadvertence has not been entered.
i.e. actionreinvindicatoria
Note: In both instances, the judgment may be repelled

by evidence of want of jurisdiction, notice, collusion,
fraud or clear mistake of law or fact. (par. 4, Sec. 48)
Note: Judgment novated by a subsequent agreement

cannot be executed (e.g. agreement entered into by
the parties other than terms of payment).
Q: Can final and executory judgments be

modified?
In Personam (Par. b)
The judgment or final order
is conclusive between
parties and their
successors-in-interest,
litigating for the same thing
and under the same title
and in the same capacity.
Former judgment or order must be final

and executory;
Court has jurisdiction over subject matter
and parties;
Former judgment or order was on merits;
and
Identity of parties, subject matter, and
cause of action between first and second
action. (TEST: determine identity if cause
of action)
10. ENFORCEMENT AND EFFECT OF FOREIGN

JUDGMENTS OR FINAL ORDERS
Q: What is the effect of a foreign order?
A:
1.
2.
Against a specific thing conclusive upon

title to the thing.
Against a person presumptive evidence
of a right as between the parties and their
successors in interest by a subsequent
title.
Note: In both instances, the judgment may be repelled

by evidence of want of jurisdiction, notice, collusion,
fraud, or clear mistake of law or fact.
Q: How is a foreign judgment enforced?

A: By filing an action based on said judgment;
foreign judgment is presumed to be valid and
binding.
Note: to recognize a foreign judgment, raise the
foreign judgment as res judicata in the defense (not in
a separate motion)
112
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
R. PROVISIONAL REMEDIES
Q: Distinguish the different kinds of provisional remedies.
A:
Preliminary
Attachment (Rule
57)
Preliminary Injunction
(Rule 58)
Receivership (Rule
59)
Replevin (Rule
60)
Support Pendente
Lite (Rule 61)
Subject Matter
Personal and real
property
SC, CA, RTC, Family

Court,
Metropolitan,
Municipal and
Municipal Circuit
Trial Courts
Personal property
capable of
manual delivery
Jurisdiction (Court which can grant it)
Particular act(s)
SC, CA, RTC, Family

Court, Metropolitan,
Municipal and Municipal
Circuit Trial Courts
Personal and real

property
Money or other forms

of support
SC, CA, RTC, Family

Court, Metropolitan,
Municipal and
Municipal Circuit Trial
Courts
GR: Family Court

XPN: In criminal
actions, as long as the
civil aspect is tried
together with it , the
RTC or MTC having
jurisdiction may also
issue this remedy.(e.g
Art. 345 (3) RPC, in
crimes against
chastity, In every
case to support the
offspring..)
RTC, Family Court,

Metropolitan,
Municipal, and
Municipal Circuit
Trial Courts
Who may grant it

Court where action is
pending, the CA or
Only the Court where
the SC, or a member
Courts where
the action is pending;
thereof, even if action
action is pending,
Lower court, CA or SC
is pending in the
Only the court
the CA or the SC
provided action is
lower court.
where action is
(Sec. 2)
pending in the same
Appellate court may
pending.
court which issues the
allow application for
injunction (Sec. 2)
receivership to be
decided by the court
of origin (Sec. 1)
When available
At any stage of the
At the
At any stage of the
At any stage of the
proceeding and even
commencement
action but before
action but before
after finality of
of the action but
entry of final
judgment; anytime
before answer is
judgment (Sec. 1)
(Sec. 1)
prior to satisfaction of
filed (Sec. 1)
judgment
How applied for
File verified application
File verified
and applicants bond; if
application and
application is included in
applicants bond;
the initiatory pleading,
application may also
File affidavits and
File affidavits and
the adverse party should
be included in
applicants bond
applicants bond
be served with summons
initiatory pleading in
(Sec. 3)
(Sec. 2)
together with a copy of
actions for
the initiatory pleading and
foreclosure of
the applicants affidavit
mortgage (Secs. 1 and
and bond (Sec.4)
2)
Purpose(s)
1. To
seize
the To require a party or a
To place the
To recover
property of the
court, agency or a
property subject of
possession of
adverse party in person to refrain from
an action or
personal
Court of origin and

appellate court.
(Ramos v. CA, GR No.
L-31897, June 30,
1972)
At the
commencement of
the action or at any
time prior to the
judgment or final
order (Sec. 1)
File verified
application; bond not
required (Sec. 1)
To compel adverse
party to provide
support while the

113
2.
advance for the

satisfaction
of
judgment that may
be recovered in
cases falling under
Sec.1, Rule 57.
To enable the court
to
acquire
action by the actual
or
constructive
seizure
of
the
property in those
instances
where
personal service of
summons on the
creditor cannot be
effected. (Quasha v.
Juan,G.R.No.L54158,
Nov. 19, 1982)
1. GR: In an action for

the recovery of a
specified amount or
damages.
XPN:
a. moral
and
exemplary
b. against a party
who is about to
depart from the
Philippines with
intent to defraud
his creditors;
2. In an action for money
or property embezzled
or
fraudulently
misapplied
or
converted to his own
use by a public officer,
or by any other person
in a fiduciary capacity,
or for a willful
violation of duty;
3. In an action to recover
the possession of
property unjustly or
fraudulently
taken,
detained
or
converted, when the
property has been
concealed, removed
or disposed of to
prevent its being
found or taken by the
applicant
or
an
authorized person;
4. In an action against a
party who has been
guilty of fraud in
contracting the debt
or
incurring
the
114
doing a particular act

or to require the
performance of a
particular act
To prevent future
injury and maintain
the status quo.
(Kencht v. CA, G.R. No.
97962, Nov. 17, 1993)
1. That the applicant is

entitled to the relief
demanded
which
consists
in
restraining
the
commission
or
continuance of the
act complained of,
or in requiring the
performance of an
act for a limited
period
or
perpetually
2. Commission,
continuance or nonperformance of the
act
during
the
litigation
would
probably
work
injustice to the
applicant; or
3. Party, court, agency
or a person is doing,
threatening, or is
attempting to do, or
is procuring or
suffering to be
done, some act
probably
in
violation of the
rights
of
the
applicant respecting
the subject of the
action and tending
to
render
the
judgment
ineffectual (Sec. 3)
proceeding under
the control of a
third party for its
preservation and
administration litis
pendentia and to
protect the rights of
all the parties under
the direction of the
court.
Ground(s)
1. When
the
applicant has an
interest in the
property or fund
subject of the
proceeding and
such property is in
danger of being
lost, removed or
materially injured
unless a receiver
is appointed;
2. In foreclosure of
mortgage, when
the property is in
danger of being
wasted
or
dissipated
or
materially injured
and that its value
is
probably
insufficient
to
discharge
the
mortgage debt or
that it has been
agreed upon by
the parties;
3. After judgment, to
preserve
the
property during
the pendency of
an appeal or to
dispose
of
it
according to the
judgment or to aid
execution when
execution
has
been
returned
unsatisfied of the
judgment obligor
refuses to apply
property. (1999
Bar Question)
Applicant is:
1. The owner
of
the
property
claimed; or
2.
Entitled to
the
possession
thereof but
the
property is
wrongfully
detained by
the adverse
party (Sec.
2)
action is pending in
court.
When equity and

justice require,
having due regard to
the probable
outcome of the case
and such other
circumstances as
may suggest the
reasonability of
granting support
pendente lite
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
obligation or in its
performance
5. In an action against
a party who has
removed
or
disposed of his
property, or is about
to do so, with intent
to
defraud
his
creditors;
6. In an action against
a party who does
not reside and is not
found
in
the
Philippines, or on
whom
summons
may be served by
publication
his property in
satisfaction of the
judgment,
or
otherwise to carry
the judgment into
effect; or
4. When
appointment of
receiver is the
most convenient
and
feasible
means
of
preserving,
administering or
disposing of the
property
in
litigation (Sec. 1).
Whether principal or ancillary action
Ancillary remedy
Principal action/
ancillary remedy
Principal action/
ancillary remedy
Principal action/
ancillary remedy
Ancillary to:
1. Action for
support; or
2. In a criminal
action where civil
liability includes
support for the
offspring provided
the civil aspect
thereof has not
been waived,
reserved or
instituted prior to
its filing.
During the
pendency of the
case unless the
defendant files a
redelivery bond.
During the pendency

of the case.
Not required ;
may be issued ex
parte
Required Within 3
days after comment
is filed or after
expiration of period
of filing
Effectivity
During the pendency of
the case unless earlier
discharged or quashed by
the court
During the pendency

of the case unless
earlier discharged or
quashed by the court
Until discharged by
the court
Requirement of Hearing
GR: Required
XPN:
Great
or
Not required; may be
irreparable injury would
issued ex parte (2001
result / extreme urgency
Required
Bar Question)
and applicant will suffer
grave
injustice
and
irreparable injury (Sec. 5)
Bond Requirement
Bond executed to the adverse party in the amount fixed by the court to
cover the costs which may be adjudged to the adverse party and all
damages that he may sustain by reason of the granting of provisional
remedy prayed for, if the court shall finally adjudge that the applicant
was not entitled thereto (Sec. 4, Rule 57; Sec. 4, Rule 58, Sec. 2, Rule 59
)
2 bond requirement for receivership:
1. Filed by the applicant; and
2. Filed by the receiver.
Bond executed to the

adverse party in double the
value of the property, for
the return of the property
to the adverse party if such
return be adjudged and for
the payment to the adverse
party of such sum as he may
recover from the applicant
in the action (Sec. 2)
Immediately Executory
Yes
No
Discharge of Remedy
By counter-bond: Party against whom the provisional remedy is availed of may move for the discharge
No
Yes

No bond
required.
Yes
Not applicable.
115

of the provisional remedy granted by filing a counter-bond in an amount equal to that fixed by the
court or to the value of the property if with respect to a particular property to secure the payment of
any judgment that the adverse party may recover in the action.
Counter Bond
Filing of counter-bond
made only upon showing
that the issuance or
continuance thereof
would cause irreparable
Amount of
Amount of counterCash deposit may be
damage to the party or
counter-bond to
bond should be
made in lieu of the
person enjoined while the
Not applicable.
be fixed by the
double the value of
counter-bond (Sec. 12)
applicant can be fully
court (Sec. 3)
the property (Sec. 5)
compensated for such
damages as he may suffer;
counter-bond alone will
not suffice to discharge
the injunction (Sec. 6)
Other Grounds For Discharge
1. Improper or irregular
issuance
or
enforcement
or
1. Plaintiffs bond is
1. Appointment
insufficiency of bond.
found
to
be
1. Insufficiency of the
was obtained
(Sec. 13)
insufficient
or
application (Sec. 9)
without
2. Judgment
rendered
defective and is
sufficient cause.
against
attaching
not replaced with
2. Other grounds (e.g.
creditor (Sec. 19)
proper bond; or
applicants
bond
is 2. Bond posted by
3. Property attached is
insufficient/ defective),
the applicant /
exempt from execution
2. Property is not
upon affidavits of the
receiver
is
(Sec. 2 & 5)
delivered to the
party
or
person
insufficient (Sec.
4. Attachment
is
plaintiff for any
enjoined
3).
excessive, but the
reason (Sec. 6).
discharge
shall
be
limited to the excess
(Sec. 13).
Damages in Case Applicant is Not Entitled Thereto or For Irregularity of the Procurement Of the Provisional Remedy
When the judgment or
final order finds that the
person who has been
Requisites:
providing support
1. Owner of the property attached must file before trial or before perfection of appeal or
pendente lite is not
before judgment becomes executory an application for damages;
liable therefor, the court
2. Party who availed of provisional remedy and his surety must be notified, showing right shall order the recipient
to damages and amount thereof; and
to return the amounts
3. Such damages may be awarded only after proper hearing and shall be included in the
already received with
judgment of the main case.
interest from the date of
actual payment, without
If the judgment of the appellate court is favorable to the party against whom provisional prejudice to the right of
remedy was effected:
the recipient to obtain
Application must be filed with the appellate court before the judgment of the
reimbursement in a
appellate court becomes executory. Appellate court may allow application to be heard
separate action from
and decided by the trial court.
the person legally
obliged to give support.
If bond or deposit given by the party availing of the provisional remedy be insufficient or fail
to satisfy the award:
If the recipient fails to
Adverse party may recover damages in the same action (Sec. 20, Rule 57; Sec. 8, Rule 58; Sec.
reimburse the amount,
9, Rule 59; Sec. 10, Rule 60)
the person who
.
provided the same may
Note: Any award of damages for the wrongful issuance of a provisional remedy should be seek reimbursement in a
recovered in the same case. The recovery of damages cannot be had in a separate action.
separate action from
the person legally
obliged to give such
support (Sec. 7)
116
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
1. NATURE OF PROVISIONAL REMEDIES
d. Production Order
the Bar, p. 534-536, 2009 ed.)
Q: What are provisional remedies?

A: Provisional remedies are writs and processes
available during the pendency of the action which
may be resorted to by a litigant to preserve and
protect certain rights and interests therein pending
rendition, and for the purpose of the ultimate
effects, of a final judgment in the case.
Q: What is the nature of provisional remedies?
A:
1.
2.
Temporary measures availed of during

the pendency of the action
Mere incidents and are dependent upon
the result of the main action
Q: What are the purposes of provisional remedies?

A: Provisional remedies are resorted to:
1. To preserve or protect their rights or
interests while the main action is
pending;
2. To secure the judgment;
3. To preserve the status quo;
4. To preserve the subject matter of the
action.
2. JURISDICTION OVER PROVISIONAL

PROVISIONAL REMEDIES
Q: Which court has jurisdiction over applications
for provisional remedies?
A:
GR: Applications must be filed with the court having
jurisdiction over the pending principal action. Even
an inferior court may grant such remedy, however,
where the main action is for support, the
provisional remedy of support pendente lite may
not be granted by a Municipal Trial Court because
the main action is within the jurisdiction of the
Family Court. (Riano, Civil Procedure: A
XPN: in criminal actions, as long as the civil aspect
is tried together with it, the RTC or MTC having
jurisdiction may also issue the remedy of Support
pendent Lite. (e.g. Art 345 (3) RPC, in crimes against
chastity, in every case to support the offspring)
Q: When are these provisional remedies available?
A:
1.
Q: What are the Provisional Remedies under the

Rules of Court?
2.
A:
1.
2.
3.
4.
5.
Preliminary Attachment (Rule 57)

Preliminary Injunction (Rule 58)
Receivership (Rule 59)
Replevin (Rule 60)
Support Pendente Lite (Rule 61)
Q: What are the Other Provisional Remedies

available?
A:
1.
2.
3.
4.
5.
Temporary custody over a minor

Deposit in Actions for Annulment of Sale
(Reyes v. Lim)
Restraining order against the accused in
cases of violence among immediate
family members living in the same
domicile and household
Hold departure orders issued by Regional
Trial Courts in criminal cases
Interim reliefs under Writ of Amparo
a. Temporary Protection Order
b. Witness Protection Order
c. Inspection Order
3.
Attachment, injunction and support

pendent lite may be applied for before
final judgment
Replivin may be applied before the
answer
Receivership may be applied for at any
stage of the action and even after final
judgment.
3. PRELIMINARY ATTACHMENT
Q: What is Preliminary Attachment?

A: It is a provisional remedy issued upon order of
the court where an action is pending to be levied
upon the property of the defendant for the same to
be held by the Sheriff as security for the satisfaction
of whatever judgment may be rendered in the case
( Davao Light and Power, Inc.v. CA, 204 SCRA 343).
Note: This is only an ancillary remedy. There is no
separate action called preliminary attachment. It is not
a distinct proceeding and is availed of within a
principal action because it is a mere provisional
remedy. The grant of remedy is addressed to the
discretion of the court. (Riano, Civil Procedure: A

117

Q: What is
attachment?
the
purpose
of
preliminary
Q: What are the kinds of attachment?

A:
A: Preliminary attachment is designed to:

1. seize the property of the debtor before final
judgment and put the same in custodialegis even
while the action is pending for the satisfaction of a
later judgment (Insular Bank of Asia and America v.
CA, 190 SCRA 629); or
1.
2.
2. to enable the court to acquire jurisdiction over
the res or the property subject of the action in
cases where service in person or any other service
to acquire jurisdiction over the defendant cannot
be effected (Philippine Commercial International
Bank v. Alejandro, 533 SCRA 738).
Q: Who may apply for a preliminary attachment?
A: It is not only the plaintiff who may apply for a
writ of preliminary attachment. A defendant who
asserts a counterclaim, a cross-claim or a thirdparty claim may also avail of the remedy. Sec. 1 of
Rule 57 provides that the plaintiff or any proper
party may have the property of the adverse party
attached. (Borja v. Platon, 73 Phil. 659) (Riano,
Civil Procedure: A Restatement for the Bar, p. 538,
2009 ed.)
3.
Preliminary attachment- one issued at the

commencement of the action or at
anytime before entry of the judgment as
security for the satisfaction of any
judgment that may be recovered in the
cases provided for by the rules.
Garnishment- the plaintiff seeks to
subject either the property of the
defendant in the hands of the third
person called the garnishee, to his claim
or the money in which said third person
owes the defendant (RCBC v. Castro, No.
L- 34548, November 29, 1988).
Garnishment simply impounds the
property in the possession of the
garnishee and maintains the status quo
until the main action is finally decided.
Levy on execution- writ issued by the
court after judgment by which the
property of the judgment obligor is taken
into the custody of the court before the
sale of the property on execution for the
satisfaction of a final judgment.
Q: Distinguish Preliminary attachment from Final

attachment.
Q: What is the nature of the proceeding?

A:
A: Attachment is in the nature of proceeding quasi
in rem (Banco- Espanol Filipino v. Palanca, 37 Phil
921) although sometimes referred to as an actionin
rem (Valdemieso v. Damalerio, 451 SCRA 638,
February 17, 2005).
Note: Whether in rem or quasi in rem, the legal effects
are identical because in both cases jurisdiction over
the person of the defendant is not required as long as
the court acquires jurisdication over the res (Biaco v.
Countryside Rural Bank, 515 SCRA 106).
Q: Once prayed for, is it mandatory that the court

grant the writ of preliminary attachment?
A: The grant of preliminary attachment is addressed
to the sound discretion of the court.
Q: What is the effect if a preliminary action is
availed of and is granted in an action purely in
rem?
A: When availed of and granted in an action purely
in personal, it converts the action to one that is
quasi in rem. This transformation of the nature of
the action dispenses with the need of acquiring
jurisdiction over the person of the defendant.
118
PRELIMINARY
ATTACHMENT (Rule 57)
It is an auxiliary remedy
to give security for a
judgment still to be
rendered.
There is no sale because
the decision has not yet
been rendered.
Resorted to at the
commencement of the
action or at any time
before the entry of
judgment,
for
the
temporary seizure of the
property of the adverse
party
The proceeds of the sale,
in cases allowed, are in
custodial egis (Sec. 11)
FINAL ATTACHMENT
(Rule 39)
It is a means for the
execution of a final
judgment.
It should always be
accompanied by a sale at
public auction.
Available
after
the
judgment in the main
action
had
become
executor, and for the
satisfaction
of
said
judgment.
The proceeds of the sale

are turned over to the
attaching creditor
a. GROUNDS FOR THE ISSUANCE

Q: What are the groundsfor the issuance of a writ
of preliminary attachment? (When is a Preliminary
Attachment Proper?)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
A:
b.
1.
2.
3.
4.
5.
6.
Actions for the recovery of a specified

amount of money or damages
XPN:
o moral and exemplary damages
o against a party who is about to depart
from the Philippines which intent to
defraud his creditors
Actions for money or property embezzled
or fraudulently misapplied or converted
to his own use by a public officer, or an
officer of a corporation, or an attorney,
factor, broker agent, or clerk, in the
course of his employment as such, or by
other person in a fiduciary capacity, or for
a willful violation of duty
Actions to recover the possession of
property unjustly or fraudulently taken,
detained or converted, when the
property, or any part thereof, has been
concealed, removed, or disposed of to
prevent its being found or taken by the
applicant or an authorized person
Actions against a party who has been
guilty of a fraud in contracting the debt or
incurring or performance the obligation
upon which the action is brought
Actions against a party who has removed
or disposed of his property, or is about to
do so, with intent to defraud his creditors
Actions against non-residents not found
in the Philippines, or person upon whom
summons may be served by publication
Note: Insolvency of defendant is not a ground for

attachment especially when defendant has not been
shown to have committed any act intended to defraud
its creditors (Spouses Yu v. Ngo Yet Te, G.R. No.
155868, February 6, 2007).
b. REQUISITES
Q: What are the requisites in the application for a
writ of preliminary attachment?
A:
1.
2.
3.
Filed at the commencement of action or

any time before entry of judgment (Sec.
1, Rule 57)
Application by any party and affidavit
showing: (Sec. 3, Rule 57)
a. Sufficient cause of action
b. Based on grounds mentioned in
Section 1
c. No other sufficient security
d. Amount due to applicant or value of
property he is entitled to recover
Filing of a bond (Sec. 4, Rule 57):
a. Executed in favor of an adverse party
in an amount fixed by court
To answer for all costs and damages
Note: No notice to the adverse party or hearing is

required as the time which the hearing will entail could
be enough to enable the defendant to abscond or
dispose of his property before the writ issues
(Regalado, Remedial Law Compendium, Vol I, p. 624,
2007 ed.).
Q: When may an order for preliminary attachment

be applied?
A: The writ may be applied:
1. At the commencement of the action, or
2. At any time before entry of judgment
(Sec. 1, Rule 57).
c. ISSUANCE AND CONTENTS; AFFIDAVIT AND
BOND
Q: When may an order of attachment be issued
and what should be contained therein?
A: (Sec. 2, Rule 57):
1. May be issued ex-parte or
2. upon motion after notice and hearing
Requiring sheriff to attach as much property which
is not exempt from execution, as may be sufficient
to satisfy the judgment
Q: What should the affidavit contain?
A: The Affidavit of the applicant, or some other
person who personally knows the facts, must show
that:
1. sufficient cause of action exists;
2. the case is one of those mentioned in
Section 1; and
3. there is no other sufficient security for
the claim sought to be enforced by the
action, and that the amount due the
applicant, or the value of the property the
possession of which he is entitled to
recover, is as much as the sum for which
the order is granted above all legal
counterclaims.
Q: What is the basis of the bonds amount?
A: The bond shall answer for:
1. All the costs which may be adjudged to
the adverse party; and
2. All damages which he may sustain by
reason of the attachment.
Q: How may the writ be issued?
A: The writ of preliminary attachment may be
granted by:

119

1.
2.
By motion and notice of hearing by the

court in which the action is pending and
may even be issued by the CA or the SC
(Sec. 2, Rule 57);
It may also be issued ex parte and even
before summons is served upon the
defendant. However, the writ may not be
enforced
and
may
not
validly
implemented unless preceded by a
service of summons, a copy of the
complaint,
the
application
for
attachment, the order of attachment and
the attachment bond (Davao Light &
Power Co., Inc. v. CA, 204 SCRA 343).
Q: What is the rationale for allowing the ex parte

issuance of a writ of preliminary attatchment?
A: An ex parte issuance of the writ is intended to
preempt any possible disposition of property by the
adverse property to the detriment of the attaching
creditor and thus defeat the very purpose of
attachment (Mindanao Savings & Loan Association,
Inc. v. CA, 172 SCRA 480).
Q: Alfred filed an action against Banjo for
collection of sum of money with an ex-parte
application for a writ of preliminary attachment
which was granted by the trial court. A notice of
garnishment was served by the sheriff upon the
bank and summons was subsequently served upon
Banjo. Banjo then filed a motion to dissolve the
writ of preliminary attachment on the ground that
the court did not acquire jurisdiction over his
person as the writ was served ahead of the
summons. Resolve the motion.
A: The motion should be denied. The fact that the
writ of preliminary attachment was served ahead of
the summons did not affect the jurisdiction of the
court over his person. It makes the writ
unenforceable, however, all that is required is to reserve the writ. (2005 Bar Question)
Note: Where the writ of preliminary attachment had
already been implemented, the subsequent service of
summons does not confer a retroactive acquisition of
jurisdiction over her person because the law does not
allow for retroactivity of a belated service. (Torres v.
Satsatin, G.R. No. 166759, November 25, 2009)
d. RULE ON PRIOR OR CONTEMPORANEOUS

SERVICE
Q: What is the Rule on Prior or Contemporaneous
Service of Summons?
A: Enforcement of the writ of preliminary
attachment must be preceded by or simultaneously
120
accompanied by service of summons, copy of

complaint, application and affidavits for the
attachment and the bond upon the adverse party.
Jurisdiction must first be acquired through valid
service of summons first before a preliminary
attachment may be enforced.
This Rule is not necessary for the validity of the
ISSUANCE of a writ of attachment (Davao Light v.
CA, 204SCRA 343 (1991)), it is however necessary
for the validity of the ENFORCEMENT of the writ.
(Onate v. Abrogar, 241 SCRA 659 (1995))
Q: What are the cases in which contemporaneous
service is not required?
A: The requirement of prior or contemporaneous
service of summons shall not apply where:
a. the summons could not be served despite
diligent efforts;
b. the defendant is a resident of the
Philippines temporarily absent therefrom;
c. the defendant is a non-resident of the
Philippines; or
d. The action is in rem or quasi in rem (Sec.
5, Rule 57).
e. MANNER OF ATTACHING REAL AND PERSONAL
PROPERTY
Q: How can a property be attached?
A: (Sec. 7, Rule 57)
1. Real property, growing crops or interest
therein
a. File a copy of the Order of
Attachment with the proper Registry
of Deeds and Occupant or his agent
within the province
b. Description of the property
c. Notice of attachment
2. Personal property capable of manual
delivery sheriff taking into custody and
safely keeping it, he wll issue a receipt;
3. Stocks, shares or interest Leaving copy
of the writ and notice of attachment with
President or Managing Agent
4. Debts and credits, bank deposits, financial
interests, royalties, commission and other
personal property not capable of manual
delivery - Leaving copy of the writ and
notice of attachment with person owing
or having custody over the property
5. Interest in the estate of a decedent
Leaving copy of writ and notice of
attachment with:
a. Executor or administrator of estate
b. Clerk of Court where estate is being
settled
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
6.
c. Heir, devisee, or legatee;

Property in custodialegis writ to the
court or agency and notice to custodian.
A:
1.
Q: What remedies are available if property is being

claimed by a third person?
A:
1.
2.
3.
File a Third Party Complaint or terceria

(Sec. 14, Rule 57)
File a Motion for Intervention
File an independent action to recover
property
f. DISCHARGE OF ATTACHMENT OF ATTACHMENT

AND COUNTERBOND
Q: How is attachment discharged?
A:
1.
If the attachment has already been

enforced, the party whose property has
been attached may file a motion to
discharge the attachment.
Note: This motion shall be with notice and
hearing. After due notice and hearing, the
court shall discharge the attachment if the
movant makes a cash deposit or files a
counterbond executed to the attaching
party with the clerk of court where the
application is made in an amount equal to
that fixed by the court in the order of
attachment exclusive of costs (Sec. 12, Rule
57).
2.
Attachment may likewise be discharged

without the need for filing of a counterbond. This is possible when the party
whose property has been attached files a
motion to set aside or discharge the
attachment and during the hearing of the
motion he proves that:
a. The attachment was improperly
or irregularly issued or enforced
(Sec. 13, Rule 57);
b. That the bond of the attaching
creditor is insufficient or that
the attachment is excessive and
must be discharged as to the
excess (Sec. 13, Rule 57);
c. That the property is exempt
from execution, and as such is
also exempt from preliminary
attachment (Sec. 2, Rule 57).
Q: What are the grounds for the discharge of a

preliminary attachment?
2.
3.
It must be based on the following

grounds:
a. Writ was improperly or irregularly
issued or enforced (Sec. 13, Rule 57)
b. Insufficiency of bond (Sec. 13, Rule
57)
c. Excessive attachment (Sec. 13, Rule
57)
o Effect: Partial discharge (Regalado,
Remedial Law Compendium, Vol. I,
p. 683, 2005 ed.)
d. No ground for attachment (Sec. 1,
Rule 57)
e. Property is exempt from execution
(Secs 2 and 5, Rule 57)
f. Judgment is rendered against the
attaching creditor (Sec. 19, Rule 57)
g. Dissolution of attachment 1 month
next preceding the commencement
of
insolvency
proceedings
(Insolvency Law) (Feria, Civil
Procedure Annotated, Vol. II, p. 305,
2001 ed.)
Filing of a cash deposit or counterbond
(Sec. 12, Rule 57)
Notice and Hearing (Sec. 12, Rule 57)
Q: May an ex parte discharge of attachment be

allowed?
A: No. A discharge of attachment must be made
only after hearing.
Q: What is a counterbond?
A: Counterbonds are replacements of the property
formerly attached, and just as the latter, may be
levied upon after final judgment (Security Pacific
Assurance Corporation v. Tria- Infante, 468 SSCRA
526).
Q: After Defendant AAAs properties were
attached, AAA filed a sufficient counterbond and
the trial court discharged the attachment. For
having suffered substantial prejudice due to the
unwarranted attachment, the trial court rendered
a judgment ordering plaintiff to pay damages since
the latter was not entitled to the attachment. AAA
moved to charge plaintiffs attachment bond and
such was objected to by the plaintiff and his
sureties on the ground that the counter-bond
lifted plaintiffs attachment bond from all liability.
Rule on AAAs motion.
A: AAAs motion should be granted since the filing
of a counterbond does not constitute a waiver of

121

his right to proceed against the attachment bond.
Furthermore, it is a condition in an attachment
bond that applicant will pay all the costs and
damages which may be adjudged to the adverse
party. (DM Wenceslao and Associates, Inc. v
Readycon Trading and Construction Corp., G.R. No.
154106, June 29, 2004)
g. SATISFACTION OF JUDGMENT OUT OF
PROPERTY ATTACHED
Q: How can the judgment be satisfied out of the
attached property?
A: (Sec. 15, Rule 57)
1. Payment to judgment creditor of all sales
of perishable or other property
2. If any balance remains, selling property as
may be necessary to satisfy the judgment
3. Collecting from all persons having
possession of credits belonging to the
judgment debtor and paying the proceeds
to judgment creditor
Note: If it remains unsatisfied, recovery may be had on
the counterbond upon demand and notice and hearing
to surety (Sec. 17, Rule 57).
Q: What is the order of satisfaction of judgment of

attached property?
A: Order of satisfaction of judgment of attached
property:
1. Perishable or other property sold in
pursuance of the order of the court;
2. Property, real or personal, as may be
necessary to satisfy the balance;
3. collecting from debtors of the judgment
obligor;
4.
Ordinary execution.
4. PRELIMINARY INJUNCTION
a. DEFINITION AND DIFFERENCES: PRELIMINARY

INJUNCTION AND TEMPORARY RESTRAINING
ORDER
Q: What is an injunction?
A: It is an ancillary or preventive remedy where a
court requires a person, a party or even a court or
tribunal either to refrain (prohibitory) from or to
perform (mandatory) particular acts during the
pendency of an action. (Riano, Civil Procedure: A
Q: Distinguish a main action for injunction from a
preliminary injunction (2006 Bar Question).
A:
INJUNCTION AS AN
ANCILLARY REMEDY
Exist as an incident to a
principal action
Seeks to preserve the
status quo or to prevent
future wrongs in order to
preserve and protect
certain interests or rights
during the pendency of
the
action
(CortezEstrada v. Heirs of
Domingo Samut, 451
SCRA 275, February 14,
2005).
INJUNCTION AS A MAIN
ACTION
Independent action
Seeks
a
judgment
embodying
a
final
injunction, to enjoin the
defendant
from
the
commission
or
continuance of a specific
act, or to compel a
particular act in violation
of the rights of the
applicant (Almeida v. CA,
448 SSCRA 681, January
17, 2005).
Q: What are the distinctions among a preliminary injunction, prohibition and status quo order?
A:
Injunction
Directed against a party in an
action
Prohibition
Directed against a court,
tribunal or person exercising
judicial powers
Does not involve the jurisdiction

of the court
Issued on the ground that the

court against whom the writ is
sought acted without or in
excess of jurisdiction
May be the main action (final

injunction) or provisional remedy
Special Civil Action / Main

action
122
Status Quo Order

Directed against the adverse party and is issued
by the court motu propio(Regalado, Remedial
Law Compendium, Vol. I, p. 721, 2005 ed.)
Cease and Desist Order intended to maintain
the last, actual, peaceable and uncontested
state of things preceding the controversy
without requiring the doing or undoing of an
act (Regalado, Remedial Law Compendium, Vol.
I, p. 722, 2005 ed.)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: Distinguish a preliminary injunction from a
temporary restraining order.
Q: What are the requisites for the grant of a writ

of preliminary injunction?
A:
b. REQUISITES
Temporary Restraining
Order
Specie
of
preliminary
injunction to maintain
status quo before the
resolution of the writ of
preliminary injunction on
the ground of irreparable
injury
A:
1.
2.
3.
Note: Injury is irreparable if

it is not susceptible to
mathematical computation
(DFA and BSP v. Falcon and
BCA Intl Corp., G.R. No.
176657, September 1, 2010)
Effective during the

pendency of the action
unless earlier dissolved
Note: The trial court,
the Court of Appeals,
the Sandiganbyan or the
Court of Tax Appeals
that issued a writ of
preliminary injunction
against a lower court,
board, officer, or quasijudicial agency shall
decide the main case or
petition within six (6)
months
from
the
issuance of the writ.
(Sec. 5, Rule 58 as
amended by A.M. No.
07-7-12-SC)
Duration (non-extendible):
(Sec. 5, Rule 58)
1. If issued by
RTC/MTC
20days
from
notice to person
restrained
2. If issued by CA
60 days from
notice
3. If issued by SC
until lifted
Note: Prohibition against the
renewal applies only if the
same is sought under and by
reason of the same ground
for which it was originally
issued (Regalado, Remedial
Law Compendium, Vol. I, p.
725, 2005 ed.)
Note: TRO is deemed
automatically lifted after the
expiration of the effectivity
period
Notice and hearing

always required (Sec. 5,
Rule 58)
Can be issued to compel

the performance of an
act
GR: Notice and hearing

required
XPN: To prevent urgent /
irreparable injury, TRO
may be issued by
an
Executive
Judge
or
Presiding
Judge
for
72hours and a summary
hearing be subsequently
conducted within such
period
Cannot be issued to
compel the performance of
an act
4.
5.
Verified application stating the grounds

for its issuance
Applicant must establish that he has a
right to relief, a right in esse or a right to
be protected and the act against which
the injunction is directed is violative of
such right
Bond executed in favor of the person
enjoined to answer for all damages
Service of summons
XPNs:
a. Summons could not be served
personally or by substituted service
b. Adverse party is a resident but is
temporarily absent from the
Philippines
c. Adverse party is a non-resident
Notice and hearing (Sec. 5, Rule 58)
c. KINDS OF INJUNCTION
Q: What are the classes of injunction?

A:
(Ancillary Remedy)
Order granted at any
stage of the action or
proceeding prior to the
judgment or final order,
requiring a party or a
court, agency, or a person
to refrain from or to
perform particular act or
acts (Sec. 1, Rule 58)
GR: Bond is required
XPN: Exempted by court
(Sec. 4, Rule 58)
Final Injunction
(Injunction as main
action)
Issued after final
judgment of the case
permanently
restraining
the
defendant or making
the
preliminary
injunction permanent
(Sec. 9, Rule 58)
No bond is required
Q: What are the kinds of preliminary injunction?

A:
Preventive / Prohibitory
Injunction
Requires a person to
refrain from doing an act
To preserve status quo
Mandatory
Injunction
Requires
the
performance of a
particular act
To restore status quo

123

d. WHEN MAY WRIT BE ISSUED
Q: When may a writ for preliminary injunction be
issued?
Q: In what actions will a preliminary injunction not

lie?
A:
1.
A:
1.
In petitions for relief from judgment

entered through FAME;
2. In petitions for certiorari, prohibition, and
mandamus;
3. In actions for annulment of judgments
obtained through fraud;
4. In actions for annulment of judgment
which are not patent nullities ( want of
jurisdiction, lack of due process of law)
(BancoEspanol v. Palanca, 37 Phil. 921);
5. To restrain continued breach of valid
negative obligation;
6. To enjoin repeated trespass on land;
7. To restrain city from proceeding with
abatement of nuisance per accidens
before it has been judicially declared as
such;
8. To restrain voting of disputed shares of
stocks;
9. To restrain sheriff from selling property
on execution not belonging to judgment
debtor;
10. To restrain criminal prosecutions as an
exception, in the following cases:
a. To afford adequate protection
to constitutional rights of
accused;
b. When there is a prejudicial
question which is sub judice;
c. Prosecution under an invalid
law;
d. Double jeopardy is clearly
apparent;
e. Court wthout jurisdiction over
the offense;
f. Case of persecution rather than
prosection;
g. Charges manifestly false and
motivated
by
lust
for
vengeance;
h. There is clearly no prima facie
case against accused and
motion to quash on said ground
is denied; and
i.
Preliminary injunction issued by
SC to prevent threatened
unlawful arrest of petitioners.
124
Against Department of Public Works and

Highways
to
stop
government
infrastructure projects (Secs. 3 & 4,
RA8975)
XPNs:
a. Extreme urgency
b. Matter involves a constitutional
issue
c. Grave injustice and irreparable
injury will arise
d. Supreme Court may issue the
writ of preliminary injunction
Note: Injunctive writs cannot be issued
against any person or entity involved in
the execution, implementation and
operation
of
government
infrastructure projects (P.D. 1818).
2.
3.
4.
5.
6.
7.
8.
9.
Act/s perpetrated outside the inferior

courts territorial jurisdiction
Against judgments of coordinate courts
and quasi judicial bodies of equal rank
Issuance will effectively dispose of the
main case without trial and/or due
process (Boncodin v. Natl Power
Corporation Employees Consolidated
Union, G.R. No. 162716, September 27,
2006)
Labor disputes
In issuance of licenses, concessions as to
disposition,
exploitation,
utilization,
exploration and/or development of
natural resources (Sec. 1, PD605)
Implementation
of
Comprehensive
Agrarian Reform Program, collection of
taxes, criminal prosecutions
Mandatory foreclosure of a mortgage by
a government financial institution (Sec. 2,
P.D. 385)
XPN: After hearing, it is established
that 20% of outstanding arrearages is
paid after the filing of the
foreclosure proceedings
Act/s sought to be enjoined already
consummated
XPN:
Preliminary
mandatory
injunction may be availed of such
that the dispossessor in forcible
entry can be compelled to restore
possession to the original possessor
and an electric company can be
compelled to provisionally reconnect
the service it had disconnected.
(Regalado,
Remedial
Law
Compendium, Vol. I, p. 718, 2005 ed.)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
10. To transfer the property in litigation from
the possession of one party to another
where the legal title is in dispute and the
party
having
possession
asserts
ownership thereto (Almeida v. CA and Sy,
G.R. No. 159124, January 17, 2005)
XPN:
a. Forcible entry and unlawful
detainer cases preliminary
mandatory injunction may be
issued (Sec. 15, Rule 70)
11. Generally, injunction will not be granted
to take property out of the possession of
one party and place it in another whose
title not clearly established;
12. When action for damages would
adequately compensate injuries caused
(Golding v. Balatbat, 36 Phil.941);
13. To prevent directors from discharging
their offices and restoring former
directors;
14. To restrain criminal prosecution where
the Ombudsman had authorized the
Special prosecutor to conduct a
preliminary investigation or to file an
injunction.
Note: Only the SC may issue injunction against the
government, officials or any person or entity whether
public or private acting under the government
direction, to restrain, prohibit, or compel acts pursuant
to the implementation and completion of
infrastructure projects. (Sec 3, RA 8975)
e. GROUNDS FOR ISSUANCE

Q: What are the grounds for the issuance of a
preliminary injunction?
1. Clear legal right of the applicant
2. The commission, continuance or nonperformance of the act or acts
complained of will cause injustice to the
applicant
3. Person against whom injunction is sought
is doing, threatening, attempting,
procuring or suffering to do some act or
acts in violation of applicants rights
tending to render the judgment
ineffectual.
f. GROUNDS FOR OBJECTION, DISOLUTION OF
INJUNCTION OR RESTRAINING ORDER
1.
2.
3.
4.
Insufficiency of application for injunction

or restraining order
Issuance or continuance of injunction or
restraining order causes irreparable injury
while applicant may be fully compensated
for damages by bond
Extent of injunction or restraining order is
too great
Effect: modification
Insufficiency or defective bond (Sec. 7,
Rule 58).
Note: Filing of verified motion and bond as well as

hearing is required
g. DURATION OF TRO
Q: What is the duration of a TRO?
A:
1.
2.
20 days from notice : if great or

irreparable injury would result to the
applicant before the matter can be heard
on notice.
72 hours from issuance (issued ex parte) :
if the matter is of extreme urgency and
the applicant will suffer grave injustice
and irreparable injury.
Note: after conducting a summary hearing within the

72 hours period until the application for Preliminary
injunction can be heard, an extension of the 72-hour
TRo may be asked. The total period of effectivity of the
TRO shall not exceed 20 days including the 72 hours.
While the efficacy of the TRO is ordinarily nonextendible, and the trial courts have no discretion to
extend it considering the mandatory tenor of Rule 58,
there is no reason to prevent a court from extending
the 20-day period when it is the parties themselves
who ask for such extension or for the maintenance of
the status quo. (Federation of Land Reform Farmers of
the Philippines v. CA, 246 SCRA 175 (1995)).
Note: a TRO issued by the trial court or CA expires
automatically upon the lapse of the 20 day period and
60 day period respectively. There is no need for any
judicial declaration of dissolution (Paras v. Roura, 163
SCRA 1 (1988))
Q: What happens to the TRO if before the

expiration of the 20-day period, the application for
preliminary injunction is denied?
A: It will be automatically vacated. (Bacolod City
Water District v. Labayan, G.R. No. 157494,
December 10, 2004)
Q: What are the grounds for objections or

dissolution of injunction or restraining order?
125

Q: Is a second application for preliminary
injunction allowed?
A: A second application for injunction, which rests
in the sound discretion of the court, will ordinarily
be denied unless it is based on facts unknown at
the time of the first application. (Reyes v. Court of
Appeals and Sun Life Insurance Office, Ltd., G.R. No.
87647, May 21, 1990).
h. IN RELATION TO RA 8975, BAN ON ISSUANCE OF
TRO OR WRIT OF INJUNCTION IN CASES
INVOLVING GOVERNMENT INFRASTRUCTURE
Q: During the Marcos regime, a reclamation
contract was signed between the City of Mandaue
and MALAYAN. However, that transaction
appeared to be unauthorized. After sometime a
confirmatory agreement was entered by the
parties whereby MALAYAN bound itself to
undertake the project at its own expense. After
the People power, the plan was resubmitted to
the President for approval, the City of Mandaue
however started negotiated and contracted with
FF Cruz & Co. for the reclamation project.
MALAYAN filed a protest with the OP. The
Executive Secretaery disapproved the project with
MALAYAN, this prompted MALAYAN to file with
the RTC a petition for prohibitory and mandatory
preliminary injunction. RTC issued a TRO. Upon
posting a bond, injunction was issued. Whether or
not a writ of preliminary injunction may be issued
against the government?
A: Under PD 1818 and RA 8735, injunction is not
available to stop infrastructure projects of the
government (Malayan Integrated Industries vs. CA,
GR 101469, Sept. 4, 1992; PPA vs. vs. Pier 8 Arrastre
and Stevedoring Services, 475 SCRA 426). This
includes arrestre and stevedoring services.
Note: Section 1 of PD 1818 provides that:No court in
the Philippines shall have jurisdiction to issue any
restraining order, preliminary injunction, or preliminary
mandatory injunction in any case, dispute, or
controversy involving an infrastructure project, or a
mining, fishery, forest or other natural resource
development project of the government, or any public
utility operated by the government, including among
others public utilities for the transport of the goods or
commodities stevedoring and arrastre contracts, to
prohibit any person or persons, entity or government
official from proceeding with, or continuing the
execution or implementation of any such project, or
the operation of such public utility, or pursuing any
lawful activity necessary for such execution,
implementation or operation.
126
i. RULE ON PRIOR OR CONTEMPORANEOUS

SERVICE OF SUMMONS IN RELATION TO
ATTACHMENT
Q: What is the rule on prior or contemporaneous
service of summons in relation to attachment?
A: No levy on attachment pursuant to the writ of
preliminary attachment shall be enforced unless it
is preceded, or contemporaneously accompanied,
by theservice of summons, together with a copy of
the complaint, the application forattachment, the
applicants affidavit and bond, and the order and
writ ofattachment, on the defendant within the
Philippines.
The requirement of prior or contemporaneous
service of summons shall not apply in the following
instances:
1. Where the summons could not be served
personally or by substituted servicedespite
diligent efforts;
2.
The defendant is a resident of the
Philippines who is temporarily out of the
country;
3. The defendant is a non-resident; or
4.
The action is one in rem or quasi in
rem (Sec. 5).
5. RECEIVERSHIP
Q: What is Receivership?
A: Receivership is a provisional remedy wherein the
court appoints a representative to preserve,
administer, dispose of and prevent the loss or
dissipation of the real or personal property during
the pendency of an action.
It may be the principal action itself or a mere
provisional remedy; it can be availed of even after
the judgment has become final and executory as it
may be applied for to aid execution or carry
judgment into effect.
Q: Who is a receiver?
A: Person appointed by the court in behalf of all the
parties to an action for the purpose of preserving
the property involved in the suit and to protect the
rights of all the parties under the discretion of the
court.
Q: Can a party to the action be appointed as a
receiver?
A:
GR: Cannot be appointed
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
XPN: Consented to by all parties
Note: A clerk of court cannot be appointed as a
receiver (Abrigo v. Kayanan, G.R. No. L-28601, March
28, 1983)
b. REQUISITES
Q: What are the requisites in the application for
receivership?
A:
Q: Which court may appoint a receiver?
1.

1. Court where action is pending
2. Court of Appeals or Supreme Court or a
member thereof
2.
Note: During pendency of appeal, appellate court

may allow receiver to be appointed by court of
origin
Q: What is the effect of a contract executed by a

receiver without court approval?
3.
4.
5.
Party applying for receivership has an

existing interest in the property in
litigation
Verified application filed at any stage of
the proceedings even after final
judgment, prior to the satisfaction of
judgment (Sec. 1, Rule 59)
Posting of bond (Sec. 2, Rule 59)
Grounds stated in Sec. 1, Rule 59
Receiver must be sworn to perform his
duties faithfully
c. REQUIREMENTS BEFORE ISSUANCE OF AN

ORDER
A: Such contract will constitute his personal

undertakings and obligations (Pacific Merchandising
Corp. v. Consolacion Insurance & Surety Co., G.R.
No. L-30204, October 29, 1976)
Q: What is the requirement before an order of

appointment may be issued?
Note: Receivership cannot be effected on a property in

custodialegis (LizarragaHnos. V. Abada, 40phil124).
But a receiver can be appointed where a property in
custody of an administrator or executor is in danger of
imminent loss or injury. (Dolor v. Sindian, G.R. No. L27631, April 30, 1971)
A: The applicant must file a bond executed in favor

of the party against whom the application is
presented, in an amount fixed by court, to pay
damages in case receivership is procured without
sufficient cause. (Sec. 2, Rule 59)
a. CASES WHEN A RECEIVER MAY BE APPOINTED
Note: The court may require an additional bond for

further security. (Sec. 2, Rule 59)
Q: In what cases may a receiver be appointed?

1. Applicant has an interest in the property
or fund subject of the action is in danger
of being lost, removed, or materially
injured
2. Mortgaged property is in danger of being
dissipated or materially injured and that
its value is probably insufficient to
discharge the mortgage debt or
3. Stipulation in the contract of mortgage
4. To preserve the property after judgment
during the pendency of the appeal or to
dispose it according to judgment
5. To aid execution when execution has
been returned unsatisfied
6. Judgment debtor refuses to apply his
property in satisfaction of the judgment
or to carry on the judgment
7. Appointment of receiver is most
convenient and feasible means of
preserving, administering or disposing of
the property in litigation
d. POWERS OF A RECEIVER
Q: What are the powers of a receiver?
1. Power to bring and defend actions in his
own name
Note: No action may be filed by or against a
receiver without leave of court which
appointed him
2.
3.
4.
5.
6.
7.
8.
9.
Take and keep possession of the property

in controversy
Receive rents
Collect debts due to himself as receiver or
to the fund, property, estate, person or
corporation of which he is a receiver
Compound for and compromise debts
collected
Make Transfers
Pay outstanding debts
Divide money and other property that
shall remain among the persons legally
entitled to receive the same
Invest funds in his hands only by order of
the court upon written consent of all the
parties to action;

127

10. Other acts which the court may authorize
Note: Funds in the hands of a receiver may be invested
only by court order and written consent of all parties
to an action.
e. TWO KINDS OF BONDS

Q: What is the 2-bond requirement in
receivership?
A:
1.
2.
Bond posted by the applicant (Sec. 2, Rule

59)
Bond posted by receiver appointed (Sec.
4, Rule 59)
f. TERMIINATION OF RECEIVERSHIP
Q: What are the grounds for the discharge of

receiver?
A:
1.
Posting of counterbond by adverse

party (Sec. 3, Rule 59)
Note: Where counterbond is
insufficient or defective, receiver may
be re-appointed (Sec. 5, Rule 59)
2.
3.
4.
5.
Appointment of receiver was made

without sufficient cause (Sec. 3, Rule
59)
Insufficient or defective applicants
bond (Sec. 5, Rule 59)
Insufficient or defective receivers
bond (Sec. 5, Rule 59)
Receiver no longer necessary (Sec. 8,
Rule 59)
Q: How is receivership terminated?

1. By court motupropio or on motion by
either party
2. Based on the following grounds:
a. Necessity for receiver no longer
exists
b. Receiver asserts ownership over the
property (Martinez v. Grao, G.R.
No. L-25437, August 14, 1926)
3. After due notice and hearing to all
interested party
6. REPLEVIN
Q: What is replevin?
A: Replevin is a proceeding by which the owner or
one who has a general or special property in the
thing taken or detained seeks to recover possession
128
in specie, the recovery of damages being only

incidental (Am. Jur. 6). Replevin may be a main
action or a provisional remedy. As a principal action
its ultimate goal is to recover personal property
capable of manual delivery wrongfully detained by
a person. The main action for replevin is primarily
possessory in nature and generally determines
nothing more than the right of possession.
Note: A writ of replevin may be served anywhere in
the Philippines (Regalado, Remedial Law Compendium,
Vol. I, p. 749, 2005 ed.)
Q: Distinguish
attachment.
replevin
from
preliminary
A:
Replevin
Recovery of possession of
personal property is the
principal relief and
damages are incidental
This is available before
defendant files an answer
Available only where

defendant is in actual or
constructive possession of
personal property involved
Extends only to personal
property capable of
manual delivery
Used to recover personal
property even if not being
concealed, removed or
disposed
Cannot be availed of when
property is in
custodialegis(under
attachment) or seized
under search warrant
Property of GOCCs cannot
be reached
Sheriff takes possession of

the property subject of the
replevin and hold the
same for a period of 5
days after which said
property will be delivered
to the party who obtained
the writ.
Bond to be posted is
double the value of the
property sought to be
recovered
Preliminary Attachment
Available even if
recovery of personal
property is only an
incidental relief
Available from
commencement but
before entry of
judgment
May be resorted to even
if personal property is in
the custody of a third
person
Extends to all kinds of
property whether real,
personal or incorporeal
Recover property being
concealed, removed or
disposed
Can be resorted to even
if property is in
custodialegis
Properties of GOCCs
may be reached if
utilized in its proprietary
function.
Sheriff does not take
possession of the
property attached
except contructively
placing it under custodia
legis.
Bond amount is fixed by

court and does not
exceed the claim or
value of the property to
be attached
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Note: These remedies cannot be availed of in the same
case.
1.
Q: To be able to secure financial accommodations

from Makati Leasing, Wearever discounted and
assigned several receivables under a Receivable
Purchase Agreement. To secure the collection of
the receivables assigned, private respondent
executed a chattel mortgage over certain
machineries which were bolted to the ground.
Upon default Makati Leasing move for
extrajudicial foreclosure of the mortgage
properties and filed an action for replevin which
was granted by the court. Can the machineries
bolted to the ground be a subject of replevin?
2.
3.
4.
Applicant is the owner of the property

claimed, particular description of such,
entitlement to possession
Property is wrongfully detained, alleging
cause of detention according to
applicants knowledge, information and
belief
Property has not been taken for tax
assessment or fine, or seized by writ of
execution, preliminary attachment, in
custodialegis, if so seized, that it is
exempt or should be released from
custody
Actual market value of the property
c. AFFIDAVIT AND BOND; REDELIVERY BOND

A: Machineries bolted to the ground are real
properties that may not be the subject to replevin
(Makati Leasing and Finance Corporation v.
Wearever Textile Mills Inc. GR No L- 58469, May 16,
1983).
a. WHEN MAY WRIT BE ISSUED
Q: When may a writ of replevin be issued?
A: This may only be obtained when the defendant
in the action has not yet filed his answer to the
complaint where it is necessary to:
1. Protect plaintiffs right of possession to
property
2. Prevent defendant from destroying,
damaging or disposing of the property
Q: Can a writ of replevin be issued anywhere in the
Philippines?
A: Under the Resolution of the Supreme Court
enbanc dated January 11, 1983, providing for the
interim rules and guidelines relative to the
implementation of BP 129, a writ of replevin like
the one issued in the present case may be served
anywhere in the Philippines (Fernandez v.
International Corporate Bank now Union Bank of
the Philippines, GR No 131283, October 7, 1999).
b. REQUISITES
Q: What are the contents of the affidavit?

A: Affidavit, alleging:
1. That the applicant is the owner of property
claimed, describing it or entitled to its possession;
2. That the property is wrongfully detained by the
adverse party, alleging cause of its detention;
3. That the property has not been distrained or
taken for tax assessment or fine or under writ of
execution/attachment
or
placed
under
custodialegis or if seized, that it is exempt or should
be released; and
4. The actual market value of the property.
Q: What is redelivery bond?
A: Bond, which must be double the value of
property, to answer for the return of property if
adjudged and pay for such sum as he may recover
from the applicant (Sec. 2).
Q: When is it required?
A: It is required that the redelivery bond be filed
within the period of 5 days after the taking of the
property. The rule is mandatory (Yang vs. Valdez,
177 SCRA 141).
Q: What are the requisites in applying for

replevin?
d. SHERIFFS DUTY IN THE IMPLEMENTATION OF

THE WRIT; WHEN PROPERTY IS CLAIMED BY THIRD
PARTY
A:
Q: What are the duties of the sheriff?
1.
2.
Filing of Affidavit by any party before an

answer is filed
Posting of bond double the value of the
property
Q: What are the contents of the affidavit?

A:
1.
2.
Serve a copy of the court order,

application, affidavit and bond upon the
adverse party
Take the property and retain it in his
custody

129

3.
4.
5.
If property is concealed, make a public

demand for the delivery of the property
If property is not delivered, sheriff must
cause the building or enclosure to be
broken and take property and keep such
in his custody
Deliver the property to the party entitled
to such upon receiving his fees.
Q: When may a property subject of replevin be

returned?
A:
1.
2.
3.
Filing of a redelivery bond double the

value of the property
Plaintiffs bond is insufficient or defective
and is not replaced with a proper bond
Property is not delivered to the plaintiff
for any reason
rules that are applicable only to specific special civil

actions (sec. 3) The fact that an action is subject to
special rules other than those applicable to ordinary
civil actions is what makes a civil action special.
2. ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL

ACTIONS
Q: Distinguish ordinary civil action from special
civil action.
A:
Ordinary Civil Action
Must be based on a
cause of action act
or
omission
in
violation of the rights
of another
Q: What are the remedies of a third person whose

property is taken by virtue of a replevin?
A:
1.
2.
3.
Third party shall file and serve affidavit

upon sheriff and applicant stating his
entitlement to possession
Sheriff shall return the property to third
person unless applicant files a bond (same
amount as the value of the property)
approved by court to indemnify the third
person
Claim for damages upon said bond must
be filed within 120days from date of filing
of the bond
Q: Is the Rule on Prior or Contemporaneous

Service of Summons observed in Replevin?
A: Yes. Although the writ of replevin may be issued
ex-parte, it cannot be implemented or enforced if
not preceded or accompanied by a service of
summons.
S. SPECIAL CIVIL ACTIONS
1. NATURE OF SPECIAL CIVIL ACTIONS
Q: What are Special Civil Actions?
A: Since a civil action in general is one by which a
party sues another for the enforcement or
protection of a right, or the prevention or redress of
a wrong (Sec. 3 [a], Rule 1, Rules of Court), a special
civil action is generally brought or filed for the same
purpose.
Note: although both types of actions are governed by
the rules for ordinary civil actions, there are certain
130
Venue is determined
either
by
the
residences of the
parties where the
action is personal or
by the location of the
property where the
action is real
May be filed in
Municipal Trial Court
or the Regional Trial
Court
depending
upon
the
jurisdictional amount
or nature of the
action
May be commenced
only by the filing of
complaint
Special Civil Action

Cause
of
action
not
necessarily needed
Examples:
1. Declaratory relief
action is brought before
there is any breach
2. Interpleader plaintiff
files a complaint even if
he has not sustained
actual transgression of
his rights
Not necessarily true as in quo
warranto, the venue is where
the Supreme Court or Court
of Appeals if the petition is
commenced in any of these
courts without taking into
consideration the residences
of the parties
Some actions may be filed
only in the Municipal Trial
Court, some cannot be
commenced therein
May be commenced by the

filing of a complaint or
petition
Q: What are the special civil actions under the

Rules of Court?
A:
1.
2.
3.
4.
5.
6.
7.
Interpleader (Rule 62)

Declaratory relief and similar remedies
(Rule 63)
Review of judgments and final orders of
the COMELEC and the Commission on
Audit (Rule 64)
Certiorari, prohibition and mandamus
(Rule 65)
Quo warranto(Rule 66)
Expropriation (Rule 67)
Foreclosure of real estate mortgage(Rule
68)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
8.
9.
Partition (Rule 69)

Forcible entry and unlawful detainer
(Rule 70)
10. Contempt (Rule 71)
Q: What are the three special civil actions which
are within the jurisdiction of inferior courts?
A:
1.
2.
3.
Interpleader, provided that the amount is

within the jurisdiction of such inferior
court
Ejectment suits
Contempt
Q: What special civil actions are initiated by

complaints and initiated by petitions?
A:
1.
2.
by complaint
a. interpleader
b. expropriation
c. foreclosure of real estate mortgage
d. partition
e. forcible entry and unlawful detainer
by petition
a. declaratory relief
b. review of judgments and final
orders or resolutions of the
COMELEC / COA
c. Certiorari
d. Prohibition
e. Mandamus
f. Quo Warranto
g. Contempt
3. JURISDICTION AND VENUE
Q: Who has jurisdiction over special civil actions

and where should it be filed?
A:
Jurisdiction
Venue
Interpleader
MTC where the value of
Where the plaintiff or
the claim or the personal
any of the principal
property does not exceed
plaintiff resides or where
P300,000 or P400,000 in
Metro Manila or where the the defendant or any of
value of the real property the principal defendants
resides
does not exceed P20,000
or P50,000 in Metro
Manila.
RTC if the value exceeds
the above amounts or if
the subject matter is
exclusively within the
jurisdiction of the RTC
Note: The venue of special

civil actions is governed by
the general rules on
venue, except as
otherwise indicated in the
particular rule for said
special civil action.
Declaratory Relief
RTC
Note: It would be error to
file the petition with the SC
which has no original
jurisdiction to entertain a
petition for declaratory relief
(Tano v. Socrates, G.R. No.
110249, Aug. 14, 1997)
Where the petitioner or

the respondent resides
Expropriation
Land: where the
RTC (incapable of
property is located
pecuniary estimation)
(Barangay San Roque v.
Personal property: the
Heirs of Pastor, G.R. No.
place where the plaintiff
138896, June 20, 2000)
or defendant resides
Certiorari, Prohibition, Mandamus
RTC: if it is directed
against a municipal trial
court, a corporation, a
board, an officer or a
person.
CA or with the SB,
whether or not the
same is in aid of the
courts appellate
jurisdiction.
RTC, CA, SC,
Sandiganbayan COMELEC
in aid of its appellate
jurisdiction (A.M. No. 077-12-SC)
If the petition involves

an act or an omission of
a quasi-judicial agency,
unless otherwise
provided by law or the
Rules, the petition shall
be filed with and be
cognizable only by the
Court of Appeals.
In election cases
involving an act or
omission of MTC /RTC,
it shall be filed
exclusively with the
COMELEC, in aid of its
appellate jurisdiction
(Sec. 4, Rule 65)
Quo Warranto
With the SC, CA, or in
the RTC exercising
territorial area where
the respondent or any
of the respondents
RTC, CA, SC, SB in aid of its
resides. When the
Solicitor General
commences the action,
it may be brought in a
RTC in the City of
Manila, in the CA, or in
the SC (Sec. 7, Rule 66)

131

Note: Subject to the
principle of Hierarchy of
Courts
Contempt
Where the charge for
indirect contempt has
been committed against
RTC or a court of
equivalent or higher
rank, or against an
officer appointed by it,
the charge may be filed
with such court.
Where such contempt
has been committed
against a lower court,
the charge may be filed
with the RTC of the
place in which the lower
court is sitting; but the
proceedings may also
be instituted in such
lower court subject to
appeal to the RTC of
such place (Sec. 5, Rule
70)
Forcible Entry
Metropolitan Trial Courts;
Where the property is
covered by Rule on
located
Summary Procedure
Unlawful Detainer
Metropolitan Trial Courts;
Where the property is
covered by Rule on
located
Summary Procedure.
Partition
1. Real property
where the property
RTC
is located
(incapable of pecuniary
2. Personal property
estimation)
the place where
the plaintiff or
defendant resides
(Sec. 13, Rule 69)
Foreclure of REM
RTC (incapable of
pecuniary estimation)
Where the land or any
(Barangay San Roque v.
part thereof is located
Heirs of Pastor, G.R. No.
138896, June 20, 2000)
Q: Distinguish
intervention.
between
INTERPLEADER
Special civil action,
independent
and
original
Commenced by the
filing of a complaint.
Filed by a person who

has no interest in the
subject matter of the
action or if he has an
interest, the same is
not disputed by the
claimants.
The defendants are

brought
into
the
action only because
they are impleaded as
such in the complaint.
INTERVENTION
Not an original action but
mere
ancillary
and
depends
upon
the
existence of a precious
pending action.
Commenced by a motion
to intervention filed in a
pending case attaching
thereto the pleading- inintervention.
Filed by a person who has a
legal interest in any of the
following:
a. The subject matter of
the litigation;
b. The success of either
of the parties; or
c. The success of both of
the parties; or
d. He may be adversely
affected
by
the
disposition
or
distribution
of
property
in
the
judgment.
If
a
complaintinintervention is filed, the
defendants are already
parties to an existing suit
not because of the
intervention but because
of the original suit.
a. REQUISITES FOR INTERPLEADER

Q: What are the requisites in order that the
remedy of interpleader may be availed of?
A:
1.
2.
3.
4. INTERPLEADER
4.
Q: What is an interpleader?
5.
132
and
A:
MTC, RTC, CA, SC
A: It is a special civil action filed by a person against

whom two conflicting claims are made upon the
same subject matter and over which he claims no
interest, to compel the claimants to interplead and
to litigate their conflicting claims among
themselves. (Sec. 1, Rule 62).
interpleader
6.
Plaintiff claims no interest in the subject

matter or his claim is not disputed
Two or more claimants asserting
conflicting claims
The subject matter must be one and the
same
Person in possession or obliged files a
complaint.
The parties to be interpleaded must make
effective claims.
Payment of docket and other lawful fees.
Note: Upon filing of complaint, the court shall issue an

order requiring conflicting claimants to interplead.
(Sec. 2, Rule 62)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
b. WHEN TO FILE
2.
3.
4.
Q: When must an action for interpleader be filed?

A: Within a reasonable time after a dispute has
arisen without waiting to be sued by claimants and
before such is barred from laches. (Feria, Civil
Procedure Annotated, Vol. II, p. 425, 2001 ed.)
Q: Which court
interpleader?
has
jurisdiction
over
an
A: Inferior courts have jurisdiction so long as the

amount involved is within their jurisdiction
Cross-claim
Third-party complaints
Responsive pleadings
Q: May an interpleader be availed of the resolve

breach of undertaking?
A: No. Such issue should be resolved in an ordinary
civil action for specific performance or other relief
(Beltran v. PHHC, G.R. No. L-25138, August 28,
1969)
5. DECLARATORY RELIEF AND SIMILAR REMEDIES
Q: What is a declaratory relief?
Q: Should there be service of summons in

interpleader?
Note: Claimants shall have 15days to file an answer

and such answer must be served upon the plaintiff and
co-defendants. (Sec. 5, Rule 62).
A: A special civil action brought by a person

interested under a deed, will, contract or other
written instrument, or whose rights are affected by
a statute, executive order or regulation, ordinance
or any other governmental regulation, before
breach or violation thereof, asking the court to
determine any question of construction or validity
arising, and for a declaration of his rights or duties
thereunder.
Q: What is the effect of failure of a claimant to file

an Answer?
Q: What is the purpose of an action for declaratory

relief?
A: Upon motion, the court may declare such

claimant in default and render a judgment barring
him from any claim in respect to the subject matter.
(Sec. 5, Rule 62)
A:
A: Summons and copies of the complaint and order

shall be served upon conflicting claimants. (Sec. 3,
Rule 62)
1.
Q: May a motion to dismiss be filed?

2.
A: Yes. It may be filed by any of the claimant within
the time for filing an answer. (Sec. 4, Rule 62)
Q: What are the grounds for filing a motion to
dismiss?
To
determine
any
question
of
construction
or
validity
or
constitutionality of an instrument,
ordinance or regulation
Declaration of rights and duties
thereunder
Q: Distinguish declaratory judgment from ordinary

judgment.
A:

1. Impropriety of the interpleader action
2. Grounds specified under Rule 16 of the
Rules of Court
Q: What is the effect of filing a motion to dismiss?
A: Period to file an answer is tolled and if the
motion is denied, the answer may be filed within
the remaining period which shall not be less than
5days from notice of denial. (Sec. 4, Rule 62)
Q: What are the other allowed pleadings in an
interpleader?
1. Counterclaim
DECLARATORY
JUDGMENT
Declaratory
judgment
stands by itself and no
executory
process
follows
Intended to determine
any
question
of
construction or validity
prior to breach or
violation
ORDINARY JUDGMENT
Ordinary
judgment
involves executor or
coercive relief
Intended to remedy or
compensate
injuries
already suffered
a. WHO MAY FILE THE ACTION

Q: Who may file an action for declaratory relief?
A: Any person:

133

1.
2.
Interested under a deed, will,

contract or other written instrument
Whose rights are affected by a
statute,
executive
order
or
regulation, ordinance or any other
governmental regulation
b. REQUISITES OF ACTION FOR DECLARATORY

RELIEF
Q: What are the requisites of an action for
declaratory relief?
A:
1.
2.
Filing of Petition before there is a breach

or violation
Subject matter is a deed, will, contract,
written instrument, statute, executive
order, regulation or ordinance
A: Court may motupropio or upon motion refuse

based on the following grounds:
1. A decision will not terminate the
uncertainty or controversy which gave
rise to the action
2. Declaration or construction is not
necessary and proper under the
circumstances
Note: Discretion to refuse does not extend to actions
for reformation of an instrument quiet title or remove
clouds or to consolidated ownership in a pacto de retro
sale. (Regalado, Remedial Law Compendium, Vol. I, p.
769, 2005 ed.)
Q: Can the court exercise discretion in application

for declaratory relief?
A:
1.
Note: The enumeration of the subject

matter is exclusive, hence, an action not
based on any of the enumerated subject
matters cannot be the proper subject of
declaratory relief. (Riano, Civil Procedure: A
3.
4.
5.
6.
There is justiciable controversy

Issue is ripe for judicial determination
(Republic v. Orbecido III, G.R. No. 154380,
October 5, 2005), i.e. litigation is
imminent and inevitable (Tolentino v.
Board of Accountancy, G.R. No. L-3062,
September 28, 1951)
Adequate relief is not available through
other means or other forms of action or
proceedings (Ollada v. Central Bank, G.R.
No. L-11357, May 31, 1962)
The controversy is between persons
whose interests are adverse;
Q: To whom shall notices be given?

A:
1.
2.
Solicitor general if subject matter

involves:
a. Validity of statute, executive order,
regulation
or
governmental
regulation
b. Constitutionality of local government
ordinance
Prosecutor or attorney of the local
government unit if subject matter
involves validity of local government unit
c. WHEN COURT MAY REFUSE TO MAKE JUDICIAL

DECLARATION
Q: When may a court refuse to make a judicial
declaration?
134
2.
In declaratory relief, the court is given

the discretion to act or not to act on the
petition. It may therefore choose not to
construe the instrument sought to be
construed or could refrain from
declaring the rights of the petitioner
under the deed or the law. A refusal of
the court to declare rights or construe
an instrument is actually the functional
equivalent of the dismissal of the
petition.
On the other hand, the court does not
have the discretion to refuse to act with
respect to actions described as similar
remedies. Thus, in an action for
reformation of an instrument, to quiet
or to consolidate ownership, the court
cannot refuse to render a judgment (Sec.
5, Rule 63).
d. CONVERSION TO ORDINARY ACTION

Q: When may an action for declaratory relief be
converted into an ordinary action?
A: After filing of petition for declaratory relief but
before the final termination of the case or rendition
of judgment, a breach or violation of an instrument,
statute, executive order, regulation or ordinance
takes place. (Sec. 6, Rule 63)
Q: Distinguish Ordinary Civil Action from Special
Civil Action for Declaratory Relief.
A:
1. Ordinary civil action plaintiff alleges that his
right has been violated by the defendant; judgment
rendered is coercive in character; a writ of
execution may be executed against the defeated
party.
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
2. Special civil action of declaratory relief an
impending violation is sufficient to file a declaratory
relief; no execution may be issued; the court merely
makes a declaration.
Q: Is a third-party complaint proper in an action
for declaratory relief?
A: No. Because in a third-party complaint, such
person seeks to obtain contribution, indemnity,
subrogation or other reliefs and a declaratory relief
is confined merely to the interpretation of the
terms of a contract. (Commission of Customs v.
Cloribel, G.R. No. 21036, June 30, 1977).
Q: What are the instances wherein a declaratory
relief is unavailable?
A:
1.
To obtain judicial declaration of

citizenship;
2. To establish illegitimate filiation and
determine hereditary rights;
3. The subject of the action is a court
decision;
4. Actions to resolve political questions;
5. Those determinative of the issues rather
than a construction of definite status,
rights and relations;
6. Terms of assailed ordinances are not
ambiguous or of doubtful meaning;
7. In a petition to seek relief from a moot
and academic question;
8. Where the contract or statute on which
action is based has been breached;
9. When the petition is based on the
happening of a contingent event;
10. When the petitioner is not the real party
in interest; and
11. Where the administrative remedies have
not yet been exhausted.
e. PROCEEDINGS CONSIDERED AS SIMILAR
REMEDIES
Q: What are the similar reliefs referred to under
Rule 63?
A:
1.
2.
3.
Reformation of an instrument
Quiet title to real property or to remove
clouds
Consolidation of ownership (Art. 1607,
Civil Code)
(1) REFORMATION OF AN INSTRUMENT

Q: What is meant by reformation of instrument?
A: It is not an action brought to reform a contract

but to reform the instrument evidencing the
contract. It presupposes that there is nothing wrong
with the contract itself because there is a meeting
of minds between the parties. The contract is to be
reformed because despite the meeting of minds of
the parties as to the object and cause of the
contract, the instrument which is supposed to
embody the agreement of the parties does not
reflect their true agreement by reason of mistake,
inequitable conduct or accident. The action is
brought so the true intention of the parties may be
expressed in the instrument (Art. 1359, CC).
Q: When may an instrument be reformed?
A: The instrument may be reformed if it does not
express the true intention of the parties because of
lack of skill of the person drafting the instrument
(Art. 1363, CC). If the parties agree upon the
mortgage or pledge of property, but the instrument
states that the property is sold absolutely or with a
right of repurchase, reformation of the instrument
is proper (Art. 1365, CC).
Q: What is the remedy if the consent of a party to
a contract has been procured by fraud, inequitable
conduct, or accident?
A: Where the consent of a party to a contract has
been procured by fraud, inequitable conduct or
accident, and an instrument was executed by the
parties in accordance with the contract, what is
defective is the contract itself because of vitiation
of consent. The remedy is not to bring an action for
reformation of the instrument but to file an action
for annulment of the contract (Art. 1359, CC).
Note: Reformation of the instrument cannot be
brought to reform any of the following:
1. Simple donation inter vivos wherein no condition
is imposed;
2. Wills; or
3. When the agreement is void (Art. 1666, CC).
(2) CONSOLIDATION OF OWNERSHIP

Q: What is the purpose of an action brought to
consolidate ownership?
A: The action brought to consolidate ownership is
not for the purpose of consolidating the ownership
of the property in the person of the vendee or
buyer but for the registration of the property. The
lapse of the redemption period without the seller a
retro exercising his right of redemption,

135

consolidates ownership or title upon the person of
the vendee by operation of law. Art. 1607 requires
the filing of the petition to consolidate ownership
because the law precludes the registration of the
consolidated title without judicial order (Cruz vs.
Leis, 327 SCRA 570).
Note: The concept of consolidation of ownership
under Art. 1607, Civil Code, has its origin in the
substantive provisions of the law on sales. Under the
law, a contract of sale may be extinguished either by
legal redemption (Art. 1619) or conventional
redemption (Art. 1601). Legal redemption (retracto
legal) is a statutory mandated redemption of a
property previously sold. For instance, a co-owner of a
property may exercise the right of redemption in case
the shares of all the other co-owners or any of them
are sold to a third person (Art. 1620). The owners of
adjoining lands shall have the right of redemption
when a piece of rural land with a size of one hectare or
less is alienated (Art. 1621). Conventional redemption
(pacto de retro) sale is one that is not mandated by the
statute but one which takes place because of the
stipulation of the parties to the sale. The period of
redemption may be fixed by the parties in which case
the period cannot exceed ten (10) years from the date
of the contract. In the absence of any agreement, the
redemption period shall be four (4) years from the
date of the contract (Art. 1606). When the redemption
is not made within the period agreed upon, in case the
subject matter of the sale is a real property, Art. 1607
provides that the consolidation of ownership in the
vendee shall not be recorded in the Registry of
Property without a judicial order, after the vendor has
been duly heard.
(3) QUIETING OF TITLE TO REAL PROPERTY

Q: What is an action for quieting title to real
property?
136
A: The plaintiff need not be in possession of the real

property before he may bring the action as long as
he can show that he has a legal or an equitable title
to the property which is the subject matter of the
action (Art. 477, Civil Code).
6. REVIEW OF JUDGMENT AND FINAL ORDERS OR
RESOLUTIONS OF THE COMELEC AND COA
Q: What is the constitutional basis for the
application of Rule 65 under Rule 64?
A: Sec. 7, Art. IX-A of the Constitution reads, unless
otherwise provided by the Constitution or by law,
any decision, order or ruling of each commission
may be brought to the Supreme Court on certiorari
by the aggrieved party within 30 days from receipt
of a copy thereof. The provision was interpreted
by the Supreme Court to refer to certiorari under
Rule 65 and not appeal by certiorari under Rule 45
(Aratuc vs. COMELEC, 88 SCRA 251; Dario vs. Mison,
176 SCRA 84). To implement the above
constitutional provision, the SC promulgated Rule
64.
Q: What is the mode of review for judgments and
final orders of the COMELEC and COA?
A: The petition may be brought by the aggrieved
party to the Supreme Court on Certiorari under
Rule 65, except otherwise provided.
Note: Rule 65 applies to the mode of review under
Rule 64.Said mode of review is based on Article IX-A of
the 1987 Constitution providing that the proper mode
of review is certiorari under Rule 65 to be filed before
the Supreme Court.Under R.A. 7902 the Court of
Appeals has jurisdiction over all adjudications of the
Civil Service Commission.
A: This action is brought to remove a cloud on title

to real property or any interest therein. The action
contemplates a situation where the instrument or a
record is apparently valid or effective but is in truth
and in fact invalid, ineffective, voidable or
unenforceable, and may be prejudicial to said title
to real property. This action is then brought to
remove a cloud on title to real property or any
interest therein. It may also be brought as a
preventive remedy to prevent a cloud from being
cast upon title to real property or any interest
therein (Art. 476, Civil Code).
Note: The order to comment under Sec. 6, Rule 64 in

case the Supreme Court finds the petition sufficient in
form and substance is equivalent to summons in
ordinary civil action.
Q: Is it required that the plaintiff be in the

possession of the property before an action is
brought?
Note: While Rule 64 makes reference to the certiorari

under Rule 65, the period for the filing of the petition
for certiorari assailing the judgment of the COMELEC
and COA is shorter than that provided under Rule 65
Q: What is the period for filing certiorari as

referred to in Rule 64?
A: The petition for certiorari referred to in Rule 64
shall be filed within 30 days from notice of the
judgment, final order or resolution of the COMELEC
and the COA sought to be reviewed (Sec. 3, Rule
64).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: When may the court issue an order to
comment?
A: If the SC finds the petition sufficient,
respondents will be ordered to file a verified
comment within 10days from notice of such order.
(Sec. 6, Rule 64)
Q: What are basic requirements for the petition?
A: The following basic requirements must be
complied with:
1. The petition shall be verified and filed in 18
copies;
2. Accompanied by clearly legible duplicate original
or certified true copy of the judgment, final order or
resolution subject thereof, together with certified
true copies of documents relevant and pertinent to
the petition;
3. The aggrieved party is named as the petitioner
and shall join as respondent the commission
concerned and all the persons interested in
sustaining the judgment, final order or resolution.
4. The petition shall state the facts with certainty,
present clearly the issues involved, set forth the
grounds and brief arguments relied upon for
review;
5. Petition shall state the specific material dates
showing that it was filed within the period fixed by
the Rules.
6. The petition shall be accompanied by proof of
service of a copy thereof on the commission
involved and on the adverse party, and of the
timely payment of docket and other lawful fees
(Sec. 5, Rule 64)
7. Certification against non forum shopping
8. Petition shall pray for a judgment annulling or
modifying the questioned judgment, final order or
resolution.
Note: The failure of the petitioner to comply with any
of the foregoing requirements shall be sufficient
ground for the dismissal of the petition (Sec. 5, Rule
64).
a. APPLICATION OF RULE 65 UNDER RULE 64
aggrieved party may file

the petition within the
remaining period, but
which shall not be less
than 5 days.
b. DISTINCTION IN THE APPLICATION OF RULE 65

TO JUDGMENTS OF THE COMELEC AND COA AND
THE APPLICATION OF RULE 65 TO OTHER
TRIBUNALS, PERSONS AND OFFICERS
Q: Distinguish the mode of review of judgment,
final orders or resolutions of COMELEC and COA
from other tribunals, persons and officers.
A:
Rule 64 for COMELEC
and COA
Petition is based on
questions of law
It is a mode of appeal
but the petition used
is Rule 65
Involves review of
judgments, final
orders or resolutions
of COMELEC and COA
from notice of
judgment, final order
or resolution sought
to be reviewed
Does not stay the
execution unless SC
shall direct otherwise
upon such terms as it
may deem just
The COMELEC and
COA shall be public
respondents who are
impleaded in the
action
Q: Distinguish Rule 64 from Rule 65.

A:
Rule 64
Directed only to the
judgments, final orders or
resolutions
of
the
COMELEC and COA;
Must be filed within 30
days from notice of
judgment or resolution
If MR is denied, the
Rule 65
Directed to any tribunal,
board
or
officers
exercising judicial or
quasi-judicial functions;
Must be filed within 60
days from notice of
judgment or resolution
If MR is denied, the
aggrieved party will have

another 60 days within
which to file the petition
counted from the notice
of denial.
The filing of MNT or

MR, if allowed under
the procedural rules of
the Commission, shall
interrupt period fixed
The court is in the
exercise of its
and power of review
Review of judgment,
final orders or
resolutions of other
tribunals, persons and
officer
Petition is based on
questions of law
It is a mode of appeal
Involves the review of
the judgment final
orders or resolutions of
the CA, Sandiganbayan,
CTA, RTC or other courts
from notice of
judgment, final order or
resolution appealed
from
Stays the judgment or

order appealed from
The appellant and the

appellee are the original
parties to the action,
and the lower court or
quasi-judicial agency is
not impleaded
Motion for
reconsideration is not
required
The court is in the

exercise of its appellate
jurisdiction and power
of review

137

Petition for certiorari
is to be filed before
the SC
Petition for certiorari is

to be filed only with the
Court of Appeals
Q: What are the requisites for a review under Rule

64?
b.
4.
5.
6.
Certified true copy of material

records of the case
Statement of material dates
Sworn certification against forum
shopping
Proof of service
A:
1.
Filing of verified petition within 30days

from notice of the judgment, final orders
or resolutions (Sec. 3, Rule 64)
Q: What are the grounds for the outright dismissal

of the petition?
Note: Interlocutory orders must be assailed

under Rule 65, not Rule 64

1. Petition is not sufficient in form and
substance (Sec. 5, Rule 64)
2. Petition was filed for purpose of delay
3. Issue is unsubstantial
2.
Payment of docket and other lawful fees

(Sec. 4, Rule 64)
Note: The filing of the petition for certiorari does not

stay the execution of the assailed judgment, final order
or resolution of the Commission unless SC directs
otherwise by the issuance of a temporary restraining
order or preliminary injunction. (Sec. 8, Rule 64)
Q: What are the contents of the petition?

1. Verified petition filed in 18copies joining
as
respondents
the
Commission
concerned and person/s interested in
sustaining the judgment, final order or
resolution a quo
2. Statement of facts, issues, grounds for
review, arguments and relief prayed for
3. Attachment of:
a. Duplicate original or certified true
copy of assailed judgment, final
order or resolution
Q: Are findings of fact reviewable under Rule 64

using Rule 65?
A: The petition under Rule 64 using Rule 65, cannot
question the findings of fact of the commission
involved where such findings are supported by
substantial evidence. Such findings when so
supported by the requisite quantum of evidence
are final and non- reviewable (Sec 5, Rule 64).
Q: What is the effect of filing of a motion for new
trial or reconsideration if allowed under the
procedural rules of the commission concerned?
A: It will interrupt the period for filing the petition
and if motion is denied, the petition may be filed
within the remaining period which shall not be less
than 5days. (Sec. 3, Rule 64)
7. CERTIORARI, PROHIBITION AND MANDAMUS

GENERAL MATTERS
a. DEFINITIONS AND DICTINCTIONS
CERTIORARI
PROHIBITION
MANDAMUS
Certiorari is an extraordinary writ Prohibition is an extraordinary writ Mandamus is an extraordinary writ
annulling
or
modifying
the commanding
a
tribunal, commanding a tribunal, corporation, board
proceedings of a tribunal, board or corporation, board or person, or person, to do an act required to be done:
officer exercising judicial or quasi- whether exercising judicial, quasi- (a)
When he unlawfully neglects the
judicial functions when such tribunal, judicial or ministerial functions, to performance of an act which the law
board or officer has acted without or desist from further proceedings specifically enjoins as a duty, and there is no
in excess of its or his jurisdiction, or when said proceedings are without other plain, speedy and adequate remedy in
with grave abuse of discretion or in excess of its jurisdiction, or the ordinary course of law; or
amounting to lack or excess of with abuse of its discretion, there (b) When one unlawfully excludes another
jurisdiction, there being no appeal or being no appeal or any other plain, from the use and enjoyment of a right or
any other plain, speedy and adequate speedy and adequate remedy in the office to which the other is entitled (Sec. 3,
remedy in the ordinary course of law ordinary course of law (Sec. 2, Rule Rule 65).
(Sec. 1, Rule 65).
65).
Directed against a person exercising to Directed against a person exercising Directed against a person exercising
judicial or quasi-judicial functions
judicial or quasi-judicial functions, ministerial duties
or ministerial functions
138
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
To correct an act performed by
respondent
Purpose is to annul or modify the
proceedings
Person or entity must have acted
without or in excess of jurisdiction, or
with grave abuse of discretion
To prevent the commission of an

To compel performance of an act
act
Purpose is to stop the proceedings Purpose is to compel performance of the act
required and to collect damages
Person or entity must have acted Person must have neglected a ministerial
without or in excess of jurisdiction, duty or excluded another from a right or
or with grave abuse of discretion
office
Extends to discretionary acts
Extends to discretionary and

ministerial acts
Only against a respondent exercising

judicial or quasi-judicial functions
Only for ministerial acts
Against respondents who exercise judicial and/or non-judicial functions
Q: When does the court acquire jurisdiction over

the person of the respondent in original actions
for certiorari, prohibition and mandamus?
A:
2.
1.
2.
If the action is filed with the RTC Follow

the rules on ordinary civil actions.
Jurisdiction is acquired by the service of
summons to the respondent or by his
voluntary appearance in court.
If the action is filed with the CA or the SC
The court acquires jurisdiction over the
respondents with the service on them of
its orders indicating its initial action on
the petition or by voluntary submission to
such jurisdiction.
3.
4.
CERTIORARI
Q: What is certiorari?
A: A writ issued by a superior court to an inferior
court, board or officer exercising judicial or quasijudicial functions whereby the record of a particular
case is ordered to be elevated for review and
correction in matters of law.
Note: An original action for certiorari, prohibition, and
mandamus is an independent action. As such, it does
not interrupt the course of the principal.
Note: A petition for certiorari must be based on
jurisdictional grounds because as long as the
respondent acted with jurisdiction, any error
committed by him or it in the exercise thereof will
amount to nothing more than an error of judgment
which may be reviewed or corrected by appeal
(Microsoft Corp. vs. Best Deal Computer Center Corp.,
GR 148029, Sept. 24, 2002; Estrera vs. CA, GR 154235,
Aug. 16, 2006).
Q: Define the following.

A:
1.
Judicial function is where the tribunal or

person has the power to determine what
5.
the law is, what the rights of the parties

are, and undertakes to determine these
questions and adjudicate upon the rights
of the parties.
Without jurisdiction is where the
respondent does not have the legal
power to determine the case.
Excess of jurisdiction is where the
respondent, being clothed with the power
to determine the case, oversteps his
authority as determined by law.
Grave abuse of discretion is where the
respondent acts in a capricious,
whimsical, arbitrary or despotic manner
in the exercise of his judgment as to be
said to be equivalent to lack of
jurisdiction. The abuse of discretion must
be so patent and gross as to amount to an
evasion of positive duty or to a virtual
refusal to perform a duty enjoined by law,
or to act at all in contemplation of law, as
where the power is exercised in an
arbitrary and despotic manner by reason
of passion or personal hostility.
Plain, speedy and adequate remedy is
one which promptly relieves the
petitioner from the injurious effects of
the judgment and the acts of the lower
court or agency.
Q: Which court has jurisdiction over petitions for

certiorari?
A: The courts have concurrent jurisdiction,
however, petitions are subject to the rule on
hierarchy of courts.
Q: Does the filing of a petition for certiorari

interrupt the running of the reglamentary period?
A: No. The rule is the same for prohibition and
mandamus since the remedies under Rule 65 are
independent actions.

139

Q: Distinguish certiorari under Rule 65 and
certiorari under Rule 45.
Rule 45
GR: Findings of fact of CA
are conclusive
principal case. It is necessary therefore, to avail of

either a temporary restraining order or a writ of
preliminary injunction to be issued by a higher
court against the public respondent so the latter
may, during the pendency of the petition, be
enjoined from further proceeding with the case (sec
7, Rule 65).
Involves question of law
Q: Are the remedies of appeal and certiorari

exclusive?
A:
Rule 65
Findings of fact of Court
of Appeals are not
conclusive or binding
upon SC
Involves question of
jurisdiction
Mode of appeal
Directed
against
an
interlocutory order of a
court or where there is
no appeal or any other
plain, speedy or adequate
remedy
Filed not later than 60
days from notice of
judgment,
order
or
resolution appealed from
Unless
a
writ
of
preliminary injunction or
temporary
restraining
order is issued, it does
not stay the challenged
proceeding
The judge, court, quasijudicial agency, tribunal,
corporation,
board,
officer or person shall be
public respondents who
are impleaded in the
action
Motion for
reconsideration or for
new trial is required.
If
a
motion
for
reconsideration or new
trial is filed, another 60
days shall be given to the
petitioner (A.M. No. 0203-SC)
Court exercises original
jurisdiction
Filed with the RTC, CA,

Sandiganbayan
or
COMELEC
Mode of review
Involves the review of the
judgment final orders or
resolutions of the CA,
Sandiganbayan, CTA, RTC
or other courts
Filed within 15 days from
notice of judgment, final
order
or
resolution
appealed from
Stays the judgment or
order appealed from
The appellant and the

appellee are the original
parties to the action, and
the lower court or quasijudicial agency is not
impleaded
Motion
reconsideration
required
is
for
not
GR: Where the proper remedy is appeal, the

action for certiorari will not be entertained.
Certiorari is not a remedy for errors of
judgment. Errors of judgment are correctible by
appeal; errors of jurisdiction are reviewable by
certiorari.
XPN: A petition for certiorari may be allowed
despite the availability of the remedy of appeal
when:
1. Appeal does not constitute a speedy and
adequate remedy;
2. Orders were issued either in excess of or
without jurisdiction;
3. For certain special considerations as for
public policy or public welfare;
4. Order is a patent nullity;
5. Decision in the certiorari case will avoid
future litigation; or
6. In criminal actions, the court rejects
rebuttal evidence for the prosecution as,
in case of acquittal, there could be no
remedy (Regalado, Remedial Law
Compendium, Vol. I, p. 783, 2007 ed.).
Note: When the remedy by appeal had already been
lost due to petitioners own neglect or error in the
choice of remedies, certiorari cannot lie. The two
remedies are mutually exclusive (Meralco v. CA, G.R.
No. 88396, July 4, 1990).
PROHIBITION
The court is in the
exercise of its appellate
jurisdiction and power of
review.
Filed with the SC
Q: Will the filing of a petition for certiorari

interrupt the course of the principal case? Or is an
injunctive relief necessary?
A: The filing of a petition for certiorari against the
lower court or tribunal or any other public
respondent does not interrupt the course of the
140
A:
Q: What is prohibition?
A: A remedy to prevent inferior courts,
corporations, boards or persons from usurping or
exercising a jurisdiction or power which they have
not been vested by law.
Note: It is commenced by a verified petition
accompanied by a certified true copy of the judgment,
order or resolution subject thereof, copies of all
pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum
shopping (Sec. 2, Rule 65).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: Distinction between Prohibition and injunction
To perform a positive
legal duty and not to undo
what has been done
A:
INJUNCTION
Directed only to the
party litigants, without
in
any
manner
interfering with the
court.
PROHIBITION
Directed to court
commanding it to
from the exercise
jurisdiction to which
no legal claim.
itself,
cease
of a
it has
Q: What is the function of writ of prohibition?

A: It is a preventive remedy. Its function is to
restrain the doing of some act about to be done. It
is not intended to provide a remedy for acts already
accomplished. If the thing be already done, the writ
of prohibition cannot undo it (Agustin v. De la
Fuente, G.R. No. L-2345, Aug. 31, 1949).
MANDAMUS
Q: What is mandamus?
A: A writ issued in the name of the State, to an
inferior tribunal, corporation, board or person,
commanding the performance of an act which the
law enjoins as a duty resulting from an office, trust
or station.
Note: It is commenced by the filing of a verified
petition accompanied by certified true copy of the
judgment, order or resolution subject thereof, copies
of all pleadings and documents relevant and pertinent
thereto and a sworn certification of non-forum
shopping (Sec. 3, Rule 65).
Q: Distinguish mandamus from quo warranto.

A:
Mandamus
Available when one is
unlawfully excluded from
the use or enjoyment of
an office against a person
who is responsible for
excluding the petitioner
Quo Warranto
Available against the
holder of an office, who
is the person claiming the
office
as
against
petitioner,
not
necessarily the one who
excludes the petitioner
Q: Distinguish mandamus from injunction.

A:
Mandamus
Special civil action
Directed
against
a
tribunal,
corporation
board, or officer
Purpose is for tribunal,
corporation, board or
officer
to
perform
ministerial and legal duty
injunction
Ordinary civil action
Directed against a litigant
For the defendant either

to refrain from an act or
to
perform
not
necessarily a legal and
ministerial duty
To prevent an act to
maintain the status quo
between the parties
b. REQUISITES
CERTIORARI
That the petition
is directed
against a
tribunal, board
or officer
exercising
judicial or quasijudicial
functions;
PROHIBITION
MANDAMUS
The petition is
The plaintiff has a
directed against a clear legal right to
tribunal,
the act
corporation,
demanded;
board or person
exercising
judicial, quasijudicial, or
ministerial
functions;
The tribunal,
The tribunal,
It must be the
board or officer corporation,
duty of the
has acted
board or person defendant to
without, or in
must have acted perform the act,
excess of
without or in
which is
jurisdiction or
excess of
ministerial and
with abuse of
jurisdiction or
not discretionary,
discretion
with grave abuse because the same
amounting to
of discretion
is mandated by
lack or excess or amounting to lack law;
jurisdiction
of jurisdiction;
There is no
There is no
The defendant
appeal or any
appeal or any
unlawfully
plain, speedy and plain, speedy and neglects the
adequate
adequate remedy performance of
remedy in the
in the ordinary
the duty enjoined
ordinary course course of law.
by law;
of law.
Accompanied by Accompanied by There is no appeal
a certified true a certified true
or any plain,
copy of the
copy of the
speedy and
judgment or
judgment or
adequate remedy
order subject of order subject of in the ordinary
the petition,
the petition,
course of law.
copies of all
copies of all
pleadings and
pleadings and
documents
documents
relevant and
relevant and
pertinent
pertinent thereto,
thereto, and
and sworn
sworn
certification of
certification of non-forum
non-forum
shopping under
shopping under Rule 46.
Rule 46.
Q: What are the requisites of a valid certiorari?

A:
1.
2.
There must be a controversy;

Respondent is exercising judicial or quasijudicial functions;

141

3.
4.
Respondents acted without or in excess of

its jurisdiction or with grave abuse of
discretion amounting to lack of
jurisdiction; and
There must be no appeal or other plain,
speedy and adequate remedy. (Sec. 1,
Rule 65)
1.
2.
3.
4.
Summary procedure
Writ of Amparo
Writ of Habeas Data
Small claims cases (Riano, Civil Procedure:
A Restatement for the Bar, p. 629, 2009
ed.)
Note: Certiorari is not the remedy for a loss appeal.
Q: When is prohibition issued?
Q: What are the requisites of a valid prohibition?
A:
A: Sec. 2, Rule 65
1. There must be a controversy
2. Respondent is exercising judicial, quasijudicial functions or ministerial functions
3. Respondents acted without or in excess of
its jurisdiction or with grave abuse of
discretion amounting to lack of
jurisdiction
4. There must be no appeal or other plain,
speedy and adequate remedy
Q: What are the requisites of a valid mandamus?
A: Sec. 3, Rule 65
1. There must be a clear legal right or duty
2. The act to be performed must be within
the powers of the respondent to perform;
3. The respondent must be exercising a
ministerial duty
4. The duty or act to be performed must be
existing (a correlative right will be denied
if not performed by the respondent)
5. There is no appeal or other plain, speedy
and adequate remedy in the ordinary
course of law
c. WHEN PETITION FOR CERTIORARI, PROHIBITION
AND MANDAMUS IS PROPER
Q: What are the grounds for the filing of a petition
for certiorari?
A: That a tribunal, board or officer exercising
judicial or quasi-judicial functions acted:
1. Without or in excess of jurisdiction
2. In grave abuse of discretion amounting to
lack or excess of jurisdiction
Note: It is commenced by the filing of a verified
petition accompanied by certified true copy of the
judgment, order or resolution subject thereof, copies
of all pleadings and documents relevant and pertinent
thereto and a sworn certification of non-forum
shopping. (Sec. 1, Rule 65).
Q: When is certiorari under Rule 65 unavailable?
142
A:
GR: Prohibition does not ordinarily lie to

restrain an act which is already fait accompli.
XPN: It will lie to prevent the creation of a new
province by those in the corridors of power who
could avoid judicial intervention and review by
merely speedily and stealthily completing the
commission of such illegality. (Tan v. COMELEC,
G.R. No. 73155, July 11, 1986)
Note: Prohibition and not mandamus, is the remedy
where a motion to dismiss is wrongfully denied
(Enriquez v. Macadaeg, G.R. No. L-2422, Sept. 30,
1949)
Q: What are the grounds for mandamus?

A:
1.
2.
When any tribunal, corporation, board,

officer or person unlawfully neglects the
performance of an act which the law
specifically enjoins as a duty resulting
from an office, trust or station; or
When any tribunal, corporation, board,
officer or person unlawfully excludes
another from the use and enjoyment of a
right or office to which the other is
entitled (Sec. 3)
Q: Will mandamus issue despite the availability of

administrative remedies?
A:
GR: Mandamus will not issue when
administrative remedies are still available.
XPN:
1. If the party is in estoppel (Vda. de Tan v.
Veterans Backpay Commission, G.R. No. L12944, Mar. 30, 1959); or
2. Only questions of law are raised.
(Madrigal v. Lecaroz, G.R. No. L-46218,
Oct. 23, 1990)
Q: May mandamus be used to compel a
discretionary duty?
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
A: Mandamus is only applicable to a ministerial
duty. However, mandamus can be used to the
extent of requiring the performance of a
discretionary duty to act but not to require
performance of such duty in a particular manner.
Q: May the CA award damages in mandamus
proceedings?
A: Yes. The CA in resolving a petition for mandamus
is authorized to award civil damages in the same
petition (Vital-Gozon v. CA, G.R. No. 101428, Aug. 3
1992)
d. INJUNCTIVE RELIEF
Q: When is injunctive relief proper?
A: The court in which the petition is filed may issue
orders expediting the proceedings, and it may also
grant a temporary restraining order or a writ of
preliminary injunction for the preservation of the
rights of the parties pending such proceedings. The
petition shall not interrupt the course of the
principal case unless a temporary restraining order
or a writ of preliminary injunction has been issued
against the public respondent from further
proceeding in the case (Sec. 7, Rule 65).
The public respondent shall proceed with the
principal case within ten (10) days from the filing of
a petition for certiorari with a higher court or
tribunal, absent a Temporary Restraining Order
(TRO) or a Writ of Preliminary Injunction, or upon
its expiration. Failure of the public respondent to
proceed with the principal case may be a ground for
an administrative charge (AM 07-7-12-SC, Dec. 12,
2007).
e. CERTIORARI DISTINGUISHED FROM APPEAL BY
CERTIORARI; PROHIBITION AND MANDAMUS
DISTINGUISHED FROM INJUNCTION; WHEN AND
WHERE TO FILE PETITION
Q: Distinguish certiorari from appeal by certiorari.
Certiorari as a Mode of
Appeal (Rule 45)
Called petition for review
on certiorari, is a mode of
appeal, which is but a
continuation of the
appellate process over the
original case;
Seeks to review final
judgments or final orders;
Certiorari as a Special Civil

Action (Rule 65)
A special civil action that is
an original action and not a
mode of appeal, and not a
part of the appellate
process but an
independent action.
May be directed against an
interlocutory order of the
court or where not appeal
or plain or speedy remedy
available in the ordinary
course of law
Raises only questions of

law;
Raises questions of
jurisdiction because a
tribunal, board or officer
exercising judicial or quasijudicial functions has acted
without jurisdiction or in
excess of jurisdiction or
with grave abuse of
discretion amounting to
lack of jurisdiction;
Filed within 15 days from Filed not later than 60 days
notice of judgment or final from notice of judgment,
order appealed from, or of order or resolution sought
the denial of petitioners to be assailed and in case a
motion for reconsideration motion for reconsideration
or new trial;
or new trial is timely filed,
whether such motion is
required or not, the 60 day
period is counted from
notice of denial of said
motion;
Extension of 30 days may Extension no longer
be granted for justifiable allowed;
reasons
Does not require a prior
Motion for
motion for
Reconsideration is a
reconsideration;
condition precedent,
subject to exceptions
Stays the judgment
Does not stay the
appealed from;
judgment or order subject
of the petition unless
enjoined or restrained;
Parties are the original
The tribunal, board, officer
parties with the appealing exercising judicial or quasiparty as the petitioner and judicial functions is
the adverse party as the
impleaded as respondent
respondent without
impleading the lower court
or its judge;
Filed with only the
May be filed with the
Supreme Court
Supreme Court, Court of
Appeals, Sandiganbayan,
or Regional Trial Court
SC may deny the decision
motupropio on the ground
that the appeal is without
merit, or is prosecuted
manifestly for delay, or
that the questions raised
therein are too
unsubstantial to require
consideration.
Note: The remedies of appeal and certiorari are
mutually exclusive and not alternative or successive.
The antithetic character of appeal and certiorari has
been generally recognized and observed save only on
those rare instances when appeal is satisfactorily
shown to be an inadequate remedy. Thus, a petitioner
must show valid reasons why the issues raised in his
petition for certiorari could not have been raised on

143

appeal (Banco Filipino Savings and Mortgage Bank vs.
CA, 334 SCRA 305).
Q: Distinguish prohibition and mandamus from injunction.

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

RECONSIDERATION BEFORE FILING PETITION
Q: Is it an absolute rule that before recourse to
certiorari is taken a motion for reconsideration
must be filed?
3.
A:
GR: Petition for certiorari will not be
entertained unless the public respondent has
been given first the opportunity through a
motion for reconsideration to correct the error
being imputed to him.
XPNs: A prior motion for reconsideration is not
necessary to entertain a petition for certiorari
where:
1. Order is a patent nullity, as where the
court a quo has no jurisdiction;
2. Questions raised in the certiorari
proceedings have been duly raised and
144
4.
5.
6.
7.
8.
passed upon by the lower court, or are

the same as those raised and passed upon
in the lower court;
Urgent necessity for the resolution of the
question, and any further delay would
prejudice the interests of the Government
or of the petitioner, or the subject matter
of the action is perishable;
Under the circumstances, a motion for
reconsideration would be useless;
Petitioner was deprived of due process
and there is extreme urgency for relief;
In a criminal case, relief from an order of
arrest is urgent and the granting of such
relief by the trial court is improbable;
Proceedings in the lower court are a
nullity for lack of due process;
Proceedings were ex parte or in which the
petitioner had no opportunity to object;
and
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
9.
Issue raised is one purely of law or where

public interest is involved.
without merit, prosecuted manifestly for delay, or

raises questions which are too unsubstantial to
require consideration?
g. RELIEFS PETITIONER IS ENTITLED TO

Q: What are the reliefs a petitioner is entitled to
with this action?
A:
The primary relief will be the annulment or
modification of the judgment, order, or resolution
or proceeding subject of the petition. It may also
include such other Incidental reliefs as law and
justice may require (sec 1, Rule 65) The court may
also award damages in its judgment and the
execution of the award for damages or costs shall
follow the procedure in sec 1 of rule 39 (sec 9, rule
65).
h. ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION
CASES
Q: What is the rule on acts or omissions of the
MTC or RTC regarding election cases?
A: In election cases involving an act or an omission
of a municipal or a regional trial court, the petition
shall be filed exclusively with the Commission on
Elections, in aid of its appellate jurisdiction. (Sec.4,
Rule 65, As amended by AM No. 07-7-12-SC, Dec.
12, 2007)
i. WHERE TO FILE PETITION
Q: When and where to file petition?
A:
1. Supreme Court- Subject to the doctrine of
hierarchy of courts and only when compelling
reasons exist for not filing the same with the lower
courts.
2. Court of Appeals only- If the petition involves an
act or an omission of a quasi-judicial agency, unless
otherwise provided by law or rules.
3. Court of Appeals and Sandiganbayan- Whether
or not in aid of appellate jurisdiction.
4. Regional Trial Court- If the petition relates to an
act or an omission of an MTC, corporation, board,
officer or person.
5. COMELEC- In election cases involving an act or an
omission of an MTC or RTC
As amended by AM No. 07-7-12-SC, Dec. 12, 2007.
j. EFFECTS OF FILING OF AN UNMERITORIOUS
PETITION
Q: What is the effect of a petition for certiorari,
prohibition or mandamus which is patently
A: The court may dismiss the petition. In such

event, the court may award in favor of the
respondent treble costs solidarily against the
petitioner and counsel, in addition to subjecting
counsel to administrative sanctions under Rules 139
and 139-B.
The Court may impose motu proprio, based on res
ipsa loquitur, other disciplinary sanctions or
measures on erring lawyers for patently dilatory
and unmeritorious petitions for certiorari (Sec. 8, as
amended by A.M. No. 07-7-12-SC).
8. QUO WARRANTO
Q: What is quo warranto?
A: A proceeding or writ issued by the court to
determine the right to use an office, position or
franchise and to oust the person holding or
exercising such office, position or franchise if his
right is unfounded or if a person performed acts
considered as grounds for forfeiture of said exercise
of position, office or franchise.
Note: It is commenced by a verified petition brought in
the name of the Republic of the Philippines or in the
name of the person claiming to be entitled to a public
office or position usurped or unlawfully held or
exercised by another. (Sec. 1)
Q: What are the classifications of quo warranto

proceedings?
A:
1.
Mandatory brought by the Solicitor

General or Public prosecutor when:
a. directed by the President;
b. upon complaint or when he has
reason to believe that the cases for
quo warranto can be established by
proof (Sec. 2)
c. at the request and upon the relation
if another person (ex relatione), but
leave of court must first be obtained.
(Sec. 3)
2.
Discretionary brought by the Solicitor

General or a public prosecutor at the
request and upon the relation of another
person, provided there must be:
a. leave of court
b. at the request and upon the relation
of another person
c. indemnity bond (Sec. 3)

145
Q: Distinguish quo warranto in elective office from

an appointive office.
A:
Elective Office
Issue: eligibility of the
respondent
Occupant declared
ineligible/disloyal will be
unseated but petitioner
will not be declared the
rightful occupant of the
office.
Appointive Office
Issue: validity of the
appointment
Court will oust the
person illegally
appointed and will order
the seating of the person
who was legally
appointed and entitled to
the office.
a. DISTINCTION FROM QUO WARRANTO UNDER

OMNIBUS ELECTION CODE
protest (Cesar v. Garrido, G.R. No. 30705, Mar. 25,

1929).
b. WHEN GOVERNMENT COMMENCE AN ACTION

AGAINST INDIVIDUALS
c. WHEN INDIVIDUAL MAY COMMENCE AN
ACTION
Q: Who commences the action?
A:
1.
2.
Q: Distinguish quo warranto under Rule 66 from

quo warranto under Omnibus Election Code.
A:
Quo Warranto Under Rule
66
Prerogative writ by which
the government can call
upon any person to show
by what title he holds a
public office or exercises a
public franchise.
Grounds: 1. usurpation
2. forfeiture
3. illegal association
Presupposes that the
respondent is already
actually holding office and
action must be
commenced within 1 year
from cause of ouster or
from the time the right of
petitioner to hold office
arose.
The petitioner must be the
government or the person
entitled to the office and
who would assume the
same if his action
succeeds.
Person adjudged entitled
to the office may bring a
separate action against the
respondent to recover
damages.
Quo Warranto In
Electoral Proceedings
To contest the right of
an elected public officer
to hold public office.
Grounds:
ineligibility or
disqualification to hold
the office
Petition must be filed

within 10 days from the
proclamation of the
candidate.
May be filed by any

voter even if he is not
entitled to the office.
Actual or compensatory
damages are recoverable
in quo warranto
proceedings under the
Omnibus Election Code.
Note: If the dispute is as to the counting of votes or on

matters connected with the conduct of the election,
quo warranto is not the proper remedy but an election
146
3.
The solicitor general or public prosecutor,

when directed by the President of the
Philippines, or when upon complaint or
otherwise he has good reason to believe
that any case specified in the proceding
section can be established by proof.
(mandatory quo warranto)
The Solicitor General or a public
prosecutor may, with the permission of
court, bring an action at the request and
upo n the relation of another person.
(discretionary quo warranto)
A person claiming to be entitled to a
public office or position or unlawfully held
or exercised by anoher may also bring
action, in his own name.
Q: Against whom a quo warranto may be filed?

A: The action must be filed against:
1. A person who usurps, intrudes into, or
unlawfully holds or exercises a public
office, position or franchise;
2. A public officer who does or suffers an act
which, by the provision of law, constitutes
a ground for the forfeiture of his office;
and
3. An association which acts as a corporation
within the Philippines without being
legally incorporated or without lawful
authority so to act (Sec. 1, Rule 66).
Note: Actions of quo warranto against corporations
now fall under the jurisdiction of the RTC (Sec. 5.2,
Securities Regulations Code).
Q: A group of businessmen formed an association

in Cebu City calling itself Cars Co. to distribute/sell
cars in said city. It did not incorporate itself under
the law nor did it have any government permit or
license to conduct its business as such. The
Solicitor General filed before the RTC in Manila a
verified petition for quo warranto questioning and
seeking to stop the operations of Cars Co. The
latter filed a motion to dismiss the petition on the
ground of improper venue claiming that its main
office and operations are in Cebu City and not in
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Manila. Is the contention of Cars Co. correct?
Why?
Q: What are
expropriation?
A: No. As expressly provided in the Rules, when the

Solicitor General commences the action for quo
warranto, it may be brought in a Regional Trial
Court in the City of Manila, as in the case, in the CA
or in the SC (Sec. 7, Rule 66). (2001 Bar Question)
A:
1.
2.
3.
the
requisites
of
valid
Due process of law

Payment of just compensation
Taking must be for public use
Q: What is the power of eminent domain?

d. JUDGMENT IN QUO WARRANTO ACTION
Q: What is the effect of a judgment in Quo
Warranto case?
A; When the respondent is found guilty of usurping,
intruding into, or unlawfully holding or exercising a
public office, position or franchise, judgment shall
be rendered that such respondent be ousted and
altogether excluded therefrom, and that the
petitioner or relator, as the case may be, recover
his costs. Such further judgment may be rendered
determining the respective rights in and to the
public office, position or franchise of the parties to
the action as justice requires (Sec. 9, Rule 66).
e. RIGHTS OF A PERSON ADJUDGED ENTITLED TO
PUBLIC OFFICE
Q: What are the rights of persons adjudged to be
entitled to the office?
A: if judgment be rendered in favor of the person
averred in the complaint to be entitled to the public
office, he may, after taking the oath of office and
executing any official bond required by law:
1. take upon himself the execution of the
office;
2. may immediately thereafter demand all
the books and papers in the respondents
custody or control appertaining to the
office to which the judgment relates; and
3. may bring an action against the
respondent to recover damages sustained
by such persons by reason of usurpation.
Note: when there is a judgment in a quo warranto
action finding usurpation to be existent, respondent
must be ousted and altogether excluded therefrom,
and that the petitioner or relator, as the case may be,
recover his cost. Such further judgment may be
rendered determining the respective rights in the
public office, position, or franchise of all the parties to
the action, as justice requires.
9. EXPROPRIATION
Q: What is expropriation?
A: The procedure for enforcing the right of eminent
domain.
A: It is the right of the State to acquire private

property for public use upon the payment of just
compensation.
Q: When is expropriation proper?
A: It is proper only when the owner refuses to sell
or, if the latter agrees, agreement as to the price
cannot be reached.
a. MATTERS TO BE ALLEGED IN COMPLAINT FOR
EXPROPRIATION
Q: Matters to be allege in a complaint for
expropriation.
A: right and purpose of expropriation, describing
the property sought to be expropriated, and joining
as defendants all persons owning or claiming to
own any part thereof or interest therein (Sec. 1).
b. TWO STAGES IN EVERY ACTION FOR
EXPROPRIATION
Q: What are the two (2) stages in expropriation
proceedings?
A:
1.
2.
Determination of the authority of the

plaintiff to exercise the power of eminent
domain and the propriety of the exercise
in the context of the facts involved.
Determination of just compensation.
Q: City of Iloilo (petitioner) represented by Mayor

Treas filed a complaint for eminent domain
against Javellana seeking to expropriate two
parcels of land. Mayor Treas filed a motion for
issuance of writ of possession alleging that it had
deposited 10% of the amount of compensation of
which the court issued. A writ of possession was
subsequently issued, and petitioner was able to
take physical possession of the properties. After
which, the expropriation proceedings remained
dormant. 16 years later, Javellana filed an ex parte
motion/manifestation, where he alleged that
when he sought to withdraw the money, he
discovered that no deposit was made. Thus,
Javellana filed a complaint for recovery of

147

possession, fixing and recovery of rental and
damages. The City of Iloilo argues that Javellana
could no longer bring an action for recovery since
the subject property was already taken for public
use. The trial court in its orders and amended
orders maintained that the assailed orders issued
by it were interlocutory in character and as such
are always subject to modification and revision by
the court anytime. Is the order of expropriation
final?
A: Expropriation proceedings have two stages. The
first phase ends with an order of dismissal, or a
determination that the property is to be acquired
for a public purpose. The second phase consists of
the determination of just compensation. Both
orders, being final, are appealable.
An order of condemnation or dismissal is final,
resolving the question of whether or not the
plaintiff has properly and legally exercised its power
of eminent domain. Once the first order becomes
final and no appeal thereto is taken, the authority
to expropriate and its public use can no longer be
questioned. Thus, it has become final, and the
petitioners right to expropriate the property for a
public use is no longer subject to review. (City of
Iloilo v. Hon. Lolita Contreras-Besana, G.R. No.
168967, Feb. 12, 2010).
Q: May Congress enact a law providing that a
5,000 square meter lot, a part of the UST
compound in Sampaloc, Manila, be expropriated
for the construction of a park in honor of former
City Mayor ArsenioLacson? As compensation to
UST, the City of Manila shall deliver its 5-hectare
lot in Sta. Rosa, Laguna originally intended as a
residential subdivision for the Manila City Hall
employees. Explain.
A: Yes, Congress may enact a law to expropriate
property but it cannot limit just compensation. The
determination of just compensation is a judicial
function and Congress may not supplant or prevent
the exercise of judicial discretion to determine just
compensation. Under Sec. 5, Rule 67 of the Rules of
Court, the ascertainment of just compensation
requires the evaluation of 3 commissioners. (2006
Bar Question)
c. WHEN PLAINTIFF CAN IMMEDIATELY ENTER
INTO POSSESSION OF THE REAL PROPERTY
Q: What is the new system of immediate payment
of initial compensation?
A: RA 8974 provides a modification of sec 2, Rule 67
where the Government is required to make
immediate and direct payment to the property
148
owner upon the filing of the complaint to be

entitled to a writ of possession. As a relevant
standard for initial compensation, the market value
for the property as stated in the tax declaration or
the current relevant zonal valuation of the Bureau
of internal Revenue (BIR), whichever is higher and
the value of the improvements and/or structures
using the replacement cost method.
Note: RA 8974 applies in instances when the national
government expropriates property for national
government infrastructure projects. Thus, if
expropriation is engaged by the national government
for purposes other that national infrastructure
projects, the assessed value standard and the deposit
mode prescribed in Rule 67 continues to apply.
The intent of RA 8974 to supersede the system of
deposit under Rule 67 with the scheme of immediate
payment in cases involving national government
infrastructure projects is indeed very clear (MCWD v. J.
King and Sons, GR 175983, April 16, 2009)
d. NEW SYSTEM OF IMMEDIATE PAYMENT OF

INITIAL JUST COMPENSATION
Q: What is the new system of immediate payment
of initial just compensation?
A: For the acquisition of right-of-way, site or
location for any national government infrastructure
project through expropriation, upon the filing of the
filing of the complaint, and after due notice to the
defendant, the implementing agency shall
immediately pay the owner of the property the
amount equivalent to the sum of (1) 100 percent of
the value of the property based on the current
relevant zonal valuation of the BIR; and (2) the
value of the improvements and/or structures as
determined under Sec. 7 of RA 8974 (Sec. 4, RA
8974).
e. DEFENSES AND OBJECTIONS
Q: What must be filed when defendant has an
objection?
A: If a defendant has any objection to the filing of
or the allegations in the complaint, or any objection
or defense to the taking of his property, he shall
serve his answer within the time stated in the
summons. The answer shall specifically designate or
identify the property in which he claims to have an
interest, state the nature and extent of the interest
claimed, and adduce all his objections and defenses
to the taking of his property. No counterclaim,
cross-claim or third-party complaint shall be alleged
or allowed in the answer or any subsequent
pleading.
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CIVIL PROCEDURE
Note: if there are no objections, he must file and serve
a notice of appearance and manifestation to that
effect. And thereafter, shall be entitled to notice of all
proceedings.
Q: What is the duty of the court if the defendant

waives his defenses or objections?
A: If a defendant waives all defenses and objections
not so alleged, the court, in the interest of justice,
may permit amendments to the answer to be made
not later than ten (10) days from the filing thereof.
However, at the trial of the issue of just
compensation, whether or not a defendant has
previously appeared or answered, he may present
evidence as to the amount of the compensation to
be paid for his property, and he may share in the
distribution of the award (Sec. 3, Rule 67).
Q: How may appeal be taken from an order of
expropriation by the party aggrieved thereby?
A: It may be appealed by the defendant by record
on appeal. This is an instance when multiple
appeals are allowed because they have separate
and/or several judgments on different issues e.g.
issue on the right to expropriate or issue of just
compensation
Note: An appeal does not delay the right of the
plaintiff to enter upon the property of the defendant
and appropriate the same for public use.
overruled or when no party appears to object to or

to defend against the expropriation (Sec 4, Rule 67).
Note: after the rendition of the order of expropriation,
the plaintiff shall not be permitted to dismiss or
discontinue the proceeding except upon such terms as
the court deems just and equitable (Sec 4, Rule 67)
g. ASCERTAINMENT OF JUST COMPENSATION

Q: What is just compensation?
A: Just compensation is equivalent to the fair
market value of the property at the time of its
taking or filing of complaint whichever comes first.
It is the fair and full equivalent for the loss
sustained by the defendant.
Q: What is the formula for the determination of
just compensation?
A:
JC = FMV + CD CB
If CB is more than CD then,
JC = FMV
JC Just compensation
FMV Fair market value
CD Consequential damages
CB Consequential benefits
Note:Sentimental value is not computed.
Q: What is the effect if the order of condemnation

was reversed?
A: The owner shall repossess the property with the
right to be indemnified for all damages sustained
due to the taking (Sec. 11, Rule 67)
Note: The landowner has the option of proving
damages either in the same expropriation case or in
a separate action instituted for that purpose, as the
judgment denying the right of expropriation is not
res judicata on the issue of damages arising from
such illegal expropriation (Republic v. Baylosis, G.R.
No. L-6191, Jan. 31, 1955).
f. ORDER OF EXPROPRIATION
Q: What is an order of expropriation?
A: An order of expropriation (or order of
condemnation) will be issued declaring that the
plaintiff has a lawful right to take the property for
the public use or purpose described in the
complaint upon the payment of just compensation
in the event the objections of the defendant are
Q: What is the reckoning point for determining

just compensation?
A:The value of just compensation shall be
determined as of the date of the taking of the
property or the filing of the complaint, whichever
came first. (Sec. 4)
GR: When the taking of the property sought to
be
expropriated
coincides
with
the
commencement
of
the
expropriation
proceedings, or takes place subsequent to the
filing of the complaint for eminent domain, the
just compensation should be determined as of
the date of the filing of the complaint. (City of
Iloilo v. Hon. Lolita Contreras-Besana, G.R. No.
168967, Feb. 12, 2010).
Note: Typically, the time of taking is
contemporaneous with the time the petition is
filed. (NAPOCOR v. Co, G.R. No 166973, Feb. 10,
2009)
XPNs:
1. Grave injustice to the property owner

149
2.
3.
4.
150
Air
Transportation
Office
cannot
conveniently invoke the right of eminent
domain to take advantage of the
ridiculously low value of the property at
the time of taking that it arbitrarily
chooses to the prejudice of the land
owners.
(Heirs
of
Mateo
Pidacan&RomanaEigo
v.
Air
Transportation Office, G.R. No. 162779,
June 15, 2007)
The taking did not have color of legal
authority
To allow NAPOCOR to use the date it
constructed the tunnels as the date of
valuation would be grossly unfair. First, it
did not enter the land under warrant or
color of legal authority or with intent to
expropriate the same. It did not bother to
notify the owners and wrongly assumed it
had the right to dig those tunnels under
their
property. Secondly,
the
improvements
introduced
by
NAPOCOR, the tunnels, in no way
contributed to an increase in the value of
the land. The trial court rightly computed
the valuation of the property as of 1992,
when the owners discovered the
construction of the huge underground
tunnels beneath their lands and
NAPOCOR confirmed the same and
started negotiations for their purchase
but no agreement could be reached.
(NAPOCOR v. Ibrahim, G.R. No. 168732,
June 29, 2007)
The taking of the property was not initially
for expropriation
There was no taking of the property in
1985 by Public Estates Authority (PEA) for
purposes of expropriation. As shown by
the records, PEA filed with the RTC its
petition for expropriation on Sept. 22,
2003.The trial court was correct in
ordering the Republic, through PEA, upon
the filing of its complaint for
expropriation,
to
pay
Tan
just
compensation on the basis of the BIR
zonal valuation of the subject property.
(Tan v. Republic, G.R. No. 170740, May
25, 2007)
The owner will be given undue increment
advantages because of the expropriation
The value of the property in question was
greatly enhanced between the time when
the extension of the street was laid out
and the date when the condemnation
proceedings were filed. The owners of the
land have no right to recover damages for
this unearned increment resulting from
the
construction
of
the
public
improvement for which the land was
taken. To permit them to do so would be
to allow them to recover more than the
value of the land at the time when it was
taken, which is the true measure of the
damages, or just compensation, and
would discourage the construction of
important
public
improvements.(Provincial Govt of Rizal v.
Caro de Araullo, G.R. No. L-36096, Aug.
16, 1933)
h. APPOINTMENT OF COMMISSIONERS;
COMMISSIONERS REPORT; COURT ACTION UPON
COMMISSIONERS REPORT
Q: May the court dispense with the assistance of
commissioners in the determination of just
compensation in expropriation proceedings?
A: No. The appointment of commissioners in
expropriation proceedings is indispensable. In such
cases, trial with the aid of commissioners is a
substantial right that may not be done away with
capriciously or for no reason at all (MERALCO v.
Pineda, G.R. No. L-59791, Feb. 13, 1992).
Note: Objections to the order of appointment must be
filed within 10 days from service of the order and shall
be resolved within 30 days after all the commissioners
received the copies of the objections (Sec. 5)
Q: When may the court appoint a commissioner in

expropriation proceedings?
A: Upon the rendition of the order of expropriation,
the court shall appoint not more than three (3)
competent and disinterested persons as
commissioners to ascertain and report to the court
the just compensation for the property sought to
be taken. The order of appointment shall designate
the time and place of the first session of the hearing
to be held by the commissioners and specify the
time within which their report shall be submitted to
the court (Sec. 5, Rule 67).
Q: When should the commissioner make a report?
A: The court may order the commissioners to
report when any particular portion of the real
estate shall have been passed upon by them, and
may render judgment upon such partial report, and
direct the commissioners to proceed with their
work as to subsequent portions of the property
sought to be expropriated, and may from time to
time so deal with such property. The commissioners
shall make a full and accurate report to the court of
all their proceedings, and such proceedings shall
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
not be effectual until the court shall have accepted
their report and rendered judgment in accordance
with their recommendations. Except as otherwise
expressly ordered by the court, such report shall be
filed within sixty (60) days from the date the
commissioners were notified of their appointment,
which time may be extended in the discretion of
the court. Upon the filing of such report, the clerk
of the court shall serve copies thereof on all
interested parties, with notice that they are allowed
ten (10) days within which to file objections to the
findings of the report, if they so desire (Sec. 7, Rule
67).
i. RIGHTS OF PLAINTIFF UPON JUDGMENT AND
PAYMENT
Q: What are the rights of the plaintiff after
payment?
A: After payment of just compensation, as
determined in the judgment, the plaintiff shall have
the right to enter upon the property expropriated
and to appropriate the same for the public use or
purpose defined in the judgment or to retain
possession already previously made in accordance
with Sec 2, Rule 67.
j. EFFECT OF RECORDING OF JUDGMENT
Q: What is the effect of the recording of the
judgment?
A: When real estate is expropriated, a certified copy
of such judgment shall be recorded in the registry
of deeds of he place in which the property is
situated, and its effect shall be to vest in the
plaintiff the title to the real estate so described for
such public use or purpose (Sec 13, Rule 69).
10. FORECLOSURE OF REAL ESTATE MORTGAGE
Q: What is foreclosure of Real Estate Mortgage
(REM)?
A: It is the remedy used for the satisfaction of any
monetary obligation, which a person owes to
another, by proceeding against the property used
to secure said obligation.
Note: It is commenced by a complaint setting forth the
date and due execution of the mortgage; the names
and residences of the mortgagor and the mortgagee; a
description of the mortgaged property; date of the
note or other documentary evidence of the obligation
secured by the mortgage, the amount claimed to be
unpaid thereon; and the names and residences of all
persons having or claiming an interest in the property
subordinate in right to that of the holder of the
mortgage (Sec. 1).
a. JUDGMENT ON FORECLOSURE FOR PAYMENT

OR SALE
Q: What is judgment on foreclosure?
A: It is the judgment of the court ordering the
debtor to pay within a period not less than 90 days
nor more than 120 days from the entry of judgment
after ascertaining the amount due to the plaintiff
(Sec. 2, Rule 68).
Q: What is foreclosure sale?
A: When the defendant fails to pay the amount of
the judgment within the period specified therein,
the court, upon motion, shall order the property to
be sold in the manner and under the provisions of
Rule 39 and other regulations governing sales of
real estate under executions (Sec.3, Rule 68).
Q: When is the sale of mortgaged property proper
and how must it be brought about?
A: if the mortgagor fails to pay the sum due within
the period (90-120 days) stated by the court in its
judgment, it would be good practice for the
mortgagee to file a motion for the sale of the
mortgaged property because under the Rules, the
court shall order the sale of the property only
upon motion of the mortgagee (sec 3, rule 68)
Note: it has been held that the motion for the sale of
the mortgaged property is non-litigable and may be
made ex parte. After the foreclosure sale has been
effected, the mortgagee should file a motion for the
confirmation of the sale which requires notice and
hearing.
b. SALE OF MORTGAGED PROPERTY

Q: What is the effect of confirmation of the sale?
A: It shall divest the rights in the property of all the
parties to the action and shall vest their rights in
the purchaser, subject to such rights of redemption
as may be allowed by law (Sec 3, Rule 68)
Note: it is said that title vests in the purchaser upon a
valid confirmation of the sale and retroacts to the date
of sale.
c. DISPOSITION OF PROCEEDS OF SALE

Q: How is the disposition of the proceeds of the
sale done?
A: The proceeds of the sale of the mortgaged
property shall, after deducting the costs of the sale,
be paid to the person foreclosing the mortgage, and
when there shall be any balance or residue after

151

paying off the mortgage debt due, the same shall
be paid to junior encumbrances in the order of their
priority. If there be any further balance after paying
them or if there be no junior encumbrances, the
same shall be paid to the mortgagor or any person
entitled thereto (Sec. 4)
On January 10, 2003, GAP filed an ex-parte motion

with the court for the issuance of a writ of
possession to oust Gretchen from the land. It also
filed a deficiency claim for P800,000 against Arlene
and Gretchen. The deficiency claim was opposed
by Arlene and Gretchen.
Q: What claims shall be satisfied from the

proceeds of the public sale of the mortgaged
property (in order)?
A:
1.
2.
Resolve the motion for the issuance of a

writ of possession.
Resolve the deficiency claim of the bank.
A:
1.
2.
3.
4.
Costs incurred in the sale of property;

Claim of the person foreclosing the
property;
Claims of junior encumbrancers in the
order of their priority;
Residue goes to the mortgagor or his
authorized agent, or any other person
entitled to it.
1. In judicial foreclosure by banks such as GAP,

the mortgagor or debtor whose real
property has been sold on foreclosure has
the right to redeem the property within 1
year after the sale (or registration of the
sale). However, under Sec. 47 of the General
Banking Law of 2000, the purchaser at the
auction sale has the right to obtain a writ of
possession after the finality of the order
confirming sale. The motion for writ of
possession, however, cannot be filed ex
parte. There must be a notice of hearing.
2. The deficiency claim of the bank may be
enforced against the mortgage debtor
Arlene, but it cannot be enforced against
Gretchen, the owner of the mortgaged
property, who did not assume personal
liability of the loan. (2003 Bar Question)
d. DEFICIENCY JUDGMENT
Q: What is deficiency judgment?
A: It is the judgment rendered by the court holding
the defendant liable for any unpaid balance due to
the mortgagee if the proceeds from the foreclosure
sale do not satisfy the entire debt.
Q: What are the instances when the court cannot
render deficiency judgment?
A: where the debtor-mortgagor is a non-resident
and who at the time of the filing of the action for
foreclosure and during the pendency of the
proceedings was outside the Philippines, then it is
not procedurally feasible. It is by nature in
personam and jurisdiction over the person is
mandatory.
Q: Arlene borrowed P1 million from GAP Bank
(GAP) secured by the titled land of her friend
Gretchen who, however, did not assume personal
liability for the loan. Arlene defaulted and GAP
filed an action for judicial foreclosure of the real
estate mortgage impleading Arlene and Gretchen
as defendants. The court rendered judgment
directing Arlene to pay the outstanding account of
P1.5 million (principal plus interest) to GAP. No
appeal was taken by Arlene. Arlene failed to pay
the judgment debt within the period specified in
the decision. At the foreclosure sale, the land was
sold to GAP for P1.2 million. The sale was
confirmed by the court, and the confirmation of
the sale was registered with the Registy of Deeds
on January 5, 2002.
(1) INSTANCES WHEN COURT CANNOT RENDER

DEFICIENCY JUDGMENT
Q: What are the instances when the courts cannot
render deficiency judgment?
A: When the:
1.
2.
3.
4.
Case is covered by the Recto Law (Art.

1484, NCC);
Mortgagor is a non-resident and is not
found in the Philippines, unless there is
attachment;
Mortgagor dies, the mortgagee may file
his claim with the probate court under
Sec. 7, Rule 86; and
Mortgagee is a third person but not
solidarily liable with the debtor.
e. JUDICIAL FORECLOSURE VERSUS EXTRAJUDICIAL

FORECLOSURE
Q: Distinguish judicial
extrajudicial foreclosure.
from
A:
Judicial Foreclosure
Governed by Rule 68
152
foreclosure
Extrajudicial Foreclosure
Governed by Act 3135
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CIVIL PROCEDURE
There is only an equity of
redemption except when
the mortgagee is a bank
Requires court
intervention
Right of redemption
exists
No court intervention
necessary
Mortgagee is given a
special power of attorney
Mortgagee need not be
in the mortgage contract
given a special power of
to foreclose the
attorney.
mortgaged property in
case of default.
Note: A mortgagee may bring a personal action for the
amount due, instead of a foreclosure suit, in which
case, he will be deemed to have waived his right to
proceed against the property in a foreclosure
proceeding. (Movido v. RFC, G.R. No. L-11990, May 29,
1959)
f. EQUITY OF REDEMPTION VERSUS RIGHT OF

REDEMPTION
Q: Distinguish equity of redemption from right of
redemption.
A:
Equity of Redemption
Right of the defendant
mortgagor to
extinguish the
mortgage and retain
ownership of the
property by paying the
debt within 90-120
days after the entry of
judgment or even after
the foreclosure sale
but prior to
confirmation
Governed by Rule 68
appeal. (Consolidated Bank and Trust Corp. v. IAC, G.R.

No. 73341, Aug. 21, 1987)
11. PARTITION
Q: What is partition?
A: It is a process of dividing and assigning property
owned in common among the various co-owners
thereof in proportion to their respective interests in
said property.It presupposes the existence of a coownership over a property between two or more
persons. The rule allowing partition originates from
a well-known principle embodied in the Civil Code,
that no co-owner shall be obliged to remain the coownership. Because of this rule, he may demand at
any time the partition of the property owned in
common (Art. 494).
Note: It is commenced by a complaint. (Sec.1, Rule 69)
Q: What are the requisites of a valid partition?

A:
Right of Redemption
Right of the debtor, his
successor in interest or any
judicial creditor or judgment
creditor of said debtor or
any person having a lien on
the property subsequent to
the mortgage or deed of
trust under which the
property is sold to redeem
the property within 1 year
from the registration of the
Sheriffs certificate of
foreclosure sale
Governed by Secs. 29-31,
Rule 39
Note: There is no right of redemption in judicial

foreclosure sale after the confirmation of sale except
those granted by banks or banking institutions in favor
of non-judicial persons as provided by the General
Banking Act (Government Insurance System v. CFI of
Iloilo, G.R. No. 45322, July 5, 1989).
In extrajudicial foreclosure, the mortgagor has the
right to redeem the property within one year from the
registration of the deed of sale. However, Sec. 47 of
the General Banking Act provides that in case of
extrajudicial foreclosure, juridical persons shall have
the right to redeem the property until, but not after,
the registration of the certificate of foreclosure sale
which in no case shall be more than 3 months after
foreclosure, whichever is earlier.
The pendency of the action stops the running of the
right of redemption. Said right continues after
perfection of an appeal until the decision of the
1.
2.
3.
Right to compel the partition;

Complaint must state the nature and
extent of plaintiff's title and a description
of the real estate of which partition is
demanded; and
All other persons interested in the
property must be joined as defendants
(Sec. 1, Rule 69)
a. WHO MAY FILE A COMPLAINT; WHO SHOULD BE

MADE DEFENDANT
Q: Who may file and who should be made
defendants?
A: The action shall be brought by the person who
has a right to compel the partition of real estate
(Sec. 1, Rule 69) or of an estate composed of
personal property, or both real and personal
property (Sec. 13, Rule 69). The plaintiff is a person
who is supposed to be a co-owner of the property
or estate sought to be partitioned. The defendants
are all the co-owners.
Q: What is the effect of non-inclusion of a coowner in an action for partition?
A:
1.
2.
Before judgment not a ground for a

motion to dismiss. The remedy is to file a
motion to include the party.
After judgment makes the judgment
therein void because co-owners are
indispensable parties.

153

Note: Creditors or assignees of co-owners may
intervene and object to a partition affected without
their concurrence. But they cannot impugn a partition
already executed unless there has been fraud or in
case it was made notwithstanding a formal opposition
presented to prevent it. (Sec. 12, Rule 69)
b. MATTERS TO ALLEGE IN THE COMPLAINT FOR

PARTITION
Q: What are the matters to be alleged in the
complaint for partition?
A: The plaintiff shall state in his complaint, the
nature and extent of his title, an adequate
description of the real estate of which partition is
demanded, and shall join as defendants all other
persons interested in the property (Sec. 1, Rule 69).
He must also include a demand for the accounting
of the rents, profits and other income from the
property which he may be entitled to. These cannot
be demanded in another action because they are
parts of the cause of action for partition. They will
be barred if not set up in the same action pursuant
to the rule against splitting a single cause of action.
c. TWO (2) STAGES IN EVERY ACTION FOR
PARTITION
Q: What are the two aspects of partition
proceedings?
A:
1.
2.
Existence of co-ownership; and

Accounting or how to actually partition
the property.
Note: During the trial, the court shall determine

whether or not the plaintiff is truly a co-owner and
there is co-ownership and that partition is not legally
proscribed, the court will issue an order of partition. It
directs the parties to partition the property by proper
instruments of conveyance, if they agree among
themselves.
If they do agree, the court shall then confirm the
partition so agreed and such is to be recorded in the
registry of deeds of the place in which the property is
situated (Sec 2, Rule 69). There always exist the
possibility that the parties are unable to agree on the
partition. Thus, the next stage is the appointment of
commissioners.
Q: What are the stages in an action for partition

which could be the subject of appeal?
A:
1.
154
Order determining the propriety of the

partition
2.
3.
Judgment as to the fruits and income of

the property
Judgment of partition (Riano, Civil
596, 2009 ed.)
d. ORDER OF PARTITION AND PARTITION BY

AGREEMENT
Q: What is an order of partition?
A: The order of partition is one that directs the
parties or co-owners to partition the property
Q: When does the court issue the order of
partition?
A: During the trial, the court shall determine
whether or not the plaintiff is truly a co-owner of
the property, that there is indeed a co-ownership
among the parties, and that a partition is not legally
proscribed thus may be allowed. If the court so
finds that the facts are such that a partition would
be in order, and that the plaintiff has a right to
demand partition, the court will issue an order of
partition.
Note: The court shall order the partition of the
property among all the parties in interest, if after trial
it finds that the plaintiff has the right to partition (Sec.
2, Rule 69). It was held that this order of partition
including an order directing an accounting is final and
not interlocutory and hence, appealable; thus,
revoking previous contrary rulings on the matter. A
final order decreeing partition and accounting may be
appealed by any party aggrieved thereby.
Q: When is partition by agreement proper?

A: The parties may make the partition among
themselves by proper instruments of conveyance, if
they agree among themselves. If they do agree, the
court shall then confirm the partition so agreed
upon by all of the parties, and such partition,
together with the order of the court confirming the
same, shall be recorded in the registry of deeds of
the place in which the property is situated (Sec. 2,
Rule 69).
e. PARTITION BY COMMISSIONERS; APPOINTMENT
OF COMMISSIONERS, COMMISSIONERS REPORT;
COURT ACTION UPON COMMISSIONERS REPORT
Q: Can the appointment of commissioners be
dispensed with in an action for partition?
A: The appointment of commissioners is mandatory
unless there is an extrajudicial partition between
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
the parties. They have the power to effect the
partition but not to inquire into question of
ownership or possession
Note: if parties cannot agree, the court shall appoint
not more than 3 commissioners of competent and
disinterested persons to make partition. They shall
make full and accurate report to the court of all their
proceedings as to the partition. Upon the filing of such
report, copies of which shall be served to the clerk of
court upon all interested parties with notice that they
are allowed 10 days within which to file objections to
the findings of the report, if they so desire.
The court may upon hearing accept the report and
render judgment in accordance with the same, may
recommit to the commissioners for further
proceedings, or reject the report and render judgment
that shall effectuate a fair and just partition.
A; The provisions of this Rule shall apply to

partitions of estates composed of personal
property, or of both real and personal property, in
so far as the same may be applicable (Sec. 13, Rule
69).
h. PRESCRIPTION OF ACTION
Q: What is the rule on prescription in an action of
partition?
A: Prescription of action does not run in favor of a
co-owner or co-heir against his co-owner or coheirs as long as there is a recognition of the coownership expressly or impliedly (Art. 494). Also,
the action for partition cannot be barred by
prescription
12. FORCIBLE ENTRY AND UNLAWFUL DETAINER
f. JUDGMENT AND ITS EFFECTS

a. DEFINITIONS AND DISTINCTION
Q: What should the judgment contain and its
effects?
A: The judgment shall state definitely, by metes and
bounds and adequate description, the particular
portion of the real estate assigned to each party,
the effect of the judgment shall be to vest in each
party to the action in severalty the portion of the
real estate assigned to him. A certified copy of the
judgment shall in either case be recorded in the
registry of deeds of the place in which the real
estate is situated, and the expenses of such
recording shall be taxed as part of the costs of the
a. If the whole property is assigned to one of the
parties upon his paying to the others the sum or
sums ordered by the court, the judgment shall state
the fact of such payment and of the assignment of
the real estate to the party making the payment,
and the effect of the judgment shall be to vest in
the party making the payment the whole of the real
estate free from any interest on the part of the
other parties to the action.
b. If the property is sold and the sale confirmed by
the court, the judgment shall state the name of the
purchaser or purchasers and a definite description
of the parcels of real estate sold to each purchaser,
and the effect of the judgment shall be to vest the
real estate in the purchaser or purchasers making
the payment or payments, free from the claims of
any of the parties to the action.
g. PARTITION OF PERSONAL PROPERTY
Q: What is the rule on partition of personal
property?
Q: What is forcible entry?

A: It is entry effected by force, intimidation, threat,
strategy, or stealth; the action is to recover
possession founded upon illegal possession from
the beginning.
Note: It is commenced by a verified complaint. (Sec. 1)
Q: What are the requisites of a valid forcible

entry?
A:
1.
2.
A person is deprived of possession of any

land or building by force, intimidation,
threat, strategy, or stealth; and
Action is brought within 1 year from the
unlawful deprivation. (Sec. 1)
Q: What are the questions to be resolved in an

action for forcible entry?
A:
1.
2.
3.
Who has actual possession over the real

property;
Was the possessor ousted therefrom
within one year from the filing of the
complaint by force, intimidation, strategy,
threat or stealth; and
Does the plaintiff ask for the restoration
of his possession (Dizon v. Concina, G.R.
No. 23756, Dec. 27, 1969)
Q: What is unlawful detainer?

A: It is unlawful detention by a person who has
acquired possession rightfully, but who detains the

155

property after the right to keep possession has
ended.
force, intimidation,
strategy, threat
or stealth.
Note: It is commenced by a verified complaint. (Sec. 1)
No previous demand for

the defendant to vacate
the premises is necessary.
Q: What are the requisites of a valid unlawful

detainer?
A:
1.
2.
3.
Possession of any land or building is

unlawfully withheld from a lessor, vendor,
vendee, or other person after the
expiration or termination of the right to
hold possession by virtue of any contract
express or implied;
Action is brought within 1 year after such
unlawful deprivation or withholding of
possession; and
Demand to pay or comply with the
conditions of the lease and to vacate is
made upon the lessee. (Sec. 1)
Q: Is formal contract a prerequisite in unlawful

detainer?
A: The existence of a formal contract is not
necessary in unlawful detainer. Even if there is no
formal contract between the parties, there can still
be an unlawful detainer because implied contracts
are covered by ejectment proceedings. Possession
by tolerance creates an implied promise to vacate
the premises upon the demand of the owner (Peran
v. CFI of Sorsogon, G.R. No. 57259, Oct. 13, 1983).
Q: Does the amount of rents and damages prayed
for in an action for forcible entry and unlawful
detainer affect the jurisdiction of the courts?
A: No. The amount of rents and damages claimed
does not affect jurisdiction of the MTCs because the
same are only incidental or accessory to the main
action (Lao SengHian v. Lopez, G.R. No. L-1950, May
16, 1949).
Note: If only rents or damages are claimed in an
ordinary action, the action is personal and the amount
claimed determines whether it falls within the
jurisdiction of the RTC or the MTC.
Q: Distinguish forcible entry from unlawful

detainer.
A:
Forcible Entry
(Detentacion)
Possession of the land by
the defendant is unlawful
from the beginning as he
acquires possession by
156
Unlawful Detainer
(Desahucio)
Possession is inceptively
lawful but it becomes
illegal by reason of the
termination of his right to
the possession of the

property under his
contract with the plaintiff.
Demand is jurisdictional if
the ground is nonpayment of rentals or
failure to comply with the
lease contract.
The plaintiff must prove

that he was in prior
The plaintiff need not
physical possession of the
have been in prior physical
premises until he was
possession.
deprived thereof by the
defendant.
The 1 year period is
Period is counted from the
generally counted from
date of last demand or last
the date of actual entry on
letter of demand.
the land.
b. DISTINGUISHED FROM ACCION PUBLICIANA

AND ACCION REINVINDICATORIA
Q: What are the possessory actions on real
property?
A:
Accion
Interdictal
Summary
action for the
recovery of
physical
possession
where the
disposses-sion
has not lasted
for more than
1 year.
All cases of
forcible entry
and unlawful
detainer
irrespective of
the amount of
damages or
unpaid rentals
sought to be
recovered
should be
brought to the
MTC.
Accion
Publiciana
Accion
Reinvindicatoria
A plenary action
for the recovery
of the real right
of possession
when the
dispossession
has lasted for
more than 1
year.
An action for the

recovery of
ownership,
which
necessarily
includes the
recovery of
possession.
RTC has
jurisdiction if
the value of the
property
exceeds
P20,000 or
P50,000 in
Metro Manila.
RTC has
jurisdiction if the
value of the
property
exceeds P20,000
or P50,000 in
Metro Manila.
MTC has
jurisdiction if
the value of the
property does
not exceed the
above amounts.
MTC has
jurisdiction if the
value of the
property does
not exceed the
above amounts.
Note: Forcible entry and unlawful detainer actions are

summary in nature designed to provide for an
expeditious means of protecting actual possession or
the right to possession of the property involved
(Sudaria v..Quiambao, GR No. 164305, November 20,
2007)
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
Q: What rule should govern the proceedings of
accion interdictal?
A:
GR: Ejectment cases are summary proceedings
intended to provide an expeditious means of
protecting actual possession or right to
possession of property.
XPN: When the decision of the MTC is appealed
to the RTC, the applicable rules are those of the
latter court (Refugia v. CA, G.R. No. 118284, July
5, 1996).
c. JURISDICTION IN ACCION PUBLICIANA AND
ACCION REINVINDICATORIA
Q: In which court accion publiciana and accion
reinvindicatoria filed?
A: The actions of forcible entry and unlawful
detainer are within the exclusive and original
jurisdiction of the MTC, MeTC and MCTC (Sec.
33[2], BP 129; RA 7691) and shall be governed by
the rules on summary procedure irrespective of the
amount of damages or rental sought to be
recovered (Sec. 3, Rule 70).
d. WHO MAY INSTITUTE THE ACTION AND WHEN;
AGAINST WHOM THE ACTION MAY BE
MAINTAINED
Q: Who may institute the action?
A: Subject to the provisions of the next succeeding
section, a person deprived of the possession of any
land or building by force, intimidation, threat,
strategy, or stealth, or a lessor, vendor, vendee, or
other person against whom the possession of any
land or building is unlawfully withheld after the
expiration or termination of the right to hold
possession, by virtue of any contract, express or
implied, or the legal representatives or assigns of
any such lessor, vendor, vendee, or other person,
may, at any time within one (1) year after such
unlawful deprivation or withholding of possession,
bring an action in the proper Municipal Trial Court
against the person or persons unlawfully
withholding or depriving of possession, or any
person or persons claiming under them, for the
restitution of such possession, together with
damages and costs (Sec. 1, Rule 70).
e. PLEADINGS ALLOWED
Q: What are the pleadings allowed?
A: The only pleadings allowed to be filed are the

complaint, compulsory counterclaim and crossclaim pleaded in the answer, and the answers
thereto. All pleadings shall be verified (Sec. 4, Rule
70).
f. ACTION ON THE COMPLAINT
Q: What action will the court make upon receipt of
the complaint?
A: The court may, from an examination of the
allegations in the complaint and such evidence as
may be attached thereto, dismiss the case outright
on any of the grounds for the dismissal of a civil
action which are apparent therein. If no ground for
dismissal is found, it shall forthwith issue summons
(Sec. 5, Rule 70).
g. WHEN DEMAND IS NECESSARY
Q: When is demand necessary?
A: Unless there exists a stipulation to the contrary,
an unlawful detainer case shall be commenced only
after the demand to pay or comply with the
conditions of the lease and to vacate is made upon
the lessee (Sec. 2). The requirement for a demand
implies that the mere failure of the occupant to pay
rentals or his failure to comply with the conditions
of the lease does not ipso facto render his
possession of the premises unlawful. It is the failure
to comply with the demand that vests upon the
lessor a cause of action.
Q: In what form should the demand be made?
A: The demand may be in the form of a written
notice served upon the person found in the
premises. The demand may also be made by
posting a written notice on the premises if no
person can be found thereon (Sec. 2). It has been
ruled, however, that the demand upon a tenant
may be oral (Jakihaca vs. Aquino, 181 SCRA 67).
Sufficient evidence must be adduced to show that
there was indeed a demand like testimonies from
disinterested and unbiased witnesses.
h. PRELIMINARY INJUNCTION AND PRELIMINARY
MANDATORY INJUNCTION
Q: Can the court grant injunction while the case is
pending?
A: The court may grant preliminary injunction, in
accordance with the provisions of Rule 58, to

157

prevent the defendant from committing further
acts of dispossession against the plaintiff. A
possessor deprived of his possession through
forcible entry or unlawful detainer may, within five
(5) days from the filing of the complaint, present a
motion in the action for forcible entry or unlawful
detainer for the issuance of a writ of preliminary
mandatory injunction to restore him in his
possession. The court shall decide the motion
within thirty (30) days from the filing thereof (Sec.
15, Rule 70).
i. RESOLVING DEFENSE OF OWNERSHIP
Q: In what instances may the court resolve issue of
ownership?
A: When the defendant raises the issue of
ownership, the court may resolve the issue of
ownership only under the following conditions:
(a)
When the issue of possession cannot be
resolved without resolving the issue of ownership;
and
(b) The issue of ownership shall be resolved only
to determine the issue of possession (Sec. 16).
Note: The assertion by the defendant of ownership
over the disputed property does not serve to divest
the inferior court of its jurisdiction. The defendant
cannot deprive the court of jurisdiction by merely
claiming ownership of the property involved (Rural
Bank of Sta. Ignacia vs. Dimatulac, 401 SCRA 742;
Perez vs. Cruz, 404 SCRA 487).If the defendant raises
the question of ownership and the issue of possession
cannot be resolved without deciding the question of
ownership, the issue of ownership shall be resolved
only to determine the issue of possession (Sec. 3, RA
7691).
j. HOW TO STAY THE IMMEDIATE EXECUTION OF

JUDGMENT
Q: How is the execution of judgment stayed?
A: Defendant must take the following steps to stay
the execution of the judgment:
1. Perfect an appeal;
2. File a supersedeas bond to pay for the rents,
damages and costs accruing down to the time of
the judgment appealed from; and
3. Deposit periodically with the RTC, during the
pendency of the appeal, the adjudged amount of
rent due under the contract or if there be no
contract, the reasonable value of the use and
occupation of the premises (Sec. 19, Rule 70).
158
k. SUMMARY PROCEDURE; PROHIBITED

PLEADINGS
Q: What is the nature of an action for forcible
entry and unlawful detainer?
A: Forcible entry and unlawful detainer actions are
summary in nature designed to provide for an

expeditious means of protecting actual possession
or the right to possession of the property involved
(Tubiano vs. Riazo, 335 SCRA 531). These action
shall both fall under the coverage of the Rules of
Summary Procedure irrespective of the amount of
damages or unpaid rental sought to be recovered
(Sec. 3, Rule 70).
Q: What are the prohibited pleadings and motion
under Rule 70?
A: Prohibited pleadings and motions:
1.

on the ground of lack of jurisdiction over
the subject matter, or failure to comply
with section 12;
2. Motion for a bill of particulars;
reopening of trial;
4. Petition for relief from judgment;
pleadings, affidavits or any other paper;
6. Memoranda;
order issued by the court;
default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions
13. CONTEMPT
Q: What is contempt?
A: It is a defiance of the authority, justice or dignity
of the court; such conduct as tends to bring the
authority and administration of the law into
disrespect or to interfere with, or prejudice litigant
or their witnesses during litigation (Halili v. CIR, G.R.
No. L-24864, Nov. 19, 1985)
Note: It is commenced by a verified petition with
supporting particulars and certified true copies of
documents or papers involved therein (Sec. 4).
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
a. KINDS OF CONTEMPT
d.
e.
Q: What are the kinds of contempt?

A:
1.
2.
f.
Direct or indirect, according to the

manner of commission.
Civil or Criminal, depending on the nature
and effect of the contemptuous act.
g.
Q: Distinguish direct from indirect contempt?

A:
Direct Contempt
Committed in the presence
of or so near a court.
Summary in nature
Indirect Contempt
Not committed in the
presence of the court.
Punished after being
charged and heard
If committed against:
1. RTC fine not
exceeding P2,000 or
imprisonment
not
exceeding 10 days or
both.
2. MTC fine not
exceeding P200 or
imprisonment
not
exceeding 1 day, or
both.
IF COMMITTED AGAINST:
1. RTC FINE NOT
EXCEEDING P30,000
Remedy:Certiorari or
prohibition
Contempt in facie curiae
Remedy: Appeal (by

notice of appeal)
Constructive contempt
OR IMPRISONMENT
NOT EXCEEDING 6
MONTHS OR BOTH
2.
MTC fine not

exceeding P5,000
or imprisonment
not exceeding 1
month or both
Failure to obey a subpoena duly

served.
Assuming to be an attorney or an
officer of the court without
authority.
Rescue or attempted rescue, of a
person or property in the custody of
an officer.
Any improper conduct tending to
degrade the administration of justice
(Sec. 3)
Q: Distinguish criminal contempt from civil

contempt.
A:
Criminal Contempt
Civil Contempt
Punitive in nature
Remedial in nature
Purpose is to
preserve the courts
authority and to
punish disobedience
of its orders
Purpose is to provide a
remedy for an injured suitor
and to coerce compliance
with an order for the
preservation of the rights of
private persons
Intent is necessary
Intent is not necessary
State is the real

prosecutor
Instituted by the aggrieved

party or his successor or
someone who has pecuniary
interest in the right to be
protected
Proof required is
proof beyond
reasonable doubt.
Proof required is more than

mere preponderance of
evidence
If accused is
acquitted, there can
be no appeal.
If judgment is for
respondent, there can be an
appeal
Q: What are the grounds of contempt?

A:
1.
2.
Direct contempt
a. Misbehavior in the presence of or so
near a court as to obstruct or
interrupt the proceedings
b. Disrespect towards the court
c. Offensive
personalities
toward
others; or
d. Refusal to be sworn or to answer as
a witness, or to subscribe an affidavit
or deposition when lawfully required
to do so (Sec. 1)
Indirect contempt
a. Misbehavior of an officer of a court
in the performance of his official
duties or in his official transactions;
b. Abuse or any unlawful interference
with
the
proceedings
not
constituting direct contempt.
c. Disobedience of or resistance to a
lawful writ, process, order, or
judgment of a court or unauthorized
intrusion to any real property after
being ejected.
Q: Lawyer Mendoza, counsel for the accused in a

criminal case, was cited for direct contempt by
Judge Tagle and was sentenced to 10 days
imprisonment. Lawyer Mendoza was placed in
prison immediately. Lawyer Mendoza manifested
his readiness to post a bond and to appeal the
order by certiorari to stay its execution but Judge
Tagle said that the order is immediately executory.
Is Judge Tagle correct?
A: No. An order of direct contempt is not
immediately executory or enforceable. The
contemner must be afforded a reasonable remedy
to extricate or purge himself of the contempt.
Under Sec. 2, Rule 71, of the Rules of Court, a
person adjudged in direct contempt by any court

159

may not appeal therefrom, but may avail himself of
the remedies of certiorari or prohibition. The
execution of the judgment shall be suspended
pending resolution of such petition, provided such
person files a bond fixed by the court which
rendered the judgment and conditioned that he will
abide by and perform the judgment should the
petition be decided against him (Tiongco v. Judge
Salao, A.M. No. RTJ-06-2009, July 27, 2006).
b. PURPOSE AND NATURE OF EACH
Q: What is the purpose of the power to contempt?
A: The reason for the power to punish for contempt
is that respect of the courts guarantees the stability
of their institution. Without such guarantee, said
institution would be resting on shaky foundation
(Cornejovs.Tan, 85 Phil. 772).
Q: What is the nature of contempt power?
A: The power to punish for contempt is inherent in
all courts; its existence is essential to the
preservation of order in judicial proceedings and to
the enforcement of judgments, orders and
mandates of the courts, and, consequently, to the
due administration of justice.
Q: What are the dual aspects on the power to
punish contempt?
A:
1.
2.
Primarily, the proper punishment of the

guilty party for his disrespect to the
courts; and
Secondarily, his compulsory performance
of some act or duty required of him by the
court and which he refuses to perform.
c. REMEDY AGAINST DIRECT CONTEMPT; PENALTY

Q: What is theremedy against direct contempt and
its penalty?
A:
1.
160
The penalty for direct contempt depends upon

the court which the act was committed;
a. If the act constituting direct
contempt was committed against an
RTC or a court of equivalent or
higher rank, the penalty is a fine not
exceeding
2,000
pesos
or
imprisonment not exceeding 10
days, or both;
b. If the act constituting direct
contempt was committed against a
2.
lower court, the penalty is a fine not

exceeding
200
pesos
or
imprisonment not exceeding one (1)
day, or both (Sec. 1);
c. If the contempt consists in the
refusal or omission to do an act
which is yet within the power of the
respondent to perform, he may be
imprisoned by order of the court
concerned until he performs it.
A person adjudged in direct contempt may not
appeal therefrom. His remedy is a petition for
certiorari or prohibition directed against the
court which adjudged him in direct contempt
(Sec. 2). Pending the resolution of the petition
for certiorari or prohibition, the execution of
the judgment for direct contempt shall be
suspended. The suspension however shall take
place only if the person adjudged in contempt
files a bond fixed by the court which rendered
the judgment. This bond is conditioned upon
his performance of the judgment should the
petition be decided against him.
d. REMEDY AGAINST INDIRECT CONTEMPT;
PENALTY
Q: What is theremedy against indirect contempt

and its penalty?
A:
1. The punishment for indirect contempt depends
upon the level of the court against which the act
was committed;
(a)
Where the act was committed
against an RTC or a court of equivalent or
higher rank, he may be punished by a fine
not exceeding 30,000 pesos or
imprisonment not exceeding 6 months, or
both;
(b)
against a lower court, he may be
punished by a fine not exceeding 5,000
pesos or imprisonment not exceeding one
month, or both. Aside from the applicable
penalties, if the contempt consists in the
violation of a writ of injunction, TRO or
status quo order, he may also be ordered
to make complete restitution to the party
injured by such violation of the property
involved or such amount as may be
alleged and proved (Sec. 7);
(c)
against a person or entity exercising
quasi-judicial functions, the penalty
imposed shall depend upon the provisions
of the law which authorizes a penalty for
REMEDIAL LAW TEAM:

CIVIL PROCEDURE
contempt against such persons or
entities.
(2) The person adjudged in indirect contempt
may appeal from the judgment or final order of the
court in the same manner as in criminal cases. The
appeal will not however have the effect of
suspending the judgment if the person adjudged in
contempt does not file a bond in an amount fixed
by the court from which the appeal is taken. This
bond is conditioned upon his performance of the
judgment or final order if the appeal is decided
against (Sec. 11).
e. HOW CONTEMPT PROCEEDINGS ARE
COMMENCED
Q: How may an action for indirect contempt be
commenced?
A:
1.
2.
By order or other formal charge by the

court requiring the respondent to show
cause why he should not be punished for
contempt (motuproprio); or
By a verified petition with supporting
particulars and certified true copies of the
necessary documents and papers
(independent action) (Sec. 4).
Note: The first procedure applies only when the

indirect contempt is committed against a court or
judge possessed and clothed with contempt powers.
The second mode applies if the contemptuous act was
committed not against a court or a judicial officer with
authority to punish contemptuous acts. (Nazareno v.
Barnes, G.R. No. L-59072, Apr. 25, 1984)
The court does not declare the respondent in default
since the proceeding partakes the nature of a criminal
prosecution (Fuentes v. Leviste, G.R. No. L-47363, Oct.
28, 1982).
Q: What are the procedural requisites before the

accused may be punished for indirect contempt?
A:
1.
2.
3.
A charge in writing to be filed;

An opportunity for the person charged to
appear and explain his conduct; and
To be heard by himself or counsel.
(Regalado v. Go, G.R. No. 167988, Feb. 6,
2007)
NOTE: The rules on contempt under Rule 71 apply to

contempt committed against persons or entities
exercising quasi-judicial functions or in case there are
rules for contempt adopted for such bodies or entities
pursuant to law, Rule 71 shall apply suppletorily (Sec

12, Rule 71)
Quasi-judicial bodies that have the power to cite
persons for indirect contempt pursuant to Rule 71 of
the Rules of Court can only do so by initiating them in
the proper RTC. It is not within their jurisdiction and
competence to decide the indirect contempt cases.
Q: May a non-party be held for contempt?

A: No, unless he is guilty of conspiracy with any one
of the parties in violating the courts orders
(DesaEnt., Inc. v. SEC, G.R. No. L-45430, Sept. 30,
1982).
Q: Ray, through Atty. Velasco, filed a complaint for
quieting of title against Chiz. Chiz, however,
interposed the defense that the documents relied
upon by Ray and Atty. Velasco were forged and
falsified. Finding that the said documents were
indeed forged and falsified, Judge Victoria cited
Ray and Atty. Velasco for direct contempt and
ordered them to serve 10 days of detention at the
Municipal Jail. Ray and Atty. Velasco filed a
motion for bail and a motion to lift the order of
arrest. But they were denied outright by Judge
Victoria. Is Judge Victoria correct?
A: No. Direct contempt is a contumacious act done
facie curiae and may be punished summarily
without hearing. Indirect or constructive contempt,
in turn, is one perpetrated outside of the sitting of
the court.
Here the use of falsified and forged documents is a
contumacious act. However, it constitutes indirect
contempt not direct contempt. The imputed use of
a falsified document, more so where the falsity of
the document is not apparent on its face, merely
constitutes indirect contempt, and as such is
subject to such defenses as the accused may raise
in the proper proceedings. Thus, following Sec. 3,
Rule 71, acontemner may be punished only after a
charge in writing has been filed, and an opportunity
has been given to the accused to be heard by
himself and counsel.
Moreover, settled is the rule that a contempt
proceeding is not a civil action, but a separate
proceeding of a criminal nature in which the court
exercises limited jurisdiction. Thus, the modes of
procedure and the rules of evidence in contempt
proceedings are assimilated as far as practicable to
those adapted to criminal prosecutions. Thus, the
judge erred in declaring summarily that Ray and
Judge Velasco are guilty of direct contempt and
ordering their incarceration. He should have
conducted a hearing with notice to Ray and Judge

161

Velasco (Judge Espaool v. Formoso, G.R. No.
150949, June 21, 2007).
g. WHEN IMPRISONMENT SHALL BE IMPOSED

Q: When shall imprisonment be imposed?
f. ACTS DEEMED PUNISHABLE AS INDIRECT

CONTEMPT
Q: What are the acts which are deemed
punishable as indirect contempt?
A:After a charge in writing has been filed, and an
opportunity given to the respondent to comment
thereon within such period as may be fixed by the
court and to be heard by himself or counsel, a
person guilty of any of the following acts may be
punished for indirect contempt:
1.
2.
3.
4.
5.
6.
7.
Misbehavior an officer of a court in the

performance of his official duties or in his
official transactions;
Disobedience of or resistance to a lawful
writ, process, order, or judgment of a
court, including the act of a person who,
after being dispossessed or ejected from
any real property by the judgment or
process of any court of competent
jurisdiction, enters or attempts or induces
another to enter into or upon such real
property, for the purpose of executing
acts of ownership or possession, or in any
manner disturbs the possession given to
the person adjudged to be entitled
thereto;
Any abuse of or any unlawful interference
with the processes or proceedings of a
court not constituting direct contempt
under section 1 of this Rule;
Any improper conduct tending, directly or
indirectly, to impede, obstruct, or
degrade the administration of justice;
Assuming to be an attorney or an officer
of a court, and acting as such without
authority;
Failure to obey a subpoena duly served;
The rescue, or attempted rescue, of a
person or property in the custody of an
officer by virtue of an order or process of
a court held by him (Sec. 3).
A: When the contempt consists in the refusal or

omission to do an act which is yet in the power of
the respondent to perform, he may be imprisoned
by order of the court concerned until he performs
it. Indefinite incarceration may be resorted to
where the attendant circumstances are such that
the non-compliance with the court order is an utter
disregard of the authority of the court which has
then no other recourse but to use its coercive
power. When a person or party is legally and validly
required by a court to appear before it for a certain
purpose, and when that requirement is disobeyed,
the only remedy left for the court is to use force to
bring the person or party before it.
Note: The punishment is imposed for the benefit of a
complainant or a party to a suit who has been injured
aside from the need to compel performance of the
orders or decrees of the court, which the contemnor
refuses to obey although able to do so. In effect, it is
within the power of the person adjudged guilty of
contempt to set himself free.
h. CONTEMPT AGAINST QUASI-JUDICIAL BODIES

Q: What is the rule on contempt against quasijudicial bodies?
A: The rules on contempt apply to contempt
committed against persons or entities exercising
quasi-judicial functions or in case there are rules for
contempt adopted for such bodies or entities
pursuant to law, Rule 71 shall apply suppletorily.
Quasi-judicial bodies that have the power to cite
persons for indirect contempt can only do so by
initiating them in the proper RTC. It is not within
their jurisdiction and competence to decide the
indirect contempt cases. The RTC of the place
where contempt has been committed shall have
jurisdiction over the charges for indirect contempt
that may be filed (Sec. 12).
Note: Failure by counsel to inform the court of the

death of his client constitutes indirect contempt within
the purview of Sec. 3, Rule 71, since it constitutes an
improper conduct tending to impede the
administration of justice.
162
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
IV. SPECIAL PROCEEDINGS
A: It is a remedy by which a party seeks to establish

a status, a right or a particular fact. (Sec. 3(c), Rule
1)
Q: What is Special Proceeding?
NOTE: It is a proceeding in rem.
Q: Distinguish an Ordinary action and Special Civil Action from a special proceeding.
A:
Ordinary Action
Special Proceeding
Special Civil Action
To protect or enforce a right or

prevent or redress a wrong
Involve 2 or more parties plaintiff
and defendant
Governed by ordinary rules,
supplemented by special rules
Involves the establishment of a

right, status, or fact
May involve only one party only
petitioner
Governed by special rules,
supplemented by ordinary rules
Civil Action subject to specific

rules.
Involves two or more parties
Initiated by a complaint, and

parties respond through an answer
Initiated by a petition and parties

respond through an opposition
Heard by courts of general

jurisdiction
Issues or disputes are stated in the
pleadings of the parties
Heard by
jurisdiction
Adversarial
Not adversarial
Based on a cause of action
Not based on a cause of action

(except habeas Corpus)
courts
of
Ordinary rules apply primarily but

subject to specific rules
Some are initiated by complaint,
while some are initiated by
petition
limited
Issues are determined by law
Some special civil action have no

cause of action
Q: What are the subject matters of special proceedings?

A:
Special Proceeding
Rules 73-90
Settlement of Estate
of Deceased Persons
Jurisdiction
Venue
RTC- Gross value of the estate

exceeds
400,000/
500,000
(Manila)
MTC- Gross value of the estate
does not exceed 400,000/
500,000
1.
NOTE: MTC jurisdiction is exclusive

of interest, damages of whatever
kind, attorneys fees, litigation
expenses and costs
2.
If inhabitant (resident) of the

Philippines (whether citizen
or alien)- Court of the
province/ city where the
deceased resides at the time
of death
Inhabitant (non- resident) of
foreign country- court of any
province/ city wherein he had
estate
1.
Rule 91
Escheat
RTC
Ordinary escheat proceedings:

RTC
a. If resident- place where the
deceased last resided
b.If non-resident- place where
he had estate
2. Reversion of land to the State for
violation of the Consitution/
Laws- RTC where the land lies in
whole or in part
3. Unclaimed deposits (for 10
years)- RTC of the city/ province
where the bank is located
NOTE: All banks located in 1 province
where the court is located may be
made party- defendant in 1 action.

163
Rule 98
Trustees
Rule 101
Hospitalization
insane person
Rule 103
Change of name
Rule 108
Rule 107
A.M. No.
00-8-10-SC
Rule 104
RA 9048
Rules 9297; A.M.

No. 03-0205-SC
A.M. No.
02-06-02-SC
A.M. No.
02-6-02-SC
A.M. No.
02-6-02-SC
of
RTC
Cancellation
or
correction of entries
in the civil registry
Declaration
of
absence and death
Corporate
rehabilitation
Voluntary dissolution
of corporation
Administrative
correction
of
entry/change of first
name or nickname
RTC
RTC
RTC
SEC
Local
civil
general
registry/Consul
Family Court In case of minors

RTC In cases other than minors
Guardianship
Domestic Adoption
Rescission
Adoption
Inter-country
Adoption
RTC
of
Where the will was allowed or

where the property or portion
thereof affected by the trust is
situated
Where such insane person may be
found
Where petitioner resides for 3
years prior to the filing of the
petition
Where the corresponding
registry is located
civil
Where the absentee resided before

his disappearance
Where principal office of the
corporation is situated
Where
principal
office
of
corporation is situated
Local civil registry office where the
record is kept/where the interested
party is presently residing or
domiciled
1. If resident- place where
minor/ incompetent resides
2. If non-resident- place where
minor/
incompetent
has
property
Family Court
Where the adopter resides
Family Court
Where the adoptee resides
Family Court or the InterCountry Adoption Board
Where the adopter resides
Rule 99
Custody of Minors
Family Court
Where petitioner resides or where

the minor may be found
Rule 105
Judicial Approval of
Voluntary
Recognition of Minor
Natural Children
Family Court
Where the child resides
Family
Code
Summary
Proceedings
1.
2.
R.A. 8369
3.
Rule 102
164
RTC-Gross value of the estate

exceeds 400,000/500,000
MTC- does not exceed 400,000/
500,000
Petitions
on
Foster care and
Temporary
Custody
Declaration
of
Nullity
of
Marriage
Cases
of
Domestic
Violence Against
Women
and
Children
Habeas Corpus
Where the petitioner resides or

where the child resides if it involves
minors
Actions mentioned in the Family Courts Act
Family Court
Family Court
Where petitioner or respondent

has been residing for at least 6
months prior to the date of filing
In
case
of
non-resident
respondent, where he may be
found at the election of the
petitioner
SC, CA, RTC, MTC in the province

or city in case there is no RTC
judge; SB only in aid of its
Where the aggrieved party is

detained (RTC)
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
A.M. No.
03-04-04SC
Habeas Corpus in
Relation to Custody of
Minors
Family Court, CA, SC
A.M. No.
07-9-12-SC
Writ of Amparo
RTC, SB, CA or SC or any justice

thereof
A.M. No.
08-1-16-SC
Writ of habeas data
RTC, SB, CA or SC or any justice

thereof
A.M. No.
09-6-8-SC
Writ of Kalikasan
SC or any stations of CA
A.M.
No.02-1110-SC
A.M. No.
02-11-11SC
Declaration of nullity
of void
marriage/Annulment
of marriage
Legal Separation
Where the petitioner resides or

where the minor may be found
Where the threat, act or omission
was committed or any of its
elements occurred
Where
the
petitioner
or
respondent resides, or that which
has jurisdiction over the place
where the data or information is
gathered, collected or stored, at
the option of the petitioner
Where the unlawful act, omission
or threat was committed
Family Court

In
case
of
non-resident
petitioner
Family Court

In
case
of
non-resident
petitioner
Q: What is the publication requirement in special proceedings?

A:
Special Proceeding
Administrative change of first name or nickname
Corporate rehabilitation
Settlement of estate of deceased persons
Judicial change of name
Judicial cancellation or correction of entries in the civil
registry
Domestic adoption
Inter-country adoption
Voluntary dissolution of corporation
(Except shortening of corporate term)
Declaration of absence
Escheat
Guardianship
Trustees
Custody of minors
Hospitalization of insane person
Rescission of adoption
Administrative cancellation or correction of entries
Habeas corpus
Writ of amparo
Writ of habeas data
Writ of kalikasan
1. Petitions on foster care and temporary custody
2. Cases of domestic violence against women and
Publication of Order of Hearing

Once a week for 2 consecutive weeks

Note: The declaration of absence shall not take effect
until six (6) months after its publication in a newspaper
of general circulation.
None

165

children
Summary proceedings
Note: In declaration of nullity or annulment of marriage or legal separation, service of summons may be through
publication once a week for 2 consecutive weeks.
Q: Who should be notified in special proceedings?

A:
Special proceeding
Settlement of estate of deceased persons
Trustees
Hospitalization of insane person
Judicial change of name
Judicial cancellation or correction of entries in the civil
registry
Declaration of absence and death
Corporate rehabilitation
Voluntary dissolution of corporation
Administrative correction of entry/ change of first name
or nickname
Guardianship
Domestic Adoption
Rescission of Adoption
Inter-country Adoption
Custody of Minors
Habeas corpus
Writ of amparo
Writ of habeas data
Writ of kalikasan
Summary proceedings
1. Petitions on foster care and temporary custody
2. Cases of domestic violence against women and
children
Declaration of nullity of void marriage / Annulment of
marriage
Legal separation
Escheat
Interested parties
The minor if above 14 years of age/incompetent
himself/Interested parties on the property of the ward.
General or special notice may be given.
Biological parents/Solicitor General
Adopter
Biological parents, if any/guardian
Biological parents/guardian if any
To the person to which the writ is directed
Respondent
Respondent
Respondent
Respondent and interested party
Solicitor General/Public Prosecutor
City/Provincial Prosecutor/ Respondent
City/Provincial prosecutor/ Respondent
None
A. SETTLEMENT OF ESTATE OF DECEASED

PERSONS, VENUE AND PROCESSES
1. WHICH COURT HAS JURISDICTION
Q: Which court has jurisdiction over the estate of
the deceased?
A:
Regional Trial Court
Gross value of the estate
exceeds 500,000 (within
Metro Manila) or 400,000
(outside Metro Manila)
166
To whom notice must be given

Executor/administrator/any interested party
All persons interested on the trust
On the person alleged to be insane and to the one having
charge of him or any of his relatives
Interested parties/Solicitor General
Persons named in the petition/Solicitor General/Civil
Registrar impleaded as respondent
Heirs/legatees/devisees/creditors/other
interested
persons
Creditors/Debtors
Creditors
Metropolitan Trial Court
Q: State the rule on venue in judicial settlement of

estate of deceased persons.
A:
Resident
Court of the province/city
where the deceased
resided at the time of
death, whether a citizen
or alien
Non-Resident
Court of the province/city
wherein he had the
estate

does not exceed
500,000/400,00
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
2. VENUE IN JUDICIAL SETTLEMENT OF ESTATE
v. Santiago, L- 1723, May 30, 1949); or by filing

another petition for settlement in a proper
court of concurrent venue (De Borja v. Tan, 77
Phil 872).
Q: What is venue?
A: Under the Rules of Court, the province where the
estate of the deceased shall be settled (Cuenco v.
CA, G.R. No. L-24742, October 26, 1973)
Q: Is venue waivable?
A: Yes. Wrong venue is a waivable procedural
defect, and such waiver may occur by laches where
a party had been served notice of the filing of the
probate petition for a year and allowed the
proceedings to continue for such time before filing
a motion to dismiss.
Note: Jurisdiction under Rule 73 does not relate to
jurisdiction per se but to venue. Hence institution in
the court where the decedent is neither an inhabitant
nor had his estate may be waived (Uriarte v. CFI, G.R.
Nos. L-21938-39, May 29, 1970).
Q: What constitutes residence?

A: It is the personal, actual, physical habitation, his
actual residence or place of abode (Fule v. CA, G.R.
No. L-40502, Nov. 29, 1976) and not his permanent
legal residence or domicile.
Note: MTC jurisdiction is exclusive of interest,
damages of whatever kind, attorneys fees, litigation
expenses and costs.
Q: What is the remedy if Venue is improperly laid?

A:
GR: ORDINARY APPEAL should be filed, not
certiorari or mandamus.
XPN: CERTIORARI OR MANDAMUS should be
filed when want of jurisdiction appear on the
record of the case.
Q: What is
Jurisdiction?
the
Principle
of
Preferential
A:
GR: The court first taking cognizance of the
settlement of the estate of the decedent shall
exercise jurisdiction to the exclusion of all
other courts (Sec. 1 of Rule 73.)
The probate court acquires jurisdiction from
the moment the petition for the settlement of
estate is filed with said court. It cannot be
divested of such jurisdiction by the subsequent
acts of the parties as by entering into
extrajudicial partition of the estate (Sandoval
XPN: Estoppel by Laches

Note: The rule applies to both testate and intestate
proceedings.
3. EXTENT OF JURISDICTION OF PROBATE COURT

Q: May probate courts determine issues of
ownership in a proceeding for the settlement of
estate of decedent? Explain.
A:
GR: No, because probate courts are courts of
limited jurisdiction.
XPNS:
1. Provisionally, for the sole purpose of
including the property in the inventory,
without
prejudice
to
its
final
determination in a separate action;
2. When all the parties are heirs of the
decedent and they agreed to submit the
issue of ownership to the probate court,
provided that no rights of third persons
are prejudiced;
3. If the question is one of collation or
advancement; or
4. If the parties consent to the assumption
of jurisdiction by the probate court and
no rights of third parties are prejudiced.
(Agpalo,
Handbook
on
Special
Proceedings, pp. 10-12, 2003 ed.)
Q: The probate court ordered the inclusion of a
parcel of land registered in the name of Richard in
the inventory of the properties of the deceased
Anna. Richard opposed the inclusion arguing that
the probate court cannot determine the issue of
the ownership of the parcel of land inasmuch as
the same was registered in his name. Is Richard
correct?
A: Yes. In probate proceedings, if a property
covered by Torrens title is involved, the
presumptive conclusiveness of such title should be
given due weight, and in the absence of strong
compelling evidence to the contrary, the holder
thereof should be considered as the owner of the
property in controversy until his title is nullified or
modified in an appropriate ordinary action,
particularly, when as in the case at bar, possession
of the property itself is in the persons named in the
title (Luy Lim v. CA, G.R. No. 124715, Jan. 24, 2000).

167

Q: What may the court do in the exercise of its
probate jurisdiction?
A: It may issue warrants and processes to compel
the attendance of witnesses or carry into effect
their orders and judgments and all other powers
granted them by law. (Sec. 3, Rule 73)
Q: May the probate court issue a writ of
execution?
A:
GR: No, because its orders usually refer to the
adjudication of claims against the estate which
the executor or administrator may satisfy
without the necessity of resorting to a writ of
execution.
XPNS:
1. To satisfy the contributive share of the
devisees, legatees and heirs when the
latter had entered prior possession over
the estate (Sec. 6, Rule 88);
2. To enforce payment of the expenses of
partition (Sec. 3, Rule 90); and
3. To satisfy the costs when a person is cited
for examination in probate proceedings
(Sec. 13, Rule 142; De Valera v. Hon.
Ofilada, G.R. No. L-27526, Sept. 19, 1974).
4. To satisfy the claim in a summary
proceedings of creditors or heirs who
appear
within
two
years
from
distribution.
Q: Where should the estate be settled if the

marriage is dissolved by death of either spouse or
both?
A: When the marriage is dissolved by the death of
the husband or wife, the community property shall
be inventoried, administered and liquidated, and
the debts thereof paid, in the testate or intestate
proceedings of the deceased spouse. If both
spouses have died, the conjugal partnership shall be
liquidated in the testate or intestate proceedings of
either. (Sec. 2, Rule 73)
Note: If separate proceedings have been instituted for
each estate, both proceedings may be consolidated if
they were filed in the same court.
The rule on consolidation in settlement proceedings

for husband and wife exclusively applies to them. It
does not apply to siblings, parents and child or
other relatives no matter how close. (Benigno v. de
la Pea, G.R. No. L-38036, Oct. 15, 1932)
Notes:
1.
2.
3.
Q: Can a declaration of heirship be made in an

independent action?
A:
1.
2.
168
If the special proceedings are pending, or

if there are no special proceedings filed
but there is a need to file one, then the
determination of heirship should be
raised and settled in said special
proceedings.
If the special proceeding had been
instituted but had been finally closed and
terminated, or if a putative heir has lost
the right to have himself declared in the
special proceedings as co-heir and he can
no longer ask for its re-opening, then an
ordinary civil action can be filed for his
declaration as heir in order to bring about
the annulment of the partition or
distribution or adjudication of properties
belonging to the estate of the deceased
(Portugal and Portugal, Jr. v. PortugalBeltran, G.R. No. 155555, Aug. 16, 2005).
4.
The jurisdiction of a court as well as the

concomitant nature of the action is
determined by the averments in the
complaint and not by the defenses
contained in the answer. (Vda. De Manalo v.
CA, 349 SCRA 135).
The residence of the deceased or the
location of his estate is not an element of
jurisdiction over the subject matter but
merely of venue (Cuenca v. CA 53 SCRA 360,
1973.)
Testate proceedings take precedence over
intestate proceedings for the same estate. If
in the course of the intestate proceedings, it
is found that the decedent had left a last
will, proceedings for the probate of the
latter should replace the intestate
proceedings even if at that state, an
administrator had already been appointed
(Uriarte v. CFI, 33 SCRA 252, 1970.)
Mere discovery of a document purporting to
be the last will and testament of decedent
after appointment of an administrator does
not ipso facto nullify the letters of
administration already issued until the will
has been proven and allowed (Advincula v.
Teodoro, 99 Phil 413).
4. POWERS AND DUTIES OF PROBATE COURT

Q: What are the powers and duties of a Probate
Court?
A: In probate proceedings, the court:
1. Orders the probate of the will of the
decedent
2. Grants letters administration
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
3. Supervises and controls all acts of
administration
4. Hears and approves claims against the
estate of the deceased
5. Orders payment of lawful debts
6. Authorizes sale, mortgage or any
encumbrance of real estate
7. Orders the payment of taxes and other
charges
8. Directs the delivery of the estate to those
entitled thereto.
Allowed only in intestate

succession
There must be no
outstanding debts of the
estate at the time of the
settlement
Resorted at the instance
and by agreement of all
heirs
Allowed in both testate

and intestate succession
Available even if there
are debts, it is the court
which will make provision
for its payment
May be instituted by any
interested party even a
creditor of the estate
without the consent of all
the heirs
Amount of bond is to be
determined by the court
Note: The court acts as a trustee and as such must

jealously guard the estate and see to it that it is wisely
and economically administered, not dissipated.
Amount of bond is equal

to the value of personal
property
Q: What are the powers and duties of a probate

court?
Q: Distinguish the procedure in extrajudicial

settlement from summary settlement
A:
A:
To pass upon the issue regarding:
1. Validity of the will (i.e. formalities
required by law)
2. Distribute shares
3. Determine who are the legal heirs
4. Issue warrants and processes to secure
attendance of witnesses
5. Determine and rule upon issues relating
to settlement of the estate, such as
administration,
liquidation,
and
distribution of the estate
6. Determine the following:
a. Heirs of the decedent;
b. Recognition of natural child;
c. Validity of disinheritance effected by
testator;
d. Status of a woman who claims to be
the lawful wife of the decedent ;
e. Validity if waiver of hereditary heirs;
f. Status of each heir;
g. Whatever property in the inventory is
conjugal or exclusive property of
deceased spouse; or
h. Matters incidental or collateral to the
settlement and distribution of the
estate.
B.
A. EXTRAJUDICIAL
SETTLEMENT
AGREEMENT BETWEEN THE HEIRS
BY
Division of estate made through a public

instrument or affidavit of adjudication
Filing of the public instrument or affidavit of
adjudication with the proper Register of Deeds
Publication of notice of the fact of extrajudicial
settlement once a week for three consecutive
weeks in a newspaper of general circulation
Personal property- file a bond equivalent to its

amount.
Real property- subject to a lien in favor of the
creditors, heirs or other persons for the full period
of 2 years from such distribution and such lien
cannot be substituted by a bond
SUMMARY SETTLEMENT OF ESTATES
1. EXTRAJUDICIAL SETTLEMENT BY AGREEMENT

BETWEEN HEIRS, WHEN ALLOWED
EXTRA JUDICIAL
SETTLEMENT BY
AGREEMENT BETWEEN
HEIRS
No court intervention
The value of the estate is
immaterial
SUMMARY SETTLEMENT
OF ESTATE OF SMALL
VALUE
Requires summary
adjudication
must not exceed P10,000

169

B. SUMMARY SETTLEMENT OF ESTATE OF
SMALL VALUE
Petition for summary settlement to be filed in the
MTC with an allegation that the gross value of the
estate, whether he died testate or intestate does
not exceed P10,000
Publication of notice once a week for 3 consecutive

weeks; court may likewise order that notice be
given to persons as the court may direct
Note: While the Rules of Court provide that the

decedent must not have left any debts, it is sufficient if
any debts he may have left have been paid at the time
the extrajudicial settlement is entered into (Guico v.
Bautista, G.R. No. L-14921, Dec. 31, 1960). It is a
disputable presumption that the decedent left no
debts if no creditor files a petition for letters of
administration within two years after the death of the
decedent.
Q: What is a bond?
Hearing to be held not less than 1 month nor more
than 3 months from the date of last publication of
notice
The court proceeds summarily without the

necessity of appointing an executor or
administrator; and to make orders as may be
necessary
The court may also require a bond in an amount
fixed by the court (not value of personal property)
conditioned upon payment of just claims under
Section 4
Q: When is extra judicial settlement by agreement

between the heirs allowed? (Substantial
Requisites)
When the decedent:
2.
Left no will and no debts; and the heirs

are all of age; and
Of the minors are represented by their
judicial or legal representatives duly
authorized for the purpose.
Q: What are the requisites before an extrajudicial

settlement of estate could be resorted as evidence
of its validity? (Procedural Requisites)
A:
1.
2.
3.
4.
170
Note: The amount of bond required under Section 2 is

determined by the COURT whereas in Section 1 the
amount is EQUAL TO THE VALUE OF THE PERSONAL
PROPERTY as established by adjudication.
Q: When is a bond required to be filed in

extrajudicial settlement of estate?
A: When personal property is involved, a bond is
required. On the other hand, if it is a real property,
it is subject to a lien in favor of a creditor for 2 years
from distribution and such lien cannot be
substituted by a bond. (Sec. 1, Rule 74)
Note: The same provision on the bond and lien also
applies in summary settlement of estate. (Sec. 2,
Rule 74)
A:
1.
A: It is the value of the personal property certified

by the parties under oath and conditioned upon
payment of just claims under Section 4, Rule 74.
Settlement is made in a public instrument

or by affidavit of adjudication in the case
of a sole heir;
Q: Is a public instrument necessary for the validity

of the extrajudicial settlement?
A: No, the requirement of public instrument is not
constitutive of the validity but is merely evidentiary
in nature (Hernandez v. Andal, G.R. No. L-273, Mar.
23, 1947). Even a private instrument, oral
agreement of partition or compromise agreement
entered into without previous authority from the
court is valid. However, reformation of the
instrument may be compelled.
Note: Public instrument is required in transfer and
registration of title to the heirs.
Note: In case of disagreement of heirs, they

may state their oppositions in an ordinary
action of partition.
Q: What is the effect of an extra-judicial partition

executed without the knowledge and consent of
the other co-heirs?
Filed with the Register of Deeds;

Fact of settlement must be published in a
newspaper of general circulation once a
week for 3 consecutive weeks; and
Bond filed equivalent to the value of
personal property. (Sec. 1, Rule 74)
A: It shall not prejudice the co-heir who had no

knowledge nor consented to the same. He shall
have the right to vindicate his inheritance. Such heir
or such other person deprived of his lawful
participation payable in money may compel the
settlement of the estate in courts for the purpose
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
of satisfying such lawful participation. (Sec. 4, Rule
74)
3. AFFIDAVIT OF SELF-ADJUDICATION BY SOLE

HEIR
Q: Why is publication of the extrajudicial

settlement necessary?
Q: What is an Affidavit of Self-Adjudication by sole

heir?
A: To notify and bind the whole world of the

extrajudicial settlement and give the concerned
parties a chance to come forward and challenge the
same (Sec. 1, Rule 74).
A: It is an affidavit required by Sec.1, Rule 74 to be

executed by the sole heir or a deceased person in
adjudicating to himself the entire estate left by the
decedent.
Note: Publication alone does not suffice to bind the

excluded heirs to the extrajudicial settlement
unless he did not participate in the proceedings.
4. SUMMARY SETTLEMENT OF ESTATES OF SMALL

VALUE
Q: What is the effect if the provisions on notice or

participation requirement under Sec. 1, Rule 74
have been strictly complied with?
A: It bars distributees or heirs from objecting to an
extra-judicial partition after the two-year
prescriptive period to question such partition. (Sec.
4, Rule 74)
2. TWO-YEAR PRESCRIPTIVE PERIOD
Q: When does the two year period rule apply?
A: After the expiration of two years from the
extrajudicial partition, distributees or heirs are
barred from objecting to an extrajudicial partition.
The two year prescriptive period applies only:
1.
2.
To persons who have participated or

taken part or had notice of the
extrajudicial partition; and
When all the persons or heirs of the
decedent have taken part in the
extrajudicial
settlement
or
are
represented by themselves or through
their guardians.
Note: It is only a bar against the parties who had not

taken part in the extrajudicial proceedings, but not
against third persons not parties thereto. (Herrera,
Remedial Law III-A, 39)
Q: What is summary settlement of estate?

A: It is a judicial proceeding, without appointment
of executor or administrator, and without delay, the
competent court summarily proceeds to estimate
the value of estate of the decedent; allow his will if
any; declare his heirs, devisees, and legatees;
distribute his net estate among them, who shall
thereupon be entitled to receive and enter into the
possession of the parts of the estate so awarded to
them, respectively.
Q: Summary settlement of estates of small value,
when is it allowed?
A: Only when gross estate does not exceed
P10,000. Amount is jurisdictional. (Sec. 2, Rule 74)
Notes:
1.
2.
3.
4.
5.
6.
Q: Does the two year period apply for a claim of

minor or incapacitated person?
A: If on the date of the expiration of the period of
two years prescribed, the person authorized to file
a claim is a minor or mentally incapacitated, or is in
prison or outside the Philippines, he may present
his claim within one year after such disability is
removed. (Sec. 5, Rule 74)
7.
8.
Amount is jurisdictional;
Summary settlement of estate of small value
is allowed in both testate and intestate
estates;
Available even if there are debts as the court
will make provisions for the payment
thereof.
In accordance with B.P. Blg. 129, the
jurisdiction is vested to the Municipal Trial
Courts.
Instituted by any interested party and even
by a dredirtor of the estate, without the
consent of all the heirs.
The date for hearing, shall be set by court
not less than 1 month nor more than 3
months from date of publication of last
notice and the order of hearing be published
once a week for 3 consecutive weeks in a
newspaper of general circulation.
Notice shall be served upon such interested
persons as the court may direct.
Bond in an amount fixed by the court (not
value of the personal property) conditioned
upon payment of just claims under sec. 4.

171

Q: When can settlement of estates in courts be
compelled?
A:
1.
2.
3.
The existence of debts against the estate;

If there is undue deprivation of lawful
participation payable in money. (Sec. 4,
Rule 74)
If there is undue deprivation of lawful

participation in the estate;
5. REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE
Q: What are the remedies of the aggrieved party in summary or extrajudicial settlement of the estate?
A:
CLAIM AGAINST THE BOND OR
REAL ESTATE
GROUNDS: (Section 4, Rule 74)

a. If there is undue deprivation of lawful participation in the estate;
b. Existence of debts against the estate.
Should be brought within 2 years after settlement and distribution of the estate
COMPEL THE SETTLEMENT

ESTATE IN COURTS
ACTION FOR RESCISSION
OF
ACTION FOR RECONVEYANCE OF

REAL PROPERTY
REOPENING BY INTERVENTION IN
SUMMARY SETTLEMENT
PETITION FOR RELIEF (SUMMARY

SETTLEMENT)
ACTION TO ANNUL A DEED OF

EXTRAJUDICIAL SETTLEMENT OR
JUDGMENT
IN
SUMMARY
SETTLEMENT
ORDINARY ACTION BUT NOT
AGAINST THE BOND
Should be brought within 2 years after settlement and distribution of the estate
It must be availed of within 5 years from the time the right of action accrues.
(Art. 1149, NCC)
Also applicable in judicial proceedings
GR: It is based on an implied or constructive trust which prescribes in 10 years
from the date of registration or date of issuance of certificate of title or from
actual discovery of fraud if the registration was made in bad faith.
XPN: If the plaintiff is in possession of the property and did not pass to innocent
purchaser for value and good faith, action is imprescriptible. (Marquez v. CA,
G.R. No. 125715, Dec. 29, 1998) Also applicable in judicial proceedings.
Upon motion of a person who either:
a. Has a legal interest in the matter in litigation;
b. Has such legal interest in the success of either of the parties, or an interest
against both; or
c. Is so situated as to be adversely affected by the distribution of property in
the custody of the court or of an officer.
Note: May be availed of after judgment but before its finality or appeal by the
aggrieved party.
On grounds of fraud, accident, mistake, and excusable negligence within 60 days
after petitioner learns of the judgment, final order or other proceeding to be set
aside, and not more than 6 months after such judgment or final order was
entered. (Rule 38.) Also applicable in judicial proceedings.
On the ground of fraud which should be filed within 4 years from the discovery
of fraud.
If the order of closure has already become final and executory, the heir must file
an independent civil action of accion reinvidicatoria to recover his deprived
share.
Note: It must be brought within 10 years from the time the right of action
accrues. [Art. 1144(c)]
Also applicable in judicial proceedings.
After the lapse of two years an ordinary action may be instituted against the
distributees within the statute of limitations but not against the bond.
172
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
C. PRODUCTION AND PROBATE OF WILL
1. NATURE OF PROBATE PROCEEDING
2.
Q: What is probate?
A: Probate is the act of proving before a competent
court the due execution of a will by a person
possessed of testamentary capacity, as well as the
approval thereof by said court, (also known as
Allowance of Will).
Note: Principle does not apply where the

meat of the controversy is not the
intrinsic validity of the will.
Q: Why is probate necessary?

A: To settle all questions concerning the capacity of
the testator and the proper execution of his will,
irrespective of whether its provisions are valid and
enforceable. (Fernandez v. Dimagiba, G.R. No. L23638, Oct. 12, 1967)
Q: What is the nature of a probate proceeding?
A:
1. IN REM- It is binding upon the whole world.
NOTE: The decree of probate is conclusive with respect

to the due execution of the will and it cannot be
impugned on any of the grounds authorized by law,
except by fraud, in any separate or independent action
or proceeding.
2. WHO MAY PETITION FOR PROBATE

Q: Who may file petition for allowance of will?
A:
1.
2.
2. MANDATORY- No will shall pass either real or

personal property unless it is proved and allowed in
the proper court.
3.
4.
3. IMPRESCRIPTIBLE- because of the public policy
to obey the will of the testator
5.
A:
1.
A:
XPNS: Principle of practical considerations

wherein the court may pass upon the intrinsic
validity of the will:
1.
Testator himself during his lifetime (Sec.

1, Rule 76); or
Any creditor as preparatory step for
filing of his claim therein.
Q: Who are the people entitled to notice in a

probate hearing?
Q: Does the probate court look into the intrinsic

validity of the will?
GR: The jurisdiction of probate court is limited

to the examination and resolution of the
extrinsic validity of a will.
Executor (Sec. 1, Rule 76);

Devisee or legatee named in the will (Sec.
1, Rule 76);
Person interested in the estate; e.g. heirs
Note: An interested party is one who would
be benefited by the estate, such as an heir,
or one who has a claim against the estate
such as a creditor. (Sumilang v. Ramagosa,
G.R. No. L-23135, Dec. 26, 1967)
Note: However, a will may be sustained on the basis of

Article 1080 of the NCC which states that, if the
testator should make a partition of his property by an
act intervivos or by will, such partition shall stand in so
far as it does not prejudice the legitime of the forced
heir. (Mang- Oy v. CA, L-27421, 1986)
4. DOCTRINE OF ESTOPPEL DOES NOT APPLY- the

probate of the will is mandatory. The presentation
and probate of the will is required by public policy.
It involves public interest. (Fernandez v. Dimagiba,
L- 23638, 1967)
anxiety; as in the case of absolute

preterition (Nuguid v. Nuguid, G.R. No. L23445, June 23, 1966).
Where the entire or all testamentary
dispositions are void and where the
defect is apparent on its face
(Nepomuceno v. CA, G.R. No. L-62952,
Oct. 9, 1985).
2.
3.
4.
Designated or known heirs, legatees and

devisees of the testator resident in the
Philippines at their places of residence, at
least 20 days before the hearing, if such
places of residence be known.
Person named executor, if he not the
petitioner.
To any person named as co-executor not
petitioning, if their places of residence be
known.
If the testator asks for the allowance of
his own will, notice shall be sent only to
his compulsory heirs. (Sec. 4, Rule 76)
If the case where to be remanded for

probate of the will, it will result to waste
of time, effort, expense, plus added

173

D.
ALLOWANCE OR DISALLOWANCE OF A WILL
1. CONTENTS OF PETITION FOR ALLOWANCE FOR

WILL
Q: What are the contents of a petition for
allowance of a will?
Holographic
will
A:
1. Jurisdictional facts:
I. death of the testator and
II. his residence at the time of his death
III. if non- resident, the province where the
estate was left
2. The names, ages and residences of the
heirs, legatees and devisees of the testator
or decedent.
3. The probable value and character of the
property of the estate.
4. The name of the persons for whom letters
are prayed.
5. The name of the person having custody of
the will if it has not been delivered to the
court.
NOTE: But no defect in the petition shall render void
the allowance of the will or the issuance of letters
testamentary or of administration with the will
annexed.
Q: What is the effect of the allowance of a will?

A: The judgment or decree of the court allowing the
will is:
1.
2.
Conclusive as to its extrinsic validity;

Not subject to collateral attack and it
stands as final, if not modified, set aside,
or revoked by a direct proceeding, or
reversed on appeal by a higher court; and
3. Conclusive on the whole world. (Yuseco v.
CA, G.R. Nos. L-40719-21, Dec. 29, 1975)
Q: How should a will be proved?
A:
Uncontested
Notarial
will
174
The court may

grant allowance
thereof on the
testimony of one
of the
subscribing
witnesses only, if
such witness
testifies that the
will was
executed as is
required by law.
(Sec. 5, Rule 76)
Contested
At least one
witness who
knows the
handwriting and
signature of the
testator explicitly
declares that the
will and
signature are in
the handwriting
of the testator.
(Sec. 5, Rule 76)
The will shall be

allowed if at least
three witnesses
who know the
handwriting
of
the
testator
explicitly declare
that the will and
signature are in
the handwriting
of the testator.
(Sec. 11, Rule 76)
Note: At the hearing, compliance with publication and

notice must first be shown before the introduction of
testimony in support of the will.
In the absence of competent witness, and if the

court deems it necessary, expert testimony may be
resorted to. (Sec. 5, Rule 76)
Q: What is the remedy if none of the subscribing
witnesses resides in the province where probate is
being conducted?
A: A motion for taking of deposition of one or more
of them. (Sec. 7, Rule 76)
Note: Court may also authorize photographic copy of
the will to be made and to be presented to the witness
on his examination, who may be asked questions with
respect to matters pertaining to the will. (Sec. 7, Rule
76)
Q: What are the instances when the court may

admit the testimony of witnesses other than the
subscribing witnesses?
A:
1.
2.
The subscribing witnesses are dead or

insane; or
None of them resides in the Philippines.
(Sec. 8, Rule 76)
Q: What matters shall be testified on by the other

witnesses?
A:
All the subscribing

witnesses and the
notary
public
must testify as to
due execution and
attestation of the
will. (Sec. 11, Rule
76)
1.
2.
The sanity of the testator; and

Due execution of the will.
Note: The court may admit proof of handwriting of the

testator and of the subscribing witnesses, or any of
them. (Sec. 8, Rule 76)
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
Q: What proof is necessary if the testator himself
files the petition for probate of his holographic will
and no contest is filed?
2.
3.
A: The fact that he affirms that the holographic will
and the signature are in his own handwriting shall
be sufficient evidence of the genuineness and due
execution thereof. (Sec. 12, Rule 76)
4.
Q: What if the holographic will is contested?
5.
A: If the holographic will is contested, the burden of

disproving the genuiness and due execution thereof
shall be on the contestant. The testator may, in his
turn, present such additional proof as may be
necessary to rebut the evidence for the contestant.
(Sec. 12, Rule 76)
Q: What is the rule on proof of lost or destroyed
will?
A: If notarial will, it may be proven by a photostatic
or xerox copy of the will coupled with the
testimonies of the attesting witnesses.
If holographic will, a photostatic copy or
exerox copy of the lost will would not suffice.
But if there are no other copies available then
a photostatic or xerox copy would suffice to
serve as a comparison to the standard
writings of the testator. No testimonies of
witnesses is allowed because the will was
made entirely by the testator himself. (Bonilla
vs. Aranz, G.R. No. L-58509, Dec. 7, 1982)
Q: What are the requisites for allowance of a lost
or destroyed will?
A: No will shall be proved as a lost or destroyed will
unless:
1.
2.
3.
Its execution and validity of the same

must be established;
It must have been in existence at the time
of the death of the testator, or is shown
to have been fraudulently or accidentally
destroyed during the lifetime of the
testator without his knowledge; and
Its provisions must be clearly and
distinctly proved by at least 2 credible
witnesses (Sec. 6)
2. GROUNDS FOR DISALLOWING A WILL

Q: What are the grounds for disallowance of will?
A:
1.
If not executed and attested as required

by law;
If the testator was insane, or otherwise

mentally incapable to make a will, at the
time of its execution;
If it was executed under duress, influence
of fear, or threats;
If it was procured by undue and improper
pressure or influence, on the part of the
beneficiary, or of some other person for
his benefit; or
If the signature of the testator was
procured by fraud or trick, and he did not
intend that the instrument should be his
will at the time of fixing his signature
thereto. (Sec. 9, Rule 76)
Q: What is the Substantial Compliance Rule?

A: If the will has been executed in substantial
compliance with the formalities of the law, and the
possibility of bad faith and farud is obviated, said
will should be admitted to probate (Art. 809, New
Civil Code).
3. REPROBATE; REQUISITES BEFORE WILL PROVED
OUTSIDE ALLOWED IN THE PHILIPPINES; EFFECT
Q: What is reprobate?
A: It is a special proceeding to establish the validity
of a will proved in a foreign country.
Q: What are the requisites before a will proven
outside the Philippines be allowed here?
A:
1.
2.
3.
4.
5.
6.
7.
The testator was domiciled in a foreign

country;
The will has been admitted to probate in
such country;
The foreign court is, under the laws of
said foreign country, a probate court with
jurisdiction over the proceedings;
Proof of compliance with the law on
probate procedure in said foreign
country;
The legal requirements in said foreign
country for the valid execution of the will
have been complied with;
Filing a petition in the Philippines with
copy of the will and of its decree of
allowance; and
Notice and hearing. (PCIB v. Escolin, G.R.
No. 76714, June 2, 1994)
Note: Under the doctrine of processual presumption,

there must be evidence to prove the existence of
foreign law, otherwise the court should presume that
the law of the foreign country is the same as Philippine
laws.

175

Q: What are the effects of probate?
2.
3.
A:
1.
2.
3.
The will shall have the same effect as if

originally proved and allowed in the
Philippines (Sec. 3, Rule 77);
Letters testamentary or administration
with a will annexed shall extend to all
estates of the testator in the Philippines
(Sec. 4, Rule 77); and
Such estate, after the payment of just
debts and expenses of administration,
shall be disposed of according to the will,
so far as such will, may operate upon it,
and the residue, if any, shall be disposed
of as provided by law in cases of estates
in the Philippines belonging to persons
who are inhabitants of another country
(Sec. 4, Rule 77).
Q: What authority is issued to the person who

administers the estate?
A:
1.
2.
3.
E.
LETTERS TESTAMENTARY AND OF

ADMINISTRATION
1. WHEN AND TO WHOM THE LETTERS OF

ADMINISTRATION GRANTED
Q: Who can administer the estate?
A:
1.
2.
3.
Executor named by the testator in his

will for the administration of his property
after his death;
Administrator appointed by the court in
accordance with the Rules or governing
statutes to administer and settle the
intestate testate; or
Administrator with a will annexed
appointed by the court in cases when,
although there is a will, the will does not
appoint any executor, or if appointed,
said person is either incapacitated or
unwilling to serve as such.
Q: State the order of preference in granting letters

of administration. (to whom letters are granted)
A: If no executor is named in the will, or the
executors are incompetent, refuse the trust, or fail
to give the bond, or a person dies intestate,
administration shall be granted to:
1.
2.
A: Any competent person may serve as executor or

administrator. There may be several executors
named in the will. Letters testamentary may issue
to such of them as are competent, accept and give
bond. (Sec. 4, Rule 78)
Q: Who are incompetent to serve as executor or

administrator?
Letters testamentary authority issued to

an executor named in the will to
administer the estate;
Letters of administration authority
issued by the court to a competent
person to administer the estate of the
deceased who died intestate; or
Letters of administration with a will
annexed authority issued by the court
to a competent person to administer the
estate of the deceased if the executor
named in the will refused to accept the
office, or is incompetent.
2. ORDER OF PREFERENCE
Q: Who may serve as executor or administrator?
Note: If the named executor does not qualify, then an

administrator may be appointed. (Sec. 6, Rule 78)
Non-resident of the Philippines; and

Those who, in the opinion of the court,
are unfit to execute the duties of the trust
by reason of drunkenness, improvidence,
want of understanding or integrity, or
conviction of an offense involving moral
turpitude (Sec. 1, Rule 78).
3.
The surviving spouse or next of kin, or

both, in the discretion of the court, or to
such person as such surviving spouse or
next of kin, requests to have appointed, if
competent and willing to serve
The principal creditors, if competent and
willing to serve, if the surviving spouse or
next of kin, or the person selected by
them be incompetent or unwilling or if
the surviving spouse or next of kin
neglects for 30 days after the death of the
person to apply for administration or to
request that administration be granted to
some other person
Such other person as the court may select
if there is no such creditor competent and
willing to serve. (Sec. 6)
NOTE: Order of preference may be disregarded for a

valid cause.
A:
1.
176
Minor;
REMEDIAL LAW TEAM:
SPECIAL PROCEDINGS
Note: Co-administrators may be appointed for the
benefit of the estate and those interested therein
(Matute v. CA, G.R. No. 26751, Jan. 31, 1969).
Q: What is the rationale behind the order of

preference in appointing an administrator?
A: The underlying assumption behind this rule is
that those who will reap the benefits of a wise,
speedy and economical administration of the estate
or on the other hand, suffer the consequences of
waste, improvidence or mismanagement, have the
higher interest and most influential motive to
administer the estate correctly (Gonzales v.
Aguinaldo, G.R. No. 74769, Sept. 28, 1990).
Q: When may co-administrators be appointed?
A:
1.
2.
3.
4.
5.
To have the benefit of their judgment and

perhaps at all times to have different
interests represented;
Where justice and equity demand that
opposing parties or factions be
represented in the management of the
estate of the deceased;
Where the estate is large or, from any
cause, an intricate and perplexing one to
settle;
To have all interested persons satisfied
and the representatives to work in
harmony for the best interest of the
estate; or
When a person entitled to the
administration of an estate desires to
have
another
competent
person
associated with him in the office. (Gabriel
v. CA, G.R. No. 101512, Aug. 7, 1992)
1.
2.
Note: Letters of administration may be granted to any

qualified applicant, though it appears that there are
other competent persons having better right to the
administration, if such persons fail to appear when
notified and claim the issuance of letters to themselves
(Sec. 6, Rule 79).
Q: Is the order of Appointment of Regular

Administrator final?
A: No. The order of appointment of a regular
administrator is appealable. Where no notice is
required by Sec. 3, Rule 79 of the Rules of Court has
been given to persons believed to have an interest
in the estate of the deceased person; the
proceeding for the settelement of the estate is void
and should be annulled. The requirement as to
notice is essential to the validity of the proceeding
in order that no person may be deprived of his right
to property without due process of law. (Herrera,
Vol. III-A, p. 94, 2005 ed.)
4. POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS; RESTRICTIONS ON THE
POWERS
Q: What are the rights of the executor or
administrator of the deceased partners estate?
A:
1.
3. OPPOSITION TO ISSUANCE OF LETTERS

TESTAMENTARY; SIMULTANEOUS FILING OF
PETITION FOR ADMINISTRATION
2.
Q: Who may oppose the issuance of letters

testamentary or administration?
3.
A: Any person interested in the will may file a

written opposition.
Note: He may attach thereto a petition for letters of
administration and pray that letters be issued to
himself, or to any competent person named in the
opposition (Sec. 1, Rule 79).
Q: What are the grounds for opposing a petition

for administration?
A: Any interested person may by filing a written
opposition, contest the petition on the ground of
the:
Incompetency of the person for whom

letters are prayed therein; or
Contestant's
own
right
to
the
administration (Sec. 4, Rule 79).
He shall at all times have access to, and

may examine and take copies of books
and papers relating to the partnership;
He can make invoices of the property
belonging to the partnership, and the
surviving partner or partners on request;
and
The books, papers, and property in the
partnerships hands or control shall be
exhibited
to
such
executor
or
administrator. (Sec. 1, Rule 84)
Note: To exercise these rights, the executor or

administrator must file his application with the
probate court which must grant the same.
Q: What should be done by the executor or

administrator to freely exercise his rights and
duties?
A: He shall submit a written application to the court
having jurisdiction of the estate. (Sec. 1, Rule 84)

177

Q: What are the general
administrator or an executor?
powers
of
an
6.
A:
7.
1.
2.
3.
4.
5.
To have access to, and examine and take

copies of books and papers relating to the
partnership in case of a deceased partner
To examine and make invoices of the
property belonging to the partnership in
case of a deceased partner
To maintain in tenantable repairs, houses
and other structures and fences and to
deliver the same in such repair to the
heirs or devisees when directed so to do
by the court
To make improvements on the properties
under administration with the necessary
court approval except for necessary
repairs
To possess and manage the estate when
necessary:
i) For the payment of debts; and
ii) For the payment of expenses of
administration
Q: Is the right of an executor/administrator to the

possession and management of property of the
deceased absolute?
He cannot profit by the increase or

decrease in the value of the property
under administration;
He cannot exercise the right of legal
redemption over a portion of the
property owned in common sold by one
of the other co-owners. (Herrera, Vol. IIIA, pp. 116-117, 2005 ed.)
5. APPOINTMENT OF SPECIAL ADMINISTRATOR

REGULAR
ADMINISTRATOR
Order of Appointment
may be the subject of an
appeal
One of the obligations is
to pay the debts of the
estate
Appointed when the
deceased died intestate
or did not appoint an
executor in the will or the
will was disallowed
SPECIAL
ADMINISTRATOR
Order of Appointment is
interlocutory and hence
not appealable
Cannot pay the debts of
the estate
Appointed when there is
delay in granting letters
testamentary
or
administration
Q: When are the grounds for the appointment of a

special administrator?
A:
A: No, it can only be exercised so long as it is

necessary for the payment of debts and expenses of
administration (Ruiz v. CA, G.R. No.118671, Jan. 29,
1996).
1.
Q: What are the restrictions on the powers of

administrator or executor?
2.
When there is delay in granting letters

testamentary or of administration by any
cause including an appeal from the
allowance or disallowance of a will (Sec. 1,
Rule 80); or
When the executor or administrator is a
claimant against the estate he represents
(Sec. 6, Rule 86).
A:
1.
2.
3.
4.
He cannot acquire by purchase, even at

public or judicial action, either in person
or mediation of another, the property
under administration;
He cannot borrow money without
authority from the court;
He cannot speculate with funds under
administration;
He cannot lease the property under
administration for more than 1 year;
Note: The administrator has the power to
enter into lease contracts involving the
properties of the estate even without prior
judicial authority and approval. (Mananquil
v. Villegas, A.M. No. 2430, Aug. 30, 1990)
5.
178
He cannot continue the business of the

deceased unless authorized by the court;
and
Note: Only one special administrator at a time may be

appointed, since the appointment is merely
temporary.
Q: Why is there a need for appointing a special

administrator?
A: The principal object is to preserve the estate
until it can pass into the hands of persons fully
authorized to administer it for the benefit of the
creditors and heirs (De Guzman v. Guadiz, G.R. No.
L-48585, Mar. 31, 1980).
Q: What are the qualifications of a special
administrator?
A: These are not spelled out in the Rules of Court.
Thus, the appointment should be within the sound
discretion of the court. The fundamental and legal
principles governing the choice of a regular
administrator should also be taken into account in
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
the appointment of a special administrator.
(Herrera, Vol. III-A, p. 99, 2005 ed.)
2.
Q: Does the order of preference in the
appointment of regular administrators apply to
the appointment of special administrators?
A: No, but such order of preference may be
followed by the judge in the exercise of sound
discretion (Matias v. Gonzales, G.R. No. L- 13391,
May 25, 1960).
administrator is appointed with those

powers.
If a special administrator has been
appointed, and thereafter a proceeding to
contest a will before it is admitted to
probate has been instituted, the court
shall enter an order granting to the
special administrator the additional
powers, duties and obligations of an
executor or administrator and requiring
such additional bond as the court deems
proper.
Q: Is the order appointing a special administrator

appealable?
6. GROUNDS FOR REMOVAL OF ADMINISTRATOR
A: No, it is an interlocutory order. (Esler v. Tad-y,

G.R. No. L-20902, Oct. 9, 1923)
Q: What are the grounds for the removal of an

executor or administrator?
Q: What are the powers and duties of a special

administrator?
A:
1.
A:
1.
2.
3.
4.
5.
Possess and take charge of the goods,

chattels, rights, credits and estate of the
deceased;
Preserve the same;
Commence and maintain suit for the
estate;
Sell only:
a. Perishable property; and
b. Other property ordered sold by the
court;
Pay debts only as may be ordered by the
court. (Sec. 2, Rule 80)
Q: When do the powers of special administrator

cease?
2.
3.
4.
5.
Neglect to render an account and settle

the estate according to law;
Neglect to perform an order or judgment
of the court, or a duty expressly provided
by the Rules;
Absconds;
Becomes insane; or
Becomes incapable or unsuitable to
discharge the trust (Sec. 2, Rule 82).
Note: These grounds are not exclusive. False

misrepresentation by an administrator in securing his
appointment is a ground for his removal (Cobarrubias
v. Dizon, G.R. No. L-225, Feb. 26, 1946).
Q: What are the other grounds for removal of an

A:
A: After the questions causing the delay are

resolved and letters testamentary or administration
are granted to executor or regular administrator.
(Sec. 1)
Q: When can 2 special administrators be
appointed?
A:
1.
If a special administrator is appointed

pending determination of a contest of a
will instituted before it is admitted to
probate, or pending an appeal from an
order appointing, suspending or removing
an executor or administrator, the special
administrator has the same powers,
duties and obligations as an executor or
administrator, and the letters of
administration issued to the special
administrator must recite that the special
1. Death;
2. Resignation;
3. An administrator who disbursed funds of
the estate without judicial approval.
(Cotia vs. Jimenez, 104 Phil. 960);
4. False representation by an administrator
in securing his appointment (Cabarubbias
vs. Dizon, 76 Phil. 209);
5. An administrator who holds an interest
adverse to that of the estate or by his
conduct showing his unfitness to
discharge the trust (Garcia vs. Vasquez, 32
SCRA 490);
6. An administrator who has the physical
inability and consequent unsuitability to
manage the estate (De Borja vs. Tan, 93
Phil. 167).

179

Q: Are the grounds for removal of executor or
administrator the same for special administrator?
Q: What is the duty of the court after granting

letters testamentary or of administration?
A: No. The grounds for the removal of regular

administrator do not apply strictly to the special
administrator as he may be removed by the court
on other grounds upon its discretion.
A: The court shall issue a notice requiring all

persons having money claims to file them in the
office of the clerk of court. (Sec. 1, Rule 86)
Q: What is the rule on proceedings upon death,

resignation or removal of an executor or
administrator?
A: When an executor or administrator dies, resigns,
or is removed the remaning executor or
administrator may administer the trust alone,
unless the court gransts letters to someone act with
him. If there is no remaining executor or
administrator, administration may be granted to
any suitable person.
Q: Does the discovery of a will automatically
terminate the letters of administration?
A: No, until the will has been proved and allowed
pursuant to Section 1, Rule 82. (De Parreno v.
Aranzanso, G.R. No. L- 27657, Aug. 30, 1982)
Q: What are the powers of a new executor or
administrator after the first one resigns or is
removed?
1. TIME WHITIN WHICH CLAIMS SHALL BE FILED;

EXCEPTIONS
Q: What is the time within which claims shall be
filed?
A: It should not be less than six (6) months nor
more than twelve (12) months from the day of the
first publication of the notice thereof. Such period
when fixed by the probate court becomes
mandatory. However, at any time before an order
of distribution is entered, on application of a
creditor who has failed to file his claim within the
time previously limited, the court may, for cause
shown and on such terms as are equitable, allow
such claim to be filed within a time not exceeding
one (1) month. (Sec. 2, Rule 86)
The period prescribed in the notice to creditors is
not exclusive; that money claims against the estate
may be allowed at any time before an order of
distribution is entered, at the discretion of the court
for the cause and upon such terms as are equitable.
(Quisumbing vs Guison, 76 Phil 730)
A:
1.
To collect and settle the estate not

administered;
2. To prosecute or defend actions
commenced by or against the former
executor or administrator; and
To recover execution on judgments in the name of
former executor or administrator. (Sec. 4, Rule 82)
F.
CLAIMS AGAINST THE ESTATE
Q: What is a claim?
A: Claim refers to any debt or pecuniary demand
against the decedents estate.
Q: What is absolute claim?
A: It is one which, if contested between living
persons, would be the proper subject of immediate
legal action and would supply a basis of judgment
for a sum certain.
Q: What is contingent claim?
A: It is a conditional claim, which is subject to the
happening of a future uncertain event. (Buan v.
Laya, G.R. No. L-7840, Dec. 24, 1957)
180
Note: The range of period specified in Sec.2 of Rule 86

is intended to give the court the discretion to fix the
period for the filing of the claims. The probate court is
permitted by the rule to set the period as long as it is
within the limitation provided.
2. STATUTE OF NON-CLAIMS
Q: What is the statute of non-claims?
A: It is a period fixed by the courts for the filing of
claims against the estate for examination and
allowance. (Herrera, Vol. III-A, p. 132, 2005 ed.)
Q: When should claims be filed?
A:
GR: Within the time fixed in the notice which
shall not be more than 12 months nor less than
6 months after the date of the first publication.
Such period once fixed by the court is
mandatory. Otherwise, the claims are barred
forever.
Note: Where an executor or administrator
commences an action, or prosecutes an action
already commenced by the deceased in his
lifetime, the debtor may set forth by answer the
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
claims he has against the decedent, and mutual
claims may be set off against each other in such
action. (Sec. 5, Rule 86)
estate may be commenced against the executor or

administrator under Rule 87.
Q: What if the effect of claims not filed?
XPN: Belated claims.

Q: What is the rule on Belated Claims?
A: Belated claims may be filed even beyond the
period fixed by the court:
1.
2.
On application of a creditor who has

failed to file his claim within the time
previously limited, at any time before an
order of distribution is entered, the court
may, for just causes, allow such claim to
be filed not exceeding 1 month from the
order allowing belated claims; or (Sec. 2 ,
Rule 86)
Where the estate filed a claim against the
creditor or claimant who failed to present
his claim against the estate within the
period fixed by the probate court for the
settlement of such claims, the creditor
will be allowed to set up the same as a
counterclaim to the action filed by the
estate against him.
Note: Statute of non-claims supersedes the Statute of

Limitations insofar as the debts of deceased persons
are concerned because if a creditor fails to file his
claim within the time fixed by the court in the notice,
then the claim is barred forever. However, both
statute of non-claims and statute of limitations must
concur in order for a creditor to collect.
Q: What claims against the estate of the decedent

must be presented in the probate court in the
testate or intestate proceedings?
A: Only claims which survive such as:
1. All claims for money against the
decedent, arising from contract, express
or implied, whether the same be due, not
due, or contingent;
2. All claims for funeral expenses;
3. Expenses for the last sickness of the
decedent; or
4. Judgment for money against the
decedent. (Sec. 5, Rule 86)
Note: Action on contractual claims such as favorable
judgment obtained by the plaintiff in an action for
recovery of money arising from contract, express or
implied, and the defendant dies before entry of final
judgment may be filed against the estate of the
decedent. (Sec. 20, Rule 3)
Action which survives like an action to recover real

or personal property or an interest therein from the
A: As expressly provided by the rule, all claims not

presented within the time herein provided are
barred.
Q: The trial court admitted to probate the
holographic will of Alice and thereafter issued an
order for all the creditors to file their respective
claims against the estate. Alan filed a contingent
claim for agent's commission due him in the event
of the sale of certain parcels of land belonging to
the estate and reimbursement for expenses
incurred. The executrix of the estate moved for
the dismissal of said money claim against the
estate on the grounds that Alan failed to attach a
certification against non-forum shopping. The trial
court dismissed the case. Is the trial court correct?
A: No. Under Sections 1 and 5, Rule 86 of the Rules
of Court, after granting letters of testamentary or of
administration, all persons having money claims
against the decedent are mandated to file or notify
the court and the estate administrator of their
respective money claims; otherwise, they would be
barred, subject to certain exceptions. A money
claim is only an incidental matter in the main action
for the settlement of the decedent's estate; more
so if the claim is contingent since the claimant
cannot even institute a separate action for a mere
contingent claim. Hence, Alans contingent money
claim, not being an initiatory pleading, does not
require a certification against non-forum shopping.
(Sheker v. Estate of Alice O. Sheker, G.R. No.157912,
Dec. 13, 2007)
Q: Should taxes due and assessed after the death
of the decedent be presented in the form of a
claim?
A: No. The court in the exercise of its administrative
control over the executor or administrator may
direct him to pay such taxes. Moreover, heirs even
after distribution are liable for such taxes. (Vera v.
Fernandez, G.R. No. L-31364, Mar. 30, 1979)
3. CLAIM OF EXECUTOR OR ADMINISTRATOR
AGAINST THE ESTATE
Q: What should be the action of the executor or
administrator if he has a claim against the estate?
A: He shall give notice to the court in writing and
the court shall thereafter appoint a special
administrator (Sec. 8, Rule 86).

181
Q: What is the procedure in filing claims?

A:
Q: Jericho loaned P5 Million from Carina. Said loan

was secured by a real estate mortgage over a
parcel of land owned by Jericho. Thereafter,
Jericho died without satisfying the loan secured by
the said mortgage. What are the remedies
available to Carina to enforce her mortgage credit?
A:
1. Waive the mortgage and claim the entire debt

from the estate of the mortgagor as an
ordinary claim;
2. Foreclose the mortgage judicially and prove
any deficiency as an ordinary claim;
3. Rely on the mortgage exclusively, foreclosing
the same at any time before it is barred by
prescription without the right to claim for any
deficiency (Sec. 7, Rule 86).
Note: The above remedies are alternative.
182
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
4. PAYMENT OF DEBTS
5.
Q: Is execution the proper remedy to satisfy an

approved claim?
6.
A: No, because:
1.
2.
Payment approving a claim does not create a

lien upon property of the estate
Special procedure is for the court to order the
sale to satisfy the claim
Q: How shall the proceeds from sale of personal

property be used?
A:
1.
Note: A writ of execution is not the proper

procedure to satisfy debts. The court must order
the sale or mortgage of the properties of
decedent, the proceeds of which will satisfy the
debts and expenses.
Q: How should the debts of the estate be paid?

A:
GR: The payment of the debts of the estate
must be taken from the following order:
1.
2.
3.
Portion or property designated in the will

The debts of the testator, expenses of
administration, or family expenses, shall
be paid according to the provisions of the
will. If such are insufficient, the properties
not disposed of by will, if any, shall be
appropriated for that purpose.
Personal property;
Real property. (Sec. 2, Rule 88)
Note: If there is still a deficiency, it shall be
met by contributions of devisees, legatees,
or heirs who have entered into possession
of portions of the estate before the debts
and expenses have been settled and paid
(Secs. 2, 3, and 6, Rule 88).
XPNS: On application by executor or

administrator, with written notice to persons
interested, and after hearing, real properties
can be charged first even though the personal
properties are not exhausted when:
1.
2.
3.
4.
The personal property is not sufficient to

pay the debts, expenses of administration
and legacies (Sec. 3, Rule 88);
The sale of such personal property would
be detrimental to the participants of the
estate (Sec. 3, Rule 88);
Sale of personal property may injure the
business or other interests of those
interested of the estate (Sec. 2, Rule 89);
The testator has not made sufficient
provision for payment of such debts,
expenses or legacies (Sec. 2, Rule 89);
The decedent was, in his lifetime, under

contract, binding in law, to deed real
property to beneficiary (Sec. 8, Rule 89);
The decedent during his lifetime held real
property in trust for another person (Sec.
9, Rule 89).
2.
3.
To pay the debts and expenses of

administration;
To pay legacies; and
To cover expenses for the preservation of
the estate. (Sec. 1, Rule 89)
Q: How should contingent claims be paid?

A: If the court is satisfied that a contingent claim
duly filed is valid, it may order the executor or
administrator to retain in his hands sufficient estate
to pay such contingent claim when the same
becomes absolute, or if the estate is insolvent,
sufficient estate to pay a portion equal to the
dividend of the other creditors. (Sec. 4, Rule 88)
Q: What must be satisfied before a contingent
claim may be allowed by the court?
A:
1.
2.
3.
Duly filed within the 2 year period

allowed for the creditors to present
claims;
The claim is valid; and
The claim became absolute. (Sec. 5, Rule
88)
Q: What is the consequence if the contingent claim

is not presented within the 2 year period after it
becomes absolute?
A: The assets retained in the hands of the executor
or administrator, not exhausted in the payment of
claims, shall be distributed by the order of the court
to the persons entitled to the same (Sec. 4, Rule
88). However, the assets so distributed may still be
applied to the payment of the claim when
established, and the creditor may maintain an
action against the distributees to recover the debt,
and such distributees and their estates shall be
liable for the debt in proportion to the estate they
have respectively received from the property of the
deceased.
Note: If heirs have taken possession of portions of the
estate before the debts have been settled, they shall
become liable to contribute for the payment of debts
and expenses, and the court may, after hearing, settle

183

the amount of their several liabilities, and order how
much and in what manner each person shall
contribute (Sec. 6, Rule 88).
A: Those claims which can proceed independently

of the settlement proceeding such as:
1.
Q: What is the order of payment if estate is

insolvent or assets are insufficient?
2.
3.
A: The executor or administrator shall pay the debts

according to the concurrence and preference of
credits provided by Articles 1059 and 2239-2251 of
the NCC (Sec. 7, Rule 88).
Q: How should the estate in the Philippines of an
insolvent non-resident be disposed of?
A: It shall be disposed of that his creditors in and
outside the Philippines may receive an equal share,
in proportion to their respective credits (Sec. 9, Rule
88).
Q: When and how should claims proved outside
the Philippines against insolvent residents estate
be paid?
A: Claims proven outside the Philippines where the
executor had knowledge and opportunity to contest
its allowance may be added to the list of claims
proved against the decedent in the Philippines and
the estate will be distributed equally among those
creditors (Sec. 10, Rule 88).
Note: The benefits in the above provision shall not be
extended to the creditors in another country if the
property of such deceased person there found is not
equally apportioned to the creditors residing in the
Philippines and the other creditors, according to their
respective claims.
Q: When should the court authorize sale,

mortgage or other encumbrance of estate to pay
debts and legacies in other countries?
A: When it appears from records and proceedings
of a probate court of another country that the
estate of the deceased in foreign country is not
sufficient to pay debts and expenses, the court here
may authorize the executor or administrator to sell,
mortgage or encumber the property in the same
manner as for the payment of debts and legacies in
the Philippines (Sec. 5, Rule 89).
G.
ACTIONS BY AND AGAINST EXECUTORS AND

ADMINISTRATORS
1. ACTIONS THAT MAY BE BROUGHT AGAINST

EXECUTORS AND ADMINISTRATORS
Q: What actions may be brought against the
184
Actions to recover real or personal

property, or an interest therein, from the
estate;
Enforcement of a lien;
Actions to recover damages for an injury
to person or property, real or personal.
(Sec. 1, Rule 87)
Q: What action may be brought by the executor or

administrator?
A: Recovery or protection of the property or rights
of the deceased, action for causes which survive.
(Sec. 2, Rule 87)
Note: When an executor or administrator is appointed
and assumes the trust, no action to recover the title or
possession of lands or for damages done shall be
maintained against him by an heir or devisee until
there is an order of the court assigning the lands to
such heir or devisee or until the time allowed for
paying debts has expired. (Sec. 3, Rule 87)
Q: What is the concept of a superseades bond?

A: It partakes the form of a security posted by the
appealing party (who has lost the case in the lower
court) to compensate the opposing party for the
legal expenses in case it wins also in the higher
(appellate) court.
Q: What are the requisites in order that
executor/administrator may commence and
prosecute an action for the recovery of property, if
the decedent fraudulently conveys property to
defraud his creditors?
A:
1.
2.
3.
Application of the creditors;

Payment of cost and expenses; and
Give security therefore to the executor or
administrator. (Sec. 9, Rule 87)
2. REQUISITES BEFORE CREDITOR MAY BRING AN

ACTION FOR RECOVERY OF FRAUDULENTLY
CONVEYED BY THE DECEASED
Q: What are the requisites before a creditor may
bring an action for recovery of property
fraudulently conveyed by the deceased?
A:
1.
There is a deficiency of assets in the

hands of an executor or administrator for
the payment of debts and expenses of
administration;
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
2.
3.
4.
5.
6.
7.
In his lifetime, the deceased had made or

attempted to make a fraudulent
conveyance of his property or had so
conveyed such property that by law, the
conveyance would be void as against his
creditors;
The subject of the attempted conveyance
would be liable to attachment in his
lifetime;
The executor or administrator has shown
no desire to file the action or failed to
institute the same within a reasonable
time;
Leave is granted by the court to the
creditor to file the action;
A bond is filed by the creditor; and
The action by the creditor is in the name
of the executor or administrator (Sec. 10).
Note: The creditor shall have a lien on the judgment

recovered for costs and expenses. The last 3 requisites
are unnecessary where the grantee is the executor or
administrator himself, in which event, the action
should be in the name of all the creditors. (Sec. 10;
Herrera, Vol. III-A, p. 175, 2005 ed.)
H. DISTRIBUTION AND PARTITION

1. LIQUIDATION
Q: What is liquidation?
A: Liquidation is the determination of all assets of
the estate and payment of all debts and expenses.
Q: Discuss the process for the distribution of the residue of the estate.
A:

185

Note: Even if the testator stated in his will that he owes a certain person and ordered that the same be paid, if the
estate is insolvent, the creditor shall not enjoy priority over other claimants. The provision in the will should only
establish the claim of the creditor against the estate. He must still file his claim according to Section 9, Rule 86 and must
comply with the statute of non-claims.
Q: When is the order for distribution of residue

made?
It is merely a proposal for the distribution of the

hereditary estate which the court may accept or
reject. (Herrera, Remedial Law III-A, p 213)
A:
GR: Order of distribution shall be made after
payments of all debts, funeral expenses,
expenses for administration, allowance of
widow and inheritance tax. (Sec. 1, Rule 90)
Q: May an heir of the deceased sell his undivided

share during the pendency of the estate
proceedings without the prior approval of the
probate court?
XPN: If the distributees or any of them gives a

bond conditioned for the payment of said
obligation, the order of distribution may be
made even before the payment of all debts, etc.
(par. 2, Sec. 1, Rule 90)
A: Yes. An heir has the right to sell his undivided or

ideal share of the estate, he being the co-owner
with other heirs of the estate. Court approval is
necessary only if specific property of the estate is
sold. (Heirs of Pedro Escanlar v. CA, G.R. No.
119777, Oct. 23, 1997)
Note: The probate court loses jurisdiction over the

settlement proceedings only upon payment of all
debts and expenses of the obligor and delivery of
the entire estate to all the heirs. (Guilas v. Judge of
CFI of Pampanga, G.R. No. L- 26695, Jan. 31, 1972)
Q: When should declaration of heirship be made?

A: It is only after, and not before, the payment of all
debts, funeral expenses, charges of administration,
allowances to the widow, and inheritance tax shall
have been effected that the court should make the
declaration of heirs or of such person as are
entitled by law to the residue.
It should however be made clear that what the
court is enjoined from doing so is the distribution of
the residue of the estate before its obligations are
first paid, but the court is not enjoined from making
the declaration of heirs prior to the satisfaction of
these obligations.
Q: Does the finality of the approval of the project

of partition by itself alone terminate the probate
proceeding?
A: No. As long as the order of the distribution of the
estate has not been complied with, the probate
proceedings cannot be deemed closed and
terminated. (Estate of Ruiz v. CA, G.R. No. 118671,
Jan. 29, 1996)
3. REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT
NOT GIVEN HIS SHARE
Q: What is the remedy of an heir who is entitled to
the residue but was not given his share?
A:
1.
MOTION
TO
SET
ASIDE
THE
DISTRIBUTION- If an heir appears after
the court approved the project of
partition, the heir must file a Motion to
set aside the distribution with the court
so that the court will not proceed with
the distribution of the residue. The
probate court shall determine whether
such heir has a right to participate in the
distribution of the residue. If it is proven
that the heir has a right, the court may
order the revision of the project of
partition for its adjustment.
2.
MOTION FOR THE RE- OPENING OF THE

SETTLEMENT
PROCEEDINGS-If
the
distribution has already been made, a
motion for closure has already been
granted, the heir must file a Motion for
the re-opening of the settlement
proceedings within the 30 day
Q: What should the executor or administrator do if

all the claims are paid or settled?
A: The executor or administrator shall prepare the
project of partition reflecting the residue of the
estate and how it is to be distributed. However, this
is not mandatory. (Herrera, Vol. III-A, p. 213, 2005
ed.)
2. PROJECT OF PARTITION
Q: What is project of partition?
A: It is a document prepared by the executor or
administrator setting forth the manner in which the
estate of the deceased is to be distributed among
the heirs. (Solivio v. CA, G.R. No. 83308, Feb. 12,
1990)
186
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
reglementary period, provided the order
of closure has not yet become final and
executory.
3.
CFI of Mindoro, 85 Phil. 228, a writ of

execution is not the proper procedure
allowed by the Rules of Court for the payment
of debts and expenses of administration. The
proper procedure is for the court to order the
sale of personal estate or the sale or
mortgage of real property of the deceased
and all debts and expenses of the
administration should be paid out of the
proceeds of such sale or mortgage. The order
for the sale or mortgage should be issued
upon motion of the administrator and with
the written notice to all the heirs, legatees
and devisees residing in the Philippines. And
when the sale or mortgage is to be made, the
regulations contained in Rule 89, Sec. 7
should be complied with.
ACCION REINVIDICATORIA- If the order of

closure has already become final and
executory, (Vda. de Lopez v. Lopez, G.R.
No. L-28602, Sept. 29, 1970)
Q: When is title to property vested to the heirs?

A: It is vested from finality of order of distribution.
Q: Is the order that determines distributive share
appealable?
A: Yes. Otherwise, it becomes final.
4. INSTANCES WHEN PROBATE COURT MAY ISSUE
WRIT OF EXECUTION
XPNS:
1. To satisfy the distributive shares of the
devisees, legatees and heirs in possession
of the decedents assets;
2. To enforce payment of the expenses of
partition; and
3. To satisfy the costs when a person is cited
for examination in probate proceedings.
Q: What are the instances when the probate court

may issue writ of execution?
A:
GR: A probate court cannot issue a writ of
execution. In the case of Aldamiz vs. Judge of
I. TRUSTEES
1. DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR

EXECUTOR/ ADMINISTRATOR
Accounts are NOT under oath and except for initial and
final submission of accounts, they shall be filed only at
such times as may be required by the court
Court that has jurisdiction may be MTC or RTC
May sell, encumber or mortgage property if it is necessary

for the purpose of paying debts, expenses of
administration or legacies or for the preservation of
property or if sale will be beneficial to heirs, legatees or
devisees
(Upon application to the court with written notice to the
heirs)
TRUSTEE
Accounts must be UNDER OATH and filed ANNUALLY
Court which has jurisdiction is the RTC if appointed to

carry into effect provisions of a will; if trustee dies, resigns
or is removed in a contractual trust, RTC has jurisdiction in
the appointment of new trustee
May sell or encumber property of the estate held in trust
if necessary or expedient or upon order of the court
Order of sale has NO TIME LIMIT

Approved by the court to settle estate of the decedent
Order of sale has NO TIME LIMIT

Appointed to carry into effect the provisions of a will or
written instrument (contractual trust)
NOT EXEMPTED from filing a bond even if such exemption

is provided in the will (ratio: bond is only conditioned upon
payment of debts)
May be EXEMPTED from filing a bond if provided in the

will or if beneficiaries requested such exemption
Services of executors or administrator is terminated

UPON PAYMENT OF DEBTS of the estate and
DISTRIBUTION of property to the heirs
Trusteeship is terminated upon TURNING OVER THE

PROPERTY to beneficiary after expiration of the trust
(period may be provided for in the will or trust contract)
MUST PAY the debts of the estate
NO OBLIGATION TO PAY the debts of the beneficiaries or

trustor

187

Q: What is a trust?
3. REQUISITES FOR THE REMOVAL AND

RESIGNATION OF A TRUSTEE
A: A legal relationship between one person having

an equitable ownership in property and another
person owning the legal title to such property.
Q: What are the requisites for the removal or

resignation of a trustee?
Q: Who is a trustee?
A:
1.
A: A trustee is one who is appointed to carry out

the provision of the will or any written instrument
executed by the trustor.
2. CONDITIONS OF THE BOND
Q: What are the conditions of the bond?
A:
1.
That the trustee will make and return to

the court, at such time as it may order, a
true inventory of all the estate belonging
to him as trustee, which at the time of the
making of such inventory shall have come
to his possession or knowledge;
Note: When the trustee is appointed as a
successor to a prior trustee, the court may
dispense with the making and return of an
inventory if one has already been filed.
2.
3.
4.
5.
That he will manage and dispose of all

such estate, and faithfully discharge his
trust in relation thereto, according to law
and the will of the testator or the
provisions of the instrument or order
under which he is appointed;
That he will render upon oath at least
once a year until his trust is fulfilled a true
account of the property in his hands and
of the management and disposition
thereof, and such other accounts as the
court may order; and
That at the expiration of his trust he will
settle his accounts in court and pay over
and deliver all the estate remaining in his
hands, or due from him on such
settlement, to the persons entitled
thereto (Sec. 6, Rule 98).
Q: Is the trustee required to file a bond?

A:
GR: Yes. Neglect of trustees to file a bond will
be interpreted by the court as resignation or
decline to accept the trust.
XPN: If requested by the testator or by all
persons beneficially interested in the trust, the
trustee may be exempted from filing a bond.
But the court may cancel such exemption
anytime. (Sec. 5, Rule 98)
188
2.
3.
Petition filed by parties beneficially

interested;
Notice to trustee; and
Hearing (Sec. 8, Rule 98).
4. GROUNDS FOR REMOVAL AND RESIGNATION OF

A TRUSTEE
Q: What are the grounds for removal or
resignation of a trustee?
A:
1.
2.
3.
4.
Removal appears essential in the interest

of petitioners;
Insanity;
Incapability of discharging the trust; or
Unsuitability (Sec. 8, Rule 98).
Note: A trustee may resign his trust if it appears to the

court proper to allow such resignation (Sec. 8, Rule 98).
5. EXTENT OF AUTHORITY OF TRUSTEE

Q: What is the extent of authority of a trustee?
A: Rule 98, applies only to express trust, one which
is created by a will or a written instrument.
Q: When is there a testamentary trust?
A: If a testator has omitted in will to appoint a
trustee in the Philippines, and if such appointment
is necessary to carry into effect the provisions of
the will. After notice to all persons interested, the
proper RTC may appoint a trustee who shall have
the same rights, powers, and duties, and in whom
the estate shall vest, as if he had been appointed by
the testator.
Q: When is there a contractual trust?
A: When a trustee under a written instrument
declines, resigns, dies, or is removed before the
objects of the trust are accomplished, and no
adequate provision is made in such instrument for
supplying the vacancy after due notice to all
persons interested, the proper RTC may appoint a
new trustee to act alone or jointly with the others,
as the case may be.
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
Q: Can the possession of the trustee of the
property ripen into ownership?
Q: Can the court convert escheat proceedings into

settlement of the estate?
A:
GR: An action to compel a trustee to convey
property registered in his name in trust for the
benefit of the cestui qui trust does not
prescribe. The trustees possession is not
adverse and therefore cannot ripen into title by
prescription.
XPN: Prescription may arise where there is
adverse possession of the property. To
constitute adverse possession, the following
must be present:
1.
2.
3.
That the trustee has performed

unequivocal acts amounting to an ouster
of the cestui qui trust;
That such positive acts of repudiation had
been made known to the cestui qui trust;
and
That the evidence thereon should be clear
and conclusive. (Ceniza vs. CA, 181 SCRA
552)
J. ESCHEAT
Q: What is escheat?
A: It is a French or Norman term meaning chance or
accident. It is the reversion of property to the State
in consequence of want of any individual
competent to inherit.
1. WHEN TO FILE
Q: What are the three instances of escheat?
A:
1.
2.
3.
When a person dies intestate leaving no

heir but leaving property in the
Philippines (Sec. 1, Rule 91);
Reversion proceedings where sale of
property is made in violation of the
Constitutional provision; and
Dormant accounts for 10 years
(Unclaimed Balance Act of Banking Laws).
2. REQUISITES FOR FILING OF PETITION
A: No, once the court acquires jurisdiction to hear

the petition for escheat by virtue of the publication
of the petition for escheat, this jurisdiction cannot
be converted into one for the distribution of the
properties of the decedent.
Note: For the distribution of the estate to be
instituted, the proper petitions must be presented and
the proceedings should comply with the requirements
of the Rules of Court. (Municipality of Magallon v.
Bezore, G.R. No. L-14157, Oct. 26, 1960)
3. REMEDY OF RESPONDENT AGAINST PETITION;

PERIOD FOR FILING A CLAIM
Q: What is the remedy of the respondent against
the petition for escheat?
A: When the petition does not state the facts which
entitle the petitioner to the remedy prayed for, or
even admitting them hypothetically, the
respondent may file a MOTION TO DISMISS, in such
case the Motion to dismiss plays the role of a
demurrer to evidence (Herrera, Remedial Law III-A,
p 227-228)
K. GUARDIANSHIP
Q: What is guardianship?
A: It is a trust relation in which one person acts for
another whom the law regards as incapable of
managing his own affairs.
Note: Guardianship of minors is now governed by the
Rule on Guardianship of Minors (AM No. 03-02-05-SC)
which took effect on May 1, 2003. While guardianship
of incompetents who are not minors is still governed
by the provisions of the Rules of Court on
Guardianship. (Rule 92- 97)
Q: What is ancillary guardianship?

A: It refers to the guardianship in a state other than
that in which guardianship is originally granted.
1. GENERAL POWERS AND DUTIES OF GUARDIANS
Q: What are the requisites for filing a petition?
Q: To what extent does guardianship extend?
A:
A: Conflicts regarding ownership or title to the

property in the hands of the guardian in his capacity
as such should be litigated in a separate
proceeding, the court in guardianship proceeding is
concerned solely with the wards care and custody
and proper administration of his properties (Villoria
1.
2.
3.
A person died intestate;

He left no heirs or persons by law entitled
to the same; and
The deceased left properties in the
Philippines. (Sec. 1, Rule 91)

189

v. Administrator of Veteran Affairs, L-9620, June
1957)
2.
Q: What are the general powers and duties of
guardians?
A:
1.
2.
3.
4.
5.
6.
7.
To have the care and custody of the

person of the ward, and/or the
management of his estate;
Pay the debts of the ward;
To settle accounts, collect debts, and
appear in actions for the ward;
Manage the estate of the ward frugally,
and apply the proceeds to the
maintenance of the ward;
Render verified inventory within 3
months after his appointment and
annually thereafter, and upon application
of interested persons;
Render to court for its approval an
accounting of the property for 1 year
from his appointment and as often
thereafter as may be required, and upon
application of interested persons
Consent to a partition of real or personal
property owned by ward jointly or in
common with others. (Secs. 1-8, Rule 96;
Sec. 17, A.M. No. 03-02-05-SC)
Q: What is the order of liability of the wards

property?
A:
1. Personal estate and income of real estate
2. Real estate
Q: What are the requisites to authorize the
guardian to join in the partition proceedings after
hearing?
A:
1.
2.
3.
Hearing
Notice to relatives of the ward; and
Careful investigation as to the necessity
and propriety of the proposed action
(Section 5)
2. CONDITIONS OF THE BOND OF THE GUARDIAN

Q: What are the conditions of the bond of the
guardian?
A:
1.
190
To make and return to the court, within 3

months, a true and complete inventory of
all the estate of his ward which shall
come to his possession or knowledge or
3.
4.
to the possession or knowledge of any

other person for him;
To faithfully execute the duties of his
trust, manage and dispose of the estate
according to the rules for the best
interests of the ward, and to provide for
the proper care, custody, and education
of the ward;
To render a true and just account of all
the estate of the ward in his hands, and of
all proceeds or interest derived there
from, and of the management and
disposition of the same, at the time
designated by the rules and such other
times as the court directs; and at the
expiration of his trust, settle his accounts
with the court and deliver and pay over all
the estate, effects, and moneys remaining
in his hands, or due from him on such
settlement, to the person lawfully entitled
thereto; and
To perform all orders required by the
court (Sec. 1, Rule 94; Sec.14, A.M. No.
03-02-05-SC).
Q: What is the purpose of the bond?

A: It is for the protection of the property of the
minor or incompetent to the end that he may be
assured of an honest administration of his funds
(Herrera, Vol. III-A, p. 282, 2005 ed.)
Note: The bond of the guardian is a continuing one
against the obligors and their estates until all of its
conditions are fulfilled. The mere fact that defendant
was removed as guardian did not relieve her or her
bondsmen from liability during the time she was duly
acting as such guardian. (Guerrero v. Teran, G.R. No. L4898, Mar. 19, 1909)
Q: Does the requirement of posting a bond extend

to parents who are the legal guardians of their
minor children? Explain.
A:
GR: No, if the market value or annual income of
the child is P 50,000 or below.
XPN: If the market value of the property or the
annual income of the child exceeds P50,000,
the parent concerned shall furnish a bond in
such amount as the court may determine, but
in no case less than 10% of the value of such
property or annual income, to guarantee the
performance of the obligations prescribed for
general guardians (Sec. 16, A.M. No. 03-02-05SC).
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
3. RULE ON GUARDIANSHIP OVER MINOR
A:
1.
2.
Q: Who may petition for appointment of guardian

for resident?
3.
4.
5.
A:
1. Any relative;
2. Other person on behalf of the minor;
3. Minor himself is 14 years of age; or
4. Secretary of Social Welfare and
Development AND by the Secretary of Health in
case of insane minor who needs to be hospitalized.
(Section 2, AM-03-02-05-SC)
Q: Is court appointment necessary to enable the
father and the mother to exercise joint legal
guardianship over the person and property of
minor?
A: No. The father and the mother shall jointly
exercise legal guardianship over the person and
property of their minor without the necessity of a
court appointment. In such case, this Rule shall be
suppletory to the provisions of the Family Code on
Guardianship (Section 1, AM -03-02-05-SC)
Q: What would the court do if an issue arises as to
who has the better right or title to the properties
conveyed in the guardianship proceeding?
A:
GR: The issue should be threshed out in a
separate ordinary action as it is beyond the
jurisdiction of the guardianship court.
XPN: When the wards right or title to the
property is clear and undisputable, the
guardianship court may issue an order directing
its delivery or return.
6.
7.
Moral character;
Physical, mental, and psychological
condition;
Financial status;
Relationship of trust with the minor;
Availability to exercise the powers and
duties of a guardian for the full period of
the guardianship;
Lack of conflict of interest with the minor;
and
Ability to manage the property of the
minor (Sec. 5, A.M. No. 03-02-05-SC).
Note: The court shall order a social worker to conduct

a case study of the minor and all the prospective
guardians and submit his report and recommendation
to the court for its guidance before the scheduled
hearing. (Sec.9, A.M. No. 03-02-05-SC).
Q: Who may be appointed as guardian of a minor?

A: In default of parents or a court-appointed
guardian, the court may appoint a guardian of the
person or property, or both, of a minor, observing,
as far as practicable, the following order of
preference:
1. Surviving grandparent and, in case several
grandparents survive, the court shall
select any of them taking into account all
relevant considerations;
2. Oldest brother or sister of the minor over
21 years of age, unless unfit or
disqualified;
3. Actual custodian of the minor over 21
years of age, unless unfit or disqualified;
4. Any other person, who in the sound
discretion of the court would serve the
best interests of the minor (Sec. 6, A.M.
No. 03-02-05-SC).
Q: What are the grounds for the appointment of a

guardian over the person or property, or both, of a
minor?
Q: What are the grounds for opposition to petition

of guardianship of minors?
A:
A:
1.
2.
3.
4.
Death, continued absence, or incapacity

of his parents;
Suspension, deprivation or termination of
parental authority;
Remarriage of surviving parent, if the
latter is found unsuitable to exercise
parental authority; or
When the best interests of the minor so
require (Sec. 4, A.M. No. 03-02-05-SC).
Q: What are the factors to be considered for the

appointment of guardian of minors?
1.
2.
Majority of the alleged minor; or

Unsuitability of the person for whom
letters are prayed for (Sec. 10, A.M. No.
03-02-05-SC).
Q: How may a petition for guardianship of minors

or incompetents be opposed?
A: Any interested person may contest the petition
by filing a written opposition and pray that the
petition be denied, or that letters of guardianship
issue to himself, or to any suitable person named in
the opposition (Sec. 10, A.M. No. 03-02-05-SC; Sec.
4, Rule 9).

191

L. ADOPTION
Q: What is adoption?
A: It is a juridical act, a proceeding in rem, which
creates between two persons a relationship similar
to that which results from legitimate paternity and
filiation.
A: No. Adoption cannot be had without the written

consent of a natural parent who has allegedly
abandoned them. Abandonment cannot be merely
presumed, it must be duly proven. Moreover, there
should be proof of emotional abandonment. (Cang
v. CA, GR No. 105308, Sept. 25, 1998).
Q: Is publication of the hearing for adoption
necessary for the adoption to be valid?
Q: What is the State policy on adoption?

A: It is the policy of the State to ensure that every
child remains under the care of his or her parent/s
and be provided with love, care, understanding and
security towards the full and harmonious
development of his personality.
Q: What is a Child Legally Available for Adoption?
A: A Child Legally Available for Adoption refers to a
child in whose favor a certification was issued by
the DSWD that he/she is legally available for
adoption after the fact of abandonment or neglect
has been proven through the submission of
pertinent documents, or one who was voluntarily
committed by his/her parent(s) or legal guardian.
(Sec. 2(5), R.A. 9523).
Q: What is the requirement in order that the child
may be declared legally available for adoption?
A: There must be a certification which shall be
issued by the DSWD in lieu of a judicial order, thus
making the entire process administrative in nature.
The certification, shall be, for all intents and
purposes, the primary evidence that the child is
legally available in a domestic adoption and in an
inter-country adoption proceeding (Sec. 8, Ibid.).
Q: Can minor children be legally adopted without
the written consent of a natural parent on the
ground that the latter has abandoned them?
A: Indeed, publication of the scheduled hearing for

the petition for adoption is necessary for the
validity of a decree of adoption but not for the
purpose merely of taking a deposition. In taking a
deposition, no substantial rights are affected since
depositions may or may not be presented or may
even be objected to when formally offered as
evidence at the trial of the main case later on. the
philosophy behind adoption statutes is to promote
the welfare of the child and every reasonable
intendment should be sustained to promote that
objective. (Republic v. Elepano, G.R. No. 92542, Oct.
15, 1991).
Note: The necessary consequence of the failure to
implead the civil registrar as an indispensable party
and to give notice by publication of the petition for
correction of entry was to render the proceeding of
the trial court, so far as the correction of entry was
concerned, null and void for lack of jurisdiction both as
to party and as to the subject matter. (Republic v. CA,
G.R. No. 103695, Mar. 15, 1996).
Q: What is the effect of adoption created under

the law of a foreign country?
A: It is entitled to registration in the corresponding
civil register of the Philippines. It is to be
understood, however, that the effects of such
adoption shall be governed by laws of the
Philippines. (Marcaida v. Aglubat, G.R. No. L-24006,
Nov. 25, 1967)
1. DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION
Jurisdiction
Who May adopt
192
DOMESTIC
Family Court where adopter resides
1) Any Filipino citizen of legal age, in

possession of full civil capacity and legal rights,
of good moral character, has not been
convicted of any crime involving moral
turpitude;
who
is
emotionally
and
psychologically capable of caring for children, at
least sixteen (16) years older than the adoptee,
and who is in a position to support and care for
INTER-COUNTRY
Inter-Country Adoption Board
(Petition may also be filed with Family Court
where adoptee resides; FC to endorse petition
to ICAB)
A foreigner must meet the following
requirements in order to be qualified to adopt
in the Philippines under the Inter-Country
Adoption Act:
a) GR: at least twenty-seven (27) years of
age and at least sixteen (16) years older
than the child to be adopted, at the time
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
his children in keeping with the means of the
family. The requirement of a 16-year difference
between the age of the adopter and adoptee
may be waived when the adopter is the
biological parent of the adoptee or is the
spouse of the adoptees parent;
2) Any alien possessing the same qualifications
as above-stated for Filipino nationals: Provided,
That his country has diplomatic relations with
the Republic of the Philippines, that he has
been living in the Philippines for at least three
(3) continuous years prior to the filing of the
petition for adoption and maintains such
residence until the adoption decree is entered,
that he has been certified by his diplomatic or
consular office or any appropriate government
agency to have the legal capacity to adopt in his
country, and that his government allows the
adoptee to enter his country as his adopted
child. Provided, further, That the requirements
on residency and certification of the aliens
qualification to adopt in his country may be
waived for the following:
(i) A former Filipino citizen who seeks
to adopt a relative within the fourth
(4th) degree of consanguinity or
affinity;
(ii) One who seeks to adopt the
legitimate child of his Filipino
spouse;
(iii) One who is married to a Filipino
citizen and seeks to adopt jointly
with his spouse a relative within the
fourth (4th) degree of consanguinity
or affinity of the Filipino spouse.
(3) The guardian with respect to the ward after
the termination of the guardianship and
clearance of his financial accountabilities.
of application;
XPN: if the adopter is the parent by nature
of the child to be adopted or the spouse
of such parent, he/she is not required to
meet the above age requirement;
b) If married, his/her spouse must jointly file
for the adoption;
c) With capacity to act and assume all rights
and responsibilities of parental authority
under his national laws, and has
undergone the appropriate counseling
from an accredited counselor in his/her
country;
d) Not convicted of a crime involving moral
turpitude;
e) Eligible to adopt under his/her national
law;
f) In a position to provide the proper care
and support and to give the necessary
moral values and example to all his
children, including the child to be
adopted;
g) Agrees to uphold the basic rights of the
child as embodied under Philippine family
laws, the U.N. Convention on the Rights of
the Child, and to abide by the rules and
regulations issued to implement the
provisions of this Act;
h) Comes from a country with whom the
Philippines has diplomatic relations and
whose government maintains a similarly
authorized and accredited agency and
that adoption is allowed under his/her
national laws; and
i) Possesses all the qualifications and none
of the disqualifications provided herein
and in other applicable Philippine laws.
Husband and wife shall jointly adopt, except in

the following cases:
(i) Iif one spouse seeks to adopt the
legitimate child of one spouse by
the other spouse; or
(ii) If one spouse seeks to adopt his
own illegitimate child: Provided,
however, That the other spouse has
signified his consent thereto; or
(iii) If the spouses are legally separated
from each other.
Supervised
Custody
Trial
In case husband and wife jointly adopt or one

spouse adopts the illegitimate child of the
other, joint parental authority shall be
exercised by the spouses.
Within the Philippines (6 month period
discretionary upon the court to shorten period
or exempt parties from trial custody)
Within the country of the adopter (Mandatory;

all expenses borne by adopter)

193

Petition
adoption
for
Who may
adopted
be
May include
1. Prayer for change of name
2. Rectification of simulated birth
3. Declaration that child is abandoned,
dependent or neglected child or foundling
1. Any child legally declared available for
adoption
2. Legitimate or illegitimate child of a spouse
3. Person of legal age
Supporting
Documents
Publication
Where to
application
file
3 successive weeks in a newspaper of general

circulation in the province or city where the
court is situated
Family Court which has jurisdiction
2. DOMESTIC ADOPTION
a. EFFECTS OF ADOPTION
Q: What are the effects of adoption?
A:
1.
2.
3.
All legal ties between the biological

parents and the adoptee shall be severed
and the same shall then be vested on the
adopter/s, except where the biological
parent is the spouse of the adopter;
The adoptee shall be considered the
legitimate child of the adopter/s for all
intents and purposes and shall be entitled
to all the rights and obligations provided
by law to legitimate children born to them
without discrimination of any kind; and
In legal and intestate succession, the
adopter/s and the adoptee shall have
reciprocal rights of succession without
distinction from legitimate filiation.
However, if the adoptee and his biological
parent/s had left a will, the law on
testamentary succession shall govern.
(Secs. 16-18, R.A. 8552)
Note: The decree of adoption shall order the Civil

Registrar where the adoption was registered to issue a
certificate of birth which shall not bear that it is a new
or amended certificate and shall state among others,
the following: registry number, registration date, name
of child, sex, date of birth, place of birth, name and
citizenship of adoptive mother and father, and the
date and place of their marriage, when applicable.
[Sec. 16, 3(b)]
194
N/A
Child legally available for adoption
1.
2.
3.
4.
5.
N/A
Income Tax Returns

Police Clearance
Character Reference
Family Picture
Birth Certificate of adopter
May be made through foreign placement

agency which will then submit application to
the ICAB
Q: What is the effect of the petition for adoption

in relation to use of surnames?
A: Pursuant to Art. 189 of the Family Code which
states that the adopted child shall acquire the
reciprocal rights and obligations arising from the
relationship of a parent and child, including the
right of the adopted to use the surname of the
adopter, the adoptee has both the right and
obligation to use the surname of the adopter, and
that upon reaching the age of majority, he may file
a petition for a change of surname, as the use by
the adoptee of the surname of the adopter is more
an incident rather than the object of adoption
proceedings. (Republic v. CA, G.R. No. 97906, May
21, 1992)
Note: This ruling may imply that what may be included
in a petition for adoption is only the first or given
name of the adoptee and not the surname, for he has
the right and obligation, at least initially to use the
surname of the adopter. (Agpalo, Handbook on Special
Proceedings, p. 193, 2003 ed.)
While the right of a natural parent to name the child is
recognized, guaranteed and protected under the law,
the so-called right of an adoptive parent to re-name an
adopted child by virtue or as a consequence of
adoption, even for the most noble intentions and
moving supplications, is unheard of in law and
consequently cannot be favorably considered. To
repeat, the change of the surname of the adoptee as a
result of the adoption and to follow that of the
adopter does not lawfully extend to or include the
proper or given name. (Republic vs. Hernandez, G.R.
No. 117209, Feb. 9, 1996).
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
b. INSTANCES WHEN ADOPTION MAY BE
RESCINDED
Q: What are the grounds for rescission of
adoption?
permanently residing abroad where the petition is

filed, the supervised trial custody is taken, and the
decree of adoption is issued outside of the
Philippines. [Sec. 3(a)]
a. WHEN ALLOWED
A: Upon the petition of the adoptee, with the

assistance of the DSWD if a minor or though over
18 is incapacitated, on any of the following grounds
committed by the adopter/s:
1. Repeated
physical
and
verbal
maltreatment by the adopter/s despite
having undergone counseling;
2. Attempt on the life of the adoptee;
3. Sexual assault or violence; or
4. Abandonment and failure to comply with
parental obligations (Sec. 19, Ibid.).
Note: Only the adoptee can rescind the decree of
adoption. However, the adopter is not left without any
remedy as he may deny to an adopted child his
legitime and by will, may freely exclude him from
having a share in the disposable portion of his estate.
The new law had already abrogated or repealed the
right of an adopter under the Civil and Family Codes to
rescind a decree of adoption (Lahom v. Sibulo, G.R. No.
1439889, July 14, 2003).
Q: When may inter-country adoption be allowed?

A: It shall only be allowed when all the possibilities
for domestic adoption of the child have been
exhausted and that inter-country adoption is in the
best interest of the child. (Sec. 27a)
It is allowed when the adopter is an alien or a
Filipino citizen permanently residing abroad.
Moreover, his qualifications include:
1.
2.
3.
c. EFFECTS OF RESCISSION OF ADOPTION

Q: What are the effects of rescission of adoption?
A:
1.
2.
3.
4.
5.
The parental authority of the adoptee's

biological parent/s, if known, or the legal
custody of the DSWD shall be restored if
the adoptee is still a minor or
incapacitated;
The reciprocal rights and obligations of
the adopter/s and the adoptee to each
other shall be extinguished;
The court shall order the Civil Registrar to
cancel the amended certificate of birth of
the adoptee and restore his or her
original birth certificate;
The successional rights shall revert to its
status prior to adoption, but only as of
the date of
judgment of judicial
rescission; and
The vested rights acquired prior to judicial
rescission shall be respected (Sec. 23,
Ibid.).
3. INTER-COUNTRY ADOPTION (R.A. 8043)

Q: What is inter-country adoption?
A: It refers to the socio-legal process of adopting a
Filipino child by a foreigner or a Filipino citizen
4.
5.
6.
7.
8.
9.
At least twenty-seven (27) years of age

and at least sixteen (16) years older than
the child to be adopted, at the time of
application unless the adopter is the
parent by nature of the child to be
adopted or the spouse of such parent;
If married, his/her spouse must jointly
file for adoption;
Has the capacity to act and assume all
rights and responsibilities of parental
authority under his national laws and has
undergone the appropriate counseling
from an accredited counselor in his/her
country;
Has not been convicted of a crime
involving moral turpitude;
Is eligible to adopt under his/her national
law;
Is in a position to provide proper care
and support and to give the necessary
moral values and example to all his
children, including the child to be
adopted;
Agrees to uphold the basic rights of the
child as embodied under the Philippine
laws, the U.N. Convention of the Rights of
the Child, and to abide by the rules and
regulations issued to implement the
provisions of this Act;
Comes from another country with whom
the Philippines has diplomatic relations
and whose government maintains a
similarly authorized and accredited
agency and that adoption is allowed
under his/her national laws; and
Possesses all the qualifications and none
of the disqualifications provided herein
and other applicable laws. (Sec. 9, R.A.
8043).

195

b. FUNCTIONS OF THE RTC
Q: What is the function of the RTC in inter-country
adoption?
of liberty must be actual and effective, not merely

nominal or moral. (Ilusorio v. Bildner, G.R. Nos.13578990, May 16, 2000)
Q: What is the nature of the petition?

A: The Court, after finding that the petition is
sufficient in form and substance and a proper case
for inter-country adoption, shall immediately
transmit the petition to the ICAB for appropriate
action. (Sec. 32, Rule on Adoption).
The application for adoption shall be filed with the
RTC having jurisdiction over the child, or the InterCountry Adoption Board, through an intermediate
agency, whether governmental or an authorized
and accredited agency, in the country of the
prospective adoptive parents.
A: It is an inquisition by the government at the

suggestion and instance of an individual, most
probably, but still in the name and capacity of the
sovereign is a proceeding in rem. It is also instituted
for the purpose of fixing the status of a person and
that there can be no judgment entered against
anybody since there is no real plaintiff and
defendant. (Alimpoos v. CA, G.R. No. L-27331, July
30, 1981)
Note: In habeas corpus cases, the judgment in favor of
the applicant cannot contain a provision for damages.
c. BEST INTEREST OF THE MINOR STANDARD

Q: What is the Best Interest Standard?
A: It refers to the totality of the circumstances and
conditions as are most congenial to the survival,
protection, and feelings of security of the minor and
most encouraging to his physical, psychological and
emotional development. It also means the least
detrimental available alternative for safeguarding
the growth and development of the minor. (Sec. 14)
1. CONTENTS OF THE PETITION

Q: What should a verified petition for a writ of
habeas corpus contain?
A:
1.
2.
M. WRIT OF HABEAS CORPUS

Q: What is writ of habeas corpus?
A: It is a writ directed to the person detaining
another and commanding him to produce the body
of the prisoner at a certain time and place with the
day and the cause of his caption and detention to
do, submit to and receive whatsoever, the court or
judge awarding the writ shall consider in that
behalf.
3.
4.
Note: It is regarded as palladium of liberty, a

prerogative writ which does not issue as a matter of
right but in the sound discretion of the court or judge.
That the person in whose behalf the

application is made is imprisoned or
restrained of his liberty;
The officer or name of the person by
whom he is so imprisoned or restrained;
or, if both are unknown or uncertain, such
officer or person may be described by an
assumed appellation, and the person who
is served with the writ shall be deemed
the person intended;
The place where he is so imprisoned or
restrained, if known;
A copy of the commitment or cause of
detention of such person, if it can be
procured without impairing the efficiency
of the remedy; or, if the imprisonment or
restraint is without any legal authority,
such fact shall appear. (Sec. 3, Rule 102)
2. CONTENTS OF THE RETURN
Q: To what instances may habeas corpus extend?
Q: What are the contents of the return?
A:
A: When the person to be produced is imprisoned

or restrained by an officer, the person who makes
the return shall state therein, and in other cases the
person in whose custody the prisoner is found shall
state, in writing to the court or judge before whom
the writ is returnable, plainly and unequivocably:
1.
2.
Cases of illegal confinement or detention

by which a person is deprived of his
liberty; and
Cases by which the rightful custody of the
person is withheld from the person
entitled thereto. (Sec. 1, Rule 102)
1.
Note: To justify the grant of the petition, the restraint
of liberty must be an illegal and involuntary
deprivation of freedom of action. The illegal restraint
196
2.
Whether he has or has not the party in his

custody or power, or under restraint;
If he has the party in his custody or
power, or under restraint, the authority
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
3.
4.
and the true and whole cause thereof, set

forth at large, with a copy of the writ,
order, execution, or other process, if any,
upon which the party is held;
If the party is in his custody or power or is
restrained by him, and is not produced,
particularly the nature and gravity of the
sickness or infirmity of such party by
reason of which he cannot, without
danger, be brought before the court or
judge;
If he has had the party in his custody or
power, or under restraint, and has
transferred such custody or restraint to
another, particularly to whom, at what
time, for what cause, and by what
authority such transfer was made. (Sec.
10, Rule 102)
3. DISTINGUISH PEREMPTORY WRIT FROM

PRELIMINARY CITATION
Q: What is the difference between a preliminary
citation and a peremptory writ?
A:
1.
2.
Preliminary citation is issued when a

government officer has the person in his
custody, the illegality of which is not
patent, to show cause why the writ of
habeas corpus should issue.
Peremptory writ is issued when the cause
of the detention appears to be patently
illegal and the non-compliance therewith
is punishable. (Lee Yick Hon v. Collector of
Customs, G.R. No. 16779, Mar. 30, 1921).
4. WHEN NOT PROPER/APPLICABLE
Q: When is habeas corpus not applicable?

A:
1.
2.
3.
4.
5.
When detained under a lawful cause.

In case of invasion or rebellion or when
public safety requires it, under Art. III,
Sec. 15, 1987 Constitution.
When in case of invasion or rebellion or
when public safety requires it, for a
period not exceeding 60 days, under Art.
7, Sec. 18, 1987 Constitution.
If the jurisdiction of the court to try the
person detained appears after the writ is
allowed. (Sec. 4, Rule 102).
If the person is in custody of an officer
under process issued by a court or by
virtue of a judgment or order of a court of
record which has jurisdiction to issue the
process, render the judgment, or make

the order. (Sec. 4, Rule 102).
6. If the person is charged or convicted of an
offense in the Philippines. (Sec. 4, Rule
102).
7. If the person is suffering imprisonment
under lawful judgment. (Sec. 4, Rule 102).
8. In case of three-day retention of a suspect
for three days without charge, pursuant
to Sec. 18 of the Human Security Act.
9. When person is serving final sentence
imposed by court.
10. For asserting or vindicating a denial of
right to bail.
11. For correcting errors in appreciation of
facts or of law.
Note: Issuance of a writ of habeas corpus may not lie
in order to revive a settled issue of the validity of the
writ of preliminary injunction issued in an agrarian
case allegedly on the ground of the existence of a
tenancy relationship between the parties arising from
their arrest for having assaulted persons in authority.
(Bernarte v. CA, G.R. No. 107741, Oct. 18, 1996).
Loss of the records of the case after petitioner, by his
own admission, was already convicted by the trial
court of the offense charged will bar the issuance of a
writ of habeas corpus. The loss must have occurred
prior to the filing of the information against him. (Feria
v. CA, G.R. No. 122954, Feb. 15, 2000).
It has been noted that the ORDER contains a provision
enjoining the prosecution of the Accused in the
Criminal Case. That is error. If the Accused was illegally
detained because he was arrested without a
preliminary examination, what should have been done
was to set aside the warrant of arrest and order the
discharge of the Accused, but without enjoining the
Municipal Judge from conducting a preliminary
examination and afterwards properly issuing a warrant
of arrest. Habeas Corpus proceedings are not meant to
determine criminal responsibility. (Alimpoos v. CA, G.R.
No. L-27331, July 30, 1981).
In case of an illegal arrest, the petition for a writ
of habeas corpus will still not prosper if the detention
has become legal by virtue of the filing before the trial
court of the complaint against him and by the issuance
of an order denying bail. (Velasco v. CA, G.R. No.
118644, July 7, 1995).
Habeas Corpus may be had to give retroactive effect to
a previous ruling of the Supreme Court favorable to
the accused when the accused has already served the
full term for a crime which the Court has declared nonexistent. (Gumabon v. Director of the Bureau of
Prisons, G.R. No. L-30026, Jan. 30, 1971). However, it
will not lie if the penalty of imprisonment imposed by
the court is longer than that allowed by law. Such error
of judgment may be corrected by appeal or by the

197

President. (Pomeroy v. Director of Prisons, G.R. No. L14284, Feb. 24, 1960).
The writ of habeas corpus cannot be issued in cases in
which the Bureau of Immigration has duly ordered the
deportation of undocumented aliens, specifically those
found guilty of illegally entering the Philippines with
the use of tampered and previously cancelled
passports. (Tung Chin Hui v. Rodriguez, G.R. No.
141938, April 2, 2001).
Q: May a wife secure a writ of habeas corpus to

compel her husband to live with her in the
conjugal home?
A: No. Marital rights including coverture and living
in conjugal dwelling may not be enforced by the
extra-ordinary writ of habeas corpus. In case the
husband refuses to see his wife for private reasons,
he is at liberty to do so without threat of any
penalty attached to the exercise of his right. That is
a matter beyond judicial authority and is best left to
the man and womans free choice. (Ilusorio v.
Bildner, G.R. No. 139789, May 12, 2000).
5. WHEN WRIT DISALLOWED/DISCHARGED

Q: In what instances shall a writ be disallowed or
discharged?
A:
1.
2.
3.
In cases of supervening events such as

issuance of a process and filing of an
information (Velasco v. CA, G.R. No.
118844, July 7, 1995);
In cases of improper arrest or lack of
preliminary investigation (Paredes v.
Sandiganbayan, G.R. No. 89989, Jan. 28,
1991); and
In cases of invalid arrest due to
deportation cases cured by filing of
deportation proceedings (Santos v.
Commissioner of Immigration, G.R. No.L25694, Nov. 29, 1976).
Note: In all petitions for habeas corpus, the court must

inquire into every phase and aspect of petitioners
detention- from the moment petitioner was taken into
custody up to the moment the court passes upon the
merits of the petition and only after such a scrutiny
can the court satisfy itself that the due process clause
of the Constitution has been satisfied. (Bernarte v. CA,
G.R. No. 107741, Nov. 18, 1996)
When the court or judge has examined into the

cause of caption and restraint of the prisoner, and
is satisfied that he is unlawfully imprisoned or
restrained, he shall order his discharge from
confinement, but such discharge shall not be
198
effective until a copy of the order has been served

on the officer or person detaining the prisoner. If
the officer or person detaining the prisoner does
not desire to appeal, the prisoner shall be released.
6. DISTINGUISH FROM WRIT OF AMPARO AND
HABEAS DATA
Q: Distinguish Writ of Habeas Corpus from Writ of
Amparo and Writ of Habeas Data.
A: Refer to page 205.
7. RULES ON CUSTODY OF MINORS AND WRIT OF
HABEAS CORPUS IN RELATION TO CUSTODY OF
MINORS (AM No. 03-04-04-SC)
Q: Who may file a petition for custody of minor?
A: Any person may file a verified petition for the
rightful custody of a minor. The party against whom
it may be filed shall be designated as the
respondent. (Sec. 2, AM No. 03-04-04-SC).
Q: Where should a petition for custody of minor
be filed?
A: Family courts in the province or city where the
petitioner resides or where the minor may be
found. (Sec. 3, AM No. 03-04-04-SC)
Q: Whether Family Courts have concurrent
jurisdiction with the Supreme Court and the Court
of Appeals in petitions where the custody of minors
is at issue?
A: Yes. The Court of Appeals and Supreme Court
have concurrent jurisdiction with family courts in
habeas corpus cases where the custody of minors is
involved. The provisions of RA 8369 must be read
in harmony with RA 7029 and BP 129 that
family courts have concurrent jurisdiction with the
Court of Appeals and the Supreme Court in
petitions for habeas corpus where the custody of
minors is at issue. (Thornton v. Thornton, G.R. No.
154598, Aug. 16, 2004).
Q: What are the contents of the verified petition?
A:
1.
2.
3.
The personal circumstances of the petitioner

and of the respondent.
The name, age and present whereabouts of
the minor and his or her relationship to the
petitioner and the respondent.
The material operative facts constituting
deprivation of custody.
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
4.
Such other matters which are relevant to

the custody of the minor.
Certificate of Non-Forum Shopping signed
personally by the petitioner. (Sec. 4, AM No.
03-04-04-SC)
5.
2.
3.
Q: When is a child not allowed to be separated
from the mother?
4.
A: Under Article 213 (2) of the Family Code, no child

under 7 years of age shall be separated from the
mother, unless the court finds compelling reasons
to order otherwise.
5.
6.
Q: When will the court take into consideration the

choice of the child?
7.
8.
A: The child, who is over 7 years of age, may choose

which parent he prefers to live with, unless the
parent so chosen is unfit to take charge of the child
by reason of moral depravity, habitual drunkenness,
incapacity, or poverty. (Art. 213, Family Code)
Note: If both parents are unfit, the court may
designate other persons or an institution to take
charge of the child, such as the paternal or maternal
grandparent of the child, or his oldest brother or sister,
or some reputable and discreet person.
Q: What should be considered in awarding the

custody of minor?
A: The court shall consider the best interests of the
minor and shall give paramount consideration to his
material and moral welfare. (Sec. 14, AM No. 03-0404-SC).
Q: What is the Best Interest Standard?
A: It refers to the totality of the circumstances and
conditions as are most congenial to the survival,
protection, and feelings of security of the minor and
most encouraging to his physical, psychological and
emotional development. It also means the least
detrimental available alternative for safeguarding
the growth and development of the minor. (Sec. 14,
AM No. 03-04-04-SC)
Q: What are the other factors that the court may
consider in awarding custody?
A:
1.
Any extrajudicial agreement which the

parties may have bound themselves to
comply with respecting the rights of the
minor to maintain direct contact with the
non custodial parent on a regular basis,
except when there is an existing threat or
danger of physical, mental, sexual or
9.
emotional violence which endangers the

safety and best interests of the minor;
The desire and ability of one parent to
foster an open and loving relationship
between the minor and the other parent;
The health, safety and welfare of the
minor;
Any history of child or spousal abuse by
the person seeking custody or who has
had any filial relationship with the minor,
including anyone courting the parent;
The nature and frequency of contact with
both parents;
Habitual use of alcohol, dangerous drugs
or regulated substances;
Marital misconduct;
The most suitable physical, emotional,
spiritual, psychological and educational
environment for the holistic development
and growth of the minor; and
The preference of the minor over seven
years of age and of sufficient
discernment, unless the parent chosen is
unfit. (Sec. 14, AM No. 03-04-04-SC)
Q: Would a decision rendering judgment on the

issue of custody of a child in a nullity of marriage
case constitute as res judicata on a pending
habeas corpus case on the same matter?
A: Yes. By filing the case for declaration of nullity of
marriage petitioner automatically submitted the
issue of the custody of the child as an incident
thereof. Section 21 of the "Rule on Declaration Of
Absolute Nullity Of Void Marriages and Annulment
of Voidable Marriages" directs the court taking
jurisdiction over a petition for declaration of nullity
of marriage to resolve the custody of common
children, by mere motion of either party, it could
only mean that the filing of a new action is not
necessary for the court to consider the issue of
custody of a minor. (Yu v. Yu, G.R. No. 164915,
March 10, 2006).
Q: What are the stages in the pre-trial?
A:
1.
2.
First stage the parties may agree on the

custody of the minor.
Second stage the trial court will direct
the parties to secure the services of a
mediator if the parties do not agree on
the custody of the minor. (Sec. 12, AM
No. 03-04-04-SC)
Note: If the second stage does not produce an

amicable settlement, the court will proceed with the
pre-trial conference. Pre-trial is mandatory. (Sec. 12,
AM No. 03-04-04-SC)

199
Q: What is the order of preference in awarding

provisional custody?
A: As far as practicable, the order of preference
shall be observed:
1. Both parents jointly;
2. Either parent, taking into account all
relevant considerations, especially the
choice of the minor over seven years of
age and of sufficient discernment, unless
the parent chosen is unfit;
3. The grandparent, or if there are several
grandparents, the grandparent chosen by
the minor over seven years of age and of
sufficient discernment, unless the
grandparent chosen is unfit or
disqualified;
4. The eldest brother or sister over twentyone years of age, unless he or she is unfit
or disqualified;
5. The actual custodian of the minor over
twenty-one years of age, unless the
former is unfit or disqualified; or
6. Any other person or institution the court
may deem suitable to provide proper care
and guidance for the minor.
Q: May the court award temporary visitation
rights in the provisional custody order?
A: Yes, the court shall provide in its order awarding
provisional custody appropriate visitation rights to
the non-custodial parent or parents, unless the
court finds said parent or parents unfit or
disqualified.
Q: What should the court award after the hearing?
A:
1.
2.
3.
Care, custody and control of each child as

will be for its best interest.
Court may order either or both parents to
support or help support the child,
irrespective of who may be its custodian.
The fact that the father has recognized
the child may be a ground for ordering
him to give support, but not for giving him
custody of the child.
Court may permit the parent who is
deprived of care and custody to visit the
child or have temporary custody thereof
in an order that is just and reasonable.
(Sec. 18, AM No. 03-04-04-SC)
Q: May the court award the custody of the minors

based merely on psychiatric report and agreement
of the parties?
200
A: No, the court should conduct thorough trial on

all matters relevant to the welfare and interests of
the child. (Laxamana v. Laxamana, G.R. No. 144763,
Sept. 3, 2002)
Q: Can the minor child be brought out of the
country without leave from court while the
petition is pending?
A: The minor child subject of the petition shall not
be brought out of the country without prior order
from the court while the petition is pending.
The court, motu proprio or upon application under
oath, may issue ex parte a hold departure order,
addressed to the Bureau of Immigration and
Deportation, directing it not to allow the departure
of the minor from the Philippines without the
permission of the court. (Sec. 16, AM No. 03-04-04SC)
N. WRIT OF AMPARO (AM No. 07-9-12-SC)
Q: What is writ of amparo?
A: It is a remedy available to any person whose
right to life, liberty and security is violated or
threatened with violation by an unlawful act or
omission of a public official or employee, or of a
private individual or entity. The writ shall cover
extralegal killings and enforced disappearances or
threats thereof. (Sec. 1)
Note: The remedy provides rapid judicial relief as it
partakes of a summary proceeding that requires only
substantial evidence to make the appropriate reliefs
available to the petitioner; it is not an action to
determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring
preponderance of evidence, or administrative
responsibility requiring substantial evidence that will
require full and exhaustive proceedings. (Deliberations
of the Committee on the Revision of the Rules of Court,
Aug. 10, 2007, Aug. 24, 2007, Aug. 31, 2007 and Sept.
20, 2008)
Q: What are extralegal killings?

A: Killings committed without due process of law,
legal safeguards or judicial proceedings. (Secretary
of National Defense v. Manalo, G.R. No. 180906,
Oct. 7, 2008) These include the illegal taking of life
regardless of the motive, summary and arbitrary
executions, salvaging even of suspected criminals,
and threats to take the life of persons who are
openly critical of erring government officials and
the like.
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
Q: What are enforced disappearances?
A: An arrest, detention or abduction of a person by
a government official or organized groups or private
individual acting with the direct or indirect
acquiescence of the government; the refusal of the
State to disclose the fate or whereabouts of the
person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons
outside the protection of law. (Secretary of National
Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008)
1. COVERAGE
Q: What is the scope of the Writ of amparo?
under Section 1, Rule 27 of the Rules of Civil

Procedure which provides in relevant part, viz:
Section 1. Motion for production or inspection
order. Upon motion of any party showing good
cause therefor, the court in which an action is
pending may (a) order any party to produce
and permit the inspection and copying or
photographing, by or on behalf of the moving
party, of any designated documents, papers,
books of accounts, letters, photographs,
objects or tangible things, not privileged,
which constitute or contain evidence material
to any matter involved in the action and which
are in his possession, custody or control.
A: It covers extralegal killings and enforced

disappearances or threats thereof. It is available to
any person whose right to life, liberty and security
is violated or threatened with violation by an
unlawful act or omission of a public official or
employee, or of a private individual or entity.
A search warrant is a court order issued by a judge

or magistrate judge that authorizes the law
enforcement officers to conduct a search of a
person or location for evidence of a crime and to
confiscate evidence if it is found. A writ of amparo
is a form of constitutional relief.
The petition for a writ of amparo is a remedy

available to any person whose right to life, liberty
and security is violated or threatened with violation
by an unlawful act or omission of a public official or
employee, or of a private individual or entity. The
writ shall cover extralegal killings and enforced
disappearances or threats thereof.
4. WHO MAY FILE

Q: Who may file the petition?
A: Any aggrieved party may file the petition. It may
also be filed by any qualified person or entity in the
following order:
2. DISTINGUISH FROM HABEAS CORPUS AND

HABEAS DATA
1.

2.

3. DIFFERENCES BETWEEN WRIT OF AMPARO AND
SEARCH WARRANT
Q: What is the difference between a Writ of
Amparo from a Search Warrant?
A: In the October 7, 2008 decision of the Supreme
Court in the case of The Secretary of National
Defense vs. Manalo, the Court said that the
production order under the Amparo Rule should
not be confused with a search warrant for law
enforcement under Article III, Section 2 of the 1987
Constitution. This Constitutional provision is a
protection of the people from the unreasonable
intrusion of the government, not a protection of the
government from the demand of the people such
as respondents.
Instead, the Amparo production order may be
likened to the production of documents or things
3.
Any member of the immediate family,

namely: the spouse, children and parents
of the aggrieved party;
Any ascendant, descendant or collateral
relative of the aggrieved party within the
fourth civil degree of consanguinity or
affinity, in default of those mentioned in
the preceding paragraph; or
Any concerned citizen, organization,
association or institution, if there is no
known member of the immediate family
or relative of the aggrieved party.
NOTE: The filing of a petition by the aggrieved party

suspends the right of all other authorized parties to file
similar petitions. Likewise, the filing of the petition by
an authorized party on behalf of the aggrieved party
suspends the right of all others, observing the order
established herein. (Sec. 2).
5. CONTENTS OF RETURN
Q: What is the content of the verified return?
A: Within seventy-two (72) hours after service of
the writ, the respondent shall file a verified written
return together with supporting affidavits which
shall, among other things, contain the following:

201

1.
2.
3.
4.
5.
The lawful defenses to show that the

respondent did not violate or threaten
with violation the right to life, liberty and
security of the aggrieved party, through
any act or omission;
The steps or actions taken by the
respondent to determine the fate or
whereabouts of the aggrieved party and
the person or persons responsible for the
threat, act or omission;
All relevant information in the possession
of the respondent pertaining to the
threat, act or omission against the
aggrieved party; and
If the respondent is a public official or
employee, the return shall further state
the actions that have been or will still be
taken:
a. to verify the identity of the aggrieved
party;
b. to recover and preserve evidence
related
to
the
death
or
disappearance of the person
identified in the petition which may
aid in the prosecution of the person
or persons responsible;
c. to identify witnesses and obtain
statements from them concerning
the death or disappearance;
d. to determine the cause, manner,
location and time of death or
disappearance as well as any pattern
or practice that may have brought
about the death or disappearance;
e. to identify and apprehend the
person or persons involved in the
death or disappearance; and
f. to bring the suspected offenders
before a competent court.
Other
matters
relevant
to
the
investigation, its resolution and the
prosecution of the case.
Note: A general denial of the allegations in the petition

shall not be allowed.
6. EFFECTS OF FAILURE TO FILE A RETURN

Q: What happens when the respondent fails to file
a return?
A: The court, justice or judge shall proceed to hear
the petition ex parte. (Sec. 9)
A: The omnibus waiver rules states that all defenses

not raised in the return are deemed waived. (Sec.
10).
8. PROCEDURE FOR HEARING
Q: What is the nature of the hearing?
A: The hearing on the petition shall be summary.
However, the court, justice or judge may call for a
preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations
and admissions from the parties. (Sec. 12).
Q: How long should the hearing last?
A: The hearing shall be from day to day until
completed and given the same priority as petitions
for habeas corpus. (Sec. 13)
9. INSTITUTION OF SEPARATE ACTION
Q: May a separate action be filed after filing a
petition for a writ of amparo?
A: Yes. It does not preclude the filing of separate
criminal, civil or administrative actions. (Sec. 21)
10. EFFECT OF FILING A CRIMINAL ACTION
Q: What is the effect if a prior criminal action has
been filed?
A: No petition for a writ of amparo shall be filed.
The reliefs under the writ shall be available by
motion in the criminal case. (Sec. 22)
The procedure under this Rule shall govern the
disposition of the reliefs available under the writ of
amparo.
11. CONSOLIDATION
Q: What happens if criminal action is filed
subsequent to a petition for writ of amparo?
A: The petition for the writ shall be consolidated
with criminal action. (Sec. 23)
Q: What happens if a criminal action and a
separate civil action are filed subsequent to a
petition for writ of amparo?
A: The petition for writ of amparo shall be
consolidated with the criminal action.
7. OMNIBUS WAIVER RULE

Q: What is the Omnibus Waiver Rule?
202
Note: After consolidation, the procedure under this

Rule shall continue to apply to the disposition of the
reliefs in the petition.
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
12. INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT
Q: What are interim reliefs available?
A:
1.
2.
3.
4.
PETITIONER
Temporary protection order;
Inspection order;
Production order;
Witness protection order. (Sec. 14)
Temporary
Protection Order
HOW INITIATED
Upon motion or motu proprio
Inspection Order
Upon verified motion and after due

hearing
Production Order
Upon verified motion and after due

hearing
Witness
Protection Order
Upon Motion or Motu Proprio
RESPONDENT
1.
2.
Inspection order;
Production order. (Sec. 15)
THE COURT SHALL

Order the petitioner or the aggrieved party and any
member of the immediate family be protected in a
government agency or by an accredited person or
private institution capable of keeping and securing their
safety. If the petitioner is an organization, association or
institution referred to in Section 3(c) of this Rule, the
protection may be extended to the officers involved.
Order any person in possession or control of a
designated land or other property, to permit entry for
the purpose of inspecting, measuring, surveying, or
photographing the property or any relevant object or
operation thereon.
order any person in possession, custody or control of
any designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute
or contain evidence relevant to the petition or the
return, to produce and permit their inspection, copying
or photographing by or on behalf of the movant.
refer the witnesses to the Department of Justice for
admission to the Witness Protection, Security and
Benefit Program, pursuant to Republic Act No. 6981.
The court, justice or judge may also refer the witnesses
to other government agencies, or to accredited persons
or private institutions capable of keeping and securing
their safety.
13. QUANTUM OF PROOF IN APPLICATION FOR

ISSUANCE OF WRIT OF AMPARO
regularly performed to evade responsibility or

liability.
Q: What is the quantum of evidence required in a

petition for a writ of amparo?
Note: No writ of amparo may be issued unless there is

a clear allegation of the supposed factual and legal
basis of the right sought to be protected. A threatened
demolition of a dwelling by virtue of a final judgment
of the court is not included among the enumeration of
rights as stated in the above-quoted Section 1 for
which the remedy of a writ of amparo is made
available. Their claim to their dwelling, assuming they
still have any despite the final and executory judgment
adverse to them, does not constitute right to life,
liberty and security. There is, therefore, no legal basis
for the issuance of the writ of amparo. (Canlas v.
Napico Homeowners Association, G.R. No. 182795,
June 5, 2008).
A: The parties shall establish their claims by

substantial evidence. (Sec. 17)
The respondent who is a private individual or entity
must prove that ordinary diligence as required by
the applicable laws, rules and regulations was
observed in the performance of duty.
The respondent who is a public official or employee
must prove that extraordinary diligence as required
by applicable laws, rules and regulations was
observed in the performance of duty.
The respondent public official or employee cannot
invoke the presumption that official duty has been
Q: Raymond and Reynaldo Manalo escaped from

captivity and surfaced of the armed forces. But
while the two admit that they are no longer in

203

detention and are physically free, they assert, that
they are not free in every sense of the word as
their movements continue to be restricted for fear
that the people they have named in their judicial
affidavits and testified against are still at large and
have not held accountable. The Manalo brothers
claim that they are under the threat of being once
again abducted, kept captive or even killed, which
constitute a direct violation of their right to
security of person. They filed a petition for writ of
amparo. Should the court granted the petition?
A: Yes, the Manalo brothers right to security as
freedom from threat is violated by the apparent
threat to their life, liberty and security of person.
Their right to security as a guarantee of protection
by the government is likewise violated by the
ineffective investigation and protection on the part
of the military. In blatant violation of guarantees to
life, liberty and security, these rights are snuffed
out from victims of extralegal killings and enforced
disappearances. The writ of amparo is a tool that
gives voice to preys of silent guns and prisoners
behind secret walls. (Secretary of National Defense
v. Manalo, G.R. No. 180906, Oct. 7, 2008)
property, and may be ordered destroyed by the

court.
3. DISTINGUISH FROM HABEAS CORPUS AND WRIT
OF AMPARO
4. WHO MAY FILE
Q: Who may file the petition?
A: Any aggrieved party may file a petition for the
writ of habeas data. However, in cases of extralegal
killings and enforced disappearances, the petition
may be filed by:
1.
2.
O. WRIT OF HABEAS DATA (AM No. 08-1-16-SC)

1. SCOPE OF WRIT
Q: What is the scope of the writ?
A: The writ covers instances wherein a persons
right to privacy in life, liberty or security is violated
or threatened by an unlawful act or omission of a
public official or employee, or of a private individual
or entity engaged in the gathering, collecting or
storing of data or information regarding the person,
family, home and correspondence of the aggrieved
party.
2. AVAILABILITY OF WRIT
5. CONTENTS OF PETITION
Q: What are the contents of the verified petition?
A:
1.
2.
3.
Q: What is writ of habeas data?

4.
A: It is a remedy available to any person whose
right to privacy in life, liberty or security is violated
or threatened by an unlawful act or omission of a
public official or employee, or of a private individual
or entity engaged in the gathering, collecting or
storing of data or information regarding the person,
family, home and correspondence of the aggrieved
party. It is a procedure designed to safeguard
individual freedom from abuse in the information
age. (Sec. 1)
Information or data written, tends to threaten
violation of constitutional right to life, liberty or
204
Any member of the immediate family of

the aggrieved party, namely: the spouse,
children and parents; or
In default thereof, any ascendant,
descendant or collateral relative of the
aggrieved party within the fourth civil
degree of consanguinity or affinity. (Sec.
2)
5.
6.
The personal circumstances of the

petitioner and the respondent
The manner the right to privacy is
violated or threatened and how it affects
the right to life, liberty or security of the
aggrieved party
The actions and recourses taken by the
petitioner to secure the data or
information
The location of the files, registers or
databases, the government office, and
the person in charge, in possession or in
control of the data or information, if
known
The reliefs prayed for, which may include
the updating, rectification, suppression or
destruction of the database or
information or files kept by the
respondent. In case of threats, the relief
may include a prayer for an order
enjoining the act complained of.
Such other relevant reliefs as are just and
equitable. (Sec. 6)
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
6. CONTENTS OF RETURN
A:
1.
Q: What should the respondent allege in his

verified return?
A: The respondent, within 5 working days from the
service of the writ, unless reasonably extended by
the Court, shall allege:
1.
2.
3.
The lawful defenses such as national

security,
state
secrets,
privileged
communication, confidentiality of the
source of information of media and
others;
In case of respondent in charge, in
possession or in control of the data or
information subject of the petition:
a. A disclosure of the data or
information about the petitioner, the
nature of such data or information,
and the purpose for its collection;
b. The steps or actions taken by the
respondent to ensure the security
and confidentiality of the data or
information; and
c. The currency and accuracy of the
data or information held; and
Other allegations relevant to the
resolution of the proceeding.
Note: A general denial of the allegations in the petition

shall not be allowed.
2.
When a subsequent criminal action is

filed, the Petition for the writ of Habeas
Data shall be consolidated with the
criminal action.
When a criminal action and a separate
civil action are filed subsequent to a
petition for a writ of habeas data, the
petition shall be consolidated with the
criminal action.
Note: After consolidation, the procedure under the

Rule shall continue to govern the disposition of the
reliefs in the petition. (Sec. 21)
9. EFFECT OF FILING A CRIMINAL ACTION

Q: What is the effect of an institution of a criminal
action?
A: No separate petition for the writ shall be filed.
The reliefs under the writ shall be available to an
aggrieved party by motion in the criminal case. (Sec.
22).
10. INSTITUTION OF SEPARATE ACTION
Q: Does the filing of a petition for the writ of
habeas data prohibit the filing of separate
criminal, civil or administrative actions?
7. INSTANCES WHEN PETITION BE HEARD IN

CHAMBERS
A: The filing of a petition for the writ of habeas data

shall not preclude the filing of separate criminal,
civil or administrative actions. (Sec. 20).
Q: What are the instances when a petition for a

writ of habeas data may be heard in chambers?
11. QUANTUM OF PROOF IN APPLICATION FOR

WRIT OF HABEAS DATA
A: It may be conducted where the respondent

invokes the defense that the release of the data or
information in question shall compromise national
security or State secrets, or when the data or
security and that it cannot be divulged to the public
due to its nature or privileged character. (Sec. 12)
Q: What is the quantum of evidence required in a

petition for a writ of habeas data?
8. CONSOLIDATION
Q: What happens when a criminal and/or civil
action is filed after the filing of the petition for
writ of habeas data?
A: The court shall render judgment within (10) days

from the time the petition is submitted for decision.
If the allegations in the petition are proven by
substantial evidence, the court shall enjoin the act
complained of, or order the deletion, destruction,
or rectification of the erroneous data or
information and grant other relevant reliefs as may
be just and equitable; otherwise, the privilege of
the writ shall be denied. (Sec. 16.).
Q: What are the differences between the writs?

A:
HABEAS CORPUS
You have the body
AMPARO
To protect
HABEAS DATA
Literal interpretation
You have the data
KALIKASAN
It is a Filipino word which
means nature in English

205
Rule 102
A.M. No. 07-9-12-SC
Writ directed to
the
person
detaining another,
commanding him
to produce the
body
of
the
prisoner
at
a
designated
time
and place, with the
day and cause of
his capture and
detention, to do,
submit to, and
receive whatsoever
the court or judge
awarding the writ
shall consider in
that behalf.
Remedy available to any

person whose right to
life, liberty, and security
is violated or threatened
with violation by an
unlawful act or omission
of a public official or
employee, or of a
private individual or
entity.
Governing rule
A.M. No. 08-1-16-SC
Description
Remedy available to any person
whose right to privacy in life, liberty
or security is violated or threatened
by an unlawful act or omission of a
public official or employee, or of a
private individual or entity engaged
in the gathering, collecting, or
storing of data or information
regarding the person, family, home
and correspondence of the
aggrieved party.
A.M. No. 09-6-8-SC

Special remedy available
to a natural or juridical person,
entity authorized by law,
peoples organization, nongovernmental organization, or
any public interest group
accredited by or registered with
any government agency, on
behalf of persons whose
constitutional
right
to
a
balanced and healthful ecology
is violated, or threatened with
violation by an unlawful act or
omission of a public official or
employee, or private individual
or
entity,
involving
environmental damage of such
magnitude as to prejudice the
life, health or property of
inhabitants in two or more cities
or provinces.
Coverage
Involves the right
to liberty of and
rightful custody by
the aggrieved
party.
Involves the right to life,

liberty, and security of
the aggrieved party and
covers extralegal killings
and enforced
disappearances.
Involves the right to privacy in life,

liberty, and security of the
aggrieved party and covers
extralegal killings and enforced
disappearances.
Constitutional right to a
balanced and healthful
ecology.
Rights violated
There is an actual
violation of the
aggrieved partys
right.
There is an actual or
threatened violation of
the aggrieved partys
right.
RTC or any judge

thereof, CA or any
member thereof in
instances
authorized by law;
or SC or any
member thereof.
RTC of the place where

the threat, act or
omission was committed
or any of its elements
occurred; SB or any
justice thereof; CA or any
justice thereof; SC or any
justice thereof.
Habeas Corpus
1.
Party for whose relief

it is intended; or
2.
Any person on his

behalf
206
Amparo
There is an actual or threatened

violation of the aggrieved partys
right.
Where to file
RTC where the petitioner or
respondent resides, or that which has
jurisdiction over the place where the
data or information is gathered,
collected or stored, at the option of
the petitioner; or with SC, CA or SB
when the action concerns public data
files or government offices.
There is an actual or
threatened violation of ones
right to a healthful and
balanced ecology involving
environmental damage.
In SC or any stations of the CA.
Habeas Data
Who may file a petition
In the following order:
1. Any aggrieved party;
1. Any member of the
2. However, in cases of extralegal
immediate family
killings
and
enforced
2. Any
ascendant,
disappearances:
descendant,
or
a. Any member of the
collateral relative of
immediate family
the aggrieved party
b. Any
ascendant,
th
within the 4 civil
descendant, or collateral
degree
of
relative of the aggrieved
consanguinity
or
party within the 4th civil
affinity
degree of consanguinity
3. Any concerned citizen,
or affinity
organization,
Kalikasan
A
natural
or
juridical
person,
entity authorized
by law, peoples
organization, nongovernmental
organization,
or
any public interest
group accredited
by or registered
with
any
government
agency.
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
association
institution
May or may not be an

officer.
If granted by SC or CA:
enforceable anywhere In
the Philippines;
or
Respondent
Public official or employee or a
private individual or entity engaged
Public official or employee in the gathering, collecting or storing
or a private individual or
of data or information regarding the
entity.
person, family, home and
correspondence of the aggrieved
party.
Enforceability of the writ
Enforceable anywhere in the Philippines regardless of who issued

the same
If granted by RTC:
enforceable only within
the judicial district
Public official or
employee, private
individual or entity.
Enforceable
anywhere in the
Philippines
Docket fees
Payment is required
Note: Rule on indigent
petitioner applies.
Served upon the person to
whom it is directed, and if
not found or has not the
prisoner in his custody, to
the other person having or
exercising such custody
Payment is required.
Petitioner is exempted
from payment
Note: Rule on indigent petitioner

applies.
Service of writ
Served upon the

respondent personally; or
substituted service
Served upon the respondent

personally; or substituted service
Petitioner is
exempted from
payment
Served upon the

respondent
personally; or
substituted service.
Person who makes the return

Officer by whom the
prisoner is imprisoned or
the person in whose
custody the prisoner is
found
On the day specified in the

writ
Habeas Corpus
If granted by the SC or
CA: returnable before
the court or any
member or before RTC
or any judge thereof;
If granted by RTC:
returnable before such
court
Respondent
Respondent
Respondent
When to file a return

The respondent shall file a verified
Within 5 working days
written return together with
after service of the writ,
supporting affidavits within 5
the respondent shall file a
working days from service of the
verified written return
writ, which period may be
together with supporting
reasonably extended by the Court
affidavits.
for justifiable reasons.
Amparo
Habeas Data
Return
If issued by RTC: returnable
If issued by RTC: returnable
before such court;
before such court;
If issued by SB or CA or any
of their justices:
returnable before such
court or to any RTC of the
place where the threat, act
or omission was
committed or any of its
elements occurred;
If issued by SC or any of its
justices: returnable before
such court, or before SB,
If issued by SB or CA or any of
their justices: returnable
before such court or to any
RTC of the place where the
petitioner or respondent
resides or that which has
jurisdiction over the place
where the data or
information is gathered,
collected or stored;
Within nonextendible period

of 10 days after the
service of writ.
Kalikasan
If issued by SC, returnable

before such court or CA.
If issued by SC or any of its

207

CA, or to any RTC of the
place where the threat, act
or omission was
committed or any of its
elements occurred
justices: returnable before

such court, or before SB, CA,
or to any RTC of the place
where the petitioner or
respondent resides or that
which has jurisdiction over
the place where the data or
information is gathered,
collected or stored
General denial
Not prohibited.
Not allowed.
Not allowed.
Not allowed.
Liability of the person to whom the writ is directed if he refuses to make a return
Forfeit to the aggrieved
party the sum of
Imprisonment or fine for
Imprisonment or fine for
Indirect contempt.
P1000, and may also be
committing contempt.
committing contempt.
punished for contempt.
Hearing
The hearing including the
preliminary conference shall
Summary hearing shall be
Summary hearing shall be
Date and time of
not extend beyond sixty (60)
conducted not later than 7
conducted not later than 10
hearing is specified in
days and shall be given the
days from the date of
working days from the date
the writ.
same priority as petitions for
issuance of the writ.
of issuance of the writ.
the writs of habeas corpus,
amparo and habeas data.
Period of appeal
Within 48 hours from
notice of the judgment
or final order appealed
from.
5 working days from the

date of notice of the
adverse judgment.
Habeas Corpus
Amparo
5 working days from the date

of notice of the judgment or
final order.
Habeas Data
Prohibited pleadings
1.
2.
None
Within fifteen (15) days from

the date of notice of the
adverse judgment or denial
of motion for
reconsideration.
Motion to dismiss;
Motion for extension of time to file opposition,
affidavit, position paper and other pleadings;
3. Dilatory motion for postponement;
5. Counterclaim or cross - claim;
6. Third - party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for reconsideration of interlocutory orders or
interim relief orders; and
12. Petition for certiorari, mandamus or prohibition
against any interlocutory order.
Kalikasan
1.
2.
3.
4.
5.
6.
7.
8.
Motion to dismiss;
Motion for extension of
time to file return;
Motion for
postponement;
Motion for a bill of
particulars;
Counterclaim or crossclaim;
Third-party complaint;
Reply; and
Motion to declare
respondent in default.
Note: In writ of amparo, one rare instance where the SB, notwithstanding its status as a special court, is vested with
jurisdiction co-equal with SC, CA and RTC. Take note that CTA, albeit acting as a special court being in the same rank of
CA and SB, is not vested with jurisdiction to issue writ of amparo.
P. CHANGE OF NAME
1. DIFFERENCES UNDER RULE 103, R.A. 9048 AND RULE 108
Discuss the differences among Rule 103 (Change of Name), R.A. 9048 (Administrative Correction of Clerical or
Typographical Error/Change of first name or nickname) and Rule 108 (Cancellation or Correction of Clerical or
Typographical Error).
208
REMEDIAL LAW TEAM:

SPECIAL PROCEDINGS
A:
Rule 103
R.A. 9048
Scope
Change of first name or

surname.
Change of first name or nickname/ correction

of clerical errors of entries in the Civil Registry.
Rule 108
Correction of or substantial errors
of entries in the Civil Registry/
cancellation of entries.
Nature
Judicial; hearing is necessary.
Verified petition.
RTC of the province where the
petitioner resides at least 3
months.
CA under Rule 41
Filed by the person desiring to

change his name.
Solicitor General/ Interested

parties.
Order for hearing shall be
published once a week for 3
consecutive weeks.
1. Name is ridiculous, tainted
with dishonor or extremely
difficult
to
write
or
pronounce;
2. Habitual and continuous used
and been known since
childhood by a Filipino name,
unaware
of
her
alien
parentage;
3. Consequence of a change of
status;
4. A sincere desire to adopt a
Filipino name to erase signs of
former alienage, all in good
faith and without prejudicing
anybody;
5. The change will avoid
confusion; or
6. When the surname causes
embarrassment and there is
no showing that the desired
change of name was for a
fraudulent purpose or that
the change of name should
Administrative; hearing is not necessary.
Judicial; hearing is necessary

Summary if it involves clerical
errors
Adversarial if it involves substantial
errors.
Initiated by
Sworn affidavit.
Verified petition.
Where to file
1. Local Civil Registry office where the record
RTC where the corresponding civil
is kept;
registry is located.
2. Consul general.
Where to appeal , in case of adverse decision
Civil Registrar General under Sec. 7 or CA
CA under Rule 41
under Rule 43
Who may file
Petition is filed by the person of legal age who
must have a direct and personal interest in the
correction:
1. Owner of the record;
Any person interested in the act,
2. Owners spouse, children, parents,
event, decree or order concerning
brothers, sisters, grandparents, guardian;
the civil status of persons.
or
3. Anyone authorized by law or owner of the
record.
Who must be notified
Interested parties/Solicitor General need not be
notified.
Publication
Order for hearing in case of change of first
name/nickname shall be published once a week
for 2 consecutive weeks.
Grounds
1. The petitioner finds the first name or

nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or
pronounce.
2. The new first name or nickname has been
habitually and continuously used by the
petitioner and he has been publicly known by
that by that first name or nickname in the
community: or
3. The change will avoid confusion.
Civil registrar as respondent; Solicitor

General/ Interested parties.
Order for hearing shall be published
once a week for 3 consecutive weeks.
N/A

209

prejudice public interest.
(Republic v. CA, G.R. No.
88202, Dec. 14, 1998).
1. Correction of clerical or
typographical errors in any
entry in civil registry
documents, except
corrections involving the
change in sex, age, nationality
and status of a person; and
2. Change of a person's first
name or nickname in his or
her civil registry.
Entries subject to correction

1. Correction of clerical or typographical errors in
the civil registry
2. change of first name or nickname in the civil
registry
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Births;
Marriages;
Deaths;
Legal separations;
Judgments of annulments of
marriage;
Judgments declaring marriages
void from the beginning;
Legitimations;
Adoptions;
Acknowledgments of natural
children;
Naturalization;
Election, loss or recovery of
citizenship;
Civil interdiction;
Judicial determination of
filiation; and
Change of name. (Sec. 2)
NOTE: Clerical/typographical error refer to an obvious mistake committed in clerical work, either in writing, copying,
transcribing, or typing an entry in the civil register that is harmless and innocuous, such as a misspelled name or place of birth
and the like, and can be corrected or changed only by reference to other existing record or records. [Sec. 2(3) of RA 9048]
2. GROUNDS FOR CHANGE OF NAME

Q: What are the grounds for change of name
under Rule 103?
A:
nationality of a party, it is deemed substantial, and the

procedure to be adopted is adversary. (Republic v.
Bautista, 155 SCRA 1, Oct. 26, 1987).
Q. ABSENTEES
1. PURPOSE OF THE RULE
1.
2.
3.
4.
5.
6.
Name is ridiculous, tainted with dishonor

or extremely difficult to write or
pronounce;
Habitual and continuous used and been
known since childhood by a Filipino name,
unaware of her alien parentage;
Consequence of a change of status;
A sincere desire to adopt a Filipino name
to erase signs of former alienage, all in
good faith and without prejudicing
anybody;
The change will avoid confusion; or
When
the
surname
causes
embarrassment and there is no showing
that the desired change of name was for a
fraudulent purpose or that the change of
name should prejudice public interest.
(Republic v. CA, G.R. No. 88202, Dec. 14,
1998).
Q: What is the purpose of this Rule?

A: It is to appoint an administrator over the
properties of the absentee. This is proper only
where the absentee has properties to be
administered.
When a person disappears from his domicile his
whereabouts being unknown, and without having
left an agent to administer his property, or the
power conferred upon the agent has expired, any
interested party, relative or friend, may petition the
RTC of the place where the absentee resided before
his disappearance for the appointment of a person
to represent him provisionally in all that may be
necessary.
Note: If the absentee left no properties, such petition
is not necessary. (Reyes v. Alejandro, G.R. No. L-46187,
Jan. 16, 1986)
Note: Under Rule 108, change of name may either be

summary or adversary in nature. If the correction
sought to be made in the civil registrar is clerical, then
the procedure to be adopted is summary. If the
rectification affects the civil status, citizenship or
210
REMEDIAL LAW TEAM:

SPECIAL PROCEEDINGS
2. WHO MAY FILE A PETITION; WHEN TO FILE
Q: Who
absence
trustee?
A:
1.
2.
3.
4.
may file a petition for declaration of

and appointment of administrator or
Spouse present;
Heirs instituted in the will;
Relatives who will succeed by intestacy;
Those who have over the property of the
absentee some right subordinated to the
condition of his death. (Sec. 2, Rule 107)
Note: Rule 108, when all the procedural requirements

thereunder are followed, is the appropriate adversary
proceeding to effect substantial correction and
changes in the entries of civil register (Lee v. CA, G.R.
No. L-118387, Oct. 11, 2001).
Q: What are the requisites of adversarial

proceedings?
A:
1.
Q: When should a petition for declaration of

absence and appointment of administrator or
trustee be filed?
2.
A:
4.
1.
2.
3.
After 2 years:
a. From his disappearance and without
any news about the absentee; or
b. of the last news about the absentee.
After 5 years If he left an administrator
of his property. (Sec. 2, Rule 107)
R. CANCELLATION OR CORRECTION OF ENTRIES IN

THE CIVIL REGISTRY
Q: Who may file a petition for cancellation or
correction of entries?
A: Any person interested in any act, event, order or
decree concerning the civil status of persons which
has been recorded in the civil register, may file a
verified petition for the cancellation or correction
of any entry relating thereto, with the RTC of the
province where the corresponding civil registry is
located (Sec. 1).
Q: What is the nature of proceedings in Rule 108?
A: It is summary if the entries in the civil register
sought to be corrected are clerical or innocuous in
nature. However, where such entries sought to be
corrected or changed are substantial, the
proceedings are adversarial in nature. (Republic v.
Valencia, G.R. No. L-32181, Mar. 5, 1986)
Q: What is meant by appropriate adversarial
proceeding?
A: One which has opposing parties; contested as
distinguished from an ex parte application, one of
which the party seeking relief has given legal
warning to the other party, and afforded the latter
an opportunity to contest it. (Republic v. Valencia,
Ibid.)
5.
Proper petition is filed where the Civil

Registrar and all parties interested are
impleaded;
The order of hearing must be published
once a week for three consecutive weeks;
Notice must be given to the Civil Registrar
and all parties affected thereby;
The civil registrar and any person
interested, may within 15 days from
notice or from the last date of
publication, files his opposition thereto;
and
Full blown trial. (Republic v. Valencia,
supra.)
1. ENTRIES SUBJECT TO CANCELLATION OR

CORRECTION UNDER RULE 108, IN RELATION TO
RA 9048
Q: What are the entries subject to cancellation or
correction under Rule 108?
A:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Births;
Marriages;
Deaths;
Legal separations;
Judgments of annulments of marriage;
Judgments declaring marriages void from
the beginning;
Legitimations;
Adoptions;
Acknowledgments of natural children;
Naturalization;
Election, loss or recovery of citizenship;
Civil interdiction;
Judicial determination of filiation; and
Change of name. (Sec. 2)
Q: May the trial court issued an order declaring

the nullity of marriage under Rule 108 and change
the status from married to single?
A: No, it is proper only in ordinary adversarial
proceedings. (Lim v. Republic, G.R. No. 8932, May
31, 1957)

211

Q: Within what period may a petition for
correction or cancellation of entries be filed?
A: The law did not fix a period within which the
petition for correction under Rule 108 in relation to
Art. 412 of Civil Code may be filed. Accordingly,
such petition may be filed within 5 years from time
the petitioner discovered the error or mistake in
the civil registry, and not from the date the birth
certificate was registered in the civil registry. (Lee v.
CA, supra.)
Q: Celine files a petition for cancellation of the
birth certificate of her daughter Jeanie on the
ground of falsified material entries therein made
by Celines husband as the informant. The RTC sets
the case for hearing and directs the publication of
the order once a week for 3 consecutive weeks in a
newspaper of general circulation. Summons was
served on the Civil Registrar but there was no
appearance during the hearing. The RTC granted
the petition. Jeanie filed a petition for annulment
of judgment before the CA, saying that she was
not notified of the petition and hence, the decision
was issued in violation of due process. Celine
opposed saying that the publication of the court
order was sufficient compliance with due process.
Rule.
A: The petition for annulment of judgment before
the CA should be granted. Jurisdiction of the court
over a petition for cancellation of a birth certificate
requires reasonable notice to all interested parties
and also publication of the order once a week for 3
consecutive weeks in a newspaper of general
circulation. In this case, publication of the order is
insufficient because Jeanie, a directly concerned
party, was not given reasonable notice, hence,
denied due process. The lower court, therefore, did
not acquire jurisdiction. (Ceruila v. Delantar, G.R.
No. 140305, Dec. 9, 2005).
Alternative Answer:
It should not be granted. The publication of an
order of hearing under Section 4 of Rule 108 cured
the failure to implead an indispensable party. A
petition for correction is an action in rem, an action
against a thing and not against a person. The
decision on the petition binds not only the parties
thereto but the whole world. An in rem proceeding
is validated essentially through publication.
Publication is notice to the whole world that the
proceeding has for its object to bar indefinitely all
who might be minded to make an objection of any
sort against the right sought to be established. It is
the publication of such notice that brings in the
whole as a party in the case and vests the court
with jurisdiction to hear and decide it (Republic v.
212
Kho, G.R. No. 170340, June 29, 2007; Alba v. CA,

G.R. No. 164041, July 29, 2005; Barco v. CA, G.R. No.
120587, Jan. 20, 2004). (2007 Bar Question)
Q: Helen is the daughter of Eliza, a Filipina, and
Tony, a Chinese, who is married to another
woman living in China. Her birth certificate
indicates that Helen is the legitimate child of Tony
and Eliza and that she is a Chinese citizen. Helen
wants her birth certificate corrected by changing
her filiation from "legitimate" to "illegitimate" and
her citizenship from Chinese" to "Filipino"
because her parents were not married. What
petition should Helen file and what procedural
requirements must be observed? Explain.
A: A petition has to be filed in a proceeding under
Rule 108 of the Rules of Court. A petition to change
the record of birth by changing the filiation from
legitimate to illegitimate and petitioners
citizenship from Chinese to Filipino does not
involve a simple summary correction which could
otherwise be done under the authority of R.A.
9048. Procedural requirements include: (a) filing a
verified petition; (b) naming as parties all persons
who have or claim any interest which would be
affected; (c) issuance of an order fixing the time and
place of hearing; (d) giving reasonable notice to the
parties named in the petition; and (e) publication of
the order once a week for 3 consecutive weeks in a
newspaper of general circulation. (2005 Bar
Question)
S. APPEALS IN SPECIAL PROCEEDINGS
1. JUDGMENTS AND ORDERS FOR WHICH APPEAL
MAY BE TAKEN
Q: What are the orders or judgments from which
appeal may be taken?
A: An interested person may appeal when such
order or judgment:
1.
2.
3.
4.
5.
Allows or disallows a will;

Determines who are the lawful heirs of a
deceased person, or the distributive share
of the estate to which such person is
entitled;
Allows or disallows, in whole or in part,
any claim against the estate of a deceased
person, or any claim presented on behalf
of the estate in offset to a claim against it;
Settles the account of an executor,
administrator, trustee or guardian;
Constitutes, in the proceedings relating to
the settlement of the estate of a
deceased person, or the administration of
REMEDIAL LAW TEAM:

SPECIAL PROCEEDINGS
6.
a trustee or guardian, a final

determination in the lower court of the
rights of the party appealing, except that
no appeal shall be allowed from the
appointment of a special administrator;
Is the final order or judgment rendered in
the case, and affects the substantial rights
of the person appealing, except orders
granting or denying a motion for new trial
or for reconsideration (Sec. 1, Rule 109).
Note: A stranger having neither material nor direct

interest in a testate or intestate estate has no
right to appeal from any order issued therein.
(Panis v. Yangco, G.R. No. L-29460, Dec. 22, 1928)
A:
1.
Rule 40 (Appeal from MTC to RTC) By

filing a notice of appeal, record on appeal
and payment of appeal fees on questions
of law or fact or both;
2.
Rule 41 (Appeal from the RTC to CA in

exercise of its original jurisdiction) By
ordinary appeal by filing a notice of
appeal, record on appeal and payment of
appeal fees on questions of law or fact or
both;
3.
Rule 42 (Petition for review from the RTC

to the CA in exercise of its appellate
jurisdiction) By filing a notice of appeal,
record on appeal and payment of appeal
fees on questions of law or fact or both;
4.
Rule 45 (Appeal by certiorari to the SC)

By filing of verified petition for review on
certiorari and payment of fees which shall
raise questions of law only
XPN: Any party may raise questions
of fact in their appeal in cases of writ
of amparo, habeas data and
kalikasan.
5.
Rule 65 (Petition for certiorari) By filing

of verified petition for certiorari on the
ground that the court acted without or in
excess of jurisdiction or with grave abuse
of discretion.
2. WHEN TO APPEAL
Q: When should the appeal in special proceedings
be filed?
A:
Special Proceedings
Habeas Corpus
Writ of Amparo
Writ of Habeas Data
Writ of Kalikasan
PERIOD FOR APPEAL

30 days (Record on Appeal
required)
48 hours from service of
judgment
5 working days from date of
notice of judgment
5 working days from date of
notice of judgment
15 days from notice of
judgment or denial of motion
for reconsideration
Q: What are the orders that are not

appealable?
A:
1.
2.
3.
4.
Order directing the administrator to

take action to recover an amount due
to the estate.
Order made in administration
proceedings relating to the inclusion
or exclusion of items of property in
the inventory of executor or
administrator.
Order
appointing
a
special
administrator.
Order granting or denying a motion
for new trial or for reconsideration.
4. RULE ON ADVANCE DISTRIBUTION

Q: When can an advance distribution be made
despite a pending controversy in the settlement of
an estate?
A: Notwithstanding a pending controversy or
appeal in proceedings to settle the estate of a
decedent, the court may, in its discretion and upon
such terms as it may deem proper and just, permit
that such part of the estate as may not be affected
by the controversy or appeal be distributed among
the heirs or legatees, upon compliance with the
conditions set forth in Rule 90 of these rules. (Sec.
2)
3. MODES OF APPEAL
Q: What are the modes of appeal, how perfected
and their grounds?

213

CRIMINAL PROCEDURE
3.
A. GENERAL MATTERS
4.
Q: What is criminal procedure?
A: It is the method prescribed by law for the
apprehension and prosecution of persons accused
of any criminal offense, and for their punishment, in
case of conviction (Herrera, Vol. IV, p. 1, 2007 ed.).
Q: Distinguish
procedure.
criminal
law
from
criminal
A:
Criminal Law
Substantive
It declares what acts are
punishable
Criminal Procedure
Remedial
It provides how the act is
to be punished
It provides for the
method by which a
person accused of a
crime is arrested, tried or
punished.
It defines crimes, treats

of their nature and
provides for their
punishment
1. DISTINGUISH JURISDICTION OVER SUBJECT

MATTER FROM JURISDICTION OVER PERSON OF
THE ACCUSED
Determined by the nature of the offense

and/ or penalty attached thereto and not
what may be meted out after trial;
Determined by the law in force at the
time of the institution of the criminal
action and not at the time of its
commission. ONCE VESTED IT CANNOT BE
WITHDRAWN BY:
a. Subsequent valid amendment of the
information (People v. Chipeco GR
No. 1968, March 31, 1964) or;
b. Subsequent statutory amendment of
the rules of jurisdiction UNLESS the
amendatory law expressly provides
otherwise or is construed that it is
intended to operate to actions
pending before its amendment, in
which case the court where the
action is pending is ousted of
jurisdiction and the pending action
will have to be transferred to the
court having jurisdiction by virtue of
the amendatory law (Binay v.
Sandiganbayan GR No. 120011,
October 1, 1999)
2. REQUISITES FOR EXERCISE OF CRIMINAL

JURISDICTION
Q: Distinguish jurisdiction over the subject matter

from jurisdiction over the person of the accused.
Q: What is criminal jurisdiction?
A:
A: It is the authority to hear and try a particular

offense and impose the punishment for it (People v.
Mariano, GR. No. L-40527, June 30, 1976).
Jurisdiction Over the Subject

Matter
Derived from the law. It can
never be acquired solely by
consent of the accused.
Objection that the court has
no jurisdiction over the
subject matter may be made
at any stage of the
proceeding, and the right to
make such objection is never
waived.
Jurisdiction Over the

Person of the
Accused
May be acquired by
consent of the
accused (by voluntary
appearance) or by
waiver of objections.
If he fails to make his
objection on time, he
will be deemed to
have waived it.
Q: What determines jurisdiction of the court in

criminal cases?
A:
1.
2.
214
The geographical limits of its territory;

Determined by the allegations in the
complaint or information not by the
results of proof or by the trials courts
appreciation of the evidence presented;
Note: Jurisdiction is determined by the law in force at

the time of the commencement of the action
Q: What are the requisites for the valid exercise of

criminal jurisdiction?
A:
1.
2.
Jurisdiction over the subject matter the

power to hear and determine cases of
general class to which the proceeding in
question belong. The offense, by virtue of
the imposable penalty or its nature, is one
which the court is by law authorized to
take cognizance of.
Jurisdiction over the territory The
offense must have been committed or
any of its essential ingredients took place
within the territorial jurisdiction of the
court. It cannot be waived and where the
place of the commission was not
specifically charged, the place may be
shown by evidence.
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
3.
Jurisdiction over the person of the accused

The person charged with the offense
must have been brought to its presence
for trial, forcibly by warrant of arrest or
upon his voluntary submission to the
court.
Note:
GR: Questions of jurisdiction may be raised at any
stage of the proceedings and for lack of it, a court
can dismiss a case motupropio
XPN: The party raising the question is guilty of
estoppel or laches (Tijam v. Sibonghanoy, G.R. No.
L-21450, Apr. 15, 1968)
3. JURISDICTION OF CRIMINAL COURTS

Q: How is jurisdiction determined?
A: It is determined by the allegations in the
complaint or information not by the results of proof
or by the trial courts appreciation of the evidence
presented (Buaya v. Polo, G.R. No. 75097, Jan. 26,
1989).
Q: What is the principle of adherence?
A: It provides that once jurisdiction is vested in the
court, it is retained up to the end of litigation (Dela
Cruz v. Moya, G.R. No. 65192, Apr. 27, 1988).
A: It is lodged with the trial court having jurisdiction

to impose the maximum and most serious penalty
imposable of an offense forming part of the
complex crime. It must be prosecuted integrally and
must not be divided into component offenses which
may be made subject of multiple information
brought in different courts (Cuyos v. Garcia, G.R.
No. L-46934, Apr. 15, 1988).
Q: Which court has jurisdiction over continuing
crimes?
A: Continuing offenses are consummated in one
place, yet by the nature of the offense, the violation
of the law is deemed continuing (e.g.estafa and
libel). As such, the courts of the territories where
the essential ingredients of the crime took place
have concurrent jurisdiction. But the court which
first acquires jurisdiction excludes the other courts.
Q: Which court has jurisdiction over crimes
punishable by destierro?
A: Where the imposable penalty is destierro, the
case falls within the exclusive jurisdiction of the
Municipal Trial Court, considering that in the
hierarchy of penalties under Art. 71 of the RPC,
destierrofollowsarresto mayor which involves
imprisonment (People v. Eduarte, G.R. No. 88232,
Feb. 26, 1990).
Q: Is there an exception to the principle of

adherence?
A: Yes, when the subsequent statute expressly
provides, or is construed that it shall have
retroactive effect to pending case (Herrera, Vol. IV,
p. 9, 2007 ed.).
Q: If fine is the only penalty, how is jurisdiction
determined?
A: In cases where the only penalty provided by law
is a fine, the amount thereof shall determine the
jurisdiction of the court. The RTC has jurisdiction
where the fine is more than 4,000 pesos including
offenses committed by public officers and
employees in relation to their office, where the
amount of the fine does not exceed 6,000 pesos (SC
Court Circular No. 09-94) except in cases of criminal
negligence involving damage to property which falls
under the exclusive original jurisdiction of the MTC.
The MTC has jurisdiction where the fine is 4,000
pesos or less. Accessory penalties and civil liabilities
are no longer determinative of criminal jurisdiction.
Q: In complex crimes, how is the jurisdiction of a
court determined?
4. WHEN INJUNCTION MAY BE ISSUED TO

RESTRAIN CRIMINAL PROSECUTION
Q: Will injunction lie to restrain criminal
prosecution?
A:
GR: Writs of injunction or prohibition to restrain
criminal prosecution are generally not available
because public interest requires that criminal
acts be immediately investigated and
prosecuted for the protection of society.
XPNs:
1. To afford adequate protection to the
constitutional rights of the accused;
2. When necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of actions;
3. When there is a prejudicial question
which is subjudice;
4. When the acts of the officer are without
or in excess of authority;
5. Where the prosecution is under an invalid
law, ordinance or regulation;
6. When double jeopardy is clearly
apparent;

215

7.
Where the court has no jurisdiction over

the offense;
8. Where it is a case of persecution rather
than prosecution;
9. Where the charges are manifestly false
and motivated by lust for vengeance;
10. When there is clearly no prima facie case
against the accused and a motion to
quash on that ground has been denied;
and
11. Preliminary injunction has been issued by
the SC to prevent the threatened
unlawful arrest of petitioners (Domingo v.
Sandiganbayan, G.R. No 129904, Mar. 16,
2002).
B. PROSECUTION OF OFFENSES
1. CRIMINAL ACTIONS, HOW INSTITUTED
Q: What is criminal action?
A: It is one by which the State prosecutes a person
for an act or omission punishable by law.
Q: How is criminal action instituted?
A: The institution of a criminal action depends upon
whether the offense requires a preliminary
investigation.
Where a preliminary investigation is required, a
criminal action is instituted by filing the complaint
with the proper officer for the purpose of
conducting the requisite preliminary investigation.
Where a preliminary investigation is not required, a
criminal action is instituted either:
a.
b.
Note:
1.
2.
By filing the complaint or information

directly with the Municipal Trial Court of
Municipal Circuit Trail Court; or
By filing the complaint with the office of
the prosecutor. (Section 1, Rule 110, Rules
of Court)
For Metro Manila and other chartered cities,

the complaint shall be filed with the
prosecutor regardless of the imposable
penalty (Section 1, Rule 110, Rules of Court)
Cases falling within the jurisdiction of the
RTC are always commenced by information
filed by the prosecutor.
A: There is NO DIRECT FILING of an information or

complaint with the RTC because its jurisdiction
covers offenses which require preliminary
investigation.
There is likewise NO DIRECT FILING with the
Metropolitan Trial Court because in Manila,
including other chartered cities, as a rule, the
complaint shall be filed with the office of the
prosecutor, unless otherwise provided by their
charters. In case of conflict between a city charter
and a provision of the Rules of Court, the former,
being substantive law, prevails.
Q: What is the effect of institution of the criminal
action on the prescriptive period?
A:
GR: It interrupts the running of the period of
prescription of the offense charged (Sec. 1).
XPN: Prescriptive periods of violations of special
laws and municipal ordinances governed by Act
No. 3323 (An Act to Establish Periods of
Prescription for Violations Penalized by Special
Laws and Municipal Ordinances and to Provide
When Prescription shall Begin to Run) shall only
be interrupted by the filing of a complaint or
information in court. The filing of a complaint
with the prosecutor or the proper officer for
purposes of conducting a preliminary
investigation will not interrupt the prescriptive
period (Zaldivia v. Reyes, Jr., G.R. No. 102342,
July 3, 1992).
Q: May the offended party go directly to court to
file a criminal action?
GR:No. Before a complaint is filed in court, there
should have been a confrontation between the
parties before the Lupon chairman. The Lupon
secretary must certify that no conciliation or
settlement was reached, attested to by the Lupon
chairman. The complaint may also be filed if the
settlement is repudiated by the parties.
XPNs:
1.
2.
3.
4.
Where the accused is under detention

Where a person has otherwise been
deprived of personal liberty calling for
habeas corpus proceedings
Where actions are coupled with
provisional remedies
Where the action may be barred by the
statute of limitations
Q: Can the complaint or information be directly

filed in the Regional Trial Court or Metropolitan
Trial Court or other chartered cities?
216
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
2.
Q: What is the rule regarding the prescriptive

periods of cases falling under the authority of the
Lupon?
A: The prescriptive period shall be suspended from
the time of the filing of complaint with the punong
barangay which suspension shall not exceed 60
days. The prescriptive period shall resume upon
receipt of the certificate of repudiation or
certificate to file action [Sec. 410(c), LGC].
2. Seduction, abduction or acts of lasciviousnessprosecuted exclusively and successively by the

following persons in this order:
1.
2.
3.
4.
2. WHO MAY FILE THEM, CRIMES THAT CANNOT

BE PROSECUTED DE OFFICIO
Q: What is the concept of an offense or crime that
cannot be prosecuted de officio?
A: These are crimes or offenses which cannot be
prosecuted except on complaint filed by the
offended party or if the offended party is a minor,
by the parents, grandparents or the guardian. All
other crimes can be prosecuted de officio.
Note: These are also known as private crimes.
Q: Are all crimes initiated by a complaint or

information filed by the prosecutor?
A:
GR: Yes.
XPNs: Private crimes which may only be
prosecuted by a complaint filed by the private
offended party, i.e.:
1. Concubinage
2. Adultery
3. Seduction
4. Abduction
5. Defamation
6. Acts of lasciviousness
Note: These are crimes which are by their nature
cannot be prosecuted de officio
Rape is now a crime against persons by
virtue of RA 8353.
Q: Who can legally file a complaint for crimes that

cannot be prosecuted de officio?
A:
1.Adultery or concubinage- Only the offended
spouse may file a complaint for adultery or
concubinage(Sec. 5).
Note: The offended spouse cannot institute a
criminal action for adultery
1. Without including the guilty parties if both
are alive; or
If the offended party has consented to the

offense or pardoned the offenders (Sec. 5).
The offended party;

Offended partys parents;
Offended partys grandparents; or
Offended partys guardian (Sec. 5).
Note: Such crimes cannot be prosecuted if the

offender has been expressly pardoned by any of
the abovementioned parties (Sec. 5).
3. Defamation imputing to a person any of the

foregoing crimes of concubinage, adultery,
seduction, abduction, rape or acts of
lasciviousness- only by the party or parties
defamed (Article 360, last paragraph, Revised Penal
Code)
Q: Are there instances where the State may
initiate the action for seduction, abduction or acts
of lasciviousness in behalf of the offended party?
A: Yes, when the offended party:
1. Dies or becomes incapacitated before a
complaint is filed; or
2. Has no known parents, grandparents or
guardian (Sec. 5; Rule 110).
Q: Who may file a complaint on cases of unlawful
acts in RA 7610 (Special Protection of Children
against
Child
Abuse,
Exploitation
and
Discrimination Act)?
A: The complaint may be filed by the following:
1. Offended party;
2. Parents or guardians;
3. Ascendant or collateral relative within the
third degree of consanguinity;
4. Officer, social worker or representative of
a licensed child-caring institution;
5. Officer or social worker of the
Department of Social Welfare and
Development;
6. Barangay chairman; or
7. At least three (3) concerned, responsible
citizens where the violation occurred (Sec.
27, RA 7160)
Q: May a minor file a complaint for seduction,
abduction, or acts of lasciviousness?
A:
GR: Yes, the offended party, even if a minor, has
the right to initiate the prosecution of such

217

offenses independently
grandparents or guardian.
of
his
parents,
a.
XPN: If the minor is:

1. Incompetent; or
2. Incapable of doing so (Sec. 5, Rule 110).
b.
Note: If the minor fails to file a complaint, his parents,

grandparents or guardian may file the same. The right
granted to the former shall be excusive and successive
in the order herein provided (Sec.5Rule 110).
c.
Q: Can the father file a complaint on behalf of his

daughter for concubinage?
A: No. The rule allowing the parents, grandparents,
and guardians to file a complaint on behalf of the
minor applies only to the offenses of seduction,
abduction, and acts of lasciviousness. A complaint
for adultery or concubinage may be filed only by
the offended spouse.
Q: If the offended party in abduction, seduction,
and acts of lasciviousness is of age, can her parents
file the complaint for her?
A: No. If the offended party is already of age, she
has the exclusive right to file the complaint unless
she becomes incapacitated. The parents,
grandparents, and guardian only have exclusive,
successive authority to file the case if the offended
party is still a minor.
The offended minor, if with sufficient

discretion, can validly pardon the
accused by herself if she has no
parents or where the accused is her
own father and her mother is dead;
The parents, grandparents or
guardian of the offended minor, in
that order, extend a valid pardon in
said crimes without the conformity
of the offended party, even if the
latter is a minor;
If the offended woman is of age and
not otherwise incapacitated, only
she can extend a valid pardon.
Note: The pardon refers to pardon before filing of the

criminal complaint in court. Pardon effected after the
filing of the complaint in court does not prohibit the
continuance of the prosecution of the offense.
Q: In cases of seduction, abduction or acts of

lasciviousness may a minor extend pardon?
A: Yes, but the pardon to be effective as to prevent
prosecution of the accused must be given by both
parents and the offended party.
Q: Does the subsequent marriage of the accused
and offended party extinguish the criminal
liability?
A:
GR: The subsequent marriage between the
party and the accused, even after the filing of
the complaint, extinguishes the criminal liability
of the latter, together with that of the coprincipals, accomplices and accessories.
Q: If the offended party dies during the pendency

of the case, is the criminal liability of the accused
extinguished?
A: No.
XPNs:
Q: Distinguish pardon from consent.
1.
A:
Pardon
Consent
Refers to past acts
Refers to future acts
In order to absolve the

accused from liability, it
must be extended to
both offenders
In order to absolve the

accused from liability, it
is sufficient even if
granted only to the
offending spouse
2.
3.
Q: Who can give pardon?

A:
1.
2.
218
Concubinage and adultery only the

offended
spouse,
not
otherwise
incapacitated.
Seduction, abduction and acts of
lasciviousness:
Where the marriage was invalid or

contracted in bad faith in order to escape
criminal liability;
In private libel or the libelous
imputation of the commission of the
crimes
of
concubinage,
adultery,
seduction, abduction, rape or acts of
lasciviousness and in slander by deed; and
In multiple rape, in so far as the other
accused in the other acts of rape
committed by them are concerned.
Q: Can the offended party intervene in the

criminal action?
A:
GR: The offended party has the right to
intervene by counsel in the prosecution of the
criminal action where the civil action for the
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
recovery of civil liability is instituted in the
criminal action pursuant to Rule 111 (Sec. 16).
However, if the civil action for damages is filed
separately from the criminal action and is based
upon an independent civil action under Articles
32, 33, 34 or 2176 of the Civil Code, the right to
intervene is not lost because the subject of the
suit does not arise from the crime. The civil
action to recover civil liability arising from the
offense charged is not the one separately filed
(Philippine Rabbit v. People, 427 SCRA 456)
XPN: Where:
1. From the nature of the crime and the law
defining or punishing it, no civil liability
arises in favor of the offended party, e.g.
sedition, rebellion, treason (crimes
against national security);
2. The offended party waived the right to
civil indemnity; or
3. The offended party had already instituted
separate action.
Q: What is the effect of desistance made by the
offended party in private crimes?
A: It does not bar the People from prosecuting the
criminal action, but it operates as a waiver of the
right to pursue civil indemnity.
Note:
GR: Since it is the State who is the real offended
party in a criminal case, it is the prosecutor or the
Ombudsman as the case may be, or the Solicitor
General in cases before the CA or SC, who has the
personality and authority prosecute and file a
petition in behalf of the State.
XPN: An offended party in a criminal case has
sufficient personality to file a special civil action for
certiorari, even without the imprimatur of the
State. In so doing, the complainant should not
bring the action in the name of the People of the
Philippines. The action may be prosecuted in the
name of the said complainant. (Perez v. Hagonoy
Rural Bank, Inc., G.R. No. 126210, Mar. 9, 2000)
Q: What is the effect of death by the offended

party to the criminal action?
A: Death of the complainant:
1.
Will not be sufficient justification for the

dismissal of the information, if prior to
the filing of a case in court, a complaint
was already filed by the offended party
with the prosecutor (People v. Ilarde, G.R.
No. L-57288, Apr. 30, 1984)
2.
During the pendency of the case, will not

extinguish the criminal liability of the
accused whether total or partial (DonioTeves v. Vamenta, G.R. No. L-38308
3. CRIMINAL ACTIONS, WHEN ENJOINED

Q: When may criminal actions be enjoined?
A: Whenever a criminal case is prosecuted and the
State is the offended party, the case must always be
prosecuted under control and guidance of the State
through the government prosecutors.
Whenever there is acquittal or dismissal of the case
and the private complainant intends to question
such acquittal or dismissal, the same must likewise
be undertaken by the State through the Solicitor
General.
Only the Solicitor General may represent the People
of the Philippines on appeal. The private offended
party or complainant may question such acquittal
or dismissal or appeal therefrom only insofar as the
civil aspect is concerned, in the name of the
petitioner or appellant and not in the name of the
People of the Philippines (Metropolitan Bank and
Trust Co. vs. Veridiano II, 360 SCRA 359).
Note:The rule that the Solicitor General is the lawyer
of the People in appellate courts admits an exception,
namely, that which is provided for in RA 8249, which
states in part that in all cases elevated to the
Sandiganbayan and from the Sandiganbayan to the
Supreme Court, the Office of the Ombudsman,
through its special prosecutor, shall represent the
People of the Philippines, except in cases filed
pursuant to EO 1, 2, 14 and 14-A, issued in 1986.
4. CONTROL OF PROSECUTION
Q: Who prosecutes criminal actions?
A:
GR: The public prosecutor shall prosecute,
direct and control all criminal actions
commenced by a complaint or information.
XPN: The private prosecutor (private counsel)
may prosecute the case in the event and
provided that:
1. The public prosecutor has heavy work
schedule; or
2. There is lack of public prosecutors;
3. The private prosecutor must be
authorized in writing by the Chief
Prosecution Office or Regional State
Prosecutor; and

219

4.
Such will be subject to the courts

approval.
3.
Note: The institution of a criminal action depends

upon the sound discretion of the prosecutor. But once
the case is already filed in court, the same can no
longer be withdrawn or dismissed without the
tribunals approval (Herrera, Vol. IV, p. 79, 2007 ed.).
Should the prosecutor find it proper to conduct a
reinvestigation of the case at such stage, the
permission of the court must be secured. (Republic v.
Judge Sunga, G.R. No. 38634, June 20, 1988).
4.
Q: Are private prosecutors allowed to intervene in

the prosecution of the offenses?
A: Yes, however such intervention may be allowed
if the offended party:
1. Waives the civil action;
2. Reserves the right to institute it
properly; or
3. Institutes the civil action prior
to the criminal action.
Q: How long will the authority of the private
prosecutor last?
A: The authority of the private prosecutor shall
continue until the end of the trial unless the
authority is revoked or withdrawn (Sec. 5).
Q: What are the matters within the control and
supervision of the prosecutor?
A:
1. What case to file
2. Whom to prosecute
3. Manner of prosecution
4. Right to withdraw information before
arraignment even without notice and
hearing
Q: What are the matters within the control of the
Court after the case is filed?
A:
1.
2.
3.
4.
5.
Suspension of arraignment
Reinvestigation
Prosecution by the fiscal
Dismissal of the case
Downgrading of offense or dropping of
accused even before plea
Q: What are the limitations of control by the

Court?
A:
1.
2.
220
Prosecution is entitled to notice of

hearing
Court must await for petition for review
Prosecutions
stand
to
maintain
prosecution should be respected by the
court
The court must make its own
independent assessment of evidence in
granting or dismissing motion to dismiss.
Otherwise, the judgment is void.
Q: Who shall review the decisions of the

prosecutor?
A:
1.
2.
The Secretary of Justice who exercises

supervision and control over his actions
and who may sustain, modify or set aside
his resolution on the matter; or
In appropriate cases, by the courts when
he acts with grave abuse of discretion
amounting to lack of jurisdiction (Herrera,
Vol. IV, p. 75, 2007 ed.).
Q: May a prosecutor be compelled by mandamus

to file a complaint regarding a complaint filed
which he previously dismissed for lack of merit
after preliminary investigation?
A: No. This is because the determination of
probable cause is within the discretion of the
prosecutor. The remedy is an appeal to the
Secretary of Justice.
5. SUFFICIENCY OF COMPLAINT OR INFORMATION
Q: Define complaint.
A: Complaint is a sworn written statement charging
a person with an offense, subscribed by the
offended party, any peace officer, or other public
officer charged with the enforcement of the law
violated (Sec. 3).
Note: The complaint contemplated under Sec. 3 Rule
110 is different from the complaint filed with the
Prosecutors office. It refers to the one filed in court
for the commencement of the criminal prosecution.
Q: Define information.
A: Information is an accusation in writing charging a
person with an offense, subscribed by the
prosecutor and filed with the court (Sec. 4, Rule
110).
Q: Distinguish information from complaint.
Information
Accusation must be in
writing. It requires no
oath. This is because the
Complaint
It is a sworn written
statement.
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
prosecutor filing the
information is acting
under oath of his office
(Estudillo v. Baloma, 426
SCRA 83)
Subscribed
by
the
prosecutor (Sec. 4)
Note: In case of variance between the complaint filed

by the offended party and the information in crimes
against chastity, the complaint controls.
Subscribed by
a.
b.
c.
The
offended
party;
Any
peace
officer;
Other
public
officer charged
with
the
enforcement of
the law violated
(Sec. 3)
Note: However, both are filed in the name of the

People of the Philippines against all persons who
appear to be responsible for the offense involved (Sec.
2, Rule 110).
Q: Why should the complaint or information be in

the name of the People of the Philippines?
A: Criminal actions must be commenced in the
name of the People because a crime is an outrage
against the peace and security of the people at
large, so must its vindication be in the name of the
People. However, if the action is instituted in the
name of the offended party or of a particular city,
the defect is merely of form and may be cured at
any stage of the trial.
Q: What is the form of a valid complaint or
information?
A: The complaint or information shall be:
1. In writing;
2. In the name of the People of the
Philippines; and
3. Against all persons responsible for the
offense involved (Sec. 2).
Q: When is a complaint or information sufficient?
A: It is sufficient if it states the:
1. Name of the accused;
2. Designation of the offense given by the
statue;
3. Acts or omissions complained of as
constituting the offense;
4. Name of the offended party;
5. Approximate date of the commission of
the offense; and
6. Place where the offense was committed
(Sec. 6).
An Information not properly signed cannot be cured by

silence, acquiescence or even by express consent.
The non-inclusion of some of the names of the
eyewitnesses in the information does not preclude the
prosecution from presenting them during trial. (People
v. Dela Cruz, G.R. No. 128362, Jan. 16,2001)
Q: What is the rule in determining the name of the

accused?
A: Section 7 of Rule 110 establishes the following
rules in designating the name of the accused:
1.
2.
3.
The complaint or information must state

the name and surname of the accused or
any appellation or nickname by which he
has been or is known.
If his name cannot be ascertained, he
must be described under a fictitious
name. A description of the accused under
a fictitious name must be accompanied by
a statement that his true name is
unknown.
If later his true name is disclosed by him
of becomes known in some other
manner, his true name shall be inserted in
the complaint or information and in the
records of the case.
Q: is the mistake in the name of the accused

equivalent to a mistake in his identity?
A: No. A mistake in the name of the accused is not
equivalent, and does not necessarily amount to, a
mistake in the identity of the accused especially
when sufficient evidence is adduced to show that
the accused us pointed to as one of the
perpetrators of the crime (People v. Amodia GR No.
173791).
Q: What is the rule regarding the name of the
offended party?
A: The complaint or information must state the
name and surname of the persons against whom or
against whose property the offense was committed
or any appellation or nickname by which such
person has been or is known and if there is no
better way of identifying him, he must be described
under a fictitious name.
1.
In crimes against property, if the name of

the offended party is unknown, the
property must be described with such

221
2.
3.
particularity as to properly identify the

particular offense charged.
If the true name of the offended party is
thereafter disclosed or ascertained, the
court must cause such true name to be
inserted in the complaint or information
in record.
If the offended party is a juridical person,
it is sufficient to state its name, or any
name or designation by which it is known
or may be identified, without need of
averring that it is a juridical person (Sec.
12).
Q: Must the complaint or information state with

particularity the date of the commission of the
offense?
A:
GR: It is not required. It suffices that the
allegation approximates or be as near the actual
date when the offense was committed (Sec. 11).
XPNs:
1.
2.
If the date of the commission of the

offense constitutes an essential
element of the offense (e.g.
infanticide, abortion, bigamy) (Sec.
11).
When the dates are essential to the
defense
of
alibi
(People
v.
Valdesancho, G.R. No. 137051-52,
May 30, 2001).
Note: The remedy against an indictment that fails to

allege the time of commission of the offense with
sufficient definiteness is a motion for bill of particulars
under Sec. 10, Rule 116; the failure to move for
specification or quashal of the information on any of
the grounds provided for in the Rules deprives the
accused of the right to object to evidence which could
be lawfully introduced and admitted under an
information of more or less general terms but which
sufficiently charges the accused with a definite crime.
Besides, the exact date of the commission of the crime
is not an essential element of the crime (People v.
Elpedes, G.R. Nos. 137106-07, Jan. 31, 2001).
6. DESIGNATION OF OFFENSE
Q: What is the rule with regard to the designation
of the offense?
A: In designating the offense, the following rules
must be observed:
1. The designation of the offense requires,
as a rule, that the name given to the
offense by statute must be stated in the
complaint or information. If the statute
222
2.
3.
gives no designation to the offense, then

reference must instead be made to the
section or subsection punishing it (Sec. 8)
Included in the complete designation of
the offense is an averment of the acts or
omissions constituting the offense (Sec. 8)
The present rule also provides for a
mandatory requirement, that the
complaint or information must specify the
qualifying and aggravating circumstances
of the offense (Sec. 8)
Q: Must the qualifying

circumstances be stated?
and
aggravating
A: Yes, it is required by Sec. 8 of Rule 110 that the

complaint or information, in designating the
offense, shall specify the qualifying and aggravating
circumstances. A statement of the qualifying and
aggravating circumstances is considered as a part of
the cause of accusation. It must be stated in an
ordinary and concise language (Sec. 9)
Note: The qualifying and aggravating circumstances
must be specified in the information. They must not
only be proven but they must also be alleged,
otherwise, they should not be considered (Catiis v. CA,
G.R. 153979, February 9, 2006).
Q: Do allegations prevail over designation of the

offense in the information?
A: Allegations prevail over designation of the
offense in the information. It is not the designation
of the offense in the complaint or information that
is controlling (People vs. Samillano, 56 SCRA 573);
the facts alleged therein and not its title determine
the nature of the crime (People vs. Magdowa, 73
Phil. 512).
Q: May the accused be convicted of a crime more
serious than that named in the title of the
information?
A: The accused may be convicted of a crime more
serious than that named in the title or preliminary
part if such crime is covered by the facts alleged in
the body of the information and its commission is
established by evidence (Buhat vs. Court of Appeals,
265 SCRA 701).
Note: Limitation on the rule that an accused may be
convicted of a crime which is more serious than that
named in the title so long as the facts alleged the more
serious offense.
An accused could not be convicted under one act
when he is charged with a violation of another if the
change from one statute to the other involves:
1. A change in the theory of the trial;
2. Requires of the defendant a different
defense; or
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
3.
7. CAUSE OF ACCUSATION
Note: Where what is alleged in the information is a

complex crime and the evidence fails to support the
charge as to one of the component offenses, the
defendant can be convicted of the offense proven.
Q: What is the purpose of designating the cause of

accusation?
Q: What must be alleged if the crime is

committed in relation to his office?
A:
A: Mere allegation in the information that the

offense was committed by the accused public
officer in relation to his office is not sufficient. The
phrase is merely a conclusion of law, not a factual
averment that would show close intimacy between
the offense charged and the discharge of the
accuseds official duties. What is controlling is the
specific actual allegations in the information
(Lacson v. Executive Secretary, G.R. No. 128006,
Jan. 20, 1999).
1.
2.
3.
Surprises the accused in any way (U.S. vs.

Panlilio, 28 Phil. 603)
To enable the court to pronounce proper

judgment;
To furnish the accused with such a
description of the charge as to enable him
to make a defense;
As a protection against further
prosecution for the same cause
Q: What is the rule with respect to the cause of

accusation?
A: In informing the accused of the cause of
accusation against him, it is not necessary to
employ the words used in the statute alleged to
have been violated. It is sufficient for the complaint
or information to use ordinary and concise
language sufficient to enable a person of common
understanding to know the following:
1.
2.
3.
The offense being charged

The acts or omissions complained of as
constituting the offense; and
The
qualifying
and
aggravating
circumstances (Sec. 9, Rule 110)
Q: When is an offense deemed committed in

relation to public office?
A: An offense is deemed committed in relation to
public office when the office is a constituent
element of the offense. The test is whether the
offense cannot exist without the office (Crisostomo
v. Sandiganbayan, G.R. No. 152398, Apr. 14, 2005).
Q: What is the rule regarding the allegation as to
the place of the commission of the offense?
A:
GR: The complaint or information is sufficient if
it appears from the allegation that the offense
was committed or some of its essential
ingredients occurred some place, within the
territorial jurisdiction of the court.
Q: What is the rule regarding negative averments?

A:
GR: Where the statute alleged to have been
violated prohibits generally acts therein defined
and is intended to apply to all persons
indiscriminately,
but
prescribes
certain
limitation or exceptions from its violation, the
complaint or information is sufficient if it alleges
facts which the offender did as constituting a
violation of law, without explicitly negating the
exception, as the exception is a matter of right
which the accused has to prove.
XPN: When the place of commission is an

essential element of the offense, the place of
the commission must be alleged with
particularity (e.g. trespass to dwelling,
destructive arson, robbery in an inhabited
house) (Sec. 10, Rule 110).
8. DUPLICITY OF OFFENSES; EXCEPTION
Q: What does duplicity of offenses means?
XPN: Where the statute alleged to have been

violated applies only to specific classes of
persons and special conditions and the
exemptions from its violations are incorporated
in the language defining the crime that the
ingredients of the offense cannot be accurately
and clearly set forth if the exemption is omitted,
then the indictment must show that the
accused does not fall within the exemptions
(Herrera, Vol. IV, p. 130, 2007 ed.).
A: Duplicity of Offense in an information or

complaint means the joinder of two or more
SEPARATE and DISTINCT or DIFFERENT offenses in
one and the same information or complaint.
Q: What is the duplicity rule?
A:
GR: A complaint or information must charge
only one offense.

223
XPNs:
1.
2.
3.
4.
5.
Q: What constitutes formal amendment?

Complex crimes;
Special complex crimes;
Continuous crimes or delicto
continuado;
Crimes susceptible of being
committed in various modes;
Crimes of which another
offenses is an ingredient
Q: What is the remedy in case of duplicity of

offense?
A: Where:
1. it neither affects nor alters the nature of
the offense charged; or
2. the charge does not deprive the accused
of a fair opportunity to present his
defense; or
3. It does not involve a change in the basic
theory of the prosecution.
Q: When is there an amendment in substance?
A: Should there be duplicity of offense in the

information unless a single punishment for various
offenses is prescribed, the accused must move for
the quashal of the same before arraignment (Sec. 3,
Rule 117). Otherwise, he is deemed to have waived
the objection and may be found guilty of as many
offenses as those charged and proved during the
trial (Sec. 3, Rule 120).
A: There is an amendment in substance where it

covers matters involving the recital of facts
constituting the offense charged and determinative
of the jurisdiction of the court. (Almeda v. Villaluz,
GR No. L- 31665, August 6, 1975)
RATIO: The State should not heap upon the

defendant two or more charges which might
confuse him in his defense.
A:
1. BEFORE THE PLEA
GR: any amendment formal or substantial, before
the accused enters his plea may be done with leave
of court
XPN: any amendment before plea which
downgrades the nature of the offense charged in or
excludes any accused form the complaint or
information can be made only:
a. Upon motion of the prosecutor;
b. With notice to the offended party; and
c. With LEAVE of COURT
Q: Is Splitting of case allowed?

A: NO. A defendant should not be harassed with
various prosecution based upon the same act by
splitting the same into various charges, all
emanating from the same law violated when the
prosecution could easily and well embody them in a
single information (People v. Silva, 4 SCRA 95)
Q: What is the Principle of Absorption?
A: Acts committed in furtherance of rebellion
though crimes in themselves are deemed absorbed
in the single crime of rebellion. The test is whether
or not the act was done in furtherance of a political
end. The political motive of the act should be
conclusively demonstrated (Enrile v. Salazar GR NO
92163, June 5, 1990)
9. AMENDMENT OR SUBSTITUTION OF
COMPLAINT OR INFORMATION
Note: Section 14 applies only to original case and not
to appealed case.
Q: What may be amended?

A: Only valid information may be amended. An
information filed before the effectivity of the law
punishing the offense may not be amended after
the law had come into effect (Herrera, Vol. IV, p.
162, 2007 ed.).
224
Q: What are the kinds of amendment?
2. AFTER THE PLEA- covers only formal

amendments provided:
a. Leave of court is obtained;
b. Such amendment is not prejudicial to
the rights of the accused.
EXCEPT when a fact supervenes which
changes the nature of the crime charged
in the information or upgrades it to a
higher crime, in which case, there is a
need for another arraignment of the
accused under the amended information.
Q: What steps should be taken by the prosecution
so that amended information which downgrades
the nature of the offense may be validly made?
Why?
A: The prosecution should file a motion for leave of
court with notice to the offended party. This is for
the protection of the interest of the offended party
and to prevent possible abuse by the prosecution.
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
Q: What is the test in determining whether the
right of the accused is prejudiced by the
amendment?
A: It is when the defense of the accused under the
complaint or information as it originally stood,
would no longer be available after the amendment
is made, and when any evidence the accused might
have, would be inapplicable to the complaint or
information as amended (People v. Montenegro
G.R. No. 45772, Mar. 25, 1988).
Q: Can the prosecutor amend the information
which changes the nature of the crime after the
arraignment?
A:
GR: The prosecutor can no longer amend the
information after arraignment as it would
prejudice the substantial rights of the accused.
XPN: When a fact supervenes which changes the
nature of the crime charged in the information
or upgrades it to a higher crime, the prosecutor,
with leave of court, may amend the information
to allege such supervening fact and upgrade the
crime charged to the higher crime brought
about by such supervening fact.
Amendment before the

plea is entered can be
effected without leave of
court.
An amendment as to form
will not require another
preliminary investigation
and retaking of plea of the
accused.
An amended information
refers to the same offense
charged in the original
information or to an
offense which necessarily
includes or is necessarily
included in the original
charge, hence substantial
amendments
to
the
information after the plea
has been taken cannot be
made over the objection
of the accused, for if the
original
would
be
withdrawn, the accused
could
invoke
double
jeopardy.
1.
A: If it appears any time before judgment that a

mistake has been made in charging the proper
offense, the court shall dismiss the original
complaint or information upon the filing of a new
one charging the proper offense, provided the
accused shall not be placed in double jeopardy (Sec.
14, Rule 110).
2.
3.
Q: What are the limitations to the rule on
substitution?
A:
3.
No judgment has yet been rendered;

The accused cannot be convicted of the
offense charged or of any other offense
necessarily included therein; and
The accused would not be placed in
double jeopardy (Herrera, Vol. IV, p. 176,
2007 ed.).
Q: Distinguish amendment from substitution

A:
Amendment
May involve either formal
or substantial changes
Substitution
Involves
substantial
change from the original
charge
Requires or presupposes
that
the
new
information involves a
different offense which
does not include or is
not necessarily included
in the original charge;
hence the accused
cannot claim double
jeopardy.
VARIANCE BETWEEN INDICTMENT AND PROOF

(Situations Contemplated)
Q: When is substitution proper?
1.
2.
It must be with leave of

court as the original
information has to be
dismissed.
Substitution of the
information
entails
another
preliminary
investigation and plea to
the new information.
When the offense proved is less serious

than, and is necessarily included in, the
offense charged, in which case the
defendant shall be convicted of the
offense proved.
When the offense proved is more serious
than and includes the offense charged, in
which case the defendant shall be
convicted of the offense charged.
When the offense proved is neither
included in, nor does it include, the
offense charged and is different
therefrom, in which case the court should
dismiss the action and order the filing of a
new information charging the proper
offense.
Note: The third situation set forth above is substitution

of information under Section 14, Rule 110.
10. VENUE OF CRIMINAL ACTIONS

Q: Where should a criminal action be instituted?
A:
GR: Subject to existing laws, criminal action
shall be instituted and tried in the court of the
municipality or territory where the offense was
committed or any of its essential ingredients
occurred (Sec. 15, Rule 110).

225

XPNs:
1. An offense was committed on a railroad
train, in an aircraft, or in any other public
or private vehicle in the course of trip
the criminal action may be instituted and
tried in the court of any municipality or
territory where such train, aircraft or
other vehicle passed during such trip,
including the place of departure and
arrival;
2. Where the offense is committed on board
a vessel on its voyage the criminal
action may be instituted and tried in the
proper court of the first port of entry or
of any municipality or territory through
which the vessel passed during such
voyage subject to the generally accepted
principles of international law;
3. Felonies under Art. 2 of the RPC shall be
cognizable by the proper court where the
criminal action was first filed (pars. b, c
and d, Sec. 15);
4. Continuous or transitory crimes such
offenses may be tried by the court of any
jurisdiction wherever the offender may be
found, but the complainant should allege
that the offense was committed within
the jurisdiction of the court (Herrera, Vol.
IV, p. 184, 2007 ed.).
5. Piracy the venue of piracy, unlike all
other crimes, has no territorial limits. It is
triable anywhere;
6. Libel the action may be instituted at the
election of the offended or suing party in
the municipality or city where:
a. the libellous article is printed and
first published;
b. If one of the offended parties is a
private individual, where said private
individual actually resides at the time
of the commission of the offense;
c. If the offended party is a public
official, where the latter holds
office at the time of the
commission of the offense.
7. B.P. 22 cases the criminal action shall be
filed at the place where the check was
dishonored or issued. In case of crossed
check, the place of the depositary or the
collecting bank.
11. INTERVENTION OF OFFENDED PARTY
Q: What is the rule on intervention of the
offended party in the criminal action?
A:
GR: Offended party has the right to intervene by
counsel in the prosecution of the criminal action,
226
where the civil action for the recovery of civil

liability is instituted in the criminal action pursuant
to Rule 111.
XPNs:
1.
2.
3.
4.
Where from the nature of the crime and

the law defining and punishing it, NO civil
liability arises in favor of the offended
party; and
Where the offended party has waived his
right to civil indemnity OR has expressly
reserved his right to institute a civil action
OR has already instituted said action.
Where the offended party has expressly
reserved his right to institute a separate
civil action; OR
Where the offended party has already
instituted said action
Q: What is the remedy of the offended party in

case of dismissal?
A: Where the prosecutor sought the dismissal of
the criminal action or refused to institute the
corresponding action or to proceed with the
prosecution of the case, the offended party may
C. PROSECUTION OF CIVIL ACTION
1. RULE ON IMPLIED INSTITUTION OF CIVIL ACTION
WITH CRIMINAL ACTION
Q: Does the institution of a criminal action include
the civil action as well?
A:
GR: When a criminal action is instituted, the
civil action for the recovery of civil liability
arising from the offense shall be deemed
instituted with the criminal action (Section 1a,
Rule 111)
XPNs: When the offended party:
1. WAIVES the civil action;
2. RESERVES his right to institute a separate
civil action; or
3. INSTITUTES A CIVIL ACTION PRIOR to the
criminal action (Sec. 1, Rule 111).
PURPOSE: To prevent double recovery (Yakult
Philippines v. CA, GR No. 91856 October 5, 1990)
Q: Whatcivil actions are not deemed impliedly
instituted in the criminal action?
A: Those which are:
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
1.
2.
3.
NOTE:
1.
2.
3.
Arising from breach of contract (Herrera,

Vol. IV, p. 217, 2007 ed.);
Independent civil actions or those based
on Arts. 31, 32, and 33 of the New Civil
Code; and
Based on Art. 2176 of the New Civil Code
or quasi-delict(Herrera, Vol. IV, p. 216,
2007 ed.).
The failure to reserve the right to file the

enumerated actions does not amount to a
waiver to institute a separate civil action
The appearance of the private prosecutor
(private counsel) does not amount to a
waiver of the civil action (Herrera, Vol. IV, p.
226, 2007 ed.).
They shall proceed independently of the
criminal action and require only a
preponderance of evidence (Secs. 1 and 3)
Q: When should the reservation to file a separate

civil action be made?
A:
1.
2.
Before the prosecution starts to present

its evidence; and
Under circumstances affording the
offended party a reasonable opportunity
to make such reservation (Sec. 1 Rule
111).
Q: Should the reservation to file a separate action

be express?
A: No, jurisprudence instructs that the reservation
may not be necessarily express but may be implied,
which may be inferred not only from the acts of the
offended party but also from acts other than those
of the latter (Herrera, Vol. IV, p. 228, 2007 ed.).
Note: Failure of the court to pronounce judgment as to
the civil liability amounts to the reservation of the right
to a separate civil action (Herrera, Vol. IV, p. 228, 2007
ed.).
Q: What is the effect of reserving the right to file a

separate civil action?
A: The prescriptive period of the civil action that
was reserved shall be tolled (Sec. 2 Rule 111).
Q: What are the instances wherein the reservation
to file a separate civil action shall not be allowed?
A:
1.
Criminal action for violation of B.P. 22

[Sec. 1, Rule 111 (b)];
2.
3.
A claim arising from an offense which is

cognizable by the Sandiganbayan(Herrera,
Vol. IV, p. 231, 2007 ed.); and
Tax cases.
Q: Can the offended party in a criminal case appeal

the civil aspect despite the acquittal of the
accused?
A:In case the judgment is of acquittal, it shall state
whether the evidence of the prosecution absolutely
failed to prove the guilt of the accused or merely
failed to prove his guilt beyond reasonable doubt.
In either case, the judgment shall determine if the
act or omission from which the civil liability might
arise did not exist. (Section 2, Rule 120)
Q: May the offended party compromise the civil
aspect of a crime?
A: Yes, provided it must be entered before or
during the litigation, and not after final judgment
2. WHEN CIVIL ACTION MAY PROCEED
INDEPENDENTLY
Q: When may civil action proceed independently
of the criminal action?
A: The institution of an independent civil action
based on Arts. 32 33, 34 and 2176 of the Civil Code
against the offender may proceed independently of
the criminal case at the same time without the
suspension of either proceeding (Sec. 3 Rule 111).
Note: It requires only a preponderance of evidence
and the offended party is entitled only to the bigger
award when the awards in the cases vary.
Recovery of civil liability under Arts. 32, 33, 34 and
2176 of the Civil Code may be prosecuted separately
even without reservation (DMPI Employees Credit
Cooperative v. Velez, G.R. No. 129282, Nov. 29, 2001).
Q: Is the consolidation of civil action and criminal

action arising from the same offense allowed?
A: Yes. Before judgment on the merit is rendered in
the civil action, the same may, upon motion of the
offended party, be consolidated with the criminal
action in the court trying the criminal action (Sec.
2Rule 111).
Note: A separate civil action for collection of sum of
money cannot be consolidated with cases pending
before the Sandiganbayan for the latter has no
jurisdiction over collection cases (Herrera, Vol. IV, p.
231, 2007 ed.).

227

Q: What is the effect of the consolidation of the
civil and criminal actions with regard to the
evidence in each case?
A: In cases where the consolidation is given due
course, the evidence presented and admitted in the
civil case shall be deemed automatically reproduced
in the criminal action without prejudice to
admission of additional evidence and right to cross
examination (Sec. 2).
3. WHEN SEPARATE CIVIL ACTION IS SUSPENDED
Q: When is a separate civil action suspended?
3.
4. EFFECT OF DEATH OF THE ACCUSED OR CONVICT

ON CIVIL ACTION
Q: How does the death of the accused affect the
civil aspect of the case?
A: If the accused died:
1. After arraignment and during the
pendency of the criminal action
GR: The civil liability of the accused based
on the crime is extinguished.
A:
1.
2.
XPNs:
1.
2.
3.
4.
After the filing of the criminal action, the

civil action which has been reserved
cannot be instituted until final judgment
has been rendered in the criminal action
(Sec. 2).;
If the civil action is instituted before the
filing of the criminal action and the
criminal
action
is
subsequently
commenced, the pending civil action shall
be suspended until final judgment in the
criminal action has been rendered.
In cases of independent civil actions

based on Arts. 32, 33, 34 and 2176 of the
Civil Code;
In cases where the civil action presents a
prejudicial question; and
In cases where the civil action is
consolidated with the criminal action; and
Where the civil action is not one intended
to enforce the civil liability arising from
the offense.
Q: Does the extinction of the penal action carry

with it the extinction of the civil action?
A:
GR: The extinction of the penal action does not
extinguish the civil action.
XPN: When there is a finding in a final judgment
in the criminal action that the act or omission
from which the civil liability might arise did not
exist (Sec. 2).
Note: The civil action that is extinguished refers
exclusively to civil liability arising from the crime and
does not include civil actions:
1.
2.
228
Based on quasi-delict;
Based on Arts. 32, 33 and 34 of the NCC
(independent civil actions); or
Civil obligation not based on the criminal

offense (Herrera, Vol. IV, p. 249, 2007 ed.).
XPN:
a. Independent civil action based on
Arts. 32 33, 34 and 2176 of the Civil
Code; and
b. Civil liability predicated on other
sources of obligations, i.e. law,
contract, and quasi-contract, which
is subsequently instituted;
2.
Before arraignment the offended party

may file the civil action against the estate
of the deceased (Sec. 4).
3.
Pending appeal
a. Civil liability arising from the crime is
extinguished
b. Civil liability predicated from another
source survives i.e. civil liability
arising from law, contracts, quasicontract and quasi-delict.
Note:
1.
2.
In nos. 1 and 3(b), the civil action may be

continued against the estate or legal
representative of the accused after proper
substitution, as the case may be (Sec. 4).
Where the civil liability survives, it may be
pursued by the filing of a separate civil
action unless otherwise waived, reserved or
instituted prior to the institution of the
criminal action (Herrera, Vol. IV, p. 257,
2007 ed.).
Q: What is the effect of the death of the accused

after final appeal?
A: Pecuniary liabilities of the accused are not
accused are not extinguished. Claims shall be filed
against the estate of the accused (Rule 86).
NOTE: However, the independent civil action instituted
under Section 3 of this Rule or which thereafter is
instituted to enforce liability arising from other sources
of obligation may be continued against the estate or
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
legal representative if the accused after proper
substitution, or against said estate, as the case may be.
same criminal action at any time before the

prosecution rests.
5. PREJUDICIAL QUESTION
Q: Where should the petition for suspension by

reason of prejudicial question be filed?
Q: What is a prejudicial question?

A:
A: Prejudicial question is one which arises in a case,
the resolution of which is a logical antecedent of
the issue involved therein and the cognizance of
which pertains to another tribunal
Q: What are the elements of a prejudicial
question?
1.
2.
Office of the prosecutor; or

Court where the criminal action has been
filed for trial at any time before the
prosecution rests (Sec. 6).
Q: Give an example of a prejudicial question.

A:
A:
1.
2.
3.
a.
The civil action must be instituted prior to

the criminal action;
The civil action involves an issue similar or
intimately related to the issue raised in
the subsequent criminal action; and
The resolution of such issue determines
whether or not the criminal action may
proceed (Sec. 7).
Note: For the principle of prejudicial question to apply,

it is essential that there be two cases involved,
invariably a civil case and a criminal case. If the two
cases are both civil or if they are both criminal, the
principle does not apply.
The law limits a prejudicial question to a previously
instituted civil action not to a subsequent one.
Q: When may prejudicial question be raised?

A:
1. The prejudicial question may be raised during the
preliminary investigation of the offense or in court
before the prosecution rests its case.
b.
Note: For the principle of prejudicial question to apply,

it is essential that there be two cases involved
invariably a civil case and a criminal case. If the two
cases are both civil or if they are both criminal, the
principle finds no application.
The law limits a prejudicial question to a PREVIOUSLY
INSTITUTED civil action not to a subsequent one.
Q: Give examples which are not considered

prejudicial questions.
A:
1.
2. The suspension of the criminal case due to a

prejudicial question is only a procedural matter,
and is subject to a waiver by virtue of prior acts of
the accused.
3. There is no prejudicial question where one case is
administrative and the other is civil.
Note: A prejudicial question is based on a fact distinct
and separate from the crime but so intimately
connected with it that it determines the guilt or
innocence of the accused.
2.
3.
Q: When do you plead a prejudicial question?

A: When the criminal action has been filed in court
for trial, the petition to suspend shall be filed in the
A question of ownership in a pending civil

case is a prejudicial question justifying the
suspension of the criminal case for
violation of the Anti-Squatting Law (Apa v.
Fernandez, G.R. No. 112318, Mar. 20,
1995).
Civil action involving title to property is
prejudicial to criminal action for damages
to said property (Herrera, Vol. IV, p. 265,
2007 ed.).
4.
Where the outcome of the civil case is not

determinative of the guilt or innocence of
the respondent in the criminal case
(People v. Delizo, G.R. No. 141624, Aug.
17, 2004)e.g. award of damages in favor
of the accused;
A civil action instituted to resolve whether
the designation of certain persons where
in accordance with law is not a prejudicial
question in a criminal case for violation of
the
anti-graft
law
(Tuanda
v.
Sandiganbayan, G.R. No. 110544, Oct. 17,
1995); or
A civil action for replevin is not prejudicial
to theft (Ramirez v. Jimenez, 1 CA rep.
143) (Herrera, Vol. IV, p. 270, 2007 ed.).
An action for declaration of nullity of a
second marriage is not a prejudicial
question to the criminal prosecution of

229

bigamy (Beltran v. People, G.R. No.
137567, June 26, 2000).
civil action is made (Roa v. Dela Cruz, G.R. No. L13134, Feb. 13, 1960).
Note: The plain reading of the of law (Art.

349, RPC) would indicate that the provision
penalizes the mere act of contracting a
second or subsequent marriage during the
subsistence of a valid marriage (Herrera,
Vol. IV, p. 269, 2007 ed.).
Note: In an appeal of a criminal case the appellate

court may impose additional damages or increase or
decrease the amount of damages upon the accusedappellant. HOWEVER, additional penalties CANNOT be
imposed upon a co- accused who DID NOT APPEAL,
BUT modifications of the judgment BENEFICIAL to him
are considered in his favor.
6. RULE ON FILING FEES IN CIVIL ACTION DEEMED

INSTITUTED WITH THE CRIMINAL ACTION
Q: What are the rules regarding filing fees of civil
action deemed instituted with the criminal action?
Actual damages
GR: No filing fee is required.
A: The offender is still liable and the offended party

has the right to prove and claim for them in the
criminal case, unless a waiver or reservation of the
civil action is made (Roa v. Dela Cruz, G.R. No. L13134, Feb. 13, 1960).
XPN: B.P. 22 cases, wherein the amount

of the filing fees shall be equivalent to the
amount of the check involved.
Q: May the accused file counterclaims, crossclaims or third party complaints in a criminal
proceeding?
Liquidated, moral, nominal, temperate or

exemplary damages The filing fee shall
be based on the amount alleged in the
complaint or information (Sec. 1).
A: No. Counterclaims, cross claims, third party

complaints are no longer allowed in a criminal
proceeding. Any claim which could have been the
subject thereof may be litigated in a separate civil
action.
A:
1.
2.
Q: What is the effect of the failure to plead

damages in the complaint or information?
Note: If the amount of the damages claimed is not

specifically alleged in the complaint or information,
but the court subsequently awards such, the filing fees
based on the amount awarded shall constitute a first
lien on the judgment (Sec. 1Rule 111).
Q: What is the extent of damages that may be

awarded in civil liability arising from a crime?
Reasons:
1. The counterclaim of the accused will
unnecessarily complicate and confuse the criminal
proceedings;
2. The trial court should confine itself to the
criminal aspect and the possible civil liability of the
accused arising out of the crime.
A:
1.
2.
3.
4.
Actual damages e.g. loss of earning

capacity;
Moral damages;
Exemplary damages (Herrera, Vol. IV, p.
223, 2007 ed.);
Life expectancy (People v. Villanueva, G.R.
No. 96469, Oct. 21, 1992).
Note: Attorneys fees may be awarded if:

1.
2.
Exemplary damages is awarded; or

Civil action is separately instituted from the
criminal action (People v. Teehankee, Jr.,
G.R. Nos. 111206-08, Oct. 6, 1995).
Q: What is the effect of the failure to plead

damages in the complaint or information?
A: The offender is still liable and the offended party
has the right to prove and claim for them in the
criminal case, unless a waiver or reservation of the
230
D. PRELIMINARY INVESTIGATION
Note: This rule has been partially amended by AM 058-26. The amendments took effect on October 3, 2005.
The conduct of preliminary investigation has been
removed from judges of the first level courts.
Q: What is the procedure for conducting

preliminary investigation?
A:
Filing of the complaint accompanied by the
affidavits and supporting documents
Within 10 days after the filing, the

investigating officer shall either dismiss or
issue a subpoena
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
If a subpoena is issued, respondent shall

submit a counter- affidavit and other
supporting documents within 10 days from
receipt thereof
From the filing of the complaint, the

investigating officer has ten (10) days
within which to decide on which of the
following options to take:
a.
Clarificatory hearing (optional). It shall be held

within 10 days from the submission of counter
affidavits or from the expiration of the period
of their submission.
b.
Resolution of the investigating prosecutor

(Section 4 and 5)
1.
Filing of the complaint

A complaint shall be filed before the
investigating officer. This complaint shall
be accompanied by
a.
b.
c.
The
affidavits
of
the
complainant;
The affidavits of his witnesses;
and
Other supporting documents
that would establish probable
cause (Sec. 3(a) Rule 112).
Note: It shall contain the address of the

respondent.
The affidavits that shall accompany the

complaint shall be subscribed and sworn
to before:
a.
b.
c.
Any prosecutor;
Before any government official
authorized to administer oaths;
or
In the absence or unavailability
of the abovementioned, the
affidavits may be subscribed
and sworn to before a notary
public.
Note: The officer or notary public before

whom the affidavits were subscribed and
sworn to must certify that he personally
examined the affiants and that he is satisfied
that they voluntarily executed and
understood their affidavits (Sec. 3(a)Rule
112).
2.
3.
To dismiss the complaint if he

finds no ground to conduct the
investigation; or
To issue a subpoena in case he
finds the need to continue with
the investigation, in which case
the
subpoena
shall
be
accompanied
with
the
complaint and its supporting
affidavits and documents (Sec.
3(b))
Filing of counter-affidavit
The respondent who received the
subpoena, the complaint, affidavits and
other supporting documents, is not
allowed to file a motion to dismiss.
Instead, within 10 days from receipt of
subpoena, he is required to submit his
counter-affidavit, the affidavits of his
witnesses and the supporting documents
relied upon for his defense (Sec. 3(c)Rule
112)
Note: The respondent is not allowed to file a
motion to dismiss. Instead, he must file a
counter-affidavit.
Despite the subpoena, if the respondent

does not submit his counter-affidavit
within the ten-day period granted him,
the investigating officer shall resolve the
complaint based on the evidence
presented by the complainant. The same
rule shall apply in case the respondent
cannot be subpoenaed (Sec. 3(d) Rule
112).
GR: In preliminary investigation, a motion
to dismiss is not an accepted pleading for
it merely alleges the innocence of the
respondent
without
rebutting
or
repudiating the evidence of the
complainant.
XPN: When it contains countervailing
evidence or defenses and evidence which
rebuts or repudiates the charges; in which
case it will be treated as a counteraffidavit.
Dismissal or issuance of subpoena

231

Note: If one files a motion to dismiss and he
only asserts that the case should be
dismissed, then the motion to dismiss is a
mere scrap of paper. If the respondent does
not later on submit a counter-affidavit, it
will constitute a waiver on his part to file a
counter-affidavit.
4.
b.
c.
d.
Clarificatory hearing, if necessary

e.
Within ten days from the submission of

the counter-affidavit, other affidavits and
documents filed by the respondent, a
hearing may be set by the investigating
officer, only if there are facts and issues
to be clarified either from a party or a
witness. The parties do not have the right
to examine or cross-examine each other
or the witnesses. If they have questions to
ask, they shall submit the questions to the
investigating officer who shall ask the
questions (Sec. 3(e))
Note: Parties are not allowed to cross
examine the witnesses during the
clarificatory proceeding, only the prosecutor
can ask questions from any of the witnesses
during the clarificatory proceeding to clarify
some gray areas in the affidavit or counter
affidavit. However, the parties and their
lawyers are not precluded from submitting
questions to the prosecutor who may ask
such questions at his discretion. (Paderanga
v. Drilon, G.R. No. 96080, Apr. 19, 1991).
5.
Resolution of the investigating officer

Within ten days from the termination of
the investigation, the investigating
prosecutor shall determine whether or
not there is sufficient ground to hold the
respondent for trial (Sec. 3(f))
If the investigating officer finds cause to
hold the respondent for trial, he shall
prepare the resolution and information.
Otherwise, he shall recommend the
dismissal of the complaint (Sec. 4)
The information shall contain a
certification by the investigating officer
under oath in which he shall certify the
following:
a.
232
That he, or as shown by the

record, an authorized officer,
has personally examined the
complainant and his witnesses;
That there is reasonable ground

to believe that a crime has been
committed;
That the accused is probably
guilty thereof
That the accused was informed
of the complaint and of the
evidence submitted against
him; and
That he was given an
opportunity
to
submit
controverting evidence (Sec. 4
Rule 112)
Within five days from his resolution, he

shall forward the record of the case to the
provincial or city prosecutor or chief state
prosecutor, or to the Ombudsman or his
deputy in cases of offenses cognizable by
the Sandiganbayan in the exercise of its
original jurisdiction. They shall act on the
resolution within ten days from their
receipt thereof and shall immediately
inform the parties of such action (Sec.
4Rule 112).
Q: What is the difference between preliminary
investigation conducted by the prosecutor and one
conducted by the judge?
A: The prosecutor is not bound by the designation
of the offense in the complaint. After preliminary
investigation, he may file any case as warranted by
the facts.
The judge cannot change the charge in the
complaint but must make a finding on whether or
not the crime charged has been committed.
Q: Who are the officers authorized to conduct
A:
1.
2.
3.
Provincial or city prosecutors and their

assistants:
National and Regional State Prosecutors;
and
Other officers as may be authorized by
law (COMELEC, PCGG, Ombudsman)
Note: Their authority to conduct preliminary

investigation shall include all crimes cognizable by the
proper court in their respective territorial jurisdictions
(Sec. 2, as amended by AM 05-8-26-SC, Oct. 3, 2005).
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
Q: What is the extent of the authority of the
Ombudsman in the conduct of preliminary
investigation?
A: The power to investigate and to prosecute
granted to the Ombudsman is plenary and
unqualified. It pertains to any act or omission of any
public officer or employee when such act or
omission appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction
between cases cognizable by the Sandiganbayan
and those cognizable by the regular courts (Office
of the Ombudsman v. Breva, G.R. No. 145938, Feb.
10, 2006).
Note: This however does not include administrative
cases of court personnel because the 1987
Constitution vests in the SC administrative supervision
over all courts and court personnel.
Q: May prosecutors conduct preliminary

investigation of offenses falling within the original
jurisdiction of the Sandiganbayan?
A: No, the Ombudsman has primary authority to
investigate and exclusive authority to file and
prosecute Sandiganbayan cases (Ledesma v. CA,
G.R. 161629, July 29, 2005).
The Ombudsman is authorized to take over at any
stage, from any investigatory agency of the
government, the investigation of such cases (Sec.
15, R.A. 6770).
Note: A prosecutor however has shared authority to
investigate and prosecute Ombudsman cases not
cognizable by the Sandiganbayan(Herrera, Vol. IV, p.
287, 2007 ed.)
Q: Who may conduct preliminary investigation of

election cases?
A: The Commission on Elections is vested the power
to conduct preliminary investigations; it may
deputize other prosecuting arms of the government
to conduct preliminary investigation and prosecute
offenses (People v. Basilla, G.R. No. 83938-40, Nov.
6, 1989).
1. NATURE OF THE RIGHT TO PRELIMINARY
INVESTIGATION
Note: Rule 112 pertains to preliminary investigation
conducted by the prosecutor
Q: What is preliminary investigation?

A: It is an inquiry or proceeding to determine
whether there is sufficient ground to engender a
well-founded belief that a crime has been
committed and the respondent is probably guilty

thereof, and should be held for trial (Sec. 1).
Q: What is the nature of the right of preliminary
investigation?
A: It is merely inquisitorial and a means of
determining the persons who may be reasonably
charged with a crime. It is not a trial of the case on
the merits (Herrera, Vol. IV, p. 273, 2007 ed.)
Note: It does not place the person against whom it is
taken in jeopardy.
Q: What is the difference between the preliminary

investigation conducted by the prosecutor and the
preliminary investigation conducted by the judge?
A:
The preliminary investigation conducted by the
prosecutor is EXECUTIVE in nature, it is for the
purpose of determining whether or not there exist
sufficient ground for the filing of information;
The preliminary investigation conducted by the
judge which is properly called PRELIMINARY
EXAMINATION is for the determination of probable
cause for the issuance of warrant of arrest. (P/Supt.
Cruz v. Judge Areola, A.M. No. RTJ-01-1642, March
6, 2002)
Q: Does the lack of preliminary investigation affect
the courts jurisdiction?
A: Absence of preliminary investigation does not
affect the jurisdiction of the court but merely the
regularity of the proceedings (People v. De Asis,
G.R. No. 105581, Dec. 7, 1993).
Q: Is preliminary investigation considered part of
the trial?
A: No, it is not part of the trial of the criminal action
in court. Nor is its record part of the record of the
case in the RTC. The dismissal of the case by the
investigator will not bar the filing of another
complaint for the same offense, but if re-filed, the
accused is entitled to another preliminary
investigation (US v. Marfori,G.R. No. 10905, Dec. 9,
1916).
Q: Can the right to preliminary investigation be
waived?
A: Yes, by failure to invoke the right prior to or at
least at the time of plea (People v. Gomez, G.R. No.
L-29590, Sept. 30, 1982).

233

Q: What are the instances wherein the right to
preliminary investigation is deemed waived?
2.
A: It shall be deemed waived by:

1.
2.
3.
express waiver or by silence (Herrera, Vol.

IV, p. 278, 2007 ed.);
failure to invoke it during arraignment
(People v. De Asis, G.R. No. 105581, Dec.
7, 1993); and
consenting to be arraigned and entering a
plea of not guilty without invoking the
right to preliminary investigation (People
v. Bulosan, G.R. No. 58404, Apr. 15, 1988);
3.
4.
5.
Note:
1.
2.
The waiver, whether express or implied,

must be in a clear and unequivocal manner
(Herrera, Vol. IV, p. 278, 2007 ed.)
The right to preliminary investigation cannot
be raised for the first time on appeal (Pilapil
v. Sandiganbayan, G.R. No. 101978, Apr. 7,
1993).
Q: What are the instances wherein the right to

preliminary investigation is not deemed waived?
A:
2.
Failure to appear before the prosecutor

during the clarificatory hearing or when
summoned, when the right was invoked
at the start of the proceeding (Larranaga
v. CA, G.R. No. 130644, Mar. 13, 1998); or
When the accused filed an application for
bail and was arraigned over his objection
and the accused demanding that
preliminary investigation be conducted
(Go v. CA, G.R. No. 101837, Feb. 11,
1992).
Q: What is the effect if the accused raises the issue

of lack of preliminary investigation before entering
plea?
A: The court, instead of dismissing the information,
should conduct the preliminary investigation or
order the prosecutor to conduct it (Larranaga v. CA,
G.R. No. 130644, Mar. 13, 1998).
2. PURPOSES OF PRELIMINARY INVESTIGATION
Q: What are the purposes of conducting
A:
1.
234
Q: When is preliminary investigation required to

be conducted?
A:
GR: Before the filing of a complaint or
information for an offense where the penalty
prescribed by law is imprisonment of at least 4
yrs., 2 months and 1 day.
XPN:
1.
1.
For the investigating prosecutor to

determine if the crime has been
committed;
To
protect
the
accused
from
inconvenience, expense and burden of
defending himself in a formal trial unless
probability of his guilt is first ascertained
by a competent officer;
To secure the innocent against hasty,
malicious, and oppressive prosecution
and to protect him from an open and
public.accusation of a crime and anxiety
of a public trial;
To protect the State from having to
conduct useless and expensive trial; and
To determine the amount of bail, if the
offense is bailable(Herrera, Vol. IV, p. 273,
2007 ed.).
2.
Where an information or complaint is

filed pursuant to Sec. 7, Rule 112, i.e. the
complaint or information is filed directly
in court (Sec. 1);
For
cases
requiring
preliminary
investigation, when a person is lawfully
arrested without a warrant provided that
inquest was made in accordance with
Rule 112 (Sec. 6).
Note: Cases falling under summary procedure or

punishable with a penalty of imprisonment less than 4
yrs., 2 months and 1 day does not require preliminary
investigation. See discussion on Sec. 1, Rule 110 for
cases directly filed in court.
Q: What are the rights of the respondent in a

A: To:
1.
2.
3.
submit a counter affidavit;

examine the evidence submitted by the
complainant at his own expense; and
be present during the clarificatory hearing
(Sec. 3, Rule 112).
Note: Object evidence need not to be furnished but is

available for examination, copying or photographing at
the expense of the requesting party (Sec. 3, Rule 112).
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
Q: Who are authorized to conduct a preliminary
investigation?
A:
1.
2.
3.
Provincial or City prosecutors and their

assistants;
National and Regional State Prosecutors;
and
Other officers as may be authorized by
law (e.g.Ombudman; authorized officer
deputized by COMELEC for election
offenses).
Q: What is the effect if lack of preliminary

investigation is raised in a proceeding pending
before the Sandiganbayan?
A: The proceeding will be held in abeyance and case
should be remanded to the Office of the
Ombudsman or the Special Prosecutor to conduct
the
preliminary
investigation
(Ong
v.
Sandiganbayan, G.R. No. 126858, Sept. 26, 2005).
Q: What is the effect of absence of preliminary
investigation?
A: It does not:
1.
2.
3.
4.
become a ground for a motion to quash

the complaint or information (Sec. 3, Rule
117);
affect the courts jurisdiction (People v.
De Asis, G.R. No. 105581, Dec. 7, 1993);
impair the validity of the information or
render it defective; and
justify the release of the respondent or
nullify the warrant of arrest against him
(Larranaga v. CA, G.R. No. 130644, Mar.
13, 1998).
Q: What are the instances when preliminary

investigation is not required even if the offense
requires a preliminary investigation?
2.
3.
the absence or unavailability of an inquest

prosecutor, the complaint may be filed
directly with the proper court on the basis
of the affidavit of the offended party or
arresting officer or person (Sec. 7)
The fact that a person was lawfully
arrested without a warrant does not
absolutely bar him from availing of a
preliminary investigation because before
the complaint or information is filed, he
may ask that a preliminary examination
be conducted. However, before he is
granted the preliminary investigation
asked for by him, he must sign a waiver of
the provisions of Article 125 of the
Revised Penal Code.
If the complaint or information has been
filed without a preliminary investigation,
the accused who desires a preliminary
investigation, may, within five days from
the time he learns of its filing, ask for a
preliminary investigation (Sec. 7)
Note: The waiver of the provisions of Article 125 does

not bar the person arrested from applying for bail and
even while the preliminary investigation is pending.
3. WHO MAY CONDUCT DETERMINATION OF

EXISTENCE OF PROBABLE CAUSE
Q. What is probable cause?
A: The existence of such facts and circumstances as
would excite the belief, in a reasonable mind, acting
on the facts within the knowledge of the
prosecutor, that the person charged was guilty of
the crime for which he was prosecuted.
Q: What degree of proof is necessary to warrant
the filing of an information or complaint in court?
A: Probable cause. It need not be based on
evidence establishing guilt beyond reasonable
doubt but only such as may engender a wellfounded belief that an offense has been committed
and that the accused is probably guilty thereof.
A:
1.
If a person is arrested lawfully without a

warrant involving an offense which
requires a preliminary investigation, i.e.,
the penalty is at least four years, two
months and one day, an information or
complaint may be filed against him
without need for a preliminary
investigation. If he has been arrested in a
place where an inquest prosecutor is
available, an inquest will be conducted
instead of preliminary investigation. In
Q: Who may conduct the determination of

probable cause?
A: It depends
THE FISCAL OR PROSECUTOR, if the determination
of probable cause is for purposes of indictment;
such finding will not be disturbed by the court
unless there is finding of grave abuse of discretion.
THE COURT, if the determination of probable cause
is for the purposes of issuance of warrant of arrest.

235

4. RESOLUTION OF INVESTIGATING PROSECUTOR
Q: How does the investigating prosecutor resolve
the findings after preliminary investigation?
Q: Are the findings or resolution of the

investigating prosecutor final?
A:
1. If he finds probable cause to hold the respondent
for trial, he shall prepare a resolution and certify
under oath in the information that:
a. he or an authorized has personally
examined the complainant and his
witnesses;
b. that there is reasonable ground to
believe that a crime has been committed
and that the accused is probably guilty
thereof;
c. that the accused was informed of the
complaint and evidences against him;
d. that he was given opportunity to
submit controverting evidence
2. If he finds no probable cause, he shall
recommend the dismissal of the complaint
3. Within 5 days from his resolution, he shall
forward the record of the case to the provincial or
city prosecutor of chief state Prosecutor of the
Ombudsman. They shall act on the resolution
within 10 days from receipt and shall immediately
inform the parties of such action.
4. No complaint of information may be filed or
dismissed by an investigating prosecutor without
the prior written authority or approval of the
provincial or city prosecutor or chief state
prosecutor or the Ombudsman.
5. If the investigating prosecutor recommends the
dismissal of the complaint, but his recommendation
is disapproved by the provincial or city prosecutor
or chief state prosecutor or Ombudsman on the
ground that probable cause exists, the latter may
either:
a. by himself, file the information; or
b. direct another assistant prosecutor to
file the informationwithout need for a
new preliminary investigation.
6. The Secretary of Justice may, upon petition by a
proper party or by itself, reverse or modify the
resolution of the provincial or city prosecutor, the
chief state prosecutor, or the ombudsman. In such
a case, he shall direct the prosecutor concerned to
236
either file the information without need for a new

preliminary investigation or to dismiss or move for
its dismissal if already filed in court.
A: No, the resolution of the investigating prosecutor

is merely recommendatory. No complaint or
information may be filed or dismissed by an
investigating prosecutor without the prior written
authority or approval of the provincial or city
prosecutor or chief state prosecutor or the
Ombudsman or his deputy (Sec. 4).
Q: What is the rule when the recommendation for
dismissal by the investigating prosecutor is
disapproved?
A: If the recommendation of the investigating
prosecutor is disapproved by the provincial or city
prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a
probable cause exists, the latter, may by himself,
file the information against the respondent, or
direct another assistant prosecutor or state
prosecutor to do so without conducting another
Q: What is the rule when the resolution is reversed
or modified by the Secretary of Justice?
A: If upon petition by a proper party or
motuproprio, the Secretary of Justice reverses or
modifies the resolution of the provincial or city
prosecutor or chief state prosecutor, he shall direct
the prosecutor concerned either to file the
corresponding information without conducting
another preliminary investigation, or to dismiss or
move for dismissal of the complaint or information
with notice to the parties (Sec. 4)
Q: What is the effect of the filing of a petition for
review before the DOJ if the information was
already filed in court?
A: Should the information be already filed in court
but the accused filed a petition for review of the
findings of the prosecutors with the DOJ, the court
is bound to suspend the arraignment of the accused
for a period not exceeding 60 days (Sec. 11, Rule
116).
Note: Under the present Rules, once a petition for
review is filed before the DOJ after the information is
filed in court, only a motion for suspension of the
proceedings in view of the pendency of the petition for
review before the DOJ may be filed which must be
made before arraignment. The suspension of the
proceedings before the court would only last for 60
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
days reckoned from the date of the filing of the
petition for review.
before the CA pursuant to Rule 43 (De Ocampo v.

Sec. Of Justice, G.R. No. 147392, Jan. 25, 2006).
Q: Are there instances where a new preliminary

investigation is not necessary?
Q: What is the remedy against the resolution of

the Ombudsman?
A: Yes, when:
1. amendment to information is not
substantial (Villaflor v. Vivar, G.R. No.
134744, Jan. 16, 2001);
2. the court orders the filing of correct
information involving a cognate offense
(Sy Lim v. CA, G. R. No. L-37494, Mar.
30,1982); and
3. if the crime originally charged is related to
the amended charge such that an inquiry
into one would elicit substantially the
same facts that an inquiry to another
would reveal (Orquinaza v. People, G.R.
No. 165596, Nov. 15, 2005; Herrera, Vol.
IV, p. 281, 2007 ed.)
A: The resolution of the Ombudsman may be

subject of petition for review via Rule 43 before the
CA or a special civil action for certiorari via Rule 65
before the SC.
5. REVIEW
Q: What is the remedy of the aggrieved party from
the resolution of the investigating prosecutor as
approved by his superior?
A: A verified petition for review within 15 days from
the resolution or denial of the motion for
reconsideration. The Secretary of Justice may
reverse or modify the resolution.
The Secretary of Justice may also motuproprio
reverse or modify the resolution.
The Secretary of Justice shall direct either the filing
of the complaint without the need for a new
preliminary investigation or move for the dismissal
of the complaint (Sec. 4).
Note: The Secretary of justice may review resolutions
of his subordinates in criminal cases despite the
information being filed in court (Community Rural
Bank of Guimba v. Talavera, A.M. No. RTJ-05-1909,
Apr. 6, 2005).
Q: What is the remedy of an aggrieved party

against the resolution of the Secretary of Justice?
A: Such resolution may be nullified in a petition for
certiorari under Rule 65 on grounds of grave abuse
of discretion resulting to lack or excess of
jurisdiction (Ching v. Sec. Of Justice, G.R. No.
164317, Feb. 6, 2006).
Alternative Answer:
The resolution of the DOJ is appealable
administratively before the Office of the President,
and the decision of the latter may be appealed
The resolution of the Ombudsman, if the latter

acted without or in excess of jurisdiction, may be
nullified by a writ of certiorari(Ramiscal v.
Sandiganbayan, G.R. Nos. 109727-28, Aug. 18,
2006)
When the officer conducting a conducting a
preliminary investigation, i.e. the Ombudsman, acts
without or in excess of authority and resolves to file
an information despite the absence of probable
cause, such may be nullified by a writ of certiorari
(Mendoza-Arce v. Office of the Ombudsman, G.R.
No. 149148, Apr. 5, 2002).
Note: In the absence of grave abuse of discretion, the
court will not interfere or pass upon the findings of the
Ombudsman to avoid its being hampered by
innumerable petitions assailing the dismissal of the
investigatory proceedings conducted by the latter
(Tejano v. Ombudsman, G.R. No. 159190, June 30,
2005).
Q: Does the SC and CA have the power to review

A: Yes, they have the power to review the findings
of prosecutors in preliminary investigations (Social
Security System v. DOJ, G.R. No. 158131, Aug. 8,
2007).
6. WHEN WARRANT OF ARREST MAY ISSUE
CONSTITUTIONAL BASIS: No warrant of arrest should
issue except upon probable cause to be determined
personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he
may produce (Section 2, Article VI, 1987 Constitution)
Q: What is preliminary examination?

A: Preliminary examination is the proceeding for
the determination of the existence of probable
cause for the purpose of issuing a warrant of arrest.
Q: What is a warrant of arrest?
A: A warrant of arrest is a legal process issued by a
competent authority directing the arrest of a

237

person or persons upon the grounds stated therein
Q: When may a warrant of arrest be issued?
A:
By the RTC
1. Within 10 days from the filing of the complaint or
information, the judge shall personally evaluate the
resolution of the prosecutor and its supporting
evidence.
2. He may immediately dismiss the case if the
evidence fails to establish probable cause.
3. If he finds probable cause, he shall issue a
warrant of arrest or a commitment order if the
accused has already been arrested by virtue of a
warrant issued by the MTC judge who conducted
the preliminary investigation or if he was arrested
by virtue of a lawful arrest without warrant.
4. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to
present additional evidencewithin 5 days from
notice and the issue must be resolved within 30
days from the filing of the complaint or
information.
By the MTC
1. If the preliminary investigation was conducted
by a prosecutor, same procedure as above
2. If the preliminary investigation was conducted
by the MTC judge and his findings are affirmed
by the prosecutor, and the corresponding
information is filed, he shall issue a warrant of
arrest.
3. However, without waiting for the conclusion of
the investigation, he may issue a warrant of
arrest if he finds after:
1. an examination in writing and under oath
of the complainant and his witnesses
2. in the form of searching questions and
answers that probable cause exists AND
that there is a necessity of placing the
accused under immediate custody in
order not to frustrate the ends of justice.
Q: When is a warrant of arrest not necessary?
A:
1.
2.
3.
When the accused is already under

detention issued by the MTC
When the accused was arrested by virtue
of a lawful arrest without warrant
When the penalty is a fine only
Q: Are John Doe warrants valid?

A: Generally, John Doe warrants are void because
they violate the constitutional provision that
requires that warrants of arrest should particularly
describe the person or persons to be arrested. But
if there is sufficient description to identify the
person to be arrested, then the warrant is valid.
Q: What are the principles governing the finding of
probable cause for the issuance of a warrant of
arrest?
A:
1. There is a distinction between the objective
of determining probable cause by the
prosecutor and by the judge. The prosecutor
determines it for the purpose of filing a
complaint or information, while the judge
determines it for the purpose of issuing a
warrant of arrest whether there is a
necessity of placing him under immediate
custody in order not to frustrate the ends of
justice.
2. Since their objectives are different, the judge
should not rely solely on the report of the
prosecutor in finding probable cause to justify
the issuance of a warrant of arrest. The judge
must decide independently and must have
supporting evidence other than the
prosecutors bare report.
3. It is not required that the complete or entire
records of the case during the preliminary
investigation be submitted to and examined
by the judge. He must have sufficient
supporting documents upon which to make
his independent judgment.
Q: How should the complaint or information be
filed when the accused is lawfully arrested without
warrant?
A: The complaint or information may be filed by a
prosecutor without need for a preliminary
investigation provided an inquest proceeding has
been conducted in accordance with existing rules.
In the absence of an inquest prosecutor, the
offended party or any peace officer may file the
complaint directly in court on the basis of the
affidavit of the offended party or peace officer.
7. CASES NOT REQUIRING A PRELIMINARY
INVESTIGATION
Q: What are those cases which do not require
A: Those offenses punishable by imprisonment of
less than 4 years, 2 months and 1 day.
238
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
Q: What is the procedure if the complaint is filed
with the prosecutor?
A: If the complaint is filed with the prosecutor
involving an offense punishable by imprisonment of
less than 4 years, 2 months and 1 day, the
procedure in Rule 112 Section 3a shall be observed.
Q: What is the procedure if the complaint is filed
with the MTC?
A: Same procedure shall be observed
Note: in all other cases cognizable by the MTC or
MCTC, the issuance of the warrant of arrest is
discretionary on the part on the part of the judge. As
long as he is satisfied that there is no need for the
necessity of placing the accused under custody, he
may issue summons instead of warrant of arrest.
Q: What are the instances when preliminary

investigation is not required even if the offense
requires a preliminary investigation?
Note: The waiver of the provisions of Article 125 does

not bar the person arrested from applying for bail and
even while the preliminary investigation is pending.
8. REMEDIES OF ACCUSED IF THERE WAS NO

PRELIMINARY INVESTIGATION
Q: If there was no preliminary investigation
conducted, what are the remedies of the accused?
A:
1. Refuse to enter plea upon arraignment and
object to further proceedings upon such ground;
2. Insist on preliminary investigation;
3. File a certiorari, if refused;
4. Raise lack of preliminary investigation as error on
appeal (US v. Banzuela, GR No. 10172,1915)
5. File for Prohibition (Conde v. CFI, GR No. L-21236,
October 1, 1923
9. INQUEST
Q: What is the procedure for conducting inquest
proceeding?
A:
1.
2.
3.
If a person is arrested lawfully without a

warrant involving an offense which
requires a preliminary investigation, i.e.,
the penalty is at least four years, two
months and one day, an information or
complaint may be filed against him
without need for a preliminary
investigation. If he has been arrested in a
place where an inquest prosecutor is
available, an inquest will be conducted
instead of preliminary investigation. In
the absence or unavailability of an inquest
prosecutor, the complaint may be filed
directly with the proper court on the basis
of the affidavit of the offended party or
arresting officer or person (Sec. 7)
The fact that a person was lawfully
arrested without a warrant does not
absolutely bar him from availing of a
preliminary investigation because before
the complaint or information is filed, he
may ask that a preliminary examination
be conducted. However, before he is
granted the preliminary investigation
asked for by him, he must sign a waiver of
the provisions of Article 125 of the
Revised Penal Code.
If the complaint or information has been
filed without a preliminary investigation,
the accused who desires a preliminary
investigation, may, within five days from
the time he learns of its filing, ask for a
A:
Receipt of the Inquest Officer of the referral
documents
Arrest NOT
properly effected
Release shall be
recommended
If evidence does not

warrant the conduct
of a preliminary
investigation, the
detained person shall
be released otherwise
a preliminary
investigation shall be
conducted.
Arrest properly
effected
A preliminary
investigation may be
conducted if
requested
Otherwise inquest
proper shall be
conducted
Determination of
Probable Cause
If there is probable cause, information shall be

filed; otherwise release shall be recommended.
Q: What is an inquest?
A: It is an informal and summary investigation
conducted by a public prosecutor in criminal cases
involving persons arrested and detained without
the benefit of a warrant of arrest issued by the

239

court for the purpose of determining whether or
not said persons should remain under custody and
correspondingly be charged in court (Sec. 1, DOJ
Circular No. 61).
a. Punishable by imprisonment of
more than 6 years even if Congress is
in session (People v. Jalosjos, G.R.
No. 132875-76, Feb. 3, 2000)
b. If the offense is not punishable by
imprisonment of not more than 6
years, the privilege does not apply
even if congress is not in session.
Q: When should the accused arrested without a

warrant ask for a preliminary investigation?
A:
1.
2.
Before the complaint or information is

filed in court, anytime before the filing
provided he signs a waiver of the
provision of Art. 125 of the RPC providing
for the period of detention, in the
presence of his counsel;
When the complaint or information is
already filed in court, within 5 days from
the time he learns of the filing (Sec. 6).
2.
Under the generally accepted principles

of international law, sovereign and other
chiefs of state, ambassadors, ministers
plenipotentiary, ministers resident, and
charges daffaires are immune from the
criminal jurisdiction of the country of
their assignment and are therefore
immune from arrest;
3.
The
arrest
of
duly
accredited
ambassadors, public ministers of a foreign
country, their duly registered domestics,
subject to the principle of reciprocity (Sec.
4 and 7, RA 75).
E. ARREST
1. ARREST, HOW MADE
Q: What is arrest?
Q: Who may issue a warrant of arrest?
A: Arrest is the taking of a person into custody in

order that he may be bound to answer for the
commission of an offense.
A: The 1987 Constitution speaks of judges which

means judges of all levels. This power may not be
limited much less withdrawn by Congress. The
power to determine the existence of probable
cause is a function of the judge and such power lies
in the judge alone (People v. Inting,G.R. No. 85866,
July 24, 1990).
Q: How is arrest made?

A: It is made by an actual restraint of a person to be
arrested, or by his submission to the custody of the
person making the arrest (Sec. 2).
2. ARREST WITHOUT WARRANT, WHEN LAWFUL
Note: Arrest may be made on any day, at any time of

the day or night (Sec.6).
Q: What are the instances of a valid warrantless

arrest?
Q: What is warrant of arrest?
A:
A: It is a legal process issued by a competent

authority, directing the arrest of a person or
persons upon the grounds stated therein (Herrera,
Vol. IV, p. 345, 2007 ed.).
Q: Who are persons not subject to arrest?
1.
2.
A:
1.
240
A senator or member of the House of

Representatives shall, in all offenses
punishable by not more than 6 years
imprisonment, be privileged from arrest
while congress is in session (Sec. 11, Art.
VI, 1987 Constitution);
However, the privilege of a senator or
congressman will not apply when the
offense is:
3.
When in the presence of the arresting

person, the person to be arrested has
committed, is actually committing or is
attempting to commit an offense (in
flagrante delicto arrest).
When an offense has in fact been
committed and the arresting person has
probable cause to believe based on
personal knowledge of facts and
circumstances that the person to be
arrested has committed it (doctrine of hot
pursuit).
When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is
serving final judgment or temporarily
confined while his case is pending or has
escaped while being transferred from one
confinement to another (Sec. 5).
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
4.
5.
6.
Where the person who has been lawfully

arrested escapes or is rescued.
By the bondsmen for the purpose of
surrendering the accused.
Where the accused attempt to leave the
country without permission of the court.
of the Dangerous Drugs Law. The violator is caught

in flagrante delicto and the police officers
conducting the operation are not only authorized
but duty-bound to apprehend the violator and to
search him for anything that may have been part of
or used in the commission of the crime. (People v.
Juatan, G.R. No. 104378, Aug. 20, 1996)
Q: What are the elements of hot pursuit arrest?

Q: What is required by the phrase in his
presence?
A:
1.
2.
3.
An offense has been committed (close

proximity between the arrest and the
time of commission of the crime);
The offense has just been committed; and
Probable cause based on personal
knowledge of facts or circumstances that
the person/s to be arrested committed it
NOTE: the probable cause justifying a warrantless

arrest must, under the Rules, be based on personal
knowledge of facts and circumstances on the part of
the person making the arrest.
Q: The officers went to the scene of the crime

where they found a piece of wood and a concrete
hollow block used by the killers in bludgeoning the
victim to death. A neighbor of the accused who
witnessed the killing, pointed to Roberto as one of
the assailants. Roberto was arrested three hours
after the killing. Is the arrest a valid warrantless
arrest?
A: Yes. Under the abovementioned circumstances,
since the policemen had personal knowledge of the
violent death of the victim and of facts indicating
that Roberto and two others had killed him, they
could lawfully arrest Roberto without a warrant. If
they had postponed his arrest until they could
obtain a warrant, he would have fled the law as his
two companions did. (People v. Gerente, 219 SCRA
756)
Note: There is no rule on the exact proximity of the
commission of the offense to the arrest. In the
following instances, the Court ruled as invalid the
warrantless arrest that took place:
1. 19 hours after the commission of the crime
of murder (People v. Manlulu, 231 SCRA
701)
2. One day after the crime of robbery was
committed (People v. Del Rosario, 305 SCRA
740)
3. Two days after a drug offense was
committed (People v. Kimura, 428 SCRA 51)
Q: What is buy-bust operation?

A: A form of entrapment which has been repeatedly
accepted to be a valid means of arresting violators
A: It does not necessarily require that the arresting

officer sees the offense, but it includes cases where
the arresting officer hears the disturbance created
and proceeds at once to the scene. The officer must
have personal knowledge of offense just
committed.
Q: What is meant by personal knowledge?
A: It means actual belief or reasonable grounds of
suspicion that the person to be arrested is probably
guilty of the offense based on actual facts.
Q: How can an arresting officer have personal
knowledge of facts when he was not present when
the crime was committed?
A: Personal knowledge has no reference to the
actual commission of the crime but to personal
knowledge of facts leading to probable cause.
Q: What is the obligation of the arresting officer
after the warrantless arrest?
A: He must comply with the provisions of Art. 125
of the RPC, otherwise, he may be held criminally
liable for arbitrary detention under Art. 124 of the
RPC.Jurisdiction over the person arrested must be
transferred to the judicial authorities. Art. 125 is a
procedural requirement in case of warrantless
arrest. A case must be filed in court.
The person must be delivered to the judicial
authorities within the period specified in Art. 125
(Delay in the delivery of detained persons to the
proper judicial authorities).
1.
2.
3.
Light penalties 12 hours

Correctional penalties 18 hours
Afflictive or capital penalties 36 hours
The accused should be brought to the prosecutor

for inquest proceedings wherein existence of
probable cause will be determined. Then the judge
shall issue a commitment order (order issued by the
judge when the person charged with a crime is
already arrested or detained) and not a warrant.

241

3. METHOD OF ARREST
Q: What amount of force may be used in effecting

an arrest?
Q: What are the modes of effecting arrest?

A:
1. By actual restraint of the person to be arrested;
2. By his submission to the custody of the person
making the arrest
a. BY OFFICER WITH WARRANT
b. BY OFFICER WITHOUT WARRANT
c. BY PRIVATE PERSON
Q: How may arrest be effected?
A:
Exception to the rule on
giving information
Arrest by officer by virtue of a warrant (Sec. 7)
A: No violence or unnecessary force shall be used in

making an arrest. The person arrested shall not be
subject to a greater restraint than is necessary for
his detention (Sec. 2).
NOTE: Reasonable amount of force may be used to
effect arrest , an officer having the right to arrest an
offender may use such force as necessary to effect his
purpose, and to a great extent he is made the judge of
the degree of force that may be properly exerted.
Q: May an officer break into a building or

enclosure to make an arrest? What are the
requisites?
Method of arrest
The officer shall inform

the person to be arrested
the cause of the arrest
and the fact that the
warrant has been issued
for his arrest.
Note: The officer need
not have the warrant in
his possession at the time
of the arrest but must
show the same after the
arrest, if the person
arrested so requires.
1. When the person to be

arrested flees;
2. When he forcibly resists
before the officer has an
opportunity
to inform
him; and
3. When the giving of such
information will imperil
the arrest.
Arrest by officer without a warrant (Sec. 8)

1. when the person to be
arrested is engaged in the
commission of an offense
or is pursued immediately
The officer shall inform
its commission;
the person to be arrested 2. when he has escaped,
of his authority and the
flees, or forcibly resists
cause of the arrest w/out
a warrant
opportunity to so inform
him; and
3. when the giving of such
the arrest.
Arrest by a private person (Sec. 9)
The private person shall
inform the person to be
arrested of the intention
to arrest him and the
cause of the arrest.
Note: Private person
must deliver the arrested
person to the nearest
police station or jail,
otherwise, he may be
held criminally liable for
illegal detention.
242
1. when the person to be

arrested is engaged in the
commission of an offense
or is pursued immediately
its commission;
2. when he has escaped,
flees, or forcibly resists
opportunity to so inform
him; and
3. when the giving of such
the arrest.
A: Yes, provided that:

1. The person to be arrested is or reasonably
believed to be in the said building;
2. The officer has announced his authority
and purpose for entering therein;
3. He has requested and been denied
admittance (Sec. 11).
Note: A lawful arrest may be made anywhere, even on
a private property or in a house. This rule is applicable
both where the arrest is under a warrant, and where
there is a valid warrantless arrest.
Q: What can be confiscated from the person

arrested?
A:
1.
2.
3.
4.
Objects subject of the offense or used or

intended to be used in the commission of
the crime;
Objects which are fruits of the crime;
Those which might be used by the
arrested person to commit violence or to
escape; and
Dangerous weapons and those which may
be used as evidence in the case.
Note: Arrest must precede the serach, the process

cannot be reversed. Nevertheless, a serach
substantially contemporaneous with an arrest can
precede the arrest at the outset of the search. Reliable
information alone is not sufficient to justify a
warrantless arres under Sec. 5, Rule 113.
Q: Jose, Alberto and Romeo were charged with

murder. Upon filing of the information, the RTC
judge issued the warrants of arrest. Learning of
the issuance of the warrants, the 3 accused jointly
filed a motion for reinvestigation and for the recall
of the warrants of arrest. On the date set for
hearing of their motion, none of the accused
showed up in the court for fear of being arrested.
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
The RTC judge denied their motion. Did the RTC
rule correctly?
A: The RTC ruled correctly in denying the motion for
reinvestigation and recall of the warrants of arrest
because the accused have not surrendered their
persons to the court. Jurisdiction over the person of
the accused can only be obtained through arrest or
voluntary surrender (Dimatulac v. Villon, G.R. No.
127107, Oct. 12, 1998).
Alternative Answer:
No. the court acquired jurisdiction over the person
of the accused when they filed the aforesaid
motion and invoked the courts authority over the
case, without raising the issue of jurisdiction over
their person. Their filing the motion is tantamount
to voluntary submission to the courts jurisdiction
and constitutes voluntary appearance. (2008 Bar
Question)
Q: When is warrant of arrest not necessary?
A: When the:
1. Accused is already under detention;
2. Complaint or information was filed
pursuant to a valid warrantless arrest;
3. complaint or information is for an offense
penalized by fine only [Sec. 5 (c), Rule
112];
4. Complaint or information is filed with the
MTC and it involves an offense which
does
not
require
preliminary
investigation, judge may issue summons
instead of a warrant of arrest if he is
satisfied that there is no necessity for
placing the accused under custody [Sec. 8
(b), Rule 112].
Q: May authorities resort to warrantless arrest in
cases of rebellion?
A: Yes, since rebellion has been held to be a
continuing crime, authorities may resort to
warrantless arrests of persons suspected of
rebellion, as provided under Sec. 5, Rule 113.
However, this doctrine should be applied to its
proper context i.e., relating to subversive armed
organizations, such as the New Peoples Army, the
avowed purpose of which is the armed overthrow
of the organized and established government. Only
in such instance should rebellion be considered a
continuing crime (People v. Suzuki, G.R. No. 120670,
Oct. 23, 2003).
Q: When is an accused deemed to have waived the
illegality of his arrest?
A: An accused who enters his plea of not guilty and

participates in the trial waives the illegality of the
arrest. Objection to the illegality must be raised
before arraignment, otherwise it is deemed waived,
as the accused, in this case, has voluntarily
submitted himself to the jurisdiction of the court.
(People v. Macam, G.R. Nos. L-91011-12, Nov.
24,1994)
Q: Bogart was charged with the crime of
kidnapping for ransom. However, he was arrested
without a warrant. Bogart raised the illegality of
his arrest for the first time on appeal to the
Supreme Court. Is he now barred from questioning
the illegality of the arrest?
A: Yes. Bogart waived any irregularities relating to
their warrantless arrest when he failed to file a
motion to quash the Information on that ground, or
to object to any irregularity in their arrest before
they were arraigned. He is now estopped from
questioning the legality of their arrest (People v.
Ejandra, G.R. No. 134203, May 27, 2004).
Q: How may an illegal arrest be cured?
A: Illegality of warrantless arrest maybe cured by
filing of information in court and the subsequent
issuance by the judge of a warrant of arrest.
Q: Is an application for bail a bar to questions of
illegal arrest, irregular or lack of preliminary
investigation?
A: No, provided that he raises them before entering
his plea. The court shall resolve the matter as early
as possible, not later than the start of the trial on
the case (Sec. 26, Rule 114).
Q: May an accused who has been duly charged in
court question his detention by a petition for
habeas corpus?
A: No. Once a person has been duly charged in
court, he may no longer question his detention by
petition for habeas corpus; his remedy is to quash
the information and/or the warrant of arrest.
Q: Fred was arrested without a warrant. After
preliminary investigation, an information was filed
in court. He pleaded not guilty during arraignment.
After trial on the merits, he was found guilty by
the court. On appeal he claims that judgment was
void due to his illegal arrest. As Solicitor General,
how would you refute said claim?
A: Any objection to the illegality of the arrest of the
accused without a warrant is deemed waived when
he pleaded not guilty at the arraignment without

243

raising the question. It is too late to complain about
a warrantless arrest after trial is commenced and
completed and a judgment of conviction rendered
against the accused (People v. Cabiles, G.R. No.
112035, Jan. 16, 1998).
examination of the accused (Alimpoos v. Court of

Appeals, GR No L-27331, July 30, 1981)
NOTE: Posting of bail does not bar one from
questioning illegal arrest (Section 26, Rule 114)
5. DETERMINATION OF PROBABLE CAUSE FOR

ISSUANCE OF WARRANT OF ARREST
Q: What are the consequences of illegal arrests?

A:
1.
2.
3.
4.
The documents, things or articles seized

following
the
illegal arrest
are
inadmissible in evidence;
The arresting person may be held
criminally liable for illegal arrest under
Art. 269, RPC;
Arresting officer may be held civilly liable
for the damages under Art. 32, NCC; and
He may also be held administratively
liable.
4. REQUISITES OF A VALID WARRANT OF ARREST

Q: What are the essential requisites of a Valid
Warrant of Arrest?
A:
1. Issued upon probable cause
2. Determined personally by the judge after
examination after oath of the complainant and the
witnesses he may produce
3. The judge must personally evaluate the report of
the prosecutor and the evidence adduced during
the preliminary examination (Soliven v. Makasiar
GR No L-82585,November 14, 1988)
Note: The judge is only required to personally evaluate
the report and the supporting documents submitted
by the fiscal during the preliminary investigation and
on the basis thereof he may dismiss, issue warrant or
require further affidavits (People v. Inting,G.R. No.
85866, July 24, 1990).
4. The warrant must particularly describe the

person to be arrested;
5. In connection with specific offense or crime
Note: A warrant of arrest has NO expiry date. It
remains valid until arrest is effected or warrant is lifted
(Manangan v. CFI GR No 82760 August 30,1990)
Q: What is the remedy for warrants improperly

issued?
A: Where a warrant of arrest was improperly
issued, the proper remedy is a petition to quash it,
NOT a petition for habeas corpus, since the court in
the latter case may only order his release but not
enjoin the further prosecution or the preliminary
244
Q: Who determines probable cause for the

issuance of warrant of arrest?
A: The determination of probable cause for the
warrant of arrest is made by the judge
6. DISTINGUISH PROBABLE CAUSE OF FISCAL
FROM THAT OF A JUDGE
Q: Who may conduct the determination of
probable cause?
A:
FISCAL, for the purpose of either filing an
information in court or dismissing the charges
against the respondent, which is an executive
function; such finding will not be disturbed by the
court unless there is finding of grave abuse of
discretion.
THE COURT, if the determination of probable cause
is for the purposes of issuance of warrant of
arrest.The determination by the judge of probable
cause begins only after the prosecutor has filed the
information in court and the latters determination
of probable cause is for the purpose of issuing an
arrest warrant against the accused, which is judicial
function (People vs. CA, 301 SCRA 475).
Q: Distinguish the probable cause as determined
by a fiscal from that of a judge?
A:
Probable
Cause
determined
by
Prosecutor
For the filing of
information in court
as
the
an
Executive function
Basis: reasonable ground to

believe that a crime has
been committed
Probable
Cause
determined by
Judge
For the
warrant
issuance
as
the
of
Judicial function
Basis: the report and the
supporting
documents
submitted by the fiscal
during the preliminary
investigation and the
supporting affidavits that
may be required to be
submitted.
Note: The determination of probable cause by the

prosecutor is for a purpose different from that which is
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
to be made by the judge. Whether there is reasonable
ground to believe that the accused is guilty of the
offense charged and should be held for trial is what
the prosecutor passes upon. The judge, on the other
hand, determines whether a warrant of arrest should
be issued against the accused, i.e., whether there is a
necessity for placing him under immediate custody in
order not to frustrate the ends of justice. (P/Supt. Cruz
v. Judge Areola, A.M. No. RTJ-01-1642, March 6, 2002)
Q: When may a judge issue a warrant of arrest?

A: When probable cause exists,
1.
2.
Upon the filing of information by the

prosecutor; or
Upon application of a peace officer.
appearance at the trial (Almeda v. Villaluz GR No L31665, August 6, 1975);

2. To honor the presumption of innocence until his
guilt is province beyond reasonable doubt;
3. To enable him to prepare his defense without
being subjected to punishment prior to conviction
Note: Bail is available only to persons in custody of the
law. A person is in custody of the law when he has
been either arrested or otherwise deprived of his
freedom or when he has voluntarily submitted himself
to the jurisdiction of the court by surrendering to the
proper authoritites. (Dinapol v. Baldado AM No 92898, August 5, 1993)
Q: When is bail available?

F. BAIL
1. NATURE
Q: What is bail?
A: Under the Rules of Court it is the security given
for the release of a person in custody of the law,
furnished by him or a bondsman, to guarantee his
appearance before any court as required under the
conditions prescribed under the rules (Sec. 1, Rule
114).
Q: What is the nature of the right to bail?
A: The right to bail is a constitutional right which
flows from the presumption of innocence in favor
of every accused who should not be subjected to
the loss of freedom. Thus, the right to bail only
accrues when a person is arrested or deprived of his
liberty. The right to bail presupposes that the
accused is under legal custody (Paderanga v. Court
of Appeals, 247 ACRS 741)
Q: What is the nature of bail proceedings?
A: Bail is available only to persons in custody of the

law.
Note: A person is in custody of law when he is either
arrested or otherwise deprived of his freedom or when
he has voluntarily submitted himself to the jurisdiction
of the court by surrendering to the proper authorities
(Dinapol v. Baldado AM No. 92- 898, August 5, 1993)
Q: May bail still be filed after final judgment?

A: Bail may not be filed once there is already a final
Note: If before such finality, the accused applies for
probation, he may be allowed temporary liberty under
his bail. In no case shall bail be allowed after the
accused has commenced to serve sentence.
Q: May prosecution witness be required to post

bail?
A: Yes. A prosecution witness may be required to
post bail to ensure his appearance at the trial of the
case where:
A: The hearing of an application for bail should be

summary or otherwise in the discretion of the
court.
By 'summary hearing' is meant such brief and
speedy method of receiving and considering the
evidence of guilt as is practicable and consistent
with the purpose of the hearing which is merely to
determine the weight of the evidence for the
purpose of bail (Ocampo v. Bernabe, 77 Phil. 55)
1. There is substitution of information (Section 4,

Rule 119); and
Q: What are the purposes of bail?
1. Corporate surety/ Bail bond;
A:
1. To relieve an accused from the rigors of
imprisonment until his conviction and yet secure his
2. Where the court believes that a material witness

may not appear at the trial (Section 14, Rule 119)
Q: What are the forms of bail?
A:
a.
An obligation under seal given by the

accused with one or more sureties
and made payable to the proper
officer with the condition to be void

245
b.
c.
upon performance by the accused of

such acts as he may be legally
required to perform;
The accused goes to an authorized
bonding company and he will pay a
premium for the service which is a
percentage of the total amount of
bail. The bonding company will then
go to the court and execute an
undertaking, or "security bond" in
the amount of the bail bond in
behalf of the accused, that if the
accused is needed, the bonding
company will bring him before the
court;
If the accused jumps bail, the bond
will be cancelled and the bonding
company will be given sufficient time
to locate the whereabouts of the
accused who posted bail but later on
jumps bail. Notice to bonding
company is notice to the accused.
Notice is usually sent to the bonding
company in order to produce the
body of the accused.
Note: Liability of surety/bondsman covers

all three stages:
i. trial
ii. promulgation
iii. execution of sentence
2. Property bond;
a.
b.
c.
No bail shall be approved unless the surety

is qualified (Sec. 13).
3. Cash deposit/ Cash bond;

a.
b.
c.
d.
e.
It is the deposited by the accused

himself or any person acting in his
behalf;
Cash shall be in the amount fixed by
the court or recommended by the
prosecutor who investigated the
case;
It is to be deposited before the:
i. Nearest collector of internal
revenue;
ii. Provincial, city or municipal
treasurer; or
iii. Clerk of court where the case is
pending;
No further order from the court is
necessary for the release of the
accused if the conditions prescribed
were complied with (Sec. 14);
If the accused does not appear when
required, the whole amount of the
cash bond will be forfeited in favor
of the government and the accused
will now be arrested.
4. Recognizance
The title of the property will be used

as security for the provisional liberty
of the accused which shall constitute
a lien over the property;
The accused shall cause the
annotation of the lien within 10 days
after approval of the bond before
the:
i. Registry of Deeds if the
property is registered; or
ii. Registration Book in the
Registry of Deeds of the place
where the land lies and before
the provincial, city or municipal
assessor on the corresponding
tax declaration if property is not
registered (Sec. 11);
The person who undertakes the
conditions of a regular bond will be
the custodian of the accused during
the time that he is under provisional
liberty.]
Note: In all cases, the surety of properties

must be worth the amount specified in his
246
own undertaking over and above all just

debts, obligations and properties exempt
from execution (Sec. 12).
a.
b.
An obligation of record, entered into

before some court or magistrate duly
authorized to take it with the
condition to do some particular act.
It is an undertaking of a disinterested
person with high credibility wherein
he will execute an affidavit of
recognizance to the effect that when
the presence of the accused is
required in court, the custodian will
bring him to that court.
This is allowed for light felonies only.
Note: If the accused does not appear

despite notice to the custodian, or the
person who executed the recognizance does
not produce the accused, he may be cited
for contempt of court. This is the remedy
because no money is involved in
recognizance.
BAIL BOND
An obligation under seal
given by the accused
with one or more
RECOGNIZANCE
An obligation of record
entered into before some
court or magistrate duly
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
sureties, and made
payable to the proper
officer
with
the
condition to be void
upon performance by
the accused of such acts
as he may legally be
required to perform.
authorized to take it with

the condition to do some
particular act, the most
usual condition in criminal
cases
being
the
appearance
of
the
accused for trial.
A: Yes, when a person lawfully arrested without a

warrant asks for preliminary investigation before
the complaint or information is filed in court, he
may apply for bail (Sec. 6, Rule 112).
Q: Is arraignment required before the court grants
bail?
A: NO, for the following reasons:
Q: Where should bail be filed?

A:
1.
2.
3.
4.
In the court where the case is pending; or

In the absence or unavailability of the
judge thereof, with any RTC judge, MTC
judge, or MCTC judge in the province,
city, or municipality.
If the accused is arrested in a province,
city, or municipality other than where the
case is pending, bail may also be filed
with any RTC of said place, or if no judge
thereof is available, with any MTC judge,
MCTC therein.
Any person in custody who is not yet
charged in court may apply for bail with
any court in the province, city, or
municipality where he is held (Sec. 17).
Note: Where the grant of bail is a matter of discretion,

or the accused seeks to be released on recognizance,
the application may only be filed in the court where
the case is pending, whether on preliminary
investigation, trial, or on appeal.
When bail is filed with a court other than where the
case is pending, the judge who accepted the bail shall
forward it, together with the order of release and
other supporting papers, to the court where the case is
pending (Sec. 19).
1. The trial court could ensure the presence of the

accused at the arraignment precisely by granting
bail and ordering his presence at any stage of the
proceedings (Section 2b, Rule 114); and
2. The accused would be placed in a position where
he has to choose between filing a motion to quash
and thus delay his release on bail, and foregoing the
filing of a motion to quash so that he can be
arraigned at once and thereafter be released on
bail (Lavides v. Court of Appeals GR No. 129670,
February 1, 2000
Note: When bail is a matter of right, an accused may
apply for and be granted bail even prior to
arraignment. An application for bail in a case involving
an offense punishable by reclusion perpetua to death
may also be heard even before an accused is
arraigned. Further, if the court finds in such case that
the accused is entitled to bail because the evidence
against him is not strong, he may be granted
provisional liberty even prior to arraignment; for in
such a situation, bail would be "authorized" under the
circumstances (Serapio v. Sandiganbayan, G.R. Nos.
148468, 148769 & 149116, Jan. 28, 2003).
Q: What are the conditions or requirements of

bail?
A:
Q: Is hearing required for the grant of bail?
1.
A: YES, In all cases whether the bail is a matter of

right or discretion a hearing is required.
Q: If an information was filed in the RTC Manila
charging Mike with homicide and he was arrested
in Quezon City, in what court or courts may he
apply for bail? Explain.
A: Mike may apply for bail in RTC Manila where the
information was filed or in the RTC Quezon City
where he was arrested, or if no judge thereof is
available, with any MTC judge or MCTC judge
therein.
Q: Is bail
investigation?
available
during
preliminary
2.
3.
4.
The undertaking shall be effective upon

approval, and unless cancelled, shall
remain in force at all stages of the case
until promulgation of the judgment of the
court, irrespective of whether the case
was originally filed in or appealed to it.
The accused shall appear before the
proper courts whenever so required by
the court or these rules.
The failure of the accused to appear at
the trial without justification despite due
notice shall be deemed a waiver of his
right to be present thereat. In such case,
the trial may proceed in absentia.
The bondsman shall surrender the
accused to court for execution of the final

247

Note: No additional conditions may be imposed.
However, when the court finds that there is likelihood
of the accused jumping bail or committing other harm
to the citizenry is feared, the court may grant other
conditions in granting bail (Almeda v. Villaluz, G.R. No.
L-31665, Aug. 6, 1975).
Q: What are the guidelines regarding the

effectivity of bail?
A: The Supreme Court en banc laid the following
policies concerning the effectivity of the bail of the
accused:
1.
2.
3.
When the accused is charged with an

offense which is punishable by a penalty
lesser than reclusion perpetua at the time
of the commission of the offense, or the
application for bail and thereafter he is
convicted of a lesser offense than that
charged, he may be allowed to be
released on the same bail he posted,
pending his appeal provided, he does not
fall under any conditions of bail.
The same rule applies if he is charged
with a capital offense but later on
convicted of a lesser offense, that is,
lower than that charged.
If on the other hand, he is convicted of
that offense which was charged against
him, his bail shall be cancelled and he
shall thereafter be placed in confinement.
Bail in these circumstances is still not a
matter of right but only upon the sound
discretion of the court (Herrera, Vol. IV, p.
470, 2007 ed.).
Q: What are the duties of the trial judge if an

application for bail is filed?
A:
1.
2.
3.
4.
248
Notify the prosecutor of the hearing of

the application for bail or require him to
submit his recommendation (Sec. 18, Rule
114);
Conduct a hearing of the application for
bail regardless of whether or not the
prosecution refuses to present evidence
to show that the guilt of the accused is
strong for the purpose of enabling the
court to exercise its sound discretion
(Secs. 7 and 8, Rule 114);
Decide whether the evidence of guilt of
the accused is strong based on the
summary of evidence of the prosecution
(Baylon v. Sison, A.M. No. 92-7-360-0,
Apr. 6, 1995);
If the guilt of the accused is not strong,
discharge the accused upon the approval
of the bailbond. Otherwise, petition

should be denied (Sec. 19)
Q: Who has the burden of proof in bail
applications?
A: It is the prosecution who has the burden of
showing that evidence of guilt is strong at the
hearing of an application for bail filed by a person
who is charged for the commission of a capital
offense or offense punishable by reclusion perpetua
or life imprisonment (Sec. 8, Rule 114).
2.
WHEN A MATTER OF RIGHT; EXCEPTIONS
Q: When is bail a matter of right?

A:
In the MTC, it is a matter of right before or after
conviction, regardless of the offense.
In the RTC,
GR: it is a matter of right before conviction,
XPNs: offenses punishable by death, reclusion
perpetua, or life sentence and the evidence of guilt
is strong, in which case it is discretionary.
Note: The prosecution cannot adduce evidence for the
denial of bail where it is a matter of right. However
where the grant of bail is discretionary, the
prosecution may show proof to deny the bail.
Q: Is notice of hearing required?

A: Whether bail is a matter of right or of discretion,
reasonable notice of hearing is required to be given
to the prosecutor or fiscal or at least he must be
asked for his recommendation because in fixing the
amount of bail, the judge is required to take into
account a number of factors such as the applicants
character and reputation, forfeiture of other bonds
or whether he is a fugitive from justice.
Hearing, however is not required where Bail is
recommended by the prosecution and it is a matter
of right.
Q: When the accused is entitled as a matter of
right to bail, may the court refuse to grant him bail
on the ground that there exists a high degree of
probability that he will abscond or escape?
Explain.
A: No. What the court can do is to increase the
amount of bail. One of the guidelines that the judge
may use in fixing a reasonable amount of bail is the
probability of the accused appearing in trial. (1999
Bar Question)
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
Note: Where the offense is bailable, the mere
probability that the accused will escape or if he had
previously escaped while under detention does not
deprive him of his right to bail. The remedy is to
increase the amount of bail, provided the amount is
not excessive (Sy Guan v. Amparo, G.R. No. L-1771,
Dec. 4, 1947).
3. WHEN A MATTER OF DISCRETION

Q: When is bail a matter of discretion?
A: Bail is a matter of discretion
1. Upon conviction by the RTC of an
offense not punishable by death,
reclusion
perpetua
or
life
imprisonment;
2. If the penalty of imprisonment
exceeds six (6) years but not more
than 20 years, bail shall be denied
upon a showing by the prosecution,
with notice to the accused, of the
following
or
other
similar
circumstances:
a. That he is a recidivist, quasirecidivist
or
habitual
delinquent, or has committed
the crime aggravated by the
circumstance of reiteration;
b. That he previously escaped
from legal confinement, evaded
sentence, or has violated the
conditions of his bail without
valid justification;
c. That he committed the offense
while on probation, parole, or
under conditional pardon;
d. That the circumstances of his
case indicate the probability of
flight if released on bail; or
e. That there is undue risk that
during the pendency of the
appeal, he may commit another
crime (Sec. 5).
3. Regardless of the stage of the
criminal prosecution, a person
charged with a capital offense, or an
offense punishable by reclusion
perpetua or life imprisonment, when
evidence of guilt is not strong (Sec.
7); and
4. Juvenile charged with an offense
punishable by death, reclusion
perpetua or life imprisonment
evidence of guilt is strong (Sec. 17,
A.M. No. 02-1-18-SC).
Q: What is the remedy of the accused when bail is

discretionary?
A: When bail is discretionary, the remedy of the
accused is to file a petition for bail. Once a petition
for bail is filed, the court is mandated to set a
hearing. The purpose of the hearing is to give
opportunity to the prosecution to prove that the
evidence of guilt is strong. If strong, bail will be
denied. If weak, the bail will be granted.
Q: Where is the application for bail filed where the
accused is convicted by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment?
A:
1. With the trial court despite the filing of a notice
of appeal provided that it has not transmitted the
original record to the appellate court;
2. With the appellate court of the decision of the
trial court convicting the accused changed the
nature of the offense from non- bailable to bailable.
Q: Is the right to bail available in extradition
cases?
A: Yes.
1.
2.
3.
4.
5.
While our extradition law does not

provide for the grant of bail to an
extraditee, however, there is no provision
prohibiting him or her from filing a
motion for bail, a right to due process
under the constitution.
While extradition is not a criminal
proceeding, it still entails a deprivation of
liberty on the part of the potential
extraditee and furthermore, the purpose
of extradition is also the machinery of
criminal law.
The Universal Declaration of Human
Rights applies to deportation cases,
hence, there is no reason why it cannot
be invoked in extradition cases.
The main purpose of arrest and
temporary detention in extradition cases
is to ensure that the potential extraditee
will not abscond.
Under the principle of pactasuntservanda,
the Philippines must honor the
Extradition Treaty it entered into with
other countries. Hence, as long as the
requirements are satisfactorily met, the
extraditee must not be deprived of his
right to bail (Government of Hong Kong
Special Administrative Region v. Olalia,
G.R. No. 153675, Apr. 19, 2007).

249

Q: What is the rationale in allowing bail in
extradition cases?
b.
c.
A: The SC held that the Philippines, along with other

members of the family of nations, is committed to
uphold the fundamental human rights as well as
value the worth and dignity of every person
(Government of Hong Kong Special Administrative
Region v. Olalia, G.R. No. 153675, Apr. 19, 2007).
release of the child in conflict with

the law on bail; or
transfer of the minor to a youth
detention home/youth rehabilitation
center (Sec. 35, R.A. 9344).
Note: The court shall not order the detention of a child

in a jail pending trial or hearing of his/her case (Sec.
35, R.A. 9344).
Q: What is the quantum of proof required in

granting or denying bail in extradition cases?
Q: What if the minor is unable to furnish bail?
A: The required proof of evidence is clear and

convincing evidence and not preponderance of
evidence nor proof beyond reasonable doubt
(Government of Hong Kong Special Administrative
Region v. Olalia, G.R. No. 153675, Apr. 19, 2007).
A: The minor shall be, from the time of his arrest,

committed to the care of the DSWD or the local
rehabilitation center or upon recommendation of
DSWD or other agencies authorized by the court
may, in its discretion be released on recognizance
(Sec. 36, R.A. 9344)
Q: Who has the burden of proof in the application

for bail in extradition cases?
A: The burden lies with the extraditee(Government
of Hong Kong Special Administrative Region v.
Olalia, G.R. No. 153675, Apr. 19, 2007).
Q: Is bail available on court martial offenses?
A: No. An accused military personnel triable by
courts martial or those charged with a violation of
the Articles of War does not enjoy the right to bail.
Q: Is bail available in deportation proceedings?
A: Yes, however bail in deportation proceedings is
WHOLLY DISCRETIONARY
Q: Is a minor charged with a capital offense
entitled to bail?
A: No. A juvenile charged with an offense
punishable by death, reclusion perpetua or life
imprisonment shall not be admitted to bail when
evidence of guilt is strong (Sec. 17, R.A. 9344).
Q: What are the rules provided by law with regard
to juveniles in conflict with the law with respect to
bail of non-capital?
A:
1.
2.
250
The privileged mitigating circumstances of

minority shall be considered. (Sec. 34,
R.A. 9344, Juvenile and Justice Act of
2006)
Where a child is detained, the court shall
order the:
a. release of the minor on recognizance
to his/her parents and other suitable
person;
Q: Charged with murder Leviste was convicted

with the crime of homicide and was sentenced to
suffer an indeterminate penalty of six years and
one day of prision mayor as minimum to 12 years
and one day of reclusion temporal as maximum.
Pending appeal he applied for bail, CA denied his
application for bail. Petitioners theory is that,
where the penalty imposed by the trial court is
more than six years but not more than 20 years
and the circumstances mentioned in the third
paragraph of Section 5 are absent, bail must be
granted to an appellant pending appeal. In an
application for bail pending appeal by an appellant
sentenced to a penalty of imprisonment for more
than six years, does the discretionary nature of the
grant of bail pending appeal mean that bail should
automatically be granted absent any of the
circumstances mentioned in the third paragraph of
Section 5, Rule 114 of the Rules of Court?
A: In an application for bail pending appeal by an
appellant sentenced for more than six years, the
discretionary nature of the grant of bail pending
appeal does not mean that bail should
automatically be granted absent any of the
circumstances mentioned in the third paragraph of
Section 5, Rule 114 of the Rules of Court (Leviste v.
CA, GR No. 189122, March 17, 2010)
Note: The third paragraph of Section 5 of Rule 114
applies to two scenarios where the penalty imposed
on the appellant applying for bail is imprisonment
exceeding 6 years.
The first scenario deals with the circumstances
enumerated in the said paragraph NOT being present.
The second scenario contemplates the existence of AT
LEAST ONE of the said circumstances.
In the first situation, bail is a matter of SOUND
JUDICIAL DISCRETION. This means that, if none of the
circumstances mentioned in the 3rd paragraph of Sec. 5
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
Rule 114 is present, the appellate court has the
discretion to grant or deny bail. An application for bail
pending appeal may be denied even if the bailnegating circumstances in the third paragraph of
Section 5, Rule 114 are absent.
On the other hand on the second situation, the
appellate court exercises a more stringent discretion,
that is, to carefully ascertain whether any of the
enumerated circumstances in fact exists. If it so
determines, it has no other option except to deny or
revoke bail pending appeal. Thus a finding that none
off the said circumstances is present will not
automatically result in the grant of bail. Such finding
will simply authorize the court the less stringent sound
discretion approach (Leviste v. CA, GR No. 189122,
March 17, 2010).
4.
5.
6.
7.
Character and reputation of the accused;

Age and health of the accused;
Weight of evidence of the accused;
Probability of the accused to appear in
trial;
8. Forfeiture of other bail;
9. The fact that the accused was a fugitive
from justice when arrested; or
10. Pendency of other cases when the
accused is on bail (Sec. 9).
Q: What is the effect of grant of bail?
A: The accused shall be released upon approval of
the bail by the judge (Sec. 19).
4. HEARING OF APPLICATION FOR BAIL IN CAPITAL

OFFENSES
Q: May the amount of bail be reduced or

increased?
RA 9346 An Act Prohibiting the Imposition of

Death Penalty in the Philippines abolished death
penalty
A: Yes, after the accused is admitted to bail, the

court may, either increase or reduce its amount.
When increased, the accused may be committed to
custody if he does not give bail in the increased
amount within a reasonable period (Sec. 20).
Q: What is a capital offense?

A: Capital offense refers to an offense which, under
the law existing at the time of its commission and at
the time of its application to be admitted to bail,
may be punished with reclusion perpetua or life
imprisonment or death.
Note: if the offense is punishable with reclusion
perpetua or life imprisonment or death at the time of
the commission but no longer so at the time of the
application for bail, or if the offense was not yet
punishable with death when the crime was committed
but already so punishable at the time admission to bail
was applied for, the crime is not a capital offense
within the meaning of the rule.
Q: Is capital offense bailable?

A: GR: Capital offense or those punishable by
reclusion perpetua, life imprisonment or death are
NOT bailable when evidence of guilt is strong.
XPN: If the accused charged with the capital
offense is a minor
5. GUIDELINES IN FIXING AMOUNT OF BAIL
Q: What are the guidelines in fixing the reasonable
amount of bail?
A:
1.
2.
3.
Financial ability of the accused to give

bail;
Nature and circumstances of the offense;
Penalty of the offense charged;
6. BAIL WHEN NOT REQUIRED

Q: What are the instances when bail is not
required?
A: Instances when accused may be released on
recognizance without posting bail or on reduced
bail.
ON REDUCED
BAIL OR ON HIS
OWN
RECOGNIZANCE
1. The offense charged is a

violation of an ordinance, light
felony, or a criminal offense the
imposable penalty thereof does
not exceed 6 months of
imprisonment and/ or fine of
P2,000 under RA 6036.
2. Where a person has been in
custody for a period equal to or
more than the minimum of the
imposable
principal
penalty
without application
of the
Indeterminate Sentence Law or
any modifying circumstances, in
which case the court, in its
discretion may allow his release on
his own recognizance.
3. Where the accused has applied
for probation pending resolution of
the case but no bail was filed or
the accused is incapable of filing
one.
4. In case of youthful offender held
for
physical
and
mental
examination, trial or appeal if he is
unable to furnish bail and under

251
UNDER
THE
REVISED RULES
ON SUMMARY
PROCEDURE
circumstances envisage in PD 603

as amended.
Espiritu v. Jovellanos AM No MTJ
97-1139 (1997)
GR: NO bail
XPNs:
1.When a warrant of arrest is
issued for failure to appear when
required by the court;
2.When the accused:
a.is a recidivist;
b.is a fugitive from justice;
c.is charged with physical injuries;
d.does not reside in the place
where the violation of the law or
the ordinance is committed; or he
has no known residence.
7. INCREASE OR REDUCTION OF BAIL
Q: What happens if the bondsmen failed to do

such requirements?
A: A judgment shall be rendered against the
bondsmen, jointly and severally, for the amount of
the bail.
Note: The 30 day period granted to the bondsmen to
comply with the two requisites for the lifting of the
order of forfeiture cannot be shortened by the court
but may be extended for good cause shown.
Q: Distinguish Order of Forfeiture from Order of

Cancellation.
ORDER OF
FORFEITURE
Conditional
and
interlocutory. It is not
appealable
Q: When may the court increase or reduce the

amount of bail?
ORDER OF CANCELLATION
Not independent of the order
of forfeiture. It is a judgment
ultimately determining the
liability
of
the
surety
thereunder and therefore
final. Execution may issue at
once.
A:
1.
2.
After the accused is admitted to bail.

Upon good cause
Q: When is bail cancelled?

A: Bail is cancelled:
Q: What is the remedy if the bail is increased and

the accused did not give the increased amount of
bail within a reasonable time?
A: When the amount of bail is increased, the
accused may be committed to custody if he does
not give bail in the increased amount within a
reasonable period.
Note: Where the offense is bailable as a matter of
right, the mere probability that the accused will
escape, or even if he had previously escaped while
under detention does not deprive him of his right to
bail. The remedy is to INCREASE the amount of the
bail, provided such amount would not be excessive. (Sy
Guan v. Amparo, 79 Phil 670)
8. FORFEITURE AND CANCELLATION OF BAIL

Q: When is bail forfeited?
A: If the accused fails to appear in person as
required, his bail shall be declared forfeited and the
bondsmen within 30 days from the failure of the
accused to appear in person must:
1.
2.
PRODUCE the body of their principal or

give the reason for non- production; and
EXPLAIN why the accused did not appear
before the court when required to do so
252
1.
Upon application of the bondsmen with

due notice to the prosecutor, upon
surrender of the accused or proof of his
death;
2. Upon acquittal of the accused;
3. Upon dismissal of the case; or
4. Execution of judgment of conviction
Without prejudice on any liability on the bail
9. APPLICATION FOR BAIL IS NOT A BAR TO
OBJECTIONS IN ILLEGAL ARREST OR IRREGULAR
PRELIMINARY INVESTIGATION
Q: Is the application to bail bar to any objections in
illegal arrest or irregular preliminary investigation?
A: An application for or admission to Bail shall NOT
bar the accused:
1.
2.
3.
From challenging the validity of his arrest;

The legality of the warrant issued thereof;
From assailing the regularity of
questioning the absence of a preliminary
investigation of the charge against him.
PROVIDED that the accused raises them before

entering his plea.
NOTE: The court shall observe the matter as early as
practicable, but not later than the start of the trial of
the case.
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
10. HOLD DEPARTURE ORDER AND BUREAU OF
IMMIGRATION WATCHLIST
Q: What is a Hold Departure Order?
A: A Hold Departure Order or HDO is an order
issued by the Secretary of Justice or the proper RTC
commanding the Commissioner of the Bureau of
Immigration to prevent the departure for abroad of
Filipinos and/ or aliens named therein by including
them in the Bureaus Hold Departure List. (DOJ
Department Order No. 17)
Note: The proper court may issue a hold departure
order or direct the Department of Foreign Affairs to
cancel the passport of the accused. This is a case of a
valid restriction on a persons right to travel so that he
may be dealt with in accordance with the law. (Silverio
v. Court of Appeals GR No. 94284, April 8, 1991)
Q: Who may issue a Hold Departure Order?

A: A hold departure order (HDO) may be issued
either by:
1. The Regional Trial Court pursuant to SC Circular
39-97; or
Note: SC Circular 39-97 dated June 19, 1997,
"limits the authority to issue hold departure
orders to the Regional Trial Courts.
Considering that only the RTC is mentioned
in said Circular and by applying the rule on
legal hermeneutics of express mention
implied exclusion, courts lower than the RTC
such as the MeTC, MTC, MTCC and MCTC
has no authority to issue hold departure
orders in criminal cases. (A.M. No. 99-9-141MTCC November 25, 1999)
2. By the RTC sitting as a Family Court pursuant to

A.M. No. 02-11-12-SC,
Note: in which case, the court, motuproprio
or upon application under oath, may issue
ex-parte a hold departure order, addressed
to the Bureau of Immigration and
Deportation, directing it not to allow the
departure of the child from the Philippines
without the permission of the court while
the petition for legal separation, annulment
or declaration of nullity is going on.
3. By the Department of Justice pursuant to

Department Order No. 41.
Q: When may the RTC issue a Hold Departure
Order?
A: Hold-Departure Orders shall be issued only in
criminal cases within the exclusive jurisdiction of
the Regional Trial Courts (SC Circular 39-97); upon

proper motion of the party.
Q: What is the effect of the acquittal of the
accused or dismissal of the case to the hold
departure order issued by the RTC?
A: Whenever [a] the accused has been acquitted; or
[b] the case has been dismissed, the judgment of
acquittal or the order of dismissal shall include
therein the cancellation of the Hold-Departure
Order issued. The Court concerned shall furnish the
Department of Foreign Affairs and the Bureau of
Immigration with a copy each of the judgment of
acquittal promulgated or the order of dismissal
issued within twenty-four [24] hours from the time
of promulgation/issuance and likewise through the
fastest available means of transmittal.
Q: In what cases may the DOJ issue a Hold
Departure Order?
A: The Secretary of Justice may issue an HDO under
any of the following instances:
1. Against an accused irrespective of nationality, in
criminal case falling within the jurisdiction of courts
below the RTCs;
Note: If the case against the accused is
pending trial, the application under oath of
an interested party must be supported by:
a) certified true copy of the complaint or
information; and b) a certification from the
Clerk of Court concerned that the criminal
case is pending.
If the accused has jumped bail or has
become a fugitive of justice, the application
under oath of an interested party must be
supported by: a) a certified true copy of the
complaint or information; b) a certified true
copy of the warrant or order of arrest; and
c) a certification from the Clerk of Court
concerned that the warrant or order of
arrest was returned unserved.
2. Against an alien whose presence is required

either as a defendant, respondent or a witness in a
civil or labor case pending litigation, or any case
before an administrative agency;
3. Against any person motuproprio, or upon the
request of the Head of a Department of the
Government, head of a constitutional body or
commission; the Chief Justice of the Supreme Court
for the Judiciary; the Senate President or the House
Speaker for the legislature; when the adverse party
is the Government or any of its agencies or
instrumentalities, or in the interest of national

253

security, public safety or public health. (DOJ
Department Circular No. 41).
Q: What is the validity of an HDO issued by the
DOJ?
A: An HDO issued by the DOJ shall be valid for 5
years from the date of its issuance unless sooner
terminated. (Section 4, DOJ Circular No. 41).
Q: When may an HDO issued by the DOJ be lifted
or cancelled?
A: The HDO may be lifted under any of the
following grounds:
1. When the validity of the HDO has already
expired;
2. When the accused subject of the HDO has been
allowed to leave the country during the pendency
of the case, or has been acquitted of the charge, or
the case in which the warrant/ order of arrest has
been recalled;
3. When the civil or labor case or case before an
administrative agency of the government wherein
the presence of the alien subject of the HDO/ WLO
has been dismissed by the court or by appropriate
government agency, or the alien has been
discharged as a witness therein, or the alien has
been allowed to leave the country. (Section 5, DOJ
Department Order No. 41).
2.
Against the respondent, irrespective of
nationality in criminal cases pending Preliminary
Investigation, Petition for Review or Motion for
Reconsideration BEFORE the DOJ or any of its
provincial or city prosecution offices;
3. The Secretary of Justice may likewise issue a WLO
against any person, either motuproprioor upon
request of any government agencies, including
commissions, task forces or similar entities created
by the Office of the President, pursuant to the
Anti- Trafficking of Persons Act of 2003 (RA 9208)
and/ or in connection with any investigation being
conducted by it, or in the interest of national
security, public safety or public health. (Section 2,
DOJ Department Order 41)
Q: What is the validity of a WLO?
A: A WLO issued shall be valid for sixty (60) days
unless sooner terminated or extended, for a nonextendible period of not more than sixty (60) days.
(Section 4, DOJ Department Order No. 41)
Q: Where should permission to leave the country
be filed?
A: Permission to leave the country should be filed in
the same court where the case is pending because
they are in the best position to judge the propriety
and implication of the same.(Santiago v. Vasquez,
G.R. No. 99289-90, January 27, 1993)
Q: What is the remedy against an HDO/ WLO?
Q: How about the HDO/WLO issued by the DOJ

either motuproprio or upon request of
government functionaries/ agencies, when may
such be lifted?
A: Any HDO/ WLO issued by the Secretary of Justice
either motuproprio or upon request of government
functionaries/ agencies, when the adverse party is
the Government or any of its agencies or
instrumentalities, or in the interest of national
security, public safety or public health, may be
lifted or recalled ANYTIME if the application is
favorably
indorsed
by
the
Government
functionaries/ offices who requested the issuance
of the HDO/ WLO. (Section 5, DOJ Department
Circular No. 41)
A: A WLO may be attacked by filing a motion for

cancellation or by getting an Allow Departure Order
from the DOJ or by filing a Motion to Lift Hold
Departure Order.
Q: What is an Allow Departure Order (ADO)?
A: An Allow Departure Order is a directive that
allows the traveler to leave the territorial
jurisdiction of the Philippines. This is issued upon
application to the Commissioner of Immigration
and the appropriate government agency. (An
outline of Philippine Immigration and Citizenship
Laws, Volume I, Atty. Rolando P. Ledesma, page 34).
Q: When is ADO issued?
Q: When may a Watch List Order (WLO) be issued?

A: The Secretary of Justice may issue a WLO under
any of the following circumstances:
1. Against the accused, irrespective of nationality in
criminal cases pending trial before the RTC or
before courts below the RTCs;
254
A: Any person subject of an HDO/ WLO pursuant to

Department Order No. 41, who intends, for some
exceptional reasons, to leave the country may,
upon application under oath with the Secretary of
Justice, be issued an ADO upon submission of the
following requirements:
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
1. Affidavit stating clearly the purpose, inclusive
period of the intended travel, and undertaking to
immediately report to the DOJ upon return; and
7.
2. Authority to travel or travel clearance from the

court or appropriate government office where the
case upon which the issued HDO/ WLO was based is
pending or from the investigating prosecutor in
charge of the subject case.
8.
9.
to have compulsory process issued to

secure the attendance of witnesses and
production of other evidence in his
behalf;
to have speedy, impartial and public trial;
and
to appeal on all cases allowed by law and
in the manner prescribed by law (Sec. 1).
Q: What does the right to be heard mean?

Q: What is the remedy of a person who is not the
same person whose name appears in the HDO/
WLO?
A: Any person who is prevented from leaving the
country because his/ her name appears to be the
same as the one that appears in the HDO/ WLO
may upon application under oath obtain a
Certification to the effect that said person is not the
same person whose name appears in the issued
HDO/ WLO upon submission of the following
requirements:
1. Affidavit of Denial;
2. Photocopy of the page of the passport bearing
the personal details;
3. Latest clearance from the National Bureau of
Investigation; and
4. Clearance from the court or appropriate
government agency when applicable.
G. RIGHTS OF THE ACCUSED
Note: The rule enumerates the rights of a person
accused of an offense which are both constitutional as
well as statutory, save the right to appeal, which is
purely statutory in character.
1. RIGHTS OF ACCUSED AT THE TRIAL

Q: What are the rights of the accused at the trial?
A: Right:
1. to be presumed innocent until the
contrary is proved beyond reasonable
doubt;
2. to be informed of the nature and the
cause of the accusation against him;
3. to be present and defend in person and
by counsel at every stage of the
proceeding;
4. to testify as a witness in his own behalf
but subject to cross- examination on
matters covered by direct examination;
5. to exempt from being compelled to be a
witness against himself (against selfincrimination);
6. to confront and cross examine the
witnesses against him at the trial;
A: It means that the accused must be given the

opportunity to present his case either by way of
oral or verbal arguments, or by way of pleadings.
PRESUMPTION OF INNOCENCE
Q: What is the meaning of the right of
presumption of innocence?
A: The right means that the presumption must be
overcome by evidence of guilt beyond reasonable
doubt. Guilt beyond reasonable doubt means that
there is moral certainty as to the guilt of the
accused. Conviction should be based on the
strength of the prosecution and not on the
weakness of the defense. The significance of this is
that accusation is not synonymous with guilt.
Q: What are the exceptions to the presumption of
innocence?
A:
1.
2.
In cases of self-defense, the person

invoking self defense is presumed guilty.
In this case, a reverse trial will be held.
The legislature may enact that when
certain facts have been proved, they shall
be prima facie evidence of the existence
of guilt of the accused and shift the
burden of proof provided there be a
rational connection between the facts
proved and the ultimate fact presumed so
that the inference of the one from proof
of the other is not an unreasonable and
arbitrary experience (People v. Mingoa,
G.R. No. L-5371, Mar. 26, 1953).
E.g.:
a. Unexpected flight of the accused
b. Failure to explain possession of
stolen property
c. Failure to account funds and
property of a public officer entrusted
to him
Q: What is reasonable doubt?

A: It is the doubt engendered by an investigation of
the whole proof and an inability, after such

255

investigation, to let the mind rest easy upon the
certainty of guilt. Absolute certainty is not
demanded by law to convict of any criminal charge
but moral certainty is required as to every
proposition of proof requisite to constitute the
offense.
variance between the information and the evidence

does not alter the nature of the offense, nor does it
determine or qualify the crime or penalty, so that
even if a discrepancy exists, this cannot be pleaded
as a ground for acquittal (People v. Noque GR No.
175319, January 15, 2010).
Q: What is the equipoise rule?

A: Where the evidence of the parties in a criminal
case are evenly balanced, the constitutional
presumption of innocence should tilt in favor of the
accused who must be acquitted.
Q: What is a reverse trial?
A: A reverse trial happens if the accused admits the
killing but claims self-defense. He must first
establish the elements of self-defense in order to
overturn the presumption that he was guilty of the
offense.
RIGHT TO BE INFORMED
Q: What is meant by the accuseds right to be
informed?
A: The right requires that the information should
state the facts and circumstances constituting the
crime charged in such a way that a person of
common understanding may easily comprehend
and be informed of what it is about.
Q: May the right to be informed be waived?
RIGHT TO BE PRESENT DURING TRIAL

Q: May the right to be present during the trial be
waived?
A: Yes, by:
1. a waiver pursuant to the stipulation set
forth in his bail;
2. absence of the accused without justifiable
cause at the trial of which he had notice
shall be considered a waiver of his right to
be present thereat; and
3. if the accused jumps bail, such shall be an
automatic waiver of the right to be
present on all subsequent trial dates until
custody over him is regained (Sec. 1(c)).
Note: The accused may be compelled to be present
despite waiver for purposes of identification, but if the
accused manifest in open court that he is indeed the
accused, such shall also be considered a waiver
thereof.
Q: What are the effects of waiver of the right to

appear by the accused?
A:
1.
2.
A: The right to be informed of the nature and cause

of the accusation may not be waived.
3.
Q: Noque was convicted for the crime of selling
and possessing methamphetamine hydrochloride.
On appeal, Noque claimed that his conviction
violated his right to be informed of the nature and
cause of the accusations against him since the
charges in the Information are for selling and
possessing methamphetamine hydrochloride but
what was established and proven was the sale and
possession of ephedrine. Is the appellants right to
be informed of the nature and cause of accusation
violated?
A: NO. The Information filed was for the crimes of
illegal sale and illegal possession of regulated drugs.
Ephedrine has been classified as a regulated drug; it
is classified as the raw material of shabu. Under
Sections 4 and 5, Rule 120 of the Rules of Court, an
offense charged is necessarily included in the
offense proved when the essential ingredients of
the former constitute or form part of those
constituting the latter. At any rate, a minor
256
It is also a waiver to present evidence;

Prosecution can present evidence despite
the absence of the accused; and
The court can decide even without
accuseds evidence.
RIGHT TO TESTIFY AS A WITNESS
Q: Distinguish an accused as a witness from an

ordinary witness.
A:
Ordinary
Witness
May
be
compelled
to
take the witness
stand and claim
the right against
selfincrimination as
each question
requiring
an
incriminating
answer is asked
Accused as Witness
May altogether refuse to take the
witness stand and refuse to
answer any and all questions.
Note: If the accused testifies in his
own behalf, then he may be crossexamined as any other witness. He
may not, on cross examination,
refuse to answer any question on
the ground that the answer will
give or the evidence that he will
produce would have tendency to
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CRIMINAL PROCEDURE
him.
XPN: Immunity statutes such as:
incriminate him for the crime that

he was charged.
1.
May be crossexamined as to
any
matter
stated in the
direct
examination or
connected
therewith.
But he may refuse to answer any

question incriminating him for an
offense distinct from that which he
is charged.
May be cross examined but only
on matters covered by his direct
examination.
Note: If the accused refuses to be
cross-examined, the testimony of the
accused who testifies on his own
behalf will not be given weight and
will have no probative value because
the prosecution will not be able to
test its credibility.
Forfeiture of illegally obtained wealth

(R.A. 1379)
2. Bribery and graft cases (R.A. 749)
Q: Distinguish use immunity from transactional
immunity.
A:
Use Immunity
Transactional Immunity
Witness
compelled
testimony and the fruits
thereof cannot be used in
subsequent prosecution of a
crime against him.
Witness
can
still
be
prosecuted
but
the
compelled testimony cannot
be used against him
Witness immune from

prosecution of a crime to
which his compelled
testimony relates.
Witness
cannot
prosecuted at all
be
Q: As counsel of an accused charged with

homicide, you are convinced that he can be
utilized as a State witness. What procedure will
you take? Explain.
Q: Does the right against self-incrimination include

the furnishing of a signature specimen?
A: As counsel for the accused, I will advise my client

to ask for a reinvestigation and convince the
prosecutor for him to move for the discharge of my
client as a State witness or the accused can apply as
a State witness with the Department of Justice
pursuant to R.A. 6981, the Witness Protection,
Security and Benefit Act. The right to prosecute
vests the prosecutor with a wide range of
discretion, including what and whom to charge.
A: Yes, because writing is not a purely mechanical

act for it involves the application of intelligence and
attention. If such person is asked whether the
writing in a document is his or not, and he says it is
not, he deemed to have waived his right. On the
other hand, if the accused simply refused to answer
the question inquiring about the handwriting, no
waiver of the right took place (Beltran v. Samson
G.R. No. 32025, Sept. 23, 1929).
Q: What is the effect if the accused refuses to

testify?
Note: The right against self-incrimination is available

not only in criminal cases but also in government
proceedings, civil, administrative proceedings where
there is a penal sanction involved.
A:
GR: The silence of the accused should not be
used against him.
Q: Is the right of the accused against selfincrimination waivable?
XPN:
1. When the prosecution has already
established a prima facie case, the
accused must present proof to overturn
the evidence; and
2. Defense of the accused is alibi and does
not testify, the inference is that the alibi is
not believable.
A: Yes. It may be waived by the failure of the

accused to invoke the privilege after the
incriminating question is asked and before his
answer.
RIGHT AGAINST SELF-INCRIMINATION

Q: What is the scope of the right against selfincrimination?
A:
GR: The right covers only testimonial
compulsion and not the compulsion to produce
real and physical evidence using the body of the
accused.
RIGHT TO CROSS-EXAMINATION
Q: What does the right of the accused to confront
and cross-examine a witness against him
contemplate?
A: Confrontation is the act of setting a witness faceto-face with the accused so that the latter may
make any objection he has to the witness which
must take place in the court having jurisdiction to
permit the privilege of cross-examination.
In addition, the accused is entitled to have
compulsory process issued to secure the

257

attendance of witness and production of other
evidence in his behalf [Sec. 1 (g)].
Note: The main purpose of this right to confrontation
is to secure the opportunity of cross-examination and
the secondary purpose is to enable the judge to
observe the demeanor of witness.
Q: Does the right to confrontation cover witnesses

who did not appear or was not presented at the
trial?
4.
Note: There is no violation of the right where the delay

is imputable to the accused.
Q: What are the remedies available to the accused

when his right to speedy trial is violated?
A:
1.
2.
A: No, the right to confrontation applies to

witnesses who appear before the court; the witness
must be present for the right to confrontation to
attach. What is important is that the accused is
given the right to cross-examine the witness
presented (People v. Honrada, G.R. Nos. 112178-79,
Apr. 21, 1995).
Q: What is the rule with respect to the testimony
of a witness who dies or becomes unavailable?
A: If the other party had the opportunity to crossexamine the witness before he died or became
unavailable, the testimony may be used as
evidence. However, if the other party did not have
the opportunity to cross-examine before the death
or unavailability of the witness, the testimony will
have no probative value.
RIGHT TO COMPULSORY PROCESS
Q: What is the right to compulsory process mean?
Prejudice to the accused resulting from

the delay.
3.
4.
Ask for the trial of the case;

Unreasonable delay of the trial of a
criminal case as to make the detention of
defendant illegal gives ground for habeas
corpus as a remedy for obtaining release;
Mandamus proceeding to compel the
dismissal of the information; or
Ask for the trial of the case and then
move to dismiss (Gandicela v. Lutero, G.R.
No. L-4069, Mar. 5, 1951).
Q: What is the rule regarding trial by publicity?

A: The right of the accused to a fair trial is not
incompatible with free press. Pervasive publicity is
not per se prejudicial to the right to a fair trial. To
warrant the finding of prejudicial publicity, there
must be allegations and proof that judges have
been unduly influenced, not simply that they might
be due to the barrage of publicity (People v.
Teehankee, G.R. Nos. 111206-08, Oct. 6, 1995).
Q: Is the rule that the trial should be public
absolute?
A: This refers to the right of the accused to have a

subpoena and/or subpoena ducestecum issued in
his behalf in order to compel the attendance of
witnesses and the production of other evidence.
A: No. The court may bar the public in certain cases,

such as when the evidence to be presented may be
offensive to decency or public morals; or in rape
cases, where the purpose of some persons in
attending is merely to ogle at the parties.
Q: What is the effect if a witness refuses to testify

when he is required?
RIGHT TO APPEAL
A: The Court should order the witness to give bail or

order his arrest, if necessary. Failure to obey a
subpoena amounts to contempt of court.
RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL
Q: What are the facts to be considered to
determine if the right to speedy trial has been
violated?
A: The right to appeal from a judgment of

conviction is fundamentally of statutory origin. It is
not a matter of absolute right independently of
constitutional or statutory provision allowing such
appeal.
Q: Can the right to appeal be waived?
A:
A:
1.
2.
3.
258
Q: What is the nature of the right to appeal?
Length of the delay;

Reason for the delay;
The accuseds assertion or non assertion
of the right; and
GR: The right to appeal can be waived expressly

or impliedly.
XPN: Where the death penalty is imposed, such
right cannot be waived as the review of the
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
judgment by the CA is automatic and
mandatory pursuant to Administrative Circular
No. 20-2005 which is an order directing regional
trial courts to directly forward to the Court of
Appeals records of criminal cases which are
subject of automatic review or regular appeals.
Note: When the accused flees, after the case has been
submitted to court for decision, he will be deemed to
have waived his right to appeal from the judgment
rendered against him (People v. AngGioc, G.R. No. L48547, Oct. 31, 1941).
RIGHT TO COUNSEL
Republic Act No. 7438
Q: Distinguish the right to counsel during trial from
right to counsel during custodial investigation?
A: Right to counsel during trialmeans the right of
the accused to an effectivecounsel. Counsel is not
to prevent the accused from confessing but to
defend the accused. On the other hand, right to
counsel during custodial investigation requires the
presence of competent and independent counsel
who is preferably the choice of the accused. The
reason for such right is that in custodial
investigation, there is a danger that confessions can
be exacted against the will of the accused since it is
not done in public.
Q: What are the requisites for a valid custodial
investigation report?
A: RA No. 7438 provides for the following requisites
for a valid custodial investigation report:
1. The report shall be reduced to writing by the
investigating officer;
2.If the person arrested or detained does not know
how to read or write, it shall be read and
adequately explained to him by his counsel or by
the assisting counsel in the language or dialect
known to such arrested or detained person. This is
to be done before the report is signed. If this
procedure is not done, the investigation report shall
be null and void and of no effect whatsoever.
Q: Is the statement signed by the accused
admissible if during the investigation, the assisting
lawyer leaves, or comes and goes?
A: No. It is inadmissible because the lawyer should
assist his client from the time the confessant
answers the first question asked by the
investigating officer until the signing of the
extrajudicial confession (People v. Morial, G.R. No.
129295, Aug. 15, 2001).
Note: The right to counsel covers the period beginning

from custodial investigation until rendition of
judgment and even on appeal (People v. Serzo, Jr., G.R.
No. 118435, June 20, 1997).
Q: May the right to counsel during trial be waived?

A: Yes. It can be waived when the accused
voluntarily submits himself to the jurisdiction of the
court and proceeds with his defense. The accused
may defend himself in person only if the court is
convinced that he can properly protect his rights
even without the assistance of counsel. The
defendant cannot raise the question of his right to
have an attorney for the first time on appeal.
Q: May an accused defend himself without the
assistance of counsel?
A: Yes, but only when it sufficiently appears that he
can properly protect his right without the
assistance of counsel [Sec. 1(c)].
Q: What is the rule if the accused makes an
extrajudicial confession?
A: Any extrajudicial confession made shall also be in
writing and signed by the person, detained or under
custodial investigation in the presence of his
counsel, or in the latters absence, upon a valid
waiver, and in the presence of any of the parents,
older brothers and sisters, his spouse, the municipal
mayor, the municipal judge, district school
supervisor, or priest or minister of the gospel as
chosen by him; otherwise such extrajudicial
confession shall be inadmissible as evidence in any
proceeding (Sec. 2(d) RA 7438)
Q: An affidavit was made by the accused without
the presence of counsel during preliminary
investigation, admitting the commission of a
crime. When presented during trial as evidence,
the accused objected claiming that there was a
violation of his right to a competent and
independent counsel. Is the accused correct?
A: No. The constitutional right to a competent and
independent counsel exists only in custodial
interrogations, or in-custody interrogation of
accused persons. A preliminary investigation is an
inquiry or a proceeding to determine whether there
is sufficient ground to engender a well-founded
belief that a crime has been committed, and that
the respondent is probably guilty thereof and
should be held for trial. Evidently, a person
undergoing preliminary investigation before the
public prosecutor cannot be considered as being

259

under custodial investigation (People v. Ayson, G.R.
No. L-28508-9, July 7, 1989).
2. RIGHTS OF PERSONS UNDER CUSTODIAL
INVESTIGATION
Q: What is custodial investigation?
A: Custodial Investigation is the stage where the
police investigation is no longer a general inquiry
into an unsolved crime but has begun to focus on a
particular suspect taken into custody by the police
who carry out a process of interrogation that lends
itself to elicit incriminating statements (People v.
Sunga, 399 SCRA 624).
Sec. 2(f) of RA 7438 expanded the meaning of
custodial investigation. It shall include the practice
of issuing an invitation to a person who is
investigated in connection with an offense he is
suspected to have committed, without prejudice to
the liability of the inviting officer for any violation
of law.
Q: When do the rights in custodial investigation
attach?
A: The rights begin to operate at once as soon as
the investigation ceases to be a general inquiry into
an unsolved crime and direction is then aimed upon
a particular suspect who has been taken into
custody and to whom the police would then direct
interrogatory question which tend to elicit
incriminating statements (People v. Jose Ting
LanUy, G.R. No. 157399, Nov. 17, 2005). It includes
the practice of issuing an invitation to a person
who is investigated in connection with an offense
he is suspected to have committed.
Q: What is the importance of the right to counsel
in custodial investigation?
A: The importance of the right to counsel is so vital
that under existing law, in the absence of any
lawyer, no custodial investigation shall be
conducted and the suspected person can only be
detained by the investigating officer in accordance
with the provisions of Art. 125 of the Revised Penal
Code. (Section 3c RA 7438)
The purpose of providing counsel to a person under
custodial investigation is to curb the uncivilized
practice of extracting a confession. (People v.
Duenas, Jr. 426 SCRA 666).
Q: What are the rights of persons under Custodial
Investigation?
260
A:
1. The person arrested, detained, invited or under
custodial investigation must be informed in a
language known to and understood by him of the
reason for the arrest and he must be shown the
warrant of arrest, if any; every other warnings,
information or communication must be in a
language known to and understood by said person;
2. He must be warned that he has a right to remain
silent and that any statement he makes may be
used as evidence against him;
3. He must be informed that he has the right to be
assisted at all times and have the presence of an
independent and competent lawyer, preferably of
his own choice;
4. He must be informed that if he has no lawyer or
cannot afford the services of a lawyer, one will be
provided for him; and that a lawyer may also be
engaged by any person in his behalf, or may be
appointed by the court upon petition of the person
arrested or one acting in his behalf;
5. That whether or not the person arrested has a
lawyer, he must be informed that no custodial
investigation in any form shall be conducted except
in the presence of his counsel or after a valid waiver
has been made;
6. The person arrested must be informed that, at
any time, he has the right to communicate or
confer by the most expedient means - telephone,
radio, letter or messenger - with his lawyer (either
retained or appointed), any member of his
immediate family, or any medical doctor, priest or
minister chosen by him or by any one from his
immediate family or by his counsel, or be visited
by/confer with duly accredited national or
international non-government organization. It shall
be the responsibility of the officer to ensure that
this is accomplished;
7. He must be informed that he has the right to
waive any of said rights provided it is made
voluntarily, knowingly and intelligently and ensure
that he understood the same;
8. In addition, if the person arrested waives his right
to a lawyer, he must be informed that it must be
done in writing AND in the presence of counsel,
otherwise, he must be warned that the waiver is
void even if he insist on his waiver and chooses to
speak;
9. That the person arrested must be informed that
he may indicate in any manner at any time or stage
of the process that he does not wish to be
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
questioned with warning that once he makes such
indication, the police may not interrogate him if the
same had not yet commenced, or the interrogation
must ceased if it has already begun;
10. The person arrested must be informed that his
initial waiver of his right to remain silent, the right
to counsel or any of his rights does not bar him
from invoking it at any time during the process,
regardless of whether he may have answered some
questions or volunteered some statements;
11. He must also be informed that any statement or
evidence, as the case may be, obtained in violation
of any of the foregoing, whether inculpatory or
exculpatory, in whole or in part, shall be
inadmissible in evidence (People v. Mahinay, G.R.
No. 122485, Feb. 1, 1999).
Q: What are the requirements in order that an
admission of guilt of an accused during a custodial
investigation be admitted in evidence?
A: An admission of guilt during a custodial
investigation is a confession. To be admissible in
evidence, the confession must be voluntary, made
with the assistance of competent and independent
counsel, express and in writing.
H. ARRAIGNMENT AND PLEA
b.specify the details desired. (Section 9, Rule 116)
b.Suspension of arraignment- Upon motion, the

proper party may ask for the suspension of the
arraignment in the following cases:
1. That the accused appears to be suffering from an
unsound mental condition which effectively renders
him unable to fully understand the charge against
him and to plead intelligently thereto. In such case,
the court shall order his mental examination and, if
necessary his confinement for such purpose;
2. That there exists a prejudicial question; and
3. There is a petition for review of the resolution of
the prosecutor which is pending at either the DOJ,
or of the Office of the President (Section 11, Rule
116)
Note: The period of suspension shall not exceed
sixty (60) days counted from the filing of the
petition with the reviewing office.
c. Motion to Quash At any time before entering

his plea, the accused may move to quash the
complaint or information on any of the grounds
under Section 3, Rule 117 in relation to Section 1 of
the same rule;
d. Challenge the validity of the arrest or legality of
the warrant issued or assail the regularity or
question the absence of preliminary investigation of
the charge otherwise the objection is deemed
waived.
1. ARRAIGNMENT AND PLEA, HOW MADE

Q: Where is arraignment made?
Q: What is arraignment?
A: Arraignment is the proceeding in a criminal case,
whose object is to fix the identity of the accused, to
inform him of the charge and to give him an
opportunity to plead, or to obtain from the accused
his answer, in other words, his plea to the
information.
Note: Arraignment is indispensable as the means for
bringing the accused into court and notifying him of
the cause he has to meet. (Borja v. Mendoza, 77 SCRA
42)
Q: What are the options of the accused before

arraignment and plea?
A: Before arraignment and plea, the accused may
avail of any of the following:
A: The accused must be arraigned before the court

where the complaint or information was filed or
assigned for trial. (Section 1a, Rule 116)
Q: How is arraignment made?
A: Arraignment is made:
1. in open court where the complaint or
information has been filed or assigned for trial;
2. by the judge or clerk of court;
3. By furnishing the accused with a copy of the
complaint or information;
4. Reading it in a language or dialect known to the
accused;
5. Asking accused whether he pleads guilty or not
guilty.
6. Both arraignment and plea shall be made of
record but failure to enter of record shall not affect
the validity of the proceedings.
a. Bill of Particulars- The accused may, before

arraignment, move for a bill of particulars to enable
him to properly plead and prepare for trial.
Q: When is arraignment made?
Note: The motion shall:

a. specify the alleged defects of the complaint or
information, and shall
A: Under the Rules of Court, the arraignment shall

be made within thirty (30) days from the date the
court acquires jurisdiction over the person of the

261

accused, unless a shorter period is provided by a
special law or a Supreme Court circular. (Section 1g,
Rule 116).
Q: What are the instances when arraignment is
held within a shorter period?
A:
1. When an accused is under preventive detention,
his case should be raffled within 3 days from filing
and accused shall be arraigned within 10 days from
receipt by the judge of the records of the case (RA
8493 Speedy Trial Act)
2. Where the complainant is about to depart from
the Philippines with no definite date of return, the
accused should be arraigned without delay.
3. Cases under RA 7610 (Child Abuse Act), the trial
shall be commenced within 3 days from
arraignment.
4. Cases under the Dangerous Drugs Act.
5. Cases under SC AO 104-96 ie., heinous crimes,
violations of the Intellectual Property Rights law,
these cases must be tried continuously until
terminated within 60 days from commencement of
the trial and to be decided within 30 days from the
submission of the case.
Q: What are the different rules on arraignment?
A:
1. Trial in absentia may be conducted only after
valid arraignment.
2. Accused must personally appear during
arraignment and enter his plea (counsel cannot
enter plea for accused)
3. Accused is presumed to have been validly
arraigned in the absence of proof to the contrary.
4. Generally, judgment is void if accused has not
been validly arraigned.
5. If accused went into trial without being
arraigned, subsequent arraignment will cure the
error provided that the accused was able to present
evidence and cross examine the witnesses of the
prosecution during trial.
Note: If an information is amended in substance which
changes the nature of the offense, arraignment on the
amended information is MANDATORY, except if the
amendment is only as to form. (Teehankee Jr. v.
Madayag GR NO 103102, March 6, 1992)
Q: Is the presence of the accused required during

arraignment?
A: The accused must be present at the arraignment
and personally enter his plea. (Section 1b, Rule 116)
262
Q: Is the presence of the offended party required

in arraignment?
A: The private offended party shall be required to
appear in the arraignment for the following
purposes:
a.plea bargaining;
b. determination of civil liability ;and
c. other matters requiring his presence.
Note: in case the offended party fails to appear
despite due notice, the court may allow the accused to
enter a plea of guilty to a lesser offense which is
necessarily included in the offense charged with the
conformity of the trial prosecutor alone. (Section 1f,
Rule 116)
Q: Accused appellant assailed his conviction

because he claimed that he was not properly
arraigned since he was only arraigned after the
case was submitted for decision. The absence of
arraignment was not objected by the appellant; it
is only upon his conviction that appellant raised
the issue of absence of arraignment.
May
arraignment be made after a case has been
submitted for decision?
A: Yes. No protest was made when appellant was
subsequently arraigned. The parties did not
question the procedure undertaken by the trial
court. The appellants rights were not prejudiced
since he has actively participated in the hearings
conducted (People v. Pangilinan 518 SCRA 358).
Q: What is plea?
A: It pertains to the matter which the accused, on
his arraignment, alleges in answer to the charge
against him.
Q: What is the period to plea?
A:
1. When the accused is under preventive detention:
His case shall be raffled and its records transmitted
to the judge to whom the case was raffled within 3
days from the filing of the information or complaint
and the accused arraigned within 10 days from the
date of the raffle. The pre-trial conference of his
case shall be held within 10 days after arraignment;
2. When the accused is NOT under preventive
detention: Unless a shorter period is provided by
special law or Supreme Court circular, the
arraignment shall be held within 30 days from the
date the court acquires jurisdiction over the person
of the accused. The time of the pendency of a
motion to quash, or for bill of particulars, or other
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
causes justifying suspension of the arraignment,
shall be excluded in computing the period.
2. WHEN SHOULD PLEA OF NOT GUILTY BE

ENTERED
Q: What is the effect of a plea of guilty?
Q: When should a plea of not guilty be entered?
A: A plea of guilty is a judicial confession of guilt

(People v. Comendador GR No. L-38000, September
19, 1980). It is an unconditional plea of guilt admits
of the crime and all the attendant circumstances
alleged in the information including the allegations
of conspiracy and warrants of judgment of
conviction without need of further evidence
A:
1. When the accused so pleaded;
2. When he refuses to plead;
3. Where in admitting the act charged he sets up
matters of defense or with lawful justification;
4. When he enters a conditional plea of guilty;
5. Where after a plea of guilty he introduces
evidence of self- defense or other exculpatory
circumstances;
6. When the plea is indefinite or ambiguous.
XPN:
1. Where the plea of guilt was compelled by
violence or intimidation;
2. When the accused did not fully understand the
meaning and consequences of his plea;
3. Where the information is insufficient to sustain
conviction of the offense charged;
4. Where the information does not charge an
offense, any conviction thereunder being void;
5. Where the court has no jurisdiction.
XPN to the XPN: If what the accused would prove is
an exempting circumstance, it would amount to a
withdrawal of his plea of not guilty.
Note: For non-capital offenses, the reception of
evidence is merely discretionary on the part of the
court. If the information or complaint is sufficient for
the judge to render judgment on a non-capital offense,
he may do so. But if the case involves a capital offense,
the reception of evidence to prove the guilt and
degree of culpability of the accused is mandatory.
Q: May the plea of guilty be collaterally attacked?
3. WHEN MAY ACCUSED ENTER A PLEA OF GUILTY

TO A LESSER OFFENSE
Q: What is plea bargaining?
A: Plea bargaining in criminal cases is a process
whereby the accused and the prosecution work a
mutually satisfactory disposition of the case subject
to court approval. It usually involves the
defendants pleading guilty to a lesser offense or to
only one or some of the counts of a multicount
indictment in return for a lighter sentence than that
for the graver charge (Daan v. Sandiganbayan GR
No. 163972-77, March 28, 2008).
Q: May the accused enter a plea of guilty to a
lower offense?
A: Yes:
1.
A:
GR:No. A plea of guilty entered by one who is
fully aware of the direct consequences,
including the actual value of any commitments
made to him by court, the prosecutor or his
own counsel must stand.
2.
XPN: It was induced by:

1.
2.
3.
threats;
misrepresentation; or
improper promises as it has no proper
relationship to the prosecutors business
(People v. Villasco, G.R. No. L-4706, July
24, 1951).
Note: It is only when the consensual character of the

plea is called into question that the validity of a guilty
plea may be impaired.
During arraignment
a. If the offended party is present, the
latter must consent with the
prosecutor consented plea; and
b. That the lesser offense is necessarily
included in the offense charged.
After arraignmentbut beforetrial provided
the following requisites are present:
a. The plea of guilty is withdrawn;
b. The plea of not guilty and the
withdrawal of the previous guilty plea
shall be made before trial;
c. The lesser offense is necessarily
included in the offense charged; and
d. The plea must have the consent of the
prosecutor and the offended party
Note: No amendment of complaint or
information is necessary (Sec. 2).
3.
After prosecution rests allowed only

when the prosecution does not have

263

sufficient evidence to establish guilt for
the crime charged.
4.
2.
ACCUSED PLEAD GUILTY TO CAPITAL

OFFENSE, WHAT COURT SHOULD DO
3.
Q: What is the duty of the court after the accused

pleads guilty to a capital offense?
A: When the accused pleads guilty to a capital
offense, the court shall:
1. Conduct a searching inquiry into the:
a. Voluntariness of the plea and
b. Full comprehension of the consequences of
the plea;
2. Require the prosecution to prove guilt and the
precise degree of his culpability;
3. Ask the accused if he desires to present evidence
in his behalf and allow him to do so if he desires.
However, the defendant after pleading guilty may
not present evidence as would exonerate him
completely from criminal liability such as proof of
self-defense.
6. IMPROVIDENT PLEA
Q: What is an improvident plea?
A: It is a plea without information as to all the
circumstances affecting it. It is based upon a
mistaken assumption or misleading information or
advice.
Q: Enumerate the instances of improvident plea.
A:
1.
2.
3.
Note: This procedure is mandatory, and a judge who

fails to observe it commits grave abuse of discretion.
Q: Why is the presentation of evidence required

after the plea of guilty?
A: To preclude any room for reasonable doubt in
the mind of either the trial court or of the Supreme
Court, on review as to the possibility that there
might have been misunderstanding on the part of
the accused as to the nature of the charges to
which he pleaded guilty; and to ascertain the
circumstances attendant to the commission of the
crime which justify or require the exercise of
greater or lesser degree of severity in the
imposition of prescribed penalties. (People v. Basa,
51 SCRA 317)
The judge must convince himself that

there exists a rational basis for finding of
guilt based on accuseds testimony
Inform the accused of the exact length of
imprisonment and the certainty that he
will serve it in a national penitentiary
4.
5.
Plea of guilty was compelled by violence

or intimidation;
The accused did not fully understand the
meaning and consequences of his plea;
Insufficient information to sustain
conviction of the offense charged;
Information does not charge an offense;
Court has no jurisdiction.
Q: When may an improvident plea be withdrawn?

A: The court may permit an improvident plea of
guilty to be withdrawn at any time before the
judgment of conviction becomes final and be
substituted by a plea of not guilty.
Note: The withdrawal of a plea of guilty is not a matter
of right to the accused but addressed to the sound
discretion to the trial court (Sec. 5).
Q: What is the effect of such withdrawal?
5. SEARCHING INQUIRY
A: The court shall set aside the judgment of

conviction and re-open the case for new trial.
Q: What are the objectives of a searching inquiry?
7. GROUNDS FOR SUSPENSION OF ARRAIGNMENT
A: To determine the voluntariness of the plea and

whether the accused understood fully the
consequence of his plea.
Q: May arraignment be suspended?
Q: What is the meaning of the duty of the judge to

conduct a searching inquiry? (elements of
searching inquiry)
A: In all cases, the judge must convince himself:
1. The judge must convince himself that the
accused is entering the plea voluntarily
and intelligently;
264
A: Yes, upon motion by the proper party on the

following grounds:
1.
2.
3.
The accused appears to be suffering from

an unsound mental condition which
effectively renders him unable to fully
understand the charge against him and to
plead intelligently thereto;
There exists a valid prejudicial question;
A petition for review of the resolution of
the prosecutor is pending at the
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CRIMINAL PROCEDURE
Department of Justice or the Office of the
President (Sec. 11); provided that the
period of suspension shall not exceed 60
days counted from the filing of the
petition;
4. There are pending incidents such as:
a. Motion to Quash
b. Motion for Inhibition
c. Motion
for
Bill
of
Particulars
A: The motion to quash must be:

1. in writing;
2. signed by the accused or his counsel; and
3. specify the factual and legal grounds on
which it is based.
Note: The period of suspension shall not

exceed sixty (60) days counted from the
filing of the petition with the reviewing
office (Sec. 11).
Q: What are the grounds for a motion to quash the

complaint or information?
Note: The court shall not consider any other ground

other than those specifically stated in the motion to
quash except lack of jurisdiction over the offense
charged (Sec. 2).
A:
I. MOTION TO QUASH
1.
Q: What is motion to quash?
2.
A: Itis a special pleading filed by the defendant

before entering his plea, which hypothetically
admits the truth of the facts spelled out in the
complaint or information at the same time that it
sets up a matter which, if duly proved, would
preclude further proceedings.
3.
Q: When may a motion to quash an information or

complaint be filed?
A: At any time before entering his plea, the accused
may move to quash the information or complaint
(Sec. 1, Rule 117).
4.
5.
6.
7.
8.
Note: The court is not authorized to motuproprio

initiate a motion to quash by issuing an order requiring
an explanation why the information should not be
quashed. The court has discretion to dismiss the case if
the info is not sufficient or on any ground provided by
law, or to dismiss the info for a different one.
Q: May a motion to quash be filed after the plea of

the accused?
A:
GR: No motion to quash can be entertained
after accused enters his plea.
XPN: On the following grounds:
1. Lack of jurisdiction over the offense
charged;
2. The facts alleged charged no offense;
3. That the offense or the penalty has
prescribed; or
4. Double jeopardy.
1. GROUNDS
Q: What are the requirements for a valid motion
to quash?
That the facts charged do not constitute

an offense;
That the court trying the case has no
jurisdiction over the offense charged;
person of the accused;
That the officer who filed the information
had no authority to do so;
That the information does not conform
substantially to the prescribed form;
That more than one offense is charged
except when a single punishment for
various offense is prescribed by law;
That the criminal action or liability has
been extinguished;
That it contains various averments which
if true would constitute legal excuse or
justification;
Note: Only exempting circumstances
constitute a legal excuse or justification.
Justifying circumstances such as self-defense
must be proven.
9.
That the accused has been previously

convicted or acquitted of the offense
charged, or the case against him was
dismissed or otherwise terminated
without his express consent (double
jeopardy) (Sec. 3, Rule 117).
Note: Matters of defense are generally not a ground

for a motion to quash. They should be presented at
the trial
Q: Can lack of preliminary investigation be a

ground for a motion to quash?
A: No, the grounds under Sec. 3, Rule 117 are
exclusive in character. Accordingly, it was held that
lack of preliminary investigation is not a ground for
a motion to quash, not only because it is not stated
by the rule as one of the grounds, but also because

265

it does not impair the validity of the information,
render it defective or affect the jurisdiction of the
court over the case (People v. Yutila, G.R. No. L34332, Jan. 27, 1981).
Q: Can the accused move to quash on the ground
that he was denied due process?
Congress.
It is a private act which
must be pleaded and
proved by the person
pardoned because the
courts take no notice of
it.
It is a public act which

the courts have to take
judicial notice of.
Granted to one after

conviction.
Granted to classes of
persons or communities
who may be guilty of
political
offenses,
generally before or after
the institution of the
criminal prosecution and
sometimes
after
conviction.
Relieves the offender

from the consequences
of the offense of which
he is convicted. It only
serves as a relief from the
punishment but it does
not restore the political
rights of the person,
unless it is expressly
provided for in the
pardon.
Abolishes and puts into

oblivion the offense
itself. It is as though the
offense
was
never
committed.
A: No. Denial of due process is not one of the

grounds for a motion to quash.
Q: Can the court grant a motion to quash filed by
the accused on the following grounds: that the
court lacked jurisdiction over the person of the
accused and that the complaint charged more than
one offense?
A: No. A motion to quash on the ground of lack of
jurisdiction over the person of the accused must be
based only on this ground. If other grounds are
included, there is a waiver, and the accused is
deemed to have submitted himself to the
jurisdiction of the court.
Q: What are the grounds for extinction of criminal
liability?
A: Under Article 89 of the Revised Penal Code, it is
provided that criminal liability is totally
extinguished:
1. By the death of the convict, as to personal
penalties; and as to pecuniary penalties, liability
therefor is extinguished only when the death of the
offender occurs before final judgment;
2. By service of the sentence;
3. By amnesty, which completely extinguish the
penalty and all its effects;
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty; and
7. By the marriage of the offended woman, as
provided in Article 344 of the Revised Penal Code.
Q: Is the death of the offended party a ground for
the dismissal of the case?
A: No, the death of the offended party before final
conviction will not abate prosecution where the
offense charged is one against the State involving
peace and order as well as in private crimes (People
v. Misola, G.R. No. L-3606, Dec. 29, 1950).
Q: Distinguish pardon from amnesty.
A:
Pardon
Granted by the Chief
Executive.
266
Amnesty
Proclaimed
by
the
President, but it has to be
with the concurrence of
Q: In cases of violation of special laws, when will

the prescriptive period begin to run?
A: Violation of special law is malumprohibitum,
hence, the applicable statute requires that if
violation of special law is not known at the time,
the prescriptive period begins to run only from the
discovery thereof, which includes discovery of the
unlawful nature of the constitutive acts which
requires the evidence to be shown. (People v.
Duque, G.R. No. 100285, Aug. 18, 1992)
Note: Where the last day of the prescriptive period
for filing an information is a Sunday or legal
holiday, the information can no longer be filed on
the next working day. The remedy is for the fiscal
or prosecution to file the information on the last
working day before the criminal offense prescribes
(Yapdiangco v. Buencamino, G.R. No. L-31442, June
24, 1983).
Q: What is nolleprosequi?
A: It is a Latin term for we shall no longer
prosecute. It is a dismissal of the criminal case by
the government before the accused is placed on
trial and before he is called to plead, with the
approval of the court in the exercise of its judicial
discretion. It partakes of a non-user or
discontinuance in a civil suit and leaves the matter
in the same condition in which it was before the
commencement of the prosecution. It is not an
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CRIMINAL PROCEDURE
acquittal; it is not a final disposition of the case; and
it does not bar a subsequent prosecution for the
same offense. Thus, it can be refiled(Galvez v.
CA,G.R. No. 120715, Mar. 29, 1996).
XPNs: Instances where a motion to quash may

be filed AFTER plea:
1. Failure to charge an offense;
2. Lack of jurisdiction over the offense
charged;
3. Extinction of the offense or penalty;
4. The defendant would be placed in double
jeopardy.
Q: Is nolleprosequi the same as quashal?

A: No,although both have the same result the
dismissal of the case. A nolleprosequi is initiated by
the prosecutor while a quashal is upon motion to
quash filed by the accused.
Q: What is the effect of failure to move to quash
or failure to allege a ground?
Note: Right to file a motion to quash belongs only to

the accused. There is nothing in the rules which
authorizes the court or judge to motuproprio initiate a
motion to quash.
3. EFFECTS OF SUSTAINING THE MOTION TO

QUASH
A:
GR: It shall be deemed a waiver of any
objections.
XPN: Grounds based on:
1. the facts charged do not constitute an
offense;
2. the court trying the case has no
jurisdiction over the offense charged;
3. criminal liability has been extinguished;
and
4. that the accused has been previously
convicted or acquitted of the offense
charged, or the case against him was
dismissed or otherwise terminated
without his express consent (Sec. 9).
Q: What are the effects of granting a motion to

quash?
A:
1.
2.
2. DISTINGUISH FROM DEMURRER TO EVIDENCE
Q: Distinguish Motion to Quash from Demurrer to
Evidence
A:
MOTION TO QUASH
Filed
before
the
defendant enters his plea
Does not go into the
merits of the case but is
anchored on matters not
directly related to the
question of guilt or
innocence of the accused
Governed by Rule 117 of
the Rules on Criminal
Procedure
DEMURRER TO EVIDENCE
Filed
after
the
prosecution has rested its
case
Based
upon
the
inadequacy
of
the
evidence adduced by the
prosecution in support of
the accusation
Governed by Rule 119 of
the Rules on Criminal
Procedure
Q: When may the accused move to quash the

complaint or information?
A:
GR: The accused may move to quash the
complaint or information at any time BEFORE
entering his plea.
If an order sustaining the motion to quash

is made:
a. The court may order that another
complaint or information be filed
except on the ground of double
jeopardy and extinguishment of
criminal liability; and
b. If the accused is in custody he shall
not be discharged unless admitted to
bail;
If no order is made or if having made, no
information is filed within the time
specified in the order or within such time
as the court may allow for good cause,
the accused if in custody shall be
discharged unless he is in custody for
another charge (Sec. 5, Rule 117).
Q: Is the order granting the motion to quash

appealable?
A: Yes, because the order to that effect is a final
order, and not merely interlocutory. The accused
would not be placed in double jeopardy because
the accused has not been arraigned yet and the
dismissal was obtained with his expressed consent.
Q: Is the order denying the motion to quash
appealable?
A: No. It is interlocutory and not appealable.
Certiorari and prohibition are not the correct
remedies against an order denying a motion to
quash. The defendant should instead go to trial and
raise the special defense he had invoked in his
motion. And if after trial on the merits, an adverse
decision is rendered, remedy is to appeal in the

267

manner authorized by law (Bulaong v. CA, G.R. No.
78555, Jan. 30, 1990).
Q: What is the procedure if the motion to quash is
denied?
otherwise terminated without his express

consent (People v. Obsania, 23 SCRA
1249).
Q: When does the first jeopardy attach?
A:
1. The accused should plead;
2. Accused should go to trial without prejudice to
the special defenses he invoked in the motion;
3. Appeal from the judgment of conviction, if any,
and interpose the denial of the motion as an error
A:
Q: May an order denying a motion to quash

appealable?
Q: When does the second jeopardy attach?
1.
2.
3.
4.
Competent Court
Valid jurisdiction
Accused was arraigned
Accused pleaded
A:
A: No. An order denying the motion to quash is
INTERLOCUTORY and NOT APPEALABLE. Appeal in
due time as the proper remedy implies a previous
conviction as a result of a trial on the merits of the
case and does not apply to an interlocutory order
denying a motion to quash. (Acharon v. Purisima,
GR No. 23731, February 26, 1965)
4. EXCEPTION TO THE RULE THAT SUSTAINING THE
MOTION TO QUASH IS NOT A BAR TO ANOTHER
PROSECUTION
Q: Is an order granting a motion to quash a bar to
another prosecution?
A:
GR: An order sustaining the motion to quash is
not a bar to another prosecution for the same
offense.
XPN:
1. Double jeopardy; or
2. Criminal liability is extinguished (Sec. 6).
5. DOUBLE JEOPARDY
Q: What is double jeopardy?
A: It means that when a person is charged with an
offense and the case is terminated either by
acquittal or conviction or in any other manner
without the consent of the accused, the latter
cannot again be charged with the same or identical
offense.
Q: What are the elements of double jeopardy?
A:
1.
2.
3.
4.
268
A valid complaint or information

A competent court
The defendant pleaded to the charge
The defendant was acquitted or convicted
or the case against him was dismissed or
1.
2.
3.
4.
When the accused was acquitted;

When there is final conviction;
Dismissal on the merits
Dismissal without express consent
Q: What is the effect of double jeopardy on the

criminal and civil aspects of the case?
A: When double jeopardy exists, the conviction or
acquittal of the accused or the dismissal of the case
shall be a bar to another prosecution for the
offense charged, or for any attempt to commit the
same or frustration thereof, or for any offense
which necessarily includes or is necessarily included
in the offense charged in the former complaint or
information (Section 7, Rule 117).
The offended party and the accused may appeal the
civil aspect of the case because the concept of
double jeopardy evidently has reference only to
the criminal case and has no effect on the civil
liability of the accused (Riano, Criminal Procedure
2011 p. 475)
Note: A judgment of acquittal is final and is no longer
reviewable, unless the trial court acted with grave
abuse of discretion or when there is mistrial.
Q: Is the concept of double jeopardy applicable to

administrative cases?
A: NO. The rule on double jeopardy does not apply
to a controversy where one is an administrative
case and the other is criminal in nature (Riano,
Criminal Procedure 2011 p. 487 citing Icasiano v.
Sandiganbayan, 209 SCRA 377).
Q: As a result of vehicular mishap, petitioner was
charged before the MTC of two separate offenses
in two informations:
a. reckless imprudence resulting in slight
physical injuries; and
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CRIMINAL PROCEDURE
b. reckless imprudence resulting in homicide
and damage to property for the death of the
husband of the respondent and damage to
the vehicle.
Petitioner pleaded guilty to the first information
and was punished only be public censure. Invoking
such conviction petitioner now moves for the
quashal of the other information on the ground of
double jeopardy. Does double jeopardy apply to
quasi offenses?
is necessarily included in the first offense or an

attempt or frustration thereof.
Q: What are the exceptions to the identity rule?
A:
1.
2.
A: Yes. The two charges arose from the same facts
and were prosecuted under the same provision of
the Revised Penal Code, namely Article 365. The
doctrine is that reckless imprudence under Art. 365
is a single quasi- offense by itself and not merely a
means to commit other crimes. Hence, conviction
or acquittal of such quasi offense bars subsequent
prosecution for the same quasi offense, regardless
of its various resulting acts (Ivler v. Modesto- San
Pedro, GR No. 172716, November 17, 2010)
3.
4.
Note: Reason and precedent both coincide in that
once convicted or acquitted of a specific act of

reckless imprudence, the accused may not be
prosecuted again for that same act. For the essence
of the quasi offense of criminal negligence under
article 365 of the Revised Penal Code lies in the
execution of an imprudent or negligent act that, if
intentionally done, would be punishable as a felony.
The law penalizes thus the negligent or careless act,
not the result thereof. The gravity of the
consequence is only taken into account to
determine the penalty, it does not qualify the
substance of the offense. And, as the careless act is
single, whether the injurious result should affect one
person or several persons, the offense (criminal
negligence) remains one and the same, and can not
be split into different crimes and prosecutions.
(People v. Buan, GR No. L-15974, March 29, 1968)
Q: Distinguish dismissal from acquittal.
A:
Dismissal
Does not decide on
merits,
does
determine
defendants guilt
innocence
Double jeopardy will
always attach
the
not
the
or
not
Acquittal
Always based on the
merits. Defendant is
acquitted because guilt
was not proven beyond
reasonable doubt
Double jeopardy always
attaches
Q: What is the identity rule?

A: There is identity between two offenses not only
when the second offense is exactly the same as the
first, but also when the second offense includes or
The graver offense developed due to

supervening facts arising out of the same
act or omission constituting the former
charge.
The facts constituting the graver offense
became known or were discovered only
after a plea was entered in the former
complaint or information.
The plea of guilty to a lesser offense was
made without the consent of the
prosecutor and the offended party (Sec.
7)
The second offense was not in existence
at the time of the first prosecution for the
simple reason that in such case, there is
no possibility for the accused, during the
first prosecution, to be convicted for an
offense that was then inexistent (Melo v.
People, 85 Phil 766).
Note: In any of the foregoing cases, where the accused

satisfies or serves in whole or in part the judgment, he
shall be credited with the same in the event of
conviction for the graver offense.
Q: What are the instances wherein dismissal of the

case is tantamount to an acquittal?
A:
1.
2.
Insufficiency of evidence of the

prosecution (demurrer to evidence).
Dismissal due to violation of right to
speedy trial (even if dismissal was upon
motion of the accused or with his express
consent).
Q: What is the doctrine of supervening fact?

A: If, after the first prosecution, a new fact
supervenes on which the defendant may be held
liable, altering the character of the crime and giving
rise to a new and distinct offense, the accused
cannot be said to be in second jeopardy if indicted
for the new offense.
Q: What are the rules regarding the application of
double jeopardy on State witnesses?
A: An order discharging an accused as a State
witness amounts to an acquittal, hence double
jeopardy will apply. However, if he fails or refuses
to testify against his co-accused in accordance with
his sworn statement, he may be prosecuted again.

269

6. PROVISIONAL DISMISSAL
provided by special laws or circulars of the Supreme

Court (Sec. 1, Rule 118).
Q: What is the rule on provisional dismissal of a

case?
Note: When the accused is under preventive

detention, wherein his case shall be raffled and
records transmitted within 3 days from the filing of the
complaint or information. The accused shall be
arraigned within 10 days from the date of the raffle
[Sec. 1(d), Rule 116]. Pre-trial in criminal cases is
mandatory.
A:
GR: Where the case was dismissed
PROVISIONALLY with the consent of the
accused, he CANNOT invoke double jeopardy
in another prosecution therefore OR where
the case was reinstated on a motion for
reconsideration by the prosecution.
XPNs: Where the dismissal was actually an
acquittal based on:
Q: Give three distinctions between a pre-trial in a

criminal case and a pre-trial in a civil case.
A:
Pre-trial in Civil Cases
1. Lack or insufficiency of the evidence

2. Denial of the right to speedy trial
hence even if the accused gave his
express consent to such dismissal,
such consent would be immaterial as
such dismissal is actually an acquittal.
Q: What are the requisites for provisional
dismissal?
A:
1.
2.
3.
Consent of the prosecutor;

Consent of the accused; and
Notice to the offended party (Sec. 8).
Note: If a case is provisionally dismissed, the failure to

revive or reinstate the case within the periods set by
law will make the dismissal permanent.
The presence of the

defendant is required
unless
he
is
duly
represented at the pretrial conference by his
counsel with the requisite
authority to enter into a
compromise agreement.
Failing in either of which,
the case shall proceed as if
the defendant has been
declared in default.
Q: What is the time bar rule? Explain.

A: It provides that the provisional dismissal of a
case shall become permanent without the case
having been revived in the following periods:
1. 1 year after issuance of the order of
provisional dismissal for offenses
punishable
by
imprisonment
not
exceeding 6 years or a fine of any
amount, or both; and
2. 2 years after issuance of the order of
provisional dismissal with respect to
offenses punishable by imprisonment of
more than 6 years (Sec. 8).
J. PRE-TRIAL
1. MATTERS TO BE CONSIDERED DURING PRETRIAL
Q: When is pre-trial held?
A: After arraignment and within thirty (30) days
from the date the court acquires jurisdiction over
the person of the accused unless a shorter period is
270
The presence of the

plaintiff is required unless
excused therefrom for
valid cause or if he is
represented therein by a
person fully authorized in
writing to perform the acts
specified in Sec. 4, Rule 18.
Absent such justification,
the case may be dismissed
with or without prejudice.
Pre-trial in Criminal
Cases
The accused is merely
required to sign the
written
agreement
arrived at in the pre-trial
conference, if he is in
conformity therewith.
Unless
otherwise
required by the court,
his presence therefore is
not indispensable.
Note: This is aside from
the consideration that
the accused may waive
his presence at all
stages of the criminal
action, except at the
arraignment,
promulgation
of
judgment or when
required to appear for
identification.
The presence of the
private offended party is
not required. Instead,
he is priorly required to
appear
at
the
arraignment of the
accused for purpose of
plea
bargaining,
determination of civil
liability
and
other
matters requiring his
presence.
Should he fail to appear
therein and the accused
offers to plead guilty to
a
lesser
offense
necessarily included in
the offense charged, the
accused may be allowed
to do so with the
conformity of the trial
prosecutor alone.
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
A pre-trial brief is required

with the particulars and
the sanctions provided by
Sec. 6, Rule 18.
The filing of a pre-trial

brief is not required. It
only
requires
attendance at a pre-trial
conference to consider
the matters stated in
Sec. 1, Rule 118. (1997
Bar Question)
Q: What must the order for pre-trial conference

contain?
A: It must contain orders:
1. Requiring the private offended party to
appear thereat for purposes of pleabargaining and for other matters
requiring his presence;
2. Referring the case to the branch clerk of
court, if warranted, for a preliminary
conference to be set at least three (3)
days prior to the pre-trial to mark the
documents or exhibits to be presented by
the parties and copies thereof to be
attached to the records after comparison
and to consider other matters as may aid
in its prompt disposition; and
3. Informing the parties that no evidence
shall be allowed to be presented and
offered during the trial other than those
identified and marked during the pre-trial
except when allowed by the court for
good cause shown. In mediatable cases,
the judge shall refer the parties and their
counsel to the Philippine Mediation
Center unit for purposes of mediation if
available (A.M. No. 03-1-09-SC).
5.
6.
Modification of the order of the trial if

one of the accused admits the charge but
interposes a lawful defense (reverse trial);
and
Such other matters as will promote a fair
and expeditious trial of the civil and
criminal aspects of the case (Sec. 1).
Note: During the preliminary conference, the branch

clerk of court shall assist the parties in reaching a
settlement of the civil aspect of the case, mark the
documents to be presented as exhibits and copies
thereof attached to the records after comparison,
ascertain from the parties the undisputed facts and
admissions on the genuineness and due execution of
documents marked as exhibits and consider such other
matters as may aid in the prompt disposition of the
case. The proceedings during the preliminary
conference shall be recorded in the minutes of
preliminary conference to be signed by both parties
and counsel.
The minutes of preliminary conference and the exhibits
shall be attached by the branch clerk of court to the
case record before the pre-trial (A.M. No. 03-1-09-SC).
Q: What is plea bargaining?

A: Plea bargaining is the process whereby the
accused, the offended party and the prosecution
work out a mutually satisfactory disposition of the
case subject to court approval. It usually involves
the defendants pleading guilty to a lesser offense
or to only one or some of the counts of a multicount indictment in return for a lighter sentence
than that for the graver charge.
Q: What is the form of a valid pre-trial agreement?
Q: When is plea bargaining not applicable?
A: The pre-trial agreement must be in writing and

signed by both the accused and his counsel. If the
required form is not observed, the pre-trial
agreement cannot be used against the accused
(Sec. 2, Rule 118).
A: Violations of the Dangerous Drugs Act regardless

of the imposable penalty.
Note: The agreements covering the matters in the pretrial conference shall be approved by the court.
A: The court shall:

1. Adopt the minutes of preliminary
conference as part of the pre-trial
proceedings, confirm markings of exhibits
or
substituted
photocopies
and
admissions on the genuineness and due
execution of documents and list object
and testimonial evidence;
2. Scrutinize every allegation of the
information and the statements in the
affidavits and other documents which
form part of the record of the preliminary
investigation and other documents
identified and marked as exhibits in
Q: What are the matters considered during pretrial?

A:
1.
2.
3.
4.
Plea bargaining;
Stipulation of facts;
Marking for identification of evidence of
parties;
Waiver of objections to admissibility of
evidence;
Q: What shall the court do if the plea bargaining

fails?

271
3.
4.
5.
6.
determining farther admissions of facts,

documents and in particular as to the
following:
a. The identity of the accused;
b. Courts territorial jurisdiction relative
to the offense/s charged;
c. Qualification of expert witness;
d. Amount of damages;
e. Genuineness and due execution of
documents;
f. The cause of death or injury, in
proper cases;
g. Adoption of any evidence presented
during the preliminary investigation;
h. Disclosure of defenses of alibi,
insanity, self-defense, exercise of
public authority and justifying or
exempting circumstances; and
i.
Such other matters that would limit
the facts in issue.
Define factual and legal issues;
Ask parties to agree on the specific trial
dates and adhere to the flow chart
determined by the court which shall
contain the time frames for the different
stages of the proceeding up to
promulgation of decision and use the
time frame for each stage in setting the
trial dates;
Require the parties to submit to the
Branch COC the names, addresses and
contact numbers of witnesses that need
to be summoned by subpoena; and
Consider modification of order of trial if
the accused admits the charge but
interposes a lawful defense (A.M. No. 031-09-SC).
3. PRE-TRIAL AGREEMENT
Q: What is pre- trial agreement?
A: All agreements or admissions made or entered
into during the pre- trial conference shall be
reduced to writing and signed by the accused and
counsel, otherwise the same shall not be used un
evidence against the accused.
Q: What are the requisites before a pre- trial
agreement may be used as evidence?
A:
1. They are reduced to writing;
2. The pre-trial agreement is signed by the accused
and his counsel
4.
NON- APPEARANCE DURING PRE-TRIAL
Q: What is the effect of non-appearance of counsel

for the accused or the prosecutor during the pretrial without valid justification?
A: The court may impose proper sanctions or
penalties in the form of reprimand, fines or
imprisonment if he does not offer an acceptable
excuse for his lack of cooperation (Sec. 3, Rule 118).
Note: These sanctions are not applicable on the
accused, because to include him among the mandatory
parties to appear might violate his constitutional right
to remain silent.
5. PRE-TRIAL ORDER
Q: What is pre-trial order?
2. WHAT THE COURT SHOULD DO WHEN

PROSECUTION AND OFFENDED PARTY AGREE TO
THE PLEA OFFERED BY THE ACCUSED
A: It is an order issued by the court reciting the

actions taken, the facts stipulated and the evidence
marked during the pre-trial conference. Such order
binds the parties and limits the trial to those
matters not disposed of (Sec. 4).
Q: What is the effect if the prosecution and the

offended party agree to the plea offered by the
accused?
Q: When shall the trial judge issue a pre-trial order

and what are its contents?
A: The court shall:

1. issue an order which contains the plea
bargaining arrived at;
2. proceed to receive evidence on the civil
aspect of the case; and
3. render and promulgate judgment of
conviction, including the civil liability or
damages duly established by the evidence
(A.M. No. 03-1-09-SC).
A: It must be issued within ten (10) days after the

termination of the pre-trial. It shall set forth the
following:
1. Actions taken during the pre-trial
conference;
2. Facts stipulated;
3. Admissions made;
4. Evidence marked; and
5. Number of witnesses to be presented and
the schedule of trial (Sec. 4).
272
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
6. REFERRAL FOR SOME CASES FOR COURT
ANNEXED MEDIATION AND JUDICIAL DISPUTE
RESOLUTION
(AM. No, 11-1-6-SC-PHILJA)
Q: What is the purpose of Court Annexed
Mediation and Judicial Dispute Resolution?
A: The diversion of pending court cases both to
Court-Annexed Mediation (CAM) and to Judicial
Dispute Resolution(JDR) is plainly intended to put
an end to pending litigationthrough a compromise
agreement of the parties and therebyhelp solve the
ever-pressing problem of court docket congestion.
It is also intended to empower the parties to
resolve their own disputes and give practical effect
to the State Policy expressly stated in the ADR Act
of 2004 (R.A. No. 9285), to wit:
to actively promote party autonomy in the
resolution of disputes or the freedom of the
parties to make their own arrangement to
resolve disputes. Towards this end, the State
shall encourage and actively promote the use
of Alternative Dispute Resolution (ADR) as an
important means to achieve speedy and
impartial justice and de-clog court dockets.
Q: What are the three stages of diversion of cases
to Court Annexed Mediation and Judicial Dispute
Resolution?
A:
1.The first stage is the Court-Annexed Mediation
(CAM) where the judge refers the parties to the
Philippine Mediation Center (PMC) for the
mediation of their dispute by trained and
accredited mediators.
2. Upon failing to secure a settlement of the dispute
during the first stage, a second attempt is made at
the JDR stage. There, the JDR judge sequentially
becomes a mediatorconciliator- early neutral
evaluator in a continuing effort to secure a
settlement. Still failing that second attempt, the
mediator-judge must turn over the case to another
judge (a new one by raffle or nearest/pair judge)
who will try the unsettled case. The trial judge shall
continue with the pre-trial proper and, thereafter,
proceed to try and decide the case.
3. The third stage is during the appeal where
covered cases are referred to the PMC-Appeals
Court Mediation (ACM) unit for mediation.
Q: What are the cases covered by Court Annexed
Mediation and Judicial Dispute Resolution?
A:
The following cases shall be 1) referred to CourtAnnexed Mediation (CAM) and 2) be the subject of
Judicial Dispute Resolution (JDR) proceedings:
1. All civil cases and the civil liability of criminal

cases covered by the Rule on Summary Procedure,
including the civil liability for violation of B.P. 22,
except those which by law may not be
compromised;
2. Special proceedings for the settlement of estates;
3. All civil and criminal cases filed with a certificate
to file action issued by the Punong Barangay or the
PangkatngTagapagkasundounder the Revised
KatarungangPambarangay Law;
4. The civil aspect of Quasi-Offenses under Title 14
of the Revised Penal Code;
5. The civil aspect of less grave felonies punishable
by correctional penalties not exceeding 6 years
imprisonmentwhere the offended party is a private
person;
6. The civil aspect of estafa, theft and libel;
7. All civil cases and probate proceedings, testate
and intestate, brought on appeal from the exclusive
and original jurisdiction granted to the first level
courts under Section 33, par. (1) of the Judiciary
Reorganization Act of 1980;
8. All cases of forcible entry and unlawful detainer
brought on appeal from the exclusive and original
jurisdiction granted to the first level courts under
Section 33, par. (2) of the Judiciary Reorganization
Act of 1980;
(9) All civil cases involving title to or possession of
real property or an interest therein brought on
appeal from the exclusive and original jurisdiction
granted to the first levelcourts under Section 33,
par.(3) of the Judiciary Reorganization Act of 1980;
13 and
(10) All habeas corpus cases decided by the first
level courts in the absence of the Regional Trial
Court judge, that are brought up on appeal from
the special jurisdiction granted to thefirst level
courts under Section 35 of the Judiciary
Reorganization Act of 1980.
Q: What are those cases which cannot be referred
to Court Annexed Mediation and Judicial Dispute
Resolution?
A: The following cases shall not be referred to CAM
and JDR:
1. Civil cases which by law cannot be compromised
(Article 2035, New Civil Code);
2. Other criminal cases not covered under
paragraphs 3 to 6 above;
3. Habeas Corpus petitions;
4. All cases under Republic Act No. 9262 (Violence
against Women and Children); and
5. Cases with pending application for Restraining
Orders/Preliminary Injunctions. However, in cases
covered under 1, 4 and 5 where the parties inform
the court that they have agreed to undergo
mediation on some aspects thereof, e.g., custody of

273

minor children, separation of property, or support
pendentelite, the court shall refer them to
mediation.
Q: What is the duration of mediation in the
Philippine Mediation Center?
A: The Mediator shall have a period of not
exceeding thirty (30) days to complete the
mediation process. Such period shall be computed
from the date when the parties first appeared for
the initial conference as stated in the Order to
appear. An extended period of another thirty (30)
days may be granted bythe court, upon motion filed
by the Mediator, with the conformity of the parties.
applications. During the pre-trial stage, the judge

refers the case to CAM, but if the parties do not
settle at CAM, the case will be raffled to another
branch for JDR. If the parties do not settle at JDR,
the case will be returned to the branch that ruled
on the applications for the pre-trial proper and up
to judgment.
Q: What is the effect of the referral of the case to

CAM and JDR?
2. SINGLE SALA COURT- Unless otherwise agreed

upon as provided , the JDR proceedings will be
conducted by the judge of the pair court, if any,
otherwise, by the judge of the nearest court as
determined by the concerned Executive Judge. The
JDR proceedings shall be conducted at the station
where the case was originally filed. The result of the
JDR proceedings shall be referred to the court of
origin for appropriate action, e.g. approval of the
compromise agreement, trial, etc.
A: The period during which the case is undergoing

mediation shall be excluded from the regular and
mandatory periods for trial and rendition of
judgment in ordinary cases and in cases under
summary proceedings.
Notwithstanding the foregoing, before the

commencement of the JDR proceedings, the parties
may file a joint written motion requesting that the
court of origin conduct the JDR proceedings and
trial.
Q: What is the procedure after the parties reached

a settlement?
3. FAMILY COURTS- Unless otherwise agreed upon

as provided below, the JDR proceedings in areas
where only one court is designated as a family
court, shall be conducted by a judge of another
branch through raffle. However, if there is another
family court in the same area, the family court to
whom the case was originally raffled shall conduct
JDR proceedings and if no settlement is reached,
the other family court shall conduct the pre-trial
proper and trial.
A: If full settlement of the dispute is reached, the

parties, assisted by their respective counsels, shall
draft the compromise agreement which shall be
submitted to the court for judgment upon
compromise or other appropriate action.
Where compliance is forthwith made, the parties
shall instead submit a satisfaction of claims or a
mutual withdrawal of the case and, thereafter, the
court shall enter an order dismissing the case. If
partial settlement is reached, the parties shall, with
the assistance of counsel, submit the terms thereof
for the appropriate action of the court, without
waiting for resolution of the unsettled part.
In relation to the unsettled part of the dispute, the
court shall proceed to conduct JDR proceedings in
accordance withPART THREE where JDR is available.
Q: What is the remedy if the case is not resolved
during JDR?
A:
1. MULTIPLE SALA COURT- If the case is not
resolved during the JDR, the case shall be raffled to
another branch for the pre- trial proper up to
judgement.
For cases with pending applications for restraining
orders/preliminary injunctions, the judge to whom
the case was raffled shall rule on the said
274
Notwithstanding
the
foregoing,
before
family court to which the case was originally raffled
shall conduct the JDR proceedings and trial.
Despite the non-mediatable nature of the principal
case, like annulment of marriage, other issues such
as custody of children, support, visitation, property
relations and guardianship, may be referred to CAM
and JDR to limit the issues for trial.
4. COMMERCIAL, INTELLECT PROPERTY AND
ENVIRONMENTAL COURTS- Unless otherwise
agreed upon as provided below, the JDR
proceedings in areas where only one court is
designated
as
commercial/intellectual
property/environmental court, hereafter referred
to as special court, shall be conducted by another
judge through raffle and not by the judge of the
special court. Where settlement is not reached, the
judge of the special court shall be the trial judge.
Any incident or motion filed before the pre-trial
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
stage shall be dealt with by the special court that
shall refer the case to CAM.
corpus(Montilla v. Arellano, G.R. No. 123872, Jan. 30,

1998).
Notwithstanding
the
foregoing,
before
special courts to which the case was originally
raffled shall conduct the JDR proceedings and trial.
Q: What is a hearing?
Q: May a case be referred to JDR even during trial?

A: YES. Cases may be referred to JDR even during
the trial stage upon written motion of one or both
parties indicating willingness to discuss a possible
compromise. If the motion is granted, the trial shall
be suspended and the case referred to JDR, which
shall be conducted by another judge through raffle
in multiple sala courts.
Q: What is the duty of the court if settlement is
reached during the JDR?
A: If settlement is reached during JDR, the JDR court
shall take appropriate action thereon, i.e.
approval/disapproval
of
the
compromise
agreement. If settlement is not reached at JDR, the
case shall be returned to the referring court for
continuation of trial.
In single sala courts, the JDR shall be conducted by
the nearest court (or pair court, if any) regardless of
the level of the latter court. The result of the JDR
proceedings shall be referred to the court of origin
for appropriate action, e.g. approval of the
compromise agreement, trial, etc.
The parties may, by joint written motion, despite
confidential information that may be divulged
during JDR proceedings, file a request that their
case be not transferred to other courts for JDR and
that they agree to have the trial judge continue the
trial should the case not be settled through JDR.
A: Hearing is not confined to trial, but embraces

several stages of litigation including the pre- trial
stage. A hearing does not necessarily imply the
presentation of oral or documentary evidence in
open court but that the parties are afforded an
opportunity to be heard. (Republic v.
Sandiganbayan, 416 SCRA 133, 2003).
Q: In a criminal proceeding, when is the presence
of the accused required?
A:
1. During arraignment;
2. Promulgation of judgment except when the
conviction is for a light offense, in which
case, it may be pronounced in the presence
of his counsel or a representative; and
3. When ordered by the court for purposes of
identification.
Note: Such requirement has no application to the
proceedings or to the entry and promulgation of the
judgments before the CA and SC. The defendant need
not be present during the hearing of the appeal (Sec. 9,
Rule 124).
Q: What is the order of trial in criminal cases?

A: In criminal cases, unless the accused admits the
act or omission charged in the complaint or
information but interposes a lawful defense, the
trial shall proceed in the following order:
1.
2.
K. TRIAL
Q: What is a trial?
3.
A: Trial is the examination before a competent

tribunal according to the laws of the land, of facts
put in issue in a case for the purpose of determining
such issue.
4.
After a plea of not guilty is entered, the accused
shall have at least fifteen (15) days to prepare for
trial. The trial shall commence within 30 days from
receipt of pre-trial order.
Note: Denial of right to prepare is reversible error; the
proper remedy from a judgment of conviction under
such case is appeal and not certiorari nor habeas
The prosecution shall present evidence to

prove the charge and, in the proper case,
the civil liability.
The accused may present evidence to
prove his defense, and damages, if any,
arising from the issuance of a provisional
remedy in the case.
The prosecution and the defense may, in
that order, present rebuttal and surrebuttal evidence unless the court, in
furtherance of justice, permits them to
present additional evidence bearing upon
the main issue.
Upon admission of the evidence of the
parties, the case shall be deemed
submitted for decision unless the court
directs them to argue orally or to submit
written memoranda (Sec. 11, Rule 119).
Note:
GR: The order in the presentation of evidence
must be followed. The accused may not be

275

required to present evidence first before the
prosecution adduces its own proof.
XPN: Where a reverse procedure was adopted
without the objection of the defendant and such
procedure did not prejudice his substantial rights,
the defect is not a reversible error.
1. INSTANCES WHEN PRESENCE OF THE ACCUSED

REQUIRED
Q: What are the instances when the presence of
the accused is required by law?
A: The only instances when the presence of the
accused is required:
1. Upon arraignment and in entering plea;
2. During trial when his presence is necessary
for the purpose of identification;
3. Upon promulgation of judgment except for
light offenses
4. When the court with due notice requires so.
Q: What is continuous trial system?

A: Trial once commenced shall continue from day to
day as far as practicable until terminated. It may be
postponed for a reasonable period of time for good
cause. The entire trial period shall in no case exceed
180 days from the first day of trial, except as
otherwise provided by the SC (Sec. 2).
The SC adopted the continuous trial system as a
mode of judicial fact-finding and adjudication
conducted with speed and dispatched so that trials
are held on the scheduled dates without
postponement, the factual issues for a trial well
defined at pre-trial and the whole proceedings
terminated and ready for judgment within ninety
(90) days from the date of initial hearing, unless for
meritorious reasons an extension is permitted.
Note: The non-appearance of the prosecution at the
trial, despite due notice, justifies a provisional
dismissal or an absolute dismissal depending upon the
circumstances.
Q: Is there a time limit for the trial of criminal

cases?
Q: What are the cases where the time limitation is

inapplicable?
A:
A:
GR: Trial shall not exceed 180 days from the

first day of trial.
XPNs:
1. Those governed by the rules on summary
procedure;
2. Those where the penalty prescribed by
law does not exceed 6 months
imprisonment or a fine of P1,000 or both;
and
3. Those authorized by the Chief Justice of
the SC. (Sec. 6, R.A. 8493, Speedy Trial
Act)
Note: Commencement of trial may be extended based
on the following conditions:
1. For the 180 days, for the first 12 calendar
month period from the effectivity of the
law.
2. 120 days for the second 12 month period.
3. 80 days for the third 12 month period. (Sec.
9, R.A. 8493)
Q: What is the effect if the court failed to comply

with the mandates of the Speedy Trial Act to
terminate the case within the 180 day period?
A: The judge may be charged administratively, or
may be fined, suspended or removed unless his
failure to comply with the speedy trial act is for
reasons not attributable to him.
276
1.
2.
3.
4.
5.
Criminal cases covered by the Rule on

Summary Procedure;
When the offended party is about to
depart with no definite date of return;
Child abuse cases (Sec. 32, R.A. 7610 or
The Child Abuse Act);
Violations of Dangerous Drugs Law; and
Kidnapping, robbery by a band, robbery
against banking or financial institution,
violation of Carnapping Act and other
heinous crimes (Herrera, Vol. IV, p. 796,
2007 ed.).
2. REQUISITE BEFORE TRIAL CAN BE SUSPENDED

ON ACCOUNT OF ABSENCE OF WITNESS
Q: What are the requisites before a trial can be
suspended on account of the absence of a
witness?
A: That the:
1. witness is material and appears to the
court to be so;
2. party who applies has been guilty of no
neglect;
3. witnesses can be had at the time to which
the trial is deferred and no similar
evidence could be obtained; and
4. affidavit showing the existence of the
above circumstances must be filed.
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
Q: What are the remedies of the accused where a
prosecuting officer without just cause secures
postponements of the trial against his protest
beyond a reasonable period of time?
A:
1. Mandamus to compel a dismissal of the
information; or
2. If he is restrained of his liberty, by habeas
corpus to obtain his freedom.
3. TRIAL IN ABSENTIA
Q: May trial proceed in the absence of the
accused?
A: YES. Section 14 (2), Article 3 of the Constitution
provides that trial may proceed notwithstanding
the absence of the accused provided that he has
been duly notified and his failure to appear is
unjustifiable. (Parada v. Veneracion, A.M. No.RTJ96-1353. March 11, 1997)
Q: What is the remedy if the accused was not

brought to trial within the time limit?
A: The remedy of the accused is to file a motion to
dismiss the information on the ground of the denial
of his right to speedy trial. Failure of the accused to
move for dismissal prior to trial shall constitute a
waiver of his right to file a motion to dismiss. The
accused shall have the burden of proving such
denial of right, but the prosecution shall have the
burden of going forward with the evidence to
establish the exclusion of time.
The dismissal shall be subject to the rules on double
jeopardy. So if the dismissal is with prejudice, the
case cannot be revived anymore. But if the
dismissal is without prejudice, the revival of the
case is proper (Sec. 9, Rule 119).
5. REQUISITES FOR THE DISCHARGED OF THE
ACCUSED TO BECOME A STATE WITNESS
Q: Who is a State witness?
Q: What are the requisites for trial in absentia?

A:
1.
2.
3.
The accused has been arraigned;

He has been notified of the trial; and
His failure to appear is unjustified.
Q: What are the effects of trial in absentia?

A: The accused waives the right to present evidence
and cross-examine the witnesses against him. The
accuseds waiver does not mean, however, that the
prosecution is deprived of the right to require the
presence of the accused for purposes of
identification by the witnesses which is vital for
conviction of the accused, except where he has
unqualifiedly admits in open court after his
arraignment that he is the person named as
defendant in the case on trial.
4. REMEDY IF ACCUSED IS NOT BROUGHT TO TRIAL
WITHIN THE PRESCRIBED PERIOD
Q: What is the remedy available to the accused if
he is not brought to trial within the period
prescribed by the Rules of Court?
A: The information may be dismissed on motion of
the accused on the ground of denial of his right to
speedy trial. The dismissal shall be subject to the
rules on double jeopardy (Sec. 9, Rule 119).
Note: The trial of an accessory can proceed without
awaiting the result of separate charge against the
principal (Vino v. People, G.R. No. 84163, Oct. 19,
1989).
A: He is one of two or more persons jointly charged

with the commission of a crime but who is
discharged with his consent as such accused so that
he may be a witness for the State (People v. Ferrer,
G.R. No. 102062, Mar. 14, 1996).
Q: What are the requisites before an accused may
become a State witness?
A:
1. There is absolute necessity for the
testimony of the accused whose discharge is
requested;
2. There is no other direct evidence available
for the proper prosecution of the offense
committed, except the testimony of the said
accused;
3. The testimony of said accused can be
substantially corroborated in its material
points;
4. Said accused does not appear to be the
most guilty; and
5. Said accused has not at any time been
convicted of any offense involving moral
turpitude (Sec. 17, Rule 119).
Note: All the requisites must be complied with.
Law enforcement officers, even if he would be
testifying against the other law enforcement officers
cannot be a State witness. In such a case, only the
immediate members of his family may avail
themselves of the protection provided for under the
Witness Protection Act (Sec. 3, R.A. 6981, Witness
Protection Act).

277

Q: When should the application for discharge of
the state witness be made?
Q: Distinguish Witness Protection Program from

Sec. 17, Rule 119 of the Rules of Court.
A: It should be made upon motion of the

prosecution before resting its case.
A:
6. EFFECTS OF THE DISCHARGE

Q: What are the effects of the order discharging
the accused as a State witness?
A:
GR:
1.
2.
3.
Discharge of accused operates as an

acquittal and bar to further prosecution
for the same offense
Evidence adduced in support of the
discharge shall automatically form part of
the trial (People v. Feliciano, G.R. No.
136258, Oct. 10, 2001); and
If the court denies the motion to
discharge the accused as State witness,
his sworn statement shall be inadmissible
in evidence (People v. Feliciano, G.R. No.
136258, Oct. 10, 2001).
XPN:
1. When the accused fails or refuses to testify
against his co-accused in accordance with his
sworn statement constituting the basis of his
discharge (Sec. 18).
2. Failure to testify refers exclusively to
defendants will or fault,
3. Where an accused who turns states
evidence on a promise of immunity but later
retracts and fails to keep his part of the
agreement, his confession of his participation
in the commission of the crime is admissible as
evidence against him. (People v. Beberino GR
No L-23213 October 28, 1977)
Note: Discharge under this rule is only one of the
modes to be a State witness. Other modes are:
1.
2.
The Witness Protection Program of R.A.

6981;
The power of the Ombudsman to grant
immunity under Sec. 17, R.A. 6770.
Q: What are the effects if the discharged accused

retracts or fails to comply with his part of the
agreement?
A: If the retraction or failure to testify is solely his
fault, his confession of his participation in the
commission of the crime is admissible as evidence
(People v. Beberino, G.R. No. L-23092, Oct. 28,
1977).
278
Witness
Protection
Program
The offense in which the
testimony is to be used is
limited only to grave
felony.
The immunity is granted
by DOJ.
The
witness
is
automatically entitled to
certain
rights
and
benefits.
The witness need not be
charged elsewhere.
No information may thus
be filed against the
witness.
Rules of Court
It has no qualifications. It
applies to all felonies.
The immunity is granted
by court.
The
witness
so
discharged must still
apply for the enjoyment
of said rights and benefits
in the DOJ.
He is charged in court as
one of the accused as
stated in the information.
The charges against him
shall be dropped and the
same operates as an
acquittal.
Q: When will discharge of an accused operate as

an acquittal?
A:
GR: The discharge of the accused shall amount
to an acquittal and shall be a bar to future
prosecution for the same offense.
XPN: If the accused fails or refuses to testify
against his co-accused in accordance with his
sworn statement constituting the basis of the
discharge (Sec. 18, Rule 119).
Q: What shall be done when mistake has been
made in charging the proper offense?
A: When it becomes manifest at any time before
judgment that a mistake has been made in charging
the proper offense and the accused cannot be
convicted of the offense charged or any other
offense necessarily included therein, the accused
shall not be discharged if there appears to be a
good cause to detain him. In such case, the court
shall commit the accused to answer for the proper
offense and dismiss the case upon filing of the
proper information (Sec. 19, Rule 119).
Note: This rule is predicated on the fact that an
accused has the right to be informed of the nature and
cause of the accusation against him, and to convict
him of an offense different from that charged in the
complaint or information would be an unauthorized
denial of that right.
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
7. DEMURRER TO EVIDENCE
the proceedings (People v. Mahinay, G.R. No.

109613, July 17, 1995).
Q: What is demurrer to evidence?

A: It is an objection by one of the parties in an
action to the effect that the evidence which his
adversary produced is insufficient in point of law,
whether true or not, to make out a case or sustain
the issue.
Note: If the demurrer is sustained by the court, the

order of dismissal is tantamount to an acquittal. Hence
it is NOT appealable.
L. JUDGMENT
1. REQUISITES OF A JUDGMENT
Q: What is the rule on demurrer of evidence?

Q: What is judgment?
A:
How made
1. Court on its own initiative; or
2. Upon filing of the accused for demurrer of
evidence:
a. With leave of court; or
b. Without leave of court
When made
After the prosecution rests its case
Ground
Insufficiency of evidence
Effect
The court may dismiss the case (Sec. 23)
Q: Distinguish the effect of filing a demurrer with

leave of court from filing a demurrer without
leave?
A:
Demurrer With Leave of
Court
If leave of court is denied,

the accused may proceed
with
presenting
his
evidence
If leave of court is
granted, the accused
may file the demurrer to
evidence within ten (10)
days. The prosecution
may however, oppose
the demurrer to evidence
within a non-extendible
period of ten (10) days
from the receipt of the
demurrer.
Demurrer Without Leave

of Court
If demurrer is denied, it is
tantamount to a waiver
of the accuseds right to
present evidence and as
a consequence the case
will be submitted for
judgment on the basis of
the evidence for the
prosecution.
If demurrer is granted,
the
case
will
be
dismissed, and will result
to an acquittal of the
accused (Sec.23).
A: It is an adjudication by the court that the accused

is guilty or not guilty of the offense charged and the
imposition of the proper penalty and civil liability, if
any (Sec. 1). It is a judicial act which settles the
issues, fixes the rights and liabilities of the parties,
and is regarded as the sentence of the law
pronounced by the court on the action or question
before it (Sec. 1, Rule 120).
Q: What are the requisites of judgment?
A: It must be:
1. Written in official language;
2. Personally and directly prepared by the
judge;
3. Signed by the judge; and
4. Contain clearly and distinctly a statement
of the facts and the law upon which it is
based (Sec. 1, Rule 120).
Note: Decisions of the court shall contain the facts and
the law on which they are based (Sec. 14, Art. VIII,
1987 Constitution). The rationale is that the losing
party is entitled to know why he lost, so he may appeal
to a higher court.
Q: How is entry of judgment made?

A: The recording of the judgment or order in the
book of entries of judgments shall constitute its
entry. The record shall contain the dispositive part
of the judgment order and shall be signed by the
clerk, with a certificate that such judgment or order
has become final and executory(Sec. 2, Rule 36).
Q: What is mittimus?
A: It is a process issued by the court after conviction
to carry out the final judgment, such as
commanding a prison warden to hold the accused
in accordance with the terms of judgment.
Q: What is the purpose of leave of court in

demurrer to evidence?
Q: What is reasonable doubt?
A: To determine whether or not the defendant in a

criminal case has filed the demurrer merely to stall
A: Reasonable doubt is defined as the state of the

case which, after full consideration of all evidence,
leaves the mind of the judge in such a condition

279

that he cannot say that he feels an abiding
conviction toa moral certainty of the truth of the
charge.
Q: What is acquittal?
A: An acquittal is a finding of not guilty based on
the merits, that is, the accused is acquitted because
the evidence does not show that his guilt is beyond
reasonable doubt, or a dismissal of the case after
the prosecution has rested its case upon motion of
the accused on the ground that the evidence fails to
show beyond reasonable doubt that the accused is
guilty,
Note: It is well settled that acquittal, in a criminal case
is immediately final and executor upon its
promulgation, and that accordingly, the State may not
seek its review without placing the accused in double
jeopardy (Barbers v. Laguio Jr., AM No. RTJ-00-1568,
February 15, 2001).
Q: Is there a maximum duration for the courts

sentence?
A: YES. In the service of sentence, the maximum
duration of the courts sentence shall not be more
than three- fold the length of time corresponding to
the most severe of the penalties imposed upon the
accused, and such maximum shall in no case exceed
forty years.
2. CONTENTS OF JUDGMENT
Q: What are the contents of judgment?
A: The judgment must state:
1. If of conviction
a. Legal qualification of the offense
constituted by the acts committed by
the accused, and the aggravating or
mitigating circumstances attending
its commission;
b. Participation of the accused whether
as principal, accomplice or accessory;
c. Penalty imposed upon the accused;
and
d. Civil liability or damages caused by
the wrongful act or omission unless a
separate civil action has been
reserved or waived.
2.
280
If of acquittal
a. Whether the evidence of the
prosecution absolutely failed to
prove the guilt of the accused or
merely failed to prove his guilt
beyond reasonable doubt; and
b.
In either case, the judgment shall determine if

the act or omission from which the civil liability
might arise did exist (Sec. 2, Rule 120).
Q: What is the rule regarding a judgment for two

or more offenses charged in the complaint or
information?
A: The court may convict the accused of as many
offenses as are charged and proved, and impose
the penalty for each offense, setting out separately
the findings of fact and law in each offense (Sec. 3)
Note: Failure of the accused to object to the duplicity
of offense charged in the complaint or information, is
deemed a waiver thereof (Herrera, Vol. IV, p. 882,
2007 ed.).
Q: What is the rule regarding a judgment in case of

variance between the offense charged and
proved?
A:
GR: An accused can be convicted of an offense only
when it is both charged and proved; if it is not
charged although proved, or if it is not proved
although charged, the accused CANNOT be
convicted thereof.
XPN: Where there is a variance between the
offense charged in the complaint or information
and that proved AND the offense as charged is
included in or is necessarily includes the offense
proved, the accused shall be convicted of the
offense proved which is included in the offense
charged, or of the offense charged which is
included in the offense proved. (Sec. 4).
Note: An accused cannot be convicted of an offense
not charged or included in the information for this will
be in violation of the constitutional right of the
accused to be informed of the nature of the offense
charged against him (Herrera, Vol. IV, p. 882, 2007 ed.).
Q: What happens when an offense includes or is

included in another?
A:
GR: If what is proved by the prosecution evidence is
an offense which is included in the offense charged
in the information, the accused may validly be
convicted of the offense proved.
An offense charged NECESSARILY INCLUDES the
offense proved when some of the essential
ingredients or ingredients of the former as alleged
in the complaint or information constitute the
latter.
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
An offense charged NECESSARILY INCLUDED in the
offense proved when the essential ingredients of
the former constitute or form part of those
constituting the latter.
XPN: Where the facts supervened after the filing of
information which changed the nature of the
offense.(Sec. 5).
Note: An accused cannot be convicted for the lesser
offense necessarily included in the crime charged if at
the time of the filing of the information, the lesser
offense has already prescribed (Francisco v. CA, G.R.
No. L-45674, May 30, 1983).
Q: What is the effect of the judgment of conviction

upon a minor?
A: The courts shall promulgate the sentence and
ascertain any civil liability which the accused may
have incurred. The sentence, however, shall be
suspended without need of application pursuant to
P.D. 603 or the Child and Youth Welfare Code. In
which case, the child shall have been committed
under the care of the DSWD or any other accredited
government institution until he reaches the age of
twenty one (21) or until the court so determines
(Sec. 40, R.A. 9344, Juvenile Justice and Welfare Act
of 2006).
Q: What is probation?
A: A disposition under which a defendant, after
conviction and sentence, is subject to conditions
imposed by the court and under the supervision of
a probation officer (Sec. 3, PD 968, Probation Law).
3. PROMULGATION OF JUDGMENT; INSTANCES OF
PROMULGATION OF JUDGMENT IN ABSENTIA
Q: What is promulgation of judgment?
A: It is the official proclamation or announcement
of judgment. It consists of reading the judgment or
sentence in the presence of the accused and any
judge of the court rendering the judgment.
Q: How is judgment promulgated?
A: It is promulgated by reading it in the presence of
the accused and any judge of the court which
rendered it (Sec. 6).
Q: Is the accused required to be present during the
promulgation of judgment?
A:
GR: Yes.
XPNs:
1. In case of acquittal;
2. Conviction of light offense wherein the
judgment may be pronounced in the
presence of the accuseds counsel or
representative; and
3. Promulgation of judgment when the
accused was tried in absentia(Sec. 6).
Q: What are the exceptions for suspension of

sentence of youthful offenders?
A: Offender:
1. has enjoyed previous suspension of
sentence;
2. is convicted of a crime punishable by
death or life imprisonment;
3. is convicted by a military tribunal; or
4. is already of age at the time of sentencing
even if he was a minor at the time of the
commission of the crime (Declarador v.
Gubaton, G.R. No. 159208, Aug. 18,
2006).
Q: What if the minor already reached the age of
majority upon the promulgation of his sentence?
A: He is no longer entitled to the suspension of
sentence. However, the time he spent during the
period of his confinement shall be credited to his
actual service of sentence. Furthermore, he shall
still be entitled to the privileged mitigating
circumstance of minority (People v. Francisco, G.R.
No. 102976, Oct. 25, 1995; R.A. 9344, Juvenile
Justice and Welfare Act of 2006).
Q: Who promulgates the judgment?

A:
GR: The judge of the court who renders the
judgment.
XPN: When:
1. The judge is absent or outside the
province or city judgment may be
promulgated by the clerk of court; and
2. Accused is confined or detained in another
city judgment may be promulgated by
the executive judge of the RTC having
jurisdiction over the place of confinement
or detention (Sec. 6).
Q: Is the presence of the accused indispensable in
the promulgation of judgment?
A: No. The promulgation shall still be made by
recording such judgment in the criminal docket and

281

serving him a copy thereof in his last known address
or through his counsel. If judgment is one of
conviction and the accused is absent without
justifiable cause, the court shall order his arrest and
he shall lose the remedies available in the rules
against judgment and his bail shall be forfeited.
Q: What is the remedy if the judgment fails to

award civil liability?
A:
1. Appeal;
2. Certiorari; or
3. Mandamus
However, the accused may surrender and file a

motion for leave of court to avail of these remedies
within fifteen (15) days from the promulgation of
judgment. If such motion is granted, he may avail of
these remedies within fifteen (15) days from notice
of such order granting the motion (Sec. 6).
4. WHEN DOES JUDGMENT BECOME FINAL (FOUR

INSTANCES)
Q: When does judgment becomes final?
A: Judgment becomes final:
1. After the lapse of time for perfecting an
appeal
2. When the sentence has been partially or
totally satisfied
3. When the accused has expressly waived
in writing his right to appeal
4. When the accused has applied for
probation
Note: He must however, state the reasons for his

absence at the promulgation and prove that his
absence was for a justifiable cause.
Q: What are the instances when judgment may be

promulgated even if the accused is not present?
A:
1.
2.
Judgment is for a light offense, in which

case judgment may be promulgated in the
presence of the counsel for the accused
or a representative.
Accused fails to attend the promulgation
despite due notice or if he jumped bail or
escaped from prison. Notice must be
given to the bondsmen, warden,
accuseds bailor and counsel (Sec. 6).
Q: When may the trial court lose jurisdiction even

before the lapse of the 15 day period?
A: The trial court loses jurisdiction even before the
lapse of the 15 day period when:
1. The defendant voluntarily submits to the
execution of the judgment;
2. When the defendant perfects an appeal;
3. Defendant withdraws his appeal;
4. Accused expressly waives in writing his right to
appeal;
5. Accused files for probation.
Q: How is promulgation in absentia conducted?

A: Promulgation shall be made by:
1. Recording the judgment in the criminal
docket; and
2. Serving the accused a copy thereof at his
last known address or through his
counsel.
M. NEW TRIAL OR RECONSIDERATION

1. GROUNDS FOR NEW TRIAL
2. GROUNDS FOR RECONSIDERATION
Q: Distinguish new trial from reconsideration?
A:
New trial
Rehearing of a case already decided but before the
judgment of conviction therein rendered has become
final, whereby errors of law or irregularities are
expunged from the record or new evidence is
introduced, or both steps are taken
Grounds:
1. Errors of law or irregularities prejudicial to the
substantial rights of the accused have been
committed during the trial.
282
Reconsideration
May be filed in order to correct errors of law or fact in the
judgment. It does not require any further proceeding.
Grounds:
1.
Errors of law; or
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
2.
New and material evidence has been discovered

which the accused could not, with reasonable
diligence, have discovered and produced at the trial
and which if introduced and admitted would
probably change the judgment (Sec. 2).
3.Other grounds which the court may consider in the

exercise of its jurisdiction :
a. Negligence or incompetency of counsel or mistake
which is so gross amounting to deprivation of the
substantial rights of the accused and due process;
(Aguilar v. Court of Appeals GR No. 114282,
November 28, 1995)
b. Recantation of a witness where there is no
evidence sustaining the judgment of conviction
other than the testimony of such witness; (Tan Ang
Bun v. Court of Appeals GR No
c. Improvident plea of guilty which may be
withdrawn;
d. Disqualification of attorney de officio to represent
accused in trial.
2.
Errors of fact (Sec. 3).
Note: The principle underlying this rule is to afford the trial

court the opportunity to correct its own mistakes and to
avoid unnecessary appeals from being taken. The grant by
the court of reconsideration should require no further
proceedings, such as taking of additional proof.
Q: When should a motion for new trial or

consideration be filed?
Q: What should be the form of a motion for new

trial or reconsideration?
A: It should be filedwith the trial court within 15

days from the promulgation of the judgment.
A: The motion must:

1. be in writing;
2. filed in court;
3. state the grounds on which it is based;
and
4. if the motion for new trial is based on
newly discovered evidence, it must be
supported by the affidavits of the witness
by whom such evidence is expected to be
given or duly authenticated copies of
documents which it is proposed to
introduce in evidence (Sec. 4).
Note: Notice of the motion for new trial or

reconsideration shall be given to the prosecutor.
Q: When should a motion for reconsideration of

any final order or order be filed in cases before the
Sandiganbayan?
A: It may be filed within fifteen (15) days from the
promulgation or notice of final order or judgment
(Sec. 5, R.A. 8249).
Note: Such motion for reconsideration shall be
decided within 30 days from submission (Sec. 5, R.A.
8249).
Q: When may a new trial granted?

A: It may be granted at any time before the
judgment of conviction becomes final on motion of
the accused or the court with the consent of the
accused (Sec. 1).
Note: The award of new trial or taking of additional
evidence rests upon the sound discretion of the court.
Once the appeal is perfected, the court a quo loses
jurisdiction over it, except for the purpose of
correcting clerical errors. In such case, the appellate
court steps in. When new material evidence has been
discovered, the accused may file a motion for new trial
with the appellate court.
Note: While the rule requires that an affidavit of

merits be attached to support a motion for new trial
based on newly discovered evidence, the rule also
allows that the defect of lack of merit may be cured by
the testimony under oath of the defendant at the
hearing of the motion (Paredes v. Borja, G.R. No. L15559, Nov. 29, 1961).
Q: What is recantation? Is it a ground for new

trial?
A: Recantation is the public and formal withdrawal
of a witness of his prior statement (People v.
Ballabare, G.R. No. 108871, Nov. 19, 1996). It is not
a ground for new trial because it makes a mockery
of the court and would place the investigation of
truth at the mercy of unscrupulous witness.
Moreover, retractions are easy to extort out of
witness. In contrast, their statements are made
under oath, in the presence of judge, and with the
opportunity to cross-examine.

283

Q: Distinguish recantation from desistance.
A:
Recantation
A
witness
who
previously
gave
a
testimony
subsequently declares
that his statements are
untrue publicly (People
v. Ballabare, G.R. No.
108871,
Nov.
19,
1996).
GR: It is not a ground
for granting a new trial
and are hardly given
weight
XPN: When there is no
evidence sustaining the
judgment of conviction
other
than
the
testimony
of
the
recanting witness (Tan
Ang Bun v. CA, G.R. No.
L-47747,
Feb.
15,
1990).
Affidavit of Desistance
The complainant states that

he did not really intend to
institute the case and he is
no longer interested in
testifying or prosecuting.
It is not by itself a ground

for dismissal of the action
(People v. Ramirez, G.R.
Nos. 150079-80, June 10,
2004).
It is merely an additional
ground to buttress the
defense and not a sole
consideration for acquittal
(People v. Ballabare, G.R.
No. 108871, Nov. 19, 1996).
3. REQUISITES BEFORE A NEW TRIAL MAY BE

GRANTED ON GROUND OF NEWLY DISCOVERED
EVIDENCE
Q: What are the requisites before a new trial may
be granted on the ground of newly discovered
evidence?
A: That:
1. the evidence was discovered after trial;
2. such evidence could not have been
discovered and produced at the trial even
with the exercise of reasonable diligence;
3. it is material, not merely cumulative,
corroborative or impeaching; and
4. the evidence is of such a weight that it
would probably change the judgment if
admitted (Herrera, Vol. IV, p. 935, 2007
ed.).
Q: May errors or ignorance of counsel be a ground
for new trial or consideration?
A:
GR: Mistakes or errors of counsel in the conduct
of his case are not grounds for new trial. This rule
is the same whether the mistakes are the result
of ignorance, inexperience, or incompetence.
XPN: If the incompetence, ignorance or
inexperience of counsel is so great and the error
committed as a result thereof is so serious that
284
the client, who otherwise has a good cause, is

prejudiced and denied his day in court, the
litigation may be reopened to give the client
another chance to present his case (Abrajano v.
CA, G.R. No. 114282, Oct. 13, 2000).
4. EFFECTS OF GRANTING A NEW TRIAL OR
RECONSIDERATION
Q: What are the effects of granting a new trial or
reconsideration?
A: In all cases, when the court grants a new trial or
reconsideration, the original judgment shall be set
aside or vacated and a new judgment rendered
accordingly.
In addition, when granted on the ground of:
1. Errors of law or irregularities committed
during the trial
a. All proceedings and evidence not
affected
by such
errors and
irregularities shall stand;
b. Those affected shall be set aside and
taken anew; and
c. In the interest of justice, the court may
allow the introduction of additional
evidence.
2.
Newly discovered evidence

a. The evidence already taken shall stand;
b. Newly discovered and other evidence
as the court may, in the interest of
justice, allow to be introduced, shall be
taken and considered together with the
evidence already in the record (Sec. 6).
Note: The effect of granting a new trial is not to acquit

the accused of the crime of which the judgment finds
him guilty but precisely to set aside said judgment so
that the case may be tried de novo as if no trial had
been had before.
5. APPLICATION OF NEYPES DOCTRINE IN

CRIMINAL CASES
Q: What is the effect of filing a motion for new
trial or reconsideration on the period of perfecting
an appeal?
A: A fresh period of fifteen (15) days to appeal is
counted from the denial of the motion for
reconsideration or new trial (Neypes v. CA, G.R. No.
141524, Sept. 14, 2005).
Note: Denial of a motion for reconsideration or new
trial is not appealable nor subject of certiorari; but it
may be raised as an error on appeal.
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
Q: Distinguish new trial from reopening of the
case.
A:
New Trial
Filed after judgment is
rendered but before the
finality thereof.
Made by the court on
motion of the accused or
at its own instance but
with the consent of the
accused.
Re-opening of the Case

Made by the court before
the judgment is rendered
in the exercise of sound
discretion.
Does not require the
consent of the accused;
may be at the instance of
either party who can
thereafter
present
additional evidence.
Q: What is the fresh period rule as enunciated in

Neypes?
A: In Neypes, the Court modified the rule in civil
cases on the counting of the 15-day period within
which to appeal. The Court categorically set a fresh
period of 15 days from a denial of a motion for
reconsideration within which to appeal.
The "fresh period rule" shall also apply to Rule 40
governing appeals from the Municipal Trial Courts
to the Regional Trial Courts; Rule 42 on petitions for
review from the Regional Trial Courts to the Court
of Appeals; Rule 43 on appeals from quasi-judicial
agencies to the Court of Appeals and Rule 45
governing appeals by certiorari to the Supreme
Court. The new rule aims to regiment or make the
appeal period uniform, to be counted from receipt
of the order denying the motion for new trial,
motion for reconsideration (whether full or partial)
or any final order or resolution (Neypes v. Court of
Appeals, G.R. No. 141524, September 14, 2005).
Q: Does the fresh period rule apply to criminal
cases?
A: Yes. The Court held in the case of Yu v. SamsonTatad(G.R. No. 170979, Feb. 9, 2011) that the
pronouncement of a fresh period to appeal
should equally apply to the period for appeal in
criminal cases under Section 6 of Rule 122, for the
following reasons:
First, BP 129, as amended, the substantive law on
which the Rules of Court is based, makes no
distinction between the periods to appeal in a civil
case and in a criminal case.
Second, the provisions of Section 3 of Rule 41 of the
1997 Rules of Civil Procedure and Section 6 of Rule
122 of the Revised Rules of Criminal Procedure
mean exactly the same. There is no substantial
difference between the two provisions insofar as
legal results are concerned the appeal period
stops running upon the filing of a motion for new

trial or reconsideration and starts to run again upon
receipt of the order denying said motion for new
trial or reconsideration. It was this situation that
Neypes addressed in civil cases. No reason exists
why this situation in criminal cases cannot be
similarly addressed.
Third, while the Court did not consider in Neypes
the ordinary appeal period in criminal cases under
Section 6, Rule 122 of the Revised Rules of Criminal
Procedure since it involved a purely civil case, it did
include Rule 42 of the 1997 Rules of Civil Procedure
on petitions for review from the RTCs to the Court
of Appeals (CA), and Rule 45 of the 1997 Rules of
Civil Procedure governing appeals by certiorari to
this Court, both of which also apply to appeals in
criminal cases, as provided by Section 3 of Rule 122
of the Revised Rules of Criminal Procedure.
N. APPEAL
1. EFFECT OF AN APPEAL
Q: What are the modes of review?
A: The Rules of Court recognize four modes by
which the decision or final order of the court may
be reviewed by a higher tribunal:
1. Ordinary Appeal;
2. Petition for Review;
3. Petition for Review on Certiorari;
4. Automatic Appeal
Q: What is appeal?
A: It is a proceeding for review by which the whole
case is transferred to the higher court for a final
determination. It is not an inherent right of a
convicted person. The right of appeal is statutory.
Only final judgments and orders are appealable.
Q: Who may appeal?
A: Any party may appeal from a judgment or final
order, unless the accused will be placed in double
jeopardy (Sec. 1).
Q: What is the effect of an appeal?
A: An appeal in a criminal case opens the whole
case for review and this includes the review of
penalty, indemnity, and the damages involved.
Consequently, on appeal, the appellate court may
increase the penalty and indemnity of damages
awarded by the trial court although the offended
party had not appealed from said award, and the
party who sought a review of the decision was the
accused.

285

Note: When an appeal has been perfected, the court a
quo loses jurisdiction.
Q: May the prosecution appeal a judgment of

acquittal?
Q: What is the difference between the appeal of a

judgment nd the appeal of an order?
A:
GR: No, because the accused would be
subjected to double jeopardy.
A: The appeal from a judgment must be perfected

within 15 days from promulgation. The appeal from
an order should be perfected within 15 days from
notice of the final order.
XPNs:
1. If the dismissal is made upon motion or
with the express consent of the accused.
However, double jeopardy will still attach
if the dismissal is based on:
a. Insufficiency of the prosecution
evidence; or
b. Violation of the accuseds right to
speedy trial.
2. If the dismissal is not an acquittal or
based upon consideration of the evidence
on the merits;
3. If the question is purely legal so that
should the dismissal be found incorrect,
the case shall be remanded for further
proceedings to determine the guilt or
innocence of the accused; and
4. If there is a showing of grave abuse of
discretion amounting to lack or excess of
jurisdiction, certiorari under Rule 65 may
be available.
2. WHERE TO APPEAL
Q: When is appeal taken?
A: An appeal must be filed within fifteen (15) days
counted from the promulgation or notice of the
judgment or order appealed from.
Q: Where is the appeal taken?
A: To the:
1. RTC, in cases decided by the MTC, MTCC,
MeTC, or MCTC;
2. CA or to the SC in the proper cases
provided by law, in cases decided by the
RTC;
3. SC, in cases decided by the CA (Sec. 2).
3. HOW IS APPEAL TAKEN (AMENDED BY AM 00-5-03-SC, October 3, 2002)

Q: How is appeal taken?
A:
Appeal
to
From decision of
How taken
RTC
MTC
1.
2.
File a notice of appeal with the MTC;

Serve a copy of the notice to the adverse party.
1.
2.
File a notice of appeal with the RTC;

CA
RTC
1. Exercising its original jurisdiction for
offenses with imposable penalties less
than
reclusion
perpetua
or
life
imprisonment
2. Exercising its appellate jurisdiction
3. Where the imposable penalty is:
a. life imprisonment or reclusion
perpetua; or
b. a lesser penalty for offenses
committed on the same occasion or
which arose from the same
occurrence that gave rise to the
offense punishable reclusion perpetua
or life imprisonment
4. Where the imposable penalty is death
286
File a petition for review under Rule 42.
1.
2.
File a notice of appeal with the RTC;

Automatic review to CA (Sec. 10)
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
1.
2.
All other appeals except:

a. Decision of RTC where the imposable
penalty is life imprisonment or
reclusion perpetuaor a lesser penalty
for offenses committed on the same
occasion or which arose from the
same occurrence that gave rise to the
offense punishable by reclusion
perpetua or life imprisonment; and
b. Decisions of RTC imposing the penalty
of death.
CA
a.
b.
SC
3.
When it finds that death penalty

should be imposed
Where it imposes reclusion perpetua,
life imprisonment or a lesser penalty
Sandiganbayan
a. Exercising its appellate jurisdiction
for offenses where the imposable
penalty is reclusion perpetua or life
imprisonment
b.
c.
d.
Exercising its original jurisdiction for

offenses where the imposable
penalty is reclusion perpetua and life
imprisonment
Exercising its original or appellate
jurisdiction where it finds that the
penalty to be imposed is death
Cases not falling in paragraphs a and
b above
Petition for review on certiorari via Rule 45
Automatic review (Sec. 13, Rule 124)

Notice of appeal (Sec. 13, Rule 124)
File a notice of appeal
File a notice of appeal (Sec. 13, Rule 124; Sec. 5, PD

1606 as amended by R.A. 8249)
Automatic review (Sec. 13, Rule 124; Sec. 5, PD 1606
as amended by R.A. 8249)
Petition for review on certiorari via Rule 45
5. GROUNDS FOR DISMISSAL OF APPEAL
4. EFFECT OF APPEAL BY ANY OF SEVERAL

ACCUSED
Q: What are the effects of appeal by any of the
several accused?
Q: What are the grounds for the dismissal of an

appeal?
A:
A:
1.
1.
2.
3.
An appeal taken by one or more of

several accused shall not affect those who
did not appeal, except insofar as the
judgment of the appellate court is
favorable and applicable to the latter;
The appeal of the offended party from
the civil aspect shall not affect the
criminal aspect of the judgment or order
appealed from; and
Upon perfection of the appeal, the
execution of the judgment or final order
appealed from shall be stayed as to the
appealing party (Sec. 11).
Note: In People v. Fernandez (G.R. No. 80481, June 27,

1990), the SC applied the benefit of an acquittal
handed down in an appeal to an accused who jumped
bail or escaped.
2.
3.
4.
5.
6.
Failure of the record on appeal to show

on its face that the appeal was taken
within the period fixed by these Rules;
Failure to file the notice of appeal or the
record on appeal within the period
prescribed by these Rules;
Failure of the appellant to pay the docket
and other lawful fees as provided in
section 5 of Rule 40 and section 4 of Rule
41;
Unauthorized alterations, omissions or
additions in the approved record on
appeal as provided in section 4 of Rule 44;
Failure of the appellant to serve and file
the required number of copies of his brief
of memorandum within the time provided
by these Rules;
Absence of specific assignment of errors
in the appellants brief, or of page
references to the record as required in

287
7.
8.
9.
section 13, paragraphs (a), (c), (d) and (f)

of Rule 44;
Failure of the appellant to take the
necessary steps for the correction or
completion of the record within the time
limited by the court in its order;
Failure of the appellant to appear at the
preliminary conference under Rule 48 or
to comply with orders, circulars, or
directives of the court without justifiable
cause; and
The fact that the order or judgment
appealed from is not appealable (Rule 50)
5.
Q: What are the requisites for issuing a search

warrant?
A:
1.
2.
3.
O. SEARCH AND SEIZURE

1. NATURE OF SEARCH WARRANT
4.
Q: What is a search warrant?

A: A search warrant is an order in writing issued in
the of the People of the Philippines, signed by the
judge and directed to a peace officer, commanding
him to search for personal property described
therein and bring it before the court.
Note: The warrant MUST name the person upon
whom it is to be served EXCEPT in those cases where it
contains a DESCRIPTIO PERSONAE such as will enable
the officer to identify the person. The description must
be sufficient to indicate clearly the proper person upon
whom it is to be served. (People v. Veloso GR No L23051, October 20, 1925)
Q: What is a general warrant?

A: A general warrant is a search warrant which
vaguely describes and does not particularize the
personal properties to be seized without a definite
guidelines to the searching team as to what items
might be lawfully seized, thus giving the officers of
the law discretion regarding what articles they
should seize.
NOTE: A general warrant is not valid as it infringes on
the constitutional mandate requiring particular
description of the things to be seized.
Q: What is the nature of a search warrant?

A:
1.
2.
3.
4.
288
Search warrants are in the nature of

criminal process and may be invoked only
in furtherance of public prosecutions;
Search warrants have no relation to civil
process or trials; and
They are not available to individuals in the
course of civil proceedings;
It is not for the maintenance of any mere
private right;
It is interlocutory in character- it leaves

something more to be done, the
determination of the guilt of the accused.
5.
6.
7.
8.
The search warrant must be issued upon

probable cause;
Probable cause must be determined by
the judge;
The judge must have personally examined
the witness, in the form of searching
questions and answers, the applicant and
his witnesses and took down their
depositions;
Must particularly describe or identify the
property to be seized as far as the
circumstances will ordinarily allow;
Must particulary describe the place to be
searched and the person or things to be
seized;
Must be in connection with one specific
offense:
The sworn statements together with the
affidavit submitted by witnesses must be
attached to the record. (Prudente v.
Dayrit GR No. 82870, December 14, 1989);
It must not have been issued more than
10 days prior to the search made
pursuant thereto.
Note: Two points must be stressed in connection with

this mandate: (1) that NO warrant of arrest shall issue
but upon probable cause to be determined by the
judge in the manner set forh in said provision, and (2)
that the warrant shall particularly describe the things
to be seized. (Stonehill v. Diokno, G.R. No. L-19550,
June 19, 1967)
Q: Distinguish Search from Seizure.

A: The term search as applied to searches and
seizures is an examination of a mans house or
other buildings or premises or of his person with a
view to the discovery of contraband or illicit or
stolen property or some evidence of guilt to be
used in the prosecution of a criminal action for
some offense with which he is charged.
A seizure is the physical taking of a thing into
custody.
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
2. DISTINGUISH FROM WARRANT OF ARREST
Q: Distinguish a warrant of arrest from a search
warrant.
3. APPLICATION FOR SEARCH WARRANT, WHERE

FILED
Q: Where should an application for a search
warrant be filed?
A:
Warrant of Arrest
Search Warrant
Order directed to the

peace officer to execute
the warrant by taking the
person stated therein into
custody so that he may be
bound to answer for the
commission
of
the
offense.
Order in writing in the

name of the Republic of
the Philippines signed by
the judge and directed to
the peace officer to search
personal
property
described therein and to
bring it to court.
Does not become stale.
Validity is for 10 days only.
To be served only in
daytime
unless
the
May be served on any day
affidavit alleges that the
and at any time of day or
property is on the person
night.
or in the place to be
searched.
Must personally conduct
Searching examination of an examination of the
witnesses is not necessary. complainant and the
witnesses.
Judge is merely called
upon to examine and
evaluate the report of the
prosecutor
and
the
evidence
Examination must be
probing. Not enough to
merely
adopt
the
questions and answers
asked by a previous
investigator
Note: In general, the requirements for the issuance of

a search warrant are more stringent than the
requirements for the issuance of a warrant of arrest.
The violation of the right to privacy produces a
humiliating effect which cannot be rectified anymore.
This is why there is no other justification for a search,
except a warrant. On the other hand, in a warrant of
arrest, the person to be arrested can always post bail
to prevent the deprivation of liberty.
Q: Why are the requirements for the issuance of a

search warrant more stringent than the
requirements for the issuance of a warrant of
arrest?
A: The violation of the right to privacy produces a
humiliating effect which cannot be rectified
anymore. This is why there is no other justification
for a search, except a warrant. On the other hand,
in a warrant of arrest, the person to be arrested can
always post bail to prevent the deprivation of
liberty.
A:
GR: It should be filed with the court within whose
territorial jurisdiction the crime was committed. For
compelling reasons, any court within the judicial
region where the crime was committed if the place
of the commission of the crime is known, or any
court within the judicial region where the warrant
shall be enforced
XPNs:
1.
2.
However, if the criminal action has been

filed, the application shall only be made in
the court where the criminal action is
pending (Sec. 2);
In case of search warrant involving
heinous crimes, illegal gambling, illegal
possession of firearms and ammunitions
as
well
as
violations
of
the
Comprehensive Dangerous Drugs Act of
2002, the Intellectual Property Code, the
Anti- Money Laundering Act of 2001, the
Tariff and Customs Code, the Executive
judges and whenever they are on official
leave of absence or are not physically
present in the station, the Vice- Judges of
RTCs of Manila and Quezon City shall have
the authority to act on the application
filed by the NBI, PNP and the Anti- Crime
Task Force (ACTAF). (Administrative
Matter No. 99-10-09-SC)
Note: The application shall be personally
endorsed by the heads of such agencies and
shall particularly described therein the
places to be searched and/ or the property
or things to be seized as prescribed in the
Rules of Court. The Executive Judges and the
Vice- Exceutive Judges concerned shall issue
the warrants if justified, which may be
served outside the territorial jurisdiction of
said courts. (Sps. Marimla v. People of the
Philippines, GR No. 158467, October 16,
2009)
4. PROBABLE CAUSE
Q: What is probable cause?
A: It refers to the facts and circumstances which
could lead a reasonably discreet and prudent man
to believe that an offense has been committed and
that the objects sought in connection with the
offense are in the place sought to be searched

289

(Burgos v. Chief of Staff, G.R. No. L-65334, Dec. 26,
1984).
4.
Q: What are the requisites in determining the

existence of probable cause?
5.
A:
1.
2.
3.
The judge must examine the complainant

and his witness personally;
The examination must be under oath; and
The examination must be reduced in
writing in the form of searching questions
and answers (People v. Mamaril, 420
SCRA 662)
6. PARTICULARITY OF PLACE TO BE SEARCHED AND

THINGS TO BE SEIZED
Q: What are the kinds of personal properties to be
seized by virtue of a search warrant?
A:
Q: Who determines probable cause?
1.
2.
A:
3.
GR: Probable cause must be determined
personally by the judge (Article 3, Section 2,
1987 Constitution)
XPN: Deportation of illegal and undesirable
aliens, whom the President or the
Commissioner of Immigration may order
arrested following a final order of deportation
for the purpose of deportation (Harvey v.
Defensor- Santiago GR No 82544, June 28,
1988)
Note: The requirement of probable cause, to be

determined by a Judge, does not extend to
deportation proceedings. (Tiu Chun Hai v.
Commissioner, G.R. No. L-10009 December 22, 1958)
Q: What is Multi Factor Balancing Test in

determining probable cause?
A: Multi Factor Balancing test is one which requires
the officer to weigh the manner and intensity of the
interference on the right of the people, the gravity
of the crime committed, and the circumstances
attending the incident.
5. PERSONAL EXAMINATION BY JUDGE OF THE
APPLICANT AND WITNESS
Q: What are the requisites
examination by the judge?
of
personal
A:
1.
2.
3.
290
The judge must examine the witness

personally;
The examination must be under oath;
The examination must be reduced to
writing in the form of searching questions
and answers (Marinas v. Siochi, G.R. Nos.
L-25707 & 25753-25754, May 14, 1981);
It must be probing and exhaustive, not

merely routinary or pro forma (Roan v.
Gonzales, G.R. No. 71410, Nov. 25, 1986);
and
It is done ex-parte and may even be held
in the secrecy of chambers (Mata v.
Bayona, G.R. No. L-50720, Mar. 26, 1984).
Subject of the offense;

Stolen or embezzled and other proceeds
or fruits of the offense; and
The means used or intended to be used as
the means of committing an offense (Sec.
3).
Note: It is not required that the property to be seized

should be owned by the person against whom the
search warrant is directed. It is sufficient that the
person against whom the warrant is directed has
control or possession of the property sought to be
seized (Burgos v. Chief of Staff, G.R. No. L-65332, Dec.
26, 1984).
Q: What are the tests to determine particularity of

the place to be searched?
A:
1.
2.
3.
When the description therein is as specific

as the ordinary circumstance will allow
(People v. Rubio, GR No L-35500, October
27, 1932);
When the description express a
conclusion of fact, not of law which the
warrant officer may be guided in making
the search and seizure;
When the things described therein are
limited to those which bear direct relation
to the offense for which the warrant is
being issued.
Q: What is the purpose of describing with

particularity the place to be searched and the
persons or things to be seized?
A: The purpose of the rule is to leave the officers of
the law with not discretn regarding what articles
they shall seize, to the end that unreasonable
searches and seizures may not be made- that
abuses may not be committed. (Stonehill v. Diokno,
G.R. No. L-19550, June 19, 1967)
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
7. PERSONAL PROPERTY TO BE SEIZED
3.
Q: What are the kinds of personal properties to be
seized by virtue of a search warrant?
A:
1.
2.
3.
Subject of the offense;

Stolen or embezzled and other proceeds
or fruits of the offense; and
The means used or intended to be used as
the means of committing an offense (Sec.
3).
Note: It is not required that the property to be seized

should be owned by the person against whom the
search warrant is directed. It is sufficient that the
person against whom the warrant is directed has
control or possession of the property sought to be
seized (Burgos v. Chief of Staff, G.R. No. L-65332, Dec.
26, 1984).
8. EXCEPTIONS TO SEARCH WARRANT

REQUIREMENT
a. SEARCH INCIDENTAL TO LAWFUL ARREST
b. CONSENTED SEARCH
c. SEARCH OF MOVING VEHICLE
d. CHECK POINTS; BODY CHECKS IN AIRPORT
e. PLAIN VIEW SITUATION
f. STOP AND FRISK SITUATION
g. ENFORCEMENT OF CUSTOM LAWS
Q: May there be valid warrantless search?
A: Yes, the following are instances where a
warrantless search is valid:
1.
Search incident to lawful arrest

Immediate control test A search
incidental to a lawful warrantless arrest
may extend beyond the person where the
exigencies of the situation justify a
warrantless search for dangerous
weapons and to prevent the arrestee
from destroying evidence of the crime
within reach (People v. Musa, G.R. No.
95329, Jan. 27, 1993).
2.
Consented search (waiver of right)

Consent cannot be presumed simply
because the accused failed to object to
the search. To constitute a waiver, it must
appear that:
a. The right exists;
b. The person involved had knowledge,
actual or constructive, of the
existence of such rights; and
c. Actual intention to relinquish such
rights (People v. Burgos, G.R. No.
92739, Aug. 2, 1991).
4.
Search of moving vehicle May validly be

made without a search warrant because
the vessel or aircraft can quickly move out
of the jurisdiction before such warrant
could be secured (People v. Lo Ho Wing,
G.R. No. 88017, Jan. 21, 1991).
Checkpoints; body checks in airport
NOTE: Searches conducted in checkpoints
are valid for as long as they are warranted
by the exigencies of public order and are
conducted in a way least intrusive to
motorists. For as long as the vehicle is
neither searched nor its occupants
subjected to a body search, and the
inspection of the vehicle is limited to a visual
search, said routine checks cannot be
regarded as violative of an individuals right
against unreasonable search. (People v.
Vinecario, G.R. No. 141137, January 20,
2004)
In body checks in airports, passengers
attempting to board an aircraft routinely
pass through metal detectors; their carry-on
baggage as well as checked luggage are
routinely subjected to x-ray scans. Should
these procedures suggest the presence of
suspicious objects, physical searches are
conducted to determine what the objects
are. There is little question that such
searches are reasonable, given their minimal
intrusiveness, the gravity of the safety
interests involved, and the reduced privacy
expectations associated with airline travel.
Indeed, travelers are often notified through
airport public address systems, signs, and
notices in their airline tickets that they are
subject to search and, if any prohibited
materials or substances are found, such
would be subject to seizure.
These
announcements place passengers on notice
that ordinary constitutional protections
against warrantless searches and seizures do
not apply to routine airport procedures.
(People v. Johnson, G.R. No. 138881,
December 18, 2000)
5. Plain view situation

The plain view doctrine authorizes a search
and a seizure without a warrant.
For the doctrine to apply, the following
requisites must be met:
a. There must have been a legal
presence in the place where the
search is made;
b. The evidence was discovered
inadvertently by an officer with a
right to be where he is;

291

c.
d.
The evidence is immediately

apparently illegal; and
There is no need for any further
search to obtain the evidence
(People v. Concepcion, 361 SCRA 540;
People v. Sarap, 399 SCRA 503;
People v. Go; 411 SCRA 81)
6. Stop and frisk situations

This is a limited protective search of the outer
clothing of a person to determine the presence
of weapons. Probable cause is not required but
a genuine reason (not mere suspicion) must
exist, in the light of the officers experience
and surrounding circumstances, to warrant the
belief that the persons has concealed weapons
(Malacat v. Court of Appeals, 283 SCRA 159).
Its object is either to:
a. determine the identity of a
suspicious individual
b. maintain the status quo momentarily
while the police officer seeks to
obtain more information.
Note: The officer may search the outer
clothing of the person in an attempt to
discover weapons which might be used to
assault him (Manalili v. CA, G.R. No. 113447,
Oct. 9, 1997).
7.
Enforcement of custom laws
or unlawful per se ought to be returned to their

rightful owner or possessor.
Q: In what court may a motion to quash the search

warrant or suppress evidence be filed?
A:
1. It may be filed and acted upon ONLY by the court
where the action has been instituted;
2. If no criminal action has been instituted, it may
be filed in and resolved by the court that issued the
warrant. However if such court failed to resolve the
motion and a criminal case is subsequently filed in
another court, the motion shall be resolved by the
LATTER court.
P. PROVISIONAL REMEDIES IN CRIMINAL CASES
1. NATURE
Q: What is the nature of provisional remedies?
A: They are those to which parties may resort for
the preservation or protection of their rights or
interests and for no other purposes during the
pendency of the action. They are applied to a
pending litigation for the purpose of securing the
judgment or preserving the status quo; and in some
cases after judgment, for the purpose of preserving
or disposing of the subject matter (Cala v. Roldan,
G.R. No. L-252, Mar. 30, 1946).
2. KINDS OF PROVISIONAL REMEDIES
9. REMEDIES FROM UNLAWFUL SEARCH AND

SEIZURE
Q: What are the remedies against an unlawful
search?
A: As far as applicable, provisional remedies under

the Civil Procedure are available (Sec. 1) such as:
A:
1.
2.
3.
4.
Motion to quash the search warrant;

Motion to suppress as evidence the
objects illegally taken (exclusionary rule
any
evidence
obtained
through
unreasonable searches and seizures shall
be inadmissible for any purpose in any
proceeding);
Replevin, if the objects are legally
possessed; and
Certiorari, where the search warrant is a
patent nullity.
Note: The remedies are alternative. If a motion to

quash is denied, a motion to suppress cannot be
availed consequently. The illegality of the search
warrant does not call for the return of the things
seized, the possession of which is prohibited by law.
However, those personalities seized in violation of the
constitutional immunity whose possession is not illegal
292
Q: What provisional remedies are available in

criminal cases?
1.
2.
3.
4.
5.
attachment (Rule 57);

preliminary Injunction (Sec. 58);
receivership (Rule 59);
delivery of personal property (Rule 60);
support Pendent lite (Rule 61).
Q: Who may apply for attachment?

A: The aggrieved party in whose behalf the civil
aspect of the criminal action is prosecuted may
apply for the issuance of a writ of preliminary
attachment, he being the person primarily and
directly interested thereby. The prosecutor in the
criminal action may make such an application in
behalf of or for the protection of the interest of the
offended party.
REMEDIAL LAW TEAM:

CRIMINAL PROCEDURE
Note: The Public prosecutor has the authority to apply
for preliminary attachment as may be necessary to
protect the interest of the offended party.
Q: Is notice to the adverse party required before a

writ of preliminary attachment may issue?
A: No notice to the adverse party, or hearing on the
application is required before a writ of preliminary
attachment may issue as a hearing would defeat
the purpose of the provisional remedy. The time
which such hearing would take could be enough to
enable the defendant to abscond or dispose of his
property before a writ of attachment may issue
(Mindanao Savings etc v. Court of Appeals, 172
SCRA 480)
Note: The only requirements for the issuance of a writ
of preliminary attachment are: the affidavit and bond
of the applicant.
Q: When may attachment be availed?

A: Attachment may be availed of ONLY when the
civil action arising from the crime has not been
expressly waived or not reserved and is limited on
the following instances:
1. When the accused is about to abscond from the
Philippines;
2. When the criminal action is based on a claim for
money or property embezzled or fraudulently
misapplied or converted for the use of the accused
who is a public officer or a corporate officer or an
attorney, broker, or agent or clerk in the course of
employment or by a person in fiduciary capacity;
3. When the accused has concealed or removed or
about to dispose of his property; and
4. When the accused resides abroad.

293

EVIDENCE
A. GENERAL PRINCIPLES
A: No. Any evidence inadmissible according to the

laws in force at the time the action accrued, but
admissible according to the laws in force at the
time of the trial is receivable.
1. CONCEPT OF EVIDENCE
3. EVIDENCE IN CIVIL CASES VERSUS EVIDENCE IN
CRIMINAL CASES
Q: What is evidence?
A: Evidence is the means, sanctioned by the Rules
of Court, of ascertaining in a judicial proceeding the
truth respecting a matter of fact. (Sec. 1, Rule 128)
Q: Distinguish Evidence in Civil Cases from

Evidence in Criminal Cases.
A:
Q: What are the four component elements?

A:
1. Means of ascertainment includes not
only the procedure or manner of
ascertainment but also the evidentiary
fact from which the truth respecting a
matter of fact may be ascertained
2. Sanctioned by the rules not excluded by
the Rules of Court
3. In a judicial proceeding contemplates an
action or proceeding filed in a court of law
4. The truth respecting a matter of fact
refers to an issue of fact and is both
substantive (determines the facts needed
to be established) and procedural
(governs the manner of proving said
facts).
Civil Cases
The party having the
burden of proof must
prove his claim by a
preponderance of
evidence
An offer of compromise
is not an admission of
any liability, and is not
admissible in evidence
against the offeror
The concept of
presumption of
innocence does not
apply
Criminal Cases
The guilt of the accused
has to be proven
beyond reasonable
doubt
An offer of compromise
by the accused may be
received in evidence as
an implied admission of
guilt
The accused enjoys the
constitutional
presumption of
innocence
4. PROOF VERSUS EVIDENCE

Q: Distinguish proof from evidence.
Q: Why is evidence required?

A: It is required because of the presumption that
the court is not aware of the veracity of the facts
involved in a case. It is therefore incumbent upon
the parties to prove a fact in issue thru the
presentation of admissible evidence (Riano,
Evidence: A Restatement for the Bar, p. 2, 2009 ed.).
2. SCOPE OF THE RULES OF EVIDENCE
A:
Proof
The effect when the
requisite quantum of
evidence of a particular
fact has been duly
admitted and given weight
The probative effect of
evidence
NOTE: It does not apply to election cases, land

registration, cadastral, naturalization and insolvency
proceedings, and other cases, except by analogy or in
suppletory character and whenever practicable and
convenient. (Sec. 4, Rule 1, Rules of Court)
Q: Are there vested rights under the Rules of

Evidence?
294
The mode and manner

of proving competent
facts in judicial
proceedings
The means of proof
5. FACTUM PROBANS VERSUS FACTUM

PROBANDUM
Q: What is the scope of the Rules of Evidence?

A: The rules of evidence shall be the same in all
courts and in all trials and hearings, except as
otherwise provided by law or by these rules. It is
guided by the principle of uniformity. (Sec. 2, Rule
128).
Evidence
Q: Distinguish factum probandum from factum

probans.
A:
Factum Probandum
The ultimate fact sought
to be established
Proposition to be
established
Hypothetical
Factum Probans
The intermediate facts
Materials which establish
the proposition
Existent
Note: Every evidentiary question involves the

relationship between the factum probandum and
factum probans.
REMEDIAL LAW TEAM:

EVIDENCE
6. ADMISSIBILITY OF EVIDENCE
of exception to the general admissibility

of all that is rational and probative.
Q: Distinguish admissibility of evidence from

probative value of evidence.
b. RELEVANCE OF EVIDENCE AND COLLATERAL

MATTERS
A:
Admissibility
Probative Value
Question of whether certain

pieces of evidence are to be
considered at all.
Question of whether
the admitted evidence
proves an issue.
Note: Thus, a particular item of evidence may be

admissible, but its evidentiary weight depends on
judicial evaluation within the guidelines provided by
the rules of evidence (Heirs of Sabanpan v. Comorposa,
G.R. No. 152807, Aug. 12, 2003).
a. REQUISITES FOR ADMISSIBILITY OF EVIDENCE

Q: What are the requisites for admissibility of
evidence?
A:
1.
2.
Relevancy such a relation to the fact in

issue as to induce belief in its existence or
non-existence.
Competency if not excluded by law or by
the rules.
Q: What is the doctrine of Fruit of the Poisonous

Tree?
A: The doctrine speaks of that illegally seized
documents, papers, and things are inadmissible in
evidence. The exclusion of such evidence is the only
practical means of enforcing the constitutional
injunction against unreasonable searches and
seizures.
Q: What is meant by relevance of evidence?

A: Evidence must have such a relation to the fact in
issue as to induce belief in its existence or nonexistence.
Q: Is evidence on collateral matters allowed?
A: Evidence on collateral matters shall not be
allowed, except when it tends in any reasonable
degree to establish the probability or improbability
of the fact in issue. (Sec. 4, Rule 128)
Note: While the evidence may not bear directly on the
issue, it will be admitted if it has the tendency to
corroborate or supplement facts established
previously by direct evidence, or to induce belief as to
the probability or improbability of a fact in issue.
c. MULTIPLE ADMISSIBILITY
d. CONDITIONAL ADMISSIBILITY
e. CURATIVE ADMISSIBILITY
Q: What are the kinds of admissibility of evidence?

A:
MULTIPLE
Q: What are the two axioms of admissibility

according to Wigmore?
CONDITIONAL
A:
1.
Axiom of relevancy none but facts

having rational probative value are
admissible.
Note: Components of relevancy:

a. Materiality whether the evidence is
offered upon a matter properly in
issue.
b. Probativeness the tendency to
establish the proposition for which it is
offered as evidence.
2.
Axiom of competency facts having

rational probative value are admissible
unless some specific rule forbids their
admission. The rules of exclusion are rules
CURATIVE
Evidence that is plainly relevant and

competent for two or more purposes
will be received if it satisfies all the
requirements prescribed by law in
order that it may be admissible for
the purpose for which it is presented,
even if it does not satisfy the other
requisites of admissibility for other
purposes.
Evidence appears to be immaterial is
admitted by the court subject to the
condition that its connection with
another fact subsequent to be
proved
will
be
established.
Otherwise, such fact already received
will be stricken off the record at the
initiative of the adverse party.
Evidence that is otherwise improper
is admitted (despite objection from
the other party) to contradict
improper evidence presented or
introduced by the other party, to
cure, contradict or neutralize such
improper evidence.

295

Q: What are the three theories on curative
admissibility?
3.
A:
1.
American Rule the admission of such

incompetent evidence, without objection
by the opoonent does not justify such
opponent in rebutting it by similar
incompetent evidence
2.
English Rule if a party has presented

inadmissible evidence, the adverse party
may resort to similar inadmissible
evidence
3.
Massachusetts Rule the adverse pary

may be permitted to introduce similar
incompetent evidence In order to avoid a
plain and unfair prejudice cause by the
admission of the other partys evidence.
The combination of all the circumstances

is such as to produce a conviction beyond
reasonable doubt (Sec. 4, Rule 133;
People vs Sevilleno, G.R. No. 152954,
March 11, 2004).
Q: Is direct proof of previous agreement to commit

a crime necessary to prove conspiracy?
A: No. Considering the difficulty in establishing the
existence of conspiracy, settled jurisprudence finds
no need to prove it by direct evidence (Fernan, Jr.
and Torrevillas v. People, G.R. No. 145927, Aug. 24,
2007). It may be deduced from the acts of the
perpetrators before, during and after the
commission of the crime which are indicative of a
common design, concerted action and concurrence
of sentiments (Serrano v. CA, G.R. No. 123896, June
25, 2003).
g. POSITIVE AND NEGATIVE EVIDENCE
Q: What should determine the application of the

rule of curative admissibility?
Q: What is positive and negative evidence?
A:
A:
1. Whether the incompetent evidence was
seasonably objected to; and
2. Whether, regardless of the objection, the
admission of such evidence shall cause a
plain and unfair prejudice to the party
against whom it is admitted.
f. DIRECT AND CIRCUMSTANTIAL EVIDENCE
Q: Distinguish direct evidence from circumstantial

evidence.
A:
DIRECT EVIDENCE
Establishes the
existence of a fact in
issue without the
aid of any inference
or presumption
The witness testifies
directly of his own
knowledge as to the
main facts to be
proved
CIRCUMSTANTIAL EVIDENCE
Does not prove the existence
of a fact in issue directly, but
merely provides for logical
inference that such fact really
exists
Each proof is given of facts and
circumstances from which the
court may infer other
connected facts which
reasonably follow, according
to the common experience of
mankind
Q: When is circumstantial evidence sufficient to

convict the accused?
A: It is sufficient for conviction if:
1. There is more than one circumstance;
2. The facts from which the inferences are
derived are proven; and
296
1.
Positive when the witness affirms that a

fact did or did not occur, it is entitled to
greater weight since the witness
represents of his personal knowledge the
presence or absence of a fact.
2.
Negative when the witness states that

he did not see or know of the occurrence
of a fact and there is total disclaimer of
personal knowledge. Such is admissible
only if has to contradict positive acts of
the other side or would tend to exclude
the existence of fact sworn to by the
other side.
Note: A denial is a negative evidence. It is considered

by jurisprudence to be a very weak form of defense
and can never overcome an affirmative or positive
testimony particularly when it comes from the mouth
of a credible witness. (People vs Mendoza, 450 SCRA
328, January 21, 2005).
h. COMPETENT AND CREDIBLE EVIDENCE

Q: Distinguish competent evidence from credible
evidence.
A:
COMPETENT
Evidence is not excluded
by the rules
CREDIBLE
Refers to worthiness of
belief (believability)
Note: That quality which
renders a witness worthy of
th
belief (Blacks, 5 Ed., 330)
REMEDIAL LAW TEAM:

EVIDENCE
7. BURDEN OF PROOF AND BURDEN OF EVIDENCE
Q: What is burden of proof?
A: It is the duty of a party to present evidence to
establish his claim or defense by the amount of
evidence required by law (Sec. 1, Rule 131). It is also
called onus probandi.
Q: What are the two concepts of burden of proof?
A:
1.
2.
Burden of going forward Partys obligation of

producing evidence.
Burden of persuasion The burden of
persuading the trier of fact that the burdened
party is entitled to prevail.
Q: Distinguish burden of proof from burden of

evidence. (2004 Bar Question)
A:
BURDEN OF PROOF
BURDEN OF EVIDENCE
Definition
It is the duty of a party to
provide evidence at any
stage of the trial until he
has established a prima
It is the duty of a party
facie case, or the like duty
to present evidence on
of the adverse party to
the facts in issue
meet and overthrow that
necessary to establish
prima facie case thus
his claim or defense by
established. In both civil
the amount of evidence
and criminal cases, the
required by law (Sec. 1,
burden of evidence lies on
Rule 131)
the party who asserts an
affirmative allegation.
(Regalado, Vol. II, p. 817,
2008 ed.)
Whether it shifts throughout the proceedings
Does not shift as it
Shifts to the other party
remains throughout the
when one party has
entire case exactly
produced sufficient
where the pleadings
evidence to be entitled to a
originally placed it
ruling in his favor
What determines it
Generally determined by
Generally determined by
the developments at the
the pleadings filed by
trial, or by the provisions of
the party; and whoever
the substantive law or
asserts the affirmative of procedural rules which may
the issue has the burden
relieve the party from
of proof
presenting evidence on the
fact alleged
Effect of a legal presumption
It does not shift the
It creates a prima facie
burden of proof.
case and thereby sustains
However, the one who
the said burden of
has the burden of proof
evidence on the point
is relieved from the time
which it covers, shifting it
being, from introducing

evidence in support of
his averment because
the presumption stands
in the place of evidence.
(Francisco, p. 356, 1992
ed.)
to the other party. It

relieves those favored
thereby of the burden of
proving the fact presumed.
Note: The burden of proof is on the party who asserts

the affirmative of the issue at the beginning of the
case and continues on him throughout the case. Ei
incumbit probatio qui dicit, no qui negat - he who
asserts, not he who denies, must prove (Homeowners
Savings & Loan Bank v. Dailo, G.R. No. 153802, Mar.
11, 2005).
Where insanity is alleged, the burden of proof rests
upon him who alleges insanity to establish that fact
but where insanity is once proved to exist, the burden
of evidence is shifted to him who asserts that the act
was done while the person was sane (Engle v. Doe,
G.R. No. L-23317, Aug. 7, 1925).
Q: What is the test to determine where the burden

of proof lies?
A: The test is to ask which party to an action or suit
will fail if he offers no evidence competent to show
the facts averred as the basis for the relief he seeks
to obtain. If the defendant has affirmative defenses,
he bears the burden of proof as to those defenses
which he sets up in answer to the plaintiffs cause
of action (Bank of the Philippine Islands v. Spouses
Royeca, G.R. No. 176664, July 21, 2008).
Q: Who has the burden of proof?
A:
CIVIL CASE
Plaintiff
Defendant
To show the truth of his
allegations if the
If he raises an affirmative
defendant raises a
defense.
negative defense.
CRIMINAL CASE
Prosecution
Accused
When he admits the
Because of presumption
offense/crime charged
of innocence
but raises justifying,
exempting circumstances,
or absolutory causes.
Q: Who has the burden of evidence?

A:
CIVIL CASE
Plaintiff
Has to prove his
affirmative allegations in
the complaint
Defendant
Has to prove the
his counterclaim and his
affirmative defenses

297

CRIMINAL CASE
Prosecution
Accused
Has to prove its
Has to prove his
affirmative allegations
the Information
regarding the existence
regarding the elements
of justifying, exempting,
of the crime as well as
absolutory, or mitigating
the attendant
circumstances
circumstances
admitted the killing. (Cabuslay v. People and

Sandiganbayan, G.R. No. 129875, Sept. 30, 2005).
Q: What is the Principle of Negative Averments?
A:
GR: Negative allegations need not be proved,
whether in civil or criminal cases.
XPN: Where such negative allegations are
essential parts of the cause of action or defense
in a civil case, or are essential ingredients of the
offense in a criminal case or the defenses
thereto, negative allegations should be proved.
(Industrial Finance Corp., v.Tobias, G.R. No. L41555, July 27, 1977)
Q: What are the degrees of proof necessary to

satisfy the burden of proof?
A:
1.
2.
3.
Civil case Preponderance of evidence

Administrative case Substantial
evidence
Criminal case:
a. During preliminary investigation
Well founded belief of the fact of
commission of a crime
b. Issuance of warrant of arrest
Probable cause
c. To convict an accused Evidence of
guilt beyond reasonable doubt
d. Accused claims justifying/exempting
circumstances Clear and convincing
evidence
Q: Who has the burden of proof if the accused

seeks dismissal under the Speedy Trial Act?
A: If the accused is not brought to trial within the
time required, the Information shall be dismissed
upon motion of the accused. In such a case, the
burden of proof of supporting his motion is with the
accused (Sec. 13, R.A. 8493).
Q: Who has the burden of proof in self-defense?
A: One who invokes self-defense admits
responsibility for the killing. Accordingly, the
burden of proof shifts to the accused who must
then prove the justifying circumstance. He must
show by clear and convincing evidence that he
indeed acted in self-defense, or in defense of a
relative or a stranger. Self-defense, like alibi, is a
defense which can easily be concocted.
It is well-settled in this jurisdiction that once an
accused has admitted that he inflicted the fatal
injuries on the deceased, it is incumbent upon him
in order to avoid criminal liability, to prove the
justifying circumstance claimed by him with clear,
satisfactory and convincing evidence. He cannot
rely on the weakness of the prosecution but on the
strength of his own evidence, for even if the
evidence of the prosecution were weak it could not
be disbelieved after the accused himself had
298
XPN to the XPN: In civil cases, even if the

negative allegation is an essential part of the
cause of action or defense, it does not have to
be proved if it is only for the purpose of denying
the existence of a document which should
properly be in the custody of the adverse party.
(Regalado, Vol. II, p. 818, 2008 ed.)
8. PRESUMPTIONS
Q: What are matters which need not be proved?
A:
1.
2.
3.
4.
Facts admitted or not denied provided they

have been sufficiently alleged (Sec. 11,
Rule 8);
Agreed and admitted facts (Sec. 4, Rule
129);
Facts subject to judicial notice (Sec. 3,
Rule 129); and
Facts legally presumed (Secs. 2 & 3, Rule
131).
Q: What is presumption?
A: It is an assumption of fact resulting from a rule of
law, which requires such fact to be assumed from
another fact or group of facts found or otherwise
established in the action (Blacks, 5thEd., 1067 citing
Uniform Rule 12; NJ evidence Rule 13). It is an
inference of the existence or non-existence of a fact
which courts are permitted to draw from the proof
of other facts. (In the matter of the Intestate Estates
of Delgado and Rustia, G.R. No. 175733, Jan. 27,
2006)
Note: A presumption shifts
forward with the evidence. It
against whom it is directed
forward with evidence to
presumption.
the burden of going

imposes on the party
the burden of going
meet or rebut the
REMEDIAL LAW TEAM:

EVIDENCE
Q: Distinguish the classes of presumptions.
in derogation of the deed, or from denying

the truth of any material fact asserted in the
deed e.g. The tenant is not permitted to
deny the title of his landlord at the time of
the commencement of the relation of
landlord and tenant between them [Sec. 2
(par. b)]
A:
PRESUMPTION OF FACT
(Praesumptiones
Hominis)
It is a deduction which
reason draws from the
facts proved without an
express direction from
law to that effect.
A certain inference must

be made whenever the
facts appear which
furnish the basis of the
inference
Note: Estoppel may attach even though the landlord

does not have title at the commencement of the
relations. It may inure in favor of the successor.
Discretion is vested in the

tribunal as to drawing the
inference
If the title asserted is one that is alleged to have been

acquired subsequent to the commencement of that
relation, the presumption will not apply.
Reduced to fixed rules

and form a part of the
system of jurisprudence
Derived wholly and

directly from the
circumstances of the
particular case by means
of the common
experience of mankind
Q: What are the requisites for a party to be

estopped?
PRESUMPTION OF LAW
(Praesumptiones Juris)
It is a deduction which
the law expressly directs
to be made from
particular facts.
Need not be pleaded or

proved if the facts on
which they are based are
duly averred and
established
A:
1.
Has to be pleaded and

proved
2.
Q: What are the kinds of presumptions of law?
3.
A:
1.
2.
Conclusive presumptions (presumptions juris

et de jure)
Disputable presumptions (presumptions juris
tantum)
a. CONCLUSIVE PRESUMPTIONS
Q: What are the requisites before estoppel can be

claimed?
A:
Q: What is a conclusive presumption?
1.
A: Conclusive presumptions are those which are not

permitted to be overcome by any proof to the
contrary.
2.
Q: What are
presumptions?
the
classes
of
conclusive
A:
1.
2.
Estoppel in pais Whenever a party has, by

his own declaration, act or omission,
intentionally and deliberately led another to
believe a particular thing to be true, and to
act upon such belief, he cannot, in any
litigation arising out of such declaration, act
or omission, be permitted to falsify it [Sec. 2,
(par. a)].
Conduct amounting to false representation

or concealment of material facts; or at least
calculated to convey the impression that the
facts are otherwise than, and inconsistent
with, those which the party subsequently
attempts to assert;
Intent, or at least, expectation, that this
conduct shall be acted upon by, or at least
influence, the other party; and
Knowledge, actual or constructive, of the
real facts. (Riano, Evidence: A Restatement
3.
Lack of knowledge and of the means of

knowledge of the truth as to the facts in
question;
Reliance, in good faith, upon the conduct or
statements of the party to be estopped; and
Action or inaction based thereon of such
character as to change the position or status
of the party claiming the estoppel, to his
injury, detriment or prejudice. (Kalalo v. Luz,
G.R. No. L-27782, July 31, 1970)
b. DISPUTABLE PRESUMPTIONS
Q: What are disputable presumptions?

A: Those which are satisfactory if uncontradicted,
but may be contradicted and overcome by other
evidence. (Sec. 3, Rule 131)
Estoppel by deed A party to a property

deed is precluded from asserting, as against
another party to the deed, any right or title

299

Q: What are the disputable presumptions under
Section 3 of Rule 130?
A:
1.
2.
Unlawful act is done with an unlawful intent.
3.
Person intends the ordinary consequences of

his voluntary act.
4.
Person takes ordinary care of his concerns.

Note: All people are sane and normal and moved
by substantially the same motives. When of age
and sane, they must take care of themselves.
Courts operate not because one person has been
defeated or overcome by another but because
that person has been defeated or overcome
illegally. There must be a violation of the law
(Vales v. Villa, G.R. No. 10028, Dec. 16, 1916).
Evidence willfully suppressed would be adverse

if produced.
The requisites for the presumption to apply
are:
a. The evidence is material;
b. The party had the opportunity to produce
it; and
c. The evidence is available only to the said
party.
The presumption will not be applicable when:
a. Suppression of evidence is not willful;
b. Evidence suppressed or withheld is
merely corroborative or cumulative;
c. Evidence is at the disposal of both parties;
and
d. Suppression is by virtue of an exercise of
privilege.
Note: Failure of the prosecution to present a
certain witness and to proffer a plausible
explanation does not amount to willful
suppression of evidence since the prosecutor has
the discretion/prerogative to determine the
witnesses he is going to present (People v.
Jalbuena, G.R. No. 171163, July 4, 2007).
6.
7.
300
8.
Obligation delivered up to the debtor has been

paid.
9.
Prior rents or installments had been paid when

a receipt for the later ones is produced.
A person is innocent of a crime or wrong.

Note: It applies to both civil and criminal cases.
Presumption of innocence of the accused
accompanies him until the rendition of
judgement and disappears after conviction, such
that upon appeal, the appellate court will then
presume the guilt of the accused.
5.
the latter.
Money paid by one to another was due to the

latter.
Thing delivered by one to another belonged to
10. A person found in possession of a thing taken

in the doing of a recent wrongful act is the
taker and doer of the whole act; otherwise,
that things which a person possesses or
exercises acts of ownership over, are owned
by him.
Note: Presumption of possession of stolen goods
arises once the prosecution is able to prove that a
certain object has been unlawfully taken, and
that the accused is in possession of the object
unlawfully taken. Presumption of innocence
disappears and presumption of guilt takes place.
11. Person in possession of an order on himself for

the payment of the money or the delivery of
anything has paid the money or delivered the
thing accordingly.
12. Person acting in public office was regularly
appointed or elected to it.
Ratio: It would cause great inconvenience if in
the first instance strict proof were required of
appointment or election to office in all cases
where it might be collaterally in issue.
13. Official duty has been regularly performed.

Note: All things are presumed to have been done
regularly and with due formality until the
contrary is proved (Omnia praesumuntur rite et
solemniter esse acta donec probetur in
contrarium). An adverse presumption may arise
where the official act in question appears
irregular on its face. This presumption extends to
persons who have been appointed pursuant to a
local or special statute to act in quasi-public or
quasi-official capacities and to professionals like
lawyers and surgeons.
Ratio:
a. Innocence and not wrongdoing is to be
presumed;
b. An official oath will not be violated; and
c. A republican form of government cannot
survive long unless a limit is placed upon
controversies and certain trust and
confidence reposed in each governmental
department or agent at least to the extent
of such presumption.
GR: Presumption applies to both civil as well as

criminal cases.
REMEDIAL LAW TEAM:

EVIDENCE
XPN: Petition for writ of amparo

presumption may not be invoked by the
respondent public officer or employee (Rule on
the Writ of Amparo, A.M. No. 17-9-12-SC).
14. A court or judge acting as such, whether in the
Philippines or elsewhere, was acting in the
lawful exercise of jurisdiction.
Note: Lawful exercise of jurisdiction is presumed
in all cases, be it superior or inferior courts,
whether in the Philippines or elsewhere, unless
the record itself shows that jurisdiction has not
been acquired or the record itself shows the
absence of jurisdiction, in which case jurisdiction
to render a judgment may not be presumed.
15. All the matters within an issue raised in a case

were laid before the court and passed upon by
it; all matters within an issue raised in a
dispute submitted for arbitration were laid
before arbitrators and passed upon by them.
16. Private transactions have been fair and
regular.
Note: Presumption that all men act fairly,
honestly and in good faith, and that an individual
intends to do right rather than wrong and intends
to do only what he has the right to do.
17. Ordinary course of business has been followed.

Note: Persons engaged in a given trade or
business are presumed to be acquainted with the
general customs, usages and other facts
necessarily incident to the proper conduct of the
business.
absence of 10 years is required; and if he

disappeared after the age of 75, absence of
only 5 years is sufficient. The following shall be
considered dead for all purposes including the
division of estate among the heirs:
a.
b.
c.
d.
Person on board a vessel lost during a sea

voyage, or an aircraft which is missing,
who has not been heard of for 4 years
since the loss of the vessel or aircraft;
Member of the armed forces who has
taken part in armed hostilities, and has
been missing for 4 years;
Person who has been in danger of death
under other circumstances and whose
existence has not been known for 4 years;
If a married person has been absent for 4
consecutive years, the spouse present
may contract a subsequent marriage if he
or she has well-founded belief that the
absent spouse is already dead; 2 years in
case of disappearance where there is
danger of death under the circumstances
hereinabove provided. Before marrying
again, the spouse present must institute a
summary proceeding as provided in the
Family Code and in the rules for
declaration of presumptive death of the
absentee, without prejudice to the effect
of re-appearance of the absent spouse.
24. Acquiescence resulted from a belief that the

thing acquiesced in was conformable to the
law or fact.
18. There was a sufficient consideration for a

contract.
25. Things have happened according to the

ordinary course of nature and ordinary habits
of life.
19. Negotiable instrument was given or indorsed

for a sufficient consideration.
26. Persons acting as co-partners have entered

into a contract of co-partnership.
20. An endorsement of negotiable instrument was

made before the instrument was overdue and
at the place where the instrument is dated.
27. A man and woman deporting themselves as

husband and wife have entered into a lawful
contract of marriage.
21. A writing is truly dated.
28. Property acquired by a man and a woman who

are capacitated to marry each other and who
live exclusively with each other as husband
and wife without the benefit of marriage or
under void marriage, has been obtained by
their joint efforts, work or industry.
22. Letter duly directed and mailed was received in

the regular course of the mail.
Note: For this presumption to arise, it must be
proved that the letter was properly addressed
with postage pre-paid and that it was actually
mailed.
23. Absentee of 7 years, it being not known

whether or not he is still alive, is considered
dead for all purposes except for succession.
For the purpose of opening his succession, an
29. In cases of cohabitation by a man and a

woman who are not capacitated to marry each
other and who have acquired properly through
their actual joint contribution of money,
property or industry, such contributions and

301

their corresponding shares including joint
deposits of money and evidences of credit are
equal.
30. If the marriage is terminated and the mother
contracted another marriage within 300
hundred days after such termination of the
former marriage, these rules shall govern in
the absence of proof to the contrary:
a.
Presumptions of paternity:
A child born before 180 days after the
subsequent marriage is conceived during the
former marriage, provided it is born within 300
days after the termination of the former
b.
marriage.
A child born after 180 days following the
subsequent marriage is considered to have
been conceived during the subsequent
marriage, even though it be born within the
300 days after the termination of the former
marriage.
Note: There is no presumption of legitimacy or
illegitimacy when a child is born after 300 days
following dissolution of marriage or the
separation of the spouses. Whoever alleges the
legitimacy or illegitimacy of such child must prove
his allegation (Sec. 4).
no presumption
subsequent marriage
termination of
1st marriage
300 days after

termination of 1st
marriage
180 days after the

subsequent marriage
no presumption of
legitimacy or illigitimacy
conceived during the
subsequent marriage
conceived during the
former marriage
termination of
1st marriage
subsequent marriage
180 days after the

subsequent marriage
31. A thing once proved to exist continues as long

as is usual with things of that nature.
32. The law has been obeyed.
33. A printed or published book, purporting to be
printed or published by public authority, was so
printed or published.
34. A printed or published book, purporting to
contain reports of cases adjudged in tribunals
of the country where the book is published,
contains correct reports of such cases.
35. A trustee or other person whose duty it was to
convey real property to a particular person has
actually conveyed it to him when such
presumption is necessary to perfect the title of
302
300 days after termination of 1st

marriage
such person or his successor in interest.

36. Except for purposes of succession, when 2
persons perish in the same calamity, and it is
not shown who died first, and there are no
particular circumstances from which it can be
inferred, the survivorship is determined from
the probabilities resulting from the strength
and age of the sexes, according to the
following rules:
First Person
Second Person
Presumed To
Have Survived
< 15 yrs old
< 15 yrs old
older
> 60 yrs old
> 60 yrs old
younger
< 15
> 60 yrs old
< 15
REMEDIAL LAW TEAM:

EVIDENCE
>15 and < 60
male
>15 and < 60

female
The male
>15 and < 60

female
>15 and < 60

female
The older
< 15 or > 60
15-60
The one
between those
ages
37. That if there is a doubt, as between two or

more persons who are called to succeed each
other, as to which of them died first, whoever
alleges the death of one prior to the other,
shall prove the same; in the absence of proof,
they shall be considered to have died at the
same time. (Sec. 3).
9. LIBERAL CONSTRUCTION OF THE RULES OF
EVIDENCE
Q: How are the rules on evidence construed?
A: The rules of evidence must be liberally
construed. (Section 6, Rule 1) The Rules of
Procedure are mere tools intended to facilitate
rather than to frustrate the attainment of justice. A
strict and rigid application of the rules must always
be eschewed if it would subvert their primary
objective of enhancing substantial justice.
A: The doctrine refers to a situation where the

evidence of the parties are evenly balanced or there
is doubt on which side the evidence preponderates.
In such case the decision should be against the
party with the burden of proof (Marubeni Corp. v.
Lirag, G.R. No. 130998, Aug. 10, 2001).
Burden of proof is the duty of a party to present
evidence on the facts in issue necessary to establish
his claim or defense by the amount of evidence
required by law (Sec. 1, Rule 131).
The Constitution provides that no person shall be
deprived of life, liberty or property without due
process of law, nor shall any person be denied the
equal protection of the law (Sec. 1, Art. Ill). In a
criminal case, its constitutional basis is the presumption of innocence and the requirement of
proof beyond reasonable doubt for conviction.
(1995 Bar Question)
In criminal cases, the equipoise rule provides that
where the evidence is evenly balanced, the
constitutional presumption of innocence tilts the
scales in favor of the accused. (Malana v. People,
G.R. No. 173612, Mar. 26, 2008)
Q: What is the hierarchy of quantum of evidence?
A:
Procedural rules myst be liberally interpreted and

applied so as not to frustrate substantial justice
(Quiambao vs. Court of Appeals, 454 SCRA 17,
March 28, 2005). However, to justify relaxation of
the rules, a satisfactory explanation and a
subsequent fulfillment of the requirements have
always been required (Barcenas vs Tomas, 454
SCRA 593, March 31, 2005).
10. QUANTUM OF EVIDENCE (WEIGHT AND
SUFFICIENCY OF EVIDENCE) (RULE 133)
Q: Define weight of evidence.
A: It is the probative value given by the court to
particular evidence admitted to prove a fact in
issue.
Q: When is evidence credible?
A: It is credible if it is admissible and believable and
worthy of belief, such that it can be used by the
courts in deciding a case.
Q: Explain the Equipoise Doctrine in the law of evidence and cite its constitutional and procedural
bases.
Note: Evidence, to be worthy of credit, must not only

proceed from a credible source but must also be

303

credible in itself. It must be natural, reasonable and
probable as to make it easy to believe (People v.
Peruelo, G.R. No. 50631, June 29, 1981).
Q: Distinguish positive testimony from negative

testimony.
A:
POSITIVE TESTIMONY
1.
2.
3.
4.
5.
Affirms that a fact did or

did not occur.
1.
Entitled to greater weight
since
the
witness
represents his personal
2.
knowledge
of
the
3.
presence or absence of a
fact.
When a witness declares
of his own knowledge
that a fact did not take
place, it is an affirmation
of a positive testimony.
NEGATIVE TESTIMONY
When a witness states

that he did not see or
know the occurrence of a
fact.
There is a total disclaimer
of personal knowledge,
hence
without
any
representation
or
disavowal that the fact in
question could or could
not have existed or
happened.
A:
1. Where the identity of the assailant is in
question;
2. To determine the voluntariness of the
criminal act or the sanity of the accused;
3. To determine from which side the unlawful
aggression commenced, as where the
accused invoked self-defense wherein
unlawful aggression on the part of his
opponent is an essential element;
4. To determine the specific nature of the
crime committed;
5. To determine whether a shooting was
intentional or accidental, the fact that the
accused had personal motives to shoot the
victim being weighty; and
6. Where the accused contends that he acted
in defense of a stranger, since it is essential,
for such defense to prosper, that the
accused was not induced by revenge,
resentment or other evil motive. (Regalado,
Vol. II, pp. 893-894, 2008 ed.)
Q: What is alibi?
Note: Mere denial, if unsubstantiated by clear and

convincing evidence, has no weight in law and cannot
be given greater evidentiary value than the positive
testimony of the complaining witness. Denial is
intrinsically weak, being a negative and self-serving
assertion (People v. Rodas, G.R. No. 175881, Aug. 28,
2007).
Q: What are the guidelines in the assessment of

credibility of a witness?
A:
1.
2.
A witness who testified in clear, positive

and convincing manner and remained
consistent in cross-examination is
a
credible witness (People v. Comanda, G.R.
No. 175880, July 6, 2007); and
Findings of fact and assessment of
credibility of a witness are matters best
left to the trial court that had the frontline opportunity to personally evaluate
the demeanor, conduct, and behavior of
the witness while testifying (Sps. Paragas
v. Heirs of Balacano, G.R. No. 168220,
Aug. 31, 2005).
Q: What is motive?
A: It is the moving power which impels one to
action for a definite result (The Revised Penal Code
[Book One] by L. Reyes, p.57, 2001 ed.).
Q: When is evidence of motive relevant?
304
A: It is a defense where an accused claims that he

was somewhere else at the time of the commission
of the offense. It is one of the weakest defenses an
accused may avail because of the facility with which
it can be fabricated, just like a mere denial (People
v. Esperanza, G.R. Nos. 139217-24, June 27, 2003).
A categorical and positive identification of an
accused, without any showing of ill-motive on the
part of the eyewitness testifying on the matter,
prevails over an alibi (People v. Gingos and
Margote, G.R. No. 176632, Sept. 11, 2007). When
this is the defense of the accused, it must be
established by positive, clear and satisfactory
evidence.
Note: For the defense of alibi to prosper, the accused
must show that:
1. He was somewhere else; and
2. It was physically impossible for him to be at
the scene of the crime at the time of its
commission. (People v. Gerones, et.al., G.R.
No. L-6595, Oct. 29, 1954)
Q: What is Out-of-Court Identification?

A: It is a means of identifying a suspect of a crime
and is done thru:
1. Show-ups: where the suspect alone is
brought face to face with the witness for
identification;
2. Mug shots: where photographs are shown
to the witness to identify the suspect; or
REMEDIAL LAW TEAM:

EVIDENCE
3.
Line-ups: where a witness identifies the

suspect from a group of persons lined up for
the purpose. (People v. Claudio Teehankee,
Jr., G.R. Nos. 111206-08, Oct. 6, 1995)
Q: What is the relevance of an eyewitness

identification?
matters is not the number of witnesses but the

credibility and the nature and quality of their
testimonies. The testimony of a lone witness is
sufficient to support a conviction if found positive
and credible (Ceniza-Manantan v. People, G.R. No.
156248, Aug. 28, 2007).
Q: Define res ipsa loquitur.
A: It is often decisive of the conviction or acquittal

of an accused. Identification of an accused through
mug shots is one of the established procedures in
pinning down criminals. However, to avoid charges
of impermissible suggestion, there should be
nothing in the photograph that would focus
attention on a single person (People v. Villena, G.R.
No. 140066, Oct. 14, 2002).
Q: Is a police line-up mandatory to prove the
identity of an offender?
A: A police line-up is merely a part of the
investigation process by police investigators to
ascertain the identity of offenders or confirm their
identification by a witness to the crime. Police
officers are not obliged to assemble a police line-up
as a condition sine qua non to prove the identity of
an offender. If on the basis of the evidence on
hand, police officers are certain of the identity of
the offender, they need not require any police lineup anymore (Tapdasan, Jr. v. People, G.R. No.
141344, Nov. 21, 2002).
Q: When is out-of-court identification admissible
and reliable?
A: It is admissible and reliable when it satisfies the
totality of circumstances test. Under the totality
of circumstances test, the following factors are
considered:
1. Witness opportunity to view the criminal
at the time of the crime;
2. Witness degree of attention at that time;
3. Accuracy of any prior description given by
the witness;
4. Level of certainty demonstrated by the
witness at the identification;
5. Length of time between the crime and the
identification; and
6. Suggestiveness of the identification
procedure. (People v. Claudio Teehankee,
Jr., G.R. Nos. 111206-08, Oct. 6, 1995)
Q: Is the testimony of only one witness sufficient
to convict the accused?
A: It literally means the thing speaks for itself. This

doctrine provides that the fact of the occurrence of
an injury, taken with the surrounding
circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiff's
prima facie case, and present a question of fact for
defendant to meet with an explanation. Where the
thing which caused the injury complained of is
shown to be under the management of the
defendant or his servants and the accident is such
as in ordinary course of things does not happen if
those who have its management or control use
proper care, it affords reasonable evidence, in the
absence of explanation by the defendant, that the
accident arose from or was caused by the
defendant's want of care (Ramos v. CA, G.R. No.
124354, Dec. 29, 1999).
Q: What are the requisites in applying the doctrine
of res ipsa loquitur?
A:
1.
2.
3.
4.
The occurrence of an injury;

The thing which caused the injury was under
the control and management of the
defendant;
The occurrence was such that in the
ordinary course of things, would not have
happened if those who had control or
management used proper care; and
The absence of explanation by the
defendant (Professional Services, Inc. v.
Agana, G.R. No. 126297, Jan. 31, 2007).
Q: Does the application of the doctrine dispense

with the requirement of proof of negligence?
A: No. It is considered merely as evidentiary or in
the nature of procedural rule. It is simply in the
process of such proof, permitting the plaintiff to
present enough of the attending circumstances to
invoke the doctrine, creating an inference or
presumption of negligence and thereby place on
the defendant the burden of going forward with the
proof to the contrary. (Ramos, et. al. v. CA, G.R. No.
124354, Dec. 29, 1999)
A: Yes. Truth is established not by the number of

witnesses but by the quality of their testimonies. In
determining the sufficiency of evidence, what
305
Q: What is the Rule on Partial Credibility of a

witness?
A: The testimony of a witness may be believed in
part and disbelieved in another part, depending on
the probabilities and improbabilities of the case
(People v. Tan, G.R. No. 176526, Aug. 8, 2007).
Note: If the testimony of the witness on a material
issue is willfully false and given with an intention to
deceive, the court may disregard all the witness
testimony. Falsus in uno, falsus in omnibus (False in
one thing, false in everything).
Note: This is not a mandatory rule of evidence but is
applied by the courts in its discretion. It deals only with
the weight of evidence and not a positive rule of law.
The witnesses false or exaggerated statements on
other matters shall not preclude the acceptance of
such evidence as is relieved from any sign of
falsehood. The court may accept and reject portions of
the witness testimony depending on the inherent
credibility thereof. (Regalado, Vol. II, p. 883, 2008 ed.)
Q: May the trial courts findings as to the

credibility of witnesses be disturbed on appeal?
A: The trial courts findings of fact will not be
disturbed on appeal, unless there is a clear showing
that it plainly overlooked matters of substance
which, if considered, might affect the results of the
review. The credibility of witnesses is best
determined by the trial judge, who has the direct
opportunity to observe and evaluate their
demeanor on the witness stand.
(People v.
Pacuancuan, G.R. No. 144589, June 16, 2003).
Q: May the uncorroborated testimony of an
accused who turned into a State witness suffice to
convict his co-accused?
A: Yes. It may suffice to convict his co-accused if it is
given unhesitatingly and in a straightforward
manner and is full of details which by their nature
could not have been the result of deliberate
afterthought, otherwise, it needs corroboration, the
presence or lack of which may ultimately decide the
case of the prosecution and the fate of the accused
(People v. Sunga, G.R. No. 126029, Mar. 27, 2003).
Q: May the testimony alone of the complaining
party in a rape case sufficient to convict the
accused?
A: Yes. In rape cases, the lone testimony of the
offended party, if free from serious and material
contradictions, is sufficient to sustain a verdict of
conviction. No woman would openly admit that she
306
was raped and consequently subject herself to an

examination of her private parts, undergo the
trauma and humiliation of a public trial, and
embarrass herself with the need to narrate in detail
how she was raped, if she was not raped at all. This
ruling especially holds true where the complainant
is a minor, whose testimony deserves full credence.
(People v. Esperanza, G.R. Nos. 139217-24, June 27,
2003).
Q: What is the Sweetheart Theory?
A: It is an admission by the accused of sexual
intercourse with the victim but argues that they
were lovers and the act is consensual and
consequently places on the accused the burden of
proving the supposed relationship by substantial
evidence. To be worthy of judicial acceptance, such
defense should be supported by documentary,
testimonial, or other evidence. Corroborative proof
like notes, pictures or tokens that such a
relationship had really existed must be presented
(People v. Hapin, G.R. No.175782, Aug. 24, 2007).
Q: Is extrajudicial confession a sufficient ground
for conviction?
A: It is not sufficient ground for conviction unless
corroborated by evidence of corpus delicti. (Sec. 3)
Q: What is corpus delicti?
A: It is the actual commission by someone of the
particular crime charged. It refers to the fact of the
commission of the crime, not to the physical body
of the deceased or to the ashes of a burned
building. The corpus delicti may be proven by the
credible testimony of a sole witness, not necessarily
by physical evidence (Rimorin v. People, G.R. No.
146481, Apr. 30, 2003).
Q: What are the elements of corpus delicti?
A:
1.
2.
Proof of the occurrence of a certain

event; and
A persons criminal responsibility for the
act (People v. Corpuz, G.R. No. 148919,
Dec. 17, 2002).
Note: The identity of the accused is not a necessary

element of the corpus delicti.
Q: What are the elements of illegal possession of

firearm which constitute the corpus delicti?
A:
1.
2.
The existence of the firearm; and

That it has been actually held with animus
possidendi by the accused without the
REMEDIAL LAW TEAM:

EVIDENCE
corresponding license therefor. (People v.
Solayao, G.R. No. 119220, Sept. 20, 1996)
6. Their personal credibility so far as the same

may legitimately appear upon the trial; or
7. The number of witnesses, though the
preponderance is not necessarily with the
greater number (Sec. 1, Rule 133).
a. PROOF BEYOND REASONABLE DOUBT

Q: What is meant by reasonable doubt?
c. SUBSTANTIAL EVIDENCE
A: It is that state of the case which, after the entire
comparison and consideration of all the evidence
leaves the mind of the judge in that condition that
he cannot say that he feels an abiding conviction to
a moral certainty of the truth of the charge. (People
v. Calma, G.R. No. 127126, Sept. 17, 1998)
Q: What is substantial evidence?

A: It is that amount of relevant evidence which a
reasonable mind might accept as adequate to
justify a conclusion. (Sec. 5)
Q: What does proof beyond reasonable doubt

require?
Q: When is substantial evidence sufficient to

establish a fact?
A: It only requires moral certainty or that degree of

proof which produces conviction in an unprejudiced
mind. It does not mean such degree of proof as
excluding the possibility of error, produce absolute
certainty. (Basilio v. People, G.R. No. 180597, Nov.
7, 2008)
A: In cases filed before administrative or quasijudicial bodies, a fact may be deemed established if
it is supported by substantial evidence.
Q: Must the identity of the accused be proved

beyond reasonable doubt?
A: Yes. When the identity of the accused is not
established beyond reasonable doubt, acquittal
necessarily follows. Conviction for a crime rests on
the strength of the prosecutions evidence, never
on the weakness of that of the defense.
Note: In every criminal prosecution, the prosecution
must prove two things:
1. The commission of the crime; and
2. The identification of the accused as the
perpetrator of the crime. What is needed is
positive identification made with moral certainty
as to the person of the offender (People v.
Maguing, G.R. No. 144090, June 26, 2003).
b. PREPONDERANCE OF EVIDENCE
Q: What are the matters that must be taken into
consideration in determining where the
preponderance of evidence lies?
A:
1. All the facts and circumstances of the case;
2. The witnesses manner of testifying, their
intelligence, their means and opportunity of
knowing the facts to which there are
testifying;
3. The nature of the facts to which they
testify;
4. The probability or improbability of their
testimony;
5. Their interest or want of interest;
d. CLEAR AND CONVINCING EVIDENCE

Q: What are the instances when clear and
convincing evidence is required as quantum of
proof?
A:
1. Granting or denial of bail in extradition
proceedings (Government of Hong Kong
Special Administrative Region v. Olalia, Jr.,
G.R. No. 153675, April 19, 2005);
2. When proving a charge of bias and partiality
against a judge (Rivera v. Mendoza, A.M.
No. RTJ-06-2013, Aug. 4, 2006);
3. GR: When proving fraud (Alonso v. Cebu
Country Club, Inc., G.R. No. 130876, Dec. 5,
2003)
XPN: Under Art. 1387 of the New Civil Code,
certain alienations of property are
presumed fraudulent.
4. When proving forgery (Citibank, N.A. v.
Sabeniano, G.R. No. 156132, Feb. 6, 2007);
5. When proving ownership over a land in
annulment or reconveyance of title
(Manotok Realty, Inc. v. CLT Realty
Development Corp., G.R. No. 123346, Dec.
14, 2007);
6. When invoking self-defense, the onus is on
the accused-appellant to establish by clear
and convincing evidence his justification for
the killing (People v. Tomolin, G.R. No.
126650, July 28, 1999);
7. When proving the allegation of frame-up
and extortion by police officers in most
dangerous drug cases (People v. Boco, G.R.
No. 129676, June 23, 1999);

307

8. When proving physical impossibility for the
accused to be at the crime scene when
using alibi as a defense (People v. Cacayan,
G.R. No.180499, July 9, 2008);
9. When using denial as a defense like in
prosecution for violation of the Dangerous
Drugs Act (People v. Mustapa, G.R. No.
141244, Feb. 19, 2001);
10. To overcome the presumption of due
execution of notarized instruments (Viaje v.
Pamintel, G.R. No. 147792, Jan. 23, 2006);
11. When proving bad faith to warrant an
award of moral damages (Resolution of the
SC in Cual v. Leonis Navigation, G.R. No.
167775, Oct. 10, 2005);
12. When proving that the police officers did
not properly perform their duty or that they
were inspired by an improper motive
(People v. Concepcion, G.R. No. 178876,
June 27, 2008); or
13. When a person seeks confirmation of an
imperfect or incomplete title to a piece of
land on the basis of possession by himself
and his predecessors-in-interest, he must
prove with clear and convincing evidence
compliance with the requirements of the
applicable law. (Republic v. Imperial Credit
Corp., G.R. No. 173088, June 25, 2008) (List
of cases: Riano, Evidence: A Restatement for
the Bar, pp. 422-426, 2009 ed.)
B. JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
1. WHAT NEED NOT BE PROVED
Q: What are the facts that need not be proved?
A:
1. Those which the courts may take judicial
notice (Rule 129);
2. Those that are judicially admitted (Rule
129);
3. Those that are conclusively presumed (Rule
131); and
4. Those that are disputably presumed but
uncontradicted (Rule 131).
2. MATTERS OF JUDICIAL NOTICE
Q: What are the requisites of judicial notice?

A:
1. The matter must be one of common and
general knowledge;
2. It must be well and authoritatively settled
and not doubtful or uncertain; and
3. It must be one which is not subject to a
reasonable dispute in that it is either:
a. Generally known within the territorial
jurisdiction of the trial court; or
b. Capable of accurate and ready
determination by resorting to sources
whose accuracy cannot reasonably be
questionable (Expertravel & Tours, Inc.
v. CA, G.R. No. 152392, May 26, 2005).
Note: The principal guide in determining what facts
may be assumed to be judicially known is that of
notoriety (Ibid.). The test of notoriety is whether the
fact involved is so notoriously known as to make it
proper to assume its existence without proof.
Q: When is a matter considered common

knowledge?
A: They are those matters coming to the knowledge
of men generally in the course of ordinary
experiences of life, or they may be matters which
are generally accepted by mankind as true and are
capable of ready and unquestioned demonstration.
Note: Thus, facts which are universally known, and
which may be found in encyclopedias, dictionaries or
other publications, are judicially noticed, provided,
they are of such universal notoriety and so generally
understood that they may be regarded as forming part
of the common knowledge of every person. A court
however cannot take judicial notice of any fact which,
in part, is dependent on the existence or non-existence
of a fact of which the court has no constructive
knowledge (Expertravel & Tours, Inc. v. CA, G.R. No.
152392, May 26, 2005).
Q: In discretionary judicial notice, when is

hearing necessary?
Q: What is judicial notice?

A: It is the cognizance of certain facts which judges
may properly take and act upon without proof
because they are supposed to be known to them. It
is based on considerations of expediency and
convenience. It displaces evidence, being
equivalent to proof.
Note: Judicial notice fulfils the objective which the
evidence intends to achieve. It is not equivalent to
judicial knowledge or that which is based on the
308
personal knowledge of the court; rather, it is the

cognizance of common knowledge. Judicial notice
relieves the parties from the necessity of introducing
evidence to prove the fact notified. It makes evidence
unnecessary.
A:
DURING TRIAL
AFTER TRIAL BUT BEFORE

JUDGMENT OR ON
APPEAL
The court on its own

initiative, or on request
of a party, may
announce its intention
The proper court, on its

own initiative or on
request of a party, may
take judicial notice of any
REMEDIAL LAW TEAM:

EVIDENCE
to take judicial notice of
any matter and allow
the parties to be heard
thereon (Sec. 3).
matter and allow the

parties to be heard
thereon if such matter is
decisive of a material issue
in the case.
Note: Hearing is necessary in the foregoing instances

to afford the parties reasonable opportunity to present
information relevant to the propriety of taking such
judicial notice or the tenor of the matter to be
judicially noticed.
a. MANDATORY
Q: What is mandatory notice?
A: If the fact sought to be proved are:
1. Existence and territorial extent of States;
2. Political history, forms of government and
symbols of nationality;
3. Law of nations;
4. Admiralty and maritime courts of the world
and their seals;
5. Political constitution and history of the
Philippines;
6. Official acts of legislative, executive and
judicial departments of the Philippines;
7. Laws of nature;
8. Measure of time; and
9. Geographical divisions (Sec. 1).
b. DISCRETIONARY
Q: What is discretionary notice?
A: Discretionary a court may take judicial notice of
matters which are:
1. Of public knowledge;
2. Capable of unquestionable demonstration;
or
3. Ought to be known to judges because of
their judicial functions (Sec. 2).
3. JUDICIAL ADMISSIONS
Q: What is judicial admission?
A: It is an admission, verbal or written, made by a
party in the course of the proceedings in the same
case, which does not require proof (Sec. 4).
Q: What are the elements of judicial admission?
A:
1. It must be made by a party to the case or
his counsel;
2. It must be made in the course of the
proceedings in the same case; and
3. It can be verbal or written admission. There

is no particular form required.
Q: Distinguish judicial admission from extrajudicial
admission.
A:
JUDICIAL ADMISSIONS
Those made in the course
of the proceeding in the
same case
Do not require proof and
may be contradicted only
by showing that it was
made through palpable
mistake or that no such
admission was made.
Judicial admissions need
not be offered in evidence
since it is not evidence. It
is superior to evidence and
shall be considered by the
court as established.
Conclusive upon the
admitter
Admissible even if selfserving
Subject to crossexamination
EXTRAJUDICIAL
ADMISSIONS
Those made out of
court or in a judicial
proceeding other than
the one under
consideration
Regarded as evidence
and must be offered as
such, otherwise the
court will not consider it
in deciding the case.
Requires formal offer

for it to be considered
Rebuttable
Not admissible if selfserving
Not subject to crossexamination
Q: When are judicial admissions made?

A: It may be made by the party himself or by his
counsel:
1. In the pleadings filed by the parties;
2. In the course of the trial either by verbal or
written manifestations or stipulations,
including
depositions,
written
interrogatories and requests for admissions;
or
3. In other stages of the judicial proceedings,
as in pre-trial.
Q: What remedy is available to a party who gave a
judicial admission?
A:
1. Written admission File a motion to
withdraw such pleading, or any other
written instrument containing such
admission.
2. Oral admission The counsel may move for
the exclusion of such admission.

309

Q: What are the rules on admissions made in
pleadings?
A:
GR: The facts alleged in a partys pleadings are
deemed admissions and are binding upon that
party.
XPN: Hypothetical admissions made by party
litigant, as when a defendant moves to dismiss
the case based on lack of jurisdiction or sets up
affirmative defenses.
A: Yes. Admissions made in the pre-trial are

deemed judicial admissions because they are made
in the course of the proceedings of the case. (Riano,
Evidence: A Restatement for the Bar, p. 104, 2009
ed.)
a. EFFECT OF JUDICIAL ADMISSIONS
Q: What are the consequences of judicial
admissions?
A:
1.
Note: Admissions in a pleading which had been

withdrawn or superseded by an amended pleading,
although filed in the same case, are considered as
extrajudicial admissions. The original must be proved
by the party who relies thereon by formally offering it
in evidence (Torres v. CA, G.R. Nos. L-37420-21, July 31,
1984).
2.
Note: Justice Regalado opines that as amended, it

would appear that Sec. 4, Rule 129 includes
superseded pleadings as judicial admissions (Regalado,
Vol. II, p. 837, 2005 ed.).
Q: What are the rules on admissions made in

pleadings which were not filed with the court?
A:
1. If signed by the party litigant himself
considered as extrajudicial admission.
2. If signed by the counsel not admissible
because a counsel only binds his client with
respect to admissions in open court and in
pleadings actually filed with the court.
Q: What is self-serving evidence?
A: No. The self-serving rule which prohibits the
admission of declaration of a witness applies only
to extrajudicial admissions. If the declaration is
made in open court, such is raw evidence. It is not
self-serving. It is admissible because the witness
may be cross-examined on that matter.
Q: Are judicial admissions made by the accused
during his arraignment binding upon him?
A: No. A plea of guilty entered by the accused may
be later withdrawn at any time before the
judgment of conviction becomes final. Such plea is
not admissible in evidence against the accused and
is not even considered as an extrajudicial
admission.
Q: Are admissions made during a pre-trial in a civil
case considered as judicial admissions?
310
A party who judicially admits a fact cannot

later challenge that fact as judicial
admissions constitute waiver of proof;
production of evidence is dispensed with;
No evidence is needed to prove a judicial
admission and it cannot be contradicted
unless it is shown to have been made
through palpable mistake or that no such
admission was made.
b. HOW JUDICIAL ADMISSIONS MAY BE
CONTRADICTED
Q: How can judicial admission be contradicted?

A: It may be contradicted by showing:
1. That it was made through palpable mistake;
2. That no such admission was made (Sec. 4);
or
3. To prevent manifest injustice (e.g. pre-trial
in civil cases, Sec. 7, Rule 18).
4. JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF
NATIONS AND MUNICIPAL ORDINANCE
Q: May courts take judicial notice of foreign laws?
A:
GR: Foreign laws may not be taken judicial
notice of, and have to be proved like any other
fact.
XPN: When said laws are within the actual
knowledge of the court and such laws are:
1.
Well and generally known;
2.
Actually ruled upon in other cases before
it; and
3.
None of the parties claim otherwise.
Q: Suppose a foreign law was pleaded as part of
the defense of the defendant but no evidence was
presented to prove the existence of said law, what
is the presumption to be taken by the court as to
the wordings of said law?
A: The doctrine of processual presumption applies.
The presumption is that the wordings of the foreign
REMEDIAL LAW TEAM:

EVIDENCE
law are the same as the local law (doctrine of
processual presumption) (Northwest Orient Airlines
v. CA, G.R. No. 83033, June 8, 1990; Moran, Vol. 6,
p. 34, 1980 ed.). (1997 Bar Question)
Q: What are the rules with regard to judicial notice
of ordinances?
A:
1. MTCs are required to take judicial notice of
the ordinances of the municipality or city
wherein they sit.
2. RTCs must take judicial notice only:
a. When expressly authorized to do so by
statute; or
b. In case on appeal before them and
wherein the inferior court took judicial
notice of an ordinance involved in the
same case.
3. Appellate courts may also take judicial
notice of ordinances not only because the
lower courts took judicial notice thereof but
because these are facts capable of
unquestionable demonstration. (Riano,
Evidence: A Restatement for the Bar, pp. 9091, 2009 ed.)
Q: What is the rule on judicial notice of records of
another case previously tried?
A:
GR: Courts are not authorized to take judicial
notice of the contents of the records of other
cases, even when such cases have been tried or
are pending in the same court, and
notwithstanding the fact that both cases may
have been heard or are actually pending before
the same judge. (Calamba Steel Center, Inc. v.
CIR, G.R. No. 151857, Apr. 28, 2005)
XPNS:
1. When in the absence of any objection, with
the knowledge of the opposing party, the
contents of said other cases are clearly
referred to by title and number in a pending
action and adopted or read into the record
of the latter;
2. When the original record of the other case
or any part of it is actually withdrawn from
the archives at the courts discretion upon
the request, or with the consent, of the
parties, and admitted as part of the record
of the pending case. (Jumamil v. Cafe, G.R.
No. 144570, Sept. 21, 2005)
3. When the action is closely interrelated to

another case pending between the same
parties;
4. Where the interest of the public in
ascertaining the truth are of paramount
importance;
5. In cases seeking to determine what is
reasonable exercise of discretion or
whether or not the previous ruling is
applicable in a case under consideration; or
6. Where there is finality of a judgment in
another case that was previously pending
determination and therefore, res judicata.
(Herrera, Vol. V, pp. 89-90, 1999 ed.)
Q: Anna and Badong were accused of killing Cathy.
However, only Anna was arrested since Badong
went in to hiding. After trial, Anna was acquitted
of the charge in a decision rendered by Judge
Santos. Subsequently, Badong was arrested and
brought to trial. After trial, Badong was found
guilty of homicide in a decision rendered by Judge
Yantok, the judge who replaced Judge Santos after
the latter retired. On appeal, Badong argues that
Judge Yantok should have taken judicial notice of
the acquittal of Anna rendered by Judge Santos. Is
Badong correct?
A: No. The appreciation of one judge of the
testimony of a certain witness is not binding on
another judge who heard the testimony of the
same witness on the same matter. Each magistrate
who hears the testimony of a witness is called upon
to make his own appreciation of the evidence. It is,
therefore, illogical to argue that because one judge
made a conclusion in a certain way with respect to
one or more of the accused; it necessarily dictates
that the succeeding judge who heard the same case
against the other accused should automatically
make the same conclusion (People v. Langit, G.R.
Nos. 134757-58, Aug. 4, 2000).
Note: All courts must take judicial notice of the
decisions of the Supreme Court as they are duty bound
to know the rulings of the highest tribunal and to apply
them in the adjudication of cases, jurisprudence being
a part of our judicial system
C. OBJECT (REAL) EVIDENCE

1. NATURE OF OBJECT EVIDENCE
Q: Define object evidence.
A: Object evidence, also known as real evidence,
demonstrative evidence, autoptic preference and
physical evidence, is that evidence which is
addressed to the senses of the court (Sec. 1). It is
not limited to the view of an object. It extends to

311

the visual, auditory, tactile, gustatory, and
olfactory. It is considered as evidence of the highest
order.
object in question as to render a view

thereof unnecessary. (Regalado, Vol. II, p.
716, 2008 ed.)
Q: What are the purposes of authentication of

object evidence?
Q: Is exhibition of the object which is repulsive or

indecent absolutely prohibited?
A:
A: No. If a view of the object is necessary in the

interest of justice, such object may still be
exhibited, but the court may exclude the public
from such view. Such view may not be refused if
the indecent or immoral objects constitute the very
basis of the criminal or civil action (e.g. obscene
pictures or exhibits). (Moran, p. 73)
1. Prevent the introduction of an object

different from the one testified about; and
2. Ensure that there has been no significant
changes in the objects condition.
2. REQUISITES FOR ADMISSIBILITY
Q: What are the requisites for the object evidence
to be admissible?
A: It must
1. Be relevant to the fact in issue;
2. Be authenticated before it is admitted;
3. Not be hearsay;
4. Not be privileged; and
5. Meet any additional requirement set by
law.
Q: What does object evidence include?
A:
1.
2.
3.
4.
Any article or object which may be known

or perceived by the use of the senses;
Examination of the anatomy of a person or
of any substance taken therefrom;
Conduct of tests, demonstrations or
experiments; and
Examination of representative portrayals of
the object in question (e.g. maps, diagrams)
Q: May the courts refuse the introduction of

object or real evidence and rely on testimonial
evidence alone?
A: Yes, but only if:
1.
Its exhibition is contrary to public morals or
decency;
2.
To require its being viewed in court or in
ocular inspection would result in delays,
inconvenience, or unnecessary expenses
which are out of proportion to the
evidentiary value of such object;
3.
Such object evidence would be confusing or
misleading, as when the purpose is to prove
the former condition of the object and
there is no preliminary showing that there
has been no substantial change in said
condition; or
4.
The testimonial or documentary evidence
already presented clearly portrays the
312
Q: In a criminal case for murder, the prosecution

offered as evidence photographs showing the
accused mauling the victim with several of the
latters companions. The person who took the
photograph was not presented as a witness. Be
that as it may, the prosecution presented the
companions of the victim who testified that they
were the ones in the photographs. The defense
objected to the admissibility of the photographs
because the person who took the photographs
was not presented as witness. Is the contention of
the defense tenable?
A: No. Photographs, when presented in evidence,
must be identified by the photographer as to its
production and testified as to the circumstances
under which they were produced. The value of this
kind of evidence lies in its being a correct
representation or reproduction of the original, and
its admissibility is determined by its accuracy in
portraying the scene at the time of the crime.
The photographer, however, is not the only witness
who can identify the pictures he has taken. The
correctness of the photograph as a faithful
representation of the object portrayed can be
proved prima facie, either by the testimony of the
person who made it or by other competent
witnesses who can testify to its exactness and
accuracy, after which the court can admit it subject
to impeachment as to its accuracy.
Here, the photographs are admissible as evidence
inasmuch as the correctness thereof was testified
to by the companions of the victim (Sison v. People,
G.R. Nos. 108280-83, Nov. 16, 1995).
Q: Ron was charged with murder for shooting
Carlo. After trial, Ron was found guilty as charged.
On appeal, Ron argued that the trial court should
have acquitted him as his guilt was not proved
beyond reasonable doubt. He argues that the
paraffin test conducted on him 2 days after he was
REMEDIAL LAW TEAM:

EVIDENCE
arrested yielded a negative result. Hence, he could
not have shot Carlo. Is Ron correct?
A: No. While the paraffin test was negative, such
fact alone did not ipso facto prove that Ron is
innocent. A negative paraffin result is not
conclusive proof that a person has not fired a gun.
It is possible to fire a gun and yet be negative for
nitrates, as when the culprit is wearing gloves or he
washes his hands afterwards. Here, since Ron
submitted himself for paraffin testing only two days
after the shooting, it was likely he had already
washed his hands thoroughly, thus removing all
traces of nitrates therefrom (People v. Brecinio, G.R.
No. 138534, Mar. 17, 2004).
3. CATEGORIES OF OBJECT EVIDENCE
Q: What are the categories of object evidence for
purposes of authentication?
A:
1. Unique objects those that have readily
identifiable marks (e.g. a calibre 40 gun with
serial number XXX888)
2. Objects made unique those that are
readily identifiable (e.g. a bolo knife used to
hack a victim which could be identified by a
witness in court)
3. Non-unique objects those which have no
identifying marks and cannot be marked
(e.g. footprints left at a crime scene)
4. DEMONSTRATIVE EVIDENCE
Q: Distinguish real evidence from demonstrative
evidence.
A:
Real evidence
Tangible object that
played some actual
role in the matter that
gave rise to the
litigation
Intends to prove that
the object is used in
the underlying event
Demonstrative Evidence
Tangible evidence that
merely illustrates a matter
of importance in the
litigation
Intends to show that the
demonstrative object fairly
represents or illustrates
what it is alleged to be
illustrated
5. VIEW OF AN OBJECT OR SCENE

Q: What is ocular inspection or view?
A: An ocular inspection conducted by the judge
without the presence of the parties or due notice is
not valid, as an ocular inspection is part of the trial.
Note: It is a discretionary act of the trial court to go to

the place where the object is located, when the object
evidence cannot be brought in courts.
6. CHAIN OF CUSTODY IN RELATION TO SECTION

21 OF THE COMPREHENSIVE DANGEROUS DRUGS
ACT OF 2002
Q: What is Chain of Custody Rule in relation to Sec.
21 of the Comprehensive Dangerous Drugs Act of
2002?
A: It is a method of authenticating evidence. It
requires that the admission of an exhibit be
preceded by evidence sufficient to support a finding
that the matter in question is what the proponent
claims it to be. It would include testimony about
every link in the chain, from the moment the item
was picked up to the time it is offered into
evidence, in such a way that every person who
touched the exhibit would describe how and from
whom it was received, where it was and what
happened to it while in the witness possession, the
condition in which it was received and the condition
in which it was delivered to the next link in the
chain.
These witnesses would then describe the
precautions taken to ensure that there had been no
change in the condition of the item and no
opportunity for someone not in the chain to have
possession of the same. (Lopez v. People, G.R. No.
172953, Apr. 30, 2008)
Q: When is there a need to establish a chain of
custody?
A: It is necessary when the object evidence is nonunique as it is not readily identifiable, was not made
identifiable or cannot be made identifiable, e.g.
drops of blood or oil, drugs in powder form, fiber,
grains of sand and similar objects. (Riano, Evidence:
A Restatement for the Bar, p. 149, 2009 ed.)
Q: What is the purpose of establishing a chain of
custody?
A: To guaranty the integrity of the physical evidence
and to prevent the introduction of evidence which
is not authentic but where the exhibit is positively
identified the chain of custody of physical evidence
is irrelevant. (Ibid.)
7. RULE ON DNA EVIDENCE (A.M. NO. 06-11-5-SC)
Q: In what cases do the Rules on DNA Evidence
apply?
A: It shall apply whenever DNA evidence is offered,
used, or proposed to be offered or used as evidence

313

in all criminal and civil actions as well as special
proceedings (Sec. 1).
a. MEANING OF DNA
Q: What is DNA?
A: DNA (deoxyribonucleic acid) is the chain of
molecules found in every nucleated cell of the body
(Sec. 3, Rule on DNA Evidence).
It is the
fundamental building block of a persons entire
genetic make-up, which is found in all human cells
and is the same in every cell of the same person
(People v. Umanito, G.R. No. 172607, Oct. 26,
2007).
Q: What is DNA evidence?
A: It constitutes the totality of the DNA profiles,
results and other genetic information directly
generated from DNA testing of biological samples
(Sec. 3).
A: In pending actions, the appropriate court may, at

any time issue a DNA testing order either motu
proprio or upon application of any person who has
a legal interest in the matter in litigation after due
hearing and notice to the parties and upon showing
of the following:
1. A biological sample exists that is relevant to
the case;
2. The biological sample:
3. was not previously subjected to the type of
DNA testing now requested; or
4. was previously subjected to DNA testing,
but the results may require confirmation for
good reasons;
5. The DNA testing uses a scientifically valid
technique;
6. The DNA testing has the scientific potential
to produce new information that is relevant
to the proper resolution of the case; and
7. The existence of other factors, if any, which
the court may consider as potentially
affecting the accuracy or integrity of the
DNA testing (Sec. 4).
Q: What is DNA testing?

A: It means verified and credible scientific methods
which include the extraction of DNA from biological
samples, the generation of DNA profiles and the
comparison of the information obtained from the
DNA testing of biological samples for the purpose of
determining, with reasonable certainty, whether or
not the DNA obtained from two or more distinct
biological samples originates from the same person
(direct identification) or if the biological samples
originate from related persons (Kinship Analysis)
(Sec. 3).
Note: The scientific basis of this test comes from the
fact that our differences as individuals are due to the
differences in the composition of our genes. These
genes comprise a chemical substance, the
deoxyribonucleic acid or DNA [The Court Systems
Journal (1999)].
b. APPLICATION FOR DNA TESTING ORDER

Q: May DNA testing be conducted absent a prior
court order?
A: Yes. The Rules on DNA Evidence does not
preclude a DNA testing, without need of a prior
court order, at the behest of any party, including
law enforcement agencies, before a suit or
proceeding is commenced (Sec. 4).
Q: What are the requisites for the issuance of a
DNA testing order?
314
Q: Is the order granting the DNA testing

appealable?
A: No. An order granting the DNA testing shall be
immediately executory and shall not be appealable.
Any petition for certiorari initiated therefrom shall
not, in any way, stay the implementation thereof,
unless a higher court issues an injunctive order (Sec.
5).
Q: During Alexis trial for rape with murder, the
prosecution sought to introduce DNA evidence
against him, based on forensic laboratory
matching of the materials found at the crime scene
and Alexis hair and blood samples. Alexis counsel
objected, claiming that DNA evidence is
inadmissible because the materials taken from
Alexis were in violation of his constitutional right
against self-incrimination as well as his right of
privacy and personal integrity. Should the DNA
evidence be admitted or not? Reason.
A: The DNA evidence should be admitted. It is not
in violation of the constitutional right against selfincrimination or his right of privacy and personal
integrity. The right against self-incrimination is
applicable only to testimonial evidence. Extracting a
blood sample and cutting a strand from the hair of
the accused are purely mechanical acts that do not
involve his discretion nor require his intelligence.
(2004 Bar Question)
REMEDIAL LAW TEAM:

EVIDENCE
Q: Is the result of DNA testing automatically
admitted as evidence in the case in which it was
sought for?
A: No. The grant of a DNA testing application shall
not be construed as an automatic admission into
evidence of any component of the DNA evidence
that may be obtained as a result thereof (Sec. 5).
Q: If a DNA test was conducted, what are the
possible results that it may yield?
A:
1. The samples are similar, and could have
originated from the same source (Rule of
Inclusion). In such a case, the analyst
proceeds to determine the statistical
significance of the similarity.
2. The samples are different hence it must
have originated from different sources (Rule
of Exclusion). This conclusion is absolute
and requires no further analysis;
3. The test is inconclusive. This might occur
due to degradation, contamination, failure
of some aspect of protocol, or some other
reasons. Analysis might be repeated to
obtain a more conclusive result (People v.
Vallejo, G.R. No. 144656, May 9, 2002).
2. Such sample is relevant to the case; and

3. The testing would probably result in the
reversal or modification of the judgment of
conviction (Sec. 6).
Q: What is the remedy of the convict if the postconviction DNA testing result is favorable to him?
A: The convict or the prosecution may file a petition
for a writ of habeas corpus in the court of origin. In
case the court, after due hearing, finds the petition
to be meritorious, it shall reverse or modify the
judgment of conviction and order the release of the
convict, unless continued detention is justified for a
lawful cause (Sec. 10).
d. ASSESSMENT OF PROBATIVE VALUE OF DNA
EVIDENCE AND ADMISSIBILITY
Q: What should the courts consider in determining
the probative value of DNA evidence?
A:
1. The chain of custody, including how the
biological samples were collected, how they
were handled, and the possibility of
contamination of the samples;
2. The DNA testing methodology, including the
procedure followed in analyzing the
samples, the advantages and disadvantages
of the procedure, and compliance with the
scientifically valid standards in conducting
the tests;
3. The forensic DNA laboratory, including
accreditation by any reputable standardssetting institution and the qualification of
the analyst who conducted the tests. If the
laboratory is not accredited, the relevant
experience of the laboratory in forensic
casework and credibility shall be properly
established; and
4. The reliability of the testing result (Sec. 7).
Q: What should the courts consider in evaluating

DNA testing results?
A:
1. The evaluation of the weight of matching
DNA evidence or the relevance of
mismatching DNA evidence;
2. The results of the DNA testing in the light of
the totality of the other evidence presented
in the case; and
3. DNA results that exclude the putative
parent from paternity shall be conclusive
proof of non-paternity (Sec. 9).
c. POST-CONVICTION DNA TESTING; REMEDY
Q: To whom is the post-conviction DNA testing
available?
A: Post-conviction DNA testing may be available,
without need of prior court order, to the
prosecution or any person convicted by final and
executory judgment.
Q: What are the requisites for the applicability of
the Post-conviction DNA testing?
A:
1. Existing biological sample;
Q: What are the things to be considered in

assessing the probative value of DNA evidence?
A:
1. How the samples are collected;
2. How they were handled;
3. The possibility of the contamination of the
samples;
4. The procedure followed in analyzing the
samples;
5. Whether the proper standards and
procedures were followed in conducting the
tests; and
6. The qualification of the analyst who
conducted the tests. (Ibid.)

315

e. RULES ON EVALUATION OF RELIABILITY OF THE
DNA TESTING METHODOLOGY
Q: What are the things to be considered in
evaluating whether or not the DNA testing
methodology is reliable?
A:
1.
2.
3.
4.
The document must be relevant;

The evidence must be authenticated;
The document must be authenticated by a
competent witness; and
The document must be formally offered in
evidence.
A:
1.
2.
3.
4.
5.
6.
The falsifiability of the principles or

methods used, that is, whether the theory
or technique can be and has been tested;
The subjection to peer review and
publication of the principles or methods;
The general acceptance of the principles or
methods by the relevant scientific
community;
The existence and maintenance of
standards and controls to ensure the
correctness of data generated;
The existence of an appropriate reference
population database; and
The general degree of confidence attributed
to mathematical calculations used in
comparing DNA profiles and the significance
and limitation of statistical calculations used
in comparing DNA profiles.
D. DOCUMENTARY EVIDENCE
1. MEANING OF DOCUMENTARY EVIDENCE

Q: Define Documentary Evidence.
A: Documents as evidence consist of writings or any
material containing letters, words, numbers,
figures, symbols, or other modes of written
expressions, offered as proof of their contents (Sec.
2).
Q: May a private document be offered and
admitted in evidence both as documentary
evidence and as object evidence? Explain.
A: Yes. A private document is considered as object
evidence when it is addressed to the senses of the
court or when it is presented in order to establish
certain physical evidence or characteristics that are
visible on the paper and the writings that comprise
the document. It is considered as documentary
evidence when it is offered as proof of its contents.
(2005 Bar Question)
2. REQUISITES FOR ADMISSIBILITY
Q: What are the requisites for admissibility of
documentary evidence?
316
3. BEST EVIDENCE RULE

a. MEANING OF THE RULE
Q: What is Best Evidence Rule?
A:
GR: It provides that when the subject of the
inquiry is the contents of the document, no
evidence shall be admissible other than the
original document itself.
XPNs:
1. When the original has been lost or
destroyed, or cannot be produced in
court, without bad faith on the part of the
offeror;
2. When the original is in the custody or
under the control of the party against
whom the evidence is offered, and the
latter fails to produce it after reasonable
notice;
3.
When the original consists of numerous
accounts or other documents which
cannot be examined in court without
great loss of time and the fact sought to
be established from them is only the
general result of the whole;
Note: The voluminous records must be
made accessible to the adverse party so
that the correctness of the portion
produced or summary of the document
may be tested on cross-examination.
4.
When the original is a public record in the

custody of a public officer or is recorded
in a public office (Sec. 3)
Note: Where the issue is only as to
whether such a document was actually
executed, or exists, or on the
circumstances
relevant
to
or
surrounding its execution, the best
evidence rule does not apply and
testimonial evidence is admissible.
b. WHEN APPLICABLE
Q: When is this applicable?
A: The rule will come into play only when the
subject of inquiry is the contents of a document.
REMEDIAL LAW TEAM:

EVIDENCE
Q: Why is the best evidence rule often described
as a misnomer?
A: Because it merely requires the best evidence
available and, in the absence thereof, allows the
introduction of secondary evidence.
Alternative Answer:
It is a misnomer because it is applicable only to
documentary evidence and not to testimonial and
object evidence. (1994 Bar Question)
Q: At the trial of Ace for violation of the
Dangerous Drugs Act, the prosecution offers in
evidence a photocopy of the marked P100.00 bills
used in the buy-bust operation. Ace objects to
the introduction of the photocopy on the ground
that the best evidence rule prohibits the
introduction of secondary evidence in lieu of the
original.
1. Is the photocopy real (object) evidence or
2. Is the photocopy admissible in evidence?
A:
1.
2.
It is real (object) evidence, because the

marked bills are real evidence.
Yes, it is admissible in evidence, because the
best evidence rule does not apply to object
or real evidence. The best evidence rule is
inapplicable since such secondary evidence
is only intended to establish the existence of
a transaction and not the contents of the
document. (1994 Bar Question)
Q: Are affidavits and depositions considered as

best evidence?
A: No, hence, not admissible if the affiants and
witnesses are available as witnesses. (Regalado,
Vol. II, p. 721, 2008 ed.)
Q: What is the best evidence of telegrams and
cables?
A: It depends on the issue to be proved.
1. Contents of the telegram received by the
addressee: the original dispatch received.
2. The telegram sent by the sender: the
message delivered for transmission.
3. Inaccuracy of transmission of the telegram:
both telegrams as sent and received
(Regalado, Vol. II, pp. 722-723, 2008 ed.).
Q: In a civil case for collection of money, Paula
sought to escape liability from a promissory note
by showing that the same was a forgery. She
presented an expert witness to prove that her

signature in the promissory note was forged. Jean
objected to the presentation of Paulas expert
witness on the ground that the finding of said
witness is based on a mere photocopy of the
promissory note. Is the objection of Jean tenable?
A: Yes. As a rule, forgery cannot be presumed and
must be proved by clear, positive and convincing
evidence and the burden of proof lies on the party
alleging forgery. The best evidence of a forged
signature in an instrument is the instrument itself
reflecting the alleged forged signature.
The fact of forgery can only be established by a
comparison between the alleged forged signature
and the authentic and genuine signature of the
person whose signature is theorized upon to have
been forged. Without the original document
containing the alleged forged signature, one cannot
make a definitive comparison which would
establish forgery. A comparison based on a mere
photocopy or reproduction of the document under
controversy cannot produce reliable results (Heirs
of Gregorio v. CA, G.R. No. 117609, Dec. 29, 1998).
Q: When Anna loaned a sum of money to Blair,
Anna typed a single copy of the promissory note,
which they both signed. Anna made two
photocopies of the promissory note, giving one
copy to Blair and retaining the other copy. Anna
entrusted the typewritten copy to his counsel for
safekeeping. The copy with Anna's counsel was
destroyed when the law office was burned.
1. In an action to collect on the promissory note,
which is deemed to be the "original" copy for
the purpose of the best evidence rule?
2. Can the photocopies in the hands of the
parties be considered "duplicate original
copies"?
3. As counsel for Anna, how will you prove the
loan given by Anna to Blair?
A:
1. The copy that was signed and lost is the
only "original" copy for purposes of the best
evidence rule (Sec. 4 [b]).
2. No, because they merely are photocopies
which were not signed (Mahilum v. CA, G.R.
No. L-17970, July 10, 1966), They constitute
secondary evidence (Sec. 5).
3. It may be proved by secondary evidence
through the photocopies of the promissory
note. When the original document is lost or
destroyed, or cannot be produced in court,
the offeror, upon proof of its execution or

317

existence and the cause of its unavailability
without bad faith on his part, may prove its
contents by a copy, or by a recital of its
contents in some authentic document, or by
the testimony of witnesses in the order
stated (Sec. 5). (1997 Bar Question)
Q: Car was declared in default by the MTC in an
action for unlawful detainer. Plaintiff, Loise was
allowed to present evidence in support of her
complaint. Photocopies of official receipts and
original copies of affidavits were attached to the
position paper submitted by Loise.
Said documents were offered by Loise and
admitted in evidence by the court on the basis of
which the court rendered judgment in favor of
Loise. Car appealed to the RTC claiming that the
judgment is not valid because the MTC based its
judgment on mere photocopies and affidavits of
persons not presented in court. Is the claim of Car
valid? Explain.
A: Yes, although the rules on summary procedure
requires merely the submission of position papers,
the evidence submitted with the position paper
must be admissible in evidence. Photocopies of
official receipts and affidavits are not admissible in
evidence without proof of loss of the originals.
(2000 Bar Question)
Q: What is the Collateral Facts Rule?
A: It states that a document or writing which is
merely collateral to the issue involved in the case
on trial need not be proved. Where the purpose of
presenting a document is not to prove its contents,
but merely to give coherence to, or to make
intelligible the testimony of a witness regarding a
fact contemporaneous to the writing, the original of
the document need not be presented.
c. MEANING OF ORIGINAL
Q: What is an original document?
A: There are three concepts of original document:
1. The original of a document is one the
contents of which are the subject of inquiry;
2. When a document is in 2 or more copies
executed at or about the same time, with
identical contents, including signed carbon
copies, all such copies are equally regarded
as originals; or
3. When an entry is repeated in the regular
course of business, one being copied from
another at or near the time of the
transaction, including entries in journals and
318
ledgers, all the entries are likewise equally

regarded as originals (Sec. 4).
Q: What is the rule on duplicate original?
A: It states that when a document is in two or more
copies executed at or about the same time with
identical contents, all such copies are equally
regarded as originals (Sec. 4b, Rule 130). It may be
introduced in evidence without accounting for the
non-production of the other copies.
d. REQUISITES FOR INTRODUCTION OF

SECONDARY EVIDENCE
Q: What is secondary evidence?
A: Secondary evidence is that which shows that
better or primary evidence exists as to the proof of
the fact in question. It is the class of evidence that
is relevant to the fact in issue, it being first shown
that the primary evidence of the fact is not
obtainable. It performs the same functions as that
of primary evidence. (Francisco, p. 68, 1992 ed.)
Note: All originals must be first accounted for before
one can resort to secondary evidence. It must appear
that all of them have been lost or destroyed or cannot
be produced in court. The non-production of the
original document, unless it falls under any of the
exceptions in Sec. 3, Rule 130, gives rise to the
presumption of suppression of evidence.
Q: When may secondary evidence be admitted?

A: It may be admitted only by laying the basis for its
production and such requires compliance with the
following:
1. The offeror must prove the due execution
and existence of the original document;
2. The offeror must show the cause of its
unavailability; and
3. The offeror must show that the
unavailability was not due to his bad faith.
Accordingly, the correct order of proof is as follows:
existence, execution, loss, and contents. This order
may be changed if necessary at the sound
discretion of the court. (Citibank N.A. Mastercard v.
Teodoro, G.R. No. 150905, Sept. 23, 2003)
Note: Intentional destruction of the originals by a
party who acted in good faith does not preclude the
introduction of secondary evidence of the contents
thereof.
REMEDIAL LAW TEAM:

EVIDENCE
Q: What is the order of presentation of secondary
evidence?
3. Any person who heard when the document

was being read;
4. Any person who was present when the
contents of the document were talked over
by the parties to such an extent as to give
him reasonably full information of the
contents; or
5. Any person to whom the parties have
stated or confessed the contents thereof.
A:
1. Copy of the original;
2. A recital of the contents of the document in
some authentic document; or
3. By the testimony of witnesses (Sec. 5, Rule
130)
Q: What is Definite Evidentiary Rule?
A: Where the law specifically provides for the class
and quantum of secondary evidence to establish
the contents of a document, or bars secondary
evidence of a lost document, such requirement is
controlling. E.g. Evidence of a lost notarial will
should consist of a testimony of at least two
credible witnesses who can clearly and distinctly
establish its contents (Sec. 6, Rule 76).
Q: How may the due execution of the document
be proved?
Q: May the presentation or the offer of the

original be waived?
A: Yes, if the party against whom the secondary
evidence is offered does not object thereto when
the same is offered in evidence, the secondary
evidence becomes primary evidence. But even
admitted as primary evidence, its probative value
must still meet the various tests by which its
reliability is to be determined. Its admissibility
should not be confused with its probative value.
(Heirs of Teodoro De la Cruz v. CA, G.R. No. 117384,
Oct. 21, 1998)
A: It may be proved through the testimony of:

1. The person who executed it;
2. The person before whom its execution was
acknowledged;
3. Any person who was present and saw it
executed and delivered;
4. Any person who thereafter saw and
recognized the signature;
5. One to whom the parties thereto had
previously confessed the execution thereof;
or
6. By evidence of the genuineness of the
signature or handwriting of the maker. (Sec.
20, Rule 132)
Q: What facts must be shown by the party offering

secondary evidence if the original is in the custody
of the adverse party?
Q: How may the loss or destruction be proved?
Note: The party who called for a document is not

obliged to offer it into evidence (Sec. 8).
A: It may be proved by:

1. Any person who knew of such fact;
2. Anyone who, in the judgment of the court,
had made sufficient examination in the
places where the document or papers of
similar character are usually kept by the
person in whose custody the document
was and has been unable to find it; or
3. Any person who has made any other
investigation which is sufficient to satisfy
the court that the document is indeed lost.
A:
1.
2.
3.
4.
Original is in the possession or under the

control of the opponent;
Demand or notice is made to him by the
proponent signifying that the document is
needed;
Failure or refusal of opponent to produce
document in court; and
Satisfactory proof of existence of document
(Sec. 6).
Q: What is the form of notice required to be given

to the adverse party?
A: No particular form of notice is required as long
as it fairly appraises the other party as to what
papers are desired. Even an oral demand in open
court for such production at a reasonable time
thereafter will suffice. Such notice must, however,
be given to the adverse party, or his attorney, even
if the document is in the actual possession of a third
person. (Regalado, Vol. II, p. 726, 2008 ed.)
Q: How may the contents be proved?

A: They may be proved by the testimony of:
1. Any person who signed the document;
2. Any person who read it;
Q: What is the effect if the refusal or failure of the

adverse party to produce the original is justified?
A: It does not give rise to the presumption of
suppression of evidence, or create an unfavorable

319

inference against him. It only authorizes the
presentation of secondary evidence. (Regalado, Vol.
II, p. 727, 2008 ed.)
Q: Paula filed a complaint against Lynette for the
recovery of a sum of money based on a promissory
note executed by Lynette. Paula alleged in her
complaint that although the promissory note says
that it is payable within 120 days, the truth is that
the note is payable immediately after 90 days but
that if Paula is willing, she may, upon request of
Lynette give the latter up to 120 days to pay the
note.
During the hearing, Paula testified that the truth is
that the agreement between her and Lynette is for
the latter to pay immediately after 90 days time.
Also, since the original note was with Lynette and
the latter would not surrender to Paula the
original note which Lynette kept in a place about
one day's trip from where she received the notice
to produce the note and in spite of such notice to
produce the same within 6 hours from receipt of
such notice, Lynette failed to do so. Paula
presented a copy of the note which was executed
at the same time as the original and with identical
contents.
1.
2.
Over the objection of Lynette, will Paula be

allowed to testify as to the true agreement or
contents of the promissory note? Why?
Over the objection of Lynette, can Paula
present a copy of the promissory note and
have it admitted as valid evidence in her
favor? Why?
A:
1.
2.
320
Yes. As an exception to the parol evidence

rule, a party may present evidence to
modify, explain or add to the terms of the
written agreement if he puts in issue in
his pleading the failure of the written
agreement to express the true intent and
agreement of the parties thereto. Here,
Paula has alleged in her complaint that
the promissory note does not express the
true intent and agreement of the parties.
Yes. The copy in possession of Paula is a
duplicate original because it was executed
at the same time as the original and with
identical contents. Moreover, the failure
of Lynette to produce the original of the
note is excusable because she was not
given reasonable notice, a requirement
under the Rules before secondary
evidence may be presented. (2001 Bar
Question)
Note: The promissory note is an actionable document

and the original or a copy thereof should have been
attached to the complaint. (Sec. 7, Rule 8) In such a
case, the genuineness and due execution of the note, if
not denied under oath, would be deemed admitted.
(Sec. 8, Rule 9)
Q: When Linda died, her common law husband,

Lito and their alleged daughter Nes executed an
extrajudicial partition of Lindas estate. Thereafter,
the siblings of Linda filed an action for partition of
Lindas estate and annulment of titles and
damages with the RTC. The RTC dismissed the
complaint and rendered that Nes was the
illegitimate daughter of the decedent and Lito
based solely on her birth certificate, which on
closer examination, reveals that Nes was listed as
adopted by both Linda and Lito. Is the trial court
correct?
A: No. The mere registration of a child in his or her
birth certificate as the child of the supposed
parents is not a valid adoption, does not confer
upon the child the status of an adopted child and
the legal rights of such child, and even amounts to
simulation of the child's birth or falsification of his
or her birth certificate, which is a public document.
Furthermore, a record of birth is merely a prima
facie evidence of the facts contained therein. It is
not conclusive evidence of the truthfulness of the
statements made there by the interested parties.
Nes should have adduced evidence of her adoption,
in view of the contents of her birth certificate. The
records however are bereft of any such evidence
(Rivera v. Heirs of Villanueva, G.R. No. 141501, July
21, 2006).
Q: What are the requisites for the admission of
secondary evidence when the original consists of
numerous accounts?
A:
1. The original must consist of numerous
accounts or other documents;
2. They cannot be examined in court without
great loss of time; and
3. The fact sought to be established from
them is only the general result of the whole.
(Sec. 3c, Rule 130)
Note: Secondary evidence may consist of a summary
of the voluminous documents or records. (Herrera,
Vol. V, p. 203, 1999 ed.) Such records must be made
accessible to the adverse party so that the correctness
of the summary of the voluminous records may be
tested on cross-examination. (Compania Maritima v.
Allied Free Workers Union, et.al., G.R. No. L-28999,
May 24, 1977)
REMEDIAL LAW TEAM:

EVIDENCE
Q: How may the contents of the document be

proved when the original is in the custody of a
public officer?
A: The contents may be proved by:
1. A certified copy issued by the public officer
in custody thereof (Sec. 7, Rule 130); and
2. Official publication. (Herrera, Vol. V, p. 203,
1999 ed.)
Q: What is the effect of not offering a document in
evidence after calling for its production and
inspection?
A: If the party who calls for the production of a
document does not offer the same in evidence, no
unfavorable inference may be drawn from such
failure. This is because a party who calls for the
production of a document is not required to offer it.
(Sec. 8, Rule 130)
Q: What are the distinctions between the
production of documents under Sec. 8, Rule 130
and Rule 27 (mode of discovery)?
A:
SEC. 8, RULE 130
Procured by mere notice
to the adverse party,
which is a condition
precedent for the
subsequent introduction
of secondary evidence
by the proponent.
document to be
produced is intended as
evidence for the
proponent who is
presumed to have
knowledge of its
contents.
RULE 27
The production of
document is in the nature
of a mode of discovery
and can be sought only by
proper motion in the trial
court and is permitted
only upon good cause
shown.
Contemplates a situation
wherein the document is
either assumed to be
favorable to the party in
possession thereof or that
the party seeking its
production is not
sufficiently informed of
the contents of the same.
4. RULES ON ELECTRONIC EVIDENCE (A.M. NO. 017-01-SC)

Q: In what cases do the Rules on Electronic
Evidence applies?
A: An electronic document is admissible in evidence

if it complies with the rules on admissibility
prescribed by the Rules of Court and related laws
and is authenticated in the manner prescribed by
the Rules on Electronic Evidence (Sec. 2, Rule 3).
a. MEANING OF ELECTRONIC EVIDENCE;
ELECTRONIC DATA MASSAGE
Q: What is Electronic Evidence?
A: According to Black's Law Dictionary, evidence is
"any species of proof, or probative matter, legally
presented at the trial of an issue, by the act of the
parties and through the medium of witnesses,
records, documents, exhibits, concrete objects, etc.
for the purpose of inducing belief in the minds of
the court or jury as to their contention." Electronic
information (like paper) generally is admissible into
evidence in a legal proceeding..
Q: What is Electronic Data Message?

A: Electronic data message refers to information
generated, sent, received or stored by electronic,
optical or similar means.
b. PROBATIVE VALUE OF ELECTRONIC
DOCUMENTS OR EVIDENTIARY WEIGHT; METHOD
OF PROOF
Q: What are the factors to be considered in
assessing evidentiary weight of an electronic
document?
A:
1.
2.
3.
A: It shall apply to all civil actions and proceedings,

as well as quasi-judicial and administrative cases
(Sec. 2, Rule 1).
4.
Q: State the rule on the admissibility of electronic
evidence.
The reliability of the manner or method in

which it was generated, stored or
communicated, including but not limited
to input and output procedures, controls,
tests and checks for accuracy and
reliability of the electronic data message
or document, in the light of all the
circumstances as well as any relevant
agreement;
The reliability of the manner in which its
originator was identified;
The integrity of the information and
communication system in which it its
recorded or stored, including but not
limited to the hardware and computer
programs or software used as well as
programming errors;
The familiarity of the witness or the
person who made the entry with the
communication and information system;

321

5.
6.
The nature and quality of the information

which went into the communication and
information system upon which the
electronic data message document was
based; or
Other factors which the court may
consider as affecting accuracy or integrity
of the electronic document or electronic
data message. (Sec. 1, Rule 7)
C. AUTHENTICATION OF ELECTRONIC DOCUMENTS

AND ELECTRONIC SIGNATURES
1.
2.
3.
The electronic signature is that of the

person to whom it correlates;
The electronic signature was affixed by that
person with the intention of authenticating
or approving the electronic document to
which it is related or to indicate such
persons consent to the transaction
embodied therein; and
The methods or processes utilized to affix or
verify the electronic signature operated
without error or fault (Sec. 3, Rule 6).
Q: What is a Digital Signature?

Q: How is an electronic document authenticated?
A:
1.
2.
3.
By evidence that it had been digitally

signed by the person purported to have
signed the same;
By evidence that other appropriate
security procedures or devices as may be
authorized by the Supreme Court or by
law for authentication of electronic
documents were applied to the
document; or
By other evidence showing its integrity
and reliability to the satisfaction of the
judge (Sec. 2, Rule 5).
A: It refers to an electronic signature consisting of a

transformation of an electronic document or an
electronic data message using an asymmetric or
public cryptosystem such that a person having the
initial untransformed electronic document and the
signers public key can accurately determine:
1.
whether the transformation was created
using the private key that corresponds to
the signers public key; and
2.
whether the initial electronic document had
been altered after the transformation was
made [Sec. 1(e), Rule 2]
Q: What is the effect of authentication of digital
signatures?
Q: What is Electronic Signature?

A: It refers to any distinctive mark, characteristic
and/or sound in electronic form, representing the
identity of a person and attached to or logically
associated with the electronic data message or
electronic document or any methodology or
procedure employed or adopted by a person and
executed or adopted by such person with the
intention of authenticating, signing or approving an
electronic data message or electronic document.
For purposes of these Rules, an electronic signature
includes digital signatures [Sec. 1 (j), Rule 2].
A: Upon authentication, it shall be presumed that:

1. The information contained in a certificate is
correct;
2. The digital signature was created during the
operational period of a certificate;
3. No cause exists to render a certificate
invalid or revocable;
4. The message associated with a digital
signature has not been altered from the
time it was signed; and
5. A certificate had been issued by the
certification authority indicated therein
(Sec. 4, Rule 6).
Q: How is an electronic signature authenticated?

d. ELECTRONIC DOCUMENTS AND THE HEARSAY
RULE
A:
1.
2.
3.
By evidence that a method or process was

utilized to establish a digital signature and
verify the same;
By any other means provided by law; or
By any other means satisfactory to the judge
as establishing the genuineness of the
electronic signature (Sec. 2, Rule 6).
Q: What is the effect of authentication of an

electronic signature?
A: Upon authentication, it shall be presumed that:
322
Q: When is the Hearsay Rule not applicable to

electronic documents?
A: A memorandum, report, record or data
compilation of acts, events, conditions, opinions, or
diagnoses, made by electronic, optical or other
similar means at or near the time of or from
transmission or supply of information by a person
with knowledge thereof, and kept in the regular
course or conduct of a business activity, and such
was the regular practice to make the
REMEDIAL LAW TEAM:

EVIDENCE
memorandum, report, record, or data compilation
by electronic, optical or similar means, all of which
are shown by the testimony of the custodian or
other qualified witnesses, is excepted from the rule
on hearsay evidence (Sec. 1, Rule 8).
Note: The presumption provided for in Section 1 of
this Rule may be overcome by evidence of the
untrustworthiness of the source of information or the
method or circumstances of the preparation,
transmission or storage thereof (Sec. 2, Rule 8).
e. AUDIO, PHOTOGRAPHIC, VIDEO AND

EPHEMERAL EVIDENCE
Q: May parties present audio, photographic or
video evidence? Discuss.
A: Yes. Audio, photographic and video evidence of
events, acts or transactions shall be admissible
provided it shall be shown, presented or displayed
to the court and shall be identified, explained or
authenticated by the person who made the
recording or by some other person competent to
testify on the accuracy thereof (Sec. 1, Rule 11).
Q: What is ephemeral electronic communication?
A: It refers to telephone conversations, text
messages, chat room sessions, streaming audio,
streaming video, and other electronic forms of
communication the evidence of which is not
recorded or retained. [Sec. 1(k)]
Q: Are text messages admissible as evidence?
A: Yes. Text messages have been classified as
ephemeral electronic communication under Section
1(k), Rule 2 of the Rules on Electronic Evidence, and
shall be proven by the testimony of a person who
was a party to the same or has personal knowledge
thereof (Vidallon-Magtolis v. Cielito Salud, A.M. No.
CA-05-20-P, Sept. 9, 2005).
Q: How shall ephemeral electronic communication
be proven?
A: It shall be proven by the testimony of a person
who was a party to the same or has personal
knowledge thereof. In the absence or unavailability
of such witnesses, other competent evidence be
admitted. A recording of the telephone
conversation
or
ephemeral
electronic
communication shall be covered by the
immediately preceding section. If the foregoing
communications are recorded or embodied in an
electronic document, then the provisions of Rule 5
regarding Authentication of Electronic Documents
shall apply. (Sec. 2, Rule 11)
5. PAROL EVIDENCE RULE

Q: What is Parol Evidence?
A: It is any evidence aliunde (extrinsic evidence)
which is intended or tends to vary or contradict a
complete and enforceable agreement embodied in
a document (Regalado, Vol. II, p. 730, 2008 ed.). It
may refer to testimonial, real or documentary
evidence.
Q: What is the rationale of the parol evidence
rule?
A:
1.
2.
3.
To give stability to written statements;

To remove the temptation and possibility of
perjury; and
To prevent possible fraud.
Q: Distinguish the kinds of ambiguities.

A:
INTRINSIC OR
LATENT
On its face, the
writing appears
clear and
unambiguous
but there are
collateral
matters which
make the
meaning
uncertain
Curable by
evidence
aliunde
EXTRINSIC OR
PATENT
INTERMEDIATE
Ambiguity is
apparent on the
face of the
writing and
requires that
something be
added to make
the meaning
certain
Ambiguity
consists in the
use of
equivocal
words
susceptible of
two or more
interpretation
Cannot be
cured by
evidence
aliunde
Curable by
evidence
aliunde
Q: What is the principle of falsa demonstratio

non nice cum de corpore constat?
A: It literally means an erroneous description does
not spoil the act. It states that the false description
does not injure or vitiate a document if the subject
is sufficiently identified. The incorrect description
shall be rejected as surplusage while the correct
and complete description standing alone shall
sustain the validity of the writing (Regalado, Vol. II,
p. 735, 2008 ed.). Parol evidence is admissible to
prove mistake in the execution of a written
instrument.
Q: May a condition precedent and a condition
subsequent be established by parol evidence?
A: Condition precedent may be established by parol
evidence because there is no varying of the terms

323

of the written contract by extrinsic agreement for
the reason that there is no contract in existence.
There is nothing in which to apply the excluding
rule. Conditions subsequent may not be established
by parol evidence since a written contract already
exists.
a. APPLICATION OF THE PAROL EVIDENCE RULE
Q: What are the requisites for the application of
the parol evidence rule?
the execution of the written agreement.

(Sec. 9)
c. DISTINCTIONS BETWEEN THE BEST EVIDENCE
RULE AND PAROL EVIDENCE RULE
Q: Distinguish parol evidence rule from best
evidence rule.
A:
PAROL EVIDENCE RULE
original document is
available in court
A:
1.
2.
3.
4.
There must be a valid contract;

The terms of the agreement must be
reduced to writing;
The dispute is between the parties or their
successors-in-interest; and
There is dispute as to the terms of the
agreement.
b. WHEN PAROLE EVIDENCE CAN BE INTRODUCED

Q: What is Parol Evidence Rule?
A: It states that when the terms of an agreement
have been reduced to writing, it is considered as
containing all the terms agreed upon and there can
be, between the parties and their successors-ininterest, no evidence of such terms other than the
contents of the written agreement (Sec. 9).
Note: Parol evidence rule does not apply, and may not
properly be invoked by either party to the litigation
against the other, where at least one party to the suit
is not a party or privy of a party to the written
instrument in question and does not base a claim or
assert a right originating in the instrument of the
relation established thereby. Thus, if one of the parties
to the case is a complete stranger to the contract
involved therein, he is not bound by this rule and can
introduce extrinsic evidence against the efficacy of the
writing. (Lechugas v. CA et.al., G.R. Nos. L-39972 & L40300, Aug. 6, 1986)
Prohibits the varying of

the terms of a written
agreement
Applies only to documents

Applies to all kinds of
which are contractual in
writings
nature except wills
Can be invoked only when
the controversy is
Can be invoked by any
between the parties to the party to an action whether
written agreement, their he has participated or not
privies, or any party
in the writing involved
affected thereby like a
cestui que trust
6. AUTHENTICATION AND PROOF OF DOCUMENTS

(RULE 132)
Q: When is authentication of documents not
required?
A:
1.
2.
324
The writing is an ancient document (Sec.

21);
GR: The writing is a public document or
record (Sec. 19);
XPN: A private document required by law to
be recorded while they are public
documents, the public writing is not the
writing itself but the public record
thereof. Such recording does not make the
private writing itself a public document so
as to make it admissible without
authentication.
Q: What are the exceptions to the parol evidence

rule?
A: A party may present evidence to modify, explain
or add to the terms of the written agreement if he
puts in issue in his pleadings the following:
1. An intrinsic ambiguity, mistake or
imperfection in the written agreement;
2. Failure of the written agreement to express
the true intent of the parties thereto;
3. Validity of the written agreement; or
4. Existence of other terms agreed to by the
parties or their successors in interest after
BEST EVIDENCE RULE

The original document is
not available or there is a
dispute as to whether said
writing is original
Prohibits the introduction
of secondary evidence in
lieu of the original
document regardless of
whether or not it varies
the contents of the
original
3.
4.
The writing is a notarial document

acknowledged, proved or certified (Sec. 30);
The authenticity and due execution of the
document has been expressly admitted or
impliedly admitted by failure to deny the
same under oath; or
REMEDIAL LAW TEAM:

EVIDENCE
5.
When such genuineness and due execution

are immaterial to the issue.
of its genuineness and due

execution
authentic is received
in evidence, its due
execution
and
authenticity must be
proved either:
1.
By anyone who saw

the
document
executed or written;
or
By evidence of the
genuineness of the
signature
or
handwriting of the
maker.
a. MEANING OF AUTHENTICATION
Q: What is authentication?
A: It is proving the due execution and genuineness
of the document.
2.
Q: What is document?
A: It is a deed, instrument or other duly authorized
paper by which something is proved, evidenced or
set forth. (Bermejo v. Barrios, G.R. No. L-23614, Feb.
27, 1970)
Any other private

document need only
be identified as that
which it is claimed to
be (Sec. 20).
b. PUBLIC AND PRIVATE DOCUMENTS

Q: What are public and private documents.
A: Public documents are:
1. The written official acts, or records of the
official acts of the sovereign authority,
official bodies and tribunals, and public
officers, whether of the Philippines, or of a
foreign country;
2. Documents acknowledge before a notary
public except last wills and testaments; and
3. Public records, kept in the Philippines, of
private documents required by law to the
entered therein.
Note: All other writings are private. (Sec. 19)
Q: Distinguish the classes of documents.

A:
PUBLIC DOCUMENT
PRIVATE DOCUMENT
What comprises it
1. The written official acts,
or records of the official
acts of the sovereign
authority, official bodies
and
tribunals,
and
public officers, whether
of the Philippines, or of
a foreign country;
2. Documents
All other writings are
acknowledged before a
private (Sec. 19).
notary public except last
wills and testaments;
and
3. Public records, kept in
the
Philippines,
of
private
documents
required by law to be
entered therein (Sec.
19).
As to authenticity and admissibility as evidence
Admissible
as
evidence Before any private
without need of further proof document offered as
As to persons bound
Binds only the parties
who executed them
Evidence even against third
or
their
privies,
persons, of the fact which
insofar
as
due
gave rise to its due execution
execution and date
and to the date of the latter
of the document are
concerned
As to validity of certain transactions
Certain transactions must be
contained in a public
document; otherwise they
will not be given any validity.
Q: What are the rules in interpreting documents?

A:
1. The language of a writing is to be
interpreted according to the legal meaning
it bears in the place of its execution, unless
the parties intended otherwise.
2. Where there are several provisions or
particulars, such a construction is, if
possible, to be adopted as will give effect to
all.
3. The intention of the parties is to be pursued;
and when a general and a particular
provision are inconsistent, the latter is
paramount to the former. So a particular
intent will control a general one that is
inconsistent with it.
4. The circumstances under which it was
made, including the situation of the subject
thereof and of the parties to it, may be
shown, so that the judge may be placed in
the position of those whose language he is
to interpret.
5. The terms of a writing are presumed to
have been used in their primary and general

325

acceptation, but evidence is admissible to
show that they have a local, technical, or
otherwise peculiar signification, and were
so used and understood in the particular
instance, in which case the agreement must
be construed accordingly.
6. When an instrument consists partly of
written words and partly of a printed form,
and the two are inconsistent, the former
controls the latter.
7. When the characters in which an
instrument is written are difficult to be
deciphered, or the language is not
understood by the court, the evidence of
persons skilled in deciphering the
characters, or who understand the
language, is admissible to declare the
characters or the meaning of the language.
8. When the terms of an agreement have been
intended in a different sense by the
different parties to it, that sense is to
prevail against either party in which he
supposed the other understood it, and
when different constructions of a provision
are otherwise equally proper, that is to be
taken which is the most favorable to the
party in whose favor the provision was
made.
9.
When an instrument is equally susceptible
of two interpretations, one in favor of
natural right and the other against it, the
former is to be adopted.
10. An instrument may be construed according
to usage, in order to determine its true
character (Secs. 10-19).
c. WHEN A PRIVATE WRITING REQUIRES
AUTHENTICATION; PROOF OF A PRIVATE WRITING
Q: Is the testimony of a handwriting expert
indispensable to the examination or the
comparison of handwritings in cases of forgery?
A: No. Handwriting experts are usually helpful in
the examination of forged documents because of
the technical procedure involved in analyzing them,
but resort to these experts is not mandatory or
indispensable.
A finding of forgery does not depend entirely on the
testimonies of handwriting experts, because the
judge must conduct an examination of the
questioned signature in order to arrive at a
reasonable conclusion as to its authenticity. The
opinions of handwriting experts are not binding
upon courts, especially when the question involved
is mere handwriting similarity or dissimilarity, which
can be determined by a visual comparison of
326
specimens of the questioned signatures with those

of the currently existing ones (Pontaoe v. Pontaoe,
G.R. No. 15958, Apr. 22, 2008).
d. WHEN EVIDENCE OF AUTHENTICITY OF A
PRIVATE WRITING IS NOT REQUIRED (ANCIENT
DOCUMENTS)
Q: What are the requisites for an ancient
document to be exempt from proof of due
execution and authenticity (rule on ancient
document/authentic document rule)?
A:
1. The private document be more than 30
years old;
2. That it be produced from a custody in which
it would naturally be found if genuine; and
3. That it is unblemished by any alteration or
circumstances of suspicion (Sec. 21).
Note: Ancient document rule applies only if there are
no other witnesses to determine authenticity.
e. HOW TO PROVE GENUINENESS OF A

HANDWRITING
Q: How is the genuineness of a persons
handwriting proved?
A:
1. It may be proved by any witness who actually
saw the person writing the instrument;
2. By any person who is familiar or has acquired
knowledge of the handwriting of such person,
his opinion as to the handwriting being an
exception to the opinion rule under Secs. 48
& 50 of Rule 130;
3. By a comparison of the questioned
handwriting from the admitted genuine
specimens thereof; or
4. By expert witness (Secs. 20 & 22, Rule 132;
Sec. 49, Rule 130).
f. PUBLIC DOCUMENTS AS EVIDENCE; PROOF OF
OFFICIAL RECORD
Q: How are public records proved?
A: Written official acts, or records of the official acts
of the sovereign authority, official bodies and
tribunals, and public officers, e.g. a written foreign
law, may be evidenced by:
1. If it is within the Philippines
a. an official publication thereof; or
b. by a copy attested by the officer having
the legal custody of the record, or by his
deputy.
2. If it is kept in a foreign country
REMEDIAL LAW TEAM:

EVIDENCE
a. an official publication thereof; or
b. by a copy attested by the officer having
the legal custody of the record, or by his
deputy and accompanied with a
certificate that such officer has the
custody. The certificate may be made by
a secretary of the embassy or legation,
consul general, consul, vice consul, or
consular agent or by any officer in the
foreign service of the Philippines
stationed in the foreign country in
which the record is kept, and
authenticated by the seal of his office
(Sec. 24, Rule 132).
Q: Is a special power of attorney executed and
acknowledged before a notary public in a foreign
country authorizing a person to file a suit against
certain persons in the Philippines admissible in
evidence?
A: No, because a notary public in a foreign country
is not one of those who can issue the certificate
mentioned in Sec. 24, Rule 132 of Rules of Court.
Non-compliance with the said rule will render the
SPA inadmissible in evidence. Not being duly
established in evidence, the SPA cannot be used to
file a suit in representation of another. The failure
to have the SPA authenticated is not a mere
technicality but a question of jurisdiction. (Heirs of
Medina v. Natividad, G.R. No. 177505, Nov. 27,
2008)
Q: May a public record be removed from its office?
license to carry any firearm. The certifying officer,

however, was not presented as a witness. Is the
certification of the PNP Firearm and Explosives
Office without the certifying officer testifying on it
admissible in evidence against Lino?
A: Yes. Section 28, Rule 130 of the Rules of Court
provides that a written statement signed by an
officer having the custody of an official record or by
his deputy that after diligent search, no record or
entry of a specified tenor is found to exist in the
records of his office, accompanied by a certificate
as above provided, is admissible as evidence that
the records of his office contain no such record or
entry.
The records of the PNP Firearm and Explosives
Office are a public record. Hence, notwithstanding
that the certifying officer was not presented as a
witness for the prosecution, the certification he
made is admissible in evidence against Lino. (2003
Bar Question)
g. ATTESTATION OF A COPY
Q: What must the attestation of a copy state?
A: Whenever a copy of a document or record is
attested for the purpose of evidence, the
attestation must state, in substance:
1. That the copy is a correct copy of the original,
or a specific part thereof, as the case may be;
2. It must be under the official seal of the
attesting officer, if there be any, or if he be the
clerk of a court having a seal, under the seal of
such court.
A:
GR: No. Any public record must not be removed
from the office in which it is kept.
.
XPN: Upon order of a court where the
inspection of the record is essential to the just
determination of a pending case (Sec. 26, Rule
132).
Q: What is the probative value of documents
consisting of entries in public records?
A: They are prima facie evidence of the facts stated
therein if entered by a public officer in the
performance of a duty. All other public documents
are evidence, even against a third person, of the
fact which gave rise to their execution and of the
date of the latter (Sec. 23, Rule 132).
Q: Lino was charged with illegal possession of
firearm. During trial, the prosecution presented in
evidence a certification of the PNP Firearms and
Explosives Office attesting that the accused had no
h. PUBLIC RECORD OF A PUBLIC DOCUMENT

Q: How may a public record of a private document
be proved?
A: Any of the following:
1. By the original record; or
2. By a copy thereof, attested by the legal
custodian of the record, with an
appropriate certificate that such officer has
the custody (Sec. 27, Rule 132).
i. PROOF OF LACK OF RECORD
Q: How may the absence of a record be proven?
A: Proof of lack of record of a document consists of
written statement signed by an officer having
custody of an official record or by his deputy. The
written statement must contain the following
matters:
1. There has been a diligent search of the record;

327

2. That despite the diligent search, no record of
entry of a specified tenor is found to exist in
the records of his office.
Note: The written statement must be accompanied by
a certificate that such officer has the custody of official
records (Sec. 28, Rule 132).
j. HOW A JUDICIAL RECORD IS IMPEACHED

Q: How may a judicial record be impeached?
A: It may be impeached by evidence of:
1. Want of jurisdiction in the court or judicial
officer;
2. Collusion between the parties; or
3. Fraud in the party offering the record, in
respect to the proceedings (Sec. 29).
k. PROOF OF NOTARIAL DOCUMENTS
Q: What is the evidentiary weight given to a
notarial document?
A: Notarial documents celebrated with all the legal
requisites under a notarial certificate is evidence of
a high character, and to overcome its recitals, it is
incumbent upon the party challenging it to prove
his claim with clear, convincing and more than mere
preponderant evidence.
A notarized document carries the evidentiary
weight conferred upon it with respect to its due
execution, and it has in its favor the presumption of
regularity which may only be rebutted by evidence
so strong and convincing as to exclude all
controversy as to the falsity of the certificate.
Absent such, the presumption must be upheld. The
burden of proof to overcome the presumption of
due execution of a notarial document lies on the
one contesting the same (Pan Pacific Industrial
Sales Co. v. CA, G.R. No.125283, Aug. 9, 2005).
Q: How are notarial documents proved?
A: The document may be presented in evidence
without further proof, the certificate of
acknowledgment being prima facie evidence of the
execution of the instrument or document involved
(Sec. 30).
Note: The identification documents which may be
presented as competent evidence of identity by
signatories to documents or instruments to be
notarized include, but are not limited to, passports,
drivers licenses, Professional Regulations Commission
identification cards, NBI clearances, police clearances,
postal IDs, voters IDs, Barangay certifications, GSIS ecards, SSS cards, Philhealth cards, senior citizens
328
cards, Overseas Workers Welfare Administration

(OWWA) IDs, OFW IDs, seamans books, alien
certificate of registrations/immigrant certificate of
registrations, government office IDs, certifications
from the National Council for the Welfare of Disabled
Persons (NCWDP), and DSWD certifications.
Notaries public are prohibited from notarizing
documents or instruments of signatories who are not
personally known to them or who otherwise fail to
present competent evidence of their respective
identities (A.M. No. 02-8-13-SC, Re: 2004 Rules on
Notarial Practice, Feb. 19, 2008).
l. HOW TO EXPLAIN ALTERATIONS IN A

DOCUMENT
Q: How should documents with alterations be
presented as evidence for it to be admissible?
A: A party producing a document as genuine which
has been altered and appears to have been altered
after its execution must account for the alteration.
He may show that the alteration:
1. was made by another, without his
concurrence;
2. was made with the consent of the parties
affected by it;
3. was otherwise properly or innocently made; or
4. that the alteration did not change the meaning
or language of the instrument.
Note: Failure to do any of the above will make the
document inadmissible in evidence (Sec. 31).
m. DOCUMENTARY EVIDENCE IN AN UNOFFICIAL

LANGUAGE
Q: May a document be admitted into evidence if it
is written in an unofficial language?
A: Documents written in an unofficial language shall
not be admitted as evidence unless accompanied
with a translation into English or Filipino (Sec. 32).
E. TESTIMONIAL EVIDENCE
1. QUALIFICATIONS OF A WITNESS
Q: Who are qualified to be witnesses?
A: All persons who:
1. can perceive and perceiving;
2. can make known their perception to
others (Sec. 20, Rule 130);
3. must take either an oath or an affirmation
(Sec. 1, Rule 132; Riano, Evidence: A
Restatement for the Bar, p. 245, 2009
ed.); and
REMEDIAL LAW TEAM:

EVIDENCE
4.
must not possess the disqualifications

imposed by law or the rules (Riano,
Evidence: A Restatement for the Bar, p.
246, 2009 ed.)
NOTE: The ability to make known the perception of the

witness to the court involves two factors: (a) the ability
to remember what has been perceived; and (b) the
ability to communicate the remembered perception.
Consider a witness who has taken the oath and who
has personal knowledge of the event which he is going
to testify (Riano, Evidence: A Restatement for the Bar,
p. 248, 2009 ed).
Q: What are the qualifications of a witness?

A: A prospective witness must show that he has the
following abilities:
1. To Observe the testimonial quality of
perception;
2. To Remember the testimonial quality of
memory;
3. To Relate the testimonial quality of
narration; and
4. To Recognize a duty to tell the truth the
testimonial quality of sincerity.
Q: What cannot be considered as grounds for
disqualification?
A: GR:
1. Religious or political belief;
2. Interest in the outcome of the case; or
3. Conviction of a crime (Sec. 20).
XPN: Unless otherwise provided by law like the
following:
1. Those convicted of falsification of
document, perjury or false testimony is
prohibited from being witnesses to a will
(Art. 821, NCC).
2. Those convicted of an offense involving
moral turpitude cannot be discharged to
become a State witness (Sec. 17, Rule
119; Sec. 10, R.A. 6981).
3. Those who fall under the disqualification
provided under Secs. 21-24, Rule 130.
2. COMPETENCY VS CREDIBILITY OF A WITNESS
capacity to
communicate his
perception to others.
(Riano, 2009, p.250)
Q: What is the rule on competency of witness?

A: GR: A person who takes the witness stand is
presumed to possess the qualifications of a
witness. (Presumption of competency)
XPN: There is prima facie evidence of
incompetency in the following:
1. The fact that a person has been recently
found of unsound mind by a court of
competent jurisdiction; or
2. That one is an inmate of an asylum for the
insane.
Q: What is the void dire examination?
A: A preliminary examination conducted by the trial
judge where the witness is duly sworn to answer as
to his competency (Competency Examination).
3. DISQUALIFICATIONS OF WITNESSES
Q: Who are disqualified to be witnesses under the
rules?
A: Those who are:
1. Disqualified by reason of mental incapacity or
immaturity;
2. Disqualified by reason of marriage;
3. Disqualified by reason of death or insanity of
adverse party; and
4. Disqualified on the ground of privileged
communication:
a. Marital privilege;
b. Attorney-client privilege;
c. Doctor-patient privilege;
d. Minister-penitent privilege; or
e. Public officer as regards communications
made in official confidence.
Note: The qualifications and disqualifications of
witnesses are determined as of the time they are
produced for examination in court or at the taking of
the depositions.
Q: Distinguish competency of a witness from

credibility of a witness.
A:
Competency of a
Witness
Has reference to the
basic qualifications of a
witness as his capacity
to perceive and his
Credibility of a Witness
Refers to the believability
of the witness and has
nothing to do with the law
or the rules. (Ibid).
a. DISQUALIFIED BY REASON OF MENTAL

INCAPACITY OR IMMATURITY
Q: What are the requisites for a witness to be
disqualified under this rule?
A:
1.
The proposed witness must be incapable

of making known his perception to
others; and

329

2.
The incapacity must exist as of the time of

his production for examination (Riano,
254, 2009 ed.).
presentation of the testimony of Cyrus on the

ground that, being a deaf-mute, he was not a
competent witness. Is the contention of the
accused correct?
Q: Who are disqualified by reason of mental

incapacity or immaturity?
A: No. A deaf-mute is not incompetent as a witness.

Deaf-mutes are competent witnesses where they
can:
1. understand and appreciate the sanctity of
an oath;
2. comprehend facts they are going to
testify on; and
3. communicate their ideas through a
qualified interpreter (People v. Tuangco,
G.R. No. 130331, Nov. 22, 2001).
A:
1.
2.
Mental incapacity those whose mental

condition, at the time of their production
for examination, is such that they are
incapable of intelligently making known
their perception to others; he can still be
a witness during his lucid interval. The
disqualification is only absolute if the
insane person is publicly known to be
insane and does not have lucid intervals.
Mental immaturity children whose
mental maturity is such as to render them
incapable of perceiving the facts
respecting which they are examined and
of relating them truthfully. (Sec. 21)
Q: When must the incompetence of the witness by

reason of mental incapacity or immaturity exist?
A:
Mental Incapacity
The incompetence of the
witness must exist not at
the time of his perception
of the facts but at the time
he is produced for
examination, and consists
in his inability to
intelligently make known
what he has perceived.
(Riano, Evidence: A
Restatement for the Bar, p.
255, 2009 ed.)
Mental Immaturity
The incompetence of
the witness must occur
at the time the witness
perceives the event
including his
incapability to relate his
perceptions truthfully.
(Ibid.)
Q: Does mental unsoundness of the witness at the

time the fact to be testified occurred affect his
competency?
A: No, it only affects his credibility. Nevertheless, as
long as the witness can convey ideas by words or
signs and can give sufficiently intelligent answers to
questions propounded, she is a competent witness
even if she is feeble-minded (People v. De Jesus,
G.R. No. L-39087, Apr. 27, 1984) or is mental
retardate (People v. Gerones, G.R. No. 91116, Jan.
24, 1991) or is a schizophrenic (People v. Baid, G.R.
No. 129667, July 31, 2000).
Q: Cyrus, a deaf-mute, was presented as a witness
in a criminal case. The accused objected to the
330
b. DISQUALIFICATION BY REASON OF
MARRIAGE/SPOUSAL IMMUNITY
Q: What is purpose of this disqualification?
A: The rule forbidding one spouse to testify for or
against the other is based on principles which are
deemed important to preserve the marriage
relation as one of full confidence and affection, and
that this is regarded as more important to the
public welfare than that the exigencies of the
lawsuits should authorize domestic peace to be
disregarded for the sake of ferreting out facts
within the knowledge of strangers.
Q: What are the requisites in order for the spousal
immunity to apply?
A:
1.
2.
3.
4.
That the spouse for or against whom the

testimony is offered is a party to the case;
That the spouses are validly married;
The testimony is one that is offered
during the existence of the marriage
(Riano, Evidence: A Restatement for the
Bar, p. 266, 2009 ed.); and
The case is not one of the exceptions
provided in the rule. (Herrera, Vol. V, p.
302, 1999 ed.)
Q: What kind of testimony is covered by the

prohibition?
A: The prohibition extends not only to testimony
adverse to the spouse but also to a testimony in
favor of the spouse. (Sec. 22, Rule 130; Riano,
ed.)
Note: It does not apply in the case of estranged
spouses, where the marital and domestic relations are
so strained that there is no more harmony to be
REMEDIAL LAW TEAM:

EVIDENCE
preserved nor peace and tranquility which may be
disturbed (Alvarez vs Ramirez, October 14, 2005)
Q: What are the exceptions to the spousal

immunity?
A:
1. In a civil case by one against the other; or
2. In a criminal case for a crime committed
by one against the other or the latters
direct descendants or ascendants (Sec.
22), or
3. Where the testimony was made outside
the marriage.
Q: Can this be waived?
A: This can be waived just like any other objection
to the competency of other witnesses. It can be
waived through failure to interpose timely
objection of by calling the other spouse as a
witness.
Q: If an accused marries the prosecution witness
for the sole purpose of sealing the lips of the
witness, will the prohibition apply?
A: Yes. As long as a valid marriage exists at the time
of the trial, the witness-spouse cannot be
compelled to testify even where the crime charged
is against the witness person, and even though the
marriage was entered into for the express purpose
of suppressing the testimony.
Q: Distinguish spousal immunity from marital
privilege.
A:
Disqualification By Reason
Of Marriage (Sec. 22)
Can be invoked only if one
of the spouses is a party to
the action
Applies only if the marriage
is existing at the time the
testimony is offered
Constitutes an absolute
prohibition for or against
the spouse of the witness
The married witness would
not be allowed to take the
stand at all because of the
disqualification. Even if the
testimony is, for or against
the objecting spouse.
Disqualification By
Reason Of Marital
Privilege (Sec. 24)
Can be claimed
whether or not the
other spouse is a party
to the action
Can be claimed even
after the marriage is
dissolved
Applies only to
confidential
communications
between the spouses
The married person is
on the stand but the
objection of privilege is
raised when
confidential marital
communication is
inquired into
Q: Who can claim spousal immunity?

A: The spouse who can object is the spouse-party
and not the spouse-witness.
Q: Gizelle was estranged from her husband Mico
for more than a year. Gizelle was temporarily
living with her sister in Pasig City. For unknown
reasons, the house of Ivys sister was burned,
killing the latter. Gizelle survived.
Gizelle saw her Mico in the vicinity during the
incident. Later, Mico was charged with arson.
During the trial, the prosecutor called Gizelle to
the witness stand and offered her testimony to
prove that her husband committed arson. Can
Gizelle testify over the objection of her husband
on the ground of marital privilege?
A: Yes. The marital disqualification rule is aimed at
protecting the harmony and confidences of marital
relations. Hence, where the marital and domestic
relations are so strained that there is no more
harmony to be preserved nor peace and tranquillity
which may be disturbed, the marital disqualification
no longer applies.
The act of Mico in setting fire to the house of his
sister-in-law, knowing that his wife was there, is an
act totally alien to the harmony and confidences of
marital relation which the disqualification primarily
seeks to protect. The criminal act complained of
had the effect of directly and vitally impairing the
conjugal relation. (Alvarez v. Ramirez, G.R. No.
143439, Oct. 14, 2005). (2006 Bar Question)
c. DISQUALIFICATION BY REASON OF DEATH OR
INSANITY OF THE ADVERSE PARTY (DEAD MAN
STATUTE/SURVIVING PARTIES RULE)
Q: What are the elements for the application of
the rule?
A:
1.
2.
3.
4.
The defendant in the case is the executor

or the administrator or a representative
of the deceased or the person of unsound
mind;
The case is against the executor or the
administrator or a representative of the
deceased or the person of unsound mind;
The subject matter of the action is a claim
or demand against the estate of a
deceased person or a person of unsound
mind; and
The testimony is as to any matter of fact
occurring before the death of such
deceased person or before such person

331

became of unsound mind. (Sec. 23, Rule
130)
8.
Negative testimony, that is, testimony

that a fact did not occur during the
lifetime of the deceased;
9. Testimony on the present possession by
the witness of a written document signed
by the deceased because such fact exists
even after the death of decedent;
10. When the defendant/s, though heirs of
the deceased, are sued in their personal
and individual capacities; and
11. In actions against a partnership.
Q: What is covered by the disqualification by

reason of death or insanity of the adverse party?
A: It constitutes a partial disqualification of a
witness wherein he is prohibited from testifying as
to any matter of fact occurring before the death or
insanity of a party to the transaction.
Note: The witness cannot testify on matters which
occurred in the presence and within the hearing of the
decedent to which he might testify on his personal
knowledge if he were alive. Facts favorable to the
deceased or insane person or their representatives are
not prohibited.
Q: What is the reason underlying the adoption of

the dead man statute?
A: To guard against the temptation to give false
testimony in regard of the transaction in question
on the part of the surviving party and to discourage
perjury.
Q: What are the cases not covered by the dead
man statute?
A:
1.
2.
3.
4.
5.
6.
7.
332
Testimony of mere witnesses who are

neither party plaintiffs, nor their
assignors, nor persons in whose behalf a
case is prosecuted, nor to a nominal
party, nor to officers and stockholders of
a plaintiff corporation;
If the person or persons mentioned under
the rule file a counterclaim ;
Where the deceased contracted with the
plaintiff through an agent and said agent
is alive and can testify, but the testimony
of the plaintiff should be limited to acts
performed by the agent;
Land registration cases instituted by the
deceaseds representative, where the
oppositor is considered as defendant or in
cadastral cases where there are no
oppositors;
When there is waiver;
If the plaintiff is the executor or
administrator or other representative of a
deceased person, or the person of
unsound mind;
When the testimony refers to fraudulent
transactions committed by the persons
mentioned in the rule, provided such
fraud is first established by other
evidence;
Q: Can this be waived?

A: The disqualification under this rule is waived if
the defendant does not timely object to the
admission of such evidence or testifies on the
prohibited matters or cross-examines thereon.
Q: Distinguish dead mans statute from marital
disqualification rule.
A:
Dead Mans Statute
Marital Disqualification
Rule
Only a partial
disqualification as the
witness is not completely
disqualified but is only
prohibited from testifying
on the matters therein
specified
A complete and absolute

disqualification
Applies only to a civil

case or special
proceeding over the
estate of a deceased or
insane person
GR: Applies to a civil or

criminal case.
XPN: In a civil case by one
spouse against the other
or in a criminal case for a
crime committed by one
spouse against the other
or the latters direct
descendants or
ascendants
d. DISQUALIFICATION BY REASON OF PRIVILEGED

COMMUNICATION
Q: Who may assert the privilege?
A: The holder of the privilege, authorized persons
and persons to whom privileged communication
were made can assert the privilege.
Note: The disqualification applies to both civil and
criminal cases except as to the doctor-patient privilege,
which is applicable only in civil cases. Unless waived,
the disqualification under Sec. 24 remains even after
the various relationships therein have ceased to exist.
The privilege cannot be invoked where confidential
information are made in contemplation of death or in
furtherance or perpetuation of fraud. Unless waived,
REMEDIAL LAW TEAM:

EVIDENCE
the disqualification under Sec. 24 remains even after
the various relationships therein have ceased to exist.
A:
1.
2.
(1) HUSBAND AND WIFE

this privilege?
3.
A:
1.
2.
3.
There was a valid marriage;

The privilege is invoked with respect to a
confidential communication between the
spouses during the said marriage; and
The spouse against whom such evidence
is being offered has not given his consent
to such testimony.
Attorney-client relation;
The privilege is invoked with respect to a
confidential communication between
them in the course of professional
employment; and
The client has not given his consent to the
attorneys testimony; or if the attorneys
secretary, stenographer or clerk is sought
to be examined, that both the client and
the attorney have not given their consent.
Q: What is the purpose of this privilege?
Q: When is the privilege inapplicable?
A: To encourage full disclosure by client to his

attorney of all pertinent matters as to further the
administration of justice.
A:

1.
2.
In a civil case by one against the other; or

In a criminal case for a crime committed
by one against the other or the latters
direct ascendants or descendants.
Q: Are third persons who overhear the

communication between the spouses bound by
the privilege?
A:
GR: Third persons who, without the knowledge
of the spouses, overhear the communication
are not disqualified to testify.
XPN: When there is collusion and voluntary
disclosure to a third party, that third party
becomes an agent and cannot testify.
Q:
Distinguish
marital
privilege
disqualification by reason of marriage.
from
A:
Disqualification by reason
of marriage
Can be invoked only if one
of the spouses is a party to
the action
Applies only if the marriage
is existing at the time the
testimony is offered
Constitutes a total
prohibition against the
spouse of the witness
Marital privilege
Can be claimed whether or
not the spouse is a party to
the action
Can be claimed even after
the marriage has been
dissolved
Applies only to confidential
communications between
the spouses
(2) ATTORNEY AND CLIENT

the privilege?
A: It does not apply to communications which are:

1. intended to be made public;
2. intended to be communicated to others;
3. intended for an unlawful purpose;
4. received from third persons not acting in
behalf or as agents of the client; or
5. made in the presence of third parties who
are strangers to the attorney-client
relationship. (Regalado, Vol. II, p. 750,
2008 ed.)
Q: What is the test in applying the attorney-client
privilege?
A: The test is whether the communication made is
with the view of obtaining from the lawyer his
professional assistance or advice regardless of the
existence or absence of a pending litigation.
Q: May a lawyer refuse to divulge the identity of
his clients?
A:
GR: Lawyers may not invoke the privilege and
refuse to divulge the name or identity of their
client.
XPNs:
3. Where a strong possibility exists that
revealing clients name would implicate
the client in the very activity for which he
sought the lawyers advice;
4. Where disclosure would open the client
to civil liability; or
5. Where the prosecutors have no case
against the client unless by revealing the
clients name, the
said name would
furnish the only link that would form the

333

chain of testimony necessary to convict
an individual for a crime.
Q: A tugboat owned by Speedy Port Service, Inc.
(SPS) sank in Manila Bay while helping to tow
another vessel, drowning 5 of the crew in the
resulting shipwreck. At the maritime board
inquiry, the 4 survivors testified. SPS engaged Atty.
Ely to defend against potential claims and to sue
the company owning the other vessel for damages
to the tug. Ely obtained signed statements from
the survivors. He also interviewed other persons,
in some instance making memoranda. The heirs of
the 5 victims filed an action for damages against
SPS.
The counsel of the heirs of the 5 victims sent
written interrogatories to Ely, asking whether
statements of the witnesses may be obtained. Ely
refused to comply, arguing that the documents
and
information
asked
are
privileged
communication. Is the contention tenable?
Explain.
A: Yes, the contention of counsel for SPS is tenable
considering that he was acting in his professional
capacity in bringing about the statement he
obtained from the witnesses and the memoranda
he made. The notes, memoranda, and writings
made by the counsel in pursuance of his
professional duty, form part of his private and
confidential files in the cases handled by him; hence
privileged (Air Philippines Corp v. Penswell, Inc., G.R.
No. 172835, Dec. 13, 2007).
A: The privilege is intended to facilitate and make

safe, full and confidential disclosure by patient to
doctor of all facts, circumstances, and symptoms,
untrammeled by apprehension of their subsequent
and enforced disclosure and publication on the
witness stand, to the end that the physician may
form a correct opinion, and be enabled safely and
efficaciously to treat his patient.
A: It does not apply to communications which are:
1. Not given in confidence;
2. Irrelevant
to
the
professional
employment;
3. Made for an unlawful purpose;
4. Intended to be made public; or
5. Waived either by contract or law.
Q: What are the pieces of information which
cannot be disclosed?
A:
1. Any advice or treat given to the client;
2. Any information acquired in attending
such patient provided that the advice,
treatment or information was made or
acquired in a professional capacity and
was necessary to enable him to act in that
capacity; and
3. That the information sought to be
disclosed would tend to blacken the
reputation of the patient. (Sec. 24c, Rule
130)
(3) PHYSICIAN AND PATIENT

Q: Can such privilege be waived?
the privilege?
A:
1.
2.
3.
4.
5.
The action involves a civil case;

The relation of physician and patient
existed between the person claiming the
privilege or his legal representative and
the physician;
The advice or treatment given by him or
any information was acquired by the
physician while professionally attending
to the patient;
The information was necessary for the
performance of his professional duty; and
The disclosure of the information would
tend to blacken the reputation of the
patient.
334
A: Yes. The waiver may be made expressly or

impliedly. The waiver may be by a contract as in
medical or life insurance. When there is disclosure
by the patient of the information, there is
necessarily, a waiver. When the patient answers
questions on cross on matters which are
supposedly privileged, the waiver also exists. There
could also be waiver by operation of law (sec4, Rule
28 of the Rules of Court) (Riano, p.292).
Q: Is it necessary that the professional relationship
exists between the doctor and patient when the
communication was made?
A: Yes. It is essential that while the doctor was
attending to the patient for curative, preventive or
palliative treatment. It is not however necessary
that the relationship was created through the
voluntary act of the patient. The treatment may
have been given at the behest of another. (Ibid.)
REMEDIAL LAW TEAM:

EVIDENCE
Q: Aimee sought to offer as evidence the
testimony of Dr. Naval to prove that Bob is not the
illegitimate son of Yuring as the latter was sterile.
Bob objected to the admissibility of the said
testimony arguing that the same is covered by the
physician-patient privilege because the testimony
would blacken the reputation of Yuring. It was
alleged that Yuring became sterile because he
contracted gonorrhea. Aimee argues that Yuring is
long dead and, as such, the privilege may not be
invoked.
1. Is the testimony of Dr. Naval covered by
the physician-patient privilege?
2. Does the fact that Yuring is long dead bar
the application of the physician-patient
privilege?
privilege is claimed is not one duly authorized to

practice medicine, surgery obstetrics.
Xavier is simply Ysa's husband who wishes to testify
on a document executed by medical practitioners.
This does not fall within the claimed prohibition.
Neither can his testimony be considered a
circumvention of the prohibition because his
testimony cannot have the force and effect of the
testimony of the physician who examined the
patient and executed the report (Krohn v. CA, G.R.
No. 108854, June 14, 1994).
(4) PRIEST AND PENITENT
Q: What are the requisites for its application?
A:
A:
1.
1.
Yes. Yuring's sterility arose when he

contracted gonorrhea, a fact which most
assuredly blackens his reputation. In fact,
given that society holds virility at a
premium, sterility alone, without the
attendant embarrassment of contracting
a sexually-transmitted disease, would be
sufficient to blacken the reputation of any
patient (Gonzales v. CA, G.R. No. 117740,
Oct. 30, 1998).
2.
The confession must have been made to

the priest in his professional character
according to the discipline of the church
to which the priest or minister belongs
[Sec. 24(d)]; and
Communications
made
must
be
confidential and must be penitential in
character e.g., under the seal of the
confessional (Regalado, Vol. II, p. 752,
2008 ed.)

2.
No. The privilege of secrecy is not

abolished or terminated because of
death. The purpose of the law would be
thwarted and the policy intended to be
promoted thereby would be defeated, if
death removed the seal of secrecy, from
the communications and disclosures
which a patient should make to his
physician. After one has gone to his grave,
the living are not permitted to impair his
name and disgrace his memory by
dragging to light communications and
disclosures made under the seal of the
statute (Gonzales v. CA, G.R. No. 117740,
Oct. 30, 1998).
Q: Xavier filed a complaint for declaration of

nullity of his marriage with Ysa on the ground of
psychological incapacity. Xavier sought to testify
on a confidential psychiatric evaluation report on
his wife. Ysa objected to Xaviers testimony on the
ground that it violates the physician-patient
privilege. Is the objection of Ysa correct?
A: No. One of the requisites before the physicianpatient privilege may be invoked is that the person
against whom the privilege is claimed is one duly
authorized to practice medicine, surgery or
obstetrics. Here, the person against whom the
A: To allow and encourage individuals to fulfill their

religious, emotional or other needs by protecting
confidential disclosures to religious practitioners.
A: When the communication is not penitential in
character as when what is divulged is the plan to
commit a crime.
Q: What is the rationale behind the privilege
granted
to
communications
between
minister/priest and the penitent?
A: It is to allow and encourage individuals to fulfill
their religious, emotional or other needs by
protecting confidential disclosures to religious
practitioners (Peralta, Jr., p. 220, 2005 ed.).
(5) PUBLIC OFFICERS
Q: What are the requisites for its application?
A:
1.
2.
The communication must have been

made to a public officer;
The communication was given to the
public officer in official confidence; and

335

3.
The public interest would suffer by the

disclosure of the communication.
e. PARENTAL AND FILIAL PRIVILEGE RULE

Q: May a descendant be compelled to testify
against his parents in a criminal case?

A: If what is asked:
1. is useful evidence to vindicate the
innocence of an accused;
2. lessen the risk of false testimony;
3. is essential to the proper disposition of
the litigation; or
4. the benefit to be gained by a correct
disposition of the litigation was greater
than any injury which could inure to the
relation by a disclosure of the
information. (Francisco, p. 171, 1992 ed.)
Q: Is the privilege applicable to public officer in
general?
A: No. The privilege only applies to communications
to such officers who have a responsibility or duty to
investigate or to prevent public wrongs, and not to
officials in general (Francisco, p. 139, 1992 ed.).
Note: The court, not the witness, will determine the
necessity of regarding the communication as privileged
(Francisco, p. 143, 1992 ed.).
Q: What is the concept of executive privilege?

A: Certain types of information like military,
diplomatic and other national security matters may
be withheld from the public.
Q: Secretary of Fisheries Nenito Abesamis received
an invitation for questioning in a hearing from the
Senate of the Philippines regarding Fish Feeds
Scam. During the hearing, Abesamis didnt answer
the questions propounded to him by Senator
Renato Pamintuan claiming that his position
entitles him to invoke the executive privilege. Is
his contention correct?
A: No. As held in the case of Senate of the
Philippines vs. Ermita, (G.R. No. 169777, April 25,
2006). The Court upheld the doctrine of executive
privilege; it found the executive order partly
constitutionally defective, specifically Secs. 2(b) and
3 which required government officials below the
heads of executive departments to secure consent
from the President before appearing in
congressional hearings and investigations. The
Court noted that E.O. 464 covers persons which are
a misuse of the doctrine because the privilege is to
be properly invoked in relation to specific
categories of information and not categories of
persons. (Riano, 2009 ed., p. 298)
336
A: No, because no person may be compelled to

testify against his parents, other direct ascendants,
children or other direct descendants (Sec. 25).
A descendant may not be compelled to testify
against his parents notwithstanding Article 215 of
the Family Code which allows the compulsion of a
descendant to testify against his parents when such
testimony is indispensable in a crime against the
descendant or by one against the other. Any
conflict between the two provisions should be
resolved in favor of the Rules of Court provision
because although found in a substantive law, the
aforesaid Family Code provision is essentially
procedural in nature.
Alternative Answer:
Yes. Article 215 of the Family Code provides that
No descendant shall be compelled, in a criminal
case, to testify against his parents and
grandparents, except when such testimony is
indispensable in a crime against the descendant or
by one against the other. The parental and filial
privilege under the Rules of Court notwithstanding,
it is submitted that the Family Code is superior to
the former since a procedural rule of evidence
cannot impair a substantive law. Hence, a
descendant may be compelled to testify against his
parents if such testimony is indispensable in a crime
against the descendant or by one against the other.
Q: Which should be applied between Rule 130,
Sec. 25 of the Rules of Court and Art. 215 of the
Family Code in case of conflict?
A: It was suggested that the Rules of Court should
apply because it took effect in 1989 as compared
to the Family Code which took effect in 1988. It
may be argued that the former is procedural and
the latter is substantive; however, it was further
suggested that although the Family Code provision
is substantive, it is procedural in character. So, of
these two provisions, the Rules of Court,
promulgated by the Supreme Court, should
prevail.
OTHER PRIVILEGED MATTERS
Q: What other matters are considered privileged?
A:
1.
The guardian ad litem shall not testify in

any
proceeding
concerning
any
information, statement, or opinion
REMEDIAL LAW TEAM:

EVIDENCE
2.
3.
4.
5.
6.
7.
received from the child in the course of

serving as a guardian ad litem, unless the
court finds it necessary to promote the
best interests of the child [Sec. 5 (e), Rule
on Examination of a Child Witness];
Editors, publisher, or duly accredited
reporter of any newspaper, magazine or
periodical of general circulation cannot be
compelled to reveal the source of any
news report or any information given to
him in confidence, unless a court or a
House or a committee of Congress finds
that such revelation is demanded for
State security (R.A. 1477);
Voters may not be compelled to disclose
for whom they voted;
Trade secrets cannot be disclosed
although this is not absolute as the court
may compel disclosure where it is
indispensable for doing justice (Francisco,
p. 335, 1992 ed.);
Bank deposits are absolutely confidential
in nature except upon written permission
of the depositor, or in cases of
impeachment, or upon lawful order of a
competent court (R.A. 1405; Francisco, p.
335, 1992 ed.);
Conciliators and similar officials shall not
testify in any court or body regarding any
matter taken up at the conciliation
proceedings conducted by them (Art. 233,
Labor Code); and
Informers, for the protection of their
identity, cannot be compelled to testify
by the prosecutor when their testimony
would merely be cumulative and
corroborative (Herrera, Vol. V, p. 353,
1999 ed.).
4. EXAMINATION OF A WITNESSES
a. RIGHTS AND OBLIGATIONS OF A WITNESS

Q: What are the rights of a witness?
A:
1. To be protected from irrelevant,
improper, or insulting questions, and
from harsh or insulting demeanor;
2. Not to be detained longer than the
interests of justice require;
3. Not to be examined except only as to
matters pertinent to the issue;
4. Not to give an answer which will tend to
subject him to a penalty for an offense
unless otherwise provided by law (right
against self-incrimination)
Note: This refers to immunity statutes
wherein the witness is granted immunity
from criminal prosecution for offenses
admitted in his testimony, e.g. under Sec. 8,

R.A. 1379, the law providing for the
forfeiture of unlawfully acquired property;
and under P.D. 749, in prosecutions for
bribery and graft.
5.
Not to give an answer, which will tend to

degrade his reputation, unless it be to the
very fact at issue or to a fact from which
the fact in issue would be presumed. But
a witness must answer to the fact of his
previous final conviction for an offense
(Sec. 3).
Q: What are the classifications of immunity

statutes?
A:
Use Immunity
Prohibits the use of the
witness' compelled
testimony and its fruits in
any manner in connection
with the criminal
prosecution of the witness
Transactional Immunity
Grants immunity to the
witness from
prosecution for an
offense to which his
compelled testimony
relates
Q: May a witness refuse to answer questions

material to the inquiry?
A:
GR: A witness cannot refuse to answer
questions. The witness has the obligation to
answer questions, although his answer may
tend to establish a claim against him (Sec. 3).
XPN: A witness may validly refuse to answer
under the:
1. Right against self-incrimination if his
answer will tend to subject him to
punishment for an offense; or
2. Right against self-degradation if his
answer will have a direct tendency to
degrade his character.
XPN to the XPN: A witness may not invoke the
right against self-incrimination nor the right
against self-degradation if:
1. Such question is directed to the very fact
at issue or to a fact from which the fact at
issue would be presumed; or
2. If it refers to his previous final conviction
for an offense. (Regalado, Vol. II, pp. 841842, 2008 ed.)
Note: Right against self-incrimination pertains only to
natural persons and with respect to testimonial
compulsion only. This right may be invoked in all kinds
of proceedings where testimony is to be taken,
including investigation by legislative bodies.

337

The constitutional assurance of the right against selfincrimination is a prohibition against the use of
physical
or
moral
compulsion
to
extort
communications from the accused. It is simply a
prohibition against legal process to extract from the
accuseds own lips, against his will, admission of his
guilt (Ong v. Sandiganbayan & Office of the
Ombudsman, G.R. No. 126858, Sept. 16, 2005).
Q: Distinguish the right against self-incrimination

of the accused from that of an ordinary witness.
A:
Accused
Cannot be compelled to
testify or produce evidence
in the criminal case in which
he is the accused or one of
the accused, he cannot be
compelled to do so even by
subpoena or other process
or order of the court. He
cannot be required either
for the prosecution, for coaccused or even for himself.
Ordinary Witness
May be compelled to
testify by subpoena,
having only the right
to refuse to answer a
particular
incriminating question
at the time it is put to
him.
Q: May a witness refuse to take the witness stand?

A:
GR: A witness may not refuse to take the
witness stand.
XPNs:
1. An accused in a criminal case; or
2. In civil and administrative cases that
partake the nature of or analogous to a
criminal proceeding. As long as the suit is
criminal in nature, the party thereto can
decline to take the witness stand. It is not
the character of the suit involved but the
nature of the proceedings that controls
(Rosete, et. al. v. Lim, et. al., G.R. No.
136051, June 8, 2006).
Q: Mr. Talisman, a government official, was invited
by the Senate to be one of the resource persons in
the public hearing in one of its committees. When
Mr. Talisman declined the invitation, the Senate
directed its sergeant-at-arms to place him under
arrest for contempt. He was arrested and brought
to the Senate where he was detained. He filed a
petition for certiorari and prohibition alleging that
his right against self-incrimination was violated. Is
his contention correct?
A: No. The right against self-incrimination may only
be invoked when the incriminating question is
being asked, since he has no way of knowing in
advance the nature or effect of the questions to be
asked. That this right may possibly be violated or
abused is no ground for denying respondent senate
338
committees their power of inquiry. (In Re: Sabio,

G.R. No. 174340, Oct. 17, 2006).
Q: Is the right against self-incrimination available
to a witness who has been admitted to the
Witness Protection Program?
A: Any witness admitted into the program of the
Witness Protection, Security and Benefit Act cannot
refuse to testify or give evidence or produce books,
documents, records or writings necessary for the
prosecution of the offense or offenses for which he
has been admitted into the Program on the ground
of the constitutional right against self-incrimination
but he shall enjoy immunity from criminal
prosecution and cannot be subjected to any penalty
or forfeiture for any transaction, matter or thing
concerning his compelled testimony or books,
documents, records and writings produced (Sec. 14,
R.A. 6981).
Q: Who may be admitted to the Witness
Protection, Security and Benefit Program?
A: Any person who has witnessed or has knowledge
or information on the commission of a crime and
has testified or is testifying or about to testify
before any judicial or quasi-judicial body, or before
any investigating authority may be admitted
provided that:
1. the offense in which his testimony will be
used is a grave felony as defined under
the Revised Penal Code, or its equivalent
under special laws;
2. his testimony can be substantially
corroborated in its material points;
3. he or any member of his family within the
second civil degree of consanguinity or
affinity is subjected to threats to life or
bodily injury or there is a likelihood that
he will be killed, forced, intimidated,
harassed or corrupted to prevent him
from testifying, or to testify falsely, or
evasively, because or on account of his
testimony; and
4. he is not a law enforcement officer, even
if he would be testifying against the other
law enforcement officers. In such a case,
only the immediate members of his family
may avail themselves of the protection
provided for under the Act (Sec. 3, R.A.
6981).
Q: Who is a State witness?
A: Any person who has participated in the
commission of a crime and desires to be a witness
for the State, can apply and shall be admitted into
REMEDIAL LAW TEAM:

EVIDENCE
the Program if the following circumstances are
present:
1.
2.
3.
4.
5.
6.
A:
the offense in which his testimony will be

used is a grave felony as defined under
the Revised Penal Code or its equivalent
under special laws;
there is absolute necessity for his
testimony;
there is no other direct evidence available
for the proper prosecution of the offense
committed;
his testimony can be substantially
corroborated on its material points;
he does not appear to be most guilty; and
he has not at any time been convicted of
any crime involving moral turpitude.
Note: An accused discharged from an information or

criminal complaint by the court in order that he may
be a State Witness pursuant to Section 9 and 10 of
Rule 119 of the Revised Rules of Court may upon his
petition be admitted to the Program under R.A. 6981 if
he complies with the other requirements of the said
law. R.A. 6981 does not prevent the discharge of an
accused, so that he can be used as a State Witness
under Rule 119 of the Rules of Court (Sec. 10, R.A.
6981).
Q: Can a State witness be liable for contempt or

criminal prosecution?
A: Yes, if he fails or refuses to testify or to continue
to testify without just cause when lawfully obliged
to do so, he shall be prosecuted for contempt. If he
testifies falsely or evasively, he shall be liable to
prosecution for perjury. If a State witness fails or
refuses to testify, or testifies falsely or evasively, or
violates any condition accompanying such immunity
without just cause, as determined in a hearing by
the proper court, his immunity shall be removed
and he shall be subject to contempt or criminal
prosecution. Moreover, the enjoyment of all rights
and benefits under R.A. 6981 shall be deemed
terminated. The witness may, however, purge
himself of the contumacious acts by testifying at
any appropriate stage of the proceedings (Sec. 13,
R.A. 6981).
Q: What are the purposes of each stage of the

examination?
A:
1.
Direct examination To establish the case

of the proponent of the witness. The
purpose is to elicit facts about the clients
cause of action or defense.
2.
Cross examination As a rule, the scope

of this is not confined to the matters
stated by the witness in the direct
examination. (Riano, p. 318). The purpose
of which is:
a. To impeach the credibility of the
testimony;
b. To impeach the credibility of the
witness;
c. To elicit admissions; and
d. To clarify certain matters.
3.
Redirect examination The counsel may

elicit testimony to correct or repel any
b. ORDER IN THE EXAMINATION OF A WITNESS

(1) DIRECT EXAMINATION
(2) CROSS EXAMINATION
(3) RE-DIRECT EXAMINATION
(4) RE-CROSS EXAMINATION
Q: What is the order in the examination of an
individual witness?

339

wrong impression or inferences that may
have been created. It may also be an
opportunity to rehabilitate a witness
whose credibility has been damaged
(Riano, p.319). Its purposes are:
a. To afford opportunity to the witness
to explain or amplify his testimony
during cross-examination; and
b. To
explain
any
apparent
contradiction or inconsistency in his
statements.
XPN: Where the prosecution witness was

extensively cross-examined on the material points
and thereafter failed to appear and cannot be
produced despite a warrant of his arrest. (People vs
Gorospe, gr. 51513, May 15, 1984)
Q: What is the effect of death or absence of a
witness after the direct examination by the
proponent?
A:
1.
4.
Re-cross examination It is limited to the

new matters brought out on the redirect
examination of the witness and also on
such other matters as may be allowed by
the court in its discretion. The purposes
are:
a. To overcome the proponents
attempt to rehabilitate the witness;
and
b. To rebut damaging evidence brought
out during cross-examination.
2.
Q: What is the scope of a cross-examination?

A:
1. English rule Where a witness is called to
testify to a particular fact, he becomes a
witness for all purposes and may be fully
cross-examined upon all matters material
to the issue, the examination not being
confined to the matters inquired about in
the direct examination.
2.
American rule Cross-examination is

restricted to facts and circumstances
which are connected with the matters
that have been stated in the direct
examination of the witness.
Q: What rule is observed in our jurisdiction?
3.
If the witness was not cross-examined

because of causes attributable to the
cross-examining party and the witness
had always made himself available for
cross-examination, the direct testimony
of the witness shall remain on record and
cannot be stricken off because the crossexaminer is deemed to have waived his
right to cross-examine (Dela Paz v. IAC,
G.R. No. 75860, Sept. 17, 1987).
If the witness was partially crossexamined but died before the completion
of his cross-examination, his testimony on
direct may be stricken out but only with
respect to the testimony not covered by
the cross-examination (People v. Seeris,
G.R. No. L-48883, Aug. 6, 1980).
The absence of a witness is not sufficient
to warrant the striking out of his
testimony for failure to appear for further
cross-examination where the witness has
already been sufficiently cross-examined,
and the matter on which crossexamination is sought is not in
controversy (Ibid.).
Q: Is the party who offered the testimony of a

witness bound by such testimony?
A:
GR: Yes, he is bound by the testimony.
A:
GR: The English rule is observed in our
jurisdiction.
XPN: The American rule is observed with
respect to cross-examination of an accused or a
hostile witness.
XPN: When the witness is the:

1. adverse party;
2. hostile witness;
3. unwilling witness; or
4. a witness required by law to be presented
(forced witness)
Q: What is the Doctrine of Incomplete Testimony?

Q: Who is a hostile witness?
A:
GR: When cross-examination cannot be done or
completed due to causes attributable to the party
who offered the witness, the incomplete testimony
is rendered incompetent and should be stricken
from the record.
340
A: A witness may be considered as unwilling or

hostile only if so declared by the court upon
adequate showing of his adverse interest,
unjustified reluctance to testify or his having misled
the party into calling him to the witness stand (Sec.
12).
REMEDIAL LAW TEAM:

EVIDENCE
(5) RECALLING THE WITNESS
Q: What is the rule on recalling of a witness?
he has previously stated. It is not allowed (Sec. 10)

unless waived or when asking hypothetical
questions to an expert witness. It is not allowed in
any type of examination.
A:
GR: A witness cannot be recalled without leave
of court as the recalling of a witness is a matter
of judicial discretion. (Sec. 9, Rule 132)
XPN:
1. The examination has not been concluded;
2. If the recall of the witness was expressly
reserved by a party with the approval of
the court. In these two cases the recall of
a witness is a matter of right. (Regalado,
Vol. II, p. 848, 2008 ed.)
Note: Something more than the bare assertion of the
need to propound additional questions is essential
before the court's discretion may rightfully be
exercised to grant or deny recall. There must be a
satisfactory showing of some concrete, substantial
ground for the recall.
c. LEADING AND MISLEADING QUESTIONS

Q: What is leading question?
A: It is one which suggests to the witness the
answer which the examining party desires. It is not
allowed except:
1. On cross-examination;
2. On preliminary matters;
3. When there is difficulty in getting direct and
intelligible answers from a witness who is
ignorant, or a child of tender years, or is of
feeble mind or a deaf-mute;
4. To unwilling witness or hostile witness; or
5. Witness is an adverse party or an officer,
director, or managing agent of a public or
private corporation or of a partnership or
association which is an adverse party. (Sec.
10).
Q: Why are leading questions allowed during
cross-examination?
A: The witness is not the cross-examining partys
witness. He is expected to be adverse or hostile to
the cross-examiner. He is not expected to
cooperate.
Note: A question that merely suggests a subject
without suggesting an answer or a specific thing is not
a leading question. E.g. State whether anything
transpired between you and the defendants on the
17th of May 2008.
Q: What is misleading question?

A: It is one which assumes as true a fact not yet
testified to by the witness, or contrary to that which
d. METHODS OF IMPEACHMENT OF ADVERSE

PARTY
Q: What is impeachment of a witness?
A: It is a technique employed usually as part of
cross-examination to discredit a witness testimony
by attacking his credibility. (Riano, Evidence: A
Q: What is meant by impeachment of the adverse
party as a witness?
A: That the witness is the adverse party does not
necessarily mean that the calling party will not be
bound by the formers testimony. The fact remains
that it was at his instance that his adversary was
put on the witness stand. He is not bound only in
the sense that he may contradict him by
introducing other evidence to prove a state of facts
contrary to what the witness testifies. Unlike an
ordinary witness, the calling party may impeach an
adverse witness in all respects as if he had been
called by the adverse party, except by evidence of
his bad character. Under a rule permitting the
impeachment of an adverse witness, although the
calling party does not vouch for the witness
veracity, he is nonetheless bound by his testimony
if it is not contradicted or remains unrebutted (Gaw
v. Chua, G.R. No. 160855, April 16, 2008)
Q: What are the methods to impeach the adverse
partys witness?
A:
BY
CONTRADICT
ORY
EVIDENCE
Refers to the
prior
testimony of
the same
witness or
other
evidence
presented by
him in the
same case,
but not the
testimony of
other witness
BY EVIDENCE THAT
HIS
GENERAL
REPUTATION FOR
TRUTH, HONESTY,
OR INTEGRITY OF
THE WITNESS IS
BAD
Since the weight of
the witness
testimony depends
on his credibility, he
may be impeached
by impairing his
credibility by
showing his not
pleasing reputation
but only as regards
his reputation for
truth, honesty or
integrity

BY PRIOR
INCONSISTEN
T
STATEMENTS
LAYING THE
PREDICATE"
Refer to
statements,
oral or
documentary,
made by the
witness
sought to be
impeached on
occasions
other than
the trial in
which he is
testifying
341

Q: May a witness be impeached by evidence of
particular wrongful acts?
not merely to impeach him, the rule on laying the

predicate does not apply.
A:
Q: What are the elements of laying the predicate?

GR: A witness may not be impeached by
evidence of particular wrongful acts.
XPN: If it may be shown by the examination of
the witness, or the record of the judgment, that
he has been convicted of an offense (Sec. 11).
A:
1.
Q: What are the other modes of impeachment?

2.
A:
1.
2.
3.
4.
5.
By
showing
improbability
or
unreasonableness of testimony;
By showing bias, prejudice, and hostility;
By prior inconsistent acts or conduct;
By
showing
social
connections,
occupation and manner of living; or
By showing interest. (Francisco, pp. 480481, 1992 ed.)
Q: May a party impeach his own witness?

A: GR: A party may not impeach his own witness.
XPN: The witness is an:
1. unwilling or adverse witness so declared
by the court;
2. adverse party; or
3. officer of the adverse party who is a
juridical person (Sec. 12).
Note: In these instances, such witnesses may be
impeached by the party presenting him in all respects
as if he had been called by the adverse party, except
by evidence of his bad character.
e. HOW THE WITNESS IS IMPEACHED BY EVIDENCE

OF INCONSISTENT STATEMENTS (LAYING THE
PREDICATE)
Q: What is the procedure for impeaching a witness
by evidence of prior inconsistent statements?
Q: When is the rule on laying the predicate

inapplicable?
A: It is inapplicable if the prior inconsistent
statement appears in a deposition of the adverse
party, and not a mere witness, that adverse party
who testifies may be impeached without laying the
predicate as such prior statements are in the nature
of admissions of said adverse party. (Regalado, Vol.
II, p. 852, 2008 ed.)
Q: What is the purpose of laying the predicate?
A: The purpose of which is to allow the witness to
admit or deny the prior statement and afford him
an opportunity to explain the same. Noncompliance with the foundational elements for this
mode of impeachment will be a ground for an
objection based on improper impeachment. Over
a timely objection, extrinsic evidence of a prior
inconsistent statement without the required
foundation is not admissible. (ibid)
Q: Distinguish laying the predicate from laying the
foundation or basis.
A:
LAYING THE
PREDICATE
A:
1.
2.
3.
The witness must be confronted with

such statements with the circumstances
of the times, places and the persons
present in which they were made;
The witness must be asked whether he
made such statements, and if so, allowed
to explain them; and
If the statement be in writing it must be
shown to the witness before any question
is put to him concerning them (Sec. 13).
Note: This procedure is also called the rule on laying

the predicate. Where the previous statements of a
witness are offered as evidence of an admission, and
342
The alleged statements must be related

to
the
witness
including
the
circumstances of the times and places and
the persons present. If the statements are
in writing they must beshown to him;
He must be asked whether he made such
statements and also to explain them if he
admits making those statements (Riano,
p. 327).
Refers only to
impeachment of a
witness through
prior inconsistent
statements
LAYING THE FOUNDATION OR

BASIS
Refers to a situation where
evidence which is otherwise
incompetent will be introduced
into evidence because it falls
under the rules of exclusion.
E.g. under the best evidence
rule, a party must first prove
that a writing was duly executed
and that the original has been
lost or destroyed. Without first
laying the foundation,
secondary evidence will not be
admitted by the court.
REMEDIAL LAW TEAM:

EVIDENCE
f. EVIDENCE OF THE GOOD CHARACTER OF A
WITNESS
Q: Is evidence of good character of a witness
admissible?
Q: What are the exceptions to the res inter alios

acta rule (first branch)?
A:
1.
A:
2.
GR: No.
XPN: When such
impeached. (Sec. 14)
character
has
been
Q: When can evidence of bad moral character of

the accused be presented?
A: In a criminal case, the prosecution cannot prove
the bad moral character of the accused in its
evidence-in-chief. It can only do so in rebuttal (Sec.
51 [a][2], Rule 130, Rules of Court).
Q: When can evidence of good moral character of
the accused be presented?
A: The accused may prove his good moral character
when pertinent to the moral trait involved in the
offense charged (Sec.51 [a][1], Rule 130, Rules of
Court).
Q: When can evidence of character of the
offended party may be proved?
A: The good or bad moral character of the offended
party may be proved by the accused if it tends to
establish in any reasonable degree the probability
or improbability of the offense charged (Sec. 51
[a][3], Rule 130, Rules of Court). Also, not every
good or bad moral character of the offended party
may be proved under this provision but only those
which would establish the probability or
improbability of the offense charged.
5.ADMISSIONS AND CONFESSIONS
3.
Admission by a co-partner or agent (Sec.

29, Rule 130);
Admission by a co-conspirator (Sec. 30,
Rule 130); and
Admission by privies (Sec. 31, Rule 130)
Q: What does the rule prohibit? (2nd Branch of the

Res Inter Alios Acta Rule)
A: It prohibits the admission of the so-called
propensity evidence which is evidence that one
did or did not do a certain thing at one time is not
admissible to prove that he did or did not do the
same or similar thing at another time.
Evidence of similar acts or occurrences compels the
defendant to meet allegations that are not
mentioned in the complaint, confuses him in his
defense, raises a variety of relevant issues, and
diverts the attention of the court from the issues
immediately before it. Hence, the evidentiary rule
guards the practical inconvenience of trying
collateral issues and protracting the trial and
prevents surprise or other mischief prejudicial to
litigants. (Cruz v. CA, G.R. No. 126713, July 27,
1998).
b. ADMISSION BY A PARTY
Q: What is admission?
A: It is an act, declaration or omission of a party as
to a relevant fact which may be given in evidence
against him (Sec. 26, Rule 130). It is any statement
of fact made by a party against his interest or
unfavorable to the conclusion for which he
contends or is inconsistent with the facts alleged by
him. (Regalado, Vol. II, p. 754, 2008 ed.)
a. RES INTER ALIOS ACTA RULE

Q: What is the principle of res inter alios acta alteri
nocere non debet?
A: This principle literally means things done
between strangers ought not to injure those who
are not parties to it. It has two branches:
1. The rights of a party cannot be prejudiced
by an act, declaration, or omission of
another (Sec. 28).
2. Evidence that one did or did not do a
certain thing at one time is not admissible
to prove that he did or did not do the
same or similar thing at another time
(Sec. 34).
Note: Sections 26 and 32 of Rule 130 refer to

extrajudicial admissions.
Q: What are the requisites for an admission to be

admissible?
A:
1.
2.
3.
4.
Must involve matters of fact and not of

law;
Must be categorical and definite;
Must be knowingly and voluntarily made;
and
Must be adverse to the admitters
interests (Ibid.).

343

Q: What are the classifications of admissions?
admissions by him. (Estrada v. Desierto, G.R. Nos.

146710-15, Apr. 3, 2001)
A:
1.
2.
3.
4.
5.
Express it is a positive statement or act.

Implied it is one which may be inferred
from the declarations or acts of a person.
Judicial when made in the course of a
judicial proceeding.
Extrajudicial when made out of court or
even in a proceeding other than the one
under consideration. (Riano, Evidence: A
Adoptive It is a partys reaction to a
statement or action by another person
when it is reasonable to treat the partys
reaction as an admission of something
stated or implied by the other person. A
third persons statement becomes the
admission of the party embracing or
espousing it. Adoptive admission may
occur when a party:
a. Expressly agrees to or concurs in an
oral statement made by another;
b. Hears a statement and later on
essentially repeats it;
c. Utters an acceptance or builds upon
the assertion of another;
d. Replies by way of rebuttal to some
specific points raised by another but
ignores further points which he or
she has heard the other make; or
e. Reads and signs a written statement
made by another. (Republic v.
Kendrick Development Corp., G.R.
No. 149576, Aug. 8, 2006)
Q: What is meant by the principle of adoptive

admission?
A: It states that a party may, by his words or
conduct, voluntarily adopt or ratify anothers
statement. Where it appears that a party clearly
and unambiguously assented to or adopted the
statements of another, evidence of those
statements is admissible against him. (Riano,
ed.)
Note: One good example of adoptive admission is the
alleged admissions made by President Estrada when
his options had dwindled when, according to the
Angara Diary, the Armed Forces withdrew its support
from him as President and Commander-in-Chief. Thus,
Angara had to allegedly ask Senate President Pimentel
to advise Estrada to consider the option of dignified
exit or resignation. Estrada did not object to the
suggested option but simply said he could never leave
the country. According to the court, his silence on this
and other related suggestions can be taken as adoptive
344
Q: Distinguish admission from confession.

A:
ADMISSION
A statement of fact which
does not involve an
acknowledgment of guilt
or liability
May be made by third
persons and in certain
cases, are admissible
against a party
May be express or
implied
CONFESSION
A statement of fact which
involves an
acknowledgment of guilt
or liability
Can be made only by the
party himself and, in
some instances, are
admissible against his coaccused
Always express
Q: What is self-serving declaration?

A: It is one which has been made extrajudicially by
the party to favor his interest. It is not admissible in
evidence
because
they
are
inherently
untrustworthy, and would open the door to fraud
and fabrication of testimony.
Q: Distinguish declaration against interest from
admissions.
A:
DECLARATION AGAINST
INTEREST
Must have been made
against the proprietary or
pecuniary interest of the
party
Must have been made by a
person who is either
deceased or unable to
testify
ADMISSIONS
Need not be made
against the proprietary
or pecuniary interest
of the party
Made by a party
himself, and is a
primary evidence and
competent though he
be present in court and
ready to testify
Must be made ante litem

motam. (Regalado, Vol. II,
p. 755, 2008 ed.)
May be made at any

time. (Ibid)
Admissible even against

third persons.
Admissible only against

the party making the
admission.
It is an exception to the
hearsay rule. (Riano,
Evidence: A Restatement for
the Bar, p. 116, 2009 ed.)
It is NOT an exception
to the hearsay rule.
(Ibid.)
c. ADMISSION BY A THIRD PARTY

Q: What are admissions by a third person?
A: Admissions that is receivable in evidence against
the party who has expressly referred another to
REMEDIAL LAW TEAM:

EVIDENCE
him for information in regard to an uncertain or
disputed matter. But such a reference does not
make a person referred to an agent for the purpose
of making general admissions. The declarations are
not evidence, unless strictly within the subject
matter relation to which reference is made.
When the reference was not made to any particular
person but in general, the rule above-stated is not
applicable.
d. ADMISSION BY A CO-PARTNER OR AGENT
Q: What are the requisites of an admission by a copartner or agent?
A: No, except in the following cases:

1. If made in the presence of the coconspirator who expressly or impliedly
agreed therein;
2. Where the facts in said admission are
confirmed in the individual extrajudicial
confessions made by the co-conspirator
after their apprehension;
3. As a circumstance to determine the
credibility of the witness; or
4. As circumstantial evidence to show the
probability of the co-conspirators
participation in the offense. (Regalado,
Vol. II, p. 761, 2008 ed.)
A:
f. ADMISSION BY PRIVIES
1.
2.
3.
The act or declaration of a partner or

agent of the party must be within the
scope of his authority;
During the existence of the partnership or
agency; and
After the partnership or agency is shown
by evidence other than such act or
declaration (Sec. 29).
Q: What are the requisites of an admission by

privies?
A:
1.
2.
Q: Are admissions made after a partnership has

been dissolved fall within the exception?
3.
There must be privity between the party

and the declarant;
The declarant as predecessor-in-interest
made the declaration while holding the
title to the property; and
The admission relates to the property
(Sec. 31).
A:
GR: No, because such are made when the
partnership ceased to exist.
g. ADMISSION BY SILENCE
Q: When is there an admission by silence?
XPN: Where the admissions are made in

connection with the winding up of the
partnership affairs, said admissions are still
admissible as the partner is acting as an agent
of his co-partner in said winding up. (Regalado,
Vol. II, p. 759, 2008 ed.)
e. ADMISSION BY A CO-CONSPIRATOR
A: There is admission by silence when a party does

or says nothing when he hears or observes an act or
declaration made in his presence when such act or
declaration is such as naturally to call for action or
comment if not true, and when proper and possible
for him to do so. Such may be given in evidence
against him. (Sec. 32, Rule 130)
Q: What are the requisites of an admission by a coconspirator?
Q: What are the requisites of an admission by

silence?
A:
A:
1.
The declaration or act be made or done

during the existence of the conspiracy;
The declaration or act must relate to the
conspiracy; and
The conspiracy must be shown by
evidence other than the declaration or act
(evidence aliunde) (Sec. 30)
1.
Q: Are extrajudicial admissions made by a

conspirator after the conspiracy has terminated
and even before trial admissible against the coconspirator?
5.
6.
2.
3.
2.
3.
4.
He must have heard or observed the act

or declaration of the other person;
He must have had the opportunity to
deny it;
He must have understood the statement;
He must have an interest to object, such
that he would naturally have done so, if
the statement was not true;
The facts were within his knowledge; and
The fact admitted or the inference to be
drawn from his silence is material to the

345

issue (Sec. 32, Rule 130; People v.
Paragsa, G.R. No. L-44060, July 20, 1978).
Q: When is the rule on admission by silence
inapplicable?
A: The rule does not apply when a person is under
an official investigation. For the silence of a person
under a custodial investigation for the commission
of an offense has the right to remain silent and to
be informed of that right. (Sec. 12, Art. III, 1987
Constitution; Riano, Evidence: A Restatement for
the Bar, p. 126, 2009 ed.)
h. CONFESSIONS
Q: Define confession.
A: It is a categorical acknowledgment of guilt made
by an accused of the offense charged or of any
offense necessarily included therein, without any
exculpatory statement or explanation (Sec. 33;
Regalado, Vol. II, p. 764, 2008 ed.).
Note: If the accused admits having committed the act
in question but alleges a justification therefor, the
same is merely an admission. (Ibid.)
Q: What are the classifications of confession?

A:
1.
2.
Judicial confession is one made by the

accused before a court in which the case
is pending and in the course of legal
proceedings therein and, by itself, can
sustain conviction. It is governed by Secs.,
1, 3 & 4 of Rule 116.
Extrajudicial confession is one made in
any other place or occasion and cannot
sustain a conviction unless corroborated
by evidence of corpus delicti. It is
governed by Sec. 33 of Rule 130.
Q: What are the requisites for a confession to be

admissible as evidence?
A:
1.
2.
3.
4.
5.
346
It must involve an express and categorical

acknowledgement of guilt;
Facts admitted must be constitutive of a
criminal offense;
It must have been given voluntarily;
It must have been intelligently made, the
accused realizing the importance or legal
significance of his act; and
There must have been no violation of Sec,
12 (Miranda rights), Art. III (Bill of Rights)
of the 1987 Constitution (Regalado, Vol.
II, p. 765, 2008 ed.).
Q: May the extra-judicial confession of an accused

be admitted in evidence against his co-accused?
A:
GR: An extrajudicial confession is not admissible
against the confessors co-accused.
Said
confession is hearsay evidence and violative of
the res inter alios acta rule.
XPN: It may be admitted in evidence against his
co-accused in the following cases:
1. In case of implied acquiescence of the coaccused to the extrajudicial confession;
2. In case of interlocking confessions;
3. Where the accused admitted the facts
stated by the confessant after being
apprised of such confession;
4. If they are charged as co-conspirators of
the crime which was confessed by one of
the accused and said confession is used
only as corroborating evidence;
5. Where the confession is used as
circumstantial evidence to show the
probability of participation by the coconspirator;
6. When the confessant testified for his codefendant; and
7. Where the co-conspirators extrajudicial
confession is corroborated by other
evidence of record (Regalado, Vol. II, pp.
772-773, 2008 ed.).
Q: Atty. Franklin V. Tamargo and his eight-year-old
daughter, Gail, were shot and killed. A certain
Reynaldo Geron surfaced and executed an
affidavit stating that a certain Lucio Columna told
him that he was ordered to kill Atty. Tamargo by
Lloyd Antiporda. Columna during his detention
executed an extrajudicial confession where he
implicated Antiporda to the crime.
However, in a letter, Columna disowned the
contents of his affidavit and narrated how he had
been tortured until he signed the extrajudicial
confession. He stated that Antiporda had no
participation in the killings. The prosecutor
dismissed the charges. On appeal, DOJ, initially
reversed the dismissal but on MR subsequently
ordered the withdrawal of the information. On the
contrary, the RTC held that there was probable
cause to hold the Antiporda for trial. CA held that
the RTC judge gravely abused her discretion. Was
the extrajudicial confession of Columna admissible
as evidence?
A: Columnas extrajudicial confession affidavit was
not admissible as evidence against Antiporda in
view of the rule on res inter alios acta. The rule on
REMEDIAL LAW TEAM:

EVIDENCE
res inter alios acta provides that the rights of a
party cannot be prejudiced by an act, declaration,
or omission of another. Consequently, an
extrajudicial confession is binding only on the
confessant, is not admissible against his or her coaccused and is considered as hearsay against them.
An exception to the res inter alios acta rule is an
admission made by a conspirator under Sec. 30,
Rule 130 of the Rules of Court. This rule prescribes
that the act or declaration of the conspirator
relating to the conspiracy and during its existence
may be given in evidence against co-conspirators
provided that the conspiracy is shown by
independent evidence aside from the extrajudicial
confession.
Considering the paucity and inadmissibility of the
evidence presented against the Antiporda, it would
be unfair to hold them for trial (Tamargo v.
Awingan, G.R. No. 177727, Jan. 19, 2010).
Q: What is
confessions?
the
doctrine
of
interlocking
6.
7.
8.
9.
10.
Scheme;
Habit;
Custom;
Usage; and
The like (Sec. 34, Rule 130)
6. HEARSAY RULE
a. MEANING OF HEARSAY
Q: Define hearsay evidence.
A: Any evidence, whether oral or documentary, and
its probative value is not based on personal
knowledge of the witness but on the knowledge of
some other person not on the witness stand. It also
includes all assertions where, though derived from
personal knowledge, the adverse party is not given
an opportunity to cross-examine. (1999 Bar
Question)
Q: What are the elements of hearsay evidence?
A:
A: It states that extrajudicial confessions

independently made without collusion which are
identical with each other in their essential details
and corroborated by other evidence against the
persons implicated, are admissible to show the
probability of the latters actual participation in the
commission of the crime.
1.
2.
There must be an out-of-court statement;

and
That the statement made out of court, is
repeated and offered by the witness in
court to prove the truth of the matters
asserted by the statement. (Riano,
348, 2009 ed.)
i. SIMILAR ACTS AS EVIDENCE

Q: What do similar acts of evidence prohibit?
A: The rule prohibits the admission of the so-called
propensity evidence which is evidence that tends
to show that what a person has done at one time is
probative of the contention that he has done a
similar act at another time. Evidence of similar acts
or occurrences compels the defendant to meet
allegations that are not mentioned in the
complaint, confuses him in his defense, raises a
variety of relevant issues, and diverts the attention
of the court from the issues immediately before it.
(Cruz v. Court of Appeals, 293 SCRA 239).
Q: When is evidence of similar acts or previous
conduct admissible?
A: It is admissible where such evidence may prove:
1. Specific intent;
2. Knowledge;
3. Identity;
4. Plan;
5. System;
Q: What are the two concepts of hearsay

evidence?
A:
1.
2.
Any evidence, whether oral or

documentary, is hearsay if its probative
value is not based on the personal
knowledge of the witness but on the
knowledge of some other person not on
the witness stand. (Regalado, Vol. II, p.
776, 2008 ed.)
It also includes all assertions which have
not been subjected to cross-examination
by the adverse party at the trial in which
they are being offered against him.
(Herrera, Vol. V, p. 581, 1999 ed.)
b. REASON FOR EXCLUSION OF HEARSAY

EVIDENCE
Q: What is the hearsay rule?
A: It states that a witness can testify only to those
facts which he knows of based on his personal

347

knowledge or those which are derived from his own
perception. (2007 Bar Question)
Q: What is the rationale of excluding hearsay
evidence?
A: There is no opportunity for cross-examination
hence it is not subject to the test of truth.
Q: Brothers Billy & Luis were charged with murder
for killing Vhongs father. Vhong, however, was
charged with parricide for being a co-principal to
the crime. The two cases were tried jointly not
until the two brothers withdrew their not guilty
plea for murder. Thus, only Vhongs case was tried
on the merits. The prosecution offered in evidence
the affidavits of Billy & Luis containing their extrajudicial confessions. The two brothers were,
however, not presented by the prosecution on the
witness stand. Thereafter, the trial court convicted
the accused. Is the trial court correct?
A: No. The failure to present Billy and Luis gives the
affidavits the character of hearsay. It is hornbook
doctrine that unless the affiants themselves take
the witness stand to affirm the averments in their
affidavits must be excluded from the judicial
proceeding, being inadmissible hearsay. The
voluntary admission of an accused made
extrajudicially is not admissible in evidence against
his co-accused when the latter had not been given
an opportunity to hear him testify and crossexamine him (People v. Quidato, Jr., G.R. No.
117401. Oct. 1, 1998)
Q: Distinguish hearsay evidence and opinion
evidence. (2004 Bar Question)
A:
HEARSAY EVIDENCE
Consists of testimony
that is not based on
personal knowledge of
the person testifying
OPINION EVIDENCE
Expert evidence based on
the personal knowledge,
skill, experience or training
of the person testifying and
evidence of an ordinary
witness on limited matters
Q: Ben was charged with robbery and was arrested

by police operatives by virtue of a warrant of
arrest. In a press conference called by the police,
Ben admitted that he had robbed the victim. The
prosecution presented in evidence a newspaper
clipping of the report of the reporter who was
present during the press conference stating that
Ben admitted the robbery. Is the newspaper
clipping admissible in evidence against Ben?
statement may be shown where the fact that it is

made is relevant. Evidence as to the making of such
statement is not secondary but primary, for the
statement itself may constitute a fact in issue or be
circumstantially relevant as to the existence of such
fact (Gotesco Investment Corp. v. Chatto, G.R. No.
87584, June 16, 1992). (2003 Bar Question)
Q: What are the classifications of out-of-court
statements?
A:
1.
2.
3.
Hearsay Its probative force depends, in

whole or in part, on the competency and
credibility of some persons other that the
witness by whom it is sought to produce it
(Estrada v. Desierto, G.R. Nos. 146710-15
& 146738, Apr. 3, 2001). It is inadmissible
as evidence.
Non-hearsay This occurs when the
purpose for introducing the statement is
not to prove the truth of the facts
asserted therein but only the making of
the statements and are admissible in
evidence when the making of the
statement is relevant. These are the socalled independently relevant statements.
Exceptions to the hearsay rule Those
which are hearsay but are considered as
exceptions to the hearsay rule and are
therefore admissible. (Secs. 37-47, Rule
130)
Q: What are independently relevant statements?

A: These are statements which are relevant
independently of whether they are true or not.
They are neither hearsay nor an exception to the
hearsay rule as the purpose thereof is not to prove
the truth of the declaration or document (Estrada v.
Desierto, G.R. Nos. 146710-15 & 146738, Apr. 3,
2001).
They are relevant since they are the facts in issue or
are circumstantial evidence of the facts in issue.
Q: What are the classifications of independently
relevant statements?
A:
1.
2.
Those statements which are the very facts

in issue;
Those
statements
which
are
circumstantial evidence of the fact in
issue. It includes the following:
a. Statements of a person showing his
state of mind, that is, his mental
A: Yes. Regardless of the truth or falsity of a

statement, the hearsay rule does not apply and the
348
REMEDIAL LAW TEAM:

EVIDENCE
b.
c.
d.
e.
condition,
knowledge,
belief,
intention, ill-will and other emotions;
Statements of a person which show
his physical condition, as illness and
the like;
Statements of a person from which
an inference may be made as to the
state of mind of another, i.e., the
knowledge, belief, motive, good or
bad faith, etc. of the latter;
Statements which may identify the
date, place and person in question;
and
Statements showing the lack of
credibility of a witness.
c. EXCEPTIONS TO THE HEARSAY RULE

Q: What are the exceptions to the hearsay rule?
A:
1.
2.
3.
4.
Dying declaration;
Declaration against interest;
Act or declaration about pedigree;
Family reputation or tradition regarding
pedigree;
5. Common reputation;
6. Part of the res gestae;
7. Entries in the course of business;
8. Entries in official records;
9. Commercial lists and the like;
10. Learned treaties;
11. Testimony or deposition at a former trial.
5.
Q: What factors should be considered in

determining whether the declarant is conscious of
his impending death?
A:
1. Utterances;
2. Actual character and seriousness of his
wounds; and
3. By the declarants conduct and the
circumstances at the time he made the
declaration, whether he expected to
survive his injury.
Note: A dying declaration may be oral or written. If
oral, the witness who heard it may testify thereto
without the necessity of reproducing the word of the
decedent, if he is able to give the substance thereof.
An unsigned dying declaration may be used as a
memorandum by the witness who took it down
(People v. Boller, G.R. Nos. 144222-24, Apr. 3, 2002).
(2) DECLARATION AGAINST INTEREST (SEC. 38)

Q: What are the requisites for the admissibility of
declaration against interest?
A:
1.
2.
(1) DYING DECLARATION (SEC. 37)

Q: Define dying declaration.
3.
A: The ante mortem statements made by a person

after the mortal wound has been inflicted under the
belief that the death is certain, stating the fact
concerning the cause of and the circumstances
surrounding the attack.
4.
Q: What are the requisites of dying declaration to

be considered as an exception to the hearsay rule?
6.
A:
1. The declaration is one made by a dying person;
2. The declaration was made by said dying person
under a consciousness of his impending death;
3. The declaration refers to the cause and
circumstances surrounding the death of the
declarant and not of anyone else;
4. The declaration is offered in a case wherein
the declarants death is the subject of the
inquiry; and
The declarant is competent as a witness

had he survived. (Geraldo v. People, G.R.
No. 173608, Nov. 20, 2008; Riano,
370, 2009 ed.)
5.
That the declaration is one made by a

dying person;
That the declaration was made by said
dying person under a consciousness of his
imminent death;
That the declaration refers to the cause
and circumstances surrounding the death
of the declarant and not of anyone else;
That the declaration is offered in a case
where the declarants death is the subject
of the inquiry;
The delcarant is competent as a witness
had he survived;
The declarant should have died. (Riano,
p.379)
Q: Distinguish declaration against interest from

admission against interest.
A:
DECLARATION AGAINST
INTEREST
Made by a person who is
neither a party nor in
privity with a party to the
suit and are secondary
evidence but constitute an
ADMISSION AGAINST
INTEREST
Made by a party to a
litigation or by one in
privity with or identified
in legal interest with
such party.

349

Q: What does pedigree include?
exception to the hearsay

rule.
Admissible only when the
declarant is unavailable as
a witness.
Admissible whether or
not the declarant is
available as a witness.
Q: Harry Pattinson was charged with the crime of

kidnapping of Edward Radcliffe. One of the
testimonies presented by the prosecution was that
of Emma Granger, she testified that Edward
confided to her that he and Harrys wife Bella
were having an affair. Undoubtedly, his wife's
infidelity was ample reason for Harry to
contemplate revenge. Consequently, the trial
court convicted Harry based on the testimonies of
the witnesses. Was the testimony of Emma
admissible as evidence?
A: Yes. Edwards revelation to Emma regarding his
illicit relationship with Harrys wife is admissible in
evidence, pursuant to Section 38, Rule 130 of the
Revised Rules on Evidence. With the deletion of the
phrase "pecuniary or moral interest" from the
present provision, it is safe to assume that
"declaration against interest" has been expanded to
include all kinds of interest, that is, pecuniary,
proprietary, moral or even penal. Hector having
been missing since his abduction, cannot be called
upon to testify. His confession to Emma, definitely a
declaration against his own interest, since his affair
with Bella was a crime, is admissible in evidence
because no sane person will be presumed to tell a
falsehood to his own detriment. (People v.
Theodore Bernal, G.R. No. 113685, June 19, 1997)
(3) ACT OR DECLARATION ABOUT PEDIGREE (SEC.
39)
A: It includes:
1. Relationship;
2. Family genealogy;
3. Birth;
4. Marriage;
5. Death;
6. Dates when and the place where these
facts occurred;
7. Names of the relatives; and
8. Facts of family history intimately
connected with pedigree. (Sec. 39, Rule
130)
(4) FAMILY REPUTATION OR TRADITION
REGARDING PEDIGREE (SEC. 40)
family reputation or tradition regarding pedigree?
A:
1.
2.
3.
Q: What are the ways to establish family

reputation or tradition in respect to ones
pedigree?
A:
1.

acts or declarations about pedigree?
2.
A:
1.
2.
3.
4.
5.
350
The declarant is dead or unable to testify;

The pedigree should be in issue;
The declarant must be a relative of the
person whose pedigree is in question;
The declaration must be made before the
controversy occurred; and
The relationship between the declarant
and the person whose pedigree is in
question must be shown by evidence
other than such act or declaration.
(Tecson v. COMELEC, G.R. No. 161434,
Mar. 3, 2004)
There is controversy in respect to the

pedigree of any member of the family;
The reputation or tradition of the
pedigree of the person concerned existed
previous to the controversy; and
The witness testifying to the reputation or
tradition regarding pedigree of the person
concerned must be a member of the
family of said person either by
consanguinity or affinity.
Through testimony in open court of a

witness who must be a member of the
family either by consanguinity or affinity;
Through entries in:
a. Family bible;
b. Family books or charts;
c. Engravings on rings; or
d. Family portraits and the like.
Q: Distinguish Sec. 39 from Sec. 40.

A:
SECTION 39
Act or declaration about
pedigree
Witness need not be a
member of the family
SECTION 40
Family reputation or
tradition
regarding
pedigree
Witness is a member of
the family
REMEDIAL LAW TEAM:

EVIDENCE
Relation of the declarant

and the person subject of
the inquiry must be
established
by
independent evidence
The witness is the one to

whom the fact relates, it
is not necessary for him
to
establish
by
independent evidence his
relationship to the family
(Francisco, p. 292, 1992
ed.)
Testimony is about what

declarant, who is dead or
unable to testify, has said
concerning the pedigree
of the family
Testimony is about family

reputation or tradition
covering
matters
of
pedigree
Q: What are the reasons for the admissibility of

common reputation?
A:
1.
2.
Necessity arising from the inherent

difficulty of obtaining any other evidence
than that in the nature of common
reputation; and
Trustworthiness of the evidence arising
from:
a.
(5) COMMON REPUTATION (SEC. 41)

b.
Q: What is common reputation?

A: It is the definite opinion of the community in
which the fact to be proved is known or exists. It
means the general or substantially undivided
reputation, as distinguished from a partial or
qualified one, although it need not be unanimous.
Note: As a general rule, the reputation of a person
should be that existing in the place of his residence; it
may also be that existing in the place where he is best
known. (Ibid.)

common reputation?
A:
1.
2.
3.
4.
The facts must be of public or general

interest and more than 30 years old;
The common reputation must have been
ancient, i.e. 30 years old;
The reputation must have been one
formed among a class of persons who
were in a position to have some sources
of information and to contribute
intelligently to the formation of the
opinion; and
The common reputation must have been
existing previous to the controversy.
(6) RES GESTAE (SEC.42)

Q: What is res gestae?
A: It is a Latin phrase which literally means "things
done." As an exception to the hearsay rule, it refers
to those exclamations and statements by either the
participants, victims, or spectators to a crime
immediately before, during or immediately after
the commission of the crime, when the
circumstances are such that the statements were
made as spontaneous reactions or utterances
inspired by the excitement of the occasion, and
there was no opportunity for the declarant to
deliberate and fabricate a false statement (Capila v.
People, G.R. No. 146161, July 17, 2006).
res gestae?
A:
1.
2.
Q: What can
reputation?
be
established
by
common
A:
1.
2.
3.
4.
Matters of public interest more than 30

years old;
Matters of general interest more than 30
years old;
Matters respecting marriage or moral
character and related facts;
Individual moral character.
The supposition that the public is

conversant with the subject to be
proved because of their general
interest therein; and
The fact that the falsity or error of
such evidence could be exposed or
corrected by other testimony since
the public are interested in the
same. (Francisco, pp. 296-297, 1992
ed.)
3.
The principal act or the res gestae is a

startling occurrence;
The statement is spontaneous or was
made before the declarant had time to
contrive or devise, and the statement is
made during the occurrence or
immediately prior or subsequent thereto;
and
The statement made must concern the
occurrence in question and its
immediately attending circumstances
(Capila v. People, G.R. No. 146161, July
17, 2006).

351

Q: Distinguish res gestae from dying declaration.
iii.
A:
iv.
RES GESTAE
It is the event itself
which speaks
May be made by the

killer after or during the
killing or that of a third
person
May precede, or
accompany or follow the
principal act
Justification is the
spontaneity of the
statement
DYING DECLARATION
A sense of impending
death takes the place of
an oath and the law
regards the declarant as
testifying
2.
Requisites:
There must be a startling occurrence;
The statement must relate to the
circumstances of the startling
occurrence;
iii.
The statement must be spontaneous.
i.
ii.
Q: What is the reason for the rule on res gestae?

A: The reason for the rule is human experience. It
has been shown that under certain external
circumstances of physical or mental shock, the state
of nervous excitement which occurs in a spectator
may produce a spontaneous and sincere response
to the actual sensations and perceptions produced
by the external shock.
As the statements or utterances are made under
the immediate and uncontrolled domination of the
senses, rather than reason and reflection, such
statements or utterances may be taken as
expressing the real belief of the speaker as to the
facts he just observed. The spontaneity of the
declaration is such that the declaration itself may
be regarded as the event speaking through the
declarant rather than the declarant speaking for
himself (Ibid.).
Q: Anthony raped Melissa. After raping Melissa,

Anthony fled. Melissa then rushed to the police
station and told Police Officer Gilbert what had
happened. Anhthony was charged with rape.
During the trial, Melissa can no longer be located.
If the prosecution presents Gilbert to testify on
what Melissa had told him, would such testimony
of Gilbert be hearsay? Explain.
A: No. It is part of res gestae. It is also an
independently relevant statement. Buloy testified
based on his personal knowledge; that is, he was
testifying to the fact that Reyna told him that she
was raped by Sam and not to the truth of Reynas
statement (People v. Gaddi, G.R. No. 74065, Feb.
27, 1989). (2005 Bar Question)
(7) ENTRIES IN THE ORDINARY COURSE OF
BUSINESS/SHOP-BOOK RULE (SEC. 43)
Q: What are the two types of res gestae?

A:
1.
Verbal Acts Utterances which

accompany some act or conduct to which
it is desired to give legal effect. The res
gestae is the equivocal act material to the
issue, and giving it legal significance. It
must be contemporaneous with or must
accompany the equivocal act in order to
be admissible.
Requisites:
i. The fact or occurrence characterized
must be equivocal;
ii. The verbal acts must characterize or
explain the equivocal act;
352
Spontaneous Statements - Statements or

exclamations made immediately after
some exciting occasion by a participant or
spectator and asserting the circumstances
of that occasion as it is observed by him.
The res gestae is the startling occurrence.
It may be prior to or simultaneously with,
or subsequent with the startling
occurrence.
Can be made by the

victim only
Confined to matters
occurring after the
homicidal act
Justification is the
trustworthiness, being
given by the person who
was aware of his
impending death
The equivocal act must be relevant

to the issue; and
The
verbal
acts
must
be
contemporaneous with the equivocal
act.

entries in the course of business?
A:
1.
2.
3.
4.
The person who made the entry must be

dead or unable to testify;
The entries were made at or near the
time of the transactions to which they
refer;
The entrant was in a position to know the
facts stated in the entries;
The entries were made in his professional
capacity or in the performance of a duty,
whether legal, contractual, moral or
religious; and
REMEDIAL LAW TEAM:

EVIDENCE
5.
The entries were made in the ordinary or

regular course of business or duty.
(Regalado, Vol. II, pp. 791-792, 2008 ed.)
Q: How is regularity of the entries proved?

A: It may be proved by the form in which they
appear as entries in the books/ledgers. There is no
need to present for testimony the clerk who
manually made the entries. The person who
supervised such clerk is competent to testify that:
1. The account was prepared under his
supervision; and
2. That the entries were regularly entered in
the ordinary course of business
(Regalado, Vol. II, p. 792, 2008 ed.).
Q: Is there an instance where business entries may
be admitted in evidence even when the declarant
is alive?
A: The entries will not be admitted as an exception
to the hearsay rule, but they may nevertheless be
availed of by said entrant as a memorandum to
refresh his memory while testifying on the
transactions reflected therein. (Ibid.)
Q: Should entries in the police blotter be given

probative value?
A: No, as they are not conclusive evidence of the
truth of the contents but merely of the fact that
they were recorded. (People v. Cabrera, Jr., G.R. No.
138266, Apr. 30, 2003)
Q: Distinguish entries in the course of business
from entries in official record.
A:
ENTRIES IN THE COURSE
OF BUSINESS
It is sufficient that the
entrant made the entries
pursuant to a duty be it
legal, contractual, moral
or religious.
Entrant must be dead or
unable to testify.

commercial list and the like?
A:
1.
2.
Q: What is an official record?

entries in official records?
3.
4.
A:
1.
2.
3.
Entries were made by a public officer in

the performance of his duties or by a
person in the performance of a duty
especially enjoined by law;
Entrant had personal knowledge of the
facts stated by him or such facts were
acquired by him from reports made by
persons under a legal duty to submit the
same; and
Such entries were duly entered in a
regular manner in the official records.
(Ibid.)
Q: What is the probative value of these entries?

A: It is only prima facie evidence of the fact stated
therein.
Statements of matters of interest to

persons engaged in an occupation;
Statements must be contained in a list,
register, periodical, or other published
compilation;
Compilation is published for use by
persons engaged in that occupation; and
Such is generally relied upon by them.
Q: What are the examples of commercial lists and

the like?
A:
1.
No such requirement
(9) COMMERCIAL LIST AND THE LIKE (SEC. 45)
(8) ENTRIES IN OFFICIAL RECORDS (SEC. 44)
A: It may be a:
1. Register;
2. Cash book; or
3. An official return or certificate (Regalado,
Vol. II, p. 793, 2008 ed.)
ENTRIES IN OFFICIAL
RECORD
The entrant, if a private
individual, must have
acted pursuant to a
specific legal duty
specially enjoined by law.
2.
3.
4.
Trade journals reporting current prices

and other market data;
Mortality tables compiled for life
insurance;
Abstracts of title compiled by reputable
title examining institutions or individuals;
or
Business directories, animal pedigree
registers, and the like. (Francisco, p. 339,
1992 ed.)
(10) LEARNED TREATIES (SEC. 46)
Q: When are learned treatises admissible?

A:
1.
When the court can take judicial notice of

them; or

353

2.
When an expert witness testifies that the

author of such is recognized as expert in
that profession. (Sec. 46)
relates and who possesses special knowledge on

questions on which he proposes special knowledge
to express an opinion. (Regalado, Vol. II, p. 802,
2008 ed.)
Q: What are the examples of learned treatises?

A:
1.
2.
3.
Historical works;
Scientific treatises; or
Law (Francisco, pp. 340-341, 1992 ed.)
(11) TESTIMONY OR DEPOSITION AT A FORMER

PROCEEDING (SEC. 47)
testimony or deposition at a former proceeding?
A:
1. Witness whose testimony is offered in
evidence is dead or unable to testify;
2. The testimony or deposition was given in
a former case or proceeding, judicial or
administrative, between the same parties
or those representing the same interests;
3. Former case involved the same subject as
that in the present case, although on
different causes of action;
4. Issue testified to by the witness in the
former trial is the same issue involved in
the present case; and
5. Adverse party had an opportunity to
cross-examine the witness in the former
case.
Q: What are the grounds, aside from death, which
make a witness unable to testify in a subsequent
case?
A:
1.
2.
3.
4.
Insanity or mental incapacity or the

former witness loss of memory through
old age or disease;
Physical disability by reason of sickness or
advanced age;
The fact that the witness has been kept
away by contrivance of the opposite
party; or
The fact that after diligent search the
former witness cannot be found.
(Francisco, p. 342, 1992 ed.)
7. OPINION RULE
a. OPINION OF EXPERT WITNESS
Q: Who is an expert witness?

A: He is one who belongs to the profession or
calling to which the subject matter of the inquiry
354
Q: Is there a definite standard of determining the

degree of skill or knowledge that a witness must
possess in order to testify as an expert?
A: None. It is sufficient that the following factors
are present:
1. Training and education;
2. Particularity, first-hand familiarity with
the facts of the case; and
3. Presentation of authorities or standards
upon which his opinion is based. (People
v. Abriol, G.R. No. 123137, Oct. 17, 2001)
Q: What is expert evidence?
A: It is the testimony of a person (expert witness)
possessing knowledge not usually acquired by other
persons in a particular subject matter.
Note: It is admissible when the matter to be
established requires expertise and the witness have
been qualified as an expert.
Q: What is the test in determining whether there

is need to resort to expert evidence?
A: The test is whether the opinion called for will aid
the court in resolving an issue.
b. OPINION OF ORDINARY WITNESS
Q: What is an opinion?
A: It is an inference or conclusion based or drawn
from the facts established.
Q: Is the opinion of a witness admissible in
evidence?
A:
GR: The opinion of a witness is not admissible.
The witness must testify to facts within their
knowledge and may not state their opinion
even on their examination.
XPN:
1. Opinion of an expert witness (Sec.
49);
2. Opinion of an ordinary witness as to:
a. The identity of a person about
whom he has adequate
knowledge;
b. A handwriting with which he
has sufficient familiarity;
REMEDIAL LAW TEAM:

EVIDENCE
c.
d.
The mental sanity of a person

with whom he is sufficiently
acquainted; and
The witness impressions of the
emotion, behavior, condition or
appearance of a person (Sec.
50).
8. CHARACTER EVIDENCE
a. CRIMINAL CASES
b. CIVIL CASES
Q: When may character evidence be admitted in

evidence?
is pertinent to the issue of character

involved in the case (Sec. 51).
Note: As to witnesses to both criminal and civil actions,
the bad moral character of a witness may always be
proved by either party but not evidence of his good
moral character, unless such character has been
impeached (Sec. 14, Rule 132).
Q: What are the requirements provided by the

rules with respect to the nature or substance of
the character evidence which may be admissible?
A:
1.
A:
GR: Character evidence is not admissible in
evidence.
XPN:
1. Criminal cases:
a. The accused may prove his good
moral character which is pertinent to
the moral trait involved in the
offense charged;
b. The prosecution may not prove the
bad moral character of the accused
which is pertinent to the moral trait
involved in the offense charged,
unless in rebuttal when the latter
opens the issue by introducing
evidence of his good moral
character; or
c. As to the offended party, his good or
bad moral character may be proved
as long as it tends to establish in any
reasonable degree the probability or
improbability of the offense charged.
XPN to the XPN:
i. In rebuttal, proof of the bad
character of the victim is not
admissible if the crime was
committed through treachery and
premeditation; and
ii. In rape cases, the evidence of
complainants
past
sexual
conduct, or reputation or opinion
thereof shall not be admitted
unless and only to the extent that
the court finds that such evidence
is material and relevant to the
case (Rape shield, Sec. 6, R.A.
8505).
2.
Civil cases The moral character of either

party thereto cannot be proved unless it
2.
3.
With respect to the accused, such

character evidence must be pertinent to
the moral trait involved in the offense
charged.
With respect to the offended person, it is
sufficient that such character evidence
may establish in any reasonable degree
the probability or improbability of the
offense charged.
With respect to the witness, such
character evidence must refer to his
general reputation for truth, honesty or
integrity, that is affecting his credibility.
9. RULE ON EXAMINATION OF A CHILD WITNESS

a. APPLICABILITY OF THE RULE
Q: In what cases is the Rule on Examination of a
Child Witness applicable?
A: It shall apply in all criminal and non-criminal
proceedings involving child witnesses. This Rule
shall govern the examination of child witnesses who
are victims of crime, accused of a crime, and
witnesses of a crime (Sec. 1).
Q: When are the provisions of the Rules of Court
applicable in the examination of a child witness?
A: The provisions of the Rules of Court on
deposition, conditional examination of witnesses,
and evidence shall be applied in a suppletory
character (Sec. 32).
b. MEANING OF CHILD WITNESS
Q: Who is a child witness?
A: A child witness is any person who at the time of
giving testimony is below the age of 18 years. In
child abuse cases, a child includes one over 18 years
but is found by the court as unable to fully take care
of himself or protect himself from abuse, neglect,

355

cruelty, exploitation, or discrimination because of a
physical or mental disability or condition [Sec. 4(a)].
Q: What is the difference between a child witness
and an ordinary witness?
A:
CHILD WITNESS
Only the judge is allowed
to ask questions to a
child
witness during
preliminary examination
Testimony in a narrative
form is allowed
Leading questions are
allowed
The child witness is
assisted by a support
person
ORDINARY WITNESS
Opposing counsels are
allowed to ask questions
during preliminary
examination
Testimony in a narrative
form is not allowed
Leading questions are
generally not allowed
An ordinary witness is not
assisted by a support
person
Q: Who is a facilitator?
A: He is a person appointed by the court to pose
questions to a child. [Sec. 4(c)] The facilitator may
be a child psychologist, psychiatrist, social worker,
guidance counselor, teacher, religious leader,
parent or relative.
Q: Who is a support person?
A: He is a person chosen by the child to accompany
him to testify at or attend a judicial proceeding or
deposition to provide emotional support for him.
[Sec. 4(f)]
Q: What is an in-depth investigative interview or
disclosure interview?
A: It is an inquiry or proceeding conducted by duly
trained members of a multidisciplinary team or
representatives of law enforcement or child
protective services for the purpose of determining
whether child abuse has been committed. [Sec. 4(i)]
Q: When may the court appoint a guardian ad
litem for a child?
A: The court may appoint a guardian ad litem for a
child who is a victim of, accused of, or a witness to a
crime to promote the best interests of the child. In
making the appointment, the court shall consider
the background of the guardian ad litem and his
familiarity with the judicial process, social service
programs, and child development, giving
preference to the parents of the child, if qualified
[Sec. 5(a)].
Q: What determines the best interests of the
child?
356
A: It is determined by the totality of the

circumstances and conditions as are most congenial
to the survival, protection and feelings of security
of the child and most encouraging to his physical,
psychological and emotional development. It also
means the least detrimental available alternative
for safeguarding the growth and development of
the child [Sec. 4(g)].
c. COMPETENCY OF A CHILD WITNESS
Q: What is the rule on the competency of a child
witness?
A: Every child is presumed qualified to be a witness.
However, the court shall conduct a competency
examination of a child, motu proprio or on motion
of a party, when it finds that substantial doubt
exists regarding the ability of the child to perceive,
remember, communicate, distinguish truth from
falsehood, or appreciate the duty to tell the truth in
court.
Q: What must a party seeking competency
examination present?
A: He must present proof of necessity of
competency examination. The age of the child by
itself is not a sufficient basis for a competency
examination. [Sec. 6(a)]
Q: Where does the burden of proof lie?
A: It lies on the party challenging the competency
of the child [Sec. 6(b)].
Q: Who are the persons allowed at a competency
examination?
A: Only the following are allowed at a competency
examination:
1. The judge and necessary court personnel;
2. The counsel for the parties;
3. The guardian ad litem, if any;
4. One or more support persons for the
child; and
5. The defendant, unless the court
determines that competence can be fully
evaluated in his absence. [Sec. 6(c)]
Q: Who shall
examination?
conduct
the
competency
A: It shall be conducted only by the judge but the

counsel for the parties can submit questions to the
judge that he may, in his discretion, ask the child.
[Sec. 6(d)]
REMEDIAL LAW TEAM:

EVIDENCE
Q: What are the appropriate questions to be asked
to the child during competency examination?
A: The questions to be asked are:
1. Appropriate
to
the
age
and
developmental level of the child;
2. Not related to the issues at trial; and
3. Shall focus on the ability of the child to
remember, communicate, distinguish
between truth and falsehood, and
appreciate the duty to testify truthfully.
[Sec. 6(e)]
Q: What is meant by developmental level?
A: It refers to the specific growth phase in which
most individuals are expected to behave and
function in relation to the advancement of their
physical, socio-emotional, cognitive, and moral
abilities. [Sec. 4(h)]
Q: What is the duty of the court regarding the
competency of the child?
A: It has the duty of continuously assessing the
competence of the child throughout his testimony.
[Sec. 6(f)]
Q: In case of a child witness, what should the court
consider in determining his competency?
A: The court must consider his capacity:
1. At the time the fact to be testified to
occurred such that he could receive
correct impressions thereof;
2. To comprehend the obligation of an oath;
and
3. To relate those facts truly at the time he
is offered as a witness. The court should
take into account his capacity for
observation,
recollection
and
communication. (Regalado, Vol. II, pp.
739-740, 2008 ed.)
d. EXAMINATION OF A CHILD WITNESS
Q: Does the testimony of child witness need
corroboration?
A: Corroboration shall not be required of a
testimony of a child. His testimony, if credible by
itself, shall be sufficient to support a finding of fact,
conclusion, or judgment subject to the standard of
proof required in criminal and non-criminal cases
(Sec. 22).
Note: The straightforward testimony of a child witness
can be given full weight and credit. When a child says
that she has been raped, she says in effect all that is
necessary to show that rape has indeed been

committed. The silence of a rape victim or failure to
immediately disclose her plight to the authorities is no
proof at all that the charges are baseless or fabricated.
More often than not, a victim would bear the ignominy
and pain in private rather than reveal her shame to the
whole world or risk the danger of physical harm by the
rapist (People v. Pioquinto, G.R. No. 168326, Apr. 11,
2007).
Q: Boy was charged with rape of his 10 year old

stepdaughter, Angie, to which he pleaded not
guilty. For the prosecution, it presented as
witnesses the victim and a Medico Legal
Certificate issued by Dr. Luna, the results of which
showed that the victim suffered hymenal
laceration. For the defense, he vehemently denied
the charges and presented an alibi. RTC, affirmed
with modification by the CA convicted the
accused. Should the testimony of the child be
given full weight and credit?
A: Testimonies of child victims are given full weight
and credit, for when a woman or a girl-child says
that she has been raped; she says in effect all that is
necessary to show that rape was indeed
committed. Youth and immaturity are generally
badges of truth and sincerity.
Angies testimony that she was raped by the
accused is highly trustworthy not only because of
the fact that she was merely a young lass below
twelve years of age at the time she testified before
the trial court who would not concoct a sordid tale
against his stepfather whom she endearingly calls
papa but more so because of her candid, positive,
direct, and consistent narration of how her
stepfather sexually abused her.
She vividly recounted that she was awakened one
night when she felt someone touching her body.
Angie identified the aggressor as the accused who
immediately covered her mouth with his hand
(People v. Sobusa, G.R. No. 181083, Jan. 21, 2010).
Q: When may the public be excluded from the
courtroom in which a child testifies?
A: When a child testifies, the court may order the
exclusion from the courtroom of all persons,
including members of the press, who do not have a
direct interest in the case. Such an order may be
made to protect the right to privacy of the child or
if the court determines on the record that requiring
the child to testify in open court would cause
psychological harm to him, hinder the
ascertainment of truth, or result in his inability to
effectively communicate due to embarrassment,
fear, or timidity.

357

The court may, motu proprio, exclude the public
from the courtroom if the evidence to be produced
during trial is of such character as to be offensive to
decency or public morals. The court may also, on
motion of the accused, exclude the public from
trial, except court personnel and the counsel of the
parties (Sec. 23).
e. LIVE-LINK TV TESTIMONY OF A CHILD WITNESS
Q: When may the court order that the testimony
of the child be taken by live-link television?
Explain.
A: The court may order that the testimony of the
child be taken by live-link television if there is a
substantial likelihood that the child would suffer
trauma from testifying in the presence of the
accused, his counsel or the prosecutor as the case
may be. The trauma must be of a kind which would
impair the completeness or truthfulness of the
testimony of the child (Sec. 25). (2005 Bar
Question)
Q: Who are the persons allowed to preside and be

present in the videotaped deposition?
A: The judge shall preside at the videotaped
deposition of a child. Objections to deposition
testimony or evidence, or parts thereof, and the
grounds for the objection shall be stated and shall
be ruled upon at the time of the taking of the
deposition. The other persons who may be
permitted to be present at the proceeding are:
(1) The prosecutor;
(2) The defense counsel;
(3) The guardian ad litem;
(4) The accused, subject to sub-section (e);
(5) Other persons whose presence is
determined by the court to be necessary to the
welfare and well-being of the child;
(6) One or both of his support persons, the
facilitator and interpreter, if any;
(7) The court stenographer; and
(8) Persons necessary to operate the videotape
equipment.
g. HEARSAY EXCEPTION IN CHILD ABUSE CASES
f. VIDEOTAPED DEPOSITION OF A CHILD WITNESS

Q: When may the court order that the testimony
of the child be taken by videotaped deposition?
Explain.
A: If the court finds that the child will not be able to
testify in open court at trial, it shall issue an order
that the deposition of the child be taken and
preserved by videotape. (Sec.27[b])
Q: Does the hearsay rule apply in child abuse

cases?
A: A statement made by a child describing any act
or attempted act of child abuse, not otherwise
admissible under the hearsay rule, may be admitted
in evidence in any criminal or non-criminal
proceeding subject to the following rules:
1.
If the order of the court is based on evidence that

the child is unable to testify in the physical
presence of the accused, the court may direct the
latter to be excluded from the room in which the
deposition is conducted. If the accused is excluded
from the deposition, it is not necessary that the
child be able to view an image of the accused.
(Sec.27[e])
a.
Note: The rights of the accused during trial, especially

the right to counsel and to confront and cross-examine
the child, shall not be violated during the deposition.
(Sec.27[d])
Note: After the original videotaping but before or
during trial, any party may file any motion for
additional videotaping on the ground of newly
discovered evidence. The court may order an
additional videotaped deposition to receive the newly
discovered evidence. (Sec.27[j])
358
Before such hearsay statement maybe

admitted, its proponent shall make
known to the adverse party the intention
to offer such statement and its particulars
to provide him a fair opportunity to
object.
b.
2.
If the child is available, the court

shall, upon motion of the adverse
party, require the child to be present
at the presentation of the hearsay
statement for cross-examination by
the adverse party.
When the child is unavailable, the
fact of such circumstance must be
proved by the proponent.
In ruling on the admissibility of such

hearsay statement, the court shall
consider the time, content and
circumstances thereof, based on various
factors provided by the law, which
provide sufficient indicia of reliability (Sec.
28).
REMEDIAL LAW TEAM:

EVIDENCE
h. SEXUAL ABUSE SHIELD RULE
Q: What is sexual abuse shield rule?
A:
GR: It states that the following evidence is not
admissible in any criminal proceeding involving
alleged child sexual abuse:
1. Evidence offered to prove that the alleged
victim engaged in other sexual behavior;
and
2. Evidence offered to prove the sexual
predisposition of the alleged victim [Sec.
30(a)].
d.
"This object or document and the

contents thereof are subject to a
protective order issued by the court in
(case title), (case number). They shall
not be examined, inspected, read,
viewed, or copied by any person, or
disclosed to any person, except as
provided in the protective order. No
additional copies of the tape or any of
its portion shall be made, given, sold,
or shown to any person without prior
court order. Any person violating such
protective order is subject to the
contempt power of the court and other
penalties prescribed by law."
XPN: Evidence of specific instances of sexual

behavior by the alleged victim to prove that a
person other than the accused was the source
of semen, injury, or other physical evidence
shall be admissible [Sec. 30(b)].
i. PROTECTIVE ORDERS
Q: What are the other measures provided under
the rule for the protection of the privacy and
safety of a child witness?
A:
1.
Confidentiality of records
e.
GR: The records may be released only to
the ff:
a. Members of the court staff for
administrative use;
b. The prosecuting attorney;
c. Defense counsel;
d. The guardian ad litem;
e. Agents
of
investigating
law
enforcement agencies; and
f. Other persons as determined by the
court
XPN: Upon written request and order of
the court [Sec. 31(a)].
2.
thereof unless he signs a written

affirmation that he has received and
read a copy of the protective order;
that he submits to the jurisdiction of
the court with respect to the
protective order; and that in case of
violation thereof, he will be subject
to the contempt power of the court;
Each of the tape cassettes and
transcripts thereof made available to
the parties, their counsel, and
respective agents shall bear the
following cautionary notice:
Protective order Any videotape or

audiotape of a child that is part of the
court record shall be under a protective
order that provides as follows:
a. Tapes may be viewed only by parties,
their counsel, their expert witness,
and the guardian ad litem;
b. No tape, or any portion thereof, shall
be divulged by any person
mentioned in sub-section (a) to any
other person, except as necessary for
the trial;
c. No person shall be granted access to
the tape, its transcription or any part
f.
g.
No tape shall be given, loaned, sold,

or shown to any person except as
ordered by the court.
Within thirty (30) days from receipt,
all copies of the tape and any
transcripts thereof shall be returned
to the clerk of court for safekeeping
unless the period is extended by the
court on motion of a party.
This protective order shall remain in
full force and effect until further
order of the court. [Sec. 31(b)].
3.
Additional protective orders The court

may, motu proprio or on motion of any
party, the child, his parents, legal
guardian, or the guardian ad litem, issue
additional orders to protect the privacy of
the child [Sec. 31(c)].
4.
Publication of identity contemptuous:

Whoever publishes or causes to be
published in any format the name,
address, telephone number, school, or
other identifying information of a child
who is or is alleged to be a victim or
accused of a crime or a witness thereof,
or an immediate family of the child shall

359

be liable to the contempt power of the
court. (Sec. 31[d])
5.
Physical safety of child; exclusion of

evidence
GR: A child has a right at any court
proceeding not to testify regarding
personal
identifying
information,
including his name, address, telephone
number, school, and other information
that could endanger his physical safety or
his family.
XPN: The court may, however, require the
child to testify regarding personal
identifying information in the interest of
justice [Sec. 31(e)].
6.
Destruction of videotapes and audiotapes

Videotapes and audiotapes produced
under the provisions of this Rule or
otherwise made part of the court record
shall be destroyed after 5 years have
elapsed from the date of entry of
judgment [Sec. 31(f)].
7.
Records of youthful offender: confidential

a. Where he has been charged before
any prosecutor or before any
municipal judge and the charges
have been ordered dropped, all the
records of the case shall be
considered as privileged and may not
be disclosed directly or indirectly to
anyone for any purpose whatsoever.
b. Where he has been charged and the
court acquits him, or dismisses the
case or commits him to an institution
and subsequently releases him, all
the records of his case shall also be
considered as privileged and may not
be disclosed except:
i. To determine if a defendant
may
have
his
sentence
suspended under Art. 192 of
P.D. 603 or if he may be granted
probation under the provisions
of P.D. 968; or
ii. To enforce his civil liability, if
said liability has been imposed
in the criminal action [Sec.
31(g)].
Q: Maximo Gwapito, a 25-year old jeepney driver,

and his 7-year old son, Maximo Gwapito, Jr.,
stepped out of their house in order to buy food.
Upon reaching the street, father and son
encountered Richard Sputnik, Ron Sputnik, Jeric
Angas and Mark Bayawak. The four were
360
apparently waiting for Maximo Gwapito. They

dragged him to a nearby warehouse. Thereafter, a
gunshot was heard from the warehouse. Maximo
Gwapito was seen running out of the warehouse
followed by the four malefactors.
He fell on the ground near the street corner, Angas
shot him four or five times. The tragic occurence
was witnessed by the victim's son and wife. It was
only after 8 years when two of the four culprits
were convicted by the trial court. On appeal, they
impugned the testimony of the child that he was
only 7 years old when he witnessed the shooting,
and that he testified eight years later or long after
that extraordinary event. Is the contention
tenable?
A: No. The court in several cases had given
credence to the testimony of children who had
witnessed the death of their parents. In the case of
Maximo, Jr., the horrible manner in which his father
was killed must have been indelibly engraved in his
uncluttered memory so much so that the passage
of time could not efface it. When he testified, he
was already fifteen years old and a third year high
school student. He was certainly a competent
witness. (People v. Sabater, G.R. No. L-38169, Feb.
23, 1978)
F. OFFER AND OBJECTION
Q: What evidence shall be considered by the
court?
A:
GR: The court shall consider only the evidence
which has been formally offered. The purpose
for which the evidence is offered must be
specified (Sec. 34).
XPN:
1. Marked exhibits not formally offered may
be admitted provided it complies with the
following requisites:
a. must be duly identified by testimony
duly recorded; and
b. must have been incorporated in the
records of the case (Ramos v. Dizon,
G.R. No. 137247, Aug. 6, 2006);
2. Under the Rule on Summary Procedure,
where no full blown trial is held in the
interest of speedy
administration of
justice;
3. In summary judgments under Rule 35
where the judge based his decisions on
the pleadings, depositions, admissions,
affidavits and documents filed with the
court;
REMEDIAL LAW TEAM:

EVIDENCE
4.
5.
6.
Documents whose contents are taken

judicial notice of by the court;
Documents whose contents are judicially
admitted; or
Object evidence which could not be
formally offered because they have
disappeared or have become lost after
they have been marked, identified and
testified on and described in the record
and became the subject of crossexamination of the witness who testified
on them during the trial.
A:
1. OFFER OF EVIDENCE
Q: What are the rationales in stating the purpose
for which the evidence is being offered?
A:
1. For the court to determine whether that
piece of evidence should be admitted or
not;
2. Evidence submitted for one purpose may
not be considered for any other purpose;
and
3. For the adverse party to interpose the
proper objection.
Q: Noelle filed a complaint for recovery of
possession and damages against Kristina. In the
course of the trial, Noelle marked his evidence but
his counsel failed to file a formal offer of evidence.
Kristina then presented in evidence tax
declarations in the name of his father to establish
that his father is a co-owner of the property. The
court ruled in favor of Kristina, saying that Noelle
failed to prove sole ownership of the property in
the face of Kristinas evidence. Was the court
correct? Explain briefly.
A: Yes. The court shall consider no evidence which
has not been formally offered. The trial court
rendered judgment considering only the evidence
offered by Kristina. The offer is necessary because it
is the duty of the judge to rest his findings of fact
and his judgment only and strictly upon the
evidence offered by the parties at the trial (People
v. Pecardal, G.R. No. 71381, Nov. 24, 1986). (2007
Bar Question)
Q: What are the stages in the presentation of
2. WHEN TO MAKE AN OFFER

Q: How and when should a party make the offer of
evidence?
A:
Testimonial Evidence
Offer must be made at the
time the witness is called
to testify.
Every time a question is
propounded to a witness,
there is an implied offer of
the evidence sought to be
elicited by the question.
Documentary and
Object Evidence
Must be made after the
presentation of partys
testimonial evidence,
and before resting his
case.
The evidence is only
offered once, after all
the testimonial evidence
and prior to the resting
of the case for a party.
Note: The offer shall be done orally unless allowed by

the court to be in writing.
361

3. OBJECTION
2.
Q: What are the purposes of objections?

A:
1.
2.
3.
4.
5.
To keep out inadmissible evidence that

would cause harm to a clients cause;
To protect the record, i.e. to present the
issue of inadmissibility of the offered
evidence in a way that if the trial court
rules erroneously, the error can be relied
upon as a ground for a future appeal;
To protect a witness from being
embarrassed by the adverse counsel;
To expose the adversarys unfair tactics
like his consistently asking obviously
leading questions; and
To give the trial court an opportunity to
correct its own errors and at the same
time warn the court that a ruling adverse
to the objector may supply a reason to
invoke a higher courts appellate
jurisdiction.
(Riano,
Evidence:
A
Q: When should an objection be made?

A: Objection to evidence offered orally must be
made immediately after the offer is made.
Objection to a question propounded in the course
of the oral examination of a witness shall be made
as soon as the grounds therefore shall become
reasonably apparent. An offer of evidence in
writing shall be objected to within 3 days after
notice of the offer unless a different period is
allowed by the court. In any case, the grounds for
objection must be specified (Sec. 36).
Q: What is the difference between a "broadside"
objection and a specific objection to the admission
of documentary evidence?
A: A broadside objection is a general objection such
as incompetent, irrelevant and immaterial and does
not specify any ground; while a specific objection is
limited to a particular ground. (1994 Bar Question)
Q: What are the two kinds of objections? Give an
example of each.
A:
1.
362
Irrelevant The evidence being presented

is not relevant to the issue (e.g. when the
prosecution offers as evidence the alleged
offer of an insurance company to pay for
the damages suffered by the victim in a
homicide case); and
Incompetent The evidence is excluded

by law or rules (Sec. 3, Rule 138) (e.g.
evidence obtained in violation of the
Constitutional
prohibition
against
unreasonable searches and seizures).
Alternative Answers:
1. Specific objections e.g. parole evidence
and best evidence rule
General objections e.g. continuing
objections (Sec. 37).
2. a. objection to a question propounded in
the course of the oral examination of the
witness; and
b. objection to an offer of evidence in
writing. (1997 Bar Question)
4. REPETITION OF AN OBJECTION
Q: What is the rule on continuing objections?
A:
GR: When it becomes reasonably apparent in
the course of the examination that the
questions asked are of the same class as those
to which objection has been made (whether
sustained or overruled), it shall not be necessary
to repeat the objection, it being sufficient for
the adverse party to record his continuing
objection to such class of questions (Sec. 37).
XPNs:
1. Where the question has not been
answered, it is necessary to repeat the
objection when the evidence is again
offered or the question is again asked;
2. Incompetency is shown later;
3. Where objection refers to preliminary
question, objection must be repeated
when the same question is again asked
during the introduction of actual
evidence;
4. Objection to evidence was sustained but
reoffered at a later stage of the trial;
5. Evidence is admitted on condition that its
competency or relevance be shown by
further evidence and the condition is not
fulfilled,
the
objection
formerly
interposed must be repeated or a motion
to strike out the evidence must be made;
and
6. Where the court reserves the ruling on
objection, the objecting party must
request a ruling or repeat the objection.
REMEDIAL LAW TEAM:

EVIDENCE
5. RULING
Q: When should the court make its ruling on the
objection?
A: It must be given immediately after the objection
is made, unless the court desires to take a
reasonable time to inform itself on the question
presented; but the ruling shall always be made
during the trial and at such time as will give the
party against whom it is made an opportunity to
meet the situation presented by the ruling (Sec. 38).
6. STRIKING OUT OF AN ANSWER
Q: What are the modes of excluding inadmissible
evidence?
A:
1.
2.
Objection when the evidence is offered.

Motion to strike out or expunge:
a. When the witness answers prematurely
before there is reasonable opportunity
for the adverse party to object, and
such objection is found to be
meritorious;
b. When the answers are incompetent,
irrelevant, or improper (Sec. 39);
c. When the witness becomes unavailable
for cross-examination through no fault
of the cross-examining party;
d. When the answer is unresponsive;
e. When the testimony was allowed
conditionally and the condition for its
admissibility was not fulfilled (Riano,
467, 2009 ed.);
f. When a witness has volunteered
statements in such a way that the party
has not been able to object thereto;
g. When a witness testifies without a
question being addressed to him; or
h. When a witness testifies beyond the
ruling of the court prescribing the limits
within which he may answer.
the offering party. (Riano, Evidence: A Restatement

Q: May a direct testimony given and allowed
without a prior formal offer be expunged from the
record?
A: No. When such testimony is allowed without any
objection from the adverse party, the latter is
estopped from questioning the non-compliance
with the requirement.
Q: What is the remedy if a court improperly
excludes an otherwise admissible evidence?
A: The partys remedy is to tender the excluded
evidence by:
1. Testimonial evidence State for the
record the name and other personal
circumstances of the witness and the
nature and substance of the proposed
testimony.
2. Object/documentary evidence Attach to
or make it a part of the record (Sec. 40).
7. TENDER OF EXCLUDED EVIDENCE
Q: What is tender of excluded evidence or offer of
proof?
A: When an attorney is not allowed by the court to
present testimony which he thinks is competent,
material and necessary to prove his case, he must
make an offer of proof. This is the method properly
preserving the record to the end that the question
may be saved for purposes of review. (Caraig,
Revised Rules of Evidence 2004 ed., p. 337)
Q: How is tender of excluded evidence made?
A:
1.
2.
Q: May objections be waived?

A: Yes, because the right to object is merely a
privilege which the party may waive. (People v.
Martin, G.R. No. 172069, Jan. 30, 2008)
Q: What is the extent of the waiver for failure to
object?
A: It only extends to the admissibility of the
evidence. It does not involve an admission that the
evidence possesses the weight attributed to it by
As to documentary or object evidence: It

may have the same attached to or made
part of the record.
As to oral evidence: It may state for the
record the name and other personal
circumstances of the witness and the
substance of the proposed testimony.
Q: What are the purposes of tender of excluded

evidence?
A:
1.
To allow the court to know the nature of

the testimony or the documentary
evidence and convince the trial judge to
permit the evidence or testimony; and

363

2.
To create and preserve a record for

appeal. (Riano, Evidence: A Restatement
Q: Distinguish English Exchequer rule from

harmless error rule.
A:
Q: Distinguish offer of proof from offer of

evidence.
A:
OFFER OF
PROOF/TENDER OF
EXCLUDED EVIDENCE
OFFER OF EVIDENCE
Only resorted to if
admission is refused by
the court for purposes
of
review on appeal
Refers
to
testimonial,
documentary or object
evidence that are presented
or offered in court by a
party so that the court can
consider his evidence when
it comes to the preparation
of the decision
Q: How is an offer of evidence made?

A:
1.
2.
3.
Before the court has ruled on the

objection, in which case its function is to
persuade the court to overrule the
objection or deny the privilege invoked;
After the court has sustained the
objection, in which case its function is to
preserve for the appeal the evidence
excluded by the privilege invoked;
Where the offer of proof includes the
introduction of documents, or any of the
physical evidence, the same should be
marked for identification so that they may
become part of the record. (Herrera, Vol.
VI, p. 344)
Q: When is offer or proof not required?

A:
1.
2.
3.
364
When the question to which an objection

has been sustained clearly reveals on its
face the substance, purpose and
relevancy of the excluded evidence;
When the substance, purpose and
relevancy of the excluded evidence were
made known to the court either in the
court proceedings and such parts appears
on record;
Where evidence is inadmissible when
offered and excluded, but thereafter
becomes, it must, be re-offered, unless
the court indicates that a second offer
would be useless. (Herrera, Vol. VI, p.
344-345)
ENGLISH EXCHEQUER
RULE
It provides that a trial
court's error as to the
admission of evidence
was presumed to have
caused prejudice and
therefore, almost
automatically required
new trial.
HARMLESS ERROR RULE

The appellate court will
disregard an error in the
admission of evidence
unless in its opinion, some
substantial wrong or
miscarriage of justice has
been occasioned.
Note: We follow the harmless error rule, for in dealing

with evidence improperly admitted in the trial, courts
examine its damaging quality and its impact to the
substantive rights of the litigant. If the impact is slight
and insignificant, appellate courts disregard the error
as it will not overcome the weight of the properly
admitted evidence against the prejudiced part (People
v. Garcia, G.R. No. 105805, Aug. 16, 1994).
G. SUPREME COURT RULINGS AS OF DECEMBER

2010
EMMA K. LEE v. COURT OF APPEALS and RITA K. LEE, et
al. G.R. No. 177861, July 13, 2010 (ABAD, J.)
Spouses Lee Tek Sheng (Lee) and Keh Shiok Cheng (Keh)
entered the Philippines as immigrants and they had
11children (respondents herein). Subsequently, a woman
named Tiu Chuan (Tiu) served as the housemaid and upon
Kehs death, the respondent children found out that the
Tiu children claims that they are also Lee and Kehs
children. Respondent children then filed before the RTC a
special proceeding for the deletion from the certificate of
live birth of Emma Lee, one of Lees other children, the
name Keh and replace the same with the name Tiu to
indicate her true mothers name. Respondent children
then filed an ex parte request for the issuance of a
subpoena ad testificandum to compel Tiu, Emma Lees
presumed mother, to testify in the case. The RTC granted
the motion but Tiu moved to quash the subpoena,
claiming that it was oppressive and violated Section 25,
Rule 130 of the Rules of Court, the rule on parental
privilege, she being Emma Lees stepmother. The RTC
quashed the subpoena it issued for being unreasonable
and oppressive considering that Tiu was already very old
and that the obvious object of the subpoena was to
badger her into admitting that she was Emma Lees
mother.
ISSUE: Can Tiu, as the stepmother, be compelled to testify
in said proceeding? (Yes)
HELD: As the CA correctly ruled, the grounds cited
unreasonable and oppressiveare proper for subpoena
ad duces tecum or for the production of documents and
things in the possession of the witness, a command that
has a tendency to infringe on the right against invasion of
REMEDIAL LAW TEAM:

EVIDENCE
privacy. Section 4, Rule 21 of the Rules of Civil Procedure,
thus provides:
SECTION 4. Quashing a subpoena. The court may
quash a subpoena duces tecum upon motion promptly
made and, in any event, at or before the time specified
therein if it is unreasonable and oppressive, or the
relevancy of the books, documents or things does not
appear, or if the person in whose behalf the subpoena
is issued fails to advance the reasonable cost of the
production thereof.
Taking in mind the ultimate purpose of respondent
childrens action, obviously, they would want Tiu to testify
or admit that she is the mother of Lees other children,
including petitioner Emma Lee. Keh had died and so could
not give testimony that Lees other children were not
hers. The respondent children have, therefore, a
legitimate reason for seeking Tius testimony and,
normally, the RTC cannot deprive them of their right to
compel the attendance of such a material witness.
SECTION 25. Parental and filial privilege.- No person
may be compelled to testify against his parents, other
direct ascendants, children or other direct descendants.
The above is an adaptation from a similar provision in
Article 315 of the Civil Code that applies only in criminal
cases. But those who revised the Rules of Civil Procedure
chose to extend the prohibition to all kinds of actions,
whether civil, criminal, or administrative, filed against
parents and other direct ascendants or descendants. But
here Tiu, who invokes the filial privilege, claims that she is
the stepmother of petitioner Emma Lee. The privilege
cannot apply to them because the rule applies only to
"direct" ascendants and descendants, a family tie
connected by a common ancestry. A stepdaughter has no
common ancestry by her stepmother. Article 965 thus
provides:
Art. 965. The direct line is either descending or
ascending. The former unites the head of the family
with those who descend from him. The latter binds a
person with those from whom he descends.
Consequently, Tiu can be compelled to testify against
petitioner Emma Lee.
LEIGHTON CONTRACTORS PHILIPPINES, INC. v. CNP
INDUSTRIES INC. G.R. No. 160972, March 9, 2010
(CORONA, J.)
Respondent CNP Industries, Inc. is the subcontractor of
petitioner Leighton Contractors Philippines, Inc. in a
construction project. The subcontract was based on a
Fixed Lump Sum of P44,223,909. However, due to some
revisions made by CNP in its designs, it incurred an
additional amount of P13,442,882 which was not renegotiated with Leighton. CNP now claims for the
payment of the additional expenses, contending that it
was not part of the sub-contract price. Leighton however
refused the same, reiterating that the sub-contract is for a
fixed lump sum price. The Construction Industry
Arbitration Commission (CIAC) ruled in favor of CNP. This
decision was affirmed by the CA. Hence this petition.
ISSUE: Is Leighton liable to pay the additional cost based
on the parol evidence presented by CNP? (NO)
HELD:
The parol evidence rule, embodied in Section 9, Rule 130
of the Rules of Court holds that when the terms of an
agreement have been reduced into writing, it is
considered as containing all the terms agreed upon and
there can be, between the parties and their successors in
interest, no evidence of such terms other than the
contents of the written agreement. It, however, admits of
exceptions such as when the parties subsequently modify
the terms of their original agreement Nevertheless,
respondent contends that when Bennett signed the
August 12, 1997 progress report, petitioner approved the
additional cost estimates, in effect modifying the original
agreement in the subcontract. Respondent therefore
claims an exception to the parole evidence rule. In
contracts for a stipulated price like fixed lump-sum
contracts, the recovery of additional costs is governed by
Article 1724 of the Civil Code. Settled is the rule that a
claim for the cost of additional work arising from changes
in the scope of work can only be allowed upon the:
(1) Written authority from the developer or project
owner ordering or allowing the written changes in work
and
(2) Written agreement of parties with regard to the
increase in price or cost due to the change in work or
design modification.
Furthermore, compliance with the two requisites of
Article 1724, a specific provision governing additional
works, is a condition precedent for the recovery. The
absence of one or the other condition bars the recovery of
additional costs. Neither the authority for the changes
made nor the additional price to be paid therefor may be
proved by any other evidence.
OFFICE OF THE OMBUDSMAN (VISAYAS) v. RODOLFO
ZALDARRIAGA G.R. No. 175349, June 22, 2010 (PERALTA,
J.)
Respondent Rodolfo Zaldarriaga was the Municipal
Treasurer of the Municipality of Lemery, Iloilo. Upon audit
of Zaldarriagas cash and accounts, it was discovered that
he had a deficiency which he failed to restitute despite
notice. Instead, Zaldarriaga sent letters to State Auditor
Garachico requesting for a bill of particulars on his alleged
accountability. The COA, however, failed to clarify the
basis of the shortage and filed a complaint against him.
When the Office of the Provincial Treasurer conducted its
own investigation as to the shortage, it was found out that
there really is no shortage. The COA then conducted a
second audit and concluded that there is no shortage.
Zaldarriage then moved for the dismissal of the complaint
against him, however, the Office of the Ombudsman
rendered a decision dismissing him from service. Said
decision was reversed on appeal, hence, the present case.
HELD: Basic is the rule that, in administrative cases, the
quantum of evidence necessary to find an individual
administratively liable is substantial evidence. Section 5,
Rule 133 of the Rules of Court is explicit, to wit:
Sec. 5. Substantial evidence. In cases filed before
administrative or quasi-judicial bodies, a fact may be
deemed established if it is supported by substantial
evidence, or that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a
conclusion.

365
Substantial evidence does not necessarily mean

preponderant proof as required in ordinary civil cases, but
such kind of relevant evidence as a reasonable mind might
accept as adequate to support a conclusion or evidence
commonly accepted by reasonably prudent men in the
conduct of their affairs. In the present case, the evidence
upon which respondents administrative liability would be
anchored lacked that degree of certainty required in
administrative cases, because the entries found in the two
separate audit conducted by the COA yielded conflicting
results. Evidence of shortage is imperative in order for the
respondent to be held liable. In the case at bar, the
evidence could not be relied upon. The second audit
report necessarily puts into question the reliability of the
initial audit findings. Whether the zero balance as
appearing in the second audit report was correct or
inadvertently indicated, the credibility and accuracy of the
two audit reports were already tarnished.
FINANCIAL BUILDING CORPORATION v. RUDLIN
INTERNATIONAL CORPORATION G.R. No. 164186 &
164347, October 4, 2010 (VILLARAMA, JR., J.)
Rudlin International Corporation (Rudlin) invited
proposals from several contractors to undertake the
construction of a three-storey school building and
other appurtenances and the contract was eventually
awarded to Financial Building Corporation (FBC). The
project was completed, however, the balance of the
adjusted contract price was not paid. FBC instituted a
complaint against Rudlin and while the RTC dismissed
said complaint, the CA held that FBC did not
substantiate its claim against Rudlin.
ISSUE: Is evidence of a prior or contemporaneous
verbal agreement admissible to vary, contradict or
defeat the operation of a valid contract? (No)
HELD:On the issue of the correct total contract price,
we hold that Rudlin failed to substantiate its claim
that the contract price stated in the Construction
Agreement was not the true contract price because it
had an understanding with FBCs Jaime B. Lo that they
would decrease said amount to a mutually acceptable
amount. Rudlin argues that under Section 9, Rule 130,
a party may present evidence to modify, explain or
add to the terms of the written agreement if it is put
in issue in the pleading. Assuming as true Rudlins
claim that the contract failed to accurately reflect an
intent of the parties to fix the total contract price,
Rudlin failed to avail of its right to seek the
reformation of the instrument to the end that such
true intention may be expressed. Evidence of a prior
or contemporaneous verbal agreement is generally
not admissible to vary, contradict or defeat the
operation of a valid contract. Section 9 of Rule 130 of
the Rules of Court states:
SEC. 9. Evidence of written agreements.When the
terms of an agreement have been reduced to
writing, it is considered as containing all the terms
agreed upon and there can be, between the parties
and their successors-in-interest, no evidence of such
terms other than the contents of the written
agreement.
366
However, a party may present evidence to

modify, explain or add to the terms of the written
agreement if he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or
imperfection in the written agreement;
(b) The failure of the written agreement to
express the true intent and agreement of the parties
thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by
the parties or their successors-in-interest after the
execution of the written agreement.
The term agreement includes wills.
Rudlin cannot invoke the exception under (a) or (b) of the
above provision. Such exception obtains only where the
written contract is so ambiguous or obscure in terms that
the contractual intention of the parties cannot be
understood from a mere reading of the instrument. Under
the fourth exception, however, Rudlins evidence is
admissible to show the existence of such other terms
agreed to by the parties after the execution of the
contract. But apart from the Bar Chart and Cash Flow
Chart prepared by FBC, and the testimony of Rodolfo J.
Lagera, no competent evidence was adduced by Rudlin to
prove that the amount stated in the contract was the
actual decreased amount that FBC and Rudlin found
mutually acceptable. As to the affidavits executed by
Architect Quezon and his associate Roberto R. Antonio,
the same do not serve as competent proof of the
purported actual contract price as they did not testify
thereon. Likewise, there is nothing in the various letters
sent by Rudlin to FBC while construction was in progress
and even subsequent to the execution of the said LetterAgreement indicating that Rudlin corrected the contract
price which FBC had repeatedly mentioned in its letters
and documents.
THE HEIRS OF ROMANA SAVES, et al. v. HEIRS OF
ECOLASTICO SAVES, et al. G.R. No. 152866, October 6,
2010 (LEONARDO-DE CASTRO, J.)
Several persons filed their respective claims before the
Court of First for the titling of the respective lots they
occupy, among them were Escolastico Saves and Romana
Saves. A Decision was rendered by the court, adjudicating
several parcels of land to different claimants.
Subsequently, the heirs of Escolastico and Romana sold
said property to Gaudencia Valencia. A case for
Reconveyance, Partition, and Damages was filed before
the RTC on the ground that Valencia fraudulently acquired
the properties. RTC declared the sale null and void while
the CA reversed said decision.
ISSUE: Can the CA consider evidence not formally offered
before the trial court?
HELD:A formal offer is necessary because judges are
mandated to rest their findings of facts and their
judgment only and strictly upon the evidence offered by
the parties at the trial. Its function is to enable the trial
judge to know the purpose or purposes for which the
proponent is presenting the evidence. On the other hand,
this allows opposing parties to examine the evidence and
object to its admissibility. Moreover, it facilitates review
as the appellate court will not be required to review
REMEDIAL LAW TEAM:

EVIDENCE
documents not previously scrutinized by the trial court.
However, in People v. Napat-a, citing People v. Mate, we
relaxed the foregoing rule and allowed evidence not
formally offered to be admitted and considered by the
trial court provided the following requirements are
present, viz: first, the same must have been duly identified
by testimony duly recorded and, second, the same must
have been incorporated in the records of the case.With
regard to a document entitled Motion for the Issuance of
Transfer Certificate of Title filed by Valencia in the same
trial court that led to the issuance of his Title, the records
would show that it is the same document that the heirs
witness Fruto Rosario identified in his testimony and
marked as Exhibit I. That only the heirs were able to
formally offer the said motion as Exhibit I most certainly
does not mean that it can only be considered by the
courts for the evidentiary purpose. It is well within the
discretion of the courts to determine whether an exhibit
indeed serves the probative purpose for which it is
offered. It is likewise worth emphasizing that under the
Revised Rules on Evidence, an admission, verbal or
written, made by a party in the course of the proceedings
in the same case, does not require proof such admission
may be contradicted only by showing that it is made
through palpable mistake or that no such admission was
made.
SILKAIR (SINGAPORE) PTE., LTD. v. COMMISSIONER OF
INTERNAL REVENUE G.R. No. 184398, February 25, 2010
(LEONARDO-DE CASTRO, J.)
Silkair Singapore Pte., Ltd. (corporation) applied for a
refund of excise taxes erroneously paid by it on its
purchase of aviation jet fuel from Petron. Since no action
was taken by the CIR, the corporation filed a petition for
review before the CTA which held that its purchase is
exempt from excise tax. The CTA, however, held that the
corporation is not entitled to a refund for the
corporations failure to present proof that it was
authorized to do business in the Philippines due to the
non-admission of some of its exhibits for being mere
photocopies of original documents.
ISSUE: Was Silkair able to prove its authority to do
business in the Philippines? (No)
HELD:Petitioners assertion that the CTA may take judicial
notice of its SEC Registration, previously offered and
admitted in evidence in similar cases before the CTA, is
untenable. Evidence already presented and admitted by
the court in a previous case cannot be adopted in a
separate case pending before the same court without the
same being offered and identified anew. A court is not
compelled to take judicial notice of pieces of evidence
offered and admitted in a previous case unless the same
are properly offered or have accordingly complied with
the requirements on the rules of evidence. It is an
elementary rule in law that documents shall not be
admissible in evidence unless and until the original copies
itself are offered or presented for verification in cases
where mere copies are offered, save for the exceptions
provided for by law. Silkair thus cannot hide behind the
veil of judicial notice so as to evade its responsibility of
properly complying with the rules of evidence. For its
failure to compare the subject documents with its
originals, the same may not be admitted. Evidently, said
documents cannot be admitted in evidence by the court

as the original copies were neither offered nor presented
for comparison and verification during the trial. Mere
identification of the documents and the markings thereof
as exhibits do not confer any evidentiary weight on them
as said documents have not been formally offered by
petitioner and have been denied admission in evidence by
the CTA. Neither could it be said that petitioners SEC
Registration and operating permits from the CAB are
documents which are of public knowledge, capable of
unquestionable demonstration, or ought to be known to
the judges because of their judicial functions, in order to
allow the CTA to take discretionary judicial notice of the
said documents.
HEIRS OF JOSE LIM v. JULIET VILLA LIM G.R. No. 172690,
March 3, 2010 (NACHURA, J.)
The heirs of the late Jose Lim filed a Complaint for
Partition, Accounting and Damages against Juliet Villa Lim
(Juliet), widow of the late Elfredo Lim (Elfredo), alleging
that their predecessor formed a partnership with his
friends Jimmy Yu (Jimmy) and Norberto Uy (Norberto) to
engage in a trucking business. That the partners
purchased a truck to be used in the hauling and
transporting of lumber and that Jose managed the
operations of this trucking business until his death. The
business was continued and the shares in the partnership
profits and income that formed part of the estate of Jose
were held in trust by one of the Elfredo, with the other
heirs authority for Elfledo to use, purchase or acquire
properties using said funds. The heirs contend that Elfredo
served as a driver in the business but was never an
investor or a partner of the business. When the
partnership ceased operations, nine trucks were
registered under Elfredos name. The heirs further claims
that it was through the profits derived from the
partnership that Elfredo was able to acquire real
properties and 5 motor vehicles. When Elfredo passed
away, the heirs claimed that they are co-owners of the
properties, hence, the present case. Juliet claims that
Elfredo was a partner per testimony of Cresencia (Joses
wife), Elfredo contributed to the capital of the
partnership, hence, an informal partnership was formed.
That Other than the trucking business, Elfledo, together
with respondent, engaged in other business ventures.
Thus, they were able to buy real properties and to put up
their own car assembly and repair business. Juliet further
stated that when Jose died, he left no properties that
Elfredo could have held in trust. The heirs argue that
according to the testimony of Jimmy, the sole surviving
partner, Elfledo was not a partner; and that he and
Norberto entered into a partnership with Jose. Thus, the
CA erred in not giving that testimony greater weight than
that of Cresencia, who was merely the spouse of Jose and
not a party to the partnership.
ISSUE:Can the testimony of one of the heirs be given
greater weight than that by a former partner on the issue
of the identity of the other partners in the partnership?
(No)
HELD: Undoubtedly, the best evidence would have been
the contract of partnership or the articles of partnership.
Unfortunately, there is none in this case, because the
alleged partnership was never formally organized.

367

Nonetheless, we are asked to determine who between
Jose and Elfledo was the partner in the trucking
business. A careful review of the records persuades us to
affirm the CA decision. The evidence presented by the
heirs falls short of the quantum of proof required to
establish that: (1) Jose was the partner and not Elfledo;
and (2) all the properties acquired by Elfledo and
respondent form part of the estate of Jose, having been
derived from the alleged partnership. The heirs heavily
rely on Jimmy's testimony. But that testimony is just one
piece of evidence against Juliet. In civil cases, the party
having the burden of proof must establish his case by a
preponderance of evidence. "Preponderance of evidence"
is the weight, credit, and value of the aggregate evidence
on either side and is usually considered synonymous with
the term "greater weight of the evidence" or "greater
weight of the credible evidence." "Preponderance of
evidence" is a phrase that, in the last analysis, means
probability of the truth. It is evidence that is more
convincing to the court as worthy of belief than that which
is offered in opposition thereto. Rule 133, Section 1 of the
Rules of Court provides the guidelines in determining
preponderance of evidence, thus:
SECTION I.
Preponderance of evidence, how
determined. In civil cases, the party having burden of
proof must establish his case by a preponderance of
evidence. In determining where the preponderance or
superior weight of evidence on the issues involved lies,
the court may consider all the facts and circumstances
of the case, the witnesses' manner of testifying, their
intelligence, their means and opportunity of knowing
the facts to which they are testifying, the nature of the
facts to which they testify, the probability or
improbability of their testimony, their interest or want
of interest, and also their personal credibility so far as
the same may legitimately appear upon the trial. The
court may also consider the number of witnesses,
though the preponderance is not necessarily with the
greater number.
Applying the legal provision to the facts of this case, the
following circumstances tend to prove that Elfledo was
himself the partner of Jimmy and Norberto: 1) Cresencia
testified that Jose gave Elfledo money, as share in the
partnership, on a date that coincided with the payment of
the initial capital in the partnership; (2) Elfledo ran the
affairs of the partnership, wielding absolute control,
power and authority, without any intervention or
opposition whatsoever from any of the heirs; (3) all of the
properties, particularly the nine trucks of the partnership,
were registered in the name of Elfledo; (4) Jimmy testified
that Elfledo did not receive wages or salaries from the
partnership, indicating that what he actually received
were shares of the profits of the business; and (5) none of
the heirs, the alleged partner, demanded periodic
accounting from Elfledo during his lifetime. As repeatedly
stressed in Heirs of Tan Eng Kee v. CA, a demand for
periodic accounting is evidence of a partnership.
Furthermore, the heirs failed to adduce any evidence to
show that the real and personal properties acquired and
registered in the names of Elfledo and Juliet formed part
of the estate of Jose, having been derived from Jose's
alleged partnership with Jimmy and Norberto. They failed
to refute Juliet's claim that Elfledo and Juliet were
engaged in other businesses. Thus, we apply the basic rule
368
of evidence that between documentary and oral evidence,

the former carries more weight.
PEOPLE OF THE PHILIPPINES v. ALBERT SANCHEZ y
GALERA G.R. No. 188610, June 29, 2010 (VELASCO, JR., J.)
Albert Sanchez y Galera stealthily entered the residence of
the De Leon family where he stabbed and succeeded in
killing some of the family members. The records
established that when the mother discovered that her son
was bathed in blood the son uttered that, "Mama, si Kuya
Albert sinaksak ako". The RTC convicted Sanchez of two
counts of murder and two counts of frustrated murder.
ISSUE:Is the sons final words to his mother admissible as
evidence?
HELD: What Jufer uttered just before he expired - "Mama,
si Kuya Albert, sinaksak ako"- is admissible in evidence
against the appellant pursuant to Section 37, Rule 130 of
the Rules of Court.
Sec. 37. Dying declaration. The declaration of a dying
person, made under the consciousness of an impending
death, may be received in any case wherein his death is
the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death.
A dying declaration is an evidence of the highest order; it
is entitled to the utmost credence on the premise that no
one person who knows of his impending death would
make a careless and false accusation. At the brink of
death, all thoughts of concocting lies disappear.
SPOUSES MANUEL and VICTORIA SALIMBANGON v.
SPOUSES SANTOS AND ERLINDA TAN G.R. No. 185240,
January 20, 2010 (ABAD, J.)
Guillermo Ceniza died intestate and his children, including
herein petitioner Victoria Salimbangon, executed an
extrajudicial declaration of heirs and partition,
adjudicating and dividing the land among themselves. To
give the interior lots access to the street, the heirs
annotated an easement of right of way consisting of a 3meter wide alley across the property. But, realizing that
the partition resulted in an unequal division of the
property, the heirs modified their agreement by
eliminating the easement of right of way and in its place,
imposed a 3-meter wide alley, an easement of right of
way, that ran exclusively along the southwest boundary of
the property. Victoria and her husband constructed a
residential house on this lot and built two garages on it.
One garage abutted the street while the other used the
alley or easement of right of way which was cemented
and gated by Victoria. The remaining lots were brought by
Spouses Santos and Erlinda Tan who also built
improvements on the easement and closed the gate that
Victoria built. Unable to use the old right of way, the
Victoria lodged a complaint with the City Engineer against
the Tans. On the other hand, the Tans filed an action with
the RTC against Victoria for the extinguishment of the
easement with preliminary injunction. RTC upheld
Victorias easement of right of way over the property
belong to the Tans. The CA reversed said ruling and
extinguished the easement based on the testimony of one
of the previous owners, Eduardo Ceniza, the true intent of
REMEDIAL LAW TEAM:

EVIDENCE
the parties was to establish that easement of right of way
for the benefit of the interior lots.
ISSUE:Can parole evidence be admitted in an action for
extinguishment of easement of right of way?
HELD:The parole evidence rule, said the Victoria,
precluded the parties from introducing testimony that
tended to alter or modify what the parties had agreed on
above. But the exclusionary provision of the parole
evidence rule admits of exceptions. Section 9, Rule 130 of
the Revised Rules on Evidence states:
Sec. 9. Evidence of written agreements. - When the
terms of an agreement have been reduced to writing,
it is considered as containing all the terms agreed upon
and there can be, between the parties and their
successors in interest, no evidence of such terms other
than the contents of the written agreement. However,
a party may present evidence to modify, explain or add
to the terms of the written agreement if he puts in
issue in his pleading:
(a)
An intrinsic ambiguity, mistake or imperfection
in the written agreement;
(b)
The failure of the written agreement to
express the true intent and agreement of the parties
thereto;
(c)
The validity of the written agreement; or
(d)
The existence of other terms agreed to by the
parties or their successors in interest after the
execution of the written agreement.
The term agreement includes wills. Here, the Tans had
put in issue the true intent and agreement of the parties
to the partition when they alleged that the easement was
actually for both Victoria and Eduardo Cenizas benefit.
Consequently, with the above averment, the Tans were
entitled to introduce evidence to establish the true intent
and agreement of the parties although this may depart
from what the partition agreement literally provided. At
any rate, as the CA said, the Victoria did not object at the
hearing to admission of Eduardo Cenizas testimony even
when this seemed at variance, as far as they were
concerned, with the partition agreement among the heirs.
Consequently, the Victoria may also be deemed to have
waived their right to now question such testimony on
appeal. The point is that, obviously, in establishing the
new easement of right of way, the heirs intended to
abandon the old one. And, with the ownership of the
property now consolidated in a common owner, namely,
the Tans, then the easement of right of way may be said
to have been extinguished by operation of law.
ANTONIO LEJANO v. PEOPE OF THE PHILIPPINES G.R. No.
176389, 14 December 2010 (Abad, J.)
Alfaro was the NBIs star witness, their badge of excellent
investigative work. After claiming that they had solved the
crime of the decade, the NBI people had a stake in making
her sound credible, and obviously, they gave her all the
preparations she needed for the job of becoming a fairly
good substitute witness. She was their darling of an
asset. And this is not pure speculation. As pointed out
above, Sacaguing of the NBI, a lawyer and a ranking
official confirmed this to be a cold fact. Why the trial court
and Court of Appeals failed to see this is mystifying.
In 1991, Estrellita Vizconde and her daughters Carmela,

nineteen years old, and Jennifer, seven, were brutally slain
at their home in Paraaque City. Four years later, the NBI
announced that it had solved the crime. It presented starwitness Jessica M. Alfaro, one of its informers, who
claimed that she witnesses the crime. She pointed to the
accused Hubert Jeffrey P. Webb, Antonio Tony Boy
Lejano, Artemio Dong Ventura, Michael A. Gatchalian,
Hospicio Pyke Fernandez, Peter Estrada, Miguel Ging
Rodriguez, and Joey Filart as the culprits. She also tagged
accused police officer, Gerardo Biong, as an accessory
after the fact. Relying primarily on Alfaros testimony, on
August 10, 1995, the public prosecutors filed information
for rape with homicide against Webb, et al.
The RTC of Paraaque presided over by Judge Amelita G.
Tolentino tried only seven of the accused since Artemio
Ventura and Joey Filart remained at large. The
prosecution presented Alfaro as its main witness with the
others corroborating her testimony. These included the
medico-legal officer who autopsied the bodies of the
victims, the security guards of Pitong Daan Subdivision,
the former laundrywoman of Webbs household, police
officer Biongs former girlfriend, and Lauro G. Vizconde,
Estrellitas husband.
For their part, some of the accused testified, denying any
part in the crime and saying they were elsewhere when it
took place. Webbs alibi appeared the strongest since he
claimed that he was then in the United States of America.
He presented the testimonies of witnesses as well as
documentary and object evidence to prove this. In
addition, the defense presented witnesses to show
Alfaros bad reputation for truth and the incredible nature
of her testimony.
The trial court found a credible witness in Alfaro. It noted
her categorical straightforward, spontaneous and frank
testimony, undamaged by grueling cross-examinations.
The RTC rendered judgment, finding all the accused guilty
as charged and imposing on Webb, Lejano, Gatchalian,
Fernandez, Estrada and Rodriguez the penalty of reclusion
perpetua and on Biong, an indeterminate prison term of
eleven years, four months and one day to twelve years.
On appeal, the Court of Appeals affirmed RTCs decision.
In 2010, as a result of its initial deliberation in this case,
the Court issued a Resolution granting the request of
Webb to submit for DNA Analysis the semen specimen
taken from Carmelas cadaver, which specimen was then
believed still under the safekeeping of NBI.
Unfortunately, the NBI informed the Court that it no
longer has custody of the specimen, the same having been
turned over to the trial court. The trial court record
shows, however, that the specimen was not among the
object evidence that the prosecution offered in evidence
in the case. This outcome prompted the accused Webb to
file an urgent motion to acquit on the ground that the
governments failure to preserve such vital evidence has
resulted in the denial of his right to due process.
ISSUES:
1.
Whether or not Alfaros testimony

eyewitness is entitled to belief

as
369

2.
Whether or not Webbs pieces of evidence are

proven sufficient enough to rebut Alfaros
testimony
HELD: CA Decision REVERSED and SET ASIDE.

Alfaros testimony as eyewitness
But was it possible for Alfaro to lie with such abundant
details some of which even tallied with the physical
evidence at the scene of the crime? No doubt, yes.
The Vizconde massacre had been reported in the media
with dizzying details. Everybody was talking about what
the police found at the crime scene and there were lots of
speculations about them.
Alfaro was the NBIs star witness, their badge of excellent
investigative work.lavvphil After claiming that they had
solved the crime of the decade, the NBI people had a
stake in making her sound credible and, obviously, they
gave her all the preparations she needed for the job of
becoming a fairly good substitute witness. She was their
"darling" of an asset. And this is not pure speculation. As
pointed out above, Sacaguing of the NBI, a lawyer and a
ranking official, confirmed this to be a cold fact. Why the
trial court and the Court of Appeals failed to see this is
mystifying.
At any rate, did Alfaro at least have a fine memory for
faces that had a strong effect on her, given the
circumstances? Not likely. She named Miguel "Ging"
Rodriguez as one of the culprits in the Vizconde killings.
But when the NBI found a certain Michael Rodriguez, a
drug dependent from the Bicutan Rehabilitation Center,
initially suspected to be Alfaros Miguel Rodriguez and
showed him to Alfaro at the NBI office, she ran berserk,
slapping and kicking Michael, exclaiming: "How can I
forget your face. We just saw each other in a disco one
month ago and you told me then that you will kill me." As
it turned out, he was not Miguel Rodriguez, the accused in
this case.
Two possibilities exist: Michael was really the one Alfaro
wanted to implicate to settle some score with him but it
was too late to change the name she already gave or she
had myopic vision, tagging the wrong people for what
they did not do.
There is another thing about a lying witness: her story
lacks sense or suffers from inherent inconsistencies. An
understanding of the nature of things and the common
behavior of people will help expose a lie. And it has an
abundant presence in this case.
One. In her desire to implicate Gatchalian, Fernandez,
Estrada, Rodriguez, and Filart, who were supposed to be
Webbs co-principals in the crime, Alfaro made it a point
to testify that Webb proposed twice to his friends the
gang-rape of Carmela who had hurt him. And twice, they
(including, if one believes Alfaro, her own boyfriend
Estrada) agreed in a chorus to his proposal. But when they
got to Carmelas house, only Webb, Lejano, Ventura, and
Alfaro entered the house.
370
Gatchalian, Fernandez, Estrada, and Rodriguez supposedly

stayed around Alfaros car, which was parked on the
street between Carmelas house and the next. Some of
these men sat on top of the cars lid while others milled
on the sidewalk, visible under the street light to anyone
who cared to watch them, particularly to the people who
were having a drinking party in a nearby house. Obviously,
the behavior of Webbs companions out on the street did
not figure in a planned gang-rape of Carmela.
Two. Ventura, Alfaros dope supplier, introduced her for
the first time in her life to Webb and his friends in a
parking lot by a mall. So why would she agree to act as
Webbs messenger, using her gas, to bring his message to
Carmela at her home. More inexplicably, what motivated
Alfaro to stick it out the whole night with Webb and his
friends?
They were practically strangers to her and her boyfriend
Estrada. When it came to a point that Webb decided with
his friends to gang-rape Carmela, clearly, there was
nothing in it for Alfaro. Yet, she stuck it out with them, as
a police asset would, hanging in there until she had a
crime to report, only she was not yet an "asset" then. If,
on the other hand, Alfaro had been too soaked in drugs to
think clearly and just followed along where the group took
her, how could she remember so much details that only a
drug-free mind can?
Three. When Alfaro went to see Carmela at her house for
the second time, Carmella told her that she still had to go
out and that Webb and his friends should come back
around midnight. Alfaro returned to her car and waited
for Carmela to drive out in her own car. And she trailed
her up to Aguirre Avenue where she supposedly dropped
off a man whom she thought was Carmelas boyfriend.
Alfaros trailing Carmela to spy on her unfaithfulness to
Webb did not make sense since she was on limited errand.
But, as a critical witness, Alfaro had to provide a reason
for Webb to freak out and decide to come with his friends
and harm Carmela.
Four. According to Alfaro, when they returned to
Carmelas house the third time around midnight, she led
Webb, Lejano, and Ventura through the pedestrian gate
that Carmela had left open. Now, this is weird. Webb was
the gang leader who decided what they were going to do.
He decided and his friends agreed with him to go to
Carmelas house and gang-rape her. Why would Alfaro, a
woman, a stranger to Webb before that night, and
obviously with no role to play in the gang-rape of Carmela,
lead him and the others into her house? It made no sense.
It would only make sense if Alfaro wanted to feign being a
witness to something she did not see.
Five. Alfaro went out of the house to smoke at the garden.
After about twenty minutes, a woman exclaimed, "Sino
yan?" On hearing this, Alfaro immediately walked out of
the garden and went to her car. Apparently, she did this
because she knew they came on a sly. Someone other
than Carmela became conscious of the presence of Webb
and others in the house. Alfaro walked away because,
obviously, she did not want to get involved in a potential
confrontation. This was supposedly her frame of mind:
fear of getting involved in what was not her business.
REMEDIAL LAW TEAM:

EVIDENCE
But if that were the case, how could she testify based on
personal knowledge of what went on in the house? Alfaro
had to change that frame of mind to one of boldness and
reckless curiosity. So that is what she next claimed. She
went back into the house to watch as Webb raped
Carmela on the floor of the masters bedroom. He had
apparently stabbed to death Carmelas mom and her
young sister whose bloodied bodies were sprawled on the
bed. Now, Alfaro testified that she got scared (another
shift to fear) for she hurriedly got out of the house after
Webb supposedly gave her a meaningful look.
possibilities, but whether it entertains a reasonable,

lingering doubt as to his guilt. For, it would be a serious
mistake to send an innocent man to jail where such kind
of doubt hangs on to ones inner being, like a piece of
meat lodged immovable between teeth.
Will the Court send the accused to spend the rest of their
lives in prison on the testimony of an NBI asset who
proposed to her handlers that she take the role of the
witness to the Vizconde massacre that she could not
produce?
Alfaro quickly went to her car, not minding Gatchalian,

Fernandez, Estrada, Rodriguez, and Filart who sat on the
car or milled on the sidewalk. She did not speak to them,
even to Estrada, her boyfriend. She entered her car and
turned on the engine but she testified that she did not
know where to go. This woman who a few minutes back
led Webb, Lejano, and Ventura into the house, knowing
that they were decided to rape and harm Carmela, was
suddenly too shocked to know where to go! This
emotional pendulum swing indicates a witness who was
confused with her own lies.
Webbs Alibis to Rebut Alfaros Testimony
Among the accused, it was Webb who presented the
strongest alibi. His travel preparations were confirmed by
Rajah Tours and the Philippine immigration, confirming
that he indeed left for San Francisco, California with his
Aunt Gloria on March 9, 1991 on board the United Airlines
Flight 808. His passport was stamped and his name was
listed on the United Airlines Flights Passenger Manifest.
Upon reaching US, the US immigration recorded his entry
to the country. Moreover, details of his very stay there,
including his logs and paychecks when he worked,
documents when he purchased a car and his license were
presented as additional evidence, and he left for
Philippines on October 26, 1992. Supreme Court accused
the trial court and the Court of Appeals as having a mind
that is made cynical by the rule drilled into his head that a
defense of alibi is a hangmans noose in the faces of a
witness squeaking I saw him do it. A judge, according to
the Court, must keep an open mind, and must guard
against slipping into hasty conclusions arising from a
desire to quickly finish the job of deciding a case.
For positive identification to be credible, two criteria must
be met: 1.) the positive identification of the offender must
come from a credible witness 2.) the witness story of
what she personally saw must be believable, not
inherently contrived.
For alibi to be credible and established on the other hand,
it must be positive, clear and documented. It must show
that it was physically impossible for him to be at the scene
of the crime. Webb was able to establish his alibis
credibility with his documents. It is impossible for Webb,
despite his so called power and connections to fix a
foreign airlines passenger manifest. Webbs departure
and arrival were authenticated by the Office of the US
Attorney General and the State Department.
In our criminal justice system, what is important is, not
whether the court entertains doubts about the innocence
of the accused since an open mind is willing to explore all
371

VII. REVISED RULES ON SUMMARY PROCEDURE
A. CASES COVERED BY THE RULE
Q: In what cases do the Revised Rules on Summary
Procedure apply?
A:
1.
2.
3.
Civil cases:
a. All cases of forcible entry and
unlawful detainer, irrespective of
amount of damages or unpaid
rentals sought to be recovered
provided when attorneys fees are
awarded, the same shall not exceed
P20,000.00; and
b. All other civil cases, except probate
proceedings, where the total amount
of the plaintiffs claim does not
exceed P100,000 or P200,000 in
Metropolitan Manila, exclusive of
interest and costs (As amended by
A.M. No. 02-11-09-SC effective Nov.
5, 2002)
Criminal cases:
a. Violations of traffic laws, rules and
regulations;
b. Violations of rental law;
c. Violations of municipal or city
ordinances;
d. All other criminal cases where the
penalty prescribed by law for the
offense charged is imprisonment not
exceeding 6 months or a fine not
exceeding P1,000.00, or both,
irrespective of other imposable
penalties, accessory or otherwise, or
of the civil liability arising there from.
Provided however, that in offenses
involving damage to property
through criminal negligence, this
Rule shall govern where the
imposable fine does not exceed
P10,000.00; and
Violation of bouncing checks law (Sec. 1).
B. EFFECT OF FAILURE TO ANSWER
Q: What is the effect of failure of the defendant to

answer?
A: The court, motu proprio or on motion of the
plaintiff, shall render judgment as may be
warranted by the facts alleged in the complaint and
limited to what is prayed for (Sec 6).
372
Note: This is without prejudice to the applicability of

Sec. 4, Rule 18 of the Rules of Court, stating that the
non-appearance of the party in a pre-trial may be
excused if valid cause is shown or a representative
authorized in writing appears in his behalf.
C. PRELIMINARY CONFERENCE AND APPEARANCES

OF THE PARTIES
Q: Is preliminary conference in civil cases
mandatory?
A: Yes. Not later than 30 days after the last answer
is filed, a preliminary conference shall be held. The
rules on pre-trial in ordinary cases shall be
applicable to the preliminary conference unless
inconsistent with the provisions of this Rule.
Q: What is the effect of the plaintiffs failure to
appear?
A: The failure of the plaintiff to appear in the
preliminary conference shall be a cause for the
dismissal of his complaint. The defendant who
appears in the absence of the plaintiff shall be
entitled to judgment on his counterclaim in
accordance with Sec. 6.
Note: All cross-claims shall be dismissed.
Q: What is the effect of the defendants failure to

appear during the preliminary conference?
A: If a sole defendant shall fail to appear, the
plaintiff shall be entitled to judgment in accordance
with Sec. 6. This Rule shall not apply where one of
two or more defendants sued under a common
cause of action who had pleaded a common
defense shall appear at the preliminary conference
(Sec. 7).
Q: Is preliminary conference in criminal cases
mandatory?
A: Yes. Before conducting the trial, the court shall
call the parties to a preliminary conference during
which a stipulation of facts may be entered into, or
the propriety of allowing the accused to enter a
plea of guilty to a lesser offense may be considered,
or such other matters may be taken up to clarify
the issues and to ensure a speedy disposition of the
case.
However, no admission by the accused shall be
used against him unless reduced in writing and
signed by the accused and his counsel. A refusal or
failure to stipulate shall not prejudice the accused
(Sec. 14).
REMEDIAL LAW TEAM:

KATARUNGANG PAMBARANGAY
VIII. KATARUNGANG PAMBARANGAY
C. VENUE
A. CASES COVERED
Q: What are the rules on venue under the law on

Katarungang Pambarangay?
Q: What is the object of the Katarungang

Pambarangay Law?
A:
1.
A: Its object is to effect an amicable settlement of

disputes among family and barangay members at
the barangay level without judicial recourse and
consequently help relieve the courts of docket
congestion (Preamble of P.D. 1508, the former and
the first Katarungang Pambarangay Law). (1999
Bar Question)
2.
3.
B. SUBJECT MATTER OF AMICABLE SETTLEMENT
Q: What is the subject matter for amicable
settlement?
4.
A:
GR: The Lupon of each barangay shall have
authority to bring together the parties actually
residing in the same city or municipality for
amicable settlement of all disputes. (Sec. 2)
For disputes between residents of the

same barangay, the dispute must be
brought for settlement in the said
barangay;
different barangays within the same city
or municipality or any of the respondents
reside at the election of the complainant;
For disputes involving real property or
any interest therein shall be brought in
the barangay where the real property or
larger portion thereof is situated; and
For disputes arising at the workplace
where the contending parties are
employed or at the institution where such
parties are enrolled for study shall be
brought in the barangay where such
workplace or institution is located.
D. WHEN PARTIES MAY DIRECTLY GO TO COURT

XPN:
1. Where one party is the government or
any subdivision or instrumentality
thereof;
2. Where one party is a public officer or
employee, and the dispute relates to the
performance of his official functions;
3. Offenses punishable by imprisonment
exceeding 1 year or a fine exceeding
P5,000.00;
4. Offenses where there are no private
offended party;
5. Where the dispute involves real
properties located in different cities or
municipalities unless the parties agree to
submit the dispute to amicable
settlement by an appropriate lupon;
6. Disputes involving parties who actually
reside in barangays of different cities or
municipalities, except:
a. Where the barangay units
adjoin each other; and
b. The parties submit their dispute
to amicable settlement by an
appropriate lupon.
7. Disputes which the President may
determine in the interest of justice; and
8. Where one of the parties is a juridical
entity.
Q: When may a party directly file an action in

court notwithstanding that said action falls within
the authority of the lupon ng tagapamayapa?
A: A party may directly file an action in court in the
following instances:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Where the accused is under police

custody or detention;
Where the person has otherwise been
deprived of personal liberty calling for
habeas corpus proceeding;
Where the actions are coupled with
provisional remedies such as preliminary
injunction, attachment, delivery of
personal property, and support pendente
lite;
Where the action may otherwise be
barred by the statute of limitations;
Labor disputes;
CARL disputes;
Any class of dispute which the President
may determine in the interest of justice or
upon recommendation of the Secretary of
Justice;
Disputes involving the traditions of
indigenous cultural communities; and
Actions to annul judgment upon a
compromise.

373

E. EXECUTION
Q: What is the effect of amicable settlement and
arbitration award?
A:
GR: The amicable settlement and arbitration
award shall have force and effect of a final
judgment of a court upon the expiration of 10
days from the date thereof, unless repudiation
of the settlement has been made or a petition
to nullify the award has been filed before the
proper city or municipal court.
XPN: the compromise settlement agreed upon
by the parties before the lupon chairman or the
pangkat chairman involving court cases which
fall under the last paragraph of Sec. 408 shall be
submitted to the court and upon approval
thereof, have the force and effect of a judgment
of said court (Sec. 416).
Q: How is the arbitration award complied with?
A: The parties, may, at any stage of the arbitration
proceedings, agree in writing that they shall abide
by the arbitration award of the lupon chairman or
the pangkat chairman. Such agreement to arbitrate
may be repudiated within 5 days from the date
thereof on the grounds stated in Sec. 418. The
arbitration award shall be made after the lapse of
the period of repudiation and 10 days thereafter.
Q: Within what period shall the arbitration award
be enforced?
A: It may be enforced by execution by the lupon
within 6 months from date of settlement. After the
lapse of such time, the settlement may be enforced
by action in the appropriate city or municipal court
(Sec. 417).
F. REPUDIATION
Q: What may be the grounds for repudiating the
amicable settlement?
A: Any party to the dispute may within 10 days
from the date of the settlement, repudiate the
same by filing with the lupon chairman a statement
to that effect sworn to before him, where the
consent is vitiated by fraud, violence, or
intimidation. Such repudiation shall be sufficient
basis for the issuance of the certification for filing a
complaint as hereinabove provided (Sec. 418).
374
REMEDIAL LAW TEAM:

RULE OF PROCEDURE FOR SMALL CLAIM CASES

IX. RULE OF PROCEDURE FOR SMALL CLAIM CASES
(AM No. 08-8-7-SC)
2.
For damages arising from any of the

following:
a. Fault or negligence;
b. Quasi-contracts; and
c.
Contracts.
3.
The enforcement of a barangay amicable

settlement or an arbitration award
involving a money claim covered by this
rule pursuant to Sec. 417 of the Local
Government Code of 1991 (Sec. 4).
Q: What is the Rule of Procedure for Small Claims

Cases?
A: It is a special rule of procedure adopted by the
Supreme Court pursuant to its rule-making power
under Sec. 5(5), Art. VIII of the 1987 Constitution, to
govern small claims cases and is to be piloted in
designated first level courts (MTC, MTCC, and
MCTC). This rule allows a plaintiff to sue a
defendant without the need of a lawyer.
Q: What is the jurisdictional amount for small

claims?
A. SCOPE AND APPLICABILITY OF THE RULE

Q: What is the scope of this Rule?
A: The Rule governs the procedure in actions for
money claims before the Metropolitan Trial Courts,
Municipal Trial Courts in Cities, Municipal Trial
Courts and Municipal Circuit Trial Courts where the
value of the claim does not exceed One Hundred
Thousand Pesos (P100,000.00), exclusive of interest
and costs.
Q: In what actions does the rule on small claims
apply? (Applicability)
A:
1.
2.
3.
Those which are purely civil in nature

where the claim or relief prayed for by
the plaintiff is solely for payment or
reimbursement of sum of money;
The civil aspect of criminal actions either
filed before the institution of the criminal
action or reserved upon the filing of a
criminal action in court, pursuant to Rule
111 of the Revised Rules of Criminal
Procedure (Sec. 4); and
The enforcement of a barangay amicable
settlement or an arbitration award
involving money claims covered by the
Rule, pursuant to Sec. 417 of the Local
Government Code of 1991.
Q: What should the claims or demands consist of?

A: The claims or demands may be:
1.
For money owed under any of following:

a. Contract of lease;
b. Contract of loan;
c. Contract of services;
d. Contract of sale; or
e. Contract of mortgage.
A: The value of the claim prayed for must not

exceed one hundred thousand pesos (P100,000.00)
exclusive of interest and costs (Sec. 2).
B. COMMENCEMENT OF SMALL CLAIMS ACTION;
RESPONSE
Q: How does one start a small claims case?
A: The plaintiff must first accomplish a verified
Statement of Claim and certify the information
provided, stating that he has not filed any action
involving the very same issue in any other court,
tribunal or agency through a verification and
certification of non-forum shopping.
The Statement of Claim must be accompanied by
certified duplicate photocopies of all supporting
documents.
The plaintiff then files the Statement of Claim with
its accompanying documents with the office of the
clerk of court of the small claims court, personally
or through mail, and pays the correct docket and
filing fees prescribed under Rule 141 of the Revised
Rules of Court (Sec. 5).
If one is an indigent, he may apply to the small
claims court to qualify as an indigent, and once
qualified, he is exempt from payment of such fees
(Sec. 8).
Note: In no case shall a party, even if declared an
indigent, be exempt from the payment of P1,000.00
fee for service of summons and processes in civil cases
(Sec. 8).
Plaintiff may join in a single statement of claim one

or more separate small claims against a defendant
provided that the total amount claimed, exclusive
of interest and costs, does not exceed 100,000 (Sec.
6).

375

Q: When should the defendant file a response?
A: The defendant shall file with the court and serve
on the plaintiff a duly accomplished and verified
response within a non-extendible period of ten (10)
days from receipt of summons.
The response shall be accompanied by certified
photocopies of documents, as well as affidavits of
witnesses and other evidence in support thereof.
No evidence shall be allowed during the hearing
which was not attached to or submitted together
with the Response, unless good cause is shown for
the admission of additional evidence (Sec. 11).
raised in the same case. Otherwise, it will be barred

(Sec.13).
C. PROHIBITED PLEADINGS AND MOTIONS
Q: What are the prohibited pleadings, motions and
petitions?
A:
1.

on the ground of lack of jurisdiction;
reopening of trial;
4. Petition for relief from judgment;
pleadings, affidavits, or any other paper;
6. Memoranda;
order issued by the court;
default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints; and
12. Interventions (Sec. 14).
Q: Instead of filing a response, can a defendant file

a motion to dismiss the claim?
A: No. The filing of a motion to dismiss instead of a
response is prohibited, except on ground of lack of
jurisdiction.
Q: What is the effect if the defendant failed to file
a response within the required period?
A: The court by itself shall render judgment as may
be warranted by the facts alleged in the Statement
of Claims limited to what is prayed for. The court
however, may, in its discretion reduce the amount
of damages for being excessive or unconscionable
(Sec. 12).
D. APPEARANCES
Q: Who are required to appear at the hearing?
Q: Are counterclaims allowed under this rule?

A: Yes. If at the time the action is commenced, the
defendant in his Response may file as counterclaim
a claim against the plaintiff that:
1.
2.
3.
4.
is within the coverage of this Rule,

exclusive of interest and costs;
arises out of the same transaction or
event that is the subject matter of the
plaintiffs claim;
does not require for its adjudication the
joinder of third parties; and
is not a subject of another pending action
(Sec. 13).
Note: The defendant may also elect to file a

counterclaim against the plaintiff that does not arise
out of the same transaction or occurrence, provided
that the amount and nature thereof are within the
coverage of this Rule and the prescribed docket and
other legal fees are paid.
A: The parties shall appear at the hearing personally

or through a representative they may authorize
under a Special Power of Attorney to enter into an
amicable settlement, to submit to Judicial Dispute
Resolution (JDR) and to enter into stipulations or
admissions of facts and of documentary exhibits
(Sec. 16).
Note: Appearance through a representative must be
for a valid cause. The representative of an individualparty must not be a lawyer, and must be related to or
next-of-kin of the individual-party. Juridical entities
shall not be represented by a lawyer in any capacity
(Sec. 16).
Q: What is the effect of non-appearance of a

party?
A:
1.
2.
Q: What happens when a defendant fails to

include a counterclaim in his/her Response?
If the plaintiff does not appear, the claim

shall be dismissed without prejudice.
If the defendant does not appear, the
effect will be the same as failure to file a
Response.
A: If the counterclaim is compulsory, it must be
376
REMEDIAL LAW TEAM:

RULE OF PROCEDURE FOR SMALL CLAIM CASES

3.
If both parties do not appear, the claim

and counterclaim shall be dismissed with
prejudice (Sec. 18).
Note: This shall not apply where one of two or more

defendants who are sued under a common cause of
action and have pleaded a common defense appears
at the hearing.
Q: Are lawyers allowed at the hearing?

A: No, lawyers are not allowed to appear at the
hearing unless they are the plaintiff or the
defendant. However, since the process is still a legal
process, the parties and their authorized
representatives can still consult with a lawyer to
assist them to prepare for the hearing or for other
matters outside the hearing (Sec. 17).
A: The rule does not preclude a party from filing a

petition for certiorari under Rule 65 when there is
grave abuse of discretion amounting to lack or
excess of jurisdiction in relation to a judgment in a
small claims action (such a petition is prohibited
with regard to interlocutory orders).
Further, the aggrieved party can also file an action
for annulment of judgment when the requirements
under the Rules of Civil Procedure are complied
with.
Q: Who is allowed to assist a party who cannot

properly present his claim or defense?
A: The court, in its discretion, may allow another
individual who is not a lawyer to assist the party
(Sec. 17).
E. HEARING; DUTY OF THE JUDGE
Q: When is postponement of a hearing allowed?
A: It may be granted only upon proof of the physical
inability of the party to appear before the court on
the scheduled date and time. A party may avail of
only 1 postponement (Sec. 19).
Q: What is the duty of the Judge?
A: At the beginning of the court session, the judge
shall read aloud a short statement explaining the
nature, purpose and the rule of procedure of small
claims cases. (Sec. 20)
F. FINALITY OF JUDGMENT
Q: Is an appeal of a decision allowed?
A: No. A decision in small claims cases is final and
unappealable (Sec. 23). The declaration that the
decision is final and unappealable is in line with the
nature of small claims which is designed to preclude
unmeritorious appeals that result in long drawn
litigation for cases of this nature, pursuant to the
Supreme Courts constitutional mandate to enact
rules of procedure.
Q: What then is the remedy of a party when the
decision is final and unappealable?

377

X. RULES OF PROCEDURE FOR ENVIRONMENTAL
CASES (AM No. 09-6-78-SC)
(t)
(u)
A. SCOPE AND APPLICABILITY OF THE RULE

Q: What is the scope of the Rule on Environmental
Cases?
A: These Rules shall govern the procedure in civil,
criminal and special civil actions before the Regional
Trial Courts, Metropolitan Trial Courts, Municipal
Trial Courts in Cities, Municipal Trial Courts and
Municipal Circuit Trial Courts involving enforcement
or violations of environmental and other related
laws, rules and regulations such as but not limited
to the following:
(a) Act No. 3572, Prohibition Against Cutting
of Tindalo, Akli, and Molave Trees;
(b) P.D. No. 705, Revised Forestry Code;
(c) P.D. No. 856, Sanitation Code;
(d) P.D. No. 979, Marine Pollution Decree;
(e) P.D. No. 1067, Water Code;
(f) P.D. No. 1151, Philippine Environmental
Policy of 1977;
(g) P.D. No. 1433, Plant Quarantine Law of
1978;
(h) P.D.
No.
1586,
Establishing
an
Environmental Impact Statement System
Including
Other
Environmental
Management Related Measures and for
Other Purposes;
(i) R.A. No. 3571, Prohibition Against the
Cutting, Destroying or Injuring of Planted
or Growing Trees, Flowering Plants and
Shrubs or Plants of Scenic Value along
Public Roads, in Plazas, Parks, School
Premises or in any Other Public Ground;
(j) R.A. No. 4850, Laguna Lake Development
Authority Act;
(k) R.A. No. 6969, Toxic Substances and
Hazardous Waste Act;
(l) R.A. No. 7076, Peoples Small-Scale
Mining Act;
(m) R.A. No. 7586, National Integrated
Protected Areas System Act including all
laws, decrees, orders, proclamations and
issuances establishing protected areas;
(n) R.A. No. 7611, Strategic Environmental
Plan for Palawan Act;
(o) R.A. No. 7942, Philippine Mining Act;
(p) R.A. No. 8371, Indigenous Peoples Rights
Act;
(q) R.A. No. 8550, Philippine Fisheries Code;
(r) R.A. No. 8749, Clean Air Act;
(s) R.A. No. 9003, Ecological Solid Waste
Management Act;
378
(v)
(w)
(x)
(y)
R.A. No. 9072, National Caves and Cave

Resource Management Act;
R.A. No. 9147, Wildlife Conservation and
Protection Act;
R.A. No. 9175, Chainsaw Act;
R.A. No. 9275, Clean Water Act;
R.A. No. 9483, Oil Spill Compensation Act
of 2007; and
Provisions in C.A. No. 141, The Public Land
Act; R.A. No. 6657, Comprehensive
Agrarian Reform Law of 1988; R.A. No.
7160, Local Government Code of 1991;
R.A. No. 7161, Tax Laws Incorporated in
the Revised Forestry Code and Other
Environmental Laws (Amending the
NIRC); R.A. No. 7308, Seed Industry
Development Act of 1992; R.A. No. 7900,
High-Value Crops Development Act; R.A.
No. 8048, Coconut Preservation Act; R.A.
No. 8435, Agriculture and Fisheries
Modernization Act of 1997; R.A. No. 9522,
The Philippine Archipelagic Baselines Law;
R.A. No. 9593, Renewable Energy Act of
2008; R.A. No. 9637, Philippine Biofuels
Act; and other existing laws that relate to
the
conservation,
development,
preservation, protection and utilization of
the environment and natural resources.
(Sec. 2, Rule 1)
B. CIVIL PROCEDURE
1. PROHIBITION AGAINST TEMPORARY

RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Q: Can a court issue a writ of preliminary
injunction or temporary restraining order preclude
the government from enforcing environmental
laws or prevent violations thereof?
A: As a general rule, no court can issue a TRO or
writ of preliminary injunction against lawful actions
of
government
agencies
that
enforce
environmental laws or prevent violations thereof.
The Supreme Court is the only court which can
issue such orders. (Sec. 10, Rule 2)
Q: Can a court issue a writ of preliminary
injunction or temporary restraining order preclude
the government from enforcing environmental
laws or prevent violations thereof?
A: As a general rule, no court can issue a TRO or
writ of preliminary injunction against lawful actions
of
government
agencies
that
enforce
environmental laws or prevent violations thereof.
REMEDIAL LAW TEAM:

RULES OF PROCEDURE FOR ENVIRONMENTAL CASES

The Supreme Court is the only court which can
issue such orders. (Sec. 10, Rule 2)
2. PRE-TRIAL CONFERENCE; CONSENT DECREE
receipt of the TEPO by the party or person

enjoined. Within said period, the court where the
case is assigned, shall conduct a summary hearing
to determine whether the TEPO may be extended
until the termination of the case.
Q: When may a judge issue a consent decree?

A: The judge may issue a consent decree approving
the agreement between the parties in accordance
with law, morals, public order and public policy to
protect the right of the people to a balanced and
healthful ecology. (Sec. 5, Rule 3)
Note: Evidence not presented during the pre-trial,
except newly discovered evidence, shall be deemed
waived. (Section 5, Rule3)
Q: What is the duty of the judge during the pretrial conference?
NOTE: The court where the case is assigned, shall

periodically monitor the existence of acts that are the
subject matter of the TEPO even if issued by the
executive judge, and may lift the same at any time as
circumstances may warrant. (Sec. 8, Rule 2)
Q: Is the applicant required to post a bond?

A: No. The applicant shall be exempted from the
posting of a bond for the issuance of a TEPO. (Sec.
8, Rule 2)
5. JUDGMENT AND EXECUTION; RELIEFS IN A
CITIZENS SUIT
A:
1. Put the parties and their counseld under
oath and they shall remain under oath in all
pre-trial conferences.
2. Exert best efforts to persuade parties to
arrive at an amicable settlement.
3. Issue a consent decree
3. PROHIBITED PLEADINGS AND MOTIONS
Q: What are the prohibited pleadings and motions
under this Rules Civil Procedure?
A:
1.
2.
3.
4.
5.
6.
Motion to dismiss the complaint;

Motion for a bill of particulars;
Motion for extension of time to file
pleadings, except to file answer, the
extension not to exceed fifteen (15) days;
Motion to declare the defendant in
default;
Reply and rejoinder; and
Third party complaint. (Sec. 2, Rule 2)
4. TEMPORARY ENVIRONMENTAL PROTECTION

ORDER (TEPO)
Q: When should a Temporary Environmental
Protection order be issued?
A: If it appears from the verified complaint with a
prayer for the issuance of an Environmental
Protection Order (EPO) that the matter is of
extreme urgency and the applicant will suffer grave
injustice and irreparable injury, the executive judge
of the multiple sala court before raffle or the
presiding judge of a single-sala court as the case
may be, may issue ex parte a TEPO effective for
only seventy-two (72) hours from date of the
Q: What are the reliefs in a citizen suit?

A: If warranted, the court may grant to the plaintiff
proper reliefs which shall include the protection,
preservation or rehabilitation of the environment
and the payment of attorneys fees, costs of suit
and other litigation expenses.
It may also require the violator to submit a program
of rehabilitation or restoration of the environment,
the costs of which shall be borne by the violator, or
to contribute to a special trust fund for that
purpose subject to the control of the court. (Sec. 1,
Rule 5)
Q: Can a judgment be stayed by appeal?
A: As a general rule, no. Any judgment directing the
performance of acts for the protection,
preservation or rehabilitation of the environment
shall be executory pending appeal unless restrained
by the appellate court. (Sec. 2, Rule 5)
Q: When is there a need to refer to a
commissioner?
A; The court may motu proprio, or upon motion of
the prevailing party, order that the enforcement of
the judgment or order be referred to a
commissioner to be appointed by the court. The
commissioner shall file with the court written
progress reports on a quarterly basis or more
frequently when necessary. (Sec. 4, Rule 5)
Q: When shall the judgment be deemed executed?
A: The process of execution shall terminate upon a
sufficient showing that the decision or order has
been implemented to the satisfaction of the court

379

in accordance with Section 14, Rule 39 of the Rules
of Court. (Sec. 5, Rule 5)
6. PERMANENT ENVIRONMENTAL PROTECTION
ORDER; WRIT OF CONTINUING MANDAMUS
Q: When may the court convert a TEPO to a
permanent EPO? When may the court issue a writ
of continuing mandamus?
A: In the judgment, the court may convert the TEPO
to a permanent EPO or issue a writ of continuing
mandamus directing the performance of acts which
shall be effective until the judgment is fully
satisfied.
Note: The court may, by itself or through the
appropriate government agency, monitor the
execution of the judgment and require the party
concerned to submit written reports on a quarterly
basis or sooner as may be necessary, detailing the
progress of the execution and satisfaction of the
judgment. The other party may, at its option, submit
its comments or observations on the execution of the
judgment. (Sec. 3, Rule 5)
7. STRATEGIC LAWSUIT AGAINST PUBLIC

PARTICIPATION
Q: What is a Strategic Lawsuit Against Public
Participation (SLAPP)?
A: It is a legal action filed to harass, vex, exert
undue pressure or stifle any legal recourse that any
person, institution or the government has taken or
may take in the enforcement of environmental
laws, protection of the environment or assertion of
environmental rights. (Sec. 1, Rule 6)
Q: Can the defendant raise SLAPP as a legal
defense?
A: Yes, the defendant may file an answer
interposing as a defense that the case is a SLAPP
and shall be supported by documents, affidavits,
papers and other evidence; and, by way of
counterclaim, pray for damages, attorneys fees and
costs of suit. (Sec. 1, Rule 6)
NOTE: The plaintiff has 5 days (non-extendible) from
receipt of notice that an answer has been filed to
refute such defense. The court will then set a hearing
after issuance of the order to file an opposition within
fifteen (15) days from filing of the comment or the
lapse of the period. (Sec. 1, Rule 6)
A: It is summary. The parties must submit all

available evidence in support of their respective
positions. (Sec. 3, Rule 6)
Q: What is the quantum of proof required?
A: The party seeking the dismissal of the case must
prove by substantial evidence that his acts for the
enforcement of environmental law is a legitimate
action for the protection, preservation and
rehabilitation of the environment. The party filing
the action assailed as a SLAPP shall prove by
preponderance of evidence that the action is not a
SLAPP and is a valid claim. (Sec. 3, Rule 6)
Q: How many days does the court have to resolve
the issue?
A: Within 30 days, the court shall resolve the
question of SLAPP. (Sec. 3, Rule 6)
Q: What is the effect of the dismissal of the
action?
A: If the court dismisses the action, the court may
award damages, attorneys fees and costs of suit
under a counterclaim if such has been filed. The
dismissal shall be with prejudice. (Sec 4)
Q: What happens to the evidenced adduced during
the summary hearing on the defense of SLAPP in
case the court rejects such defense?
A: It shall be treated as evidence of the parties on
the merits of the case. (Sec. 4)
Q: Can SLAPP be raised as a defense in criminal
cases?
A: Yes. The accused may file a motion to dismiss
based on SLAPP upon the filing of an information in
court and before arraignment. (Sec. 1, Rule 19)
Q: When may a court grant the motion of the
accused?
A: The court shall grant the motion if the accused
establishes in the summary hearing that the
criminal case has been filed with intent to harass,
vex, exert undue pressure or stifle any legal
recourse that any person, institution or the
government has taken or may take in the
enforcement of environmental laws, protection of
the environment or assertion of environmental
rights. (Sec. 3, Rule 19)
Q: What is the nature of the hearing on the

defense of a SLAPP?
380
REMEDIAL LAW TEAM:


Q: What if the court denies the motion?
A: The court shall immediately proceed with the
arraignment of the accused. (Sec. 3, Rule 19)
C. SPECIAL PROCEEDINGS
Note: witnesses having personal knowledge of the

violation or threatened violation of environmental law.
(Sec. 12 (a), Rule 7)
1. WRIT OF KALIKASAN
Q: What does the ocular inspection order contain?
Q: What is the Writ of Kalikasan?

A: It is a special remedy available to a natural or
juridical person, entity authorized by law, peoples
organization, non-governmental organization, or
any public interest group accredited by or
registered with any government agency, on behalf
of persons whose constitutional right to a balanced
and healthful ecology is violated, or threatened
with violation by an unlawful act or omission of a
public official or employee, or private individual or
entity, involving environmental damage of such
magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or
provinces. (Sec. 1, Rule 7)
2. PROHIBITED PLEADINGS AND MOTIONS
Q: What are the prohibited pleadings and
motions?
A:
1.
2.
3.
4.
5.
6.
7.
8.
Motion to dismiss;
Motion for extension of time to file
return;
Motion for postponement;
Motion for a bill of particulars;
Counterclaim or cross-claim;
Third-party complaint;
Reply; and
Motion to declare respondent in default.
(Sec. 9, Rule 7)
3. DISCOVERY MEASURES
Q: What are the interim reliefs available to the

petitioner upon verified motion?
A:
1.
2.
cities or provinces. It shall state in detail the place

or places to be inspected.
Ocular inspection; or
Production or inspection of documents or
things. (Sec. 12, Rule 7)
Q: How is an ocular inspection order granted?

A: The motion must show that an ocular inspection
order is necessary to establish the magnitude of the
violation or the threat as to prejudice the life,
health or property of inhabitants in two or more
A: The order shall specify the person or persons

authorized to make the inspection and the date,
time, place and manner of making the inspection
and may prescribe other conditions to protect the
constitutional rights of all parties. (Sec. 12(a), Rule
7)
Q: What must the motion asking for the issuance
of a production order or inspection of documents
A: The motion must show that a production order is
necessary to establish the magnitude of the
violation or the threat as to prejudice the life,
health or property of inhabitants in two or more
cities or provinces.
Q: What must the production order state?
A: The production order shall specify the person or
persons authorized to make the production and the
date, time, place and manner of making the
inspection or production and may prescribe other
conditions to protect the constitutional rights of all
parties.
Note: After hearing, the court may order any person in
possession, custody or control of any designated
documents, papers, books, accounts, letters,
photographs, objects or tangible things, or objects in
digitized or electronic form, which constitute or
contain evidence relevant to the petition or the return,
to produce and permit their inspection, copying or
photographing by or on behalf of the movant. (Sec.
12(b), Rule 7)
4. WRIT OF CONTINUING MANDAMUS

Q: When may an aggrieved party file a verified
petition for the issuance of a writ of continuing
mandamus?
A:
1.
When any agency or instrumentality of

the government or officer thereof to
perform such actswho unlawfully neglects
the performance of an act which the law
specifically enjoins as a duty resulting
from an office, trust or station in
connection with the enforcement or
violation of an environmental law rule or

381
2.
regulation or a right therein, or unlawfully

excludes another from the use or
enjoyment of such right.
When there is no other plain, speedy and
adequate remedy in the ordinary course
of law. (Sec. 1, Rule 8)
Q: What should the verified petition contain?

A:
1.
2.
3.
4.
5.
Allegation of facts
Specific allegation that it concerns an
environmental law, rule or regulation
Prayer that judgment be rendered
commanding the respondent to do an act
or series of acts until the judgment is fully
satisfied
Prayer for damages sustained due to
malicious neglect to perform legal duties
Sworn
certification
of
non-forum
shopping.
Note: Supporting documents mush be attached.

(Sec. 1, Rule 8)

A: The petition shall be filed with the Regional Trial
Court exercising jurisdiction over the territory
where the actionable neglect or omission occurred
or with the Court of Appeals or the Supreme Court.
(Section 2, Rule 8)
Q: Are docket fees required to be paid?
A: No, the petitioner is exempt from payment of
docket fees. (Sec. 3, Rule 8)
Q: What does the court do if the petition is
sufficient in form and substance?
A: The court shall issue the writ and require the
respondent to comment on the petition within 10
days from receipt of a copy thereof. (Sec. 4, Rule 8)
2.
Grant a TEPO for the preservation of the

rights of the parties pending such
proceedings. (Sec. 5, Rule 8)
Q: What is the nature of the hearing?

A: It is summary in nature. The court, after the
comment is filed or the time for the filing thereof
has expired, shall require the parties to submit
memoranda. (Sec. 6, Rule 8)
Q: When should the petition be resolved?
A: The petition shall be resolved without delay
within sixty (60) days from the date of the
submission of the petition for resolution. (Sec. 6,
Rule 8)
Q: Can the court still grant the privilege of the writ
of continuing mandamus?
A: Yes, if warranted, the court shall grant the
privilege of the writ of continuing mandamus
requiring respondent to perform an act or series of
acts until the judgment is fully satisfied and to grant
such other reliefs as may be warranted resulting
from the wrongful or illegal acts of the respondent.
(Sec. 7, Rule 8)
Q: What shall the court do to ensure compliance
with the judgment?
A: The court shall require the respondent to submit
periodic reports detailing the progress and
execution of the judgment, and the court may, by
itself or through a commissioner or the appropriate
government agency, evaluate and monitor
compliance. (Sec. 7, Rule 8)
Q: Can the petitioner intervene even after
promulgation of judgment?
A: Yes, the petitioner may submit its comments or
observations on the execution of the judgment.
(Sec. 7, Rule 8)
Q: How shall the order to comment be served?

A: The order shall be served on the respondents in
such manner as the court may direct, together with
a copy of the petition and any annexes thereto.
(Sec. 4, Rule 8)
Q: What must the respondent do to evidence

compliance with the judgment?
A: Submit periodic reports detailing such
compliance. It shall be contained in partial returns
of the writ. (Sec. 8, Rule 8)
Q: How may the court expedite the proceedings?

Q: When must a final return of the writ be made to
the court?
A:
1.
382
Issue such orders to expedite the

proceedings; and
A: Upon full satisfaction of judgment. (Sec. 8, Rule

8)
REMEDIAL LAW TEAM:


A:
Note: If the court finds that judgment has been fully
implemented, the satisfaction of judgment shall be
entered in the court docket. (Sec. 8, Rule 8)
1.
D. CRIMINAL PROCEDURE
2.
1. WHO MAY FILE

Q: Who may file a criminal complaint under this
Rule?
A: Any offended party, peace officer or any public
officer charged with the enforcement of an
environmental law. (Sec. 1, Rule 9)
2. INSTITUTION OF CRIMINAL AND CRIMINAL
ACTION
Q: Can the complainant institute a civil action for
recovery of damages separately from the criminal
action?
A: Yes.
1.
2.
Complainant can institute civil action for

recovery of damages before the criminal
action.
Complainant can reserve right to
separately institute the civil action from
the criminal action.
Individuals deputized by the proper government

agency who are enforcing environmental laws shall
enjoy the presumption of regularity under Section
3(m), Rule 131 of the Rules of Court when effecting
arrests for violations of environmental laws. (Sec. 1,
Rule 11)
4. PROCEDURE IN THE CUSTODY AND DISPOSITION
OF SEIZED ITEMS
Q: What procedure takes place in the absence of
applicable laws or rules promulgated by the
concerned government agency?
A:
1.
NOTE: Complainant may waive this right.

(Sec 1, Rule 10)
Q: When should the reservation be made?
2.
A: During arraignment except when the civil action

has been instituted prior to the criminal action. (Sec
1, Rule 10)
Q: To whom are the damages awarded?
A: The private offended party. If there is none, the
damages less the filing fees, shall accrue to the
funds of the agency charged with the
implementation of the environmental law violated.
(Sec. 1, Rule 10)
3.
Q: What is the purpose of the award for damages?

A: It shall be used for the restoration and
rehabilitation of the environment adversely
affected. (Sec. 1, Rule 10)
4.
3. ARREST WITHOUT WARRANT, WHEN VALID

Q: When is an arrest without a warrant lawful?
When, in his presence, the person to be

arrested has committed, is actually
committing or is attempting to commit an
offense; or
When an offense has just been
committed, and he has probable cause to
believe based on personal knowledge of
facts or circumstances that the person to
be arrested has committed it.
5.
The apprehending officer having initial

custody and control of the seized items,
equipment, paraphernalia, conveyances
and instruments shall physically inventory
and whenever practicable, photograph
the same in the presence of the person
from whom such items were seized.
Thereafter, the apprehending officer shall
submit to the issuing court the return of
the search warrant within five (5) days
from date of seizure or in case of
warrantless arrest, submit within five (5)
days from date of seizure, the inventory
report, compliance report, photographs,
representative samples and other
pertinent documents to the public
prosecutor for appropriate action.
Upon motion by any interested party, the
court may direct the auction sale of seized
items, equipment, paraphernalia, tools or
instruments of the crime. The court shall,
after hearing, fix the minimum bid price
based on the recommendation of the
concerned government agency. The
sheriff shall conduct the auction.
The auction sale shall be with notice to
the accused, the person from whom the
items were seized, or the owner thereof
and the concerned government agency.
The notice of auction shall be posted in
three conspicuous places in the city or
municipality where the items, equipment,

383
6.
paraphernalia, tools or instruments of the

crime were seized.
The proceeds shall be held in trust and
deposited
with
the
government
depository bank for disposition according
to the judgment. (Sec. 2, Rule 12)
6. ARRAIGNMENT AND PLEA

Q: When shall the court set the arraignment of the
accused?
A: Within 15 days from the time it acquires
jurisdiction over the accused. (Sec. 1, Rule 15)
5. BAIL
Q: Where must bail be filed?
A: It is filed with the court where the case is
pending, or in the absence or unavailability of the
judge thereof, with any regional trial judge,
metropolitan trial judge, municipal trial judge or
municipal circuit trial judge in the province, city or
municipality.
If the accused is arrested in a province, city or
municipality other than where the case is pending,
bail may also be filed with any Regional Trial Court
of said place, or if no judge thereof is available, with
any metropolitan trial judge, municipal trial judge
or municipal circuit trial judge therein. If the court
grants bail, the court may issue a hold-departure
order in appropriate cases. (Sec. 1, Rule 14)
Q: What must the court do before granting the bail
application?
A: The judge must read the information to the
accused in a language known to and understood by
the accused. (Sec. 2, Rule 14)
Q: What are the contents of the written
undertaking which the accused must sign?
A:
1.
2.
3.
384
To appear before the court that issued

the warrant of arrest for arraignment
purposes on the date scheduled, and if
the accused fails to appear without
justification on the date of arraignment,
accused waives the reading of the
information and authorizes the court to
enter a plea of not guilty on behalf of the
accused and to set the case for trial;
To appear whenever required by the
court where the case is pending; and
To waive the right of the accused to be
present at the trial, and upon failure of
the accused to appear without
justification and despite due notice, the
trial may proceed in absentia. (Sec. 2, Rule
14)
NOTE: Notice that plea bargaining will be entertained

on the date of arraignment must be sent to the public
prosecutor, the offended party and the government
agency concerned.
Q: What is the duty of the court when the

prosecution and offended party or concerned
government agency agree to the plea offered by
the accused?
A:
1.
2.
3.
Issue an order which contains the pleabargaining arrived at;

Proceed to receive evidence on the civil
aspect of the case, if any; and
Render and promulgate judgment of
conviction, including the civil liability for
damages. (Sec. 2, Rule 15)
7. PRE-TRIAL
Q: When should the pre-trial conference take

place?
A: It shall take place within 30 days from
arraignment. The court may also refer the case to
the branch clerk of court for preliminary conference
at least 3 days before the pre-trial conference. (Sec.
1, Rule 16)
Q: What are the purposes of the preliminary
conference?
A:
1.
2.
3.
4.
5.
6.
To assist the parties in reaching a

settlement of the civil aspect of the case;
To mark the documents to be presented
as exhibits;
To attach copies thereof to the records
after comparison with the originals;
To ascertain from the parties the
undisputed facts and admissions on the
genuineness and due execution of
documents marked as exhibits;
To consider such other matters as may aid
in the prompt disposition of the case;
To record the proceedings during the
preliminary conference in the Minutes of
Preliminary Conference to be signed by
the parties and counsel;
REMEDIAL LAW TEAM:


7.
8.
To mark the affidavits of witnesses which

shall be in question and answer form and
shall constitute the direct examination of
the witnesses; and
To attach the Minutes and marked
exhibits to the case record before the pretrial proper.
Note: The parties or their counsel must submit to the

branch clerk of court the names, addresses and
contact numbers of the affiants. (Sec. 2, Rule 16)
Q: Can an agreement or admission made or

entered during the pre-trial conference not
reduced into writing and signed by the accused
and counsel be used against the accused?
A: No. (Sec. 5, Rule 16)
Note: The agreements covering the matters referred
to in Section 1, Rule 118 of the Rules of Court shall be
approved by the court.
Q: Should the proceedings be recorded?

Q: What is the duty of the court during pre-trial?
A:
1.
2.
3.
4.
5.
6.
7.
Place the parties and their counsels under

oath;
Adopt the minutes of the preliminary
conference as part of the pre-trial
proceedings, confirm markings of exhibits
or
substituted
photocopies
and
admissions on the genuineness and due
execution of documents, and list object
and testimonial evidence;
Scrutinize the information and the
statements in the affidavits and other
documents which form part of the record
of the preliminary investigation together
with other documents identified and
marked as exhibits to determine further
admissions of facts as to:
i.
The
courts
territorial
jurisdiction relative to the
offense(s) charged;
ii. Qualification
of
expert
witnesses; and
iii. Amount of damages;
Define factual and legal issues;
Ask parties to agree on the specific trial
dates and adhere to the flow chart
determined by the court which shall
contain the time frames for the different
stages of the proceeding up to
promulgation of decision;
Require the parties to submit to the
branch clerk of court the names,
addresses and contact numbers of
witnesses that need to be summoned by
subpoena; and
Consider modification of order of trial if
the accused admits the charge but
interposes a lawful defense. (Sec. 13, Rule
16)
Q: To whom should the questions be directed?

A: The court. (Sec 14, Rule 16)
A: All proceedings during the pre-trial shall be

recorded, the transcripts prepared and the minutes
signed by the parties or their counsels. (Sec. 6, Rule
16)
Q: What does the pre-trial order contain?
A: Within 10 days after termination of the pre-trial,
the court shall issue a pre-trial order containing:
1.
2.
3.
4.
5.
6.
The actions taken during the pre-trial

conference;
The facts stipulated;
The admissions made;
Evidence marked;
Number of witnesses to be presented;
and
Schedule of trial. (Sec. 7, Rule 16)
Note: The order shall bind the parties and control

the course of action during the trial.
8. SUBSIDIARY LIABILITIES
Q: When may subsidiary liability be recovered?
A: Under Art. 102 and 103 of the RPC, liability may
be enforced the person or corporation subsidiarily
liable upon motion of the person entitled to recover
such award in case of conviction of the acused. (Sec
1, Rule 18)
E. EVIDENCE
1. PRECAUTIONARY PRINCIPLE
Q: What is the precautionary principle?
A: The court in upholding the constitutional right of
the people to a balanced and healthful ecology shall
give the evidence presented the benefit of the
doubt even when there is a lack of full scientific
certainty in establishing a causal link between
human activity and the environmental effect. (Sec.
1, Rule 20)

385

Q: What are the factors that the courts may
consider in applying the precautionary principle?
A:
1.
2.
3.
Threats to human life or health;

Inequity to present or future generations;
or
Prejudice to the environment without
legal consideration of the environmental
rights of those affected. (Sec. 2, Rule 20)
2. DOCUMENTARY EVIDENCE
Q: When are photographs, videos and other

similar evidence admissible under this Rule?
A: Photographs, videos and similar evidence of
events, acts, transactions of wildlife, wildlife byproducts or derivatives, forest products or mineral
resources subject of a case shall be admissible
when authenticated by the person who took the
same, by some other person present when said
evidence was taken, or by any other person
competent to testify on the accuracy thereof. (Sec.
1, Rule 21)
Q: Are entries in official records prima facie
evidence of the facts stated therein?
A: Yes. (Sec 2, Rule 21)
386
REMEDIAL LAW TEAM:


Eneral Rinciples: Substantive Law Remedial Law

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GENERAL PRINCIPLES

Court decisions (Herrera, Vol. I, p. 2, 2007

A. CONCEPT OF REMEDIAL LAW

A: Procedural rule is the judicial process for

Q: How are remedial laws implemented in our

Q: Distinguish substantive and remedial law

C. RULE-MAKING POWER OF THE SUPREME COURT

1. LIMITATIONS ON THE RULE-MAKING POWER OF

Q: What are the principal sources of remedial law?

Q: What are the limitations on the rule-making

It shall provide a simplified and

2. POWER OF THE SUPREME COURT TO AMEND

May the Supreme Court suspend the

A: Yes. In the interest of just and expeditious

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

UST GOLDEN NOTES 2011

Q: Distinguish Courts of general jurisdiction from

A: It is an organ of the government, belonging to

3. CLASSIFICATION OF PHILIPPINE COURTS

5. COURTS OF GENERAL AND SPECIAL

Regular courts (Supreme Court, Court of

4. COURTS OF ORIGINAL AND APPELLATE

6. CONSTITUTIONAL AND STATUTORY COURTS

Q: Distinguish Courts of law from equity.

7. COURTS OF LAW AND EQUITY

Q: Distinguish Courts of original jurisdiction from

REMEDIAL LAW TEAM:

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

UST GOLDEN NOTES 2011

Q: Distinguish jurisdiction over the subject matter

B. JURISDICTION OVER THE SUBJECT MATTER

Jurisdiction Over the Subject

Jurisdiction Over the

Note: Tenancy relationship is

Conferred by law which may

A: It is the power to deal with the general subject

REMEDIAL LAW TEAM:

5. DOCTRINE OF PRIMARY JURISDICTION

Q: Distinguish error of jurisdiction from error of

Q: What is Doctrine of Ancillary Jurisdiction?

A: It involves the inherent or implied powers of the

4. HOW JURISDICTION IS CONFERRED AND

Q: What are the instances in which jurisdiction

By the administrative policy of any court;

Note: Under its ancillary jurisdiction, a court may

6. DOCTRINE OF ADHERENCE TO JURISDICTION

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II

UST GOLDEN NOTES 2011

When the proceedings in the court

because it cannot be tolerated by reason

Q: Does retroactivity of a law affect jurisdiction?

Public policy One cannot question the

A party who invokes the jurisdiction of

Note: Under the Omnibus Motion Rule, a motion

Q: Will the failure to exhaust administrative

REMEDIAL LAW TEAM:

When strong public interest is involved;

involving the status of the parties or suits

Note: The rule on exhaustion of administrative

8. EFFECT OF ESTOPPEL ON OBJECTIONS TO

Q: Which court has jurisdiction over the following?

4. Forcible entry and unlawful detainer

ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II